# Smt. Satakshi Mishra v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 74
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Writ A No. 5114 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-satakshi-mishra-v-state-of-u-p-ors-48939
- **Pages:** 10

## Headnote

A. Constitution of India - Article 15(3), 38,
39, 42 & 43 - Maternity Benefits Act, 1961
- Sections 5, 6 & 27 - Women's right to
get maternity benefits - Application for
grant of maternity leave was rejected on
the ground of restriction contained in R.
153(1) of Financial Handbook - Validity
challenged - Act of 1961 does not contain
any such restriction - Applicability of R.
153(1), how far permissible - Held, once
8 All. Smt. Satakshi Mishra Vs. State of U.P. & Ors.
75
1961 Act does not contain any such
stipulation accordingly it is apparent that
the respondents have patently erred in
placing reliance on Rule 153(1) of the
Financial
Handbook
in
rejecting
the
application of the petitioner for grant of
maternity leave more particularly when
Section 27 of 1961 Act provides that it is
1961 Act which would be applicable
notwithstanding
anything
inconsistent
contained in any other law or contract of
service. (Para 16)
B. Constitution of India - Article 254(2) -
Accent of the President - Schedule VII,
List III, Entry 24 - Concurrent list -
Legislation
of
the
St.
legislation
inconsistent to the legislation of the
Parliament,
how
far
enforceable
-
Overriding effect - Held, 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 St.
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. (Para 21)
C.
Interpretation
of
Statute
-
Inconsistency between the enactment
made by Parliament and instruction issued
by Executive - Overriding effect - Held,
the provision of Financial Handbook are
pre-Constitutional executive instructions
and would be subsidiary to the Act of
Parliament
and
in
case
of
any
inconsistency, the statutory enactment
framed by the Parliament would prevail
and hence the provisions of Maternity
Benefits Act, 1961 would prevail over the
provisions of Financial Handbook. [Para
25(2)]
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

74 INDIAN LAW REPORTS ALLAHABAD SERIES
hand we are convinced that the use of
artificial device cannot be construed
beyond a harmless mental activity.

10. That being so, the reasoning
recorded by the Tribunal for setting aside the
impugned order of dismissal from service is a
possible view and the rationality thereof,
merely on the strength of a doubt, does not
support the State to assail the judgement
impugned before the Court on the ground that
the same suffers from an illegality calling for
interference.

11. Learned counsel for the State has
referred to a judgement rendered by the apex
court in the case of State Bank of India and
others vs. Samarendra Kishore Endow and
another reported in (1994) 2 SCC 537.

12. We have carefully gone through the
judgement relied on by learned counsel for
the State and we find that the judgement cited
before us related to a definite charge of
financial misappropriation which is not a case
before us. The judgement (supra) does not
lend support to the argument put forth.

13. On a close scrutiny of the material
placed on record we also gather that the
occasion to refer to the call details arose on
account of a proceeding relating to an
incident of loot having been lodged against
some police officials by wife of one of the
history-sheeters.

14. The opposite party had put forth his
explanation of entering into an amicable
settlement between police officials and the
complainant and probability of such a
conversation cannot be ruled out in the
normal course. All these explanations were
not considered by the disciplinary authority in
the right perspective and there was no
application of mind on such explanations at
all.

15. This relevant aspect of the matter
weighed in the mind of the Tribunal while
appreciating the arguments put forth and
the material placed on record. The
reasoning assigned by the Tribunal in our
considered view, does not call for any
interference. We also expect that the liberty
granted by the Tribunal be weighed in the
light of observations made above.

16. Thus, we decline to interfere with
the impugned judgement and the writ
petition is accordingly rejected.
----------
(2022) 8 ILRA 74
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 5114 of 2022

