# Smt. Anupam Yadav v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Writ A No. 9535 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anupam-yadav-v-state-of-u-p-ors-47914
- **Pages:** 12

## Headnote

Rule 153 (I) of Chapter XIII of the
U.P. Fundamental Rules in Financial
Handbook Volume-II, Part 2 to 4,
Maternity Benefit Act,1961: The writ
petitioners-who are working as Assistant
Teachers in Primary Schools managed by
the
Uttar
Pradesh
Basic
Education
Department-the
online
maternity
leave
application has been turned down on the
ground "not admissible"-Second maternity
leave cannot be granted where there is
difference of less than two years between
the end of the first maternity leave and
grant
of
second
maternity
leave-The
admissibility of leave to a women with
regard to second pregnancy which would
be governed by the Maternity Benefit Act,
1961 and not Rule 153 (1) of the Financial
Handbook Volume II to IV.
W.P. allowed. (E-9)
List of Cases cited:

## Text

_Characters 0–39,392 of 40,348. This is a partial read: ask again with offset=39392 for what follows._

892 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 21 of the Constitution of India and the
law laid down by the Hon'ble Apex Court in
the case of Dataram Singh Vs. State of U.P.
and another, reported in (2018) 3 SCC 22,
this Court is of the view that the applicant
may be enlarged on bail.

12. The prayer for bail is granted. The
application is allowed.

13. Let the applicant Abbu Sahma
involved in Case Crime No. 163 of 2022,
under Sections 304, 308 IPC and section 5
Explosive Substances Act, Police Station
Dariyabad, District Barabanki, be released on
bail on his executing a personal bond and two
sureties each in the like amount to the
satisfaction of the court concerned on the
following conditions :-

(1) The applicant will not make
any attempt to tamper with the prosecution
evidence in any manner whatsoever.

(2) The applicant will personally
appear on each and every date fixed in the
court below and his personal presence shall
not be exempted unless the court itself deems
it fit to do so in the interest of justice.

(3) The applicant shall cooperate in
the trial sincerely without seeking any
adjournment.

(4) The applicant shall not indulge
in any criminal activity or commission of any
crime after being released on bail.

(5) In case the applicant misuses
the liberty of bail during trial and in order to
secure his presence, proclamation under
Section 82 Cr.P.C. is issued and the applicant
fails to appear before the court on the date
fixed in such proclamation, then the trial
court shall initiate proceedings against him, in
accordance with law, under section 174-A of
the Indian Penal Code.

(6) The applicant shall remain
present in person, before the trial court on the
date fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under section 313 Cr.P.C. If in the
opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial court
to treat such default as abuse of liberty of bail
and proceed against him in accordance with
law.

(7) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(8)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of the
order from the official website of High Court,
Allahabad and shall make a declaration of
such verification in writing.

14. It may be observed that in the event
of any breach of the aforesaid conditions, the
court below shall be at liberty to proceed for
the cancellation of the applicant's bail.

15. It is clarified that the observations,
if any, made in this order are strictly confined
to the disposal of the bail application and
must not be construed to have any reflection
on the ultimate merits of the case.
----------
(2022) 11 ILRA 892
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 9535 of 2022
Alongwith other cases

Smt. Anupam Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
11 All. Smt. Anupam Yadav Vs. State of U.P. & Ors.
893
Counsel for the Petitioner:
Sri V.K. Agnihotri

Counsel for the Respondents:
C.S.C., Sri Chandan Kumar, Sri Vikram
Bahadur Singh

Rule 153 (I) of Chapter XIII of the
U.P. Fundamental Rules in Financial
Handbook Volume-II, Part 2 to 4,
Maternity Benefit Act,1961: The writ
petitioners-who are working as Assistant
Teachers in Primary Schools managed by
the
Uttar
Pradesh
Basic
Education
Department-the
online
maternity
leave
application has been turned down on the
ground "not admissible"-Second maternity
leave cannot be granted where there is
difference of less than two years between
the end of the first maternity leave and
grant
of
second
maternity
leave-The
admissibility of leave to a women with
regard to second pregnancy which would
be governed by the Maternity Benefit Act,
1961 and not Rule 153 (1) of the Financial
Handbook Volume II to IV.
W.P. allowed. (E-9)
List of Cases cited:

1. Service Single No.32394 of 2019 (Smt.
Richa Shukla Vs State of U.P. through Addl.
Chief Secretary Basic Education Lko &
others)

