Commissioning And Surrogate Mothers In Himachal Government Service Entitled To Maternity Leave: Himachal Pradesh High Court

The Court quashed the departmental communications denying the petitioner maternity leave and directed that the leave availed after the birth of both her children be treated accordingly.

The Court was hearing a writ petition challenging two departmental communications denying maternity leave to a government employee who had become a commissioning mother through surrogacy on two occasions. She also sought recognition of the commuted and earned leave taken thereafter and the release of her withheld salary.

A Single Bench of Justice Ajay Mohan Goel, while relying on a previous judgment of the High Court in Sushma Devi vs. State of HP (2021) reiterated that “a female government employee of the State of Himachal Pradesh, who is a commissioning mother or a surrogate mother is entitled for maternity leave at par with any other female government servant as per Rule 43(1) of the CCS (Leave) Rules, 1972.”

Senior Advocate Ajay Sharma, assisted by Advocate Tarun Bragta, appeared for the petitioner. Additional Advocate General Raj Pal Thakur appeared for the respondents.

Background

The petitioner, a government employee, became a commissioning mother to two children born through surrogacy. After the birth of her first child, she availed 180 days of maternity leave, followed by 60 days of commuted leave and 117 days of earned leave. She subsequently availed maternity leave after the birth of her second child.

The department refused to recognise the maternity leave on the ground that the Himachal Pradesh Government had not adopted the Department of Personnel and Training notification of 2024, which inserted Rule 43(6) into the Central Civil Services (Leave) Rules, 1972. The amendment expressly provided maternity leave in cases of surrogacy to both the surrogate and commissioning mother, subject to the stipulated conditions.

The petitioner relied upon Rule 43(1) and Rule 43(4) of the Central Civil Services (Leave) Rules, 1972, as well as the Division Bench ruling in Sushma Devi v. State of H.P. & Others (2021). She argued that the judgment had already settled that a commissioning mother could not be denied paid maternity leave in Himachal Pradesh.

The State contended that the benefit was unavailable because it had not adopted the 2024 notification. It also questioned the petitioner’s conduct while proceeding on leave and referred to departmental proceedings initiated against her. In response, the petitioner pointed out that the competent authority had closed those proceedings and exonerated her of the charges.

Court’s Observations

The Court noted that maternity leave serves the interests of both the mother and the newborn child. Although the Central Civil Services (Leave) Rules, 1972, did not initially refer expressly to surrogacy, the 2024 amendment recognised both surrogate and commissioning mothers for the grant of maternity leave.

The Court observed: “However, the fact of the matter remains that a mother is a mother, be it by giving birth to a child naturally or being a commissioning mother. The maternity leave, as is provided in the CCS (Leave) Rules is obviously both for the benefit of the mother as well as the newly born child.”

It further noted that, in a surrogacy arrangement, the leave protects the well-being of the surrogate mother while also enabling the commissioning mother to care for the child.

The Bench added: “The above demonstrates that maternity leave is recognized both for the well-being of the mother, who in the present case is the surrogate mother, as well as the child, who in the present case is the child though given birth by the surrogate mother, but for the commissioning mother.”

The Court held that the issue was no longer res integra in Himachal Pradesh. In Sushma Devi v. State of H.P. & Others (2021), a Division Bench had held that distinguishing between a woman who gives birth naturally and a commissioning mother would defeat the object of maternity leave.

That ruling had referred to Rama Pandey v. Union of India and Others (2015), Dr. Mrs. Hema Vijay Menon v. State of Maharashtra and Others (2015) and Devshree Bandhe v. Chhattisgarh State Power Holding Company Limited and Others (2017). The reasoning reproduced by the Court also referred to the right to motherhood and a child’s development under Article 21, the maternity-relief obligation under Article 42, and the rulings in Lakshmi Kant Pandey (1984) and Municipal Corporation of Delhi (2000).

The Court observed: “Therefore, it is apparent and evident from the said judgment of the Hon’ble Division Bench that a commissioning mother is also entitled to maternity leave in terms of the provisions of Rule 43(1) of the CCS (Leave) Rules, 1972, as far as the State of Himachal Pradesh is concerned, even if it is to be construed, as has been argued on behalf of the State that the DoPT notification dated 18/6/2024 has not been adopted by the Government of Himachal Pradesh.”

Since the Division Bench judgment had attained finality and was binding upon the State, the Court held that separate adoption of the 2024 notification was unnecessary for recognising the petitioner’s entitlement.

The Court also noted that Himachal Pradesh had inserted Rule 43-B into the Central Civil Services (Leave) Rules, 1972, as applicable to the State. It permitted 180 days of child adoption leave to a female government servant with fewer than two surviving children upon the valid adoption of a child below one year of age.

The Court stated: “When the respondent-State has been considerate enough to grant child adoption leave in the case of adoption of a child, it is not understood as to why it is objecting to grant Maternity Leave to a surrogate mother and/or a commissioning mother.”

Applying the settled position, the Court held that the petitioner was entitled to maternity leave on both occasions when she became a commissioning mother. The departmental communications denying that benefit were consequently unsustainable.

The Court held: “Therefore, in the light of the said settled legal position, the act of the respondents of denying the maternity leave to the petitioner is not sustainable in law and held so. The petitioner, having become a commissioning mother on two occasions, has a right to be granted maternity leave on both the occasions and the act of the respondents of denying maternity leave to her vide Annexures P-22 and P-23 is completely unsustainable in law. This is more so, as the Authority has passed the impugned orders after four years of the judgment of the Hon’ble Division Bench of this Court, in terms whereof, it has been held that a commissioning mother is entitled to maternity leave at par with a female government employee under Rule 43(1) of the CCS (Leave) Rules in the State of Himachal Pradesh.”

Conclusion

The High Court allowed the writ petition and quashed the communications denying maternity leave. It directed the respondents to treat the 180-day period availed after the birth of each child as maternity leave and to treat the immediately succeeding leave according to Rule 43(4)(a) and (b) of the Central Civil Services (Leave) Rules, 1972.

The State was further directed to adjust the petitioner’s 32 days of earned leave against the leave available to her at the relevant time and release her withheld salary. The necessary exercise was directed to be completed within two months, with the salary also to be released preferably within that period.

Cause Title: Dr. Juhi Manhas v. State of H.P. & Ors. (Neutral Citation: 2026:HHC:32083)

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