Dr. Biby Mol Joseph Vs State of Kerala

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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MONDAY, THE 7^TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947

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WP(C) NO. 38429 OF 2024

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PETITIONER:

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DR. BIBY MOL JOSEPH AGED 31 YEARS D/O P.O. JOSEPH, PALLIPURATHU, KIDANGOOR SOUTH, KOTTAYAM CURRENTLY SENIOR RESIDENT, DEPARTMENT OF GENERAL MEDICINE, GOVERNMENT T.D.MEDICAL COLLEGE, ALAPPUZHA- 688 005, PIN - 686583

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BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH LIJO JOHN THAMPY

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN - 695001

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2 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695011

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3 GOVERNMENT T.D.MEDICAL COLLEGE, ALAPPUZHA

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REPRESENTED THROUGH ITS PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, ALAPPUZHA, PIN - 688005

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4 COMMISSIONER OF ENTRANCE EXAMINATIONS HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM, PIN - 695001

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2025, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING:

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N. NAGARESH, J.

W.P.(C) No.38429 of 2024

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Dated this the 7^th day of April, 2025

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner, who is a Postgraduate

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student and a Senior Resident at the Government TD Medical College, Alappuzha, has filed this writ petition seeking to quash Ext.P4 order and to direct the 3^rd respondent to sanction and grant Maternity Leave on full pay to the petitioner for 180 days with effect from 01.09.2024 and to disburse benefits accordingly.

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The petitioner states that after graduating MBBS, the petitioner was admitted to the Postgraduate Degree Course MD General Medicine. The said Course involves three years of course work and one year mandatory

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Senior Residency. Ext.P1 is the Prospectus for admission to the Medical Postgraduate Degree Courses, 2021.

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After three years of course work in MD

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General Medicine, the petitioner was posted as a Senior Resident in the Department of General Medicine as per Ext.P2 order dated 19.09.2023. The petitioner joined the Department as Senior Resident on 20.09.2023. The petitioner became pregnant and was assigned the due date for delivery as 22.09.2024. The petitioner therefore applied for Maternity Leave from 01.09.2024 for a period of 180 days.

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The 3^rd respondent, however, passed Ext.P4 order wherein it was stated that the petitioner has only 24 days of paid Maternity Leave (01.09.2024 to 24.09.2024). The petitioner was granted Leave Without Allowance for a period of 156 days from 25.09.2024 to 27.02.2025. The petitioner states that Ext.P4 was issued based on Ext.P5 GO dated 04.01.2021. Ext.P5 GO extends the benefit of Maternity Leave on full pay up to a period of 180 days or till

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the expiry of existing contract to female officers appointed on contract basis irrespective of the tenure of contract.

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The petitioner states that in the year 2022, another Senior Resident of the 3^rd respondent-Medical College was similarly declined Maternity Leave with full pay based on Ext.P5 Government Order. The said Senior Resident filed a writ petition and this Court, as per Ext.P6 judgment dated 20.01.2023 in W.P.(C) No.20698/2022) held that Senior Residents are temporary employees and are entitled to the benefits available to temporary employees working under the Government of Kerala.

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The petitioner submits that the provisions

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contained in Ext.P7 GO dated 31.10.2009 and Ext.P8 GO dated 13.01.2009 would make it clear that refusal of maternity benefits to the petitioner is illegal. In the circumstances, the petitioner seeks to direct the 3^rd respondent to sanction and grant Maternity Leave on full pay to the petitioner for 180 days.

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The 2^nd respondent resisted the writ petition

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filing a statement dated 23.01.2025. The 2^nd respondent submitted that as per the Prospectus conditions for PG Medical Courses, those who complete PG studies from Government Medical Colleges should serve the Government of Kerala in Medical Education Services as Senior Residents for a continuous period of one year immediately after the completion of the Course without break. All PG students are required to sign an agreement with the Government for compulsory bond service.

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Senior Residency is not a part of PG syllabus, but implemented under Residency Program. The petitioner joined the Department of General Medicine on 20.09.2023 and worked as Senior Resident for 11 months and 6 days. Thereafter, she applied for Maternity Leave with effect from 01.09.2024 for 180 days. The Principal sanctioned 24 days Maternity Leave and 156 days Leave Without Allowance. The claim of the petitioner based on

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W.P.(C) No.20698/2022 is not admissible as per the existing

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Government rules. The writ petition is therefore liable to be dismissed.

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I have heard the learned counsel for the

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petitioner and the learned Government Pleader representing the respondents.

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Paragraph 16.3 of the Prospectus for admission to Medical Postgraduate Degree Courses, 2020 provides that all PG students / Junior Residents are eligible for weekly off for one day. This will be allowed by the Head of the Department concerned without affecting the routine functioning of the Department. Paragraph 16.4 provides that female Postgraduate students are entitled to avail stipend during Maternity Leave and its extension only once during the entire course of study including Senior Residenceship and

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that too up to a maximum period of 18 months for the whole Residency.

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Ext.P1 Prospectus therefore indicates that

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the petitioner is entitled to Maternity Leave. However, when the petitioner applied for Maternity Leave from 01.09.2024, the petitioner was granted maternity leave for 24 days from 01.09.2024 to 24.09.2024 while granting LWA for a period from 160 days from 25.09.2024 to 27.02.2025.

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A similarly situated Senior Resident approached this Court filing W.P.(C) No.20698/2022 when Maternity Leave was declined. In the said writ petition, the respondents took a stand that the petitioner therein is a contract employee and she had not worked for a period of 80 days immediately preceding her expected date of delivery.

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This Court noted that in GO dated 31.10.2009, the Government has clarified that Residents are temporary employees of the Institution and are hence eligible for benefits allowed for temporary employees and as such women Residents are eligible for stipend for a period of 120 days during Maternity Leave and for getting the period of the

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course extended by 120 days. The Government in certain

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cases has extended the benefit of Maternity Leave on full pay in accordance with Rule 100 Part I KSR up to a period of 180 days or till the expiry of the existing contract whichever is earlier.

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As regards the question whether Senior Residents' service is contractual, it being under a bonded agreement, this Court held that the Government itself has clarified that Residents are temporary employees of the Institution and are eligible for benefits allowed to the temporary employees. Hence, the benefit of Maternity Leave due to the petitioner in her capacity as a temporary employee cannot be denied by terming her as a contract employee. This Court took a similar view in Ext.P9 judgment in W.P.(C) No.2992/2024.

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In the afore facts of the case, the writ petition is allowed. Ext.P4 order is set aside. The 3^rd respondent is directed to sanction and grant Maternity Leave

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on full pay to the petitioner for 180 days with effect from

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01.09.2024 with all consequential benefits.

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Sd/-

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N. NAGARESH, JUDGE

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aks/02.04.2025

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APPENDIX OF WP(C) 38429/2024

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PETITIONER'S EXHIBITS

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Exhibit P1 A TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION TO THE MEDICAL POST GRADUATE DEGREE COURSES, 2020-21

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Exhibit P2 A TRUE COPY OF THE ORDER NO. E3/1417/2022/GTDMCA DATED 19.09.2023 PASSED BY THE 3RD RESPONDENT

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Exhibit P3 A TRUE COPY OF THE MATERNITY LEAVE APPLICATION DATED 09.08.2024 PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH THE MEDICAL CERTIFICATE ISSUED BY THE DEPARTMENT OF OBSTETRICS AND GYNAECOLOGY

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Exhibit P4 A TRUE COPY OF THE ORDER NO. E3/764/2023/G.T.D.M.C.A. DATED 23.09.2024 ISSUED BY THE 3RD RESPONDENT

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Exhibit P5 A TRUE COPY OF G.O(P) NO. 2/2021/FIN DATED 04.01.2021 ISSUED BY THE FINANCE DEPARTMENT OF 1ST RESPONDENT STATE OF KERALA

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Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 20.01.2023 IN W.P.(C) NO. 20698/2022 PASSED BY THE HONOURABLE HIGH COURT

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Exhibit P7 A TRUE COPY OF THE G.O.(MS) NO. 380/09/H & FWD DATED 31.10.2009 ISSUED BY THE 1ST RESPONDENT

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