The Himachal Pradesh High Court has ruled that female state government employees are entitled to 180 days of maternity leave for children born through surrogacy, holding that benefits cannot be denied simply because the state has not formally adopted recent central government rules.
Setting aside administrative orders that withheld leave and salary from a government doctor, Justice Ajay Mohan Goel directed state authorities to grant her 180 days of maternity leave for each of her two surrogate-born children. The court ordered the state to release her withheld salary, adjust admissible leave benefits, and complete all required actions within two months.
The state government had rejected the doctor’s leave request on the grounds that Himachal Pradesh had not adopted a June 18, 2024 notification from the Department of Personnel and Training (DoPT). That central notification explicitly extended maternity leave under the Central Civil Services (Leave) Rules, 1972, to surrogate and commissioning mothers. Rejecting the state’s stance, Justice Goel declared that formal adoption was unnecessary because a 2021 division bench judgment of the Himachal Pradesh High Court, Sushma Devi vs State of HP, had already established binding precedent granting equal maternity leave rights to commissioning mothers.
State Ordered To Correct Denied Leave And Pay
The legal challenge was filed by a female medical officer who availed 180 days of leave starting September 17, 2020, after the birth of her first child via surrogacy, and sought another 180 days from September 27, 2022, following the birth of her second child. The health department refused to recognize the absences as maternity leave and withheld her salary for July, August, and eight days of September 2021. Although the department initiated disciplinary proceedings against her regarding the absences, the competent authority fully exonerated her on July 2, 2024.
Senior Advocate Ajay Sharma, representing the petitioner, argued before the court on August 3 that Rule 43 of the CCS (Leave) Rules guarantees 180 days of maternity leave to female employees with fewer than two surviving children, followed by other admissible leave.
Equal Rights For All Mothers
In the judgment, Justice Goel noted that motherhood holds equal standing whether achieved through natural childbirth or surrogacy, emphasizing that maternity leave is designed for the care and welfare of the child during early development. The court pointed out an inconsistency in the state’s policy, observing that Himachal Pradesh had introduced Rule 43-B in 2022 to grant 180 days of adoption leave for children under one year old, making its resistance to surrogacy leave unreasonable.
The decision also referenced similar rulings from the High Courts of Delhi, Bombay, and Chhattisgarh, which established that denying maternity benefits to commissioning mothers constitutes unlawful discrimination.
Quashing departmental communications dated August 22, 2023, and July 31, 2025, the high court ordered that the doctor’s 180-day periods following each birth be designated as maternity leave. Any subsequent time off is to be classified as admissible leave under Rule 43(4)(a) and Rule 43(4)(b) of the CCS Rules, with earned leave adjusted where applicable.
