TASNEEM FIRDOUS Vs. STATE
LAWS(J&K)-2006-4-10
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 19,2006

Tasneem Firdous Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE petitioner as "Rehbar -e -Taleem" in Middle School Yaripora of Anantnag District, applied for three months Maternity Leave on 06.07.2004 which was sanctioned only to the extent of one month without remuneration/honorarium. Aggrieved thereby, she challenges C.E.Os said order no.337 Edu of 2004 dated 16.06.2004 and seeks its quashment on the ground that it violates her constitutional, legal, and other rights. Materials appended with the memo of petition include relevant orders/certificates issued by different authorities.
(2.) IN reply, official respondents have inter alia pleaded that leave was sanctioned to petitioner in terms of Govt. order no. 337 of 2004 whereunder only 30 days maternity leave without honorarium was available to her, because she is not in regular employment of the Government, but on probation for a period of five years, after successful completion whereof, she would be entitled to claim regular appointment and thereafter only the maternity leave benefit under section 14 of J&K Civil Services (Leave) Rules 1979 would be available to her and presently she could not claim the said leave at par with regular Government employees etc. During course of arguments counsel for rival sides have reiterated the contents of their respective pleadings.
(3.) I have heard learned counsel and considered the matter. The fact that petitioner has delivered a baby on 09.06.04 in L.D. Hospital is not denied, nor that she applied for maternity leave for three months which was not allowed by concerned C.E.O who while acting under Government order no. 337 Edu of 2004 dated 16.06.2004 allowed only 30 days without any honorarium/remuneration. In admitted circumstances as such, the moot question that emerges for consideration is petitioners title to maternity leave at par with Govt. employees and the resultant validity of aforesaid Government order whereunder maternity leave of 30 days only is allowed to RTs. To start with , it would be appropriate to notice that under a scheme promulgated under the Government order no. 396 Edu of 2000 dated 28.04.2000 commonly known as "Rehbar -e -Taleem scheme" the Government chose to engage qualified local candidates for certain Government schools so as to assure full time attendance of teachers in schools. According to scheme, the R.Ts to be appointed from amongst a panel required to be prepared by the concerned Village Level Committee with approval of the concerned officers of Education Department and a committee headed by concerned Dy. Commissioner are initially engaged on monthly remuneration/honorarium of Rs.1500/ - with a stipulation that after putting in five years as such they would be entitled for appointment in regular cadre as teachers in the concerned schools. It appears that in the original scheme there was no provision regarding grant of casual/medical and earned leave etc which ultimately was provided for in June 2004 vide aforesaid order No. 337 of 2004, which is reproduced herein below verbatim: - "In government order no. 396 Edu of 2000 dated 28.04.2000 after the para relating to "Payment of Honorarium" the following shall be added. Entitlement of leave; A person engaged under the Rehbar -e -Taleem Scheme shall be entitled to: - i. 15 days casual leave in a calendar year with honorarium. ii. 30 days leave without honorarium on account of accident, serious illness and maternity in a calendar year. iii. The leave so availed shall not constitute a break in continuous engagement as such. This issue with the concurrence of Finance Department conveyed vide their U.O no. A/9(77) 340 dated 31.5.2004..." Thus, a person engaged as R.T under the scheme would besides 15 days casual leave per year with honorarium be entitled to 30 days leave on account of accident, serious illness, and maternity, but without any honorarium with a stipulation that the leave period would not constitute a break in the engagement. In terms of order, therefore, what appears to entitle RTs to 30 days leave would be either an accident, or serious illness, or maternity. Incidentally the order is too cryptic and short to have anything by way of a preamble, explanation, or appendix, which could reflect the considerations and features/factors, those have gone into making thereof; particularly with reference to maternity leave which has unusually be restricted to 30 days without honorarium/remuneration. There is also nothing in the said order nor has anything been brought forward to suggest as to what necessitated or occasioned deviation from the usual period available to female employees in case of maternity leave. It may be appropriate to notice the provisions of Rule 41(1) of J&K Civil Services (Leave) Rules 1979 at this stage, whereunder 135 days maternity leave is permissible to female employees alongwith 15 days to their male spouse in the following terms: - "A female Govt. Servant with less than two surviving children may be granted maternity leave by the authority competent to grant leave for a period which may extend upto 135 days from the date of its commencement. During such period she shall be paid leave salary equal to pay drawn immediately before proceeding on leave." In terms thus the maternity leave rule applicable to female RTs is materially different from the general rule above quoted; for which no explanation is forth -coming from any where.;


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