TASNEEM FIRDOUS Vs. STATE
HIGH COURT OF JAMMU AND KASHMIR
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(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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