IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939
WP(C).No. 30561 of 2017
PETITIONERS:
1 RAKHI P.V., AGED 36 YEARS,
D/O.VIJAYAN, PALLATHUPADY HOUSE,
P.O. NAYARAMBALAM, ERNAKULAM DISTRICT,
KERALA- 682509.
2 NISHA K.S., AGED 31 YEARS,
W/O.SUSANNAN, MEENAMBIKA HOUSE,
KARUTHEDATH KALAM, THEKKE DESAM,
P.O. NALLEPPILLY, PALAKKAD DISTRICT- 678 553.
3 REEJAMOL SCARIA, AGED 31 YEARS,
W/O.SINTO SABU, CHARUVULAYIL HOUSE,
P.O. THARIODE NORTH, PADINJARATHARA,
WAYANAD- 673 575.
4 JAYAPRABHA J., AGED 34 YEARS,
W/O.SANTHOSH.K.S,
C/O. NAGRAJ K., TELECOM SECTION,
KDHP CO. (P) LTD, MUNNAR WORKSHOP,
P.O. MUNNAR, IDUKKI - 685 612
5 BITHAMOL K.T., AGED 32 YEARS,
W/O. MANJITH C., GREESHMAM (H),
CALICUT, VELLIPARAMBA P.O.,
KOZHIKODE- 673008.
BY ADVS.SRI.M.R.VENUGOPAL
SMT.DHANYA P.ASHOKAN
RESPONDENTS:
1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
EDUCATION DEPARTMENT,THIRUVANANTHAPURAM, PIN- 695 001.
2. THE STATE PROJECT DIRECTOR,
RASHTRIYA MADHYAMIK SHIKSHA ABHIYAN,
SEVENTH FLOOR, TRANS TOWER BUILDING,
VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014.
BY SR. GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-02-2018,
ALONG WITH WPC.39828/2017 AND WPC.40564/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
EL
WP(C).No. 30561 of 2017 (U)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 1ST PETITIONER
EXHIBIT P2 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 2ND PETITIONER
EXHIBIT P3 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 3RD PETITIONER
EXHIBIT P4 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 4TH PETITIONER
EXHIBIT P5 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 5TH PETITIONER
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 22.8.2017
SUBMITTED BY THE 1ST PETITIONER
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 12.4.2017
ISSUED BY THE MINISTRY OF LABOUR & EMPLOYMENT
EXHIBIT P8 TRUE COPY OF THE CLARIFICATION ISSUED BY
MINISTRY OF LABOUR & EMPLOYMENT
EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.760/P4/2017-18/
R.M.S.A DATED 16.8.2017 ISSUED BY 2ND RESPONDENT
EXHIBIT P10 TRUE COPY OF THE ORDER NO.110/2014/G.E.D DATED
7.9.2017
RESPONDENT(S)' EXHIBITS
EXHIBIT R2(A) TRUE COPY OF THE LETTER NO.214/2017/G.EDN
DATED 22.12.2017
TRUE COPY
P.S. TO JUDGE
EL
13.3.2018
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).Nos.30561,39828
and 40564 of 2017
= = = = = = = = = = = = = = =
Dated this the 27th day of February, 2018
JUDGMENT
1. These writ petitions are filed seeking directions to the
respondents to grant six months Maternity leave to the
petitioners as is being granted to the State Government
employees.
2. Petitioner in W.P.(C).No.39828/17 is a Programme Manager in
Additional Skill Acquisition Programme under the Higher
Education Department of the Government of Kerala. She was
initially appointed on contract basis for a period of one year from
21.9.2014. The period of contract has been extended twice and
the petitioner is still continuing in service. The petitioners in
W.P.(C).Nos. 30561/2017 and 40564/2017 are Resource teachers
working in Government Schools in the State of Kerala on
contract basis. It is stated that they are working under the
Inclusive Education for Disabled Secondary Stage under the
Rashtriya Madhyamic Siksha Abhiyan of the MHRD. It is
W.P.(C).No.30561/17 & con.cases
2
contended that the petitioners, who are women employees, had
applied for maternity leave during the period of their
employment. In W.P.(C).No.39828/2017, the petitioner was
granted maternity leave of 135 days and was required to return
duty on the expiry of the said period of 135 days. The petitioner
contended that going by the provisions of the Kerala Service
Rules (KSR) as well as the provisions of the Maternity Benefit
Act, 1961, every woman employee working in any establishment
is entitled to maternity leave of 180 days. It is contended that
the petitioner is entitled to the said period of leave. The
petitioner had been permitted to continue on leave in terms of
judgment in W.A.No.2594/2017 dated 18.12.2017. In the other
two writ petitions, the petitioners had sought maternity leave
for 180 days, but they have been told that they are entitled
maternity leave only for 12 weeks and the extension of leave
cannot be considered on the basis of the orders in force.
