# Smt. Kiran Verma v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 55
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-31
- **Case number:** Writ-A No. 12615 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-verma-v-state-of-u-p-ors-47755
- **Pages:** 4

## Headnote

A. Service Law - Maternity leave -
Maternity Benefit Act, 1961 - Section 2,
3(e) r/w Section 2(1) - Fundamental Rules
- Rule 153 - In view of the 3rd Proviso to
Rule 153 of the Fundamental Rules, no
maternity leave shall be admissible to a
government servant until for the period of
2 years from the date of expiry of the last
maternity leave granted under the Rules.
(Para 7, 8, 10)

B. Applicability of Maternity Benefit Act,
1961 - Provisions of grant of maternity
leave under the Maternity Benefit Act,
1961
are
applicable
to
every
establishment being a factory, mine or
plantation including any such establishment
belonging to Government and to every
establishment wherein persons are employed
for the exhibition or equestrian, acrobatic and
other
performances.
It
also
applies
to
establishment within the meaning of any
law for the time being in force in relation
to shops and establishments in a State, in
which ten or more person are employed, or
were employed, on any day of the preceding
twelve months. (Para 12)

It is not disputed that petitioner is a
government servant and it is also not
disputed that she is an employee of the State
Government and the Fundamental Rules 153
applies for service of Government employees as
also
for
the
grant
of
maternity
leave.
Petitioner is not an employee under an
establishment as defined in Section 3(e)
of the Maternity Benefit Act, 1961, r/w
Section 2(1), i.e., petitioner is not an employee
in the department, mine or plantation in a
establishment so as to exhibit of equestrian,
acrobatic and other performance etc. Hence it is
evident that petitioner is not an employee of
establishment. (Para 14, 15)

Petitioner's second application for maternity
leave (from 05.07.2022 to 31.12.2022) is within
two years from the date of expiry of the first
maternity leave (which was sanctioned till
27.12.2021) and in view of 3rd proviso to Rule
153 of the Fundamental Rules, the maternity
leave could not be granted to the petitioner.
(Para 11, 16)

Writ petition dismissed. (E-4)

Precedent followed:
56 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

10 All. Smt. Kiran Verma Vs. State of U.P. & Ors.
55
of the same cannot be claimed by the
petitioner. The benefit of the judgment in
the case of Uday Narayan Ojha is also not
applicable in case of the practitioner as it is
seen that the charge sheet was filed prior to
his retirement and within 4 years of lodging
of the first information report, enhanced the
criminal proceedings are also not hit by the
provisions of article 351A of the CSR.

20. Considering the aforesaid, this
Court is of the considered view that the
petitioner is not entitled for gratuity till the
criminal proceedings are pending, but he is
entitled to provisional pension and other
post retiral dues for which there is no legal
embargo.

21. In light of the above, subject to
the observations made above, the writ
petition is bereft of merits and is
accordingly dismissed.
----------
(2022) 10 ILRA 55
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ-A No. 12615 of 2022

Smt. Kiran Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Deepak Kumar Verma, Smt. Akansha
Verma

Counsel for the Respondents:
C.S.C.

A. Service Law - Maternity leave -
Maternity Benefit Act, 1961 - Section 2,
3(e) r/w Section 2(1) - Fundamental Rules
- Rule 153 - In view of the 3rd Proviso to
Rule 153 of the Fundamental Rules, no
maternity leave shall be admissible to a
government servant until for the period of
2 years from the date of expiry of the last
maternity leave granted under the Rules.
(Para 7, 8, 10)

B. Applicability of Maternity Benefit Act,
1961 - Provisions of grant of maternity
leave under the Maternity Benefit Act,
1961
are
applicable
to
every
establishment being a factory, mine or
plantation including any such establishment
belonging to Government and to every
establishment wherein persons are employed
for the exhibition or equestrian, acrobatic and
other
performances.
It
also
applies
to
establishment within the meaning of any
law for the time being in force in relation
to shops and establishments in a State, in
which ten or more person are employed, or
were employed, on any day of the preceding
twelve months. (Para 12)

It is not disputed that petitioner is a
government servant and it is also not
disputed that she is an employee of the State
Government and the Fundamental Rules 153
applies for service of Government employees as
also
for
the
grant
of
maternity
leave.
Petitioner is not an employee under an
establishment as defined in Section 3(e)
of the Maternity Benefit Act, 1961, r/w
Section 2(1), i.e., petitioner is not an employee
in the department, mine or plantation in a
establishment so as to exhibit of equestrian,
acrobatic and other performance etc. Hence it is
evident that petitioner is not an employee of
establishment. (Para 14, 15)

Petitioner's second application for maternity
leave (from 05.07.2022 to 31.12.2022) is within
two years from the date of expiry of the first
maternity leave (which was sanctioned till
27.12.2021) and in view of 3rd proviso to Rule
153 of the Fundamental Rules, the maternity
leave could not be granted to the petitioner.
(Para 11, 16)

Writ petition dismissed. (E-4)

Precedent followed:
56 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Renu Chaudhary Vs State of U.P. & ors., 2022
(2) ADJ 14 (Para 15)

Present
petition
assails
order
dated
16.07.2022, passed by District Panchayat
Raj Officer, Fatehpur.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
petitioner and learned Additional Chief
Standing Counsel for respondents no. 1 to
3.

2. By means of this writ petition, the
petitioner
has
prayed
to
quash
the
impugned order dated 16.07.2022 passed
by respondent no.3 District Panchayat Raj
Officer, Fatehpur by which the maternity
leave of the petitioner has been rejected.

3. Further a writ of mandamus
directing respondent no.2 Deputy Director
(Panchayat) Prayagraj Division Prayagraj
to sanction the maternity leave and pay
salary in accordance with rule has also been
prayed to be issued.

