High Court of Delhi

Commissioner of Police and Anr. vs. Ravina Yadav and Anr. (Neutral Citation: 2024:DHC:5372-DB)

MANU/DE/4823/2024

22.07.2024

Service

Rule 43 CCS (Leave) Rules creates an unreasonable distinction between rights of first two children born to a lady government servant and the third or the subsequent child

The respondent no.1 is employed with the petitioners as a Lady Constable. From her first marriage, she was blessed with two children. After divorce by mutual consent, custody of both the children was handed over to her ex-husband. She re-married and from the second wedlock, she was blessed with a child on 08.06.2018. She submitted an application seeking maternity leave with effect from 08.06.2018. On being consulted by the petitioners, the Department of Personnel & Training (DoPT) rendered their opinion dated 12.03.2019 that according to Rule 43 of the CCS (Leave) Rules, 1972, a female government servant is entitled to maternity leave for a period of 180 day if she has less than two surviving children. Aggrieved by the order, respondent no. 1 approached the learned tribunal wherein directions were given to the petitioners to grant maternity leave to the respondent. Hence, the present petition has been filed.

The issue is whether a lady government servant, who has two surviving children, is or is not entitled to maternity leave in case of third or subsequent child as the principle of Rule 43 of CCS (Leave) Rules, 1972, is based on public policy and family planning goal of the Central Government?

The matter has to be examined with the lens of constitutional morality in the light of the Directive Principles of State Policy and other Articles enshrined in the Constitution of India. Not just motherhood, it is also the childhood that requires special attention. The health issues of both - mother as well as the child are to be kept in consideration while providing maternity leave, aimed at protecting the dignity of motherhood by providing for full and healthy maintenance of the woman and her child. The maternity leave is intended to achieve the object of ensuring social justice to women and children.

The Court further observed that the Rule 43 CCS(Leave) Rules creates an unreasonable distinction between rights of first two children born to a lady government servant and the third or the subsequent child, making the third and the subsequent child suffer deprivation of motherly care, which first two children had received. Thus, court is of prima facie view that classification of lady government servants on the basis of number of surviving children they have lacks intelligible differentia. However, the view is only prima facie view, because vires of Rule 43 were not challenged before the court.

Thus, no reason available to interfere with the humane and progressive view taken by the learned Tribunal, so the impugned order is upheld and the petition as well as the accompanying applications are dismissed, expecting that the government authorities would re-examine the sustainability of Rule 43 of the CCS(Leave) Rules.

Tags : Maternity leave CCS Rules Two-child policy

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