Judgment:
Pradeep Kant, J.
1. The petitioner who was appointed on the post of class-IV employee after selection and fulfilling the necessary formalities vide appointment order dated 4th June, 1993, has approached this Court claiming the relief of continuous service being allowed to her and for consideration of her case for regularizatlon/absorptlon in service. The third and very important question, which has been raised in the petition, is regarding the grant of maternity leave to the petitioner.
2. The petitioner was appointed on ad hoc basis by the District Judge. Lucknow and immediately on the receipt of her appointment letter dated 4th June, 1993 she was permitted to join her duties. The appointment letter specifically mentioned that service of the petitioner was only for three months or tilt regular selection is made whichever is earlier. The learned counsel for the petitioner submitted that the petitioner was appointed against a regular post in a clear vacancy which was filled through selection and looking to the good performance of the petitioner, her services were extended from time to time. The last such extension was granted up to 30th June. 1998 as is evident from Annexure-CA-1 filed along with the counter-affidavit by the opposite parties. The petitioner thus continued to work without any break and to the satisfaction of the authorities and her service period was extended from time to time as stated above. In the meantime, the petitioner moved an, application for grant of maternity leave to her on 16th April, 1998 as the tentative date of delivery suggested by the doctorwas 17th April, 1998 and bed rest with effect from 16th April, 1998. The said application for grant of maternity leave remained unattended by the District Judge and. therefore, the petitioner was compelled to discharge her duties till 19th April, 1998. However, when things became unbearable, the petitioner had to get herself hospitalized for delivery (which was imminent) on 20th April, 1998. The petitioner gave birth to a daughter on 20th April, 1998 and she was discharged from the hospital on 22nd April, 1998. The petitioner could not join her duties up to 15th July. 1998 and it was only on 15th July, 1998 that the Medical Superintendent of the hospital issued a fitness certificate to the petitioner and permitted her to join her duties but the District Judge did not respond to her request. The petitioner made various representations in this regard but no response was given to the representations with the result that she moved one representation dated 20th July, 1998 by registered post also. The petitioner had come to know that under oral instructions of the District Judge, the head clerk was directed not to take work from the petitioner as her services stood terminated. The petitioner was made to run from one officer to other for finding out the reason for not permitting her to work and also to have the copy of the order of termination which has been passed. The petitioner even was not served with any written order of termination of her services but she was not allowed to resume duties.
3. The further submission of the learned counsel for the petitioner is that the class IV employees who were appointed subsequent to the date of appointment of the petitioner have been allowed to continue but the petitioner has been discriminated and she has not been allowed to continue in service. The name of such employees who were appointed after the year 1993 in similar manner has been given in paragraphs 12 and 13 of the writ petition, namely. Lalit Kumar Srivastava, Uppal Singh Yadav and others.
4. Sri Urnesh Chandra, Senior Advocate who was assisted by Sri Vikas Singh advocate vehemently urged that the action of the District Judge in not allowing the benefit of maternity leave to the petitioner was discriminatory, arbitrary and was not reasonable. He further submitted that the petitioner had every right to continue in service firstly because persons junior to her were allowed to continue and secondly, no regularly selected candidate had joined in her place. In support of the submissions that the petitioner though being an ad hoc employee was entitled to have the benefit of maternity leave, reliance has been placed upon a case of Mrs. Savtt Ahuja v. State of Haryana and others. 1988 (1) SLR 735. In this case Rule-8.l37A of the Financial Civil Services Rules Vol.-I. Part-1 as was applicable to the employees of State of Haryana along with the clarification issued by way of instructions by the State of Punjab dated 31st August, 1983 was the subject-matter of adjudication before the Court. The aforesaid Rule provided that the female Government servant may be granted maternity leave on full pay for a period not ordinarily exceeding three months. By means of the instructions dated 31st August, 1983 in the shape of clarification, the State of Punjab clarified that the aforesaid provision of the Rule is uniformly applicable to permanent and temporary Government employees. Accordingly maternity leave may also be granted to such temporary Government employees who have been recruited on ad hoc basis for a limited period. The petitioner in that case was an employee of the State of Haryana and, therefore, an argument was raised by the respondents' counsel that the aforesaid instructions would not be applicable in case of the petitioner as the said instructions were issued by the Government of Punjab. The reliance was further placed on the instructions of State of Haryana wherein it has been clarified that maternity leave was not admissible to female Government employees appointed on ad hoc basis. The Court after considering thearguments raised by the parties observed as follows :
'Had the petitioner been appointed even temporarily but on regular basis, she would have been entitled to the privilege of grant of maternity leave as available to all other Government servants of the State of Haryana. The mere fact that the appointment was on ad hoc basis should not disentitle her to this privilege because such a disentitlement results in one and the only consequence that the services of the ad hoc female employee who is pregnant and has reached the stage of confinement are to be terminated. This would be highly unjust and virtually a discrimination against female ad hoc employees on the ground of sex which is vlolative of Articles 14, 15 and 16 of the Constitution. I find support for this view from the ratio of judgment of the Supreme Court in Rattan Lal and others v. State of Haryana and others, (1985) 3 SLR 548, I have, therefore, no doubt in my mind that the Instructions dated 10.8.1983 issued by the Government of Haryana, are discriminatory on the ground of sex and, therefore, ultra vires of the Constitution and cannot be sustained.'
