Sham Sunder, J. - (1.) THE petitioner was appointed as Medical Officer on ad -hoc basis, in the State of Punjab for six months on 22.03.1976. On 10.04.1980, the services of the petitioner were regularized as Medical Officer, in P.C.M.S. -II. The services of the petitioner were governed by PCMS -II (Recruitment and Conditions of Service) Rules, 1943, and the Punjab Civil Services Rules. At the time of original entry into government service i.e. in the month of March, 1976, the petitioner was medically examined by the Standing Medical Board on 5.3.1976, and she was declared medically fit. The State of Punjab issued instructions on 9.9.1976, regarding the grant of maternity leave to women employees of the Punjab Government. The petitioner applied for maternity leave, from 1.7.1976 to 30.11.1976. The same was recommended by the Civil Surgeon, Sangrur, to the Director Health and Family Welfare, Punjab. Ultimately, she was granted maternity leave. She gave birth to her first child. The petitioner reported back for duty, after availing of maternity leave on 7.11.1976. She was granted the salary as per the provisions of Rules, for the period of his maternity leave. The petitioner lateron availed of study leave from 29.1.1982 to 31.12.1982 for doing diploma in Gynecology and Obstetrics during the sessions of 1982. Letter (annexure P -2) was issued by the Civil Surgeon, Sangrur, to the petitioner, that the maternity leave from 1.7.1976 to 6.11.1976 could not be granted to her, in accordance with Circular Letter No. 4285SH(3) -73/27201 dated 31.8.1973 and she was informed that she had been granted extraordinary leave for the said period. It was further directed vide letter (Annexure P -3) that recovery from the pay of the petitioner, for the period from 1.7.1976 to 6.11.1976 be made. It was further directed that annual increments be not granted to the petitioner, till she deposited the pay, for the period 1.7.1976 to 6.11.1976 in the Government Treasury. The petitioner challenged the said order (Annexure P2) by way of Civil Writ Petition No. 4650/1986, in this Court. At the motion stage, the Counsel for the State of Punjab made a statement, before this Court, that the impugned order had been withdrawn and consequently, the writ petition was dismissed, as having become infructuous, vide order dated 16.12.1986 (Annexure P -4). It was further stated that instead of implementing the judgment/order dated 16.12.1986, the respondents issued a show -cause notice dated 5.1.1987 (Annexure P -6) to the petitioners, as to why she be not granted extraordinary leave, for the period from 1.7.1976 to 7.11.1976, for which she was wrongly granted maternity leave. She was further directed to submit her reply to the show -cause notice within 21 days of the issue of communication. She was also asked that if she wanted a personal hearing, with the Director Health & Family Welfare, Punjab, she could do so, after obtaining permission. The petitioner filed reply dated 14.1.1987 (Annexure P7) to the said show cause notice. Thereafter, the Director Health & Family Welfare, Punjab, passed the order dated 23.06.1987 (Annexure P -9), treating the maternity leave from 1.7.1976 to 7.11.1976, wrongly granted to the petitioner, as extraordinary leave and ordered the recovery of the amount, already paid to the petitioner for the period aforesaid. Thereafter, the petitioner made a representation dated 23.02.1988 (Annexure P -10) that her case of maternity leave be decided like that of Dr. Chanchal Jain PCMS -II, service No. 1475. The impugned order dated 23.06.1987, passed by respondent No. 2, was stated to be illegal, arbitrary, discriminatory and against the principles of natural justice. When the order dated 23.06.1987 (Annexure P9) was not withdrawn, by the respondents, the instant petition for issuance of a writ of certiorari quashing the impugned order (Annexure P9) was filed.
(2.) THE respondents, in their joint written statement, admitted that the petitioner joined service on ad -hoc basis on 22.3.1976. Thereafter, her services were regularized. It was stated that she was medically examined on 5.3.1976, on her first entry into service. In the medical certificate, the Medical Board recorded that she had 10 weeks pregnancy. According to the Govt. instructions (Annexure P -3) the women candidates for recruitment to State services, who at the time of medical examination, on the first entry into Govt. service, are found to be pregnant of 12 weeks -standing, or over, are to be declared temporarily unfit, unfit the confinement was over. In other wards, such persons are not to be recruited to service even on ad -hoc basis, until the confinement was over. It was further stated that while submitting the application for grant of maternity leave, the petitioner furnished a Medical certificate dated 5.7.1976, wherein, it was recorded that she was having seven months pregnancy. This showed that she had intentionally mis -stated the facts in the first instance, at the time of her medical examination on 5.3.1976 by the Medical Board. It was further stated that she very well knew that, in case, she gave the correct information, about her pregnancy, which was more than 12 weeks, she would be declared temporarily unfit and would not be allowed to join duty till she was declared fit after her confinement was over. She, thus, tried to manipulate the facts, about her pregnancy, to her advantage. It was further stated that, thus, she cheated the respondents, and also played fraud with them. It was further stated that the maternity leave was neither due to the petitioner, nor sanctioned to her, by the competent authority. Infact, salary for the period from 1.7.1976 to 6.11.1976, had been wrongly paid to the petitioner, due to over -sight, in the absence of any sanction of the competent authority. It was further stated that the earlier order dated 13.06.1986 (Annexure P -2), granting extraordinary leave to the petitioner, for the aforesaid period, and for recovery of the amount paid to her, for this period wrongly, was withdrawn, when the petitioner filed writ petition No. 4650 of 1986, as no show -cause notice had been given to her, before passing such an order. It was also admitted that the earlier writ petition was, accordingly, dismissed as having become infructuous. It was further stated that thereafter a show cause notice was served upon the petitioner, and after obtaining her reply to the same, which was not considered to be satisfactory, the period aforesaid, was converted into extraordinary leave, and the amount which was wrongly paid to her, for the said period, was ordered to be recovered. It was further stated that the case of Dr. Chunchal Jain, was not similar to the case of the petitioner. It was further stated that Dr. Chanchal Jain appeared before the Medical Board, at the time of offer of adhoc appointment. She appeared before the Medical Board on 18.3.1977. She was declared medically fit, but she did not join as Medical Officer in PCMS -II upto 27.9.1977. It was further stated that the order dated 23.06.1987 (Annexure P9) is legal. It was further stated that it was passed in consonance with the principles of natural justice. I have heard the learned Counsel for the parties and have gone through the record of the case, carefully.
(3.) THE counsel for the petitioner, at the very outset, contended that the petitioner did not conceal any fact of her pregnancy, at the time of her medical examination, on her first entry into service. He further contended that she did not play any fraud with the department and, as such, she could not be penalized, for no fault of her. He further contended that once the earlier order, treating the period of maternity leave of the petitioner, as extraordinary leave, was withdrawn, by the respondents, resulting into dismissal of the writ petition, filed by her, as having become infructuous, subsequent order (Annexure P -9) could not be passed by the authorities concerned, as they were estopped from doing so. It was further contended that even, in the medical certificate, her pregnancy was shown to be of 10 weeks, and as such, as per the instructions (Annexure R -1), she was fit to join her duties. It was further contended that since the petitioner did not play any fraud with the respondents, nor did she conceal any fact at the time of her first entry into Govt. service, no recovery of pay could be ordered to be effected from her.;