Jabeena Akhter vs HEALTH AND MEDICAL EDUCATION DEPARTMENT on 31 December 2024

1. Jabeena Akhter, Aged 37 Years D/o Ghulam Rasool Bhat, Wife of Adil Rashid Bhat, Presently Resident of Hartrath, Singhpora, Pattan, District: Baramulla-193121.

…….Applicant

(By Petitioner : Mr. P S Ahmad)

V/s

1. UT. Of Jammu and Kashmir through the Principal Secretary to Health and Midical Education Department Civil Secretariat Srinagar/Jammu-190001.

2. Director Sher I Kashmir Institute of Medical Sciences (SKIMS) Soura Srinagar-190011.

3. Additional Director SKIMS, Soura Srinagar-190011.

4. Medical Superintendent SKIMS Soura Srinagar- 190011.

5. Administrative Officer, SKIMS Soura Srinagar-190011. …………Respondents

(By Advocate: Mr. Rais Ud Din Ganaie, DAG,)

ORDER(ORAL) Per.: M.S. Latif, Member(J)

1. Through the medium of the instant petition the petitioner

seeks for the following reliefs which are reproduced as under- (a). Issue an appropriate order or direction to the respondents to grant the applicant maternity leave benefits on account of the birth of her third child, as per the statutory provisions of the Maternity Benefit Act or as the hon’ble Tribunal may deem fit and proper in the circumstances of the present case.

(b) . Declare that denial of maternity leave benefits for the birth of third child as illegal, and arbitrary, in contravention of the Maternity Benefit Act, 1961, as amended by the Maternity Benefit (Amendment) Act, 2017.

(c) . Any other appropriate relief as this Hon’ble Tribunal may deem fit and proper may also be passed in favour of the petitioner either in lieu or in addition to any of the relief claimed, herein above, on the facts and circumstances of the case.

2. Alongside the main reliefs the petitioner has also sought for the interim relief which are also reproduced as under- That, till pending final decision on the application (O.A.), the applicant requests the Hon’bel Tribunal to direct the employer herein the respondents to allow the applicant to avail maternity leave immediately after expiry of the medical leave applied by the applicant as per the advice of the consultant surgeon, so that she can benefit herself of the necessary leave benefits post-delivery period, which interim leave would prevent her from undue hardship, aligning with the maternity Benefit Act’s intention to support the health of the mother and child and any other appropriate relief which would be just and proper in the interest of justice.

3. The case of the petitioner as projected in the is that the applicant is working as a Grade-I Nurse at the Pediatric Surgery ward at SKIMS Soura Srinagar.

4. It is next averred that the petitioner has begotten two daughters who surviving as such had availed 180 days each of the maternity leave benefits for her previous maternities as per the leave rules.

5. It is also averred in the petition that the petitioner is aggrieved by the denial of the maternity leave benefit for the birth of her third child by the respondent department. It is next averred in the petition that the applicant who was expecting her third child has approached the respondent department to avail of the maternity leave benefit of 12 weeks as per the Maternity Benefit Act 1961 read with the Maternity Benefit (Amendment) Act 2017, but the applicant was asked to move a formal representation for availing maternity leave benefit for third child.

6. Learned counsel for the petitioner seeks relief on the grounds as mentioned in the O.A. which are reproduced as

under- Grounds of Relief: 5.1 The Maternity Benefit Act, 1961, and its Amendment Act, 2017, provide maternity leave and related benefits to all women employees, with reduced leave for more than two surviving children (i.e., the third child and subsequent child), without a bar on eligibility for the third or subsequent children. 5.2 That under the act employed women are entitled to 26 weeks maternity leave benefit for the first two children each and 12 weeks maternity leave benefit each for subsequent children without a bar on the number of children. 5.3 Section 27 of the Maternity Benefit Act provides that the Act has an overriding effect on all inconsistent rules, regulations, or policies, meaning that state rules cannot validly limit maternity leave to two children. 5.4 The verbal denial of maternity benefits violates procedural fairness and the applicant's statutory rights under the Maternity Benefit Act. 5.5 The Hon'ble Himachal Pradesh High Court dealing with a maternity leave benefit case has reiterated that every woman, irrespective of her employment status, is entitled to maternity leave. Maternity leave aims to protect the dignity of motherhood and ensure the well-being of both the woman and her child, the court also remarked that Maternity Leave is a Fundamental human right; its denial violates Article-29, and Article 39 of the Constitution. 5.6 That in another judgment by the Hon'ble High Court of Himachal Pradesh it has been also observed that to conceive, to give birth, and take care of a Child is not only a Fundamental Right of the women but also a Pious Role for Society's Existence. 5.7 That overlooking and ignoring the just principles of law

and rules framed thereof, for making such administrative decisions in the department, is unjust, iniquitous, and unfair. 5.8 That the act of the respondents is arbitrary, capricious, whimsical, and surreptitious besides being violative of the principles of Natural justice being a settled principle of law. 5.9 That the petitioner seeks leave of the Hon'ble Tribunal to take any other ground taken in the representation and not repeated here, and also any additional ground at the time of final arguments be allowed. 5.10 That the petitioner has got no other efficacious and alternative remedy available in this regard, except to approach this Hon'ble Tribunal by way of the present Original Application/Writ Petition for the redressal of her genuine and legitimate grievances & the petitioner has not moved any other court, High Court or Apex court of the country in this regard. 5.11 That an affidavit duly sworn by the petitioner is annexed herewith, in support of the averments deposed in the original Application/Writ Petition.

7. Learned counsel for the petitioner Mr. P.S. Ahmad submits that in terms of the Maternity Leave Benefits Act, 1961 and its Amendment Act of 2017, the same provides maternity leave and related benefits of all women employee, however, with reduced leave for more than two surviving children i.e. the third child and subsequent child without the Bar on eligibility of the

third or subsequent child. He submits that under the Act employed woman are entitled to 26 weeks maternity leave benefit for the first two children and 12 weeks’ maternity leave for each child without the bar on the number of children, as such, submits that the respondents should have considered the case of the petitioner for grant of benefit.

8. Undoubtedly, the most cherished desire of a woman is to be a mother and woman constitute almost half of the segment of our society who have to be treated with honor and dignity at place where they work. What is needed for a mother is to facilitate the birth of a child particularly of a woman in service, the employer has to be considerate and sympathetic towards her and must realise her physical difficulty which a working woman would face in performing her duty at her work place while carrying a baby in the womb or while rearing up the child after birth.

9. I am reminded by a judgment of Madras High Court in the case of Khatija Umama Vs. State of Madras, wherein their lordships have held that no prejudice would be caused ,if the respondents consider the petitioner’s representation wherein the petitioner has also delivered a third child. This also reminds me of a judgment delivered by Division Bench of the Bombay High Court passed in may 2024 wherein Hon’ble High Court has upheld the maternity benefits for the third child, however in the facts and circumstances. The Hon’ble Delhi High Court has also held in one of the cases and observed that Two Child Policy of the Government aimed at population control is true, but it must pass muster Article 14 of the Constitution of India. Their Lordship further observed that in order to achieve success in population control. The Government can take any innovative steps in order to dissuade the citizens from

giving birth for more than two children, but once third child come into existence even in the womb, the rights of the woman cannot be trampled over.

10. Learned counsel for the petitioner submits that the petitioner has moved a detailed representation. Perusal of the representation reveals that the petitioner has in fact sensitized the respondents in seeking consideration of her right, may be the leave rules attached to the service condition of the petitioner do not permit so, but then the competent authority is not powerless to formulate a scheme to protection the dignity of a woman as enshrined under Article 21 of the Constitution of India coupled with fact when the most cherished desire of the woman is to be a mother. Womanhood that would mean compassion, respect and dignity, which has to be protected.

11. Heard learned counsel for the petitioner. Learned counsel for the petitioner submits that he would be

satisfied if the petition is disposed of, at this stage, by directing the respondents to consider and dispose of the representation of the petitioner.

12. Accordingly, the instant petition is disposed of, by directing the respondents to consider and dispose of the representation filed by the petitioner on its merits and in accordance with rule with due dispatch.

13. Accordingly, the O.A. stands disposed of, along with its connected matters, if any.

(M.S. Latif) Member (J)

/Shubham 31.12.2024./ SHUBHAM SHARMA Digitally signed by SHUBHAM SHARMA Date: 2025.01.06 12:28:15 +05'30'