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Judgment
Sandeep Sharma, J
Being aggrieved and dissatisfied with the order dated 19.12.2024, issued under the signatures of Director, Technical Education Vocational & Industrial Training, Himachal Pradesh, whereby representation, having been filed by the petitioner, praying therein to grant paternity leave came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main relief:
“(i) That Annexure P-1 dated 05.08.2024, Annexure P-3 dated 12.08.2024, Annexure P-5 dated 30.09.2024 and Annexure P-7 dated 19.12.2024 may kindly be quashed and set aside and the respondents may kindly be directed to treat leave availed by the petitioner w.e.f. 31.07.2024 to 13.08.2024 as paternity leave for the petitioner.”
Precisely, the facts of the case, as emerge from the record are that on 04.08.2014, petitioner was engaged as Assistant Professor on tenure/period basis under Student Welfare Fund in respondent No.3/Institute. On 16.11.2021, services of the petitioner were brought on Government contract. On 19.04.2024, wife of the petitioner gave birth to a child. On 19.07.2024, services of the petitioner were regularized as Assistant Professor (ECL) in respondent No.3/Institute. After his being regularized, petitioner applied for paternity leave on 27.07.2024 to proceed w.e.f. 31.07.2024 to 14.08.2024, however, vide order dated 05.08.2024 (Annexure P-1), his request was rejected. On 06.08.2024, petitioner made another representation in the shape of an appeal by indicating the rule position, however, vide order dated 12.08.2024 (Annexure P-3), case of the petitioner was again rejected. Petitioner again made representation dated 13.09.2024 to respondent No.3, against the order dated 12.08.2024, but same was also rejected vide order dated 30.09.2024 (Annexure P-5), however, copy of rejection order was forwarded to the petitioner on 14.10.2024. Petitioner again represented to respondent No.2 on 11.11.2024, indicating entire sequence of events as well as annexing relevant rules and copy of judgment passed by Division Bench of this Court in CWP No.647 of 2020, titled as State of H.P. and Others Vs. Sita Devi, decided on 12.06.2023, whereby Division Bench of this Court dealt with the issue of maternity/paternity leave, however, respondents again rejected the case of the petitioner vide impugned order dated 19.12.2024 (Annexure P-7), stating therein that judgment pressed into service by the petitioner is not applicable in his case. In the afore background, petitioner has approached this Court in the instant proceedings, praying therein for relief, as has been reproduced hereinabove.
Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Adarsh Sharma, learned counsel representing the petitioner is that bare perusal of judgment passed in Sita Devi (supra) clearly reveals that every female and male employee, whether appointed on regular basis, contractual basis, ad hoc basis, tenure/temporary basis have a fundamental right to reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) to promote motherhood and child care under Article 21 Constitution of India read with Article 42 of the Constitution of India, but yet, respondents rejected the claim of the petitioner for grant of paternity leave.
Mr. Adarsh Sharma, learned counsel representing the petitioner further argued that when wife of the petitioner gave birth to child, petitioner was on contract, but at the time of his making application for paternity leave, he stood regularized. While inviting attention of this Court to FRSR Leave Rules, Part-III (Annexure P-6) (Available at Page No.23 of the paper-book), specifically Rule 8 i.e. Regulation of Claim to Leave, Mr. Sharma, learned counsel representing the petitioner stated that a Government servant’s claim to leave is regulated by the rules in force at the time, leave is applied for and granted. He stated that since petitioner applied for paternity leave after his being regularized, plea set-up by respondents that he being a contractual employee could not have applied for paternity leave is not sustainable. While referring to Rule 43-A of afore Rules, Mr. Sharma, learned counsel representing the petitioner, stated that a male Government servant (including an apprentice) with less than two surviving children, may be granted paternity leave by an authority competent to grant leave for a period of 15 days, during the confinement of his wife for childbirth, i.e. up to 15 days before or up to six months from the date of delivery of child. He stated that since, in the case at hand, petitioner applied for paternity leave on 27.07.2024, i.e. well within the period of six months from the date of delivery of child, prayer made on his behalf, otherwise could not have been rejected.
To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while referring to the reply filed by the respondents, vehemently argued that services of the petitioner were taken over from Students Welfare Fund to Government contract vide notification dated 16.11.2021, as per Policy of the State Government, notified on dated 03.10.2015, as such, he joined the post of Assistant Professor (ECL) at Atal Bihari Vajpayee Government Institute of Engineering and Technology, Pragtinagar, District Shimla, Himachal Pradesh and signed a contractual agreement containing condition No.(iii) relating to the leave permissible to the employee (Annexure R-1). He stated that since contract signed by the petitioner nowhere talks about paternity leave, no illegality can be said to have been committed by the respondents while rejecting the claim of the petitioner qua paternity leave. While referring to the judgment pressed into service by learned counsel representing the petitioner, Mr. Rajan Kahol, learned Additional Advocate General, stated that observation, if any, made in the same is qua the petitioner in that case only and same cannot be applied in each and every case, including present one. He further stated that since child was born during the period when petitioner was on contract, he otherwise could not have been granted paternity leave.
Having heard learned counsel representing the parties and perused material available on record, this Court finds that when wife of the petitioner gave birth to child, services of the petitioner were on contract basis, but at the time of his applying for paternity leave, he stood regularized as Assistant Professor (ECL) in respondent No.3/Institute. Admittedly, petitioner applied for paternity leave on 27.07.2024, however, such prayer of him was rejected on 05.08.2024. True it is that at the time of delivery of child, petitioner was not a regular employee, but admittedly, when he applied for paternity leave, he stood regularized. If it is so, action of respondents, in denying paternity leave, cannot be said to be valid. At this stage, it would be apt to take note of Rules 8, 9 & 43-A of FRSR Leave Rules, Part-III, which read as under:
“8. Regulation of claim to leave
A Government servant's claim to leave is regulated by the rules in force at the time the leave is applied for and granted.