2. Renu Chaudhary Vs St. of U.P. & ors.
reported in 2022 (2) ADJ 14

3.Municipal Corpn. of Delhi Vs Female Workers
(Muster Roll), (2000) 3 SCC 224

4.Hindustan Antibiotics Ltd. Vs Workmen [AIR
1967 SC 948 :(1967) 1 SCR 652 : (1967) 1 LLJ
114]

5. Yusuf Abdul Aziz Vs St. of Bombay [AIR 1954
SC 321 : 1954 SCR 930]

6. Dr. Rachna Chaurasiya Vs St.of U.P. & ors.
[2017(11) ADJ 399 (DB)] 7.Anshu Rani Vs St. of
U.P. & ors., Writ-A No. 3486 of 2019
(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. These writ petitions raise common
questions of law and facts and thus are
being decided together by a common order.
The writ petitioners, who are working as
Assistant Teachers in Primary Schools
managed by the Uttar Pradesh Basic
Education Department, have approached
this Court assailing the orders passed by the
competent
authority
/
District
Basic
Education Officer whereby and whereunder
the sanction of maternity leave for 180 days
has been turned down by stating that the
same is not admissible/ or on the ground
that the period of 2 years have not elapsed
from the date of the expiry of the last
maternity leave granted to them under the
proviso to Rule 153 (I) of Chapter XIII of
the U.P. Fundamental Rules in Financial
Handbook Volume-II, Part 2 to 4.

2. In order to adjudicate the legal
issue involved the facts of writ petition No.
9535 of 2022 are being considered.

3. The writ petitioner was appointed
as Assistant Teacher at Primary School
Dhakatal Mahewa District Etawah vide
appointment letter dated 28.6.2016. The
petitioner gave birth to a male child on
4.1.2021. Thereafter, the petitioner again
became pregnant and applied for maternity
leave online on 17.6.2022. The online
maternity leave application of the petitioner
has been turned down on the ground "not
admissible" by the impugned order dated
23.6.2022. It is contended by learned
counsel for the petitioner that rejection of
the maternity leave to the petitioner by the
impugned order is patently illegal as no
reasons whatsoever has been disclosed by
the District Basic Education Officer in
turning down the maternity leave to the
894 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner. He submits that the maternity
leave is the right of a women employee
during pregnancy and cannot be turned
down in the manner as has been done by
the respondents. Learned counsel has
placed reliance upon a decision of the coordinate Bench dated 11.12.2019 passed in
Service Single No. 32394 of 2019 (Smt.
Richa Shukla versus State of U.P. through
Addl. Chief Secretary Basic Education
Lko & others) to submit that maternity
leave to the petitioner therein was refused
by orders dated 13.11.2019 and 27.11.2019.
The Court proceeded to quash the orders
dated 13.11.2019 and 27.11.2019 allowed
the writ petition and issued a writ of
mandamus directing the respondent No. 4
therein to consider the case of the petitioner
for grant of maternity leave. Learned
counsel for the petitioner accordingly
submits
that
petitioner
is
equally
circumstanced and is also entitled to the
relief as extended to the petitioner of
Service Single No. 32394 of 2019.

4. Shri Chandan Kumar, learned
Standing Counsel, in opposition, to the writ
petition submits that the claim of the writ
petitioner for maternity leave has been
turned down as the same is not admissible
on the ground that period of two years has
not elapsed from the date of expiry of the
last
maternity
leave
granted
to
the
petitioner under the proviso of Rule 153 (1)
of Chapter XIII of U.P. Fundamental Rules
in Financial Handbook Volume-II, Part 2 to
4. He further submits that the controversy
involved in the present writ petition has
been settled by a co-ordinate Bench of this
Court in the case of Renu Chaudhary
versus State of U.P. and others reported in
2022 (2) ADJ 14 wherein the Court has
proceeded to hold that the petitioner therein
who is an Assistant Teacher employed with
an Institution established and maintained
by the Uttar Pradesh Basic Education
Board is governed by the Service Rules
applicable to teachers of Primary Schools
maintained by the Board and other Rules
including rules that apply regarding grant
of leave. An employee of the Institution run
and managed by the U.P. Basic Education
Board
is
not
an
employee
of
an
establishment to which the Maternity Act
applies. There is no conflict between the
second proviso to Rule 153 of the
Fundamental Rules and the Maternity Act
which does not apply to the establishment
of the Basic Education Board or the schools
maintained by it. 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 the Government Service. Shri
Chandan Kumar thus prays that the
petitioner herein is not entitled to claim
parity to the decision passed in Service
Single No. 32394 of 2019 and the writ
petition is liable to be dismissed.