3. Heard learned counsel for the petitioners and the learned
Government Pleader.
W.P.(C).No.30561/17 & con.cases
3
4. It is submitted by the learned counsel for the petitioners that
the provisions of the Kerala Service Rules as well as the
Maternity Benefit Act, 1961 and the service rules applicable to
Government servants of the Central Government, provide for
grant of maternity leave extending to 26 weeks. It is
contended that the grant of maternity leave being in the
nature of welfare legislation, the contention of the respondents
that the benefit of 26 weeks of maternity leave is not to be
granted to employees of the Central Government funded
projects under the Education Department of the Government
of Kerala because the projects are not notified establishments
going by the provisions of the Maternity Benefit Act cannot be
countenanced.
5. Relying on a decision of this Court in Mini v. Life Insurance
Corporation of India [2018 (1) KLT 530], the learned counsel
for the petitioners contends that the grant of leave to fulfill
essential maternal obligations involves an essential human
rights issue and that the State is duty bound to address the
W.P.(C).No.30561/17 & con.cases
4
special needs of women employees working in the organised
and unorganised sectors. The State has a responsibility to see
that a restricted meaning is not given to welfare legislation so
that rights of women employees to avail leave is restricted. It
is stated that the right to maternity leave is an essential
element of the fundamental right to life as far as a woman
employee is concerned and the issue has to be seen in the
context of Articles 14, 15 and 16 of the Constitution of India.
It is stated that a woman employee cannot be discriminated on
account of compelling family responsibilities and that the said
aspects of the matter are also to be taken into account while
considering the issue of grant of maternity leave.
6. A detailed counter affidavit has been placed on record by the
learned Government Pleader in W.P.(C).No.39828/2017
contending that the petitioners' engagement is under the
Additional Skill Acquisition Programme (ASAP), which is a
joint initiative of General Education and Higher Education
Departments and the administrative powers are vested on the
W.P.(C).No.30561/17 & con.cases
5
Empowered Committee chaired by the Chief Secretary. It is
stated that the Government Order which provides for the
service conditions of employees of ASAP permitted the grant of
135 days of maternity leave to contract employees. It is stated
that the Government has implemented the Project
Management Pool in the ASAP by Government Order dated
11.4.2017 and going by the said Government Order only 90
days is provided as maternity leave to female employees of the
project. It is stated that the petitioner had been granted 135
days leave, since her application for leave was before Ext.R1(b)
amendment was brought into effect. It is contended that the
petitioner would not be entitled to 26 weeks of maternity leave
as provided in the Maternity Benefit Act or the 180 days of leave
as provided in the Kerala Service Rules, since the petitioner was
a contract employee under a project and that she would not be
entitled to the benefits of either of the provisions.
7. In W.P.(C).No.30651/2017 also, a counter affidavit has been filed
on behalf of the 2nd respondent stating that the petitioners are
contract employees under the the Centrally sponsored Scheme
W.P.(C).No.30561/17 & con.cases
6
of Inclusive Education for Disabled Secondary Stage implemented
through the Rashtriya Madhyamic Siksha Abhiyan of the MHRD.
The provisions of the Scheme provided only 90 days of maternity
leave to Special Educators appointed on contract basis. It is
stated that teachers under the Scheme as well as under the
Sarva Shiksha Abhiyan are entitled only to 3 months of maternity
leave, going by the Government Orders in force. The learned
Government Pleader also relies on a decision of a Division Bench
of this Court in Jisha P. Jayan v. Sree Sankaracharya
University of Sanskrit, Kalady and others [2013 (3) KLT 533]
wherein it has been held that Sree Sankaracharya University, not
being an establishment notified under the Maternity Benefits
Act, an employee of the University could not claim maternity
leave as provided in the Act.
8. I have considered the contentions advanced on either side. It is
not in dispute that women employees directly employed by the
Government would be entitled to 180 days of maternity leave,
going by the provisions of the KSR. Employees in any
establishment as provided in Maternity Benefit Act, 1961, ie.,
W.P.(C).No.30561/17 & con.cases
7
employees of mines, factories or plantations and establishments
where persons are employed for execution of acrobatic and other
performances and employees of other establishments within the
meaning of any law for the time being in force in relation to
shops and establishments in the State would be entitled to
maternity leave in terms of the statutes and the orders in force.
9. The petitioners are also admittedly women employees working
on a contract basis under state funded projects. The benefits of
enhanced maternity leave to woman employees is undoubtedly a
piece of welfare legislation which is intended to give women
equal opportunities in public employment. In the above view of
the matter, the contention raised to the effect that the contract
employees under the projects are entitled only to 90 days of
maternity leave, according to me, cannot be countenanced, since
it would amount to discrimination against woman employees only
for the reason that they are engaged in projects in contractual
capacities. The inalienable obligations of maternity should not
and cannot be a reason to deny equal opportunities to woman
employees. This precisely would be the result of limiting
W.P.(C).No.30561/17 & con.cases
8
maternity leave to women employees, irrespective of the nature
of their employment. The further contention to the effect that the
contractual appointment of the petitioners have a duration of
only one year and the grant of six months paid leave would
obliterate the benefit to the project of the engagement is also not
tenable because the petitioners are persons who are continuing
in service on the basis of successive extension of contract. The
contention therefore can have no application in the instant cases.
10.In the above view of the matter, I am of the opinion that in the
light of the principles laid down by this Court in Mini's case
(supra) the contention raised that the petitioners herein are
entitled only to 90 days of maternity leave cannot be
countenanced. The petitioners herein will also be entitled to
maternity leave as is due to women employees under the Service
Rules applicable to State and Central Government servants and
to women employees under the Maternity Benefit Act, 1961. In
the above view of the matter, the impugned orders are set aside.
There will be a direction to the respondents to grant 26 weeks of
maternity leave to the petitioners. Orders shall be passed within
W.P.(C).No.30561/17 & con.cases
9
a period of two weeks from the date of receipt of a copy of this
judgment.
These writ petitions are ordered accordingly.
Sd/-
Anu Sivaraman, Judge
sj
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939
WP(C).No. 30561 of 2017
PETITIONERS:
1 RAKHI P.V., AGED 36 YEARS,
D/O.VIJAYAN, PALLATHUPADY HOUSE,
P.O. NAYARAMBALAM, ERNAKULAM DISTRICT,
KERALA- 682509.
2 NISHA K.S., AGED 31 YEARS,
W/O.SUSANNAN, MEENAMBIKA HOUSE,
KARUTHEDATH KALAM, THEKKE DESAM,
P.O. NALLEPPILLY, PALAKKAD DISTRICT- 678 553.
3 REEJAMOL SCARIA, AGED 31 YEARS,
W/O.SINTO SABU, CHARUVULAYIL HOUSE,
P.O. THARIODE NORTH, PADINJARATHARA,
WAYANAD- 673 575.
4 JAYAPRABHA J., AGED 34 YEARS,
W/O.SANTHOSH.K.S,
C/O. NAGRAJ K., TELECOM SECTION,
KDHP CO. (P) LTD, MUNNAR WORKSHOP,
P.O. MUNNAR, IDUKKI - 685 612
5 BITHAMOL K.T., AGED 32 YEARS,
W/O. MANJITH C., GREESHMAM (H),
CALICUT, VELLIPARAMBA P.O.,
KOZHIKODE- 673008.
BY ADVS.SRI.M.R.VENUGOPAL
SMT.DHANYA P.ASHOKAN
RESPONDENTS:
1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
EDUCATION DEPARTMENT,THIRUVANANTHAPURAM, PIN- 695 001.
2. THE STATE PROJECT DIRECTOR,
RASHTRIYA MADHYAMIK SHIKSHA ABHIYAN,
SEVENTH FLOOR, TRANS TOWER BUILDING,
VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014.
BY SR. GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-02-2018,
ALONG WITH WPC.39828/2017 AND WPC.40564/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
EL
WP(C).No. 30561 of 2017 (U)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 1ST PETITIONER
EXHIBIT P2 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 2ND PETITIONER
EXHIBIT P3 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 3RD PETITIONER
EXHIBIT P4 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 4TH PETITIONER
EXHIBIT P5 TRUE COPY OF THE DISCHARGE SUMMARY ISSUED IN
THE NAME OF 5TH PETITIONER
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 22.8.2017
SUBMITTED BY THE 1ST PETITIONER
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 12.4.2017
ISSUED BY THE MINISTRY OF LABOUR & EMPLOYMENT
EXHIBIT P8 TRUE COPY OF THE CLARIFICATION ISSUED BY
MINISTRY OF LABOUR & EMPLOYMENT
EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.760/P4/2017-18/
R.M.S.A DATED 16.8.2017 ISSUED BY 2ND RESPONDENT
EXHIBIT P10 TRUE COPY OF THE ORDER NO.110/2014/G.E.D DATED
7.9.2017
RESPONDENT(S)' EXHIBITS
EXHIBIT R2(A) TRUE COPY OF THE LETTER NO.214/2017/G.EDN
DATED 22.12.2017
TRUE COPY
P.S. TO JUDGE
EL
13.3.2018
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).Nos.30561,39828
and 40564 of 2017
= = = = = = = = = = = = = = =
Dated this the 27th day of February, 2018
JUDGMENT
1. These writ petitions are filed seeking directions to the
respondents to grant six months Maternity leave to the
petitioners as is being granted to the State Government
employees.
2. Petitioner in W.P.(C).No.39828/17 is a Programme Manager in
Additional Skill Acquisition Programme under the Higher
Education Department of the Government of Kerala. She was
initially appointed on contract basis for a period of one year from
21.9.2014. The period of contract has been extended twice and
the petitioner is still continuing in service. The petitioners in
W.P.(C).Nos. 30561/2017 and 40564/2017 are Resource teachers
working in Government Schools in the State of Kerala on
contract basis. It is stated that they are working under the
Inclusive Education for Disabled Secondary Stage under the
Rashtriya Madhyamic Siksha Abhiyan of the MHRD. It is
W.P.(C).No.30561/17 & con.cases
2
contended that the petitioners, who are women employees, had
applied for maternity leave during the period of their
employment. In W.P.(C).No.39828/2017, the petitioner was
granted maternity leave of 135 days and was required to return
duty on the expiry of the said period of 135 days. The petitioner
contended that going by the provisions of the Kerala Service
Rules (KSR) as well as the provisions of the Maternity Benefit
Act, 1961, every woman employee working in any establishment
is entitled to maternity leave of 180 days. It is contended that
the petitioner is entitled to the said period of leave. The
petitioner had been permitted to continue on leave in terms of
judgment in W.A.No.2594/2017 dated 18.12.2017. In the other
two writ petitions, the petitioners had sought maternity leave
for 180 days, but they have been told that they are entitled
maternity leave only for 12 weeks and the extension of leave
cannot be considered on the basis of the orders in force.
3. Heard learned counsel for the petitioners and the learned
Government Pleader.
W.P.(C).No.30561/17 & con.cases
3
4. It is submitted by the learned counsel for the petitioners that
the provisions of the Kerala Service Rules as well as the
Maternity Benefit Act, 1961 and the service rules applicable to
Government servants of the Central Government, provide for
grant of maternity leave extending to 26 weeks. It is
contended that the grant of maternity leave being in the
nature of welfare legislation, the contention of the respondents
that the benefit of 26 weeks of maternity leave is not to be
granted to employees of the Central Government funded
projects under the Education Department of the Government
of Kerala because the projects are not notified establishments
going by the provisions of the Maternity Benefit Act cannot be
countenanced.
5. Relying on a decision of this Court in Mini v. Life Insurance
Corporation of India [2018 (1) KLT 530], the learned counsel
for the petitioners contends that the grant of leave to fulfill
essential maternal obligations involves an essential human
rights issue and that the State is duty bound to address the
W.P.(C).No.30561/17 & con.cases
4
special needs of women employees working in the organised
and unorganised sectors. The State has a responsibility to see
that a restricted meaning is not given to welfare legislation so
that rights of women employees to avail leave is restricted. It
is stated that the right to maternity leave is an essential
element of the fundamental right to life as far as a woman
employee is concerned and the issue has to be seen in the
context of Articles 14, 15 and 16 of the Constitution of India.
It is stated that a woman employee cannot be discriminated on
account of compelling family responsibilities and that the said
aspects of the matter are also to be taken into account while
considering the issue of grant of maternity leave.
