In some countries, the governments are financially helping to self-employed women in this time of Corona. in India, this facility is available to all working women for 26 weeks, out of it they can avail, eight weeks before delivery. COVID 19 has, however, posed a very piquant situation for such pregnant women whose jobs are ad-hock or temporary.
In this backdrop, a recent judgment of the Delhi High Court has come as a big relief to the women that they cannot be denied maternity leave even if their services are temporary.
Although this case has its much before the COVID 19 was in sight, yet it has gained more significance because it has come at a time when the pandemic is on its peak. The case, in brief, is that the petitioner Manisha Priyadarshani, an ad-hoc professor of English at Aurobindo Evening College since 2014, took leave between January and March 2019 for the birth of her child. Following this, her tenure, which ended on March 19, was not extended at the start of the new semester in May, although other ad-hoc professors, who were junior to her, were given extensions.
As Delhi University does not entitle ad-hoc employees to avail of maternity leave and benefits, the college claimed that it was well within its rights to terminate Priyadarshani's appointment and 'her non-reporting for duty from 21st January 2019 to 18th March 2019 was improper'. Priyadarshani also moved a petition in the Delhi high court last March, challenging 2005 Delhi University rule that denies maternity leave to ad-hoc employees, and sought benefits under the Maternity Benefits Act, 1961. This petition is still pending in court.
Number of ad-hoc teachers in Delhi University has grown disproportionately in the last few years. It has 50% of teachers in the ad-hoc capacity- that is 4500 teachers and a huge number of them are women, teaching for a long time. They are given appointments for four months, which is then extended after a notional break; they do not receive annual increments or the same kind of benefits as are available permanent teachers.
With no definitive cure or vaccine in sight, women employees are an anxious lot. Anxiety in pregnant women is even higher, leaving them with many unanswered questions regarding their health and thewell-being of their new-born. While it has still not been scientifically confirmed whether pregnant women are more susceptible to COVID-19, it is an established fact that in some women, pregnancy alters the body's ability to fight certain viral infections.
In its judgment, the High Court found no justification offered by the college that she was not at work when her tenure ended, as she was on leave that was not granted to someone in her capacity, was not 'alegitimate ground to deny an extension of tenure' to her. The judgment It said that 'it tantamount to depriving her of the protection assured under Article 21 of the Constitution of India of her right to employment and protection of her reproductive rights as a woman'.
Despite the law, pregnant women in India have often been denied maternity benefits. This pandemic has led to many employees being summarily sacked. Concerns regarding maternity benefits may eventually arise.
The court has dealt, at length about the private and public employment and applicability of Article 14 of the Constitution of India. An attempt was made in this case by the College that it is not a State and the matter was contractual. The Court observed that 'there can be no dispute that colleges are run with an element of public interest and for the public good. Recognising the difference between public and private law activities of the State, this Court reasoned that unlike private individuals, the State while exercising its powers and discharging its functions, acts for the public good and in the public interest. Consequently, every State action has an impact on the public interest'.
The court said that 'there is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for the public good and in the public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality.'
However, to the extent, the challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.'
While there is no doubt that ad-hoc employees cannot be exempted from the process of regular appointment only because of their legitimate employment on an ad-hoc basis and ordinarily, on termination of the contract, such contractual or ad-hoc employees have no right to insist on renewal of the contract, in circumstances where there is arbitrariness writ large, courts have not hesitated in extending protection to the aggrieved party. The validity of a termination order is subject to judicial review for the court to determine whether the action of the respondents was illegal, perverse, unreasonable, unfair, or irrational. In the instant case, we find that unreasonableness, unfairness and irrationality is writ large in the action of the College, inasmuch as they have continued with the services of others who are junior to the appellant, on an ad-hoc basis and have deprived her of the benefit of further ad-hoc appointment, without any reasonable cause.
The only argument advanced by learned Senior Counsel for the college was that the appellant's ad-hoc employment had ceased on 18.03.2019 and therefore, she could not claim further service after such termination of the contract by efflux of time and that in any case, she was unavailable for such ad-hoc employment but this cannot withstand judicial scrutiny because she had informed the College that she could join duty on 24th May 2019. Even if it was to be accepted that it was the last working day before the summer vacations, it has been conceded that the appointment of the other ad-hoc Assistant Professors was renewed from 26th May 2019. In other words, when the appellant had expressed her availability for engagement on 24 the May 2019 and when on the following day, the others were actually appointed as ad-hoc employees, there was no good reason for the College to have refused to engage her.
H.L. Kumar, Advocate, Supreme Court, New Delhi