5. The rival contentions fall for
consideration.

6. I have heard the learned counsel for
the parties at length and have perused the
record.

7. Learned counsel for the respondent
has placed heavy reliance on the decision
of the co-ordinate Bench of this Court in
the case of Renu Chaudhary (supra) to
non suit the petitioner. Having gone
through the aforesaid decision, I find that
the decision proceeds on the premise that
the Maternity Benefit Act, 1961 is not
applicable to the establishment of the Basic
11 All. Smt. Anupam Yadav Vs. State of U.P. & Ors.
895
Education Board or the Schools maintained
by it. The decision further rules that there is
clearly no conflict between the second
proviso to Rule 153 of the Rules and the
Maternity Benefit Act, 1961. Rather no
question of any conflict with the Maternity
Benefit Act, 1961 can be said to arise with
the leave rules i.e. the Fundamental Rule
153 as the Maternity Benefit Act, 1961 is
not applicable to the case of the petitioner.
On the other hand, the learned counsel for
the petitioner has placed reliance also upon
a decision of a co-ordinate Bench of this
Court passed in Service Single 32394 of
2019 Smt. Richa Shukla (supra) wherein
the decision proceeds on the assumption
that the Maternity Benefit Act, 1961 applies
to the case of the petitioner and has an
overriding effect in view of the Section 27
of the Maternity Benefit Act, 1961.

8. The moot question in the opinion of
the Court is thus regarding the applicability of
the Maternity Benefit Act, 1961 to the case of
the petitioner. There is no dispute with regard
to the applicability of the Fundamental Rules
i.e. Rule 153 (1) of Chapter XIII of U.P.
Fundamental Rules in Financial Handbook
Volume-II, Part 2 to 4. The parties are at
variance only with regard to the applicability
of the Maternity Benefit Act, 1961.

9. In consonance with the provisions
of Article 42 contained in Part IV of the
Constitution of India, the Parliament has
promulgated the Maternity Benefit Act,
1961. 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.

10. The provisions of Financial
Handbook Volume II to IV on the other
hand were made by the Governor in
exercise of his powers under Section
241(2)(b) of the Government of India Act,
1935 and are continuing in force on the
strength of the provisions contained in
Article 13 of the Constitution of India. The
Financial Handbook contains rules which
governed the services of the person serving
in connection with the affairs of a province,
and are at best in the nature of executive
instructions, and are clearly not in the
category of "an enactment" made by the
legislature.

11. To attract the provisions of Article
254
of
the
Constitution
the
first
requirement is that both the laws should be
enactments of the respective legislatures,
that is, one of the laws should be a
enactment of the Parliament while the
second should be a law made by the State
legislature. The Maternity Benefit Act 1961
has been enacted by the Parliament while
the provisions of the Financial Handbook
Volume II to IV are at best executive
instructions.

12. The Supreme Court in the case of
Municipal Corpn. of Delhi v. Female
Workers (Muster Roll), (2000) 3 SCC 224
has looked into the various provisions of
the Constitution for the finding the source
and power to legislate with respect to the
Maternity Benefit Act, 1961, and observed
as under:-

"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
896 INDIAN LAW REPORTS ALLAHABAD SERIES
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 newborn. 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 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."

7. In Yusuf Abdul Aziz v. State of
Bombay [AIR 1954 SC 321 : 1954 SCR
930] it was held that Article 15(3) applies
both to existing and future laws.

8. From Part III, we may shift to
Part IV of the Constitution containing the
Directive Principles of State Policy. Article
38 provides that the State shall strive to
promote the welfare of the people by
securing and protecting, as effectively as it
may, a social order in which justice, social,
economic and political shall inform all the
institutions of the national life. Sub-clause
(2) of this article mandates that the State
shall strive to minimise the inequalities in
income
and
endeavour
to
eliminate
inequalities
in
status,
facilities
and
opportunities.