4. Admitted facts between the parties
are as under:-

5. Petitioner was appointed on the
post of Assistant District Panchayat Raj
Officer (Pravi) on 18.06.2014. She joined
in the month of June, 2014. After the
marriage,
she
became
pregnant
and
consequently she moved a representation
before respondent no.2 praying for sanction
of maternity leave from 01.07.2021 to
27.12.2021 which was sanctioned by order
dated 30.06.2021. After one year, the
petitioner again moved an application on
24.06.2022 for maternity leave for second
issue before the respondent no.3 with a
prayer to sanction maternity leave from
05.07.2022
to
31.12.2022
under
the
Maternity Benefit Act, 1961. The aforesaid
application remained pending, however on
a reminder dated 12.07.2022 given by the
petitioner,
impugned
order
dated
16.07.2022 has been passed, rejecting the
maternity leave application given by the
petitioner.

6. Learned counsel for the petitioner
submits that in view of provisions of the
Maternity Benefit Act, 1961, she is entitled
for maternity leave. The provisions of the
Act have been violated while rejecting her
maternity leave. It is also submitted that the
impugned order has been passed by non
application of mind.

7. Sri Pramod Kumar Srivastava,
learned Additional Chief Standing Counsel
for the respondents submits that under the
provisions of the Maternity Benefit Act,
1961, aforesaid benefit is not applicable in
the case of the petitioner, who is
government employee.

8. Second submission of the learned
Additional Chief Standing Counsel is that
in view of of the 3rd Proviso to Rule 153 of
the Fundamental Rules, no maternity leave
shall be admissible to the said employee
until for the period of 2 years from the date
of expiry of the last maternity leave granted
under the Rules. He further submitted that
first maternity leave lapsed on 21.12.2021
and therefore, the second application for
maternity leave can be considered after
expiry of two years from 27.12.2021, that
is 27.12.2023, and not prior to that.

9. Rule 153 of the Fundamental Rules
provides for grant of maternity leave to
female
government
servant
whether
permanent or temporary provided that no
such leave shall be admissible unless a
10 All. Smt. Kiran Verma Vs. State of U.P. & Ors.
57
period of 2 years have elapsed from the
date of expiry of the last maternity leave
granted under this rules.

10. Rule 153 of Financial Handbook
is extracted as under:-

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 to 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 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
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 Atterndant.

11. It is not disputed between the
parties that first maternity leave was
sanctioned on 27.12.2021 and therefore,
second maternity leave which was sought
by the petitioner within two years, is not
admissible under Rule 153.

12. So far as grant of maternity leave
under the Maternity Benefit Act, 1961 is
concerned, the same are applicable to every
establishment being a factory, mine or
plantation including any such establishment
belonging to Government and to every
establishment
wherein
persons
are
employed for the exhibition or equestrian,
acrobatic and other performances. It also
applies to establishment within the meaning
of any law for the time being in force in
relation to shops and establishments in a
State, in which ten or more person are
employed, or were employed, on any day
of the preceding twelve months.

13. Section 2 of the Maternity
Benefit Act, 1961 is extracted below

2. Application of Act.-[(1) It
applies, in the first instance,

(a) to every establishment being a
factory, mine or plantation including any
such
establishment
belonging
to
Government and to every establishment
wherein persons are employed for the
exhibition of equestrian, acrobatic and
other performance;
58 INDIAN LAW REPORTS ALLAHABAD SERIES

(b)
to
every
shop
or
establishment within the meaning of any
law for time being in force in relation to
shops and establishment in a State in
which ten or more persons are employed,
or were employed, on any day of the
preceding twelve months:

Provided
that
the
State
Government may, with the approval of
the Central Government, after giving not
less than two month's 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.

(2) Save as otherwise provided
in
sections
5-A
and
5-B,
nothing
contained in this Act shall apply to any
factory or other establishment to which
the provisions of the
Employees' State Insurance Act, 1948 (34
of 1948), apply for the time being.

14. It is not disputed that petitioner
is a government servant and it is also not
disputed that she is an employee of the
State Government and the Fundamental
Rules
153
applies
for
service
of
Government employees as also for the
grant of maternity leave. Petitioner is not
an employee under an establishment as
defined in Section 3 of sub-section (e) of
the Maternity Benefit Act, 1961, read
with Section 2 of sub-section (i).

15. Obviously, the petitioner is not an
employee in the department, mine or
plantation in a establishment so as to
exhibit of equestrian, acrobatic and other
performance etc. as provided under Act,
1961. Hence it is evident that petitioner is
not an employee of establishment. This
question has been considered and decided
by this Court in Renu Chaudhary Versus
State of U.P. and others 2022 (2) ADJ 14.

16. From the aforesaid, it is clear that
second application for maternity leave of
the petitioner is within two years from the
date of expiry of the first maternity leave
and in view of 3rd proviso to Rule 153 of
the Fundamental Rules, the maternity leave
could not be granted to the petitioner. The
petitioner is a government employee and
not an employee as provided in Section 3
(e) of the Maternity Benefit Act,1961 read
with section 2 (1) thereof.

17. In view of the above, the writ
petition is dismissed.
----------
(2022) 10 ILRA 58
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 14003 of 2022

Smt. Vimla Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Yadav, Sri Tripurari Pal

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - Pension - Dying in Harness
Rules, 1974 - Civil Service Regulations and
the U.P. Retirement Benefit Rules, 1961 -
Rule 6, Rule 7 of part-III; The Hindu
Marriage Act, 1956 - Sections 4, 5, 11 & 29
- U.P. Government Servant Conduct Rules,
1956 - Rule 29 - Mere nomination of a
stranger, who is not a family member of