SMT. SHIVANGI KHANDELWAL vs STATE OF RAJASTHAN

[2026:RJ-JD:49861]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 1561/2023
CNR: RJHC010064192023 | URN: CW / 3258U / 2023
Smt. Shivangi Khandelwal W/o Shri Gaurav Khandelwal, Aged
About 28 Years, Resident Of House No. 29, Abhaygarh, Air Fore
Road, Jodhpur (Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Environment And Climate Change,
Government Of Rajasthan, Jaipur.
2. Member Secretary, Seac-I, Rajasthan State Pollution
Control Board, Headquarter, 4, Institutional Area, Jhalana
Dungari, Jaipur.
----Respondents
For Petitioner(s) : Mr. Shamboo Singh Rathore
Ms. Ayushi Rathore
Ms. Shivani Rathore
For Respondent(s) : Mr. Praveen Kumar Choudhary for
Mr. Sajjan Singh Rathore, AAG
HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment / Order
Reportable
Date of hearing and conclusion of arguments 08.10.2026
Date on which the judgment was reserved 08.10.2026
Whether the full judgment or only the operative
part is pronounced
Full Judgment
Date of pronouncement 16.10.2026
1. The present writ petition has been filed challenging the letter
dated 16.12.2022 (Annexure 3), issued by respondent No. 2, the
Member Secretary, SEAC-I, Rajasthan State Pollution Control
Board, Headquarter, 4, Institutional Area, Jhalana Dungari, Jaipur,
whereby the petitioner's request for maternity leave was rejected
on the ground that, in terms of Condition No. 5 of the
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appointment order dated 25.07.2022, no leave other than the
declared holidays of the State Government was permissible.
2. The facts in a narrow compass are, that the petitioner was
engaged as a 'Consultant (AEE)' on a consolidated remuneration
of Rs. 40,000/- per month, pursuant to her selection by the State
Environment Appraisal Committee (SEAC)-I and II, Government of
Rajasthan. Her engagement was for a period of one year from the
date of joining, which, in the present case, was 04.08.2022,
subject to the terms and conditions stipulated in the appointment
order dated 25.07.2022 (Annexure 1).
2.1 During the course of her engagement, the petitioner
submitted an application dated 07.12.2022 (Annexure 2), seeking
maternity leave for a period of six months commencing from
26.12.2022, as advised by her doctor. However, vide letter dated
16.12.2022 (Annexure 3), respondent No. 2 rejected her request
on the ground that Condition No. 5 of the appointment order
dated 25.07.2022 permitted only the declared holidays of the
State Government and prohibited the grant of any additional
leave.
2.2 Aggrieved by the aforesaid rejection, the petitioner served a
legal notice dated 22.12.2022 (Annexure 5) upon the
respondents, seeking reconsideration of her request for maternity
leave. In support of her claim, the petitioner relied upon the letter
dated 12.04.2017 (Annexure 4), issued by the Government of
India, Ministry of Labour and Employment, as well as the
judgment rendered by this Court in Hemlata Saraswata v.
State of Rajasthan , S.B. Civil Writ Petition No. 4237/2006,
(Decided on 29.01.2008). The petitioner requested that her claim
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be considered and decided accordingly. However, neither was
maternity leave granted to her nor was any reply furnished to the
legal notice. Hence, the petitioner preferred the present writ
petition.
3. Learned counsel for the petitioner, at the outset, submitted
that the action of respondent No. 2 in denying maternity leave to
the petitioner with effect from 26.12.2022 is illegal, arbitrary and
contrary to law. Learned counsel contended that Rule 103 of the
Rajasthan Service Rules, 1951, provides for maternity leave to a
female government employee for a period of 180 days, subject to
the applicable conditions.
3.1 Learned counsel for the petitioner further submitted that the
Government of India, Ministry of Labour and Employment, vide its
letter dated 12.04.2017 (Annexure 4), clarified that women
employed in any capacity, whether directly or through an agency,
including on a contractual basis or as consultants, are entitled to
maternity leave. Learned counsel, therefore, contended that the
petitioner's contractual engagement could not, by itself, constitute
a valid ground for denying her maternity benefits.
3.2 Learned counsel also relied upon the judgment of this Court
in Hemlata Saraswata (supra) , wherein directions were issued
for extending maternity leave benefits to employees receiving a
consolidated salary. Learned counsel thus submitted that the
denial of the same benefit to the petitioner, despite the settled
legal position in the aforesaid judgment, was arbitrary and
unjustified.
3.3 Learned counsel also relied upon the judgment of the Hon’ble
Supreme Court in Municipal Corporation of Delhi v. Female
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Workers (Muster Rolls) ; 2000 (3) SCC 224 , wherein the benefit
of maternity leave was recognized even in respect of women
employed on a casual basis or on a muster-roll basis. Learned
counsel further submitted that the statutory scheme of maternity
protection could not be defeated merely by classifying the
engagement as contractual. Learned counsel contended that the
denial of maternity leave to the petitioner, while such benefits are
available to eligible women employees under the applicable law,
violates Articles 14, 16 and 21 of the Constitution of India.
3.4 Learned counsel for the petitioner thus prayed that the
present writ petition be allowed, the letter dated 16.12.2022
denying maternity leave to the petitioner with effect from
26.12.2022 be quashed and set aside, and respondent No. 2 be
directed to sanction the maternity leave to the petitioner as
applied for a period of 180 days with effect from 26.12.2022,
along with payment of her consolidated salary on a month-to-
month basis during the said period.
3.5 Learned counsel for the petitioner placed reliance upon the
following judgments to buttress his argument that even the
employee engaged on a contractual basis are entitled to maternity
leave:
(i) Dr. Kavita Yadav Vs. The Secretary, Ministry of
Health and Family Welfare Department & Ors. ; 2024
(1) SCC 421.
(ii) State of Rajasthan & Ors. Vs. Smt. Neeraj ; D.B.
Special Appeal Writ No. 376/2021 (Decided on
04.08.2021). {Rajasthan High Court}.
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(iii) Shimla Meena Vs. State of Rajasthan & Ors. ; S.B.
Civil Writ Petition No. 12011/2022 (Decided on
07.12.2022) {Rajasthan High Court}.
4. Per contra , learned counsel for respondent No. 2 submitted
that the petitioner had been appointed as a 'Consultant (AEE)' by
the Rajasthan State Pollution Control Board vide order dated
25.07.2022 and not by respondent No. 2 in its individual capacity.
It was contended that the petitioner's services, along with those of
other consultants, were made available to respondent No. 2 after
their appointment by the Rajasthan State Pollution Control Board.
4.1 Learned counsel further submitted that Condition No. 5 of
the appointment order dated 25.07.2022 (Annexure 1) expressly
stipulated that the consultants would be entitled only to the
declared holidays of the State Government and that no additional
leave would be admissible. The petitioner joined her duties on
04.08.2022 and subsequently sought maternity leave by
submitting an application on 06.12.2022 w.e.f from 26.12.2022.
4.2 Learned counsel for the respondent further contended that
the petitioner's appointment was contractual and for a period of
one year, extendable by a further period of one year subject to
satisfactory performance, with an express stipulation that the total
tenure could not exceed two years. Such extension was neither
automatic nor a matter of right. Since the petitioner's initial tenure
expired on 03.08.2023 and her services were not extended, she
had no enforceable right to claim continuation in service or
remuneration beyond the period of her engagement. Accordingly,
learned counsel for the respondent submitted that the present writ
petition is devoid of merit and deserves to be dismissed.
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5. Heard learned counsel for the parties and perused the
material available on record.
