Maternity Leave Is Part Of Service Period, Must For A Woman To Be Real Mother: Madras HC [Read Order]

Almost a fortnight after the Kerala High Court upheld a woman’s fundamental right to dignity as a mother, the Madras High Court has now said it is the fundamental right of a lady to give birth to a child and nurture him and maternity leave period should be deemed to be the service period.

Justice N Kirubakaran has held that any rule or law which holds that maternity leave has to be excluded from the period of service is “null and void”, while emphasising on the importance of maternity leaves for proper rest post-delivery to enable a mother to become “real mother”.

“…it is not only the fundamental right of the lady to give birth to a child and also necessary for existence of mankind and without a lady, a child could not be born in the world. Even nature requires a child birth through a lady. When that is the position, the petitioner (a lady doctor in the instant case) cannot be denied the maternity leave and the period of maternity leave, which the petitioner availed, should not be kept apart or excluded from two years of service. Even in their two years of service, if maternity leave is sanctioned, the maternity leave period should be deemed to be the service period. Any rule or regulation which goes against the same is null and void,” said Justice Kirubakaran.

The court said so while granting relief to a lady doctor who was denied admission in a post-graduate course since she had gone on maternity leave during the mandatory two-year service period.

Justice Kirubakaran’s decision comes close after the decision of Justice A Muhamed Mustaque of the Kerala High Court holding: “A mother cannot be compelled to choose between her motherhood and employment. A woman employee is not expected to surrender her self-respect fearing action against her for not being able to attend duty for compelling family responsibility”.

In that case, the court has ruled against LIC dismissing a woman from service on the ground that she went on long leave to look after her daughter, who was a child with special needs.

In the case before Justice Kirubakaran, the petitioner had joined the service at Primary Health Care Centre, Sithurajapuram, Sivakasi Helath Unit District in March 2015.

She delivered a baby girl on July 4, 2015, and availed maternity leave from July 4, 2015, to January 3, 2016, re-joining duty on January 4, 2016, and completed two years of government service on March 19, 2017.

For getting admission to post-graduate course in Gynaecology, she wrote NEETPG 2017 and obtained 914.3927 marks in the said examination. 20 per cent incentive marks were added for service and she was placed at Rank No.776.

The petitioner then attended the counselling and was issued order to join Kilpauk Medical College on May 10, 2017, but was not relieved by the Deputy Director of Health Services stating that she had not completed two years of continuous service, as she had availed 180 days of maternity leave.

While hearing her petition, Justice Kirubakaran said, “Motherhood is common for all creatures, as it is evident from the love and affection and care shown by the mother of all creatures to their newborn. Not only the newborn, but the reborn mother also requires nurturing care, affection and proper rest, so that she could look after the child very well by feeding the child. There is no substitute for mother’s milk in the world and even the so-called “divine nectar” could not be equal to mother’s milk”.

“Unless good rest is available to the mother without any worry or pressure and other compulsions, it would not be possible for her to be a “real mother”. Anybody could take care of the mother, whereas it is only the mother, who could take proper care of the child. Therefore, it is the duty of the government or employer, whoever it may be, to grant sufficient and required maternity holidays for women government employees or workers during pre-delivery period and post delivery period, for the purpose of recuperation.”

The court also noted that when the Tamil Nadu government had “increased the maternity leave to 180 days with effect from May 16, 2011, then to 270 days from November 7, 2016… it is not understandable as to how the respondents refuse to treat the maternity leave availed by the petitioner herein as period of service which would enable her to complete the two year minimum period service to get post graduate medical admission”.

“No act or clause or rule/condition would take away the fundamental and human right of a lady to conceive and give birth to a child and the consequential benefits like maternity leave, if she is an employed woman,” said Justice Kirubakaran.

The court then held that the “admission granted by the respondents to the petitioner in Diploma in Gynaecology and Obstetrics for the academic year 2017- 18 would be valid for the next academic year 2018-19”.

It directed the government to “admit the petitioner in Diploma in Gynaecology and Obstetrics for the next academic year 2018-19, without the necessity of applying and writing the NEET examination 2018”.

The court also kept the petition pending for deciding on general issues regarding entitlement of a lady to conceive or procreate, avail maternity leave and posed several queries before the Centre, including making breastfeeding obligatory like in the UAE.