9. Article 39 provides, inter alia,
as under:

"39. Certain principles of policy
to be followed by the State.--

The State shall, in particular,
direct its policy towards securing--

(a) that the citizens, men and
women equally, have the right to an
adequate means of livelihood;

(b)-(c)***

(d) that there is equal pay for
equal work for both men and women;

(e) that the health and strength of
workers, men and women, and the tender
age of children are not abused and that
citizens are not forced by economic
necessity to enter avocations unsuited to
their age or strength;

(f) ***"

10. Articles 42 and 43 provide as
under:

"42. Provision for just and
humane conditions of work and maternity
relief.--The State shall make provision for
securing just and humane conditions of
work and for maternity relief.

43.
Living
wage,
etc.,
for
workers.--The State shall endeavour to
secure, by suitable legislation or economic
organisation or in any other way, to all
workers,
agricultural,
industrial
or
otherwise, work, a living wage, conditions
of work ensuring a decent standard of life
and full enjoyment of leisure and social and
cultural opportunities and, in particular,
the State shall endeavour to promote
cottage industries on an individual or
cooperative basis in rural areas."
11 All. Smt. Anupam Yadav Vs. State of U.P. & Ors.
897

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.

13. Apart from the provisions
contained in the Chapter IV of the
Constitution of India it is also noticed that
entry 24 of List III of VII Schedule
specifically provide for maternity benefits
for ready reference entry 24 is as under:-

"24. welfare of labour including
conditions
of
work,
Provident
fund
employers
liability
workmen's
compensation, invalidity and old age
pension and maternity benefit."

14. In light of the above, this Court is
of
the
considered
opinion
that
the
Maternity Benefit Act 1961 has been
enacted by the Parliament on a subject
which finds mention in entry 24 of list III,
and it was totally within its competence to
make such an enactment. Even if the State
legislature were to make such a law,
overriding the provisions contained in the
Maternity Benefit Act then the said Act
would be reserved for accent of the
President and would be enforceable only
after obtaining such an accent as provided
in article 254 (2) of the Constitution of
India.

15. In order to appreciate the
respective contentions of the learned
counsel for the parties, it would be apt to
reproduce the relevant provisions of the
Maternity Benefit Act, 1961 as also the
relevant
provisions
of
the
Financial
Handbook, particularly, Rule 153 which are
as under:

Section
3(h)
of
1961
Act
"maternity benefit" means the payment
referred to in subsection (1) of section 5.
Section 5 of 1961 Act reads as under:-

"5.
Right
to
payment
of
maternity benefit.-

(1) Subject to the provisions of
this Act, every woman shall be entitled to,
and her employer shall be liable for, the
payment of maternity benefit at the rate of
the average daily wage for the period of
her actual absence, that is to say, the
period immediately preceding the day of
her delivery, the actual day of her delivery
and any period immediately following that
day.

(2) No woman shall be entitled to
maternity benefit unless she has actually
worked in an establishment of the employer
from whom she claims maternity benefit,
898 INDIAN LAW REPORTS ALLAHABAD SERIES
for a period of not less than [eighty days]
in the twelve months immediately preceding
the date of her expected delivery:

Provided
that
the
qualifying
period of [eighty days] aforesaid shall not
apply to a woman who has immigrated into
the State of Assam and was pregnant at the
time of the immigration.

(3) The maximum period for
which any woman shall be entitled to
maternity benefit shall be [Twenty six
weeks of which not more than eight weeks]
shall precede the date of her expected
delivery:-

Provided
that
the
maximum
period entitled to maternity benefit by a
woman having two or more than two
surviving children shall be twelve weeks of
which not more than six weeks shall
precede the date of her expected delivery:

[Provided further that] where a
woman dies during this period, the
maternity benefit shall be payable only for
the days up to and including the day of her
death: [Provided also that] where a
woman, having been delivered of a child,
dies during her delivery or during the
period immediately following the date of
her delivery for which she is entitled for the
maternity benefit, leaving behind in either
case the child, the employer shall be liable
for the maternity benefit for that entire
period but if the child also dies during the
said period, then, for the days up to and
including the date of the death of the child.

(4) A woman who legally adopts
a child below the age of three months or a
commissioning mother shall be entitled to
maternity benefit for a period of twelve
weeks from the date the child is handed
over to the adopting mother or the
commissioning mother, as the case may be]

(5) In case where the nature of
work assigned to a woman is of such nature
that she may work from home, the employer
may allow her to do so after availing of the
maternity benefit for such period an on
such conditions as the employer and the
woman may mutually agree]"

16. Section 6 of 1961 Act reads as
under:-

"6. Notice of claim for maternity
benefit and payment thereof.-

(1) Any woman employed in an
establishment and entitled to maternity
benefit under the provisions of this Act may
give notice in writing in such form as may
be prescribed, to her employer, stating that
her maternity benefit and any other amount
to which she may be entitled under this Act
may be paid to her or to such person as she
may nominate in the notice and that she
will not work in any establishment during
the period for which she receives maternity
benefit.

