Judgment:
H.R. Panwar, J.
1. By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of order Annex.4 dt. 30.10.2001 and a direction to release payment of maternity leave availed by the petitioner as applicable to the other government employees under Rule 103 of the Rajasthan Services Rules.
2. I have heard learned Counsel for the parties.
3. The facts and circumstances giving rise to the instant writ petition are that the petitioner was engaged on a consolidated salary of Rs. 4500/-per month on urgent temporary basis on the post of Nurse Gr.II for a period of six months vide order Annex.1 dt. 31.01.2000 on a sanction granted by the Government of Rajasthan. The said sanction was granted by the Government of Rajasthan after getting approval from the Department of Finance and on the basis of the order issued by the Director of Medical and Health Services, Government of Rajasthan, Jaipur, the Joint Director, Medical and Health Services vide Order Annex.1 dt. 29.01.2000 engaged the petitioner and three others on urgent temporary basis on a consolidated salary of Rs. 4500/- per month for a period of six months. Vide Annex.2 dt. 14.07.2006, the petitioner submitted an application to respondent No.2 for granting maternity leave 120 days from 04.05.2004 as per rules stating therein that due to her maternity she is unable to come on duty. However, according to the petitioner, on the basis of Annex.4 dt. 30.10.2001 issued by the Deputy Secretary of the Government, State of Rajasthan, Medical and Health (Group-3) Department, the respondents have refused to grant her the benefit of maternity leave, while stating that the employees engaged on consolidated salary are not entitled for maternity leave. Hence this petition.
4. The learned Counsel for the petitioner submits that the controversy involved in the instant case stands concluded by a decision of this Court in Smt. Neetu Choudhary v. State of Rajasthan and Ors. 2005 (5) RDD 1144 (Raj). It is reported by the counsel for the parties that a special appeal filed against the decision in Smt. Neetu Choudhary v. State of Rajasthan and Ors. has also been dismissed by the Division Bench and as such, the order of this Court in Smt. Neetu Choudhary has been affirmed by the Devision Bench.
5. It is contended by learned Counsel for the petitioner that though the petitioner was appointed on urgent temporary basis and under the Rajasthan Medical and Health Subordinate Service Rules, 1965 an employee even if appointed temporarily under the Rules of 1965 is entitled for the maternity leave in view of the provision of Rule 103 of the Rajasthan Service Rules, 1951 (for short 'the RSR' hereinafter).
6. Learned Deputy Government Advocate appearing for the respondents contended that the provision of maternity leave is not applicable to the employees who have been appointed on urgent temporay basis on a consolidated salary. Learned Government Advocate submits that Rule 27 of the Rules of 1965 empowers the Government or the Authority competent to make appointment on urgent temporary basis and the petitioner was appointed on urgent temporary basis under the said Rule.
7. Rule 103 of the RSR deals with the maternity leave and reads as under:
103. Maternity Leave.-A competent authority may grant 'Maternity Leave' to a female Government servant thrice during the entire period of her service. However, if there is no surviving child even after availing of it thrice, Maternity Leave may be granted on one more occasion. The maternity leave may be allowed on full pay for a period which may extend upto the period of 90 days from the date of its commencement.
NOTE
Maternity leave under this rule may also be granted in case of miscarriage, including abortion, subject to the conditions that:
(i) the leave does not exceed six weeks, and
(ii) the application for the leave to supported by a certificate from the Authorised Medical attendant. Government of Rajasthan's Decision.
1. Maternity leave is also admissible to temporary female Government servants under this Rule.
2. Maternity leave is not admissible in case of incomplete abortion.
'Clarification'
Abortion does not include 'threatened abortion' and maternity leave cannot be granted in the case of threatened abortion.
8. Learned Counsel for the petitioner submits that the Government of Rajasthan by its order No. F12(1)F.II54, dt. 25.02.1955 declared that the maternity leave is also admissible to temporary famale Government servants under this Rule 103.
9. The Government of Rajasthan took a decision by order dt. 25.02.1955 and the same has been inserted in the Rule 103 of the RSR providing that the maternity leave is also admissible to temporary female Government Servants under this Rule. Thus, it is admitted case of the respondent State that the maternity leave is also admissible to temporary female Government servants. In these circumstances, it is not open for the respondent State now to contend that the petitioner being appointed on urgent temporary basis is not entitled for the maternity leave. The stand taken by the State is contrary to the order dt. 25.02.1955 and therefore, such a benefit cannot be denied to the petitioner merely on account of her being engaged on urgent temporary basis on consolidated salary.
10. Keeping in view the decision of this Court in Smt. Neetu Choudhary v. State of Rajasthan and Ors. (supra) in my view, the petitioner deserves the similar treatment and entitled for the maternity leave.
11. In the result, the writ petition is allowed. The order Annex.4 dt. 30.10.2001 denying the maternity leave is quashed and the respondents are directed to extend the benefit of maternity leave to the present petitioner as applied by her and all benefits consequential thereto be given to her within a period of two months from the date of production of certified copy of this order before the competent authority. There shall be no order as to costs.