ASOPA, J. - (1.) BY this Writ petition, the petitioner has challenged the order dated 8. 6. 2006 whereby the respondent No. 4 has directed that as per circular dated 23. 7. 04, employees working on consolidated/fixed salary, are not entitled for maternity leave.
(2.) THE facts in brief of the case are that the petitioner was appointed on 1. 7. 2000 under R. 27 of the Rajasthan Medical and Health Sub-ordinate Services Rules, 1965 as A. N. M. on consolidated salary of Rs. 3500/- on temporary basis till regularly selected candidates are available. THE said consolidated amount has been increased subsequently to Rs. 4500/ -. It is stated in the writ petition that the State Government cannot discriminate in the matter of grant of maternity leave between the regular and temporary employee. The submission of counsel for the petitioner is that impugned order dated 8. 6. 2006 and circular dated 23. 7. 04 are discriminatory in nature making the distinction between temporary employee working on consolidated salary and temporary employee working on regular basis as well as regular employee. He further submits that as per Maternity Benefit Act, 1961 even the casual employees are entitled for the same and petitioner's case is better than casual employees. The counsel for the petitioner submits that the case of the petitioner is covered by the judgment reported in 2005 (5) RDD 1144 (Raj.) Smt. Neetu Choudhary vs. State of Rajasthan and Ors. wherein it has been held that such benefit cannot be denied to the female employees merely on the count of the mode of payment of wages. The counsel for the petitioner has also placed reliance on AIR 2000 SC 1274 Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and Anr. wherein the Hon'ble Supreme Court has held that maternity benefits are available to the permanent/muster roll female employees. The submission of Addl. Government Advocate Mr. Khangarot is that Rule 103 of R. S. R. is not applicable on the Government servant working on consolidated basis and the circular imposing restriction for grant of maternity leave to such person is legal and justified. The counsel for the respondent has not denied the fact that as per the Maternity Benefit Act (53 of 1961), casual female employees are also entitled for maternity leave but as per definition clause in Sec. 3 (d) of the ``employer" and 3 (e) of "establishment" the said provisions are not applicable in case of Government servant.
(3.) I have gone through the contents of the writ petition and considered the rival submissions made by the counsel for the parties. Paras 8 & 9 of Neetu Choudhary's case (supra) containing reproduction of Rule 103 of R. S. R. and discussion on the circular dated 25. 2. 1955 are as follows: " 8. Rule 27 of the Rules of 1965 empowers the Government or the authority competent to make appointments to the posts under the Rules of 1965 on urgent temporary basis. The petitioner was admittedly appointment under rule 27 of the Rules of 1965. Rule 103 of the Rules of 1951 pertains to maternity leave which reads as under:- " 103. Maternity leave:-A competent authority may grant "maternity Leave" to a female Government Servant thrice during the entire period of her service. However, if there is no surviving child even after availing of it thrice, Maternity Leave may be granted on one more occasion. The maternity leave may be allowed on full pay for a period which may extend upto the period of 90 days from the date of its commencement. NOTe Maternity leave under this rule may also be granted in cases of Miscarriage, including abortion, subject to the conditions that:- (i) the leave does not exceed six weeks, and (ii) the application for the leave is supported by a certificate from the Authorised Medical attendant. Government of Rajasthan's Decision: 1. Maternity leave is also admissible to temporary female Government servants under this Rule. 2. Maternity leave is not admissible in case of incomplete abortion. " Clarification" `abortion' does not include `threatened abortion' and maternity leave cannot be granted in the case of threatened abortion. " 9. The Government of Rajasthan under its order No. F. 12 (1)F. 11/54 dated 25. 2. 1955 declared the temporary female Government servants entitled for maternity leave. In view of this decision of the Government of Rajasthan the petitioner being a temporary female Government Servant is entitled for the maternity leave under Rule 103 of the Rules of 1951. Such benefits cannot be denied to the petitioner merely on the count of the mode of payment of wages. The petitioner is working with respondents on urgent temporary basis and her status remains unchanged irrespective of the mode of payment of salary. In view of provisions of Rule 103 of the Rules of 1951 and decision of Government of Rajasthan dated 25. 2. 1955 the petitioner is entitled for maternity leave. The order dated 30. 10. 2001 cannot be made applicable upon the petitioner as she is working in temporary capacity though getting consolidated wages. " Para 11 and 12 of the Supreme Court judgment in Municipal Corporation Delhi (supra) are as follows: " 11. The Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner-Municipal Corporation. But the benefit is not being made available to the women employees engaged on muster roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily wage basis. " " 12. Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of the Act, Section 3 contains definitions. The word ``child'' as defined in Section 3 (b) includes a `still-born' child. "delivery" as defined in Section 3 (c) means the birth of a child. "maternity Benefit" has been defined in Section 3 (h), which means the payment referred to in sub-section (1) of Section 5, "woman" has been defined in Clause (o) of Section 3 which means "a woman employed, whether directly or through any agency, for wages in any establishment. " "wages" have been defined in Clause (h) of Section 3 which provides, inter alia, as under: " Wages means all remunerations paid or payable in cash to a woman. " Section 5 provides, inter alia, as under: " 5. Right to payment of maternity benefit- (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceeding the day of her delivery, the actual day of her delivery and any period immediately following that day. Explanation- For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rates of wages fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest. (2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery. . . . . . . . . . . . . . . . Explanation-For the purpose of calculating under this sub- section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. (3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks which not more than six weeks shall precede the date of her expected delivery. " ;