(2) In the case of a woman who is
pregnant, such notice shall state the date
from which she will be absent from work,
not being a date earlier than six weeks from
the date of her expected delivery.

(3) Any woman who has not given
the notice when she was pregnant may give
such notice as soon as possible after the
delivery.

(4) On receipt of the notice, the
employer shall permit such woman to
absent herself from the establishment
during the period for which she receives the
maternity benefit.

(5) The amount of maternity
benefit for the period preceding the date of
her expected delivery shall be paid in
advance by the employer to the woman on
production of such proof as may be
prescribed that the woman is pregnant, and
the amount due for the subsequent period
shall be paid by the employer to the woman
within forty-eight hours of production of
11 All. Smt. Anupam Yadav Vs. State of U.P. & Ors.
899
such proof as may be prescribed that the
woman has been delivered of a child.

(6) The failure to give notice
under this section shall not disentitle a
woman to maternity benefit or any other
amount under this Act if she is otherwise
entitled to such benefit or amount and in
any such case an Inspector may either of
his own motion or on an application made
to him by the woman, order the payment of
such benefit or amount within such period
as may be specified in the order.

17. Section 27 of 1961 Act reads as
under:-

27. Effect of laws and agreements
inconsistent with this Act.- (1) The
provisions of this Act shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other law or in
the terms of any award, agreement or
contract of service, whether made before or
after the coming into force of this Act:
Provided that where under any such award,
agreement,
contract
of
service
or
otherwise, a woman is entitled to benefits
in respect of any matter which are more
favourable to her than those to which she
would be entitled under this Act, the woman
shall continue to be entitled to the more
favourable benefits in respect of that
matter, notwithstanding that she is entitled
to receive benefits in respect of other
matters under this Act.

(2) Nothing contained in this Act
shall be construed to preclude a woman
from entering into an agreement with her
employer for granting her rights or
privileges in respect of any matter which
are more favourable to her than those to
which she would be entitled under this Act.

18. Section 28 of 1961 Act reads as
under:-

"Power to make rules.- (1) The
appropriate Government may, subjected to
the condition of previous publication and
notification in the Official Gazette, make
rules for carrying out the purposes of this
Act.

19. Rule 153 of the Fundamental
Rules

"153. Maternity leave on full pay
which a female government servant,
whether permanent or temporary, may be
drawing on the date or proceeding on such
leave may be granted to her by the head of
the department or by a lower authority to
whom power may be delegated in this
behalf subject to the following:--

(1) In cases of confinement the
period of maternity leave may extend up to
the end of three months from the date of the
commencement of leave:

Provided that such leave shall not
be granted for more than three times during
the entire service including temporary
service:

Provided also that if any female
government servant has two or more living
children, she shall not be granted maternity
leave
even
though
such
leave
may
otherwise be admissible to her. If, however,
either of the two living children of the
female government servant is suffering
from incurable disease or is disabled or
crippled since birth or contracts some
incurable disease or becomes disabled or
crippled later, she may, as an exception, be
granted maternity leave till one more child
is born to her subject to the overall
restriction that maternity leave shall not be
granted for more than three times during
the entire service.

Provided further that no such
leave shall be admissible until a period of
at least two years has elapsed from the date
900 INDIAN LAW REPORTS ALLAHABAD SERIES
of expiry of the last maternity leave granted
under this rule.

(2) In cases of miscarriage,
including abortion, the period of maternity
leave may extend up to a total period of six
weeks on each occasion, irrespective of the
number of surviving children of the female
Government servant concerned, provided
that the application for leave is supported
by a certificate from the Authorised
Medical Attendant:

NOTE--(1)
Deleted.

NOTE--(2) In the case of a
person
to
whom
the
provisions
of
Employees. State Insurance Act, 1948,
apply, leave salary payable under this rule
shall be reduced by the amount of benefit
admissible under the said Act for the
corresponding period.

NOTE--(3)
Abortion
induced
under
the
Medical
Termination
of
pragnancy Act, 1971, should also be
considered as a case of ''abortion' for the
purpose of ''granting' ''Maternity leave'
under this rule."

