ROSHINI P. v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **WP(C).No.11230 OF 2019(C)** ## **PETITIONER:** **ROSHINI P., AGED 32 YEARS W/O.ARUN, ARUN BHAVAN, KADALUNDI P.O., KOZHIKODE, PIN - 673 302.** **BY ADVS. SRI.B.MUHAMMED SHAHEEL SRI.RUBEN GEORGE ROCK** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** - **2 CALICUT UNIVERSITY, REPRESENTED BY ITS REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM (DISTRICT), KERALA, PIN - 673 635.** - **3 DIRECTOR, DIRECTOR OF SELF FINANCING COURSES, TAGORE NIKETHAN, CALICUT UNIVERSITY P.O., KERALA - 673 635.** - **4 DIRECTOR, CENTRE FOR HEALTH SCIENCES, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM (DISTRICT), KERALA, PIN - 673 635.** **ADV. BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY** ## **OTHER PRESENT:** ## **SRI.B.UNNIKRISHNA KAIMAL ,GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11230 OF 2019(C)** 2 ## **J U D G M E N T** Petitioner, who is presently working as Assistant Professor in Medical Laboratory Technology (MLT) at the Center for Health Science, University of Calicut, on contract basis, is aggrieved by the denial of maternity benefits. 2. Petitioner commenced her service under the respondents on 21.02.2011 as Lecturer in MLT in the Center for Health Science, based on appointment on contract basis and continues executing agreements from year to year. Her first appointment was for the period from 21.02.2011 to 20.02.2012; the next term of her appointment was from 24.02.2012 to 23.02.2013; thereafter from 28.02.2013 to 27.02.2014, 04.03.2014 to 03.03.2015, 07.03.2015 to 06.03.2016, 11.03.2016 to 10.03.2017, 16.03.2017 to 15.03.2018, 21.03.2018 to 20.03.2019 and from 26.03.2019 to 25.03.2020, as per orders Exts.P1 to P8. From 2016 onwards her designation has been changed from 'Lecturer' as 'Assistant Professor'. In the year 2012 and 2017, she had applied for maternity leave. As per Ext.P9 order, the Registrar **WP(C).No.11230 OF 2019(C)** 3 of the University granted leave without allowance on medical grounds for a period of 180 days with effect from 14.03.2012 on condition that “1) she will not be eligible for the consolidated salary as per the agreement or any other types of benefits during the period of leave. 2) For rejoining duty on expiry of the leave, prior permission shall be obtained from the Registrar and the request for the same shall be forwarded to this office at least 15 days prior to the proposed date of joining. 3) The Director, Centre for Health Sciences shall take necessary alternative arrangements to conduct the classes for the subjects being handled by Smt.Roshni.P for this period.” 3. Similarly, she was granted another spell of leave as per Ext.P10 order dated 14.06.2017. In this order, it was stated that sanction had been accorded to the petitioner for refraining from duty for the period from 01.06.2017 to 27.11.2017 (180 days) on maternity grounds. It was further stated that she will not be eligible for any kind of remuneration/allowances during this period. Petitioner claims that she is entitled to **WP(C).No.11230 OF 2019(C)** 4 maternity leave in accordance with Rule 100 of Part I KSR as admissible to female officers, with full pay for a period of 180 days, as she was engaged on contract basis since the year 2011. She claims the benefit of Maternity Benefit Act, 1961 as well as Rule 100 of Part I KSR, pointing out that an employee like her is entitled to the benefit of maternity leave as in the case of regular employees. 4. Relying on the judgments of this Court in **Mini v. Life Insurance Corporation of India** [2018 (1) KHC 530] as well as the judgment in **Rakhi P.V and others v. State of Kerala and Another** [2018 (2) KHC 251], the petitioner claimed that she is entitled to maternity benefit. She also relied on the judgment of this Court in W.P.(C).No.5507 of 2018 in which this Court directed the payment of maternity benefits to an Assistant Professor who was working on contract basis in Medical Microbiology at the School of Health Science, University of Calicut. 5. Respondents filed a counter affidavit stating that petitioner is not entitled to any benefit either **WP(C).No.11230 OF 2019(C)** 5 under Maternity Benefit Act or under KSR. It is stated that the petitioner’s appointment was purely on contract basis for a specific period and that she was granted 6 months leave out of her engagement for the period of 12 months from 24.02.2012 to 23.02.2013 on contract basis. It is stated that going by the agreement as well as leave sanctioning order, she is not entitled to claim any remuneration for the period of leave. Similarly, the second spell of leave she availed was during her contract appointment from 16.03.2017 to 15.03.2018. According to the respondents the judgments relied on by the petitioner do not apply in the circumstances of the case, as the University is not a notified establishment under the Maternity Benefit Act. According to the University, the question is squarely covered against the petitioner in the judgment of the Division Bench in **Jisha P. Jayan v. Sree Sankaracharya University of Sanskrit** [2013 (3) KLT 533] where this Court has found that a contract employee would not be entitled to maternity leave unless she is in service beyond 1 year. It is also **WP(C).No.11230 OF 2019(C)** 6 pointed out that the writ appeal filed against the judgment in W.P.(C).No.5507 of 2018 is pending consideration of the Division Bench. 6. Having heard the contentions on either side, I find that petitioner has been on contract appointment from 21.02.2011 onwards. She availed maternity leave during her second year of her contract appointment. The learned Standing Counsel argued that petitioner has not worked continuously for more than a year and that the she is bound by the conditions in the order of appointment. I find that petitioner has been continuing from 2011 onwards, though based on agreements executed from year to year imposing a break of 3 to 4 days in between. I am of the view that those are artificial breaks which are liable to be ignored for the purpose of considering her entitlement as a female employee for maternity benefit. The University of Calicut which is supposed to act as a model employer cannot be permitted to deny the statutory benefits on the basis of such artificial breaks in the light of the judgments of the Apex Court in **Yogendra Singh Rawat v. Hemwati Nandan** **WP(C).No.11230 OF 2019(C)** 7 **Bahuguna Garhwal University** [(1998) 3 SCC 704], **Bhagwati Prasad v. Delhi State Mineral Development Corpn.