LAHORE: The Lahore High Court has ruled that availing of maternity leave is a fundamental right of a woman even if the same is not provided for in the terms and conditions of her service contract.

“Article 35 of the Constitution provides that the state shall protect the marriage, the family, the mother and the child,” Justice Muzamil Akhtar Shabbir observes, allowing a petition of a female senior teacher of Punjab Workers Welfare Board (PWWB) school against denial of maternity leave to her.

Sobia Nazir, the petitioner, a married woman, was appointed on internship/retainer basis as senior Information Technology (IT) teacher by the PWWB, currently serving against the post as an internee at the Worker Welfare School (Girls) Warbton, Nankana Sahib district.

On becoming pregnant, the petitioner applied for the grant of maternity leave with full pay for 90 days, mentioning her expected date of delivery. However, the board rejected her application saying that she was not entitled to the facility under the terms and conditions of her service.

The board’s counsel, appearing before the court, defended the impugned decision, saying terms and conditions of Internship/Retainership Policy, 2014, reflected in the job offer did not allow the petitioner to proceed on maternity leave by availing leave over and above the period allowed by her contract.

The law officers of the federal and provincial governments told the court that although the terms and conditions of the petitioner’s service did not provide for maternity leave, yet the courts had through various orders passed in different cases granted maternity leave despite inadmissibility in many cases.

In the verdict, Justice Akhtar observes that Article 25 of the Constitution provides that all citizens are equal before law and are entitled to equal protection of law and there shall be no discrimination on the basis of gender.

He notes that nothing in the Article 25 shall prevent the state from making any special provision for the protection of women and children.

The judge observes that Article 37 of the Constitution provides that the state shall make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment.

He maintains that the refusal of maternity leave to a female may be tantamount to infringing her rights provided under the provisions relating to fundamental rights and principles of policy, which also provide for the corresponding duties of the state to protect the women and children

The judge says that an important aspect of the matter that needs consideration is whether a woman can be forced to perform her duty, which due to the advanced stage of her pregnancy, she may not be able to perform, whereas the same may also include travelling to her place of posting.

“Obviously the law does not compel any person to perform an act which is beyond his/her capacity and the same principle is also recognised by Islam,” Justice Akhtar adds.

The judge allowed the petition of the woman teacher, directing the respondents to allow maternity leave to her and for the said period she would be entitled to receive her salary/pay.

Published in Dawn, April 2nd, 2022