6. Before adverting to the facts of the present case, it would be
appropriate to observe that maternity benefit is not merely a
service-related concession or an ordinary leave facility available to
a woman employee. It is a statutory protection intended to
safeguard the health, dignity and well-being of a woman during
pregnancy and after childbirth, while also ensuring that the birth
of a child does not adversely affect her employment-related
entitlements.
6.1 The object of maternity benefit legislation is to enable a
woman to discharge her maternal responsibilities without being
compelled to choose between motherhood and her livelihood.
Such protection is rooted in the constitutional guarantees of
equality and dignity and is further reflected in the mandate of
Article 42 of the Constitution of India, which directs the State to
make provision for just and humane conditions of work and
maternity relief.
6.2 The principal question that arises for consideration is
whether the petitioner's request for maternity leave could lawfully
be rejected solely on the basis of Condition No. 5 of the
appointment order dated 25.07.2022 (Annexure 1), which
permitted only the declared holidays of the State Government and
prohibited additional leave, even though the period of maternity
leave sought by her fell within the period.
6.3 On a perusal of the record, it is undisputed that the
petitioner was appointed as a 'Consultant (AEE)' on a consolidated
remuneration of Rs. 40,000/- per month for a period of one year
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vide appointment order dated 25.07.2022 (Annexure 1). She
joined her duties on 04.08.2022, and her initial contractual tenure
was due to expire on 03.08.2023. It is also undisputed that she
applied for maternity leave for a period of six months
commencing from 26.12.2022, which would end on 25.06.2023.
Thus, the entire period for which maternity leave was sought fell
within her initial contractual tenure.
6.4 The petitioner's request was rejected solely on the basis of
Condition No. 5 of the appointment order dated 25.07.2022
(Annexure 1), which restricted the admissible leave to the
declared holidays of the State Government. The question,
therefore, is whether such a contractual condition can override an
entitlement to maternity benefits available under the applicable
statutory framework.
6.5 It is pertinent to note that the Maternity Benefit Act, 1961
(hereinafter referred to as the ‘Act of 1961’), was enacted to
regulate the employment of women in certain establishments for
specified periods before and after childbirth and to provide for
maternity benefits and other related entitlements. Section 5 of the
Act of 1961 provides for maternity benefits subject to the
prescribed eligibility conditions, while Section 12 of the Act of
1961 affords protection against dismissal or discharge in the
circumstances specified therein. Further, Section 27 of the Act of
1961 gives overriding effect to the Act over inconsistent provisions
contained in any other law, award, agreement or contract of
service, subject to the terms of the section. Moreover, Rule 103 of
the Rajasthan Service Rules, 1951, which provides for maternity
leave to women government servants, reads as follows:
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“ 103. Maternity Leave: Maternity leave may be
granted to a female Government servant with less than
two surviving children upto a period of 180 days from
the date of its commencement. However, if there is no
surviving child even after availing it twice, Maternity
Leave may be granted on one more occasion.
During such period, she will be entitled to leave
salary equal to pay drawn immediately before
proceeding on leave. Such leave shall not be debited to
the leave account but such entry should be made in the
service book separately."
6.6 Thus, it is apposite to observe that maternity leave is not
merely a general form of leave available to an employee; rather, it
is a statutory entitlement intended to enable a woman to recover
her physical strength and well-being following childbirth and to
ensure that the child receives the requisite love, care, and
affection during the crucial early stages of life. The grant of
maternity leave cannot be made contingent solely upon the nature
or tenure of employment. Whether a woman is employed on a
regular, temporary, ad hoc, urgent temporary, or contractual basis,
she cannot be denied maternity leave merely on the ground of the
nature of her employment, provided that the applicable legal
requirements are satisfied and the period of maternity leave falls
within the subsistence of her employment.
