Dr. Priyanka Amonkar., v. The State of Goa, Thr. the Secretary (Health) and 2 Ors.,

ORDER Ex-post-facto sanction is hereby accorded to Dr. Priyanka Amonkar, Senior Resident in Department of Paediatrics, Goa Medical College for grant of Maternity Leave without pay for a period of 180 days w.e.f. 18/1/2016 to 15/7/2016, with permission to prefix 17/1/2016 being Sunday, Dr. Priyanka Amonkar, Senior Resident availing Maternity Leave shall work for an extra period equivalent to the period of Maternity Leave availed by her, after completion of three years of Senior Residency, in view of Notification No.13/138/88-11-PHD dated 19/6/2013.

¶20In Deepika Singh v. Central Administrative Tribunal And Ors.; (2023) 13 SCC 68, the Hon'ble Supreme Court has advanced its view on the legislative intent that is espoused by the Maternity Benefits Act, 1961. A portion of the judgment has been extracted hereunder: " 19. Sub-section (1) of Section 5 confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the

period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Sub-section

(3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions have been made by Parliament to ensure that the absence of a woman away from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for that matter for the period during which she should be granted leave in order to look after her child after the birth takes place.

¶21The 1961 Act was enacted to secure women's right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire. In MCD v. Female Workers (Muster Roll)15 a two-Judge Bench of this Court placed reliance on the obligations under Articles 14, 15, 39, 42 and 43 of the Constitution, and India's international obligations under the Universal Declaration of Human Rights, 1948 ("UDHR") and Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") to extend benefits under the 1961 Act to workers engaged on a casual basis or on muster roll on

daily wages by the Municipal Corporation of Delhi. The Central Civil Services (Leave) Rules, 1972, it is well to bear in mind, are also formulated to entrench and enhance the objects of Article 15 of the Constitution and other relevant constitutional rights and protections."

¶22On perusal of the observations of the Hon'ble Supreme Court reproduced hereinabove, it is clear that the Maternity Benefits Act, 1961, was enacted with a multi-faceted approach towards protection to women in the course of their pregnancy and beyond. It is pertinent to note that with regards to the Central Civil Services (Leave) Rules, 1972, the Hon'ble Supreme Court has opined that the same have been framed with a view to advance the object and protection under constitutional rights and protections.

¶23In MCD v. Female Workers (Muster Roll), (2000) 3 SCC 224, the Hon'ble Supreme Court has opined that applicability of the provisions of the Maternity Benefits Act, 1961 would encompass benefits granted to female workers on the muster roll. The Hon'ble Supreme Court ruled that no distinction could be drawn between women that were employed on a regular basis as opposed to women who were on the muster roll on daily wage basis in terms of the

benefits guaranteed under the Act. The relevant paragraph of the judgement has been extracted hereunder: "27. The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on casual basis or on muster roll on daily-wage basis." (emphasis supplied)

¶24In light of the ratio laid down in the aforementioned authorities, it is clear that a denial of benefit to the petitioner on the ground that the appointment of the petitioner was temporary in nature is illegal and unfair.

¶25In Dr. Kavita Yadav v. Secretary, Ministry of Health and Family Welfare Department and Others ((2024) 1 SCC 421), the

Hon'ble Supreme Court considering the language of section 27 of the Maternity Benefit Act, 1961, noted that as the semantic implication overrides any agreement or contract of service inconsistent with the Maternity Benefit Act, 1961, the employer could not use any rules framed by them in the exercise of their executive powers to restrict the petitioner's entitlement to maternity benefit. The Hon'ble Supreme Court concluded that the Maternity Benefit Act, 1961, creates a fiction of continued employment by treating the women to be in employment solely to avail her maternity benefits entitlement.

¶26A perusal of the contents of Section 27 of the Maternity Benefit Act, 1961, as reproduced hereunder is useful:

¶27Effect of laws and agreements inconsistent with this Act.- (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act: Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matters which are more favourable to her than those to which she would be entitled under this Act,

the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act.

¶27Section-27 of the Maternity Benefit Act, 1961 states that the provisions contained in the Act will prevail over any laws and agreements that are inconsistent therewith. Therefore, this court finds itself compelled to hold that maternity benefits under the Maternity Benefits Act, 1961, be granted to the petitioner notwithstanding the impugned rules. Submissions made to state that the petitioner would be precluded from claiming benefits under this Act in view of any agreed-upon terms of appointment in effect would not survive at the threshold of this Section. The Petitioner cannot be, in any terms, be denied of the protection as envisaged by this Act.

¶28The petitioner in support of their contentions placed reliance upon the ruling of a Division Bench of this Court in Archana

Dahifale v. State of Maharashtra (2019 (2) Mh. L.J. 697). The ratio of the judgment propounds upon the principles that dictate the grant of maternity benefits and holds that benefits under the Maternity Benefits Act, 1961, cannot be denied under the defense that an employee's appointment is ad-hoc or temporary in nature. Further no such differentiation cast upon a female employee based on the nature of the employment as temporary can prohibit them from seeking benefit under the benevolent intent of the Maternity Benefit Act, 1961.

¶29Without prejudice to the applicable rules, it is clarified that regardless of whether the employment is permanent or temporary and notwithstanding any rule to the contrary contained under rules framed in exercise of executive power, the benefit of maternity leave is a legislative mandate as clarified by the Hon'ble Supreme Court in a myriad of pronouncements that will override any such rule.

¶30The petition is partly allowed in terms of prayer clauses (b) and (c).

¶31Rule is partly made absolute in aforesaid terms. No order as to cost.

NIVEDITA P. MEHTA, J. M. S. KARNIK, J. Signed by: SHAKUNTALA ZALMI Designation: Personal Assistant Date: 07/03/2025 14:21:38

shakuntala IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 830 OF 2016 Dr. Priyanka Amonkar, Age 29 years, Indian National, r/o 11/F-2, Kamat Classic, Phase IV, Tonca, Caranzalem, Panaji, Goa, 403 002 ...PETITIONER VERSUS 1. The State of Goa, Through the Secretary (Health), having Office at Secretariat, Porvorim, Goa. 2. The Dean, Goa Medical College, Bambolim, Goa. 3. The Additional Secretary (Finance), Government of Goa, Secretariat, Porvorim, Goa. ... RESPONDENTS Mr. Kabir Sabnis, Advocate for the Petitioner. Mr. Prashil Arolkar, Additional Government Advocate for Respondents. CORAM:- M. S. KARNIK & NIVEDITA P. MEHTA, JJ. DATED :- 04th March, 2025 JUDGMENT (Per Nivedita P. Mehta, J.) 1. Rule. Rule is made returnable forthwith. With the consent of 2025:BHC-GOA:363-DB parties heard finally. 2. The petitioner has approached the Court seeking the following reliefs which are reproduced as under: a) Grant a writ of certiorari or a writ in the nature of certiorari or appropriate writ, order or direction quash and set aside the Goa (Appointment to the post Residents in the Goa Medical College) (Second Amendment) Rules 2013 (impugned rules) to the limited extent that said impugned rules provides for maternity leave without pay; b) Grant a writ of certiorari or a writ in the nature of certiorari or appropriate writ, order or direction to quash the Order dated 19.02.2016 to the limited extent that it grants "unpaid" leave to the Petitioner; c) Grant a writ of mandamus or writ in the nature of mandamus or appropriate writ, order direction to the respondents to pay to the Petitioner her salary during the Maternity leave period i.e. from 15.07.2016. FACTS: 3. The petitioner herein, Dr. Priyanka Amonkar is a medical doctor with a post-graduate degree in Pediatrics granted by respondent no.2. At the time of admission, the petitioner signed an agreement which as per Clause 1 stipulated that on completion of her education, she shall serve as junior/senior/resident/medical officer or in any other capacity with respondent no.2 for a three-year period commencing within six months of the completion of her degree. The petitioner completed her postgraduate degree on 27.05.2013. Subsequently, on 18.07.2013, the petitioner received an order of temporary appointment from respondent no. 2 and joined as a Senior Resident in the Department of Pediatrics. 4. In January 2016, the petitioner applied for maternity leave for 6 months. On 19.02.2016, the petitioner was granted ex-post facto sanction of maternity leave for 180 days from 18.01.2016 to 15.07.2016. The order specified that the maternity leave was without pay. Upon the petitioner's inquiry with respondent no. 2 concerning the nature of her leave as leave without pay, respondent no. 2 informed her of the passing of Goa (Appointment in the post Residents in Goa Medical College) (Second Amendment) Rules, 2013, notified on 19.06.2013 by the Official Gazette of Government Goa. Further, the order specified that the petitioner shall work for an extra period equivalent to her maternity leave after completing the three years as a Senior Resident. 5. Aggrieved by this, the petitioner, by way of the instant Writ Petition has sought relief against the orders issued under the amended Act. A challenge to the insertion of clause (g), clause (h) and clause (i) of Goa (Appointment in the post Residents in Goa Medical College) (Second Amendment) Rules, 2013, (hereinafter referred to as impugned rules) constitutes the basis of this Writ Petition. The petitioner submit that the impugned rules are perverse, illegal and arbitrary for the reasons considered hereunder. REPLY OF THE RESPONDENT 6. It is contended by the respondents, that the nature of the appointment of the petitioner was in the nature of a temporary appointment vide letter dated 18.07.2013. As a natural consequence of this, Senior Residents for a tenure of 3 years are treated as temporary Government Servants (Group 'C') and governed by the Central Ci