# Renu Chaudhary v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-24
- **Case number:** Writ A No. 14833 of 2020
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/renu-chaudhary-v-state-of-u-p-ors-47496
- **Pages:** 13

## Headnote

A. Service Law - Maternity leave -
Maternity Benefit Act, 2017: Section 2
or 3(e), 5, 5-A, 5-B, 9, 9-A, 10, 11, 12,
27; U.P. Fundamental Rules, Vol. II
Part
II
to
IV
of
the
Financial
Handbook: Rule 153(1) - In the case of
establishments to which the Maternity
Act
does
not
apply,
there
is
no
question of conflict with the leave
rules
of
the
employers
of
such
establishments and the Maternity Act,
so as to bring in S. 27 of the said Act
that gives it overriding effect. There is
clearly no conflict between the second
proviso to Rule 153 of the Rules and the
Maternity Act, which does not apply to the
establishment of the Basic Education Board
or its maintained schools. The petitioner,
therefore, cannot claim any right founded
on the provisions of the Maternity Act in
derogation of Rule 153 of the Rules. (Para
8, 9, 25)

The petitioner here is an Assistant Teacher,
employed with an institution established
and maintained by the Uttar Pradesh Basic
Education Board. She is governed by the
Service Rules applicable to teachers of
primary schools maintained by the Board
and other rules, including the Rules that
apply, amongst other things, in the matter
of grant of leave. The petitioner is, in no
way, employed in an establishment as
defined in Section 3(e) of the Maternity Act
read
with
Section
2(1)
thereof.
The
petitioner is not an employee of an
establishment to which the Maternity Act
applies. (Para 24)

The
restriction
on
the
Right
to
Maternity
Leave
of
a
female
government servant, with regard to
the birth of her child, would be
reckoned with reference to the number
of children living at the time she
applies
for
maternity
leave,
irrespective of the fact whether the
two children living were born before or
after she entered government service.
(Para 6, 13, 26)
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
681
Writ petition dismissed. (E-4)

Precedent followed:

## Text

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680 INDIAN LAW REPORTS ALLAHABAD SERIES
married after the death of his father and
now his marital status is bachelor."

26. There is nothing on record to
suggest as to what is the educational
qualification of the petitioner and whether
he is working anywhere or not. It is hardly
inconceivable that a person (male) who is
aged about 46 years is not working
anywhere to sustain himself and rather
dependent upon the family pension of the
deceased (mother).

27. In the aforesaid factual and legal
backdrop, the prayer made by the petitioner
for declaration of the offending provisions
of the Government Order being violative of
Article 15(1) of the Constitution of India as
well as quashing of the order dated
16.3.2021 denying family pension to the
petitioner, is rejected.

28. No other points have been raised
by the learned counsel for the petitioner.

29.

Hence,
petition
fails
and
accordingly is hereby dismissed.
----------
(2022)01ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE J.J.MUNIR, J.

Writ A No. 14833 of 2020

Renu Chaudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Indra Dev

Counsel for the Respondents:
C.S.C., Sri Ram Bilas Yadav

A. Service Law - Maternity leave -
Maternity Benefit Act, 2017: Section 2
or 3(e), 5, 5-A, 5-B, 9, 9-A, 10, 11, 12,
27; U.P. Fundamental Rules, Vol. II
Part
II
to
IV
of
the
Financial
Handbook: Rule 153(1) - In the case of
establishments to which the Maternity
Act
does
not
apply,
there
is
no
question of conflict with the leave
rules
of
the
employers
of
such
establishments and the Maternity Act,
so as to bring in S. 27 of the said Act
that gives it overriding effect. There is
clearly no conflict between the second
proviso to Rule 153 of the Rules and the
Maternity Act, which does not apply to the
establishment of the Basic Education Board
or its maintained schools. The petitioner,
therefore, cannot claim any right founded
on the provisions of the Maternity Act in
derogation of Rule 153 of the Rules. (Para
8, 9, 25)

The petitioner here is an Assistant Teacher,
employed with an institution established
and maintained by the Uttar Pradesh Basic
Education Board. She is governed by the
Service Rules applicable to teachers of
primary schools maintained by the Board
and other rules, including the Rules that
apply, amongst other things, in the matter
of grant of leave. The petitioner is, in no
way, employed in an establishment as
defined in Section 3(e) of the Maternity Act
read
with
Section
2(1)
thereof.
The
petitioner is not an employee of an
establishment to which the Maternity Act
applies. (Para 24)

The
restriction
on
the
Right
to
Maternity
Leave
of
a
female
government servant, with regard to
the birth of her child, would be
reckoned with reference to the number
of children living at the time she
applies
for
maternity
leave,
irrespective of the fact whether the
two children living were born before or
after she entered government service.
(Para 6, 13, 26)
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
681
Writ petition dismissed. (E-4)

Precedent followed:

1. St. of Uttarakhand Vs Urmila Masih & ors.,
2019 SCC OnLine Utt. 927 (Para 9)

Precedent distinguished:

1. Municipal Corporation of Delhi Vs Female
Workers (Muster Roll) and another, (2000) 3
SCC 224 (Para 7)

2. Rachna Chaurasiya Vs St. of U.P. & ors., 2017
(6) ALJ 454 (Para 7)

3. Anshu Rani Vs St. of U.P. & ors., 2019 (3)
AWC 2049 (Para 7)

4. Mini K.T. Vs Senior Divisional Manager
(Disciplinary
Authority),
Life
Insurance
Corporation of India, Divisional Officer, W.P. (C)
No. 22007 of 2012 (A), decided on 21.12.2017
(Para 19)

5. Smt. Neelam Shukla Vs State of U.P. & ors.,
Writ - A No. 45265 of 2011, decided on
28.04.2015 (Para 7)

Present petition challenges order dated
20.11.2020, passed by Basic Education
Officer, Development Block, Shamshabad,
District - Agra.

(Delivered by Hon'ble J.J. Munir, J.)

The petitioner, an Assistant Teacher at
the
Prathmik
Vidyalaya,
Uncha
(Composit), Shamshabad, District - Agra,
impugns an order dated 20.11.2020 passed
by
the
Basic
Education
Officer,
Development Block, Shamshabad, District
- Agra, refusing to sanction her maternity
leave.

2. The petitioner is an Assistant
Teacher, working with the Prathmik
Vidyalaya Uncha (Composit), Shamshabad,
Agra. The Institution aforesaid is
established and maintained by the Uttar
Pradesh Basic Education Board. The
petitioner functions under the overall
supervision and control of the Basic
Education Officer, Agra and under the
immediate control of the Headmaster,
Prathmik Vidyalaya Uncha (Composit),
Shamshabad,
Agra.
Admittedly,
the
petitioner was appointed to the post of
Assistant Teacher on 29.06.2011 and joined
services w.e.f. 01.07.2011. It is common
ground between parties that at the time of
entry into service, the petitioner was a
married woman. Her service record shows
that a son was born to her on August the
19th, 2007 and a daughter on September
the 15th, 2011. Thus, a daughter was born
to the petitioner soon after she joined
service on July the 1st, 2011. It is perhaps
for the said reason that the current leave
balance account of the petitioner, that has
been annexed as Annexure No. S.A.1 to the
supplementary affidavit dated 18.06.2021,
shows that she has availed 180 days of
maternity leave, out of the total admissible
of 540, leaving a balance of 360 days in the
category. Though not very explicitly said
by the petitioner, the availed maternity
leave would relate to the second child born
to the petitioner soon after she joined
service.

3. The petitioner made an application
for grant of maternity leave, submitting it
online on November the 10th, 2020. This
application of the petitioner's has come to
be rejected by the order impugned dated
20.11.2020, passed by the Basic Education
Officer, Shamshabad, Agra, employing
words that express reason for the rejection,
that say : "Leave applied for third child
without any specific reason". It is this order
682 INDIAN LAW REPORTS ALLAHABAD SERIES
which the petitioner seeks to assail by
means of the present petition.

4. Parties have exchanged pleadings.

5. Heard Mr. Indra Dev Singh,
learned Counsel for the petitioner, Mr. J.N.
Maurya,
the
learned
Chief
Standing
Counsel appearing for respondent no. 1 and
Mr.
R.V.
Yadav,
learned
Counsel
appearing for respondent nos. 2, 3 and 4.

6. Mr. Indra Dev Singh, learned
Counsel for the petitioner, submits that the
right to maternity leave flows from a
Central Statute, that is to say, the Maternity
Benefit
Act,
1961,
as
amended
by
Maternity Benefit (Amendment) Act, 2017.
The said Act shall hereinafter be referred to
as the "Maternity Act". It is urged by the
learned Counsel for the petitioner that the
Maternity Act has increased the maternity
leave from eight weeks to twenty-two
weeks. There is no restriction envisaged in
the Act last mentioned regarding the count
of children, on whose birth, sanction of
maternity leave would depend. It is further
pointed out, on the strength of the
supplementary affidavit on behalf of the
petitioner, that though the child now born is
the third child, this is the second instance
that the petitioner had applied for maternity
leave. It is emphasized by Mr. Indra Dev,
learned Counsel for the petitioner, that the
petitioner has not applied for maternity
leave thrice. She has applied twice. The
first has been granted, and the second, the
present one, refused. It is refused on the
ground that the child, in relation to whose
birth the maternity leave is sought, is her
third child, and no particular or specific
reason has been pointed out why maternity
leave ought not to be granted on the birth of
a third child. It is submitted by the learned
Counsel
for
the
petitioner
that
the
respondents seek to support the impugned
order before this Court by falling back on
the provisions of Rule 153 (1) of the U.P.
Fundamental Rules, Vol. II Part II to IV of
the Financial Handbook. The said rules are
hereinafter referred to as "the Rules".

