180 days maternity leave to ssa lady employee

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CWP No. 5142 of 2013 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CWP No. 5142 of 2013

Date of Decision: May 16 , 2013

Reena Singla

…..PETITIONER

VERSUS

State of Punjab and others …..RESPONDENTS

CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

PRESENT:Mr. D.S.Randhawa, Advocate,

for the petitioner.

Mr. Inder Pal Goyat, Additional Advocate General, Punjab,

for respondent No. 1.

Mr. Anupam Singla, Advocate,

for respondents No. 2 to 5.

AUGUSTINE GEORGE MASIH, J.

Petitioner, who is a Teacher, was appointed under

Sarav

Sikhiya Abhiyan Authority (hereinafter referred to as ‘SSA Authority’),

Punjab on contract basis on 28.01.2011 (Annexure P-1) by the

Director General School Education-cum-State Project Director, Sarav

Sikhiya Abhiyan Authority, Punjab-respondent No. 2. After fulfilling

the requisite conditions and formalities as per the appointment letter,

she joined at Government School Ghuman Kalan, District Bathinda

CWP No. 5142 of 2013 2

on 15.02.2011. She was transferred to Government Senior

Secondary School Gaggarpur-Eilpur, Tehsil Sunam, District Sangrur

and joined on 02.08.2011. Petitioner was further transferred to

Government Senior Secondary School Dirba, Tehsil Sunam, District

Sangrur where she joined on 23.11.2012 and continues as such. She

is working on annual contract basis and her contract is being

extended by the respondents on yearly basis.

Petitioner, prior to her joining as a Teacher under the

SSA Authority, Punjab, was a mother of a female child. During her

service, she became pregnant and delivery was expected in first

week of December, 2012. She applied for maternity leave and was

granted the same for 90 days which ended on 02.03.2013. She gave

birth to a male child on 05.12.2012. The son of the petitioner was not

keeping well and was admitted in hospital on 08.12.2012 and was

discharged on 11.12.2012. At the time of discharge, the doctor

advised breast feeding to the child for at least six months. Much

prior to the date of expiry of her maternity leave, she sent application

dated 06.02.2013 (Annexure P-4) to respondents No. 2 and 3 vide

registered post to grant her maternity leave up to 180 days in view of

Rule 8.137-A of Punjab Civil Services Rules Volume-I Part-I.

Reliance was also placed upon the circular dated 19.10.2012

(Annexure P-5) issued by the Director Education Department

(Secondary Education), Punjab, which dealt with entitlement of

different kinds of leave to the employees appointed on contract basis.

CWP No. 5142 of 2013 3

In the said letter, reference has been made to the Punjab

Government, Finance Department (Finance Personnel) Circular

Letter dated 25.12.2011, which clarified that under Rule 8.57 of the

Punjab Civil Services Rules Volume-I Part-I, employees appointed on

contract basis are entitled to different kinds of holidays. Appendix 16

of the Punjab Civil Services Rules Part-I Volume-II provides for model

terms regarding holidays of the employees, who have been

appointed on contract basis, but the same do not deal with maternity

leave. Reference has been made to Rule 8.133 to 8.138 of the

Punjab Civil Services Rules Volume-I Part-I, which deals with the

different kinds of leave to the temporary Government employees,

under which maternity leave for female employees for 180 days has

been provided under Rule 8.137-A. On the basis of this letter,

petitioner had sought extension of her maternity leave for 180 days.

When no decision was taken on the application submitted

by the petitioner for extension of her maternity leave up to 180 days

despite various efforts and visits made in this regard, she was

compelled to file CWP No. 3995 of 2013 in this Court praying for

decision on the representation submitted by the petitioner for

extension of her maternity leave. The said writ petition was disposed

of by this Court vide order dated 22.02.2013 directing respondent No.

2 to decide the representation of the petitioner dated 06.02.2013

within a period of one week from the date of receipt of certified copy

of the order. In compliance with the order passed by this Court,

CWP No. 5142 of 2013 4

respondent No. 2 proceeded to decide the same and rejected the

claim of the petitioner for extension of her maternity leave vide order

dated 01.03.2013 (Annexure P-7) by stating that the Punjab Civil

Services Rules are not applicable to the service conditions of the

petitioner as she was working on contract basis in SSA Society. This

society has framed its own regulations which govern the services of

its employees and have been incorporated in the contract of

appointment of the petitioner. As per the said regulations/instructions

of the SSA Authority, petitioner is only entitled to 90 days maternity

leave and not beyond that. The petitioner has, thus, approached this

Court challenging this order of rejection of her extension of maternity

leave.