6.7 In Female Workers (Muster Roll) (supra) , the Hon'ble
Supreme Court considered the entitlement of women engaged on
a casual basis or on a muster-roll basis for maternity benefits. The
Court held that the benefits under the Maternity Benefit Act, 1961,
could not be restricted only to women holding regular
employment. The judgment emphasized the protective object of
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the legislation and the constitutional principles underlying
maternity relief. The Hon’ble Supreme Court observed as follows:
" 32. 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 several decisions. In Crown
Aluminium Works v. Workmen [MANU/SC/0082/1957 :
1957:INSC:86 : AIR 1958 SC 30 : 1958 SCR 651 :
(1958) 1 LL J 1] 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 Spg. & Wvg. Mills Co. Ltd. v. Labour Appellate
Tribunal of India [MANU/SC/0161/1963 : 1963:INSC:143
: AIR 1964 SC 737 : (1964) 3 SCR 724 : (1963) 2 LL J
436] 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, or one-sided, or
pedantic, and is not confined to industrial adjudication
alone. Its sweep is comprehensive. It is founded on
the basic 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
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approach and refuses to yield blindly to abstract
notions, but adopts a realistic and pragmatic
approach."
33. 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
phenomenon 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 workplace 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.”
6.8 The issue was subsequently considered by the Hon'ble
Supreme Court in the case of Dr. Kavita Yadav (supra), wherein
the Court held that the entitlement to maternity benefits is not
necessarily confined to the duration of the contractual
employment and that the employer could not defeat the accrued
entitlement merely by relying upon the expiry of the contract. The
relevant portion of the said judgment is reproduced as under:
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“ 6. The main question which falls for determination in
this appeal is as to whether the maternity benefits, as
contemplated in the 1961 Act, would apply to a lady
employee appointed on contract if the period for which
she claims such benefits overshoots the contractual
period.
7. Ms Rachita Garg, learned counsel appearing for the
respondent employer, sought to defend the reasoning
given in the judgment under appeal. Her main argument
is that once the term or tenure of the contract ends,
there cannot be a notional extension of the same by
giving the employee the benefits of the 1961 Act in full,
as contemplated in Section 5(2) thereof. It is her
submission that any benefits that the appellant would be
entitled to ought to be within the contractual period.
8. We have reproduced earlier in this judgment the
provisions of Section 12(2)(a) of the 1961 Act. The
aforesaid provision contemplates entitlement to the
benefits under the 1961 Act even for an employee who is
dismissed or discharged at any time during her
pregnancy if the woman, but for such discharge or
dismissal, would have been entitled to maternity benefits
or medical bonus. Thus, continuation of maternity
benefits is in-built in the statute itself, where the benefits
would survive and continue despite the cessation of
employment. In our opinion, what this legislation
envisages is entitlement to maternity benefits, which
accrues on fulfilment of the conditions specified in
Section 5(2) thereof, and such benefits can travel beyond
the term of employment also. It is not coterminous with
the employment tenure.
9. A two-Judge Bench of this Court in MCD v. Female
Workers (Muster Roll) [MCD v. Female Workers (Muster
Roll), (2000) 3 SCC 224: 2000 SCC (L&S) 331], while
dealing with a similar claim by female muster roll
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workers who were employed on daily wages, opined that
the provisions relating to maternity benefits in the 1961
Act would be applicable in their cases as well. That
dispute had reached this Court through the Industrial
Tribunal and the High Court. Before both these fora, the
Union espousing the cause of the female workers was
successful. In that case, point of discrimination was
highlighted as regular woman employees were extended
the benefits of the said Act but not those who were
employed on casual basis or on muster roll on daily-wage
basis. This Court observed, in para 27 of the said
judgment : [Female Workers (Muster Roll) case [MCD v.
Female Workers (Muster Roll), (2000) 3 SCC 224 : 2000
SCC (L&S) 331] , SCC pp. 234-35]
“27. The provisions of the Act which have been set
out above would indicate that they are wholly in
consonance with the Directive Principles of State
Policy, as set out in Article 39 and in other articles,
specially Article 42. A woman employee, at the
time of advanced pregnancy cannot be compelled
to undertake hard labour as it would be
detrimental to her health and also to the health of
the foetus. It is for this reason that it is provided in
the Act that she would be entitled to maternity
leave for certain periods prior to and after delivery.