7. Mr. Indra Dev, learned Counsel for
the petitioner, further submits emphatically
that the first and the second child, with
regard to whose birth, a female government
servant is entitled to maternity leave, as a
matter of right, with restriction in the case
of a third child, is to be regarded as one
bearing reference to children born after the
government servant's entry into service. He
submits that the Rule postulates two
instances of maternity leave, with a gap of
two years, and the right given by the Rule,
if read the way the respondents urge, would
be nullified in case of a female government
servant, who enters service with two living
children, and none of whom suffer from
any kind of disability or handicap. It is
urged by the learned Counsel for the
petitioner that this is not the purpose or the
intent of Rule 153 of the Rules. He argues
that Fundamental Rule 153 is not a charter
about family planning, but a concession in
favour of the female government servant. It
has been introduced in order to afford equal
right to women to work with men in
accordance with the mandate of Article 15
without any discrimination, balancing at
the same time their special role in society
as birth-givers to the next generation. He
submits that placing a restriction of this
kind on the right of a woman to maternity
leave would be a violation of the Maternity
Act, as amended by the Act of 2017. It is
argued that the Maternity Act does not
envisage any kind of a restriction in the
workplace on extension of maternity
benefit, and the Rules cannot be given
effect to in conflict with the Central
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
683
Statute. In support of his contention,
learned Counsel for the petitioner has
placed reliance on the decision of the
Supreme Court in Municipal Corporation
of Delhi v. Female Workers (Muster
Roll) and another1. Besides the authority,
reliance has also been placed on the
decision of this Court in Anshu Rani v.
State of U.P. and others2. Learned
Counsel for the petitioner further relies on
the decision of a Division Bench of this
Court in Rachna Chaurasiya v. State of
U.P. and others3. To particularly support
his submission, learned Counsel for the
petitioner has relied on an unreported
decision of Pradeep Kumar Singh Baghel,
J. in Smt. Neelam Shukla v. State of U.P.
and others4.

8. Mr. R.V. Yadav, Advocate, who
has been joined in his submissions by Mr.
J.N. Maurya, the learned Chief Standing
Counsel,
submits
on
behalf
of
the
respondents that under Rule 153 of the
Rules, the provision for maternity leave
postulates a leave specific to female
government servant for a period of 180
days vis-à-vis one child, but, in the
submission of the learned Counsel for the
respondents, maternity leave cannot be
sanctioned more than twice, as a matter of
right or entitlement. It can be sanctioned a
third time, with the condition that of the
two children of a female government
servant living, one suffers from an
incurable
disease
or
is
handicapped.
Learned Counsel for the respondents
submit that it is only in case of those
special circumstances about an incurable
disease or handicap, afflicting one or the
two living children of a female government
servant, that maternity leave in case of birth
of a third child is admissible under Rule
153 of the Rules. It is not admissible in any
event, if the government servant has
two healthy children living, and is blessed
with a third child, with regard to whom she
seeks maternity leave.

9. Mr. R.V. Yadav has reposed faith
in the decision of a Division Bench of the
Uttarakhand High Court in State of
Uttarakhand v. Urmila Masih and
others5 to submit that the Maternity Act
does not apply to a government servant, or
for that matter, anyone except those
specific kind of employees who are
referred to under Section 2 or 3(e) thereof.
It is urged that since the petitioner is an
Assistant Teacher and not an employee of
any
of
the
kind
of
employers
or
establishments envisaged under Section
2(1)(a) or (b), or the establishment of the
kind envisaged under Section 3(e) of the
Maternity Act, it cannot be argued that the
provision of Rule 153(1) of the Rules are in
conflict with the Maternity Act, which is a
Central Statute, covering the same field.
The decision in Municipal Corporation of
Delhi (supra) is one that relates to female
workers
engaged
by
the
Municipal
Corporation of Delhi, who are daily wagers
working on muster roll. They had raised a
demand for grant of maternity leave that
was available to regular female workers of
the Corporation, but denied to muster roll
employees. An industrial dispute was
raised by the Delhi Municipal Workers'
Union, which led to a reference to the
Industrial Tribunal in terms whether the
female
workers
working
with
the
Corporation on muster roll should be given
any maternity benefit. Admittedly, it was a
case, to which no service rules, and more
particularly, leave rules, would apply.
These
were
women
workers,
whose
conditions of employment were hardly any
and absolutely unregulated by statutory
684 INDIAN LAW REPORTS ALLAHABAD SERIES
rules, except the protection of industrial
laws.

10. The Court has considered rival
submissions advanced by learned Counsel
for both parties, perused the record and the
Rules.

11. The moot question involved here
is :

Whether the restriction on the
Right to Maternity Leave of a female
government servant with regard to a third
child would reckon towards the total count
of her children living, when she makes the
leave application, or the Rule takes into
reckoning only such of her children as are
born after her entering government service?

12. Rule 153 of the Rules (as
amended in its application to U.P. vide
Office Memorandum No. सा-2-2017/दस2008-216/79, dated 8th December, 2008)
reads :

"153. दकसी मदहला सरकारी सेवक
को, चाहे वह थथार्ी हो र्ा अथथार्ी, प्रसूदत
अवकाश ऐसे पूणय वेतन पर जो वह इस प्रकार
के अवकाश पर जाने के ददनाांक को आहररत
कर रही हो, दविागाध्यक्ष द्वारा र्ा दकसी दनम्न
प्रादधकारी द्वारा, दजसे इस दनदमत्त शस्क्त
प्रत्यार्ोदजत की जार्े, दनम्नदलस्खत के अधीन
रहते हुए स्वीकृत दकर्ा जा सकता है-

(1) प्रसवावथथा के मामले में, प्रसूदत
अवकाश की अवदध अवकाश के प्रारि के
ददनाांक से 180 ददन तक हो सकती है:

परन्तु ऐसा अवकाश सम्पूणय सेवा के
दौरान दजसके अन्तगयत अथथार्ी सेवा िी है, तीन
बार से अदधक स्वीकृत नहीां दकर्ा जार्ेगा:

परन्तु र्ह िी दक यवद वकसी मवहला
सरकारी सेिक के दो या अविक जीवित िच्चे
हो तो उसे प्रसूवत अिकाश स्वीकृत िहीं
वकया जायेगा, भले ही उसे ऐसा अिकाश
अन्यर्ा अिुमन्य हो। दिर िी र्दद मदहला
सरकारी सेवक के दो जीदवत बच्चोां में से कोई
िी बच्चा जन्म से दकसी असाध्य रोग से पीद डत
हो र्ा दवकलाांग र्ा अपांग हो र्ा बाद में दकसी
असाध्य रोग से ग्रस्त हो जार्े र्ा दवकलाांग र्ा
अपांग हो जार्े, तो उसे अपवाद के रूप में इस
शतय पर दक प्रसूदत अवकाश सम्पूणय सेवा के
दौरान तीन बार से अदधक स्वीकृत नहीां दकर्ा
जार्ेगा, एक बच्चा और पैदा होने तक प्रसूदत
अवकाश स्वीकृत दकर्ा जा सकता है:

परन्तु र्ह और दक ऐसा अवकाश तब
तक अनुमन्य नहीां होगा, जब तक दक इस दनर्म
के अधीन स्वीकृत दपिले प्रसूदत अवकाश की
समास्प्त के ददनाांक से कम से कम दो वषय की
अवदध व्यतीत न हो जार्े।

(2) गियपात के मामलोां में, दजसके
अन्तगयत गियस्राव िी है, प्रसूदत अवकाश की
अवदध सम्बस्ित मदहला सरकारी सेवक के
जीदवत बच्चोां की सांख्या का ध्यान ददर्े दबना
प्रत्येक अवसर पर कुल ि: सप्ताह तक हो
सकती है, बशते दक अवकाश के आवेदन-पत्र
के साथ प्रादधकृत दचदकत्सक का प्रमाण-पत्र
हो।" (emphasis by Court)

13. A perusal of Rule 153 shows that a
female
government
servant,
whether
permanent or temporary, would be entitled to
maternity leave on full pay for a period of 180
days in case of confinement from the date of
commencement of leave. The first proviso
restricts the right to a maximum of three
maternity leaves during the entire tenure of a
government servant. The second proviso
restricts the right in regard to maternity leave
in case the female government servant has two
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
685
or more living children, in which case, she
would not be entitled to maternity leave. The
restriction on the entitlement to maternity
leave of a female government servant, if she
has two or more children living, is subject to
the relaxation that where either of the two
children living is suffering from an incurable
disease or disabled or crippled since birth or
contracts some incurable disease or becomes
disabled or crippled later, the female
government servant may be granted maternity
leave in relation to the birth of one more child.
However so, the entire maternity leave during
the service tenure would not exceed thrice of
what can be granted in a single instance. In
other words, the maternity leave, in any case,
cannot exceed the total period of 180 x 3 =
540 days. It is due to the operation of Rule 153
of the Rules that the petitioner's leave account
shows the maximum leave due as 540 days.
When the petitioner joined service, she had a
single child, a son. The second child was born
to her soon after she joined service. It is on that
account that she was sanctioned maternity
leave on the birth of her second child, that has
been debited from her leave account.

14. In Municipal Corporation of Delhi
there was absolutely no facility extended to
women workers working for the Corporation
on daily-wage basis by way of maternity
benefits, though these were available to their
counterparts working on regular basis. Their
Lordships, therefore, went into the rights of
women, when engaged in any kind of work
about their special needs relating to maternity
leave. The principle there proceeded on the
basis that needs of women in employment
emanate from their inherent nature and
motherhood, where the nature and tenure of
employment is irrelevant. Also, in Municipal
Corporation of Delhi, it was held, though a
dispute was raised about it, the employer fell
into one of the categories to which the
Maternity Act applied.

15. It was in the context of the
aforesaid
facts
and
the
nature
of
employment that their Lordships of the
Supreme Court held that the Maternity Act
would apply to such women, who would be
entitled to the various maternity benefits
available under Sections 5, 5-A, 5-B, 9, 9A, 10, 11 and 12 of the Act under
reference. It was in the context of the
aforesaid facts and nature of employment
that it was held in Municipal Corporation
of Delhi (supra) :

6. Not long ago, the place of a
woman
in
rural
areas
had
been
traditionally her home; but the poor
illiterate women forced by sheer poverty
now come out to seek various jobs so as
to overcome the economic hardship. They
also take up jobs which involve hard
physical labour. The female workers who
are engaged by the Corporation on muster
roll have to work at the site of
construction and repairing of roads. Their
services have also been utilised for
digging of trenches. Since they are
engaged on daily wages, they, in order to
earn their daily bread, work even in an
advanced stage of pregnancy and also
soon
after
delivery,
unmindful
of
detriment to their health or to the health
of the new-born. It is in this background
that we have to look to our Constitution
which, in its Preamble, promises social
and economic justice. We may first look
at the fundamental rights contained in
Part III of the Constitution. Article 14
provides that the State shall not deny to
any person equality before law or the
equal protection of the laws within the
686 INDIAN LAW REPORTS ALLAHABAD SERIES
territory of India. Dealing with this
article vis-à-vis the labour laws, this
Court in Hindustan Antibiotics Ltd. v.
Workmen [AIR 1967 SC 948 : (1967) 1
SCR 652 : (1967) 1 LLJ 114] has held
that labour to whichever sector it may
belong in a particular region and in a
particular industry will be treated on
equal basis. Article 15 provides that the
State shall not discriminate against any
citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
Clause (3) of this article provides as
under:

"15. (3) Nothing in this article
shall prevent the State from making any
special
provision
for
women
and
children."

.

.

11. It is in the background of the
provisions
contained
in
Article
39,
specially in Articles 42 and 43, that the
claim of the respondents for maternity
benefit and the action of the petitioner in
denying that benefit to its women
employees has to be scrutinised so as to
determine whether the denial of maternity
benefit by the petitioner is justified in law
or not.

12. Since Article 42 specifically
speaks of "just and humane conditions of
work" and "maternity relief", the validity
of an executive or administrative action
in denying maternity benefit has to be
examined on the anvil of Article 42
which, though not enforceable at law, is
nevertheless available for determining the
legal efficacy of the action complained
of.

13. Parliament has already made
the Maternity Benefit Act, 1961. It is not
disputed that the benefits available under
this Act have been made available to a
class of employees of the petitioner
Corporation. But the benefit is not being
made available to the women employees
engaged on muster roll, on the ground
that they are not regular employees of the
Corporation. As we shall presently see,
there is no justification for denying the
benefit of this Act to casual workers or
workers employed on daily-wage basis.

.

.

27. The provisions of the Act
which have been set out above would
indicate
that
they
are
wholly
in
consonance with the Directive Principles
of State Policy, as set out in Article 39
and in other articles, specially Article 42.
A woman employee, at the time of
advanced pregnancy cannot be compelled
to undertake hard labour as it would be
detrimental to her health and also to the
health of the foetus. It is for this reason
that it is provided in the Act that she
would be entitled to maternity leave for
certain periods prior to and after delivery.
We have scanned the different provisions
of the Act, but we do not find anything
contained in the Act which entitles only
regular women employees to the benefit
of maternity leave and not to those who
are engaged on casual basis or on muster
roll on daily-wage basis.

28.
The
Industrial
Tribunal,
which has given an award in favour of the
respondents, has noticed that women
employees have been engaged by the
Corporation on muster roll, that is to say,
on daily-wage basis for doing various kinds
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
687
of works in projects like construction of
buildings, digging of trenches, making of
roads, etc., but have been denied the benefit
of maternity leave. The Tribunal has found
that though the women employees were on
muster roll and had been working for the
Corporation for more than 10 years, they
were
not
regularised.
The
Tribunal,
however, came to the conclusion that the
provisions of the Maternity Benefit Act had
not been applied to the Corporation and,
therefore, it felt that there was a lacuna in
the Act. It further felt that having regard to
the activities of the Corporation, which had
employed more than a thousand women
employees, it should have been brought
within the purview of the Act so that the
maternity benefits contemplated by the Act
could be extended to the women employees
of the Corporation. It felt that this lacuna
could be removed by the State Government
by issuing the necessary notification under
the proviso to Section 2 of the Maternity
Act. This proviso lays down as under:

"Provided
that
the
State
Government may, with the approval of the
Central Government, after giving not less
than two months' notice of its intention of
so doing, by notification in the Official
Gazette, declare that all or any of the
provisions of this Act shall apply also to
any other establishment or class of
establishments,
industrial,
commercial,
agricultural or otherwise."

