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Judgment
O R D E R
Through medium of this O.A., the applicant has sought the following reliefs:-
“(i)Direct that the operation of the Impugned Communication dated 11.1.2017 be stayed pending disposal of the present Original Application.
(ii)Pass appropriate interim orders directing the Respondent to continue the Applicant in service till the disposal of the present Original Application.
(iii)Direct the Respondents to grant the Applicant their salaries as per their scale of pay of Rs.18,750/- Plus Grade Pay-Rs.6600/-and N.P.A. to which they are entitled.”
Briefly stated, the facts of the case are that the applicant was appointed as Senior Resident (SR) in Department of Pathology with respondent No.1 on ad hoc basis for a period of 89 days w.e.f. 25.02.2014 to 24.05.2014. The term of the applicant was extended from time to time after 27.09.2016.
The applicant vide her application dated 27.09.2016 informed the respondents that she had been advised bed rest due to her delivery (expected in November, 2016) to which she did not receive any formal response. The applicant states that it was only when she joined back her department on 23.03.2017 and sought an experience certificate that she learnt that her tenure with respondents has been shown only upto 27.09.2016. The applicant has impugned the experience certificate dated 13.04.2017 given by respondent No.1 showing her experience tenure from 25.02.2014 to 27.09.2016, by discounting the period for maternity leave.
In the counter, the respondents states that grant of maternity leave is not applicable in the case of contractual/ad hoc employees. They submit that the guidelines for grant of maternity leave/miscarriage leave to Resident Doctors (SRs/JRs/SR(Ad hoc) & JR (Ad hoc) etc. clearly stipulate that:-
“As per Section 5(2) of Maternity Benefit Act, 1961, no woman shall be entitled to maternity benefits unless she has actually worked in the establishment of the Employer from whom she claims maternity benefits for a period not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.”
Heard both the counsels for some time. The learned counsel for the applicant stated that as per Annexure A-9 issued by the respondents on 16.12.2016, the name of the applicant (Deepasha Garg) has been shown as being on the rolls of the respondents w.e.f. 25.02.2014 till date i.e. till the date of issue of the said letter (16.12.2016). He also drew my attention to Annexure A-4, which is an Office Order dated 26.09.2016, at Serial No.7 of which the name of the applicant figures. In the column previous extension the period shown is 24.05.2016 to 20.08.2016 and proposed period of extension has been shown as 23.08.2016 to 27.09.2016. The learned counsel tried to make out a case that this is the method of granting extension which is being followed by the respondents, and that the applicant has been on the rolls of the respondents continuously.
The learned counsel for the respondents Sh. A.K. Mittal stated that Department of Health and Family Welfare, Govt. of NCT of Delhi has issued guidelines )dated 14.03.2018) which specifically stated that:-
“As per Section 5(2) of Maternity Benefit Act, 1961, no woman shall be entitled to maternity benefits unless she has actually worked in the establishment of the Employer from whom she claims maternity benefits for a period not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.”
On going through the facts of the case, I find that the applicant’s services stood terminated w.e.f. 27.09.2016. The applicant has not been able to produce any appointment letter qua her subsequent to the one available at Annexure A-4 dated 26.09.2016. Since she was not in service of the respondents department after 27.09.2016, hence the question of grant or otherwise, of maternity leave, to her on account of her being an ad hoc employee, becomes an exercise in futility. Hence, the action of the respondents in limiting her experience with them from 25.02.2014 to 27.09.2016, in my view, cannot be faulted, since it is based on the documents produced and relied upon by the applicant herself. In view of the aforesaid, the O.A. lacks merit and is dismissed. No costs.