Smt. Satakshi Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Shukla

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 15(3), 38,
39, 42 & 43 - Maternity Benefits Act, 1961
- Sections 5, 6 & 27 - Women's right to
get maternity benefits - Application for
grant of maternity leave was rejected on
the ground of restriction contained in R.
153(1) of Financial Handbook - Validity
challenged - Act of 1961 does not contain
any such restriction - Applicability of R.
153(1), how far permissible - Held, once
8 All. Smt. Satakshi Mishra Vs. State of U.P. & Ors.
75
1961 Act does not contain any such
stipulation accordingly it is apparent that
the respondents have patently erred in
placing reliance on Rule 153(1) of the
Financial
Handbook
in
rejecting
the
application of the petitioner for grant of
maternity leave more particularly when
Section 27 of 1961 Act provides that it is
1961 Act which would be applicable
notwithstanding
anything
inconsistent
contained in any other law or contract of
service. (Para 16)
B. Constitution of India - Article 254(2) -
Accent of the President - Schedule VII,
List III, Entry 24 - Concurrent list -
Legislation
of
the
St.
legislation
inconsistent to the legislation of the
Parliament,
how
far
enforceable
-
Overriding effect - Held, 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 St.
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. (Para 21)
C.
Interpretation
of
Statute
-
Inconsistency between the enactment
made by Parliament and instruction issued
by Executive - Overriding effect - Held,
the provision of Financial Handbook are
pre-Constitutional executive instructions
and would be subsidiary to the Act of
Parliament
and
in
case
of
any
inconsistency, the statutory enactment
framed by the Parliament would prevail
and hence the provisions of Maternity
Benefits Act, 1961 would prevail over the
provisions of Financial Handbook. [Para
25(2)]
Writ petition allowed. (E-1)
List of Cases cited:-
1. Municipal Corpn. of Delhi Vs Female Workers
(Muster Roll); (2000) 3 SCC 224
2. Writ A no. 3486 of 2019; Ansu Rani Vs St. of
U.P and 2 others
3. Writ Petition No. 6532 (S/S) of 2020; D.
Snehkiran Raghuvansi Vs V.C. King George's
Medical University Gandhi Memorial & ors.

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Anurag Shukla along
with Sri Abhishek Misra and Ms. Ishit
Mishra, Advocates for the petitioner and Sri
Ram Pratap Singh Chauhan, learned
Additional
Chief
Standing
counsel
appearing for the opposite parties.

2. The petitioner, who is working on
the post of Lecturer (Hindi) in Rajkiya
Balika Inter College, Hardoi, is aggrived by
the impugned order dated 30.07.2019
whereby her application for maternity leave
from 18.11.2018 to 16.5.2019 has been
rejected on the ground that she had
previously availed maternity leave which
ended on 18.5.2018, which was a period
less than 2 years and hence was not entitled
for the same.

3. It has been submitted by the
counsel for the petitioner that the petitioner
after expecting a child had applied for
maternity leave for a period of 174 days
from 26.11.2017 to 18.5.21018 which was
duly sanctioned and the petitioner gave
birth to a baby boy on 29.1.2018, but
unfortunately the newborn child passed
away due to cardio respiratory arrest on
30.1.2018, just a day after his birth.

4. The petitioner again conceived for
the second time and applied for maternity
leave for a period of 24 weeks from
18.11.2018 to 16.05.2019, which has been
rejected by means of the impugned order.
76 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for the petitioner
contends that the said order would run
contrary to the mandatory provisions of the
Maternity Benefits Act, 1961 (hereinafter
referred to as the '1961 Act'). He contends
that Section 3 (h) of 1961 Act defines
maternity benefit as the payment referred to
in sub-section (1) of Section 5 while
Section 5 (3) of 1961 Act provides that the
maximum period for which any woman
would be entitled to maternity benefit
which shall be of 26 weeks. It is also
contended that Section 6(4) of 1961 Act
categorically provides that on receipt of the
notice for maternity leave, the employer
shall permit such woman to absent herself
from the establishment during the period
for which she receives the maternity
benefit.

6. It is contended that taking into
consideration the mandatory provisions of
1961 Act once the petitioner had applied
for maternity leave for the aforesaid period
consequently there was no occasion for
respondents have rejected her application.
The maternity leave has been rejected on
the ground that she had previously availed
maternity leave which ended on 18.5.2018,
which was a period less than 2 years and
hence was not entitled for the same as per
Rule 153(1) of the Financial Handbook.

7. Learned counsel for the petitioner
contends that Section 27 of 1961 Act
categorically provides that the provisions of
1961
Act
shall
have
the
effect
notwithstanding
anything
inconsistent
therewith contained in any other law
whether made before or after the coming
into force of 1961 Act. Learned counsel for
the petitioner contends that taking into
consideration the aforesaid provisions of
1961 Act more particularly when Rule
153(1) of the Financial Handbook runs
contrary to the mandatory provisions of
1961 Act then considering the provisions of
Section 27 of 1961 Act Rule 153(1) of the
Financial Handbook Vol. II to IX would
have to be read down and it is the
provisions of 1961 Act which would
prevail.