20. A perusal of Section 3(h) of 1961
Act, clearly reveals that maternity benefit
means the payment referred to in sub-section
(1) of Section 5 of 1961 Act. Section 5 of
1961 Act stipulates that every woman shall be
entitled to and an employer shall be liable for
the payment of maternity benefit at a certain
rate. Sub-section (3) of Section 5 of 1961 Act
provides that the maximum period for which
any woman shall be entitled to maternity
benefit shall be 26 weeks. Section 6 of 1961
Act provides that any woman employed in an
establishment and entitled to any maternity
benefit under the provisions of 1961 Act may
give notice in writing to her employer stating
that her maternity benefit be paid to her or to
such person as she may nominate in the
notice. Sub-section (4) of Section 6 of 1961
Act provides that on receipt of the notice, the
employer shall permit such woman to absent
herself from the establishment during the
period for which she receives the maternity
benefit.

21. A perusal of the aforesaid
provisions of 1961 Act thus indicate that a
woman would be entitled to give notice in
writing for grant of maternity benefit and
on receipt of notice the employer shall
permit such woman to absent herself from
the establishment during the period for
which she receives the maternity benefit.
The 1961 Act does not contain any such
stipulation of the time difference between
grant of maternity benefit for the first and
second child as stipulated in Rule 153 (1)
of the Financial Handbook. Section 27 of
1961 Act categorically provides that the
provisions of 1961 Act shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other law
whether made before or after coming into
force of 1961 Act. The proviso to Section
27 of 1961 Act provides that in case a
woman is entitled to benefits in respect of
any matter which are more favourable to
her than those to which she would be
entitled under 1961 Act, the woman shall
continue to be entitled to the more
favourable benefits in respect of that
matter, notwithstanding that she would be
entitled to receive benefits in respect of
other matters under 1961 Act, meaning
thereby that additional benefits that a
woman would be entitled in terms of 7
agreement or contract of service would be
admissible to her notwithstanding anything
contained in 1961 Act. Thus, it is the
additional benefits which have not been
precluded but in case there is anything
contrary or inconsistent to the provisions of
1961 Act pertaining to maternity benefit
then it would be the 1961 Act which would
be applicable."
11 All. Smt. Anupam Yadav Vs. State of U.P. & Ors.
901

22. So far as the applicability of the
provisions of the Maternity Benefit Act,
1961 is concerned, a Division Bench of this
Court in the case of
Dr. Rachna
Chaurasiya versus State of U.P. and others
[2017
(11)
ADJ
399
(DB)]
while
considering
the
grant
of
maternity
leave/child
care
leave
to
a
Doctor
employed as Associate Professor in MLB
Medical College, Jhansi in Para 23, 24 and
25 of the decision observed as under:-

"23. The aforesaid decision of the
Central Government has been adopted by the
State of U.P. for its employees vide Government
Order dated 08.12.2008 and 24.03.2009.
Subsequently, certain modifications being made
by the Central Government, the same was also
adopted by the State Government vide
Government Order dated 11th April, 2011. The
aforesaid
Government
Order
is
being
reproduced hereunder.

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okyk izkf/kdkjh ifjoh{kkFkhZ dh ckY; ns[kHkky vodk'k
dh vko';drk ds ckjs esa iw.kZ :i ls larq"V u gksA
bls Hkh lqfuf'pr fd;k tk;sxk fd ifjoh{kk vof/k ds
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2& ;fn fdlh efgyk deZpkjh }kjk
fnukad 08-12-2008 ds dk;kZy; Kki ds tkjh gksus ds
i'pkr ckY; ns[kHkky ds iz;kstu gsrq vftZr vodk'k
fy;k x;k gS rks mlds vuqjks/k ij mDr vftZr
vodk'k dks ckY; ns[kHkky vodk'k esa lek;ksftr
fd;k tk ldsxkA

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fnukad
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la'kks/ku ;Fkkle; fd;s tk;saxsA

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24. From a perusal of the
aforesaid Government Orders, it is clear
that the State Government has adopted
same policy as is enforced by the Central
Government for grant of Maternity Leave
as well as Child Care Leave to its
employees.