** [(1990) 1 SCC 361], etc. 7. In the judgment in **Jisha P. Jayan** 's case (supra) relied on by the learned Standing Counsel for the University it is seen that the appellant therein availed leave even before completing 1 year of her appointment on contract basis. The Division Bench has only held that unless the employee has put in service beyond 1 year on contract basis she would not be eligible for maternity benefit under Rule 100 of Part I of KSR. In this case, the petitioner has availed the first spell of leave during her second spell of contract period after she completed more than 1 year on contract basis. 8. The Service conditions relating to those who are employed on contract basis are governed by Appendix VIII of the KSR. Note below Rule 2 of Appendix VIII of Part I KSR reads as follows: “Maternity leave under Rules 100 and 101 will be admissible to female officers appointed on contract basis continuing in service beyond one year provided they would continue in service but for proceeding on **WP(C).No.11230 OF 2019(C)** 8 such leave.” 5. Rule 100 of Part I KSR provides that “A competent authority may grant to a female officer, maternity leave on full pay for a period of 180 days from the date of its commencement”. 6. Respondents cannot deny that the provisions under KSR or even the principles under Appendix VIII of Part I KSR will not apply in the case of employees engaged on contract basis.” 9. On both spells of maternity leave petitioner was denied pay and allowances, which the employees who completed more than 1 year on contract basis are entitled to be paid. Therefore the denial of maternity benefit to the petitioner as provided in Rule 100 of Part I KSR was illegal. Therefore even without going into the applicability of the judgments in **Rakhi** ’s case (supra) or **Mini** ’s case (supra) or to those in the Maternity Benefit Act, it can be seen that the petitioner was entitled to the benefit of maternity leave with full pay and allowances in accordance with the provisions contained in KSR. The respondents do not have a contention that provisions in KSR are not applicable to petitioner or to those employed on contract basis. Provisions under KSR are made **WP(C).No.11230 OF 2019(C)** 9 applicable to the teachers of the University by virtue of Statute 9 of Chapter 3 of the Calicut University First Statute 1977. 10. I have considered a similar question in my judgment in **Leema Kuruvila v. State of Kerala** [2019 (1) KLT 304: 2019(2)KHC 879] where I have held that contract employee who worked beyond 1 year is entitled to maternity benefit under the provisions contained in the Note to Rule 2 of Appendix VIII of KSR. I find that the said judgment squarely covers the case of the petitioner also. 11. Even though the learned Standing Counsel argued that the claim for maternity benefit for the first spell of 180 days from 14.03.2012 is highly belated, I find that the said delay is liable to be ignored as petitioner was denied a statutory right which the University ought to have granted at the relevant time and it was the obligation of University to see that the statutory benefits were granted in time, in the light of the provisions contained in Article 39 and 42 of the Constitution of India, which **WP(C).No.11230 OF 2019(C)** 10 provides that State shall make provisions for securing just and humane conditions of work and for maternity relief. Apart from that Article 11 (2)(b) of the United Nations' Convention on the Elimination of all Forms of Discrimination against Women obligates the parties to that convention to take all appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances in order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work. India is a party to the convention and a University like respondent within India is also bound to take appropriate measures in tune with the conventions and at any rate the provisions contained in Rule 100 of KSR. The provisions contained in the agreement or the orders sanctioning leave to the extent it denies pay and allowances for the period during which petitioner availed maternity leave cannot stand in the way of the entitlement of petitioner for pay and allowance during the period of maternity leave as those **WP(C).No.11230 OF 2019(C)** 11 provisions are illegal being contrary to Rule 100 of part I KSR read with Note to Rule 2 of Appendix VIII of KSR as well as the aforesaid provisions under the Constitution of India and the Article 11(2)(b) of CEDAW. The orders Exts.P9 and P10 to the extent the pay and allowances for a period of 180 days each from 14.03.2012 and from 01.06.2017 respectively, are denied to petitioner are set aside. There shall be a direction to the University to disburse the pay and allowances due to the petitioner for the aforesaid 2 spells of the maternity leave granted as per Ext P9 and P10 orders, within a period of 'three months' from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE** AS **WP(C).No.11230 OF 2019(C)** 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 THE TRUE COPY OF THE ORDER SANCTIONING THE APPOINTMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 05/03/2011.** - **EXHIBIT P2 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 09/03/2012.** - **EXHIBIT P3 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 12/06/2013.** - **EXHIBIT P4 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 07/05/2014.** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 16/05/2015.** - **EXHIBIT P6 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 04/04/2016.** - **EXHIBIT P7 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 31/03/2017.** - **EXHIBIT P8 THE TRUE COPY OF THE ORDER SANCTIONING THE RE-ENGAGEMENT OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 14/05/2018.** **WP(C).No.11230 OF 2019(C)** 13 **EXHIBIT P9 THE TRUE COPY OF LETTER DATED 10/07/2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P10 THE TRUE COPY OF LETTER DATED 14/06/2017 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.**