It is the contention of the counsel for the petitioner that

the SSA Authority is a Central Government sponsored scheme of the

Ministry of Human Resource Development, Government of India.

The Manual on financial management and procurement has been

issued by the Department of Elementary Education and Literacy,

Ministry of Human Resource Development, Government of India. As

per para-2 of the said Manual, provisions outlined in the said Manual

are mandatory which empowers the concerned implementing society

to formulate Financial Rules and Regulations including the delegation

of financial powers for effective implementation of SSA Authority.

Regulations and procedure outlined in this Manual have to be

formally adopted by the Executive Committee and the Financial

CWP No. 5142 of 2013 5

Rules and Regulations framed in accordance with the provisions of

this Manual. As per para 30.1 (ii) (d), salary of teachers and their

service conditions should be similar to that of the Government School

teachers. He, on this basis, contends that when the service

conditions of the teachers have been mandated to be similar to that

of the Government School teachers, there can be no discrimination

between the teachers working in the SSA Authority under the SSA

Scheme and the teachers, who have been appointed on contract

basis by the State Government especially when this is a beneficial

legislation and the statutory Rules, which have been framed by the

State of Punjab granting maternity leave of 180 days, are in

consonance with the basic principles as laid under the Maternity

Benefit Act, 1961, which has been legislated to give effect to the

directive principles as laid down under Articles 39 and 42 of the

Constitution of India. He further placed reliance upon the decision of

the Government of India, according to which, Rule 43 (1) of the

Central Civil Services (Leave) Rules, 1972 has been modified to

enhance the maternity leave to 180 days from 135 days, which is in

consonance with the recommendations of the Sixth Central Pay

Commission relating to Maternity Leave and Child Care Leave.

Reliance has also been placed upon the Combined Fourth and Fifth

Periodic Reports of the Government of India in the Convention on the

Elimination of All forms of Discrimination against Women before the

United Nations, where in para-27, it has been stated that the

CWP No. 5142 of 2013 6

maternity leave for Government and Public Sector employees has

been increased from 135 days to 180 days. Government of India,

while submitting Children’s Alternative Report to UNCRC with Child-

Friendly Version of Government Report to UNCRC Committee, has

stated that maternity leave for Government employees has been

increased from 135 to 180 days. The scheme being a central

sponsored scheme of the Government of India, the benefit needs to

be extended to the employees of the SSA Authority, Punjab also. He,

on this basis, contends that both under the Central or the State

Rules, 180 days of maternity leave is provided and, therefore, the

benefit should be extended to the petitioner. Reliance has also been

placed upon the decisions of the Government of West Bengal,

Andhra Pradesh, Maharashtra, Tamilnadu and Jharkhand, who are

also running the SSA Scheme sponsored by the Central Government

where 180 days of maternity leave has been granted to the female

employees. On this basis, it has been contended by the counsel for

the petitioner that the writ petition deserves to be allowed.

On the other hand, counsel for respondents No. 2 to 5

submits that the SSA Scheme is an all India effort to universalize

elementary education by community ownership of the school system.

In Punjab, this scheme is being implemented through the SSA

Authority, Punjab. It is an autonomous and independent body laying

emphasis on the systematic community participation and creation of

an effective decentralized decision-making and program

CWP No. 5142 of 2013 7

implementation system for spread of elementary education. He

contends that the petitioner has been appointed as a teacher under

the SSA Scheme on contract basis and as per Clause 4 of the

appointment letter, it is clear that the policy, instructions and Rules of

SSA Authority, Punjab issued from time to time are applicable to the

petitioner during her service, which are binding upon her. Petitioner

having accepted the said terms and conditions, as laid down in her

appointment letter dated 28.01.2011 (Annexure P-1), cannot now turn

around to state that her claim would be covered under the Punjab

Civil Services Rules, which are not applicable to the employees

working under the SSA Authority. A policy decision dated 24.05.2011

(Annexure P-8) has been taken by the SSA Authority, Punjab,

according to which an employee working under the SSA is entitled to

3 months maternity leave, which has already been availed of by the

petitioner. Appointment of the petitioner is an annual contract, which

is renewed every year and is not having any permanent lien on the

post. In case, 6 months leave, as is claimed by the petitioner, is

granted to her out of the one year contract period, the entire purpose

for recruitment of the petitioner would be defeated which may lead to

defeating the very purpose, for which the scheme has been prepared

and is being implemented i.e. spreading of elementary education.

