Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 10.07.2024
Judgment pronounced on: 22.07.2024
+ W.P.(C) 9270/2024 and CM APPL. 38033/2024 (Stay)
COMMISSIONER OF POLICE AND ANR .....Petitioners
Through: Ms. Avnish Ahlawat, Standing
Counsel (GNCTD) with Mr. N.K.
Singh, Ms. Laavanya Kaushik, Ms.
Aliza Alam and Mr. Mohnish
Sehrawat, Advocates.
versus
RAVINA YADAV AND ANR .....Respondents
Through: Ms. Avshreya Pratap Singh Rudy,
SPC with Ms. Usha Jamnal, Advocate
for R-2.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE GIRISH KATHPALIA
J U D G M E N T
GIRISH KATHPALIA, J. :
Ontogeny recapitulates Phylogeny - Ernst Haeckel
1. By way of this writ petition brought under Articles 226 and 227 of
the Constitution of India, the petitioners have assailed order dated
30.10.2023 of the Principal Bench, Central Administrative Tribunal,
Delhi, passed in O.A. No.1716/2019 filed by respondent no.1.
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1.1 On the basis of advance notice, respondent no.2 Union of India
entered appearance through counsel and accepted notice. At request of
both sides, we heard final arguments at the initial stage itself, without
issuing notice to respondent no.1.
2. Briefly stated, circumstances relevant for present purposes are as
follows. The respondent no.1 is employed with the petitioners (police
authorities) as a Lady Constable since 03.07.2006. Prior to her joining
service with the petitioners, she got married with one Satya Pal on
07.04.1998 and was blessed with two children. Unfortunately, marriage of
respondent no.1 with Satya Pal could not succeed and was got dissolved
by way of decree dated 16.12.2015 of divorce with mutual consent,
whereby custody of children born from their wedlock was handed over to
Satya Pal. After her divorce, respondent no.1 got married with Deepak on
11.12.2016 and from this second wedlock, respondent no.1 was blessed
with a child on 08.06.2018, so she submitted an application before the
petitioners, thereby seeking maternity leave with effect from 08.06.2018.
The said maternity leave application of respondent no.1 was forwarded by
the petitioners vide communication dated 31.08.2018 to the Government
of NCT of Delhi, seeking opinion. On being consulted by the petitioners,
the Department of Personnel & Training (DoPT) rendered their opinion
dated 12.03.2019 that according to Rule 43 of the CCS (Leave) Rules,
1972, entitlement of a female government servant to maternity leave for a
period of 180 days is if she has less than two surviving children. Relying
upon the said opinion, petitioners rejected the maternity leave application
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of respondent no.1 vide order dated 05.04.2019 and informed her
accordingly. Feeling aggrieved with the decision, respondent no.1
preferred an Original Application, registered as O.A No.1716/2019 before
the learned Tribunal, whereby she sought quashing of order dated
05.04.2019 along with directions to the petitioners to grant her maternity
leave. After hearing both sides, by way of the impugned order dated
30.10.2023, the learned Tribunal allowed the Original Application,
thereby setting aside order dated 05.04.2019 of petitioners and directing
them to grant maternity leave to the respondent. Hence, the present
petition.
3. During arguments, learned counsel for petitioners took us through
the above records and contended that the impugned order is not
sustainable in the eyes of law. She strongly contended that since
respondent no.1 has two surviving children, in view of Rule 43 of CCS
(Leave) Rules, 1972 she is not entitled to maternity leave now, it being her
third child. However, the learned Tribunal fell in error by placing reliance
on the judgment in the case of Ruksana vs State of Haryana , W.P.(C) No.
4229/2011 as the same pertained to Rule 8.127 of the Punjab Civil
Services Rules.
3.1 Learned counsel for respondent no.2 also supported the petition and
contended that vide Rule 43 of CCS (Leave) Rules 1972, respondent no.1
is not entitled to maternity leave, it being a case of her third child. It was
also argued that Rule 43 being a benevolent provision, maternity leave
cannot be granted where the government servant has more than two
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surviving children, as the principle is based on public policy and family
planning goal of the Central Government.
4. As mentioned above, finding no merit in the challenge, we opted
not to issue notice of the petition to respondent no.1 so as to avoid on her
the burden of litigation expenses.
5. Thence, the issue before us is as to whether a lady government
servant, who has two surviving children is or is not entitled to maternity
leave in case of third or subsequent child. The only resistance from the
side of petitioners to grant of maternity leave to respondent no.1 is based
on Rule 43 of CCS (Leave) Rules, 1972, despite the factual position even
according to petitioners’ own pleadings being that both her children born
from her wedlock with her first husband Satya Pal are in custody of the
latter by virtue of the terms of their mutual consent divorce.
6. To begin with, we find this issue to be qua rights of not just
respondent no.1 but rights of her third child as well.
7. The matter has to be examined with the lens of constitutional
morality in the light of the Directive Principles of State Policy, enshrined
in Part IV of the Constitution of India.
7.1 Article 39 of the Constitution mandates that the State shall, in
particular direct its policy towards securing that the citizens, men and
women equally have the right to adequate means of livelihood; that the
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ownership and control of the material resources are so distributed as best
to subserve the common good; that the operation of the economic system
does not result in concentration of wealth and means of production to the
common detriment; that there is equal pay for equal work for both men
and women; that the health and strength of workers, men and women and
the tender age of children are not abused and the citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength;
and that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and childhood
and youth are protected against exploitation and against moral and
material abandonment.
7.2 Article 41 of the Constitution mandates the State to make within the
limits of its economic capacity and development, effective provisions for
securing right to work, education, and public assistance in cases of
unemployment, old age, sickness and disablement.
7.3 Article 42 of the Constitution mandates that the State shall make
provisions for securing just and humane conditions of work and for
maternity relief.
7.4 Article 43 of the Constitution mandates that the State shall
endeavour to secure to all workers work, a living wage, conditions of work
ensuring a decent standard of life and full enjoyment of leisure and social
and cultural opportunities by way of suitable legislation or economic
organization or otherwise.
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8. The concept of maternity leave, flowing from above quoted
constitutional pronouncements is a matter of not just fair play and social
justice, but also a constitutional guarantee to women of this country
towards fulfillment whereof, the State is duty bound to act. It is in this
direction that Parliament enacted the Maternity Benefit Act, 1961
(hereinafter referred to as “the Act”), thereby consolidating the maternity
protection which was earlier being provided under different State and
Central enactments, embodying considerable diversity relating to the
qualifying conditions, period and rate of benefits etc., to reduce which, a
separate central legislation was required.
8.1 Section 5 of the Act confers on every woman, to whom the Act
applies, a right for the payment of maternity benefit at the rate of average
daily wage for the period of her actual absence immediately preceding the
day of her delivery, the actual day of her delivery and any period
immediately following that day; the said provision not just confers a right
on a lady employee but also explicitly makes it a duty of the employer to
ensure grant of such benefit.
8.2 Sub Section (4) added to Section 5 of the Act in the year 2017
extended the maternity benefits also to a lady who legally adopts a child
below the age of three months and to a surrogacy commissioning mother
as well.
