Early Times Report
Jammu, Nov 7 :-The Central Administrative Tribunal (CAT), Srinagar Bench, has held that a woman employee cannot be denied maternity leave merely because she has a third child, directing the University of Kashmir to reconsider the claim of an Assistant Professor whose request for 180 days’ maternity leave was earlier turned down on the basis of a “two-child norm”.
The Bench of Member (Judicial) M.S. Latif and Member (Administrative) Prasant Kumar was deciding TA/062/128/2024 (earlier WP(C) No. 1069/2023), filed by Dr. Saima Jan, 36, Assistant Professor, Department of Linguistics, challenging two orders dated November 10, 2022 and January 4, 2023 by which the University rejected her request for maternity leave from June 10 to December 10, 2022 following the birth of her third child.
Dr. Jan, appointed on April 17, 2017, had earlier availed maternity leave for her first child born on December 9, 2018. During her second pregnancy, she tested Covid-positive in July 2020 and delivered while in quarantine at JLNM Hospital, Rainawari. As classes were being conducted online during the pandemic, she continued to discharge her academic duties from home and did not take maternity leave for that period.
For her third delivery on June 10, 2022, she applied through proper channel for 180 days’ maternity leave, which was duly recommended by the Head of Department. When the Assistant Registrar sought clarification, the HoD categorically certified that she had not availed any leave between July 2020 and January 2021, when her second child was born.
Despite this, the University turned down her plea, citing Rule 41 of the J&K Civil Services (Leave) Rules, 1979 as amended by SRO-353 of 2015, to contend that maternity leave is available only “up to two living children” and that she could not claim the benefit for a third child, particularly when she had been “entitled” to it during her second pregnancy but chose not to avail it.
The Tribunal found the rejection orders to be “unreasoned” and legally unsustainable. It stressed that maternity benefits are an integral facet of a woman’s right to dignity, health and reproductive autonomy under Article 21 of the Constitution, and that an employer must adopt a “considerate and sympathetic” approach to the special physical and emotional needs of a pregnant employee.
In a detailed analysis of constitutional and international norms, the Bench referred to Supreme Court decisions on reproductive rights as well as to international instruments such as CEDAW and ILO conventions, before anchoring its reasoning in the recent landmark judgment of the Supreme Court in K. Umadevi v. Government of Tamil Nadu & Ors. (Civil Appeal No. 2526/2025). In that decision, the Apex Court declared maternity leave to be a constitutional right even in the case of a third child, ruling that any “two-child” cap in service rules cannot override fundamental guarantees of dignity, health, privacy and reproductive liberty.
The Tribunal also noted that Dr. Jan had actually availed maternity leave only once – for her first child – and had not taken any such leave in connection with her second delivery. Therefore, for all practical purposes, the leave now sought for her third child operated as only her second spell of maternity leave, it observed.
Holding that the University’s stand ran contrary to the constitutional position clarified by the Supreme Court and that the impugned orders suffered from non-application of mind, the CAT quashed both orders dated November 10, 2022 and January 4, 2023. It directed the University of Kashmir to pass a fresh, reasoned order on Dr. Jan’s maternity leave claim, after granting her an opportunity of being heard and keeping in view the law laid down in K. Umadevi, within four weeks. (JNF) |