5. The other case cited in support of the aforesaid submissions of the learned counsel for the petitioner is in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another, 2000 (2) SC 179. The Apex Court in this case upheld the order passed by the Industrial Tribunal by means of which a direction was issued to provide the benefit of the Maternity Benefit Act. 1961, whereby a direction was issued to the Management of the Municipal Corporation to extend the benefit of Maternity Act, 1961, to such muster roll employees who were in continuous service of the management for three years and who fulfilled the conditions set out in Section 5 of the Act. The Supreme Court rejected the contentions of theMunicipal Corporation that female muster roll employees of Delhi Municipal Corporation were not entitled to the maternity benefits on the ground that their services were not regularized or provisions of the Act were not extended to the Municipal Corporation. While considering the scope of Article 42 of the Constitution and also Section 2 of the Maternity Benefit Act and also various International covenants and treaties and the Universal Declaration of Human Rights adopted by the United Nations on 10th of December, 1948 including the covenants on the elimination of all forms of discrimination against . women particularly Article 11 of the said Convention directed that the muster roll female employees were entitled to the benefit of the maternity leave under the Maternity Benefit Act and for which the direction issued by the Industrial Tribunal should be complied with by Issuance of necessary notification and in the meantime the benefit under the Act shall be provided to the women (muster roll) employees of the Corporation who have been working with them on daily wages.
6. The learned counsel for the respondents Sri Alok Sinha placed reliance upon Para 153 of the Financial Hand Book Vol. 2. The said Rule, which was lastly amended on 8th July, 1981, reads as under :
'153. Maternity leave on full pay which a female Government servant, whether permanent or temporary, may be drawing on the date of proceeding on such leave may be granted to her by the head of the department or by a lower authority to whom power may be delegated in this behalf subject to the provisions mentioned at the end of this rule for a period which may extend :
(1) In case of confinement upto the end of three months from the date of the commencement of the leave.
(2) In cases of miscarriage, including abortion, up to a total period of six weeks on eachoccasion, provided that the application for leave is supported by a certificate from theAuthorised Medical Attendant.
Provided that such leave shall not be granted for more than three times during the entire service including temporary service.'
The rest of the Rule may not be relevant for the purpose of the present controversy and, therefore, the same is not quoted.
7. It may be noticed that the aforesaid Rule 153 as existed in Financial Hand Book Vol. II 1941-42 read as under :
'153. Maternity leave on full pay may be granted by the head of the department to female Government servants for a period which may extend up to the end of three months from the date of its commencement or to the end of six weeks from the date of confinement, whichever is earlier.'
The same was thereafter amended on 31st December, 1944 and after the word 'full pay' in this rule, the words which the Government servant may be drawing on the date of proceeding on such leave were Inserted. Again in the year 1978 Rules 153 and 154 were amended. Rule 153 reads as under :
'153. Maternity leave on full pay which a female Government servant, whether permanent or temporary, may be drawing on the date of proceeding on such leave may be granted to her by the head of the department or by a lower authority to whom power may be delegated in this behalf subject to the provisos mentioned at the end of this rule for a period which may extend :
(1) in case of confinement, upto the end of three months from the date of the commencement of the leave.
(2) in the cases of miscarriage, including abortion, upto a total period of six weeks on each occasion, provided thatthe application for leave issupported by a certificate fromthe Authorised MedicalAttendant :
Provided that such leave shall not be granted for more than three times during the entire service Including temporary service :
Provided further that no such leave shall be admissible until a period maternity leave granted under this rule.'