25. Maternity benefit is a social
insurance and the Maternity Leave is given
902 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

23. Then again a learned Single Judge
in the case of Anshu Rani versus State of
U.P. and 2 others, Writ-A No. 3486 of 2019
following the dictum of the Division Bench
in the case of Dr. Rachana Chaurasiya
(supra) in Para 13 of the decision observed
as under:-

"13. The maternity leave is a
social insurance. The maternity leave is
given for maternal and child health and
family support. From perusal of the
different provisions of the Maternity Benefit
Act, 1961 as amended in the year 2017 as
well
as
the
policy
of
the
Central
Government to grant child care leve and
Government orders issued by the State
Governments in the State of U.P. adopting
the same for its female employees, I am of
the firm opinion that the female employees
of the State of U.P. are entitled for the
benefits of the maternity leave as contained
in the Maternity Benefit Act 1961 as
amended
by
the
Maternity
Benefit
(Amendement) Act, 2017."

24. Thus the State of U.P. in exercise
of powers granted under Section 28 has
already issued Government Order dated
8.12.2008 and 24.3.2009 adopting the
provisions of the Maternity Benefits Act,
1961 for the benefit of its employees.
Further, the modifications made by the
Central
Government
have
also
been
adopted by the State of U.P. in its
Government
Order
dated
11.4.2011
reproduced
hereinabove.
Once
the
provisions of the Maternity Benefit Act,
1961 has been adopted by the State of U.P.
as held by this Court then the said Act of
1961
would
apply
with
full
force
irrespective of the provisions contained in
the Financial Handbook which is merely an
executive instruction and would in any case
be subsidiary to the legislation made by the
Parliament.

25. In conclusion it can safely be said
that the Maternity Benefit Act, 1961 has
been enacted by the Parliament in exercise
of powers under Entry 24 in List-III of the
Seventh schedule of the Constitution of
India and to secure the goals stated in
Articles 38, 39, 42 and 43 of the
Constitution of India and also to give effect
to the provisions contained in Article 15 (3)
of the Constitution. The provisions of
Financial Handbook are merely executive
instructions and would be subsidiary to the
Act of the Parliament and in case of any
inconsistency,
the
statutory
enactment
framed by the Parliament would prevail
and hence, the provisions of the Maternity
Benefit Act, 1961 would prevail over the
provisions of the Financial Handbook and
consequently, the provisions of Rule 153
(1) of the Financial Handbook Volume II to
IV are read down with regard to the
admissibility of leave to a women with
regard to second pregnancy which would
be governed by the Maternity Benefit Act,
1961 and not Rule 153 (1) of the Financial
Handbook Volume II to IV. The State
Government already having adopted the
provisions of the Maternity Benefit Act,
1961 as recorded by the Division Bench of
11 All. Siya Ram Verma Vs. Pooranmal Verma & Ors.
903
this Court and followed by the Single
Bench in the case of Anshu Rani versus
State of U.P. passed in Writ-A No. 3486 of
2019, it is clear that the provisions of the
Maternity Benefit Act, 1961 would prevail
over any law.

26. In the case at hand the maternity
leave so applied by the petitioner has been
rejected simply by stating "Anumanya
Nahi". Learned cousnel for the respondents
has submitted that the petitioner is not
entitled to the maternity leave in terms of
the restriction imposed by the second
proviso of Rule 153(1) of the Financial
Handbook to the effect that second
maternity leave cannot be granted where
there is difference of less than two years
between the end of the first maternity leave
and grant of second maternity leave.
Admittedly, the first maternity leave of the
petitioner was availed and she gave birth to
a male child on 4.1.2021. The petitioner
became pregnant again and applied again
for maternity leave on 11.6.2022. The
second maternity leave to the petitioner has
been refused by the impugned order.
However, once the 1961 Act does not
contain any such stipulation, the Basic
Education Officer manifestly erred in
rejecting the leave to the petitioner more
particularly when Section 27 of the 1961
Act provides that it is the 1961 Act which
would
be
applicable
notwithstanding
anything in consistent contained in any
other law or contract of service.

27. In the light of the above
discussion, the writ petition is allowed. The
order impugned dated 23.6.2022 in the writ
petition is set aside. The District Basic
Education Officer concerned is directed to
pass appropriate orders for sanctioning the
maternity leave to the petitioner within a
period of two weeks from the date of
service of certified copy of the order upon
him.
----------
(2022) 11 ILRA 903
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 26789 of 2012

Siya Ram Verma ...Petitioner
Versus
Pooranmal Verma & Ors. ...Respondents

Counsel for the Petitioner:
Sri Narendra Singh, Sri T.P. Singh

Counsel for the Respondents:
Sri
Rajiv
Lochan
Shukla,
Sri
Manas
Bhargava