We have scanned the different provisions of the
Act, but we do not find anything contained in the
Act which entitles only regular woman employees
to the benefit of maternity leave and not to those
who are engaged on casual basis or on muster roll
on daily-wage basis.”
10. Broadly, a similar view is reflected in a more recent
judgment of this Court in Deepika Singh v. P GIMER ,
GIMER
Chandigarh [Deepika Singh v. P , Chandigarh, (2023)
13 SCC 681 : 2022 SCC OnLine SC 1088 : (2022) 7 SCR
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557] . Though this decision dealt with the Central Civil
Services (Leave) Rules, 1972, in relation to maternity
leave and the 1961 Act was not directly applicable in that
case, this Court analysed certain provisions of this Act to
derive some guidance on a cognate legislation.
11. This Court observed in Deepika Singh [Deepika Singh
v. P GIMER , Chandigarh, (2023) 13 SCC 681 : 2022 SCC
OnLine SC 1088 : (2022) 7 SCR 557] : (SCC paras 19-20)
“19. Sub-section (1) of Section 5 confers an
entitlement on a woman to the payment of
maternity benefits at a stipulated rate for the
period of her actual absence beginning from the
period immediately preceding the day of her
delivery, the actual day of her delivery and any
period immediately following that day. Sub-section
(3) specifies the maximum period for which any
woman shall be entitled to maternity benefit.
These provisions have been made by Parliament to
ensure that the absence of a woman away from
the place of work occasioned by the delivery of a
child does not hinder her entitlement to receive
wages for that period or for that matter for the
period during which she should be granted leave in
order to look after her child after the birth takes
place.
20. The 1961 Act 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 MCD v. Female
Workers (Muster Roll) [MCD v. Female Workers
(Muster Roll), (2000) 3 SCC 224 : 2000 SCC (L&S)
331] , 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
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Declaration of Human Rights, 1948 (“UDHR”) and
Article 11 of the Convention on the Elimination of
All Forms of Discrimination Against Women
EDAW
(“C ”) to extend benefits under the 1961 Act 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.”
12. In the light of the ratio laid down in the aforesaid two
authorities and having regard to Section 27 of the 1961
Act, which gives overriding effect to the statute on any
award, agreement or contract of service, in our opinion,
the High Court erred in law in holding that the appellant
was not entitled to maternity benefits beyond 11-6-2017.
13. The respondents sought to distinguish the present
dispute from Female Workers (Muster Roll) [MCD v.
Female Workers (Muster Roll), (2000) 3 SCC 224 : 2000
SCC (L&S) 331] on the ground that the said case arose
from an award of the Industrial Tribunal and that there
was a finding by the Tribunal that the muster roll lady
workers were working for a long period of time. But the
fact remains that in law, daily-wage workers cannot be
said to have continuity of service for an unlimited period.
The effect of that judgment was that their tenure also
stood notionally extended so far as application of
maternity benefits under the 1961 Act was concerned.
14. Our independent analysis of the provisions of the
1961 Act does not lead to an interpretation that the
maternity benefits cannot survive or go beyond the
duration of employment of the applicant thereof. The
expression employed in the legislation is “maternity
benefits” [in Section 3(h)] and not “leave”. Section 5(2)
of the statute, which we have quoted above, stipulates
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the conditions on the fulfilment of which such benefits
would accrue. Section 5(3) lays down the maximum
period for which such benefits could be granted. The last
proviso to Section 5(3) makes the benefits applicable
even in a case where the applicant woman dies after
delivery of the child, for the entire period she would have
been otherwise entitled to. Further, there is an embargo
on the employer from dismissing or discharging a woman
who absents herself from work in accordance with the
provisions of the Act during her absence. This embargo
has been imposed under Section 12(2)(a) of the Act. The
expression “discharge” is of wide import, and it would
include “discharge on conclusion of the contractual
period”. Further, by virtue of operation of Section 27, the
Act overrides any agreement or contract of service found
inconsistent with the 1961 Act.