6. A detailed counter affidavit has been placed on record by the
learned Government Pleader in W.P.(C).No.39828/2017
contending that the petitioners' engagement is under the
Additional Skill Acquisition Programme (ASAP), which is a
joint initiative of General Education and Higher Education
Departments and the administrative powers are vested on the
W.P.(C).No.30561/17 & con.cases
5
Empowered Committee chaired by the Chief Secretary. It is
stated that the Government Order which provides for the
service conditions of employees of ASAP permitted the grant of
135 days of maternity leave to contract employees. It is stated
that the Government has implemented the Project
Management Pool in the ASAP by Government Order dated
11.4.2017 and going by the said Government Order only 90
days is provided as maternity leave to female employees of the
project. It is stated that the petitioner had been granted 135
days leave, since her application for leave was before Ext.R1(b)
amendment was brought into effect. It is contended that the
petitioner would not be entitled to 26 weeks of maternity leave
as provided in the Maternity Benefit Act or the 180 days of leave
as provided in the Kerala Service Rules, since the petitioner was
a contract employee under a project and that she would not be
entitled to the benefits of either of the provisions.
7. In W.P.(C).No.30651/2017 also, a counter affidavit has been filed
on behalf of the 2nd respondent stating that the petitioners are
contract employees under the the Centrally sponsored Scheme
W.P.(C).No.30561/17 & con.cases
6
of Inclusive Education for Disabled Secondary Stage implemented
through the Rashtriya Madhyamic Siksha Abhiyan of the MHRD.
The provisions of the Scheme provided only 90 days of maternity
leave to Special Educators appointed on contract basis. It is
stated that teachers under the Scheme as well as under the
Sarva Shiksha Abhiyan are entitled only to 3 months of maternity
leave, going by the Government Orders in force. The learned
Government Pleader also relies on a decision of a Division Bench
of this Court in Jisha P. Jayan v. Sree Sankaracharya
University of Sanskrit, Kalady and others [2013 (3) KLT 533]
wherein it has been held that Sree Sankaracharya University, not
being an establishment notified under the Maternity Benefits
Act, an employee of the University could not claim maternity
leave as provided in the Act.
8. I have considered the contentions advanced on either side. It is
not in dispute that women employees directly employed by the
Government would be entitled to 180 days of maternity leave,
going by the provisions of the KSR. Employees in any
establishment as provided in Maternity Benefit Act, 1961, ie.,
W.P.(C).No.30561/17 & con.cases
7
employees of mines, factories or plantations and establishments
where persons are employed for execution of acrobatic and other
performances and employees of other establishments within the
meaning of any law for the time being in force in relation to
shops and establishments in the State would be entitled to
maternity leave in terms of the statutes and the orders in force.
9. The petitioners are also admittedly women employees working
on a contract basis under state funded projects. The benefits of
enhanced maternity leave to woman employees is undoubtedly a
piece of welfare legislation which is intended to give women
equal opportunities in public employment. In the above view of
the matter, the contention raised to the effect that the contract
employees under the projects are entitled only to 90 days of
maternity leave, according to me, cannot be countenanced, since
it would amount to discrimination against woman employees only
for the reason that they are engaged in projects in contractual
capacities. The inalienable obligations of maternity should not
and cannot be a reason to deny equal opportunities to woman
employees. This precisely would be the result of limiting
W.P.(C).No.30561/17 & con.cases
8
maternity leave to women employees, irrespective of the nature
of their employment. The further contention to the effect that the
contractual appointment of the petitioners have a duration of
only one year and the grant of six months paid leave would
obliterate the benefit to the project of the engagement is also not
tenable because the petitioners are persons who are continuing
in service on the basis of successive extension of contract. The
contention therefore can have no application in the instant cases.
10.In the above view of the matter, I am of the opinion that in the
light of the principles laid down by this Court in Mini's case
(supra) the contention raised that the petitioners herein are
entitled only to 90 days of maternity leave cannot be
countenanced. The petitioners herein will also be entitled to
maternity leave as is due to women employees under the Service
Rules applicable to State and Central Government servants and
to women employees under the Maternity Benefit Act, 1961. In
the above view of the matter, the impugned orders are set aside.
There will be a direction to the respondents to grant 26 weeks of
maternity leave to the petitioners. Orders shall be passed within
W.P.(C).No.30561/17 & con.cases
9
a period of two weeks from the date of receipt of a copy of this
judgment.
These writ petitions are ordered accordingly.
Sd/-
Anu Sivaraman, Judge
sj
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