Savita Ahuja v. State Of Haryana And Others

D.V. Sehgal, J. - The petitioner possessed educational qualifications of M.A.B. Lib & B.Ed. She was appointed as a Junior Librarian on ad hoc basis in Sub Divisional Library under the control of respondent No. 3 through the agency of local employment exchange on 24.12.1986. The post against which she was so appointed is a temporary one and according to the petitioner sanction for its continuance has been granted by the government till 28.2.1988. In the letter of appointment, Annexure P1 it was made clear that the appointment of the petitioner shall be on purely temporary basis for a period of six months or till any regular candidate joins which ever event occurs earlier. The petitioner got herself medically examined from the Chief Medical Officer, Ambala who did not discover that she has disease (communicable or otherwise) constitutional weakness or bodily infirmity except pRegulation ncy of 10 to 12 weeks duration. This was, however, considered not to be a disqualification for appointment to the post. Respondent No. 3 addressed a letter dated 21.4.1987, Annexure P 2 to Director Higher Education, Haryana, respondent No. 2 seeking advice as to if the services of petitioner should be continued or terminated since she is in a family. Later, respondent No. 3 relying on a letter dated 6.5.1987 issued by respondent No. 2, terminated the services of the petitioner vide order dated 6.5.1987 Annexure P. 9. The petitioner has averred in the present writ petition that her services have been terminated simply on account of the fact that she was in a family way. She has relied on rule 8. 137-A of the Punjab Civil Service Rules, Volume 1, Part I, as applicable to the employees of the State of Haryana and contends that in case of leave, she was entitled to grant of maternity leave of full pay for the period of confinement and that termination of her services on account of her pRegulation ncy was illegal. She has also staked the claim that she is entitled to regularisation of her services and sought a direction to this effect to respondents No. 1 to 3. 2. The petition has been opposed by the respondents. A written statement on their behalf has been filed by respondent No. 3 who has inter alia contended that since the petitioner was employed on purely temporary and ad hoc basis, she could not be granted maternity leave under rule 8. 137-A ibid. It has been further contended that the order terminating the services of the petitioner was passed strictly in accordance with the terms and conditions of her appointment. She being purely a temporary and ad-hoc employee, her services could be terminated and as such the impugned order, Annexure P.9 is valid. It is further submitted that occording to the instructions issued by the Government of Haryana vide letter dated 10-8-1983, Annexure R.1 maternity leave is not admissible to female government employees appointed on ad hoc basis. Therefore, the claim made to this effect by the petitioner is not sustainable. 3. I have heard the learned counsel for the parties. As regards the claim of the petitioner of her entitlement to regularisation of her services and direction sought by her to this effect, I find that no such relief can be granted in the present petition. The learned counsel for respondents has rightly relied on Gian Chand and others v. The Director, Hydel Designs, Punjab, Chandigarh and others, 1976 (1) S.L.R. 570, and Om Parkash Sharma v. State of Haryana and others, 1981 (1) S.L.R. 314, to submit that an ad-hoc employee cannot claim regularisation as a matter of right. I, therefore find no force in this part of claim of the petitioner. Rule 8.137-A ibid provides as under :-

"The competent authority under Rule 8.23 may grant to a female Government servant maternity leave on full pay for a period not ordinarily exceeding three months. The grant of leave should be so regulated that (1) the date of confinement falls within the period of this leave, and (2) the leave does not extend more than six weeks from the date of confinement. This leave may be extended to six months on the certificate of the Civil Surgeon, or of a member of the Women's Medical Service, India. Maternity leave is not debited against the leave account."

4. The petitioner has relied on instructions dated 31.8.1983, Annexure P.10 issued by the State of Punjab giving clarification to the effect that the aforesaid provision of the rule is uniformlly applicable to permanent and temporary Government employees. Accordingly, maternity leave may also be granted to such female Government employees who have been recruited on ad-hoc basis for a limited period. No doubt these instructions further lay down that the question of grant of maternity leave to a female Government employee during the first six months of the employment would not arise because women candidates for recruitment to State Service who at the time of medical examination on the first entry into Government Service are found to be pRegulation nt of 12 weeks standing or over are to be declared temporarily unfit until the confinement is over. An advice was, therefore, rendered that such temporarily unfit persons should not be recruited to service even on ad hoc basis till they are fit for duty after the confinement. 5. The learned counsel for the respondents has rightly pointed out that the instructions at Annexure P.10 cannot be made applicable to the petitioner as these have been issued by the Government of Punjab while the petitioner is an employee of the State of Haryana. He has placed reliance on the instructions of the State of Haryana, Annexure R1 wherein it has been clarified that maternity leave is not admissible to female Government employees appointed on ad hoc basis. He further contends that the petitioner was not medically fit for first entry into Government Service even on ad hoc basis because of her pRegulation ncy. I have considered the above submissions of the learned counsel. I am of the view that the petitioner has unnecessarily been harshly dealt with. No doubt at the time of her medical examination she had 10 to 12 weeks pRegulation ncy but the Chief Medical Officer did not consider it to be a disability for her first entry into Government Service. Had the petitioner been appointed even temporarily but on regular basis, she would have been entitled to the privilege of grant of maternity leave as available to all other Government Servants of the State of Haryana. The mere fact that her appointment was on ad hoc basis should not disentitle her to this privilege because such a disentitlement results in one and the only consequence that the services of the ad-hoc female employee who is pRegulation nt and has reached the stage of confinement are to be terminated. This would be highly unjust and virtually a discrimination against female ad hoc employees on the ground of sex which is violative of Articles 14, 15 and 16 of the Constitution. I find support for this view from the ratio of judgment of the Supreme Court in Rattan Lal and others v. State of Haryana and others, 1985(3) S.L.R. 578. I have, therefore, no doubt in my mind that the instructions dated 10.8.1983, Annexure R 1 issued by the Government of Haryana, are discriminatory on the ground of sex and, therefore, ultra vires of the Constitution and cannot be sustained. 6. In all fairness to the learned counsel for the respondents, another contention raised by him may be noticed. He has submitted that the petitioner never applied for maternity leave nor was it ever declined to her. She cannot, therefore, make a grievance on that account. This, in my view, would be begging the question. Before the stage of confinement of the petitioner on account of pRegulation ncy was to reach and she felt the necessity of applying for grant of maternity leave under Rule 8.137-A ibid, her services were terminated vide the impugned order. The contention though forcefully urged is, therefore, rejected. 7. As a result of the above discussion, I partly allow this writ petition, quash the impugned order, Annexure P.9 terminating the services of the petitioner. The petitioner shall be deemed to be in service of the respondent though on ad hoc basis from 6.5.1987 onwards. She may apply for grant of maternity leave for the period of her confine ment under rule 8-137- A ibid and the respondents are directed to sanction the same for a period not exceeding three months. Since the leave shall be sanctioned on full pay, the petitioner is entitled to the salary and allowances from 6.5.1987 onwards. She should be allowed to rejoin her duty within one week from today. The arrears of her salary should be paid within two months. The parties are left to bear their own costs. Petition partly allowed.