8.3 The Act, laudably does not create any distinction between the
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regular and casual/contractual lady employees or in any other manner
whatsoever.
9. Apart from the Act, various international covenants binding on the
Government of India, for example, the Convention on the Elimination of
all Forms of Discrimination against Women, adopted by community of
nations on 18.12.1979 also lend support to such concepts. Article 11 of the
said convention reads as under:
“Article 11(1) States Parties shall take all appropriate measures to
eliminate discrimination against women in the field of employment in
order to ensure, on a basis of equality of men and women, the same
rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the
application of the same criteria for selection in matters of
employment;
(c) The right to free choice of profession and employment, the right to
promotion, job security and all benefits and conditions of service and
the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retire-ment,
unemployment, sickness, invalidity and old age and other incapacity
to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working
conditions, including the safeguarding of the function of reproduction.
11(2). In order to prevent discrimination against women on the
grounds of marriage or maternity and to ensure their effective right to
work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the
grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social
benefits without loss of former employment, seniority or social
allowances;
(c) To encourage the provision of the necessary supporting social
services to enable parents to combine family obligations with work
responsibilities and participation in public life, in particular through
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promoting the establishment and development of a network of
child-care facilities;
(d) To provide special protection to women during pregnancy in types
of work proved to be harmful to them.
9.1 In this context, we may also refer to the United Nations Convention
on Rights of Child (UNCRC), which, through its Preamble explicitly
recognizing that the child, for the full and harmonious development of his
or her personality, should grow up in a family environment, in an
atmosphere of happiness, love and understanding, mandates through its
Article 6 that the States, which are party to the Convention, shall
recognize that every child has the inherent right to life and shall ensure, to
the maximum extent possible, the survival and development of the child.
Undoubtedly, India is a signatory to the UNCRC. There being no
municipal law in conflict with the provisions of Article 6 of the UNCRC,
we are obliged to act in a manner which ensures discharge of obligations
under the same.
9.2 We are of the considered view that the principles enshrined in the
above mentioned conventions and the overall scheme of the Act have to
be the guiding light while interpreting the scope of Rule 43 of the CCS
(Leave) Rules.
10. Rule 43 of the CCS(Leave) Rules, the solitary plank of petitioners’
opposition to the claim of respondent no.1 to maternity leave stipulates
thus:
“ 43. Maternity Leave
(1) A female Government servant (including an apprentice) with less
than two surviving children may be granted maternity leave by an
authority competent to grant leave for a period of (180 days) from the
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date of its commencement.
(MOF Notification No. P-11012/1/77-E-IV(A) dated 21.11.1979)
(“135 days substituted by 180 days” vide DOPT Notification No.
1101 2/1/2009-Estt.(L), dated 01.12.2009).
(2) During such period, she shall be paid leave salary equal to the pay
drawn immediately before proceeding on leave.
NOTE :- In the case of a person to whom Employees’ State Insurance
Act, 1948 (34 of 1948), applies, the amount of leave salary payable
under this rule shall be reduced by the amount of benefit payable
under the said Act for the corresponding period.
(3) Maternity leave not exceeding 45 days may also be granted to a
female Government servant (irrespective of the number of surviving
children) during the entire service of that female Government in case
of miscarriage including abortion on production of medical certificate
as laid down in Rule 19:
(DOPT Notification No. 13018/7/94-Estt (L), dated 31.03.1995)
Provided that the maternity leave granted and availed of before the
commencement of the CCS(Leave) Amendment Rules, 1995, shall not
be taken into account for the purpose of this sub-rule.
(4) (a) Maternity leave may be combined with leave of any other kind.
(b) Notwithstanding the requirement of production of medical
certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule
31, leave of the kind due and admissible (including commuted leave
for a period not exceeding 60 days and leave not due) up to a
maximum of two year may, if applied for, be granted in continuation
of maternity leave granted under sub-rule (1).
(5) Maternity leave shall not be debited against the leave account.
(MOF Notification No. 16(3).E.IV(A)/74 dated 20.12.1974)
(DOPT Notification no. 11012/1/85-Estt.(L) dated 06.06.1988)”
10.1 We also consider it apposite to take a brief look at few other
CCS(Leave) Rules as follows in order to get a wholesome view:
“ 43-A. Paternity leave
(1) A male Government servant (including an apprentice) with less
than two surviving children, may be granted Paternity Leave by an
authority competent to grant leave for a period of 15 days, during the
confinement of his wife for childbirth, i.e., up to 15 days before, or up
to six months from the date of delivery of the child.
(2) During such period of 15 days, he shall be paid leave salary equal
to the pay drawn immediately before proceeding on leave.
(3) The paternity Leave may be combined with leave of any other kind.
(4) The paternity leave shall not be debited against the leave account.
(5) If Paternity Leave is not availed of within the period specified in
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sub-rule (1), such leave shall be treated as lapsed.
NOTE:- the Paternity Leave shall not normally be refused under any
circumstances.
43-AA. Paternity Leave for Child Adoption
(1) A male Government servant (including an apprentice) with less
than two surviving children, on accepting a child in pre-adoption
foster care or on valid adoption of a child below the age of one year,
may be granted Paternity Leave for a period of 15 days, within a
period of six months, from the date of accepting the child in
pre-adoption foster care or on valid adoption, as the case may be:
Provided that in a case where the pre-adoption foster care is not
followed by valid adoption of the child, the Paternity Leave already
availed shall be debited from any other kind of leave available to the
credit of such male Government Servant.
(2) During such period of 15 days, he shall be paid leave salary equal
to the pay drawn immediately before proceeding on leave.
(3) The Paternity Leave may be combined with leave of any other
kind.
(4) The Paternity Leave shall not be debited against the leave account.
(5) If Paternity Leave is not availed of within the period specified in
sub-rule (1), such leave shall be treated as lapsed.
NOTE 1.— The Paternity Leave shall not normally be refused under
any circumstances.
NOTE 2.— "Child" for the purpose of this rule will include a child
taken as ward by the Government servant, under the Guardians and
Wards Act, 1890 or the personal law applicable to that Government
servant, provided such a ward lives with the Government servant and
is treated as a member of the family and provided such Government
servant has, through a special will, conferred upon that ward the
same status as that of a natural born child.
(DOPT Notification No. 13026/5/2011-Estt. (L), dated 04.04.2012)
43-B. Child Adoption Leave
(1) A female Government servant, with fewer than two surviving
children, on accepting a child in pre-adoption foster care or on valid
adoption of a child below the age of one year, may be granted child
adoption leave, by an authority competent to grant leave, for a period
of 180 days, immediately after accepting the child in pre-adoption
foster care or on valid adoption, as the case may be:
Provided that in a case where the pre-adoption foster care is not
followed by valid adoption of the child, the leave already availed shall
be debited from any other kind of leave available to the credit of such
female Government Servant.
(2) During the period of child adoption leave, she shall be paid leave
salary equal to the pay drawn immediately before proceeding on
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leave.
(3) (a) Child adoption leave may be combined with leave of any other
kind.