8. Lastly the rules were amended in the year 1981 as stated earlier. A perusal of the original rule and the present rule would indicate that originally the word female Government servant found mentioned in Rule 153 but this phrase was further elaborated by introducing the words whether permanent or temporary by means of the amendment of the year 1978. Later on by the amendment 1981. the substantive provision for grant of maternity leave remained the same and the status of the female Government servant indicated permanent or temporary female Government servant but certain clause, namely, second and third proviso to the aforesaid rule was newly added which provided that if any female Government servant has two or more living children, she shall not be granted maternity leave even though such leave may otherwise be admissible to her and further that no such leave shall be admissible until a period of atleast two years has elapsed from the date of expiry of the 1st maternity leave granted under this rule. The argument of the learned counsel for the State is that under the original provisions of Rule 153, the female Government servants were entitled to have the maternity benefit including maternity leave but this was further qualified by the terms permanent or temporary in the subsequent rules and since the petitioner was neither permanent nor a temporary Government servant, therefore, she would not be entitled to the benefit of maternity leave according to the rule. The submission is that while interpreting the rules,the Courts cannot enlarge the scope of the rule by adding words which do not find necessary for the effective implementation of the rule. The rule specifically mentioned 'female Government servant, whether permanent or temporary' and, therefore, ad hoc female Government servants or daily wagers cannot be extended the said benefit. The character and nature of all such appointments is different and different benefits and responsibilities are attached to such appointments. The privilege attached to the said Government servants who are permanent or temporary or the rights of a permanent or temporary Government servant are much more defined as compared to the rights of a person namely a female Government servant who is holding a post on ad hoc or daily wage basis. Such employees do not have any right to hold the post. The alternative submission of the learned counsel for the State is that even in case this Court comes to the conclusion that ad hoc female Government servants are also entitled for the benefit of maternity leave, then unless the rules are amended, the said benefit cannot be extended to the petitioner or such employees. The reliance has also been placed on the direction of the Supreme Court in the case of Municipal Corporation of Delhi (supra).
9. The arguments of the learned counsel for the State, if given a little thought would, mean a discrimination being created amongst female Government servants although their service conditions are the same but for the fact that some are permanent and some are working temporarily and some are appointed on ad hoc basis. The maternity benefit has to be extended to every woman irrespective of the fact as to in which capacity she has been employed by the Government. It is a natural phenomena in the life of every woman that such leave is necessary for her and denial of such a leave would not only be discriminatory but would also endanger her most satisfying and most sacred will of becoming amother simply because she chooses or is compelled to earn livelihood by joining Government service. The compulsions created by the Government by not allowing the maternity leave may result in deprivation of a woman from achieving the most pious feeling of being a mother. Rule 153 as it was originally Indicated did not create any discrimination between the female Government servants but it appears that some difficulty has arisen in extending the said benefit to temporary female Government servants and. therefore, the necessity arose to qualify the term female Government servant used in Rule 153. Consequently the amendment was introduced and the words 'female Government servants' were followed by the words 'whether permanent or temporary'. Whenever a phrase or some word is followed and is qualified by certain other phrases, it necessarily does not mean that it confines the definition only to the extent which has been mentioned in the following phrases. It may be noticed that such type of qualifying or clarifying clause has to be introduced for extending the meaning of the phrase which proceed such a clause. The words whether permanent or temporary explain the scope and definition of female Government servants and it cannot mean that they are confined to only permanent or temporary Government servants. The harmonious and meaningful construction of the aforesaid provision would mean that a female Government servant event though she may be permanent or temporary, i.e., irrespective of the nature of her appointment and the capacity in which she has been appointed would be entitled for maternity benefit. Any other interpretation given to such a rule can be discriminatory and would be violative of Articles 14, 15 and 16 of the Constitution of India. I find that the Punjab and Haryana High Court in the case of Savit Ahuja(supra) was considering almost exactly the same phrase namely 'the female Government servant, whether permanent or temporary'. in substance and observed that it would include the ad hoc female Government servant also. In the case of Forest Range Officers v. Mohd. Ali and others. (1993) Suppl. (3) SCC 627, the Apex Court while defining the words 'includes' in the definition under Section 2(f) of the Kerala Forest Act, held, it did not intend to exclude what would ordinarily and in common parlance be spoken of wood oil. The word wood oil used in the Act will require purposive interpretation drawing the context in which the words are used and its meaning will have to be discovered having regard to the intention and object, which legislature gives to subserve. Apart from this if a daily wager female employee is entitled for having the benefit of the Maternity Benefit Act. 1961, there is no reason to deprive the female Government servant who was appointed on ad hoc basis of the said benefit. The Apex Court has already pronounced the judgment which has been referred to above upholding right of daily wager female (muster roll) employee to get the benefit of Maternity Benefit Act. I am, therefore, of the view that non-grant of maternity leave to the petitioner on the pretext that Rule 153 of the