15. In our opinion, a combined reading of these
provisions in the factual context of this case would lead
to the conclusion that once the appellant fulfilled the
entitlement criteria specified in Section 5(2) of the Act,
she would be eligible for full maternity benefits even if
such benefits exceed the duration of her contract. Any
attempt to enforce the contract duration term within such
period by the employer would constitute “discharge” and
attract the embargo specified in Section 12(2)(a) of the
1961 Act. The law creates a fiction in such a case by
treating her to be in employment for the sole purpose of
availing maternity benefits under the 1961 Act.”
6.9 Further, a Co-ordinate Bench of this Court, in Minakshi
Chaudhary Vs. Rajasthan State Road Transport Corporation
and Ors. ; 2024 (4) RLW 2692 (Raj.) , while extensively dealing
with the jurisprudence of maternity leave benefit to women
employees held that maternity leave is not just a benefit but a
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right that supports the fundamental need of a woman to take care
of her family. The relevant portion of Minakshi Choudhary
(supra) is reproduced herein below:
28. Taking note of the above cases, it is indisputably clear
that maternity benefits are not merely derived from
statutory rights or contractual agreements between
employer and employee but they are fundamental and
integral aspect of a woman's identity and dignity, when
she chooses to start a family and bear a child. The
freedom to bear a child is a fundamental right guaranteed
by the Constitution under Article 21 and the choice not to
bear a child is an extension of this right. Any attempt to
obstruct a woman from exercising this right, violates the
fundamental rights, enshrined in the Constitution and
contradicts the principles of social justice.
29. The benefit of enhanced Maternity Leave to women
employees is undoubtedly a piece of welfare legislation
which is intended to give women equal opportunity in
public employment. Therefore, granting only 90 days of
Maternity Leave to the female employees working at
RSRTC would amount to discrimination against the
women employees of other departments only for the
reason that they are working at RSRTC. The inalienable
right of maternity should not and cannot be a reason to
deny equal opportunity to women employees of RSRTC.
This precisely would be the result of limiting Maternity
Leave to women employees, irrespective of nature of their
employment.
30. Women contribute to half of the segment of our
society and they have to be honoured and treated with
dignity at all places, including where they earn their
livelihood. Whatever be the nature of the duties, in the
place where they work, they must be provided with all
facilities to which they are entitled for. The Act of 1961
aims to provide all these facilities to a working woman in
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a dignified manner so that she may navigate the state of
motherhood honourably, peacefully, undeterred by the
fear of being victimized for her absence during the pre or
post-natal period.
31. Maternity Leave benefits are not just statutory
entitlements but fundamental rights that reflects a
woman's identity and dignity when she decides to start a
family. The right to bear children is protected under
Article 21 of the Indian Constitution as part of the
Fundamental Right to Life and Personal Liberty.
Additionally, Article 15(3) of the Constitution of India
provides the State to make special provisions for women
and children, supporting the principle of substantive
equality. Article 42 of the Constitution of India calls for
humane working conditions and maternity relief. The
Right to Life under Article 21 of the Constitution of India
encompasses not only bodily protection but also the right
to a meaningful and dignified life. The State is obligated
to ensure that pregnant working women receive all
necessary support and protection for their health and that
of their child while maintaining their employment.
32. UNICEF emphasizes that newborns need to
experience their surroundings through sight, sound,
movement and touch immediately after birth. To help the
baby feel secure and content, they should be held gently,
stroked and comforted. Additionally, UNICEF suggests
that parents should engage with their baby through
laughter and smiles during the first 1-6 month. To meet
these sensitive needs, it's crucial for mothers to spend
ample time with their babies to ensure that they receive
proper care and attention.
33. The global recognition of Maternity Leave underscores
its critical role in safeguarding the health and well-being
of both mothers and their children. These benefits also
support women's ability to thrive in their careers, which
can contribute to overall economic growth. The Universal
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Declaration of Human Rights, the International Covenant
on Economic, Social and Cultural Rights, and the
Convention on the Elimination of All Forms of
Discrimination against Women, highlight the importance
of providing maternity benefits to working women,
reflecting their vital significance.
34. The respondent-RSRTC is trying to take shelter of
Regulation 74 of the Regulations of 1965. Such Regulation
has become an ancient provision, in view of the
subsequent Acts of the Central and the State
Governments, whereby the ceiling limit of Maternity Leave
has been increased to 180 days and Section 5 of the Act
of 1961 has also been amended in the year 2017. Hence,
under these changed circumstances, all female employees
are entitled to get the benefit of Maternity Leave, in terms
of the 2017 amendment. The Regulation of 1965 do not
overrule the amended provisions of the Maternity Benefits
(Amendment) Act, 2017. The Regulation 74 of the
Regulations of 1965 is liable to be amended now, as the
same is the need of hour.
35. Keeping in view all the above provisions of law, it can
be safely held that a working woman is entitled to 180
days of Maternity Leave in every establishment and denial
to grant 180 days of Maternity Leave to the female
employees working at RSRTC, on the basis of Regulation
74 of the Regulations of 1965, is not only discriminatory
but also violative of their fundamental rights, contained
under Articles 14 and 21 of the Constitution of India.
Denial of 180 days of Maternity Leave to the female
employees working at RSRTC, like the petitioner,
undermines a woman's right to child birth and Maternity
Leave, as provided under the Act of 1961 (as amended in
2017).
6.10 Further, a Co-ordinate Bench of this Court at Jodhpur in a
recent judgment passed in the case of Rani Tanwar vs State of
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Rajasthan & Ors. ; S.B. Civil Writ Petition No. 9700/2020
(Decided on: 01.07.2025) while relying on the judgment passed in
Hemlata Saraswata (supra) observed and held as under:
6. In Hemlata Saraswat (supra), the Court held as under:
“The petitioner, even if working on contract basis,
has entered into services under the order dated
15.09.2003(Annex.1) after having been found fit
and eligible by the Selection Committee as stated in
the said order. Hers has not been a back door entry.
Merely because the respondents would choose to
put her on consolidated salary and state it to be a
contractual appointment, the fact that she is a
woman employee cannot be lost sight of and the
essential benefits fundamentally dealing with the
very basics of human rights of allowing maternity
benefit to the woman cannot be and ought not to
have been ignored; and the petitioner ought to have
been allowed maternity leave as applied for. It may
be pointed out that there had not been any other
reason of denying maternity leave to the petitioner
except that she was working on consolidated salary
on contract basis. Such being a proposition already
declared unacceptable, the action of the respondents
is not only illegal but mala fide too.
The present one was clearly an avoidable litigation if
the authorities concerned would have dealt with the
matter with due regard to their constitutional duties
and sadly enough they have chosen to proceed in
utter disregard of their duties, without regard to the
requirements of the rules, and even in disregard to
the decisions rendered by this Court. The petition,
thus, deserves to be allowed with costs.
7. The Hon’ble Apex Court, in Dr. Kavita Yadav vs. The
Secretary, Ministry of Health and Family Welfare
Department & Ors.; (2024) 1 SCC 421 while dealing with a
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situation where the contractual period of service of the
employee ended during the currency of her maternity leave
period, held asunder:
“15. In our opinion, a combined reading of these
provisions in the factual context of this case would
lead to the conclusion that once the appellant fulfilled
the entitlement criteria specified in Section 5(2) of the
Act, she would be eligible for full maternity benefits
even if such benefits exceed the duration of her
contract. Any attempt to enforce the contract duration
term within such period by the employer would
constitute “discharge” and attract the embargo
specified in Section 12(2)(a) of the 1961 Act. The law
creates a fiction in such a case by treating her to be in
employment for the sole purpose of availing maternity
benefits under the 1961 Act.”
