Right to undertake examination cannot be defeated by availing maternity leave, Delhi HC

The Delhi High Court has held that maternity leave cannot be a ground to deny one’s right to undertake an examination, if all other necessary requirements are fulfilled..The Judgement was delivered by a Single Judge Bench of Justice C Hari Shankar in a writ petition preferred by a Senior Resident of All India Institute of Medical Sciences (AIIMS) seeking a mandamus to the institution to allow her to undertake the Doctorate of Medicine (DM)’s final examination..As per the conditions governing her course, the Petitioner was entitled to 24 days leave in the first year, 30 days leave in the second year and 36 days in the third year. Since the Petitioner got pregnant during the course of her DM, she applied for 180 days of maternity leave to AIIMS..While granting her application for leave, AIIMS informed the Petitioner that the attainment of her DM qualification would be postponed by 6 months on account of the leave as she would only be allowed to appear in the final examinations in May 2019, instead of December 2018..Consequent to expiry of the period of her maternity leave, the Petitioner re-joined the services of the AIIMS in September, 2016. Subsequently, she also presented her thesis which was duly approved by the competent faculty member. The Petitioner then commenced working towards completion of the thesis, so that she could submit it at least three months prior to the final examinations, scheduled for December, 2018..In May, 2018, the Petitioner addressed a representation to AIIMS, requesting that the maternity leave granted to her be not considered as an “extension of leave” in terms of the terms and conditions of her admission to the DM course. She relied on a government Directive of March, 2018, which ordained that Maternity Leave be considered as part of tenure and not as an extension to the leave ordinarily available..This was followed by a more detailed representation later in the same month..However, both the representations were rejected by the AIIMS..Aggrieved by decision, the Petitioner moved the High Court under its writ jurisdiction..Counsel appearing for the Petitioner argued that in terms of the Memorandum which governed her admission to the course, maternity leave could not be said to be the same as “extra ordinary leave” or extended leave which attracted consequences such as postponement of examination..Reliance was also placed on Articles 39 and 42 of the Constitution of India, as well as the Maternity Benefit Act, 1961 to build the Petitioner’s case..Counsel appearing for AIIMS on the other hand argued that since the Petitioner had agreed to the stipulation and the conditions in the letter granting maternity leave to her, she could not now turn back and insist that she be permitted to write the final examination in December, 2018..In his judgement which begins with an Oprah Winfrey quote, “The choice to become a mother is the choice to become one of the greatest spiritual teachers there is”, Justice Shankar observed,.“Adverse consequences can never be allowed to visit any woman, solely by virtue of the fact that she availed maternity leave, perhaps in excess of the maximum leave admissible – provided, of course, the maternity leave was necessary and required for health of mother and child.”.Agreeing with the Petitioner, the Court observed that concept of “extension” connotes carrying the leave beyond the period for which it was originally granted. Since, the Petitioner never sought any extension of the leave granted to her, the leave sanctioned to her was never “extended” at any point of time in terms of the “extension clause” in the Memorandum which attracted consequences..Therefore, the Memorandum, ex facie would not apply to her case, it held..It also observed that since maternity leave can never be of 24, or 30, or 36 days’ duration, as stipulated in the Memorandum, one would be reading an additional clause to grant maternity leave into the Memorandum..“If the Memorandum desired to so postulate, it could have done so in plain words, and, it not having chosen to so do, it becomes extremely questionable whether the extension clause, which does not expressly so state, could be extrapolated to such an extent.”.It thus held that it would be unreasonable to interpret the Memorandum as postponing the final examination of students who are availing maternity leave in excess of the maximum duration of leave..“In my view, it would be unreasonable to interpret the clause as postponing the final examination of the course being undertaken by the candidate, in every case where the candidate sought maternity leave during the tenure of the course, especially where no such express stipulation is to be found therein.”.He further observed that the in light of our constitutional goals under Article 42 of the Constitution of India, if a clause stipulates that availment of maternity leave by a DM candidate would result in delay in awarding of the DM qualification to the candidate by 6 months, such clause cannot be enforceable..“While entering this caveat, I may add that the AIIMS is not expected to use it as a means to deny the petitioner the right to undertake the examination in December 2018, if, but for the maternity leave availed by her, she fulfils all necessary requirements in that.”.Stating that the facts on record do not enable the Court to issue any such unqualified and absolute mandamus, the Court declared,.“All that can be held is, therefore, that the petitioner’s right to undertake the final DM examination in December, 2018, would not be defeated by reason of the maternity leave availed by her, or the duration thereof. Her right to participate in the said examination would, however, necessarily be subject to the petitioner fulfilling all other requirements or pre-conditions required to be fulfilled to enable her to do so.”.It further observed,.“The ability of woman to create, nurture, and sustain, life, is celestially unique, and, even in the most conservative and puritanical of cultures, commands reverence and respect The protection and preservation of this ability is central to the most basic human rights which govern existence, and any dispensation, customary or in statute, which derogates therefrom, is constitutional anathema.“.It thus decreed,.“In case there is no other impediment in the petitioner’s way, her right to undertake the final DM examination in December, 2018, would, it is clarified, stand confirmed. In that event, the grant of the DM qualification would abide by the result of the final examination undertaken by the petitioner, in December, 2018, pursuant to the interim order, dated 30th November, 2018, passed by this Court in these proceedings..The writ petition stands allowed, to the above extent and in the above terms.“.The Petitioner was represented by Advocates S.K. Dubey and Udit Malik..AIIMS was represented by Advocates Vibhor Garg, Tushar Gupta, Puja Agarwal and Deepanshu Panwar..Read the Judgement: