Sailaja (name changed), a Deputy Tahsildar employed with Tamil Nadu’s Department of Revenue, availed maternity leave in 2020 for a period of nine months, after which she rejoined service. Two years later, to her surprise, she found that she was not considered for a promotion to the post of Tahsildar while her juniors were. Upon enquiring it was revealed that the department denied her seniority because she availed maternity leave during her probationary period of two years while in office as Deputy Tahsildar. Sailaja filed a petition with the Madras High Court (HC) seeking her right to be considered for promotion. The final hearing of her case is scheduled for July 10, under Justice MS Ramesh. Sailaja is among the many women who face discrimination in government offices and is also among the very few women who have been able to pursue legal action against this.
Women employed by the TN government have witnessed a steady increase in the number of days offered to them as maternity leave. From 90 days in 1993, the government raised it to 180 days (six months) in 2011, followed by a raise to 270 days (nine months) in 2016. In a recent development, the government, through an order dated August 8, 2021, further increased the leave period to 365 days (one year). The increase was intended to allow women time to recover without the worry of losing their jobs and to ensure equal opportunities. On the contrary, the move has led to several women like Sailaja being targeted and deprived of promotions in government offices.
In Sailaja’s case, she had a mandatory two-year probation period while in office as Deputy Tahsildar. The probation period can be defined as the time frame intended for employees to understand their job responsibilities and for the employers to monitor the skills and efficiency of the employees. After completing the first year, Sailaja availed maternity leave for a period of nine months. Upon returning from maternity leave, she continued her service and completed the required probationary period of two years in three years (wherein nine months were her maternity leave). However, when a list of names for promotion to the post of Tahsildar was published, Sailaja’s name was not included, citing a one-year “delay” in completing probation. It is to be noted that in government services, employees in different departments have varying probation periods for every post. A concerned official told TNM, “The rules (Tamil Nadu Service Rules) grant an extra year to employees to complete the required probation time. For example, if a particular post has a compulsory probationary period of two years, all employees are provided three years’ time to complete it.” Then why wasn’t Sailaja’s name on the promotion list?
The problem here is the lack of specific provisions in the Tamil Nadu Maternity Benefit Rules 1967 for women to avail maternity leave without their leave period being counted as absence from work, thereby denying them seniority and consequential promotions. Despite the Madras HC ascertaining that maternity leave should be treated as duty period irrespective of whether or not the woman is on probation, many government offices count the leave period as an absence.
Advocate V Vargees Amal Raja who is representing Sailaja’s case alongside Advocate PT Perumal told TNM, “She completed her probation of two years in three years after availing one year maternity leave in between. The list for promotion was prepared only after she completed her probation. But, the officials altered her seniority and denied her a place on the list.” He added that in many previous cases heard in the HC, the lists for promotion were prepared before the female staff returned to work after maternity leave. Even after they resumed work and completed probation, their names were not added to the promotion lists. “Officials have and continue to take advantage of the ‘no rule’ position. Because of this, women lose out on timely promotions and the monetary benefits that come with it,” he said.
Two similar cases filed in 2016 and 2018 were heard in the Madras HC last year, of which one was of a woman who was a public prosecutor while the other was a secondary grade teacher. The court had, in both cases, ruled in favour of the women and ordered that their seniority should be ensured and that the arrears should be paid.
TNM approached the concerned officials from the Personnel and Administrative Reforms department in Tamil Nadu who argued that there is no specific rule to not count maternity leave as absence and that probation is compulsory for all employees. “This is not discriminatory against women because for every employee to qualify for a promotion, we are compelled to assess their performance. For example, even if a man goes on extended sick leaves, we will not declare that he has completed his probation on time. So the rules are equal for all,” the official said.
‘Unequals can’t be equal’
Responding to the official’s “equal rules for all” take on the issue, advocate Nagasaila pointed out that the government is treating unequals as equals. “It is upon the government to accommodate people who are differently placed and ensure that equal opportunities are provided under the law. In this case, women are differently placed in comparison to men and women have the right to avail of maternity benefits. The problem demands reasonable accommodation for women,” she said.
She further highlighted that it is the labour of women that provides dividends for a country and added that they should not be forced to either compromise on their promotion for having a family or vice versa.
Refuting the official’s example, Kalyani Menon Sen, a feminist and women’s rights activist said, “This is like saying that giving medical leave to people who fall sick is unfair to those who are healthy. These comparisons show just how deep the resentment towards women in workplaces is, and how they are still seen as interlopers.”
Around six cases have been heard in the Madras HC in this regard since 2015, and several cases of maternity leave not being treated as a duty period have also been reported to the court.
The Indian government introduced a provision for probation service in 1993 in the Indian Administrative Service (IAS). The Kerala state government had altered its service rules in 1958 to ensure that maternity leave is treated as a duty period even if those availing it are under probation. However, the Tamil Nadu state government has not yet taken cognisance of this issue. “We have no proposals at present to introduce an amendment to this rule. A change demands the Chief Minister to take action or form a cabinet,” the concerned official from the Personnel and Administrative Reforms said.