8. In view of the above settled position of law, the present
writ petition is allowed. It is hereby declared that the
petitioner was entitled for grant of maternity leave as
applied for. The respondents are directed to grant and
release the benefit of maternity leave for the period as
applied for, to the petitioner as per law, within a period of
eight weeks from now. The petitioner shall be entitled for
interest at the rate of 6% per annum on the accrued
amount.
6.11 The aforesaid authorities thus, demonstrate that the nature
of employment, whether regular, casual or contractual, cannot, by
itself, be treated as a conclusive ground for denying maternity
benefits where the applicable statutory conditions are fulfilled. At
the same time, the entitlement in an individual case must be
examined with reference to the governing statutory provisions,
the nature of the establishment and the eligibility requirements
prescribed by law.
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7. Applying the aforesaid principles to the facts of the present
case, it is evident that the petitioner sought maternity leave
during the subsistence of her contractual engagement. Her
application dated 07.12.2022 (Annexure 2) sought leave
commencing from 26.12.2022 for a period of six months, ending
on 25.06.2023. The petitioner's initial contractual tenure was to
continue until 03.08.2023. Accordingly, the entire period of
maternity leave sought by her fell within the period of her
contractual engagement.
7.1 The respondents have not disputed the fact that the
petitioner applied for maternity leave during her contractual
tenure. Their principal objection is founded upon Condition No. 5
of the appointment order dated 25.07.2022 (Annexure 1), which
stipulated that no additional leave, apart from the declared State
Government holidays, would be permissible.
7.2 The law laid down by Hon’ble Apex Court in Female
Workers (Muster Roll) (supra) and Dr. Kavita Yadav (supra)
as well as by Co-ordinate Bench of this Court in Minakshi
Choudhary (supra) and Rani Tanwar (supra) is to the effect
that the benefit of maternity leave cannot be denied merely on
account of the nature of employment, provided that the person
fulfils the prescribed eligibility requirements. Maternity protection
is intended to safeguard the health and dignity of the woman and
to ensure that she is not compelled to forgo her statutory
entitlement merely because of the nature or duration of her
employment.Further, any contractual condition inconsistent with
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the applicable provisions of the Maternity Benefit Act, 1961, would
be subject to Section 27 of the said Act.
7.3 In the present case, the impugned letter dated 16.12.2022
(Annexure 3) rejected the petitioner's request solely on the basis
of Condition No. 5 of the appointment order dated 25.07.2022
(Annexure 1). The rejection does not proceed on any independent
determination of her eligibility under the applicable maternity
benefit provisions. Such an approach is inconsistent with the
protective object of the Maternity Benefit Act, 1961, and the
principles enunciated by the Hon'ble Supreme Court as well as this
Court in the aforesaid judgments.
7.4 In these circumstances, this Court finds that the petitioner's
claim cannot be rejected merely on the ground that she was
appointed on a contractual basis or that the terms of her
appointment restricted the grant of additional leave. Since the
period for which maternity leave was sought fell entirely within her
initial contractual tenure, and the impugned rejection was founded
upon the general restriction contained in Condition No. 5 of the
appointment order, the denial of maternity benefits cannot be
sustained.
8. In view of the foregoing discussion, the present writ petition
is allowed . Consequently, the impugned letter dated 16.12.2022
is quashed and set aside, and the petitioner is entitled to the relief
of maternity benefits in accordance with the applicable law for the
period claimed by her.
8.1 The respondents are directed to extend maternity benefits to
the petitioner for a period of 180 days commencing from
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26.12.2022 and to pay her the admissible remuneration for the
said period, in accordance with the applicable statutory provisions.
8.3 The above exercise shall be completed within three months
from the date on which the respondent receive certified copy of
this judgment.
9. Pending applications, if any, stand disposed of.
(BIPIN GUPTA),J
56/Rashu
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