Delhi High Court: In a writ petition filed under Articles 226 and 227 of the Constitution to challenge an order dated 31-10-2023 passed by the Principal Bench, Central Administrative Tribunal (‘Tribunal’), Delhi, a Division Bench of Suresh Kumar Kait and Girish Kathpalia *, JJ. upheld the impugned order while stating that it was a humane and progressive view and dismissed the petition with an expectation that the government authorities would re-examine the sustainability of Rule 43 of the Central Civil Services (‘CCS’) (Leave) Rules, 1972.
Background
Respondent 1 was employed with the police authorities (petitioner) as a lady constable since 03-07-2006. Before she joined the service, she got married on 07-04-1998 and had two children. The marriage of respondent 1 could not succeed and was dissolved by way of a decree of divorce dated 16-12-2015. The custody of the children was given to her husband.
After her divorce, respondent 1 got married again on 11-12-2016 and gave birth to a child on 08-06-2018. Subsequently, she applied before the police authorities to seek maternity leave from 08-06-2018.
The said application was forwarded to the Government of NCT of Delhi (‘GNCTD’) to seek their opinion. On being consulted by the police authorities, the Department of Personnel and Training (DoPT) opined that as per Rule 43 of the CCS (Leave) Rules, a female government servant is entitled to maternity leave for 180 days if she has less than two surviving children.
Accordingly, the police authorities rejected the maternity leave application of respondent 1. Aggrieved, she preferred an original application before the Tribunal whereby she sought quashing of the order dated 05-04-2019 along with directions to the police authorities to grant her maternity leave.
Vide the impugned order, the Tribunal allowed the original application and directed the police authorities to grant maternity leave to respondent 1. Hence, the present petition was filed.
Analysis and Decision
The Court stated that the issue in the present matter was whether a lady government servant, who has two surviving children, is entitled to maternity leave in case of a third or subsequent child. The Court also stated that the issue was not only related to the rights of respondent 1 but also to the rights of her third child.
The Court stated that the parliament enacted the Maternity Benefit Act, 1961 (‘Maternity Act’) to consolidate maternity protection which had earlier been provided under different State and Central enactments which had considerable diversity related to the qualifying conditions, period, and rate of benefits, etc. to reduce which, a separate central legislation was required.
The Court referred to the provisions of the Maternity Act as well as various international covenants binding on the Government such as the Convention on the Elimination of all Forms of Discrimination against Women as well as the United Nations Convention on Rights of Child.
The Court stated that the principles enshrined in the aforementioned conventions and the overall scheme of the Maternity Act have to be the guiding light while interpreting the scope of Rule 43 of the CCS (Leave) Rules.
The Court stated that not just motherhood but childhood also required special attention and the health issues of both — the mother as well as the child are to be kept in consideration while providing maternity leave, aimed at protecting the dignity of motherhood by providing for full and healthy maintenance of the woman and her child, and that maternity leave is intended to achieve the objective of ensuring social justice to women and children.
Further, the Court referred to various cases to state the significance of maternity leave. The Court stated that the law on maternity leave has been progressively evolving as a part of not just the right of the mother and the child but also, as a solemn duty of the State. The Court stated that in all matters concerning a child’s care, protection, and well-being, the standard that the child’s best interest is of paramount importance must be applied.
The Court stated that the physiological and physical changes coupled with psychological turbulence that a pregnant woman undergoes are the same, be it the first two occasions of pregnancy or any further thereafter.
Further, the Court found that upon examining the issue from the angle of the child’s rights, Rule 43 of the CCS (Leave) Rules created an unreasonable distinction between the rights of the first two children born to a lady government servant and the third or subsequent child, making them suffer deprivation of motherly care, which the first two children had received.
The Court stated that it was their prima facie view that the classification of lady government servants based on the number of surviving children they have, lacks intelligible differentia. Further, the Court stated that Rule 43 was completely silent about the absurd situations that may arise out of its implementation.
The Court raised questions as to whether a lady government servant, opting to be a surrogate mother for noble reasons could be denied maternity leave under the said rule on the pretext that she has two surviving children, ignoring that the surrogate child in her womb is of someone else. The Court said that certain unanswered questions like these were pointers for them to opine that Rule 43 of the CCS (Leave) Rules would fail the test of Article 14 of the Constitution.
The Court stated that while it did not advocate incentivizing more than two children, the steps to disincentivize more than three children must be addressed to the parents and not the children. Further, the Court stated that it would be atrocious to expect the third and subsequent child to be deprived of motherly touch.
The Court said that the Government may take any appropriate innovative steps to dissuade the citizens from giving birth to more than two children, but once the third child comes into existence, his/her rights cannot be trampled over.
Further, the Court stated that if the object of Rule 43 of the CCS (Leave) Rules was population control, it remained unexplained as to why maternity leave could be granted in case of a child born through surrogacy because a childless couple always has the option to adopt, as in every society there are many children who do not have parents.
While concluding, the Court held that there was no reason to interfere with the humane and progressive view taken by the Tribunal and upheld the impugned order. Further, the Court dismissed the petition as well as the accompanying applications with the expectation that the government authorities would re-examine the sustainability of Rule 43 of the CCS (Leave) Rules.
[Commissioner of Police v. Ravina Yadav, 2024 SCC OnLine Del 4987, Decided on 22-07-2024]
Advocates who appeared in this case :
For Petitioners — SC Avnish Ahlawat, Advocate N.K. Singh, Advocate Laavanya Kaushik, Advocate Aliza Azam, Advocate Mohnish Sehrawat
For Respondents — SPC Avshreya Pratap Singh Rudy, Advocate Usha Jamnal