Effect of dismissal, removal or resignation on leave at credit
(1) Except as provided in Rule 39 and this rule, any claim to leave to the credit of a Government servant, who is dismissed or removed or who resigns from or resignation.
(2) Where a Government servant applies for another post under the Government of India but outside his parent office or department and if such application is forwarded through proper channel and the applicant is required to resign his post before taking up the new one, such resignation shall not result in the lapse of the leave to his credit.
(3) A Government servant, who is dismissed or removed from service and is reinstated on appeal or revision, shall be entitled to count for leave his service prior to dismissal or removal, as the case may be.
(4) A Government servant, who having retired on compensation or invalid pension or gratuity is re-employed and allowed to count his past service for pension, shall be entitled to count his former service towards leave.
43-A. Paternity leave
(1) A male Government servant (including an apprentice) with less than two surviving children, may be granted Paternity Leave by an authority competent to grant leave for a period of 15 days, during the confinement of his wife for childbirth, i.e., up to 15 days before, or up to six months from the date of delivery of the child.
(2) During such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(3) The Paternity Leave may be combined with leave of any other kind.
(4) The Paternity Leave shall not be debited against the leave account.
(5) If Paternity Leave is not availed of within the period specified in sub-rule (1), such leave shall be treated as lapsed.
NOTE. The Paternity Leave shall not normally be refused under any circumstances.”
Rule 8 of afore Rules clearly provides that a Government servant’s claim to leave is regulated by the rules in force at the time the leave is applied for and granted. In the case at hand, petitioner had applied for paternity leave on 27.07.2024, by which time, he stood regularized. Similarly, Rule 43-A, as reproduced hereinabove, clearly reveals that a male Government servant (including an apprentice) with less than two surviving children, may be granted paternity leave by an authority competent to grant leave for a period of 15 days, during the confinement of his wife for childbirth, i.e. up to 15 days before or up to six months from the date of delivery of child. Since in the case at hand, wife of the petitioner delivered child on 19.04.2024, he could avail paternity leave of 15 days before birth or up to six months from the date of birth of the child. In the instant case, petitioner applied for paternity leave on 27.07.2024 for the period 31.07.2024 to 14.08.2024, which was well within the period of six months, as provided in Rule 43-A of FRSR Leave Rules, Part-III.
If the judgment passed by Division Bench of this Court in Sita Devi (supra) is read in its entirety, this Court is persuaded to agree with Mr. Adarsh Sharma, learned counsel representing the petitioner, that no distinction could have been made by the respondents inter se regular employee or contractual employee, especially while considering the prayer made on behalf of the petitioner for grant of paternity leave. At this stage, it would be apt to take note of following Paras of afore judgment, which read as under:
“13. The object of ILO to conduct the survey was to promote motherhood and child care as well as gender equality. Every female employee and male employee whether appointed on regular basis, contractual basis, ad hoc basis, tenure/temporary basis have a fundamental right to reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) to promote motherhood and child care under Article 21 Constitution of India read with Article 42 of the Constitution of India.
In Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224 (supra), the Hon'ble Supreme Court held that the provisions of Maternity Benefit Act, 1961 entitled maternity leave even to women engaged on casual basis or on muster roll basis daily wage and not only those in regular employment. It is further held that the provisions of the Act in this regard are wholly in consonance with the Directive Principles of the State Policy as contained in Articles 39, 42 and 43 of the Constitution of India.
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A learned Division Bench of this Court in a judgment authored by one of us (Justice Tarlok Singh Chauhan, J.), in Sushma Devi vs. State of H.P. & Ors. 2021 (2) SLC 923, extended the benefit of maternity leave to a contractual employee who had begotten the child through surrogacy.”
This Court has no doubt that the aforesaid decision is in rem and not in personam. Division Bench has clarified the legal position in favour of female/male employees reiterating that every female employee and male employee, whether appointed on regular basis, contractual basis, ad hoc basis, tenure/temporary basis has a fundamental right to reasonable duration of maternity leave as well as paternity leave, child care leave (CCL) to promote motherhood and child care under Article 21 of Constitution of India read with Article 42 of the Constitution of India. In view of aforesaid legal position, action of respondents in denying paternity leave to the petitioner is not sustainable.
Consequently, in view of the above, present petition is allowed. Impugned orders dated 05.08.2024 (Annexure P-1), 12.08.2024 (Annexure P-3), 30.09.2024 (Annexure P-5) and 19.12.2024 (Annexure P-7) are quashed & set-aside. Respondents are directed to treat the leave availed by the petitioner w.e.f. 31.07.2024 to 14.08.2024 as paternity leave.
Before parting, this Court, taking note of the fact that issue of maternity leave to female contractual employees has been already addressed by the State by issuing notification in this regard, directs the respondents/State through Chief Secretary to the Government of Himachal Pradesh to incorporate provision for grant of paternity leave to male contractual employees in the relevant rules, so as to curtail litigation in this regard. Learned Additional Advocate General to communicate this order to the quarter concerned and file compliance in this regard within two months from today.
The present petition is disposed in the above terms, so also the pending miscellaneous application(s), if any.