(b) In continuation of the child adoption leave granted under subrule
(1), a female Government servant on valid adoption of a child may
also be granted, if applied for, leave of the kind due and admissible
(including leave not due and commuted leave not exceeding 60 days
without production of medical certificate) for a period up to one year
reduced by the age of the adopted child on the date of valid adoption,
without taking into account child adoption leave.
Provided that this facility shall not be admissible in case she is
already having two surviving children at the time of adoption.
(4) Child adoption leave shall not be debited against the leave
account.
NOTE.— "Child" for the purpose of this rule will include a child taken
as ward by the Government servant, under the Guardians and Wards
Act, 1890 or the personal law applicable to that Government servant,
provided such a ward lives with the Government servant and is
treated as a member of the family and provided such Government
servant has, through a special will, conferred upon that ward the
same status as that of a natural born child.
(DOPT Notification No. 13026/5/2011-Estt. (L), dated04.04.2012)
43-C. Child Care Leave
(1) Subject to the provisions of this rule, a female Government servant
and single male Government servant may be granted child care leave
by an authority competent to grant leave for a maximum period of
seven hundred and thirty days during entire service for taking care of
two eldest surviving children, whether for rearing or for looking after
any of their needs, such as education, sickness and the like.
(DOPT Notification No. 11020/01/2017-Estt. (L), dated 11.12.2018)
(2) For the purposes of sub-rule (1), "child" means—
(a) a child below the age of eighteen years: or
(b) an offspring of any age with a minimum disability of forty per cent
as specified in the Government of India in Ministry of Social Justice
and Empowerment's Notification No. 16-18/97-N 1.1, dated the 1st
June, 2001.
(DOPT Notification No. 13018/6/2013- Estt. (L), dated 06.06.2018)
(3) Grant of child care leave to a female Government servant and a
single male Government servant under sub-rule (1) shall be subject to
the following conditions, namely:- (DOPT Notification No.
11020/01/2017-Estt. (L), dated 11.12.2018)
(i) it shall not be granted for more than three spells in a calendar
year;
(ii) in case of a single female Government servant, the grant of leave
in three spells in a calendar year shall be extended to six spells in a
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calendar year.
(iii) it shall not ordinarily be granted during the probation period
except in case of certain extreme situations where the leave
sanctioning authority is satisfied about the need of child care leave to
the probationer, provided that the period for which such leave is
sanctioned is minimal.
(iv) child care leave may not be granted for a period less than five
days at a time.
(4) During the period of child care leave, a female Government
servant and a single male Government servant shall be paid one
hundred per cent of the salary for the first three hundred and sixty-five
days, and at eighty per cent of the salary for the next three hundred
and sixty-five days.
EXPLANATION.— Single Male Government servant' means — an
unmarried or widower or divorcee Government servant.
(5) Child care leave may be combined with leave of any other kind.
(6) Notwithstanding the requirement of production of medical
certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule
31, leave of the kind due and admissible (including Commuted Leave
not exceeding sixty days and Leave Not Due) up to a maximum of one
year, if applied for, be granted in continuation with child care leave
granted under sub-rule (1).
(7) Child care leave shall not be debited against the leave account.”
10.2 It would be significant to notice the development of rule position,
whereby the scope of such leave has been gradually expanding across the
period from 1979 to 2018. What began with child birth oriented maternity
leave, expanded to paternity leave and then to adoption oriented leave and
finally to the child care leave, common thread across this expansion being
“the child”. Similar expansion of the scope is evident from child delivery
( substitution of sub-section(1) in 1989 ) to adoption and finally, surrogacy
( insertion of sub-section (4) in 2017 ) in Section 5 of the Act, which also
shows “the child” to be the common continuing thread across those
statutory developments.
11. The word “maternity” has not been defined in the CCS(Leave)
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Rules, so one has to refer to the dictionary meaning. According to Oxford
English Dictionary, the word “maternity” means motherhood. According
th
to the Shorter Oxford English Dictionary (5 Edition) “maternity” means
(1) the quality or condition of being a mother; motherhood and (2) the
qualities or conduct characteristic of a mother; motherliness. As per
th
Black’s Law Dictionary (8 Edition) the word “maternity” means the state
or condition of being a mother, especially a biological one; motherhood.
Broadly speaking, “maternity” in the present day scenario would mean the
period during pregnancy and shortly after acquisition of motherhood
through child birth or adoption or surrogacy.
12. The purpose of the maternity leave is to ensure that a working lady
may overcome the state of motherhood honourably, peaceably and
undeterred by the fear of being victimized for forced absence from work
during pre and post natal period. Women, even otherwise constituting
sizeable part of workforce in our society, must be treated with honour and
dignity at places where they work to earn livelihood. Whatever be the
nature of their job and the workplace, they must be provided all facilities
to which they are entitled. Motherhood, being the most natural phenomena
in the life of a woman and an indispensable requisite for continuation of
human race, whatever is needed to facilitate birth of her child while she is
in service, it is the bounden duty of the employer to be sensitive and
responsive to the physical difficulties which she would face in performing
her duties at the workplace while carrying a baby in her womb or while
bringing up the child after birth.
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13. It is a matter of common knowledge that pregnancy brings about
major physiological changes in the body as well as psychological changes
in mind of the women, ranging from morning sickness to enlargement of
abdomen, coupled with mood swings and bouts of depression. Pregnancy
also restricts movement of the lady carrying the child as it progresses
through the term. In case complications arise during the term, movement
of the pregnant lady may get completely stalled. It is for these reasons that
a pregnant lady is granted maternity leave in government as well as
non-government establishments. The difficulties get aggrandized when the
pregnant lady is in a nuclear family, where she has to take care of all basic
needs of her husband and children. But understanding of maternity cannot
be uni-dimensional, keeping in context only the pregnant lady. The child
from womb to infancy is an integral part of the concept of maternity,
insofar as immediately from the birth moment across the stages of infancy
the child undergoes extensive physical, physiological and psychological
development, which would have significant bearing on her adulthood.
14. Therefore, not just motherhood, it is also the childhood that requires
special attention. The health issues of both - 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. The maternity leave is intended
to achieve the object of ensuring social justice to women and children.
This kind of leave ensures creation of a bond of affection between the
mother and the child. A child sees the world for the first time through the
eyes of her mother and develops her cognitive skills through the vision of
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her family. In earlier centuries, predominantly, in agrarian society, the role
of woman was limited to taking care of children, household and family.
Social conditions of modern family underwent transformation due to
education, industrialization and urbanization. As a result, the social and
legal concept related to the society also got changed. Motherhood has
become a contentious issue in the modern society, particularly, in
economic frontier, as the competing market interests override notions of
culture and social justice like gender equity. Identity of a women is often
tangled within the patriarchal structure of a profit motivated enterprise
which dare to see mothering or family responsibility remain subordinate to
their interest. Complexity of working environment as above is designed by
an architecture without adhering to rules of gender equity; often
overwhelmingly to suit men.
15. Biologically speaking, in the words of Ernst Haeckel, ontogeny
th
recapitulates phylogeny. This historical hypothesis, coined in 19 century
suggests that the development of an organism from the stage of
fertilization of ovum to birth of the child (ontogeny) expresses
evolutionary history and all immediate forms of its ancestors (phylogeny).
Although, across past few years, the hypothesis has been slightly
modulated, for present purposes, suffice it to notice the biological
significance of embryonic development during pregnancy.
15.1 It is scientifically well established that the period of pregnancy and
shortly thereafter is a very crucial period for not just health of the mother,
but also for development of overall personality, the child would acquire
and develop even across her adulthood. During the gestation period,
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mother and the foetus share many things. The mother’s womb and
placenta are replete with all the nutrients and warmth needed for the
foetus. Just after birth, the infant needs the same warmth. It is the chest of
the mother that provides the same warmth, offering an optimum body
temperature and allowing the infant to consume energy, thereby
controlling the infant’s body temperature. The close touch between the
mother and the child produces a sense of security in the infant, which
gives them a surety that they are secure and in safe hands. The
skin-to-skin touch assists in balancing blood sugar levels in the infant,
thereby reducing the risk of hypoglycaemia.
15.2 The early infancy environment and changes have lasting effect on
the development of brain in the child. Researchers across the world have
observed that infants begin to bond with their mother from the moment of
birth, and this social bond continues to provide regulatory emotional
functions throughout adulthood. It is part of well documented research that
children from deprived surroundings like orphanages have vastly different
hormone levels as compared to their parent-raised peers. For instance, in
Romania during 1980s, in target group aged 6 to 12 years, levels of the
stress hormone Cortisol were found much higher in children who lived in
orphanages for more than eight months as compared to those who were
adopted at or before the age of four months.
15.3 Other researches show that children who experienced early
deprivation of maternal touch had different levels of Oxytocin and
Vasopressin ( hormones that have been linked to emotion and social
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bonding ), despite having spent an average of three years in a family home
and this environmental change into a home does not seem to have
completely overridden the effects of earlier neglect, according to medical
researches published in the year 2005 in the proceedings of the National
Academy of Sciences, University of Wisconsin. The Vasopressin and
Oxytocin neuropeptide systems, which are critical in the establishment of
social bonds and regulation of emotional behaviors are affected by early
social experience.
15.4 The results of various experiments suggest a potential mechanism
whose atypical function may explain the pervasive social and emotional
difficulties observed in many children who have experienced aberrant care
giving. The social attachments formed between human infant and her
caregiver begin very early in postnatal life and play a critical role in
child’s survival and healthy adaptation. Typically, adults provide infants
with a social environment that is fairly consistent. Caregivers learn how to
recognize and respond to the infants’ needs, thereby creating predictable
contingencies in the environment; these regularities, in turn, make the
infants’ environment secure and conducive to further social learning.
Multiple perceptual, sensory, cognitive, and effective systems must
become synchronized so that a social bond can develop between an infant
and caregiver; this bond is then reflected in the child’s adaptive behavioral
responses to the environment. { Reference: Paper published by the team
of Department of Psychology, University of Wisconsin, led by Alison B
Wismer Fries (www.pnas.org/cgi/doi/10.1073/pnas.0504767102) }.
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16. At this stage, it would be apposite to briefly traverse through some
of the judicial pronouncements on the significance of maternity leave.
16.1 In the case of Mini K.T. vs Senior Divisional Manager , LIC,
Divisional Office, Jeevan Prakash , (2017) SCC OnLine Ker 41588, the
Ernakulam Bench of the High Court of Kerala dealt with the issue of
motherhood as follows:
“Motherhood is the mother of all civilization. Family as a social
institution is considered as the backbone of the society. Family is the
first model of political society (Rosseau on the Social Contract). When
people settled down and started living as a commune, the family was
the foundation of such commune, and women was the center of such
family. No civilization passed without recognising the power of
mother and often figuratively projected her as Goddess. (See our own
glorious past, as described by Jasodhara Bagchi, a feminist writer in
her book, "Interrogating motherhood"):
"The celebration of motherhood has happened in most
cultures in the world, and Indian culture is no exception.
The oldest available cultural artifacts in the pre-Aryan
civilization in Mohenjo-daro and Harappa bear testimony
to the mother cult. The principle of fertility represented by
the embodiment of mother is the oldest testimony to the
sense of continuity of the species. Not just birthing but the
process of nurturance that makes it incumbent upon homo
sapiens to recognize the value of the mother."
16.2 In the case of Municipal Corporation of Delhi vs Female Workers ,
(2000) 3 SCC 224, after detailed examination of the principles governing
maternity leave, the Hon’ble Supreme Court held thus:
“ Learned counsel for the Corporation contended that since the
provisions of the Act have not been applied to the Corporation,
such a direction could not have been issued by the Tribunal. This is
a narrow way of looking at the problem which essentially is human
in nature and anyone acquainted with the working of the
Constitution, which aims at providing social and economic justice
to the citizens of this country, would outrightly reject the
contention. The relevance and significance of the doctrine of social
justice has, times out of number, been emphasised by this Court in
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several decisions. In Messrs Crown Aluminium Works v. Their
Workmen, [1958] SCR 651, this Court observed that the Constitution
of India seeks to create a democratic, welfare State and secure social
and economic justice to the citizens. In J.K. Cotton Spinning &
Weaving Mills Co. Ltd. v. Badri Mali & Ors., [1964] 3 SCR 724,
Gajendragadkar, J., (as His Lordship then was), speaking for the
Court, said : “Indeed the concept of social justice has now become
such an integral part of industrial law that it would be idle for any
party to suggest that industrial adjudication can or should ignore the
claims of social justice in dealing with industrial disputes. The
concept of social justice is not narrow, one-sided, or pedantic, and is
not confined to industrial adjudication alone. Its sweep is
comprehensive. - It is founded on the basis ideal of socio-economic
equality and its aim is to assist the removal of socio-economic
disparities and inequalities; nevertheless, in dealing with industrial
matters, it does not adopt a doctrinaire approach and refuses to yield
blindly to abstract notions, but adopts a realistic and pragmatic
approach.” A just social order can be achieved only when
inequalities are obliterated and everyone is provided what is legally
due. Women who constitute almost half of the segment of our society
have to be honoured and treated with dignity at places where they
work to earn their livelihood. Whatever be the nature of their duties,
their avocation and the place where they work; they must be
provided all the facilities to which they are entitled. To become a
mother is the most natural phenomena in the life of a woman.
Whatever is needed to facilitate the birth of child to a woman who is
in service, the employer has to be considerate and sympathetic
towards her and must realise the physical difficulties which a
working woman would face in performing her duties at the work
place while carrying a baby in the womb or while rearing up the
child after birth. The Maternity Benefit Act, 1961 aims to provide all
these facilities to a working woman in a dignified manner so that she
may overcome the state of motherhood honourably, peaceably,
undeterred by the fear of being victimised for forced absence during
the pre or post-natal period. Next it was contended that the benefits
contemplated by the Maternity Benefit Act, 1961 can be extended
only to workwomen in an ’industry’ and not to the muster roll
women employees of the Municipal Corporation. This is too stale
an argument to be heard. Learned counsel also forgets that
Municipal Corporation was treated to be an ’industry’ and,
therefore, a reference was made to the Industrial Tribunal, which
answered the reference against the Corporation, and it is this matter
which is being agitated before us.”
(emphasis supplied)
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16.3 In the case of Sushma Devi vs State of Himachal Pradesh , 2021
SCC OnLine HP 416, a Division Bench of the Himachal Pradesh High
Court dealt with the question as to whether a lady government servant
employed on contract basis is entitled to avail maternity leave even in a
case where she gets the child through surrogacy. The only objection of the
government in that case was that maternity leave is admissible on adoption
of a child vide Rule 43(1) of CCS (Leave) Rules 1972, but there is no
clarity as regards admissibility of maternity leave to a lady government
servant on surrogacy. After traversing through various judicial precedents,
the High Court directed the government authorities to sanction/grant
maternity leave.
16.4 In the case of Dr. Mrs. Hema Vijay Menon vs State of
Maharashtra , AIR 2015 Bom 231, a Division Bench of the Bombay High
Court observed thus:
“7. On hearing the learned counsel for the parties, it appears that the
Joint Director of Higher Education, Nagpur, was not justified in
refusing maternity leave to the petitioner. According to Oxford
English Dictionary, maternity means - motherhood. Maternity means
the period during pregnancy and shortly after the child's birth. If
Maternity means motherhood, it would not be proper to distinguish
between a natural and biological mother and a mother who has
begotten a child through surrogacy or has adopted a child from the
date of his/her birth. The object of maternity leave is to protect the
dignity of motherhood by providing for full and healthy
maintenance of the woman and her child. Maternity leave is
intended to achieve the object of ensuring social justice to women.
Motherhood and childhood both require special attention. Not only
are the health issues of the mother and the child considered while
providing for maternity leave but the leave is provided for creating a
bond of affection between the two. It is said that being a mother is one
of the most rewarding jobs on the earth and also one of the most
challenging. To distinguish between a mother who begets a child
through surrogacy and a natural mother who gives birth to a child,
would result in insulting womanhood and the intention of a woman
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to bring up a child begotten through surrogacy, as her own. A
commissioning mother like the petitioner would have the same rights
and obligations towards the child as the natural mother. Motherhood
never ends on the birth of the child and a commissioning mother like
the petitioner cannot be refused paid maternity leave. A woman
cannot be discriminated, as far as maternity benefits are concerned,
only on the ground that she has obtained the baby through surrogacy.
Though the petitioner did not give birth to the child, the child was
placed in the secured hands of the petitioner as soon as it was born. A
newly born child cannot be left at the mercy of others. A maternity
leave to the commissioning mother like the petitioner would be
necessary. A newly born child needs rearing and that is the most
crucial period during which the child requires the care and attention
of his mother. There is a tremendous amount of learning that takes
place in the first year of the baby's life, the baby learns a lot too.
Also, the bond of affection has to be developed. A mother, as already
stated hereinabove, would include a commissioning mother or a
mother securing a child through surrogacy. Any other interpretation
would result in frustrating the object of providing maternity leave to a
mother, who has begotten the child.”
(emphasis supplied)
16.5 Another progressive judicial precedent we came across is in the
case of Rama Pandey vs Union of India & Ors , 2015 SCC OnLine
10484, where this court approved grant of maternity leave in cases where
surrogacy route is adopted for motherhood and observed:
“11.3 Rule 43 implicitly recognises that there are two principal
reasons why maternity leave is accorded. First, that with pregnancy,
biological changes occur. Second, post childbirth "multiple burdens"
follow. (See : C-366/99 Griesmar, [2001] ECR 1-9383)
11.4 Therefore, if one were to recognise even the latter reason the
commissioning mother, to my mind, ought to be entitled to maternity
leave.
11.5 It is clearly foreseeable that a commissioning mother needs to
bond with the child and at times take over the role of a breast-feeding
mother, immediately after the delivery of the child.
11.6 In sum, the commissioning mother would become the principal
care giver upon the birth of child; notwithstanding the fact that child
in a given situation is bottle-fed.
11.7 It follows thus, to my mind, that the commissioning mother's
entitlement to maternity leave cannot be denied only on the ground
that she did not bear the child. This is de hors the fact that a
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commissioning mother may require to be at the bed side of the
surrogate mother, in a given situation, even at the pre-natal stage; an
aspect I have elaborated upon in the latter part of my judgment.
11.8 The circumstances obtaining in the present case, however,
indicate that the genetic father made use of a donor egg, which then,
was implanted in the surrogate mother.
11.9 The surrogate mother in this case had no genetic connection
with the children she gave birth to. The surrogate mother however,
carried the pregnancy to term.
12. Undoubtedly, the fact that the surrogate mother carried the
pregnancy to full term, involved physiological changes to her body,
which were not experienced by the commissioning mother but, from
this, could one possibly conclude that her emotional involvement was
any less if, not more, than the surrogate mother?
12.1 Therefore, while the submission advanced by Mr Rajappa that
maternity leave is given to a female employee who is pregnant, to
deal with biological changes, which come about with pregnancy, and
to ensure the health and safety, both of the mother and the child,
while it is in her womb, is correct; it is, I am afraid, an
uni-dimensional argument, offered to explain the meaning of the term
"maternity", as found incorporated in the extant rules.”
16.6 In the case of Lakshmi Kant Pandey vs Union of India , (1984) 2
SCC 244, the Hon’ble Supreme Court expanded the scope of the
fundamental right to life, holding thus:
“6. It is obvious that in a civilized society the importance of child
welfare cannot be over-emphasized, because the welfare of the entire
community, its growth and development, depend on the health and
well-being of its children. Children are a “supremely important
national asset” and the future well-being of the nation depends on
how its children grow and develop. The great poet Milton put it
admirably when he said: “Child shows the man as morning shows the
day” and the Study Team on Social Welfare said much to the same
effect when it observed that “the physical and mental health of the
nation is determined largely by the manner in which it is shaped in
the early stages” . The child is a soul with a being, a nature and
capacities of its own, who must be helped to find them, to grow into
their maturity, into fullness of physical and vital energy and the
utmost breath, depth and height of its emotional, intellectual and
spiritual being; otherwise there cannot be a healthy growth of the
nation. Now obviously children need special protection because of
their tender age and physique, mental immaturity and incapacity to
look after themselves. That is why there is a growing realisation in
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every part of the globe that children must be brought up in an
atmosphere of love and affection and under the tender care and
attention of parents so that they may be able to attain full emotional,
intellectual and spiritual stability and maturity and acquire
self-confidence and self-respect and a balanced view of life with full
appreciation and realisation of the role which they have to play in
the nation building process without which the nation cannot develop
and attain real prosperity because a large segment of the society
would then be left out of the developmental process. In India this
consciousness is reflected in the provisions enacted in the
Constitution. clause (3) of Article 15 enables the State to make special
provisions inter alia for children and Article 24 provides that no child
below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.
Clauses (e) and (f) of Article 39 provide that the State shall direct its
policy towards securing inter alia that the tender age of children is
not abused, that citizens are not forced by economic necessity to enter
avocations unsuited to their age and strength and that children are
given facility to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
These constitutional provisions reflect the great anxiety of the
constitution makers to protect and safeguard the interest and welfare
of children in the country. The Government of India has also in
pursuance of these constitutional provisions evolved a National Policy
for the Welfare of Children. This Policy starts with a goal-oriented
preambulatory introduction:
“The nation's children are a supremely important asset.
Their nurture and solicitude are our responsibility.
Children's programme should find a prominent part in our
national plans for the development of human resources, so
that our children grow up to become robust citizens,
physically fit, mentally alert and morally healthy, endowed
with the skills and motivations needed by society. Equal
opportunities for development to all children during the
period of growth should be our aim, for this would serve
our larger purpose of reducing inequality and ensuring
social justice.”
The National Policy sets out the measures which the Government of
India proposes to adopt towards attainment of the objectives set out in
the preambulatory introduction and they include measures designed to
protect children against neglect, cruelty and exploitation and to
strengthen family ties “so that full potentialities of growth of children
are realised within the normal family neighbourhood and community
environment”. The National Policy also lays down priority in
programme formation and it gives fairly high priority to maintenance,
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education and training of orphan and destitute children. There is also
provision made in the National Policy for constitution of a National
Children's Board and pursuant to this provision, the Government of
India has constituted the National Children's Board with the Prime
Minister as the chair-person. It is the function of the National
Children's Board to provide a focus for planning and review and
proper co-ordination of the multiplicity of services striving to meet the
needs of children and to ensure at different levels continuous
planning, review and co-ordination of all the essential services. The
National Policy also stresses the vital role which the voluntary
organisations have to play in the field of education, health, recreation
and social welfare services for children and declares that it shall be
the endeavour of State to encourage and strengthen such voluntary
organisations.” (emphasis supplied)
16.7 As so aptly observed by the Allahabad High Court in the case of
Anshu Rani vs State of UP & Ors , 2019 SCC OnLine 5170:
“23. Coming back to the question of dignity, those dignity has to be
understood in the societal background. Indian cultural and
traditional practices would go to show that motherhood is an
essential part of family responsibility. International Human Rights
Law thus protect dignity of woman and also family. The Constitution
thus demand interpretation of its provisions in that background.
Person-hood of a woman as mother is her acclaim of individuality
essentially valued as liberty of her life. This was so designed by
culture, tradition and civilisation. Mother's role in taking care of the
child has been considered as an honour; she enjoyed such status
because of her position in respect of the child. If on any reason she
could not attend her workplace due to her duties towards child
(compelling circumstances), the employer has to protect her
person-hood as "mother". If not that, it will be an affront to her
status and dignity. No action is possible against a woman employee
for her absence from duty on account of compelling circumstances
for taking care of her child. No service Regulations can stand in the
way of a woman for claiming protection of her fundamental right of
dignity as a mother. Any action by an employer can be only regarded
as a challenge against the dignity of a woman. Motherhood is not an
excuse in employment but motherhood is a right which demands
protection in given circumstances. What employer has to consider is
whether her duty attached to mother prevented her from attending
employment or not. As already adverted above, motherhood is an
inherent dignity of woman, which cannot be compromised.”
(emphasis supplied)
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16.8 In the case of Chanda Keswani vs State of Rajasthan, through the
Principal Secretary, Higher Education, Government of Rajasthan &
Anr. , 2023 SCC OnLine Raj 3274, the High Court of Rajasthan
recapitulated various judicial precedents and observed:
“26. Right to life under Article 21 of the Constitution of India
includes the right to motherhood and also the right of every child to
full development. If the Government can provide maternity leave to
an adoptive mother, it would be wholly improper to refuse to provide
maternity leave to a mother who begets a child through the surrogacy
procedure and as such, there cannot be any distinction between an
adoptive mother who adopts a child and a mother who begets a child
through surrogacy procedure after implanting an embryo created by
using either the eggs or sperm of the intended parents in the womb of
the surrogate mother.
...
28. In view of the aforesaid legal analysis, it is ipso facto clear that
no distinction can be made by the State Government to a natural
mother, a biological mother and a mother who has begotten a child
through surrogacy method. Because the right to life contained
under Article 21 of the Constitution of India includes the right of
motherhood and the right of the child to get love, bond of affection
and full care and attention. Therefore, the action of the
State-respondent is quite unjustified in denying maternity leave to the
surrogate mother (the petitioner) for taking care of her twins born
through surrogacy method. Making a difference between natural
biological mother and surrogate/commissioning mother would
amount to insult of motherhood. A mother cannot be discriminated,
as far as maternity leave is concerned, only because she begot the
child through the process of surrogacy. Newly born babies through
this process cannot be left at the mercy of others, as these infants
need love, care, protection and attention of mother during the early
crucial time after their birth i.e. infancy, as the bond of love and
affection develops between the mother and children during this
period after birth.”
(emphasis supplied)
16.9 As observed by the Hon’ble Supreme Court in order dated
22.04.2024 in the case titled Shalini Dharmani vs The State of Himachal
Pradesh , SLP (c) No. 16864/2021:
“7. The participation of women in the work force is not a matter of
privilege, but a constitutional entitlement protected by Articles 14, 15
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and 21 of the Constitution; besides Article 19(1)(g). The State as a
model employer cannot be oblivious to the special concerns which
arise in the case of women who are part of the work force. The
provision of Child Care Leave to women subserves the significant
constitutional object of ensuring that women are not deprived of their
due participation as members of the work force. Otherwise, in the
absence of a provision for the grant of Child Care Leave, a mother
may well be constrained to leave the work force. This consideration
applies a fortiori in the case of a mother who has a child with special
needs. Such a case is exemplified in the case of the petitioner herself.
We are conscious of the fact that the petition does trench on certain
aspects of policy. Equally, the policies of the State have to be
consistent and must be synchronise with constitutional protections
and safeguards.”
(emphasis supplied)
16.10 In the case of Deepika Singh vs Central Administrative Tribunal
& Ors, 2022 SCC OnLine SC 1088, the Hon’ble Supreme Court dealt with
the legal position pertaining to Rule 43 of the CCS (Leave) Rules in the
circumstances quite similar to the present case as follows. The appellant
therein was working on the post of Nursing Officer in the Post Graduate
Institute of Medical Education and Research at Chandigarh since
25.11.2005. On 18.02.2014, the appellant got married with one Amir
Singh, a widower who had two children from his previous marriage. At
request of the appellant, names of those two children from previous
marriage of her husband were taken on her service record. As regards her
first biological child born on 04.06.2019, the appellant applied for
maternity leave, but the same was denied on the ground that she had two
surviving children and had earlier availed Child Care Leave for those two
children. As such, the period of her absence from work was treated as
earned leave, medical leave, half pay leave and extraordinary leave, period
of the extraordinary leave not counted towards increments. The learned
Central Administrative Tribunal, Chandigarh Bench, dismissed the
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Original Application of the appellant and the said order was upheld by the
High Court in the writ petition. The Hon’ble Supreme Court after
examining the rule position allowed the appeal, observing thus:
“15. The provisions of Rule 43(1) must be imbued with a purposive
construction. In KH Nazar v. Mathew K Jacob, this Court noted that
beneficial legislation must be given a liberal approach:
“11. Provisions of a beneficial legislation have to be
construed with a purpose oriented approach. The Act
should receive a liberal construction to promote its
objects. Also, literal construction of the provisions of a
beneficial legislation has to be avoided. It is the court's
duty to discern the intention of the legislature in making
the law. Once such an intention is ascertained, the statute
should receive a purposeful or functional interpretation”
12. In the words of O. Chinnappa Reddy, J., the principles
of statutory construction of beneficial legislation are as
follows : (Workmen case, SCC p. 76, para 4)
“4. The principles of statutory construction are well
settled. Words occurring in statutes of liberal import
such as „social welfare legislation and human rights‟
legislation are not to be put in Procrustean beds or
shrunk to Lilliputian dimensions. In construing these
legislations the imposture of literal construction must
be avoided and the prodigality of its misapplication
must be recognised and reduced. Judges ought to be
more concerned with the “colour”, the “content” and
the “context” of such statutes (we have borrowed the
words from Lord Wilberforce's opinion in Prenn v.
Simmonds [Prenn v. Simmonds, [1971] 1 WLR 1381 :
(1971) 3 All ER 237 (HL)]). In the same opinion Lord
Wilberforce pointed out that law is not to be left
behind in some island of literal interpretation but is to
enquire beyond the language, unisolated from the
matrix of facts in which they are set; the law is not to
be interpreted purely on internal linguistic
considerations. In one of the cases cited before us, that
is, Surendra Kumar Verma v. Central Govt. Industrial
Tribunal-cum-Labour Court, we had occasion to say :
(Surendra Kumar Verma case, SCC p. 447, para 6)
„6. … Semantic luxuries are misplaced in the
interpretation of “bread and butter” statutes. Welfare
statutes must, of necessity, receive a broad
interpretation. Where legislation is designed to give
relief against certain kinds of mischief, the court is not
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to make inroads by making etymological excursions.‟”
13. While interpreting a statute, the problem or mischief
that the statute was designed to remedy should first be
identified and then a construction that suppresses the
problem and advances the remedy should be adopted.
16. In Badshah v. Urmila Badshah Godse, a two-judge Bench of this
Court comprising AK Sikri and Ranjana Desai, JJ. ruled that courts
must bridge the gap between law and society through the use of
purposive interpretation, where applicable:
“13.3. Thirdly, in such cases, purposive interpretation
needs to be given to the provisions of Section 125 CrPC.
While dealing with the application of a destitute wife or
hapless children or parents under this provision, the
Court is dealing with the marginalised sections of the
society. The purpose is to achieve “social justice” which
is the constitutional vision, enshrined in the Preamble of
the Constitution of India. The Preamble to the
Constitution of India clearly signals that we have chosen
the democratic path under the rule of law to achieve the
goal of securing for all its citizens, justice, liberty,
equality and fraternity. It specifically highlights achieving
their social justice. Therefore, it becomes the bounden
duty of the courts to advance the cause of the social
justice. While giving interpretation to a particular
provision, the court is supposed to bridge the gap
between the law and society.
14. Of late, in this very direction, it is emphasised that the
courts have to adopt different approaches in “social
justice adjudication”, which is also known as “social
context adjudication” as mere “adversarial approach”
may not be very appropriate. There are number of social
justice legislations giving special protection and benefits
to vulnerable groups in the society. Prof. Madhava
Menon describes it eloquently: “It is, therefore,
respectfully submitted that „social context judging‟ is
essentially the application of equality jurisprudence as
evolved by Parliament and the Supreme Court in myriad
situations presented before courts where unequal parties
are pitted in adversarial proceedings and where courts
are called upon to dispense equal justice. Apart from the
social economic inequalities accentuating the disabilities
of the poor in an unequal fight, the adversarial process
itself operates to the disadvantage of the weaker party. In
such a situation, the Judge has to be not only sensitive to
the inequalities of parties involved but also positively
inclined to the weaker party if the imbalance were not to
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result in miscarriage of justice. This result is achieved by
what we call social context judging or social justice
adjudication.” [Keynote address on “Legal Education in
Social Context” delivered at National Law University,
Jodhpur on October 12, 2005, available on
http://web.archive.org/web/20061210031743/http:/www.n
lujodhp ur.ac.in/ceireports.htm [last visited on
25-12-2013]]
…
20. The Act of 1961 was enacted to secure women's right to
pregnancy and maternity leave and to afford women with as much
flexibility as possible to live an autonomous life, both as a mother
and as a worker, if they so desire. In Municipal Corporation of Delhi
v. Female Workers (Muster Roll), a two-judge Bench of this Court
placed reliance on the obligations under Articles 14, 15, 39, 42 and
43 of the Constitution, and India's international obligations under the
Universal Declaration of Human Rights and Article 11 of the
Convention on the Elimination of All Forms of Discrimination
Against Women to extend benefits under the Act of 1961 to workers
engaged on a casual basis or on muster roll on daily wages by the
Municipal Corporation of Delhi. The Central Civil Services (Leave)
Rules 1972, it is well to bear in mind, are also formulated to entrench
and enhance the objects of Article 15 of the Constitution and other
relevant constitutional rights and protections.
21. Under Article 15(3) of the Constitution, the State is empowered to
enact beneficial provisions for advancing the interests of women. The
right to reproduction and child rearing has been recognized as an
important facet of a person's right to privacy, dignity and bodily
integrity under Article 21.11 Article 42 enjoins the State to make
provisions for securing just and humane conditions of work and for
maternity relief.
...
...
24. The facts of the present case indicate that the spouse of the
appellant had a prior marriage which had ended as a result of the
death of his wife after which the appellant married him. The fact that
the appellant's spouse had two biological children from his first
marriage would not impinge upon the entitlement of the appellant to
avail maternity leave for her sole biological child. The fact that she
was granted child care leave in respect of the two biological children
born to her spouse from an earlier marriage may be a matter on
which a compassionate view was taken by the authorities at the
relevant time. Gendered roles assigned to women and societal
expectations mean that women are always pressed upon to take a
disproportionate burden of childcare work. According to a „time-use‟
survey conducted by the Organisation for Economic Co-operation
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and Development (OECD), women in India currently spend upto 352
minutes per day on unpaid work, 577% more than the time spent by
men. Time spent in unpaid work includes childcare. In this context,
the support of care work through benefits such as maternity leave,
paternity leave, or child care leave (availed by both parents) by the
state and other employers is essential. Although certain provisions of
the Rules of 1972 have enabled women to enter the paid workforce,
women continue to bear the primary responsibility for childcare. The
grant of child care leave to the appellant cannot be used to disentitle
her to maternity leave under Rule 43 of the Rules of 1972.