Reliance has been placed upon a Division Bench judgment of this

Court passed in LPA No. 302 of 2012 titled as Harjeet Kaur vs. State

of Punjab and others, decided on 21.08.2012 (Annexure R-1) to

CWP No. 5142 of 2013 8

contend that the Rules framed by the Government of Punjab are not

applicable to the SSA because it is a scheme formulated by the

Government of India. Accordingly, it is contended by the counsel that

the instructions issued by the Director Public Instructions (Secondary

Education) Punjab dated 19.10.2012 (Annexure P-5) as also the

Punjab Civil Service Rules relied upon by the petitioner for claiming

the benefit of extended maternity leave would not be applicable to the

service conditions of the petitioner. His further submission is that the

benefit, as has been provided under the Maternity Benefit Act, 1961,

which provides for 12 weeks maternity leave, has been complied with

as 90 days of maternity leave has already been sanctioned and

availed of by the petitioner. The mandate of the statute having been

adhered to, no further claim can be made by the petitioner, which is

not supported by the decision of the competent authority i.e. SSA

Authority, which is the employer of the petitioner.

Similar argument has been raised with regard to the nonapplicability

of the decision of the Government of India extending the

maternity leave to 180 days from 135 days. Counsel has referred to

a judgment passed by the Supreme Court in the case of Municipal

Corporation of Delhi vs. Female Workers (Muster Roll) and

another, 2000 (3) SCC 224 and a Division Bench judgment of this

Court in Mrs. Anima Goel vs. Haryana State Agricultural

Marketing Board, 2007 (1) SCT 738. On the basis of these

judgments, counsel contends that the petitioner having been granted

CWP No. 5142 of 2013 9

the benefit of the Maternity Benefit Act, 1961, the writ petition is

without merit and deserves to be dismissed.

I have heard the counsel for the parties and with their

assistance, have gone through the records of the case.

Before proceeding to decide the case, the central

sponsored SSA Scheme needs to be looked into. Chapter-I of the

Manual on financial management and procurement dated 02.04.2004

issued by the Department of Elementary Education and Literacy,

Ministry of Human Resource Development, Government of India

gives an insight into the scheme in the introduction. It has been

stated that the Sarva Shiksha Abhiyan (SSA) is the comprehensive

and integrated flagship programme of Government of India, to attain

Universal Elementary Education (UEE) in the country in a mission

mode. This Abhiyan has been launched in partnership with the State

Government and Local Self Governments, with the aim to provide

useful and relevant education to all children in the 6-14 age groups

by 2010 which stands extended. SSA was launched in 2000-01 with

the objectives of (a) bringing all children in school, Education

Guarantee Centre, Alternative School, ‘Back-to-School’ camp by

2003; (b) all children complete five years of primary schooling by

2007; (c) all children complete eight years of elementary schooling by

2010; (d) focus on elementary education of satisfactory quality with

emphasis on education for life; (e) bridge all gender and social

category gaps at primary stage by 2007; and (f) universal retention

CWP No. 5142 of 2013 10

by 2010. The components of SSA include (a) preparatory activities

for micro-planning (b) appointment of teachers (c) opening new

primary and school facilities (d) opening of upper primary schools (e)

constructing additional classrooms, schools and other facilities (f)

free textbooks to all girls/SC/ST children (g) maintenance and repair

of school buildings (h) Teaching Learning Equipment for primary

schools on up-gradation of Education Guarantee Scale to regular

schools for setting up of a new primary school (i) TLE for upper

primary schools (j) school grant (k) teacher grant (l) teacher training

(m) opening of SIEMAT (n) training of community leaders (o)

provision for disabled children (p) Research, Evaluation, Supervision

and Monitoring (q) management cost (r) innovative activity for girl’s

education, early childhood care and education, interventions for

children belonging to SC/ST community, computer education

specially for upper primary level (s) setting up BRCs/CRCs and (t)

interventions for out of school children. Under para 1.5, the

responsibilities for implementation of the programme on the various

authorities have been specified.