29. It consequently issued a
direction to the management of the
Municipal Corporation, Delhi to extend the
benefits of the Maternity Benefit Act, 1961
to such muster-roll female employees who
were
in
continuous
service
of
the
management for three years or more and
who fulfilled the conditions set out in
Section 5 of the Act.

16. In the present case, the petitioner
is an employee of a primary school run by
the Basic Education Board, under the
overall control of the Directorate of Basic
Education. It is not in issue that the Right
to Maternity Leave is available to the
petitioner in terms of Rule 153 of the
Rules. The right, though available like any
other leave, is well regulated. The question
involved in this case is, therefore, quite
different from that involved in Municipal
Corporation of Delhi. Here, there is no
case of a discrimination between one class
of women employees and another, on the
basis of the nature of their services or
tenure. It is simply about the true import of
the Right to Maternity Leave flowing from
Rule 153. Municipal Corporation of
Delhi is not a decision that interprets the
extent of Right to Maternity Leave under
Rule 153 of the Rules, or one that lays
down the principle that the Maternity Act
would prevail over Rule 153. The said
decision does not, therefore, come to the
the petitioner's rescue.

17. The next decision that has been
pressed in aid by the learned Counsel for
the petitioner is Rachna Chaurasiya
(supra). There, again, the issue involved a
contractual employee and a doctor, at that.
In that case, the petitioner was appointed
on the post of Lecturer (Radio Diagnosis)
on contractual basis at the M.L.B. Medical
College, Jhansi. She was appointed in the
year 2009. She applied for maternity leave
for a period of six months in the year 2016,
which was granted. The petitioner, in the
case under reference, found later on that the
child was not comfortable in the maid's
688 INDIAN LAW REPORTS ALLAHABAD SERIES
care, retained for the purpose. She applied
for Child Care Leave for a period of three
months to the Principal of the Medical
College. The said application was rejected
on the ground that the petitioner was a
contractual employee, and therefore, not
entitled
to
Child
Care
Leave.
The
provisions of Maternity Act, the policy of
the Central Government about Child Care
Leave for women employees and the State
Government Policy that adopted the
Central Government's, were all considered
together by their Lordships of the Division
Bench to hold in Rachna Chaurasiya thus :

23. Maternity benefit is a social
insurance and the Maternity Leave is given
for maternal and child health and family
support.
On
a
perusal
of
different
provisions of the Act, 1961 as well as the
policy of the Central Government to grant
Child Care Leave and the Government
Orders issued by the State of U.P. adopting
the same for its female employees, we do
not find anything contained therein which
may entitle only to women employees
appointed on regular basis to the benefit of
Maternity Leave or Child Care Leave and
not those, who are engaged on casual basis
or on muster roll on daily wage basis.

18.

The
issue
in
Rachna
Chaurasiya, thus, again was about the
nature of Child Care Leave that is innate
to a woman. It was held that it cannot be
denied on the ground of the nature of her
services being contractual or regular.
Nothing
was
decided
in
Rachna
Chaurasiya that may bear upon the
validity of the second proviso to Rule 153
of the Rules, limiting maternity leave to a
female government servant as a matter of
right to a maximum of two children, with
a qualified right in the case of a third.

19. In Anshu Rani (supra), the Court
had to consider the Right to Maternity
Leave of a woman who was an Anudeshak
appointed
at
a
Purwa
Madhyamik
Vidyalaya. She applied for maternity leave
from 01.10.2018 to 31.03.2019. She was
sanctioned
leave
for
90
days
with
honorarium. She asked for the grant of
maternity leave for 180 days, that was
ignored by the District Basic Education
Officer of Bijnor. The Officer did not
assign any reason for declining the 180
days' maternity leave and limiting it to 90.
In the counter affidavit, the State took a
stand that it was not possible to grant
maternity leave to the petitioner beyond 90
days, because of the provision made in
Government Orders dated 20.11.2017 and
03.01.2018, that were annexed to the
return.
The
Maternity
Act
and
its
provisions were dealt with after an
extensive reference to various decisions
about maternity leave, including that in
Municipal Corporation of Delhi and the
decision of the High Court of Kerela in
Mini. K.T. v. Senior Divisional Manager
(Disciplinary Authority), Life Insurance
Corporation of India, Divisional Office6,
where it was held that the petitioner is
entitled to maternity leave for a period of
six months that had been refused illegally.
There is no principle discernible from the
decision, nor any question involved, that
may have bearing on the point whether the
Right to Maternity Leave provided under
Rule 153 of the Rules, limited to a
maximum number of two children, is, in
any way, an invasion of the Right to
Motherhood or a violation of the Maternity
Act. The decision in Anshu Rani does not
even examine the question whether the
Maternity Act at all applies to a Purwa
Madhyamik Vidyalaya, established and run
by the Basic Education Board. There is no
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
689
principle in Anshu Rani, therefore, that
may be of assistance to the petitioner.

