HC differs with single judge order on including maternity leave in continuous service period

The Madras High Court today differed with the order passed by a single judge bench on the question of including maternity and earned leave period while calculating continuous service period of government doctors for admission to post graduate courses and posted the matter for adjudication by a division bench.

Justice S Vaidyanathan, passing orders on petitions by a person named Aruna and six other government doctors, directed the court registry to place them before the Chief Justice for being referred to a Division Bench for deciding the issue.

The judge in his order said he was differing with an interim order passed by Justice N Kirubakaran of the High Court in January this year on a similar petition.

 

Justice Kirubakaran had held that maternity leave can be treated as service period while allowing the plea of a woman government doctor who was not allowed to join PG medical course on the grounds that she did not complete two years continuous service, excluding the maternity leave.

He had then observed that not only the newborn, but the "reborn mother" also required "nurturing care, affection and proper rest and highlighted the significance of breast feeding, saying there was no substitute for mothers milk and that even "so-called divine nectar could not be equal" to it.

In the present case, the petitioners approached the High Court,seeking to quash Clause 9 (a) (i) of the prospectus for admission to Post Graduate degree/diploma courses in Tamil Nadu Government Medical Colleges and government seats in Self Financing Medical colleges in the state for 2018-19 in so far as it excludes the period of maternity and earned leave from the period of continuous service for awarding incentive marks.

Differing from the order, Justice Vaidyanathan today said that incentive marks for serving in remote, hilly and difficult areas cannot be granted to the government doctors without them doing 'actual service'.

Earlier, Additional Advocate General S T S Moorthy submitted that the government was considering maternity leave as service period for all other contingencies, including promotion. But when it comes to admissions to PG medical courses, it cannot be considered as service period, since the candidate must have completed two years of service, he said.

As for the incentive marks, he said without actual service, such a benefit cannot be granted to the petitioner.

Opposing the submissions, the counsel for petitioners said when maternity leave was a constitutional right, and treated as service period, the state cannot deny incentive marks.

Wondering whether granting such incentive marks without actual service would amount to discrimination against men who do not get any benefits like paternity leave, Justice Vaidyanathan said he was disagreeing with the order of Justice Kirubakaran in granting incentive benefit for the period of service not actually done.

"...For availing incentive marks there should be actual service, unless and until service is rendered in remote, difficult and hilly area incentive marks cannot be awarded. The incentive marks cannot be demanded as a matter of right unless actual service is rendered," he said in the order.