Paid maternity leave can’t be denied to temp GMC doc: HC

Panaji: The high court has directed govt to pay the salary which was denied to a senior resident doctor of GMC, when she went on maternity leave in 2016.
The division bench comprising justices M S Karnik and Nivedita Mehta clarified that the benefit of paid maternity leave must be granted whether employment is permanent or temporary.
The HC quashed and set aside the order of govt which had granted the doctor unpaid maternity leave.
The benefit of maternity leave is a legislative mandate clarified by the Supreme Court in a myriad of pronouncements that will override any other rule, the HC said.
The doctor, who completed her postgraduate degree in 2013, received a temporary appointment order from GMC and joined as a senior resident doctor.
In Jan 2016, she applied for maternity leave for six months and in Feb was granted ex post facto (acting retroactively) sanction of maternity leave for 180 days. The order specified that the maternity leave was without pay.
This was due to GMC’s appointment rules notified on June 19, 2013, in the official gazette of Govt of Goa, she was told.
One of the clauses said, “The female senior resident may be granted maternity leave for a maximum period of 180 days without pay, only once during the period of her tenure”.
The doctor, 29 at the time, filed a petition in the HC. Additional govt advocate Prashil Arolkar told the HC that the doctor signed an agreement with GMC on a bond period of three years. Arolkar added that senior residents are treated as temporary govt servants (Group C) governed by the Central Civil Services (Temporary Service) Rules, 1965, and are not entitled to benefits under the Central Civil Services (Leave) Rules, 1972. The 1965 rules were amended in 2013.
Advocate Vibhav Amonkar, representing the doctor, argued that the 2013 rules violate her fundamental rights and are contrary to the provisions of the Maternity Benefit Act, 1961, specifically Section 5, which provides that every woman shall be entitled to the payment of maternity benefits at the rate of average daily wage for the period of actual absence.
He added that the rules make unreasonable classifications between senior residents like her and other female doctors in employment of GMC, depriving only the former of paid maternity leave.
The HC observed that Section 27 of the Maternity Benefit Act states that the provisions contained in the Act will prevail over any laws and agreements that are inconsistent with them.
“Therefore, this court finds itself compelled to hold that maternity benefits under the Maternity Benefit Act be granted to the petitioner notwithstanding the impugned rules,” the HC said. “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.”