20. The last case relied upon by the learned
Counsel for the petitioner, is the decision of this
Court in Smt. Neelam Shukla (supra). The
petitioner there was an Assistant Teacher in a
primary school run by the Basic Education
Board. She sought maternity leave from
28.10.2010 to 27.04.2011. She said in her
application that she had two children before her
appointment as an Assistant Teacher, and after
joining service, given birth to a third child. Thus,
the leave now sought was her first maternity
leave during service. It was urged that she was
entitled to 180 days leave under Rule 153 of the
Rules. Her application was rejected by the
authorities on the ground that the petitioner had
three children, and under the Government Order
dated 08.12.2008, maternity leave is admissible
twice during the period of service. The stand
taken by the authorities before the Court was that
under Rule 153 read with Government Orders
dated 04.06.1999 and 08.12.2008, the petitioner
was not entitled to maternity leave for her third
child. The Court, repelling the contention of the
respondents in Smt. Neelam Shukla held :

Admittedly the petitioner has
moved an application for maternity leave for
the first time in her service. Thus she is
entitled for the leave in terms of the
Government Order dated 4.6.1999 and
8.12.2008. The view taken by the Basic
Shiksha Adhikari is erroneous and based on
misconception. Accordingly, I find that the
Basic Shiksha Adhikari has not properly
appreciated the grievance of the petitioner in
the light of the aforementioned two
Government Orders and Rule 153 of the
Financial Hand Book (2) Part II to IV and
has passed the order arbitrarily without
application of mind.
21. A perusal of the decision in
Smt. Neelam Shukla does not show that
the provisions of Rule 153 of the Rules
were brought to the Court's notice in all
their detail about the right of a female
government servant to seek maternity leave
for the birth of her third child. A careful
perusal of the second proviso to Rule
153(1) of the Rules shows that the Right to
Maternity Leave is hedged in with the clear
restriction that any female government
servant, who has two or more children
living, shall not be granted maternity leave,
though such leave may otherwise be
admissible to her. The words of the second
proviso are disentitling in nature and an
exception to the right otherwise conferred
upon a female government servant. The
restriction is dependent on the fact that at
the time the female government servant
applies for maternity leave, whether she has
two or more living children; if she has two
or more living children as a rule, she is not
entitled to maternity leave. It is entirely
irrelevant in the scheme of Rule 153 of the
Rules, whether the children were born
before entering service or afterwards. The
only relevant fact is that the time when she
applies for leave, she has two or more
children living or less than two. This clear
import of the words of the second proviso
in Rule 153 not being noticed by the Court
in Smt. Neelam Shukla, the decision must
be held per incuriam. In the clear opinion
of this Court, Rule 153 of the Rules read as
a whole, particularly, the second proviso to
the Rule, does not spare a shadow of doubt
that a female government servant, who has
two children living born to her, whether
before she entered service or afterwards, is
not entitled to avail maternity leave, if a
third child is born afterwards. The only
exception would be the case where, of the
two children living, one is suffering from
690 INDIAN LAW REPORTS ALLAHABAD SERIES
an incurable disease or is disabled or
crippled
since
birth,
and
the
other
contingencies envisaged in the latter part of
the second proviso to Rule 153(1). The
petitioner does not assert a case on the
lines, where, for the third child, the second
proviso makes relaxation.

22. So far as the question of Rule 153
of the Rules being in conflict with the
Maternity
Act
or
ultra
vires
the
Constitution is concerned, the question fell
for consideration before a Division Bench
of Uttarakhand High Court on an appeal
from a judgment of a learned Single Judge
in State of Uttarakhand v. Urmila Masih
(supra). It appears that the writ petitioner in
the aforesaid case filed a writ petition,
seeking to quash an order denying her
maternity leave and benefits for the third
child born to her. She further sought a
mandamus, commanding the respondents to
grant
maternity
leave
and
benefits
according to the Maternity Act, and to
declare Rule 153 of the Rules, as adopted
in the State of Uttarakhand, ultra vires and
unconstitutional,
to
the
extent
that
restrictions were placed on the grant of
maternity leave to women who had two or
more children living. The learned Single
Judge upheld the challenge, holding in
terms that are set out in the judgment of the
Division Bench. It is recorded by their
Lordships of the Division Bench in State of
Uttarakhand v. Urmila Masih in the
following words :

8. In the order under appeal, the
learned Single Judge relied on a Division
Bench judgment of the Punjab and Haryana
High Court, in Ruksana v. State of
Haryana, 2011 SCC OnLine P&H 4666 and
Article 42 of the Constitution of India, to
hold that the second proviso to FR 153 was
not in conformity with Section 27 of the
1961 Act, and was also against the spirit of
Article 42 of the Constitution of India. The
second proviso to FR 153 of the U.P.
Fundamental Rules, as adopted by the State
of Uttarakhand, was declared ultra vires
and unconstitutional, and was struck down.
The State Government was directed to
provide maternity leave from 30.06.2015 to
09.12.2015 within six weeks from the date
of the order under appeal. .......

23. The question about the overriding
effect of the Maternity Act vis-à-vis Rule
153 of the Rules (the said Rule as amended
in its application to Uttarakhand being in
no way materially different from the Rules
in force in U.P.) was considered with
reference to the provisions of Section 27 of
the Maternity Act in State of Uttarakhand
v. Urmila Masih, holding thus :

11.
As
noted
hereinabove,
Section 27 of the 1961 Act relates to effect
of laws and agreements inconsistent with
the 1961 Act, and, in the light of the nonobstante clause in Section 27(1), the 1961
Act shall have effect notwithstanding
anything inconsistent therewith contained
in any other law whether made after or
before the coming into force of the 1961
Act. Any law inconsistent with the 1961
Act would cease to apply in view of the
non-obstante clause in Section 27 of the
1961 Act. It is only if the 1961 Act is
applicable,
would
the
question
of
inconsistency between the said Act and the
second proviso to FR 153 arise for
consideration.

.

.

13. Section 3(e) of the 1961 Act
defines "establishment" to means (i) a
1 All. Renu Chaudhary Vs. State of U.P. & Ors.
691
factory; (ii) a mine; (iii) a plantation; (iv)
an establishment wherein persons are
employed for the exhibition of equestrian,
acrobatic and other performances; (iv) a
shop
or
establishment;
or
(v)
an
establishment to which the provisions of
this Act have been declared under subsection (1) of Section 2 to be applicable.

14. Reference to an establishment
belonging to Government in Section 2(1)(a)
of the 1961 Act must be read in
conjunction with Section 3(e) thereof, and,
when so read, it would only mean that a
factory, a mine, a plantation of the
Government, would alone fall within the
ambit of Section 2(1)(a) of the 1961 Act.

15. The respondent-writ petitioner
is,
admittedly,
a
government
servant.
Government servants are not employed in
Government factories, mines and plantations,
and would not therefore fall within the ambit
of Section 2(1)(a) of the 1961 Act, as the Act
itself is inapplicable to Government servants.
The question of the second proviso to FR 153,
being contrary to the provisions of 1961 Act,
does not therefore arise. The applicability of
1961 Act to government servants was not in
issue before the Punjab and Haryana High
Court in Ruksana v. State of Haryana, 2011
SCC OnLine P&H 4666. Likewise, this
question did not arise for consideration even
before the Madras High Court in J. Sharmila v.
The Secretary to Government Education
Department, 2010 SCC OnLine Mad 5221.

.

.

18. Since the 1961 Act is, itself,
inapplicable to government servants, the
question, of the second proviso to FR
153 being inconsistent with the provisions
of the 1961 Act, does not arise. Section 27
of the 1961 Act cannot, therefore, form the
basis of declaring the second proviso to FR
153 ultra vires the provisions of the 1961
Act.

24. Like the writ petitioner in State of
Uttarakhand v. Urmila Masih, the
petitioner here is an Assistant Teacher,
employed with an institution established
and maintained by the Uttar Pradesh Basic
Education Board. She is governed by the
Service Rules applicable to teachers of
primary schools maintained by the Board
and other rules, including the Rules that
apply, amongst other things, in the matter
of grant of leave. The petitioner is, in no
way, employed in an establishment as
defined in Section 3(e) of the Maternity Act
read with Section 2(1) thereof. She is not
employed in a factory, a mine, a plantation,
an establishment wherein persons are
employed for the exhibition of equestrian,
acrobatic and other performances or a shop
or establishment of any kind or a factory, a
mine or a plantation of the Government.
Clearly, the petitioner is not an employee
of an establishment to which the Maternity
Act applies.

25. I am in respectful agreement with
their Lordships of the Division Bench in
State of Uttarakhand v. Urmila Masih
that in the case of establishments to which
the Maternity Act does not apply, there is
no question of conflict with the leave rules
of the employers of such establishments
and the Maternity Act, so as to bring in
Section 27 of the said Act that gives it
overriding effect.