1. By way of this the petition, the petitioner has prayed for following reliefs:
[a] to quash and set aside the illegal action of the respondents in putting the petitioner in the regular payscale of primary teacher of Rs.40001006000 w.e.f. 28.4.2005 instead of w.e.f. 10.1.2005 on completion of five years service as VidyaSahayak in accordance with G.R. Dated 11.6.1998.
[b] To direct the respondents to put the petitioner in the regular payscale of primary teacher of Rs.40001006000 w.e.f. 10.1.2005 on completion of five years as Vidya Sahayak in accordance with G.R. dtd. 11.6.1998.
[c] xxx
[d] xxx”
2. The short facts leading to filing of this petition are that on 10.1.2000, the petitioner was appointed as “Vidya Sahayak”. It is the case of the petitioner that as per Government Resolution after completion of five years' service, she is required to be placed in the regular pay scale of Rs.4001006000/. Accordingly, the petitioner completed five years' service on 10.1.2005, therefore, she is required to be placed in the regular payscale of Rs.4001006000 with effect from 10.1.2005. However, by order dated 14.7.2005, the petitioner was placed in the regular pay scale with effect from 4.5.2005. The said order was subsequently, revised by order dated 4.7.2006, by which the petitioner was placed in the regular pay scale with effect from 28.4.2005. It is further the case of the petitioner that the respondents have delayed 135 days in placing the petitioner in regular pay scale on the ground that the petitioner has availed 135 days Maternity Leave, though such leave is available as a matter of right. Therefore, the petitioner has preferred this petition.
3. Learned counsel for the petitioner submitted that originally the petitioner has been governed by the Government Resolution dated 8th February, 1998, whereby the Government has extended the Maternity Leave from 90 days to 135 days.
4. Mr. Munshaw, learned counsel for respondent Nos. 3 has opposed the contentions of learned counsel for the petitioner and submitted that it is true that as per Government Resolution dated 8.2.1998, the petitioner was entitled for 135 days' maternity leave, but the petitioner has taken undue advantage of other leaves.
5. He further submitted that the petitioner had delivered the child on 29th September, 2003 and thereafter, she submitted an application for casual leave of three days from 29.9.2003 only with a view to take advantage of public holidays, which was started from 02.10.2003 to 5.10.2003. Subsequently, the petitioner applied for leave without pay of 12 days with effect from 6.10.2003 to 17.10.2003. Thereafter, on 18.10.2003, the petitioner reported his duty, with a view to take advantage of Diwali Vacation, which was started from 19.10.2003 to 9.11.2003 and subsequently the petitioner attended the school with effect from 10.11.2003 to 12.11.2003. Thereafter, the petitioner proceeded on Maternity Leave with effect from 13.11.2003 to 10.2.2004. Therefore, he submitted that the act of the petitioner required to be deprecated by this Court.
6. I have heard learned advocates appearing for both the parties. It appears from the record that petitioner had delivered the child on 29th September, 2003 and at that time female VidyaSahayaks were entitled for 90 days maternity leave. However, on 22.10.2003, the State Government issued a Resolution and as per the said resolution 90 days maternity leave was extended upto 135 days. It was also resolved in the said resolution that in cases where the period of 90 days of Maternity Leave had not expired on the date of Resolution i.e. on 22.10.2003, such employees shall also be entitled to Maternity Leave of 135 days. When the resolution came into force the petitioner was on maternity leave and therefore, she would be entitled for 135 days of Maternity Leave as against 90 days.
7. It is pertinent to note that the petitioner had delivered a child on 29th September, 2003. Therefore, even if maternity leave of 135 days is counted from the date when the petitioner delivered the child, the period of Maternity Leave would expire on 10th February, 2004. It appears from the record that the petitioner resumed her duties on 28th February, 2004. Therefore there is delay of 17 days on the part of the petitioner in resuming her duties.
8. It also appears from the record that before availing the Maternity Leave of 90 days, the petitioner had availed Casual Leave and had also gone into Leave without Pay in order to enjoy more days of leave. It is not in dispute that the Leave availed by the petitioner was a Maternity Leave and the fact that the petitioner delivered a child is also not in dispute. I am of the view that sympathetic view should be taken inasmuch as the petitioner had remained absent from the duty on account of pregnancy and for no other reason. Therefore, if the days of maternity leave are calculated as per the G.R. dated 22.10.2003, the period of 135 days would expire on 10th February, 2004. However, the petitioner resumed her duties on 28th February, 2004. Looking to the fact that pregnancy was the reason behind her remaining absent from the duty. As a peculiar facts and without treating this as a precedent, in the interest of justice, it would be appropriate to consider the said period of 17 days during which the petitioner had remained absent from the duty as Leave Without Pay and respondents shall treat her services as regular service for all purposes.
9. Keeping in mind the aforesaid facts of the matter, the respondents are directed to regularize the service of the petitioner with effect from 28th February, 2005. However, it is made clear that if the petitioner has received any amount during the period of maternity leave, it will be open for the respondents to recover the same from the petitioner. It is clarified that this order will not be treated as precedent.
10. In view of the above, the petition is disposed of accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.
[K.S.JHAVERI,J.] pawan