8. Learned Standing counsel, on the
other
hand,
has
submitted
that
the
impugned order is in conformity with the
provisions of Rule 153(1) of the Financial
Handbook Volume II to IV where a
restriction has been placed for grant of
maternity benefits prior to 2 years having
lapsed from the date of expiry of the last
maternity leave granted under the Rule. It
has further been submitted that the
provisions of Financial Handbook volume
II to IV would apply to the facts of the
present case rather than the provisions of
the Maternity Benefits Act, 1971. It was
stated that ''health' being a state subject, the
State Government was fully empowered to
legislate with regard to the matters
pertaining to ''health' which was a subject
mentioned in list II of the 7th Schedule of
the Constitution.

9. I have heard the counsel for the
parties and perused the record.

10. The relevant provisions of 1961
Act which would have a direct bearing on
the present case are being reproduced
below for the sake of convenience:- Section
3(h) of 1961 Act reads as under:- (h)
"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,
8 All. Smt. Satakshi Mishra Vs. State of U.P. & Ors.
77
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,
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]"

11. 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
78 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

12. 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.

13. 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.

14. A perusal of Section 3(h) of 1961
Act, clearly reveals that maternity benefit
means the payment referred to in subsection (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. Subsection (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.
8 All. Smt. Satakshi Mishra Vs. State of U.P. & Ors.
79

15. 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
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.

16. In the instant case, the maternity
leave so applied by the petitioner has been
rejected by placing reliance on Rule 153(1)
of the Financial Handbook by contending
that the same contains a restriction that the
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 ended on 18.5.2018 and thus the
respondents have rejected the claim of the
petitioner for grant of second maternity
leave. However, once 1961 Act does not
contain any such stipulation accordingly it
is apparent that the respondents have
patently erred in placing reliance on Rule
153(1) of the Financial Handbook in
rejecting the application of the petitioner
for
grant
of
maternity
leave
more
particularly when Section 27 of 1961 Act
provides that it is 1961 Act which would be
applicable
notwithstanding
anything
inconsistent contained in any other law or
contract of service.

17. The provisions of Financial
Handbook Volume II to IV 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.

18. 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
80 INDIAN LAW REPORTS ALLAHABAD SERIES
enacted by the Parliament while the
provisions of the Financial Handbook
Volume II to IV are at best executive
instructions.

19. 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
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;
8 All. Smt. Satakshi Mishra Vs. State of U.P. & Ors.
81

(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. 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.

20. 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."

21. 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.

22. Even otherwise, submissions of
the learned standing counsel appearing for
the State of U. P. is not convincing,
considering the fact that as per Section 28
of the maternity benefits act, 1961 where it
is
provided
that
"the
appropriate
government may, subject to conditions of
82 INDIAN LAW REPORTS ALLAHABAD SERIES
previous publication and by notification in
the Official Gazette, make rules for
carrying out the purposes of this act".
"Appropriate Government" in Section 3(a)
has been defined as "means in relation to
an establishment being a mine 1[or an
establishment
wherein
persons
are
employed for the exhibition of equestrian
acrobatic and other performances] the
Central Government and in relation to any
other
establishment,
the
State
Government."

23. The State of U.P. in exercise of
powers granted under Section 28 has
already issued a Government Order dated
08.12.2008 and 24.03.2009 adopting the
provisions of the Maternity Benefits Act for
the benefit of the their employees. Further,
the modifications made by the Central
Government were also adopted by the State
of U.P. in its Government Order dated 11th
April, 2011 which has been duly considered
by a coordinate bench of this Court in Writ
A no.3486 of 2019 in the case of Ansu
Rani Vs State of U.P and 2 others, were it
was held:-

"11. 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
hereinunder:-

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mRrj izns'kA

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11 vizSy] 2011 fo"k;%& efgyk ljdkjh lsodks a dks
ckY; ns[kHkky vodk'k dh vuqeU;rkA

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08&12&2008
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th&2&573@nl&2008&216&79]
fnuk
ad
24&3&2009 }kjk izns'k dh efgyk ljdkjh lsodksa dks
dsUnz ljdkj dh efgyk deZpkfj;ksa dh Hkkafr ckY;
ns[kHkky vodk'k dh lqfo/kk dfri; 'krksZa ds v/khu
iznku dh x;h FkhA pwafd Hkkjr ljdkj }kjk mDr 'krksZa
esