HP High Court Quashes Denial of Maternity Leave to Commissioning Mother, Directs Release of Withheld Salary
Himachal Pradesh High Court holds that a government employee who became a mother through surrogacy cannot be denied maternity leave under CCS (Leave) Rules, Rule 43, regardless of whether the State has adopted the DoPT's 2024 notification.
The High Court of Himachal Pradesh at Shimla has allowed a writ petition filed by Dr. Juhi Manhas, a government employee who twice became a commissioning mother through surrogacy, after the State department refused to grant her maternity leave on both occasions. Justice Ajay Mohan Goel, sitting singly, quashed the two impugned departmental communications dated 31 July 2025 and 22 August 2023 and directed that the leave already availed by the petitioner be regularised as maternity leave under Rule 43 of the Central Civil Services (Leave) Rules, 1972. The court also directed release of the petitioner's withheld salary for two months and eight days, with both directions to be complied with within two months. The State's defence — that it had not adopted a 2024 DoPT notification expressly extending maternity leave to commissioning mothers — was rejected as unsustainable in the face of a binding Division Bench ruling from 2021.
Leave Availed and Departmental Refusals
Dr. Manhas availed maternity leave for her first child as a commissioning mother from 17 September 2020 to 15 March 2021, a period of 180 days. She followed this with 177 days of further leave — 60 days as commuted leave and 117 days as earned leave — running from 16 March 2021 to 8 September 2021. For her second child, she again availed maternity leave from 27 September 2022.
The department refused to regularise this leave as maternity leave, citing the position that the DoPT Notification dated 18 June 2024 — which expressly amended Rule 43 of the CCS (Leave) Rules by inserting sub-rule (6) to cover both surrogate and commissioning mothers — had not been adopted by the Government of Himachal Pradesh. On this ground, the department issued the communications at Annexures P-22 and P-23 refusing the leave claims. The salary for July and August 2021 and eight days of September 2021 also remained withheld despite an earlier departmental order dated 2 July 2024 directing its release.
The Central Legal Issue
Justice Goel framed the core question plainly: whether a commissioning mother who is a government employee in Himachal Pradesh is entitled to maternity leave and associated leave benefits under the CCS (Leave) Rules, 1972, or whether the absence of State adoption of the 2024 DoPT notification could defeat that entitlement.
Rule 43(1) of the CCS (Leave) Rules provides that a female government servant with fewer than two surviving children may be granted maternity leave for 180 days from the date of commencement. Rule 43(4)(a) permits maternity leave to be combined with any other kind of leave. Rule 43(4)(b) further allows leave due and admissible — including commuted leave not exceeding 60 days and leave not due — up to a maximum of two years in continuation of maternity leave. The DoPT Notification of 18 June 2024 added sub-rule (6) to expressly bring surrogate and commissioning mothers within this framework. The State contended this sub-rule had not been adopted and therefore did not apply in Himachal Pradesh.
The Division Bench Ruling That Settled the Question
Senior Advocate Ajay Sharma, appearing for the petitioner with Advocate Tarun Bragta, pointed the court to the Division Bench judgment of the Himachal Pradesh High Court in Sushma Devi v. State of H.P. & Others, CWP No. 4509 of 2020, decided on 4 March 2021. That judgment had, after examining decisions of the Delhi High Court and the Bombay High Court, held definitively that a commissioning mother could not be refused paid maternity leave. The Division Bench had relied on the Bombay High Court's ruling in Dr. Mrs. Hema Vijay Menon v. State of Maharashtra and Others, AIR 2015 Bombay 231, which had held that “to distinguish between a mother who begets a child through surrogacy and a natural mother who gives birth to a child, would result in insulting womanhood.”
The Division Bench had also drawn on the Delhi High Court's decision in Rama Pandey v. Union of India and Others, 2015 Labour Industrial Cases 3921, and the Chhattisgarh High Court's ruling in Devshree Bandhe v. Chhattisgarh State Power Holding Company Limited, 2017 Labour Industrial Cases 1506. Across these decisions, the consistent position was that maternity, meaning motherhood, could not be confined to biological birth. The Division Bench had further noted that Article 42 of the Constitution of India requires the State to make provision for maternity relief, and that Article 21 encompasses the right to motherhood and the right of every child to full development.
