Delhi HC asks authorities to re-examine rule restricting maternity leave to two kids

New Delhi, Jul 23 (PTI) The government rule restricting the entitlement of a woman government employee to maternity leave to two children has come under the scanner of the Delhi High Court which has asked the authorities to re-examine the sustainability of the particular provision of CCS (Leave) Rules.

The high court questioned the authorities asking what is the fault of the third and the subsequent children who did not have any control over their birth. It said the rule makes the third and the subsequent children suffer deprivation of motherly care, which the first two children had received.

According to Rule 43 of the Central Civil Services (Leave) Rules, 1972, a female government servant is entitled to maternity leave for a period of 180 days if she has less than two surviving children.

The court said it would be "atrocious" to expect the third child to be deprived of motherly touch immediately post-natal and during infancy because Rule 43 expects the mother of that baby to report for official duties the very next day of delivery.

"It would be crucial to remember that physiological and physical changes coupled with psychological turbulence that a pregnant woman undergoes remain the same, be it the first two occasions of pregnancy or third one or any further thereafter.

"Besides, on examining the issue from the angle of child rights, we find that Rule 43 CCS (Leave) Rules creates an unreasonable distinction between rights of first two children born to a lady government servant and the third or the subsequent child, making the third and the subsequent child suffer deprivation of motherly care, which first two children had received," a bench of Justices Suresh Kumar Kait and Girish Kathpalia said adding that the third child, being completely helpless, it is the duty of the court to step in.

The bench was dealing with an appeal by the Delhi Police authorities challenging an order passed by the Central Administrative Tribunal (CAT) directing them to grant maternity leave to a woman constable with a third child.

The woman had two children from her first marriage before joining the force. The first marriage later dissolved and the two kids stayed with their father. She had a third child from her second wedlock but her application for maternity leave was rejected.

The authorities, including the Centre, defended the rule on the ground that the principle is based on public policy and family planning goals of the Central government.

It was argued that Rule 43 of CCS (Leave) Rules was enacted in tune with the two-child policy of the central government, aimed at population control.

The bench said though the two-child policy aimed at population control is a laudable policy and the court does not advocate to incentivise more than two children, the steps to disincentivise more than three children must be addressed to the parent and not the children.

"In order to achieve success in population control, the government may take any appropriate innovative steps in order to dissuade the citizens from giving birth to more than two children. But once a third child comes into existence even in the womb, her rights cannot be trampled over," the high court said.

Dismissing the appeal of the police authorities and upholding the tribunal's order, the court said it finds no reason to interfere with the "humane and progressive view" taken by the tribunal and it expects that the government authorities would re-examine the sustainability of Rule 43 of the CCS (Leave) Rules.

"…it is not the question of incentivising the lady government servant with the third and the subsequent maternity leave; it is the question of protecting rights of the third and the subsequent child to mother's touch immediately post natal and during infancy period, which is most crucial for their overall development – physical as well as psychological," the court said.

It added that prima facie, the classification of woman government servants, on the basis of the number of surviving children they have, lacks intelligible differentia.

The court made it clear that this was only a prima facie view as the vires of Rule 43 were not challenged before it.

The court observed that it is not just motherhood but also childhood which requires special attention and that women must be treated with honour and dignity at places where they work to earn a livelihood.

Whatever the nature of their job and the workplace, women must be provided all the facilities to which they are entitled, it said.

"Identity of a woman is often tangled within the patriarchal structure of a profit motivated enterprise which dares to see mothering or family responsibility remain subordinate to their interest. Complexity of the working environment as above is designed by an architect without adhering to rules of gender equity; often overwhelmingly to suit men," the bench said. PTI SKV SKV KSS KSS