25. Unless a purposive interpretation were to be adopted in the
present case, the object and intent of the grant of maternity leave
would simply be defeated. The grant of maternity leave under Rules
of 1972 is intended to facilitate the continuance of women in the
workplace. It is a harsh reality that but for such provisions, many
women would be compelled by social circumstances to give up work
on the birth of a child, if they are not granted leave and other
facilitative measures. No employer can perceive child birth as
detracting from the purpose of employment. Child birth has to be
construed in the context of employment as a natural incident of life
and hence, the provisions for maternity leave must be construed in
that perspective.”
(emphasis supplied)
17. The law on maternity leave has been progressively evolving as a
part of not just right of the mother and child but also as a solemn duty of
the State in not just India but across the world. We may also refer to a
judgment of the Labour Court of South Africa in Durban, titled: MIA vs
State Information Technology Agency (Pty) Ltd. , (D312/2012) [2015]
ZALCD 20 (dated 26.03.2015), which dealt with denial of maternity leave
to a male employee on the ground that he was not a biological mother. It
was held that the right to maternity leave as created in the Basic
Conditions of Employment Act is an entitlement not linked solely to
welfare and health of the child’s mother but must of necessity be
interpreted to and take into account the best interest of the child. Not to do
so would be to ignore the Bill of Rights in the Constitution of the Republic
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of South Africa and the Children’s Act. In all matters concerning the care,
protection and well being of a child the standard that the child’s best
interest is of paramount importance must be applied. In the said case, as
stipulated under the Surrogacy Agreement, the newly born child was
immediately handed over to the commissioning parents and in the
evidence, the applicant explained that for various reasons, he and his
spouse had decided that he, the applicant would perform the role usually
performed by the birth mother by taking immediate responsibility for the
child and accordingly would apply for maternity leave. Given these
circumstances, the court took a view that there is no reason why an
employee in the position of the applicant should be held not entitled to
maternity leave as granted to a biological mother. Of course, so long as
same sex marriages are not recognized, the factual matrix of the said case
would appear distinctive. But the significance of the said order is to
underline the principle that the basic purpose of maternity leave is the
welfare of the child, which has to be paramount, apart from health of the
mother.
18. Falling back to the present case, it is nobody’s case that respondent
no.1 was not pregnant with third child at the time of seeking maternity
leave. In other words, it is nobody’s case that she is completely ineligible
to be granted maternity leave. At the same time, it is also the pleaded case
of petitioners only that in terms with their mutual consent divorce, custody
of the two surviving children of respondent no.1 was handed over to her
first husband Satya Pal, consequently now she has no child to bring up.
Further, according to petitioners’ own case, earlier two children were born
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to respondent no.1 prior to her joining service with the petitioners, so it is
also nobody’s case that she has already availed of maternity leave earlier
twice. The core of the argument advanced on behalf of the State is that if a
lady government servant has two surviving children, by virtue of Rule 43
of CCS(Leave) Rules, she cannot be granted maternity leave for the third
and subsequent children. That calls upon us to test the applicability of
parity or probe for intelligible differentia, if any between the two sets of
pregnant lady government servants.
19. It would be crucial to remember that physiological and physical
changes coupled with psychological turbulence that a pregnant woman
undergoes remain the same, be it the first two occasions of pregnancy or
third one or any further thereafter. Besides, on examining the issue from
angle of child rights, we find that Rule 43 CCS(Leave) Rules creates an
unreasonable distinction between rights of first two children born to a lady
government servant and the third or the subsequent child, making the third
and the subsequent child suffer deprivation of motherly care, which first
two children had received. We are of prima facie view that classification
of lady government servants on the basis of number of surviving children
they have lacks intelligible differentia. However, we must add a rider that
our this view is only prima facie view, because vires of Rule 43 were not
challenged before us, and only in order to arrive at just and fair decision,
we have examined the logic, if any behind Rule 43 of CCS(Leave) Rules.
20. Rule 43 of CCS(Leave) Rules remains completely silent qua certain
absurd situations which may arise out of its implementation. If a lady
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government servant in her first pregnancy itself is blessed with triplets or
quadruplets, would Rule 43 deny her maternity leave? If a lady
government servant, having one surviving child is blessed with twins or
triplets in the second pregnancy, would Rule 43 deny her maternity leave?
One also wonders as to whether a lady government servant, opting to be a
surrogate mother for noble reasons to help a childless close relative can be
denied maternity leave under Rule 43 on the pretext that she already has
two surviving children, ignoring that the surrogate child in her womb is of
someone else. In such a situation, would it not be depriving her a right to
health by expecting her to keep working. These unanswered questions are
another pointer that makes us opine prima facie that Rule 43 CCS(Leave)
Rules would fail the test of Article 14 of the Constitution of India. We
have to be rationalist and situationist judges while dealing with such
situations. The duty of the courts is to ascertain and give effect to the will
of the Parliament, as expressed in legislations and in performance of that
duty, the judges do not act as computers into which are fed the statutes and
the rules for construction of statutes in order to cull out mathematically
correct answers.
21. We have also deliberated upon the argument that Rule 43 of CCS
(Leave) Rules was enacted in tune with the two child policy of the
Government of India, aimed at population control, so must pass muster of
Article 14 of the Constitution. Of course, the two child policy aimed at
population control is a laudable policy. That being so, we certainly do not
advocate to incentivise more than two children. But the steps to
disincentivise more than three children must be addressed to the parents
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and not to the children. What is the fault of the third and subsequent child?
They did not have any control over their birth. That being so, it would be
atrocious to expect the third and the subsequent child to be deprived of
motherly touch immediately post natal and during infancy because Rule
43 expects the mother of that child to report for official duties the very
next day of delivery. That third and subsequent child being completely
helpless, therefore, it is the duty of the court to step in.
22. In order to achieve success in population control, the government
may take any appropriate innovative steps in order to dissuade the citizens
from giving birth to more than two children. But once third child comes
into existence even in womb, her rights cannot be trampled over.
23. Further, no statistical data has been placed before us to show as to
out of total women population, how many are in government service and
how many lady government servants give birth to more than two children,
which would have led the government frame Rule 43 of the CCS (Leave)
Rules. For population explosion, the government servants are not the only
class to be held responsible. Nothing has been placed before us to show
the steps taken by the government addressed to the citizens other than
government servants for population control. To reiterate, it is not the
question of incentivising the lady government servant with the third and
the subsequent maternity leave; it is the question of protecting rights of the
third and the subsequent child to mother’s touch immediately post natal
and during infancy period, which is most crucial for their overall
development – physical as well as psychological.
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24. Besides, if object of Rule 43 of the CCS (Leave) Rules is population
control, it remains unexplained as to why the maternity leave can be
granted in case of child born through surrogacy. A childless couple always
has an option to adopt, as in every society there are number of children
who do not have parents and the vice versa .
25. To conclude, we find no reason to interfere with the humane and
progressive view taken by the learned Tribunal, so the impugned order is
upheld and the petition as well as the accompanying applications are
dismissed, expecting that the government authorities would re-examine
the sustainability of Rule 43 of the CCS(Leave) Rules.
GIRISH KATHPALIA
(JUDGE)
SURESH KUMAR KAIT
(JUDGE)
JULY 22, 2024/ as/ry
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