Financial Hand book Vol. 2 does not permit such benefit to be extended to the petitioner, is not based on correct interpretation of the said provision. In case the interpretation given by the learned counsel for the State is given to the phraseology used in Rule 153, that would make the provisions liable to be declared ultra vires of Articles 14, 15 and 16 of the Constitution of India. It should be the earnest endeavour of the Court to protect the provision from being declared ultra vires either by reading down the provision or by making an harmonious and logical construction keeping in mind the aim and object ofthe provision for which it has been enacted. I, therefore, find that Rule 153 encompasses within Its scope, all female Government employees who may be working either as a permanent employee or as temporary employee or as ad hoc employee. Of course, if the ad hoc appointment is only for a limited, period the maternity leave may be granted only for the remaining period of service, In case the term of service is not extended, for any other reason whatsoever, but not solely because the female Government servant has gone on maternity leave. In the instant case the petitioner admittedly gave birth to a daughter and she remained confined in hospital under the medical advice. She had applied for maternity leave but that was neither granted nor rejected and when she became fit within the prescribed period of maternity leave under the rules, she presented herself for duty but she was not allowed to resume the duty. It may be noticed that the petitioner's term of appointment was extended on 30th June. 1998 and the petitioner after becoming fit within the stipulated period of leave as prescribed under the rules presented herself for duly on 15.7.1998 although she has applied for the leave on 16.4.1998, i.e.. during the subsistence of her period of service as extended by the District Judge. In these circumstances the refusal of leave though not by passing a positive order but at the same time by not granting the same, was not in accordance with law. The learned counsel for the respondents further submitted that even if the petitioner was entitled to maternity leave, she could not continue In service as the period of appointment came to an end on 30th June, 1998 and there was no extension granted to her in her services. It has further been stated In the counter-affidavit and urged by the learned counsel for the respondents that the petitioner has not applied for extension of her service tenure buthad only asked for resumption of her duties and had she applied for extension of her service tenure the matter would have been considered In that light. Such defence on behalf of the opposite parties clearly indicates that there was nothing against the petitioner for not permitting her to continue to work and in any case if she had not applied for maternity leave, then she would have continued even after 30th June, 1998 as was being done constantly. The argument of the learned counsel for the State that the petitioner being an ad hoc employee and her appointment having come to an end on 30th June. 1998 has no right to hold the post and she cannot claim continuity in service is also liable to be rejected as the petitioner's services have not been extended because firstly she has not applied for extension of her service and secondly because she has gone on maternity leave for which she was not entitled according to the opposite parties. Reliance has been placed upon the case of Director, Institute of Management Development U. P. v. Puspa Srivastava, 1993 LIC 2055. In this case, the Apex Court held that where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on ad hoc basis for more than a year. He cannot claim regularization on the basis that she was appointed on ad hoc basis for more than a year.
10. The Apex Court while making aforesaid observations directed that the services of that petitioner may be continued till the end of the calendar year on the same terms as spelt out in the order dated 1.9.1990. Of course. It would be open to the appellant to consider the regularization of her services should it so desire. In that event, this judgment will not stand In the way of such regularlsation.
11. The petitioner would not be entitled for regularisatlon simply because her term for appointment was extended from time to time unless there are rules to that effect and the continuous length of service gives her any right under such rule to claim regularisalion. The question still remains as to whether the action of the District Judge In not permitting the maternity leave to the petitioner was justified and supported by any law and that the non-extension of her period of service because of the petitioner going on maternity leave can be a ground for refusing her to allow extension or continuance in service. The terms of the appointment order said that the petitioner was being appointed for a period of three months or till regular selection is made. The incumbent is entitled to continue on the post till regular selection Is made even though condition of three months or any such period have been mentioned in the order of appointment. Reliance may be placed in the case of Rattan Lal and others v. State of Haryana and others, (1985) 4 SCC 43, for this proposition.
12. Admittedly no regular person had been appointed on the post, and therefore, the petitioner was entitled to continue till the regularly selected candidate had come and joined. It has come in the counter-affidavit filed by the State that at least two persons have been appointed on ad hoc basis In July. 1998. It is also a well-settled law that an ad hoc employee cannot be replaced by appointing another ad hoc employee. The petitioner has undisputedly had continuously worked for approximately five years. and has been ousted from service, because she went on maternity leave.
13. In view of the above, I hold that the petitioner was entitled for grant of maternity leave and the opposite parties are directed to grant the maternity leave to the petitioner in accordance with Rule 153 of the Rules and to pay her the salary/wages for the said period. It is further provided that in case no regularly selected candidate has been appointed in place of the petitioner.the petitioner shall be allowed to continue in service. In case any person who is junior to the petitioner namely, who has been appointed after the appointment of the petitioner on ad hoc basis is still continuing in service even then also the petitioner shall be allowed to continue in service.
14. The writ petition is allowed. No order as to costs.