Under para 1.6, it has been stated that at the State level,

the programme is to be implemented in a Mission mode by a State

Implementation Society registered under the Societies Registration

Act, 1860 with a General Council and an Executive Committee.

Under para 1.7, the district level implementations and the authorities

for doing so have been specified and under para 1.8, the authorities

CWP No. 5142 of 2013 11

at the village level have been mentioned. Para-2 gives the general

outlook of the scheme. Under para 2.1, it has been stated as

follows:-

“ 2.1 While the provisions outlined in this Manual

are mandatory, the State Implementing Society shall formulate

well-defined Financial Rules and Regulations including the

delegation of financial powers for effective implementation of

SSA. Rules, Regulations and procedures outlined in this

document should be formally adopted by the Executive

Committee and Financial Rules and Regulations framed in

accordance with the provisions of this Manual.”

Para 21 of this chapter deals with the appointment of

teachers, according to which the SSA is an additionality to States/UT

over and above the expenditure on elementary education already

being incurred. New teachers are appointed for opening of new

schools and additional teachers for existing schools. Norms have

been prescribed depending upon the Pupil Teacher Ratio (PTR). In

para 21.8, it is mentioned that the States have their own norms for

recruitment of teachers and payment of salary to new recruits. The

States will be free to follow their own norms as long as these are

consistent with the norms prescribed by NCTE. Paras 30 and 31 of

Chapter-III deal with the grant to the school and teachers, according

to which, it can be given to the Government schools and the

Government aided schools, Cantonment/Municipal Corporation

CWP No. 5142 of 2013 12

Schools, aided Madaras. The conditions have, however, been

imposed for release of such grant as as per proviso (d), salary to the

teachers and their service conditions should be similar to that of

Government school teachers. The norms, therefore, are normally

laid down under this chapter for release of grants under the scheme

to the concerned authority of the school.

Chapter III deals with the ‘Budgeting’ and paras 30, 31

and 32 deal with ‘School Grant’, ‘Teacher Grant’ and ‘Teacher

Training’ respectively. Under all these paras, it has been stated that

the grant is to be given to (i) Government schools; and (ii)

Government aided schools, Cantonment/Municipal Corporation

Schools, aided Madarsas. For grant to be given, conditions have

been specified. One of the conditions is that the salary of the

teachers and their service conditions should be similar to that of the

Government school teachers. This condition, as has been imposed

for granting the benefit under the SSA, would be applicable to the

teachers, who have been appointed under the SSA in the

Government schools also. When such a condition is applicable for

the teachers appointed under the Sarva Shiksha Abhiyan Scheme,

the same cannot be said to be applicable to the teachers, who have

been appointed in the Government schools. Thus, the salary of such

teachers and their service conditions are required to be similar to that

of the Government school teachers. Merely because a teacher has

been appointed on contractual basis under the Sarav Sikhiya

Abhiyan by the Sarav Sikhiya Abhiyan Authority and there is no

regular post available as their appointment is under the scheme,

CWP No. 5142 of 2013 13

would not entitle respondent No. 2 to deny the benefit, which is a precondition

for the release of funds to the teachers appointed under the

said scheme.

In view of the above position, it cannot be said that the

Rules/Regulations framed by the SSA Society of a State can be at

the sole discretion of the said society. No doubt that the society can

frame its own regulations to govern the services of its employees but

those cannot be inconsistent with the terms and conditions as that of

the Government school teachers. Even if the scheme is a central

sponsored scheme, the norms, as laid down by the Central

Government for its teachers/employees in the Government

organization, cannot be said to be inapplicable as the Division Bench

judgment of this Court in LPA No. 302 of 2012 titled as Harjeet Kaur

vs. State of Punjab and others, decided on 21.08.2012 has only held

that the statutory Rules governing the conditions of appointment of

the State would not be applicable to the employees of the scheme. It

has further been observed that it is always open to the employer to

fix better qualification than what is fixed in the Rules. The issue in

the said case was that the higher qualifications have been prescribed

under the SSA Scheme on the appointment to the post of Hindi

Masters than those provided under the Punjab State Education

Class-III (School Cadre) Service Rules, 1978. It is under these

circumstances that the observations were made by the Court with

regard to the non-applicability of the Rules. What has further

weighed in the mind of the Court was that the petitioner having

participated in the selection process and not having been selected

CWP No. 5142 of 2013 14

then came forth with the plea as had been raised before the Court.

Further, the provisions, as contained in Chapter-III of the

Manual on Financial Management and Procurement, were not

brought to the notice of the Court and, therefore, the Court had no

occasion to consider the same. The regulations, as framed by the

SSA Society cannot, thus, be inconsistent with the mandate of

manual, which clearly lays down that the service conditions should be

similar to that of the Government school teachers. It has further been

clarified that it would be similar to the teachers of the State

Government concerned where the SSA Society has been formulated

as per the procedure laid down in the manual. Accordingly, the

Rules, as applicable to the regular Government employees viz-a-viz

the service conditions having similarity with regard to the claims

would be applicable.

In the present case, the claim of the petitioner is limited to

the extent of grant of maternity leave of 180 days. It is true that

under the Maternity Benefit Act, 1961, a woman is entitled to

maternity leave of six weeks. However, there is no bar to the grant of

benefits over and above the said period, as specified in Section 5 of

the 1961 Act. The State of Punjab as well as the Central

Government having adopted the norm of 180 days to be the

maternity leave, the employees, who are working in the State of

Punjab under the SSA Society, would be entitled to the same benefit

of 180 days. As per Rule 8.137-A of the Punjab Civil Services Rules

Volume-I Part-I and the circular dated 19.10.2012 (Annexure P-5)

issued by the Director Education Department (Secondary Education)

CWP No. 5142 of 2013 15

Punjab, petitioner would be entitled to the grant of 180 days of

maternity leave. Even under Rule 43(1) of Central Civil Services

(Leave) Rules, 1972, maternity benefit has been now enhanced to

180 days from 135 days, which is in consonance with

recommendations of the Sixth Central Pay Commission relating to

maternity and child care leave. Government of India has itself, in its

report submitted before the United Nations in its combined fourth and

fifth periodic reports relating to Convention on the Elimination of All

Forms of Discrimination against Women, in para 27 stated that

maternity leave for Government and public sector employees has

been increased from 135 days to 180 days. In its Children's

Alternative Report to UNCRC, again the Government of India has

stated that the maternity leave for Government employees has been

increased from 135 to 180 days. By the Government of West

Bengal, Andhra Pradesh, Maharashtra, Tamil Nadu and Jharkhand,

where the SSA Scheme is being run, 180 days of maternity leave is

being granted to its employees. The scheme admittedly being a

Central Government sponsored scheme, the employees covered

under the said scheme would be entitled to the same benefits as the

employees of the Government of India as far as the maternity leave

is concerned because the said benefit to an employee is a beneficial

scheme, which is relatable to the public policy of the Government

and in consonance with the Articles 39 and 42, Part-IV of the

Constitution of India containing the directive principles of State

Policy. There can be no discrimination on this score with regard to

the grant of maternity benefits to a female employee especially when

CWP No. 5142 of 2013 16

the conditions of the scheme clearly lays down that the service

conditions should be similar to that of Government school teachers.

The judgments relied upon by the counsel for the respondents only

deal with a situation where no maternity leave was granted at all

there the Court proceeded to grant of benefit under the Maternity

Benefit Act, 1961 where six weeks of maternity leave stands provided

and accordingly, the said benefit was granted by the Courts.

In view of the above, the present writ petition is allowed.

The impugned order dated 01.03.2013 (Annexure P-7) passed by the

Director General School Education-cum-State Project Director, Sarav

Sikhiya Abhiyan Authority, Punjab-respondent No. 2 is hereby

quashed. Petitioner is held entitled to the grant of 180 days of

maternity leave.

Copy of this order be given dasti to the counsel for the

parties under the signatures of the Bench Secretary of this Court for

compliance forthwith.

(AUGUSTINE GEORGE MASIH)

May 16, 2013 JUDGE

pj

CWP No. 5142 of 2013 17