Senior Counsel submitted that this judgment had attained finality, had been implemented, and was binding on the State. Accordingly, the State's reliance on non-adoption of the 2024 DoPT notification was simply irrelevant — the law as declared by the Division Bench already governed the position in Himachal Pradesh.
State's Conduct Argument Rejected
Additional Advocate General Raj Pal Thakur advanced two arguments. First, that the DoPT notification had not been adopted by Himachal Pradesh, so there was no provision entitling either a surrogate or a commissioning mother to maternity leave in the State. Second, that the petitioner's own conduct disentitled her to relief — she had gone on leave a second time following the birth of her second child immediately after departing via email, had ignored departmental directions to follow prescribed procedure, and had faced departmental proceedings as a consequence.
Senior Counsel responded in rebuttal that the departmental proceedings had been closed by the Competent Authority vide order dated 2 July 2024, and the petitioner had been fully exonerated. This fact had been disclosed in the writ petition itself. Justice Goel accepted this position. The departmental inquiry was a matter of record, but its closure by Annexure P-19 meant it could not be pressed against the petitioner in these proceedings.
Court's Reasoning
Justice Goel observed that the issue of whether a female government servant in Himachal Pradesh could be denied maternity leave on the ground that a child was born through surrogacy was “no more res integra.” The Division Bench ruling in Sushma Devi had settled it once and for all. That judgment was binding on the State. Given its finality, there was, as the court put it, no need even to adopt the DoPT notification of 18 June 2024. The law declared by the Division Bench already entitled female government employees of Himachal Pradesh who are commissioning or surrogate mothers to maternity leave at par with any other female government servant under Rule 43(1).
The court also noted a telling internal inconsistency in the State's position. By a Notification dated 10 October 2022, the Government of Himachal Pradesh, Finance (Regulations) Department, had itself inserted Rule 43-B after Rule 43-AA in the CCS (Leave) Rules as applicable to the State. Rule 43-B grants a female government servant with fewer than two surviving children a child adoption leave of 180 days immediately after valid adoption of a child below one year. The court observed that if the State was considerate enough to grant 180 days of child adoption leave to an adoptive mother, it was difficult to understand why it was objecting to granting maternity leave to a surrogate or commissioning mother.
On the substantive position, the court affirmed that maternity leave under the CCS (Leave) Rules serves both the well-being of the mother and the newly born child. The 2024 DoPT notification, which extended the leave even to surrogate mothers who part with the child after birth, reinforced that the leave is not conditioned on biological delivery but on the responsibilities of motherhood. A commissioning mother's entitlement flows from the same source.
The impugned orders at Annexures P-22 and P-23 had been passed more than four years after the Division Bench had negated precisely this stance of the State. The court held the denial completely unsustainable in law.
Order
Justice Ajay Mohan Goel allowed CWP No. 14883 of 2025 and passed the following specific directions:
Annexures P-22 (dated 31 July 2025) and P-23 (dated 22 August 2023) were quashed and set aside.
The respondents were directed to treat the 180-day periods availed by the petitioner after the birth of each of her two children, from the date she went on leave as a commissioning mother, as maternity leave under Rule 43(1) of the CCS (Leave) Rules, 1972.
Leave availed by the petitioner immediately after the 180-day maternity leave period was directed to be treated as leave due to her under Rule 43(4)(a) and (b) of the CCS (Leave) Rules.
As regards 32 days of earned leave availed between 4 May 2022 and 4 June 2022, the respondents were directed to adjust the same against the petitioner's earned leave account if such leave was due at the relevant time.
The withheld salary of the petitioner was directed to be released, preferably within two months from the date of the order. All directions were to be complied with within two months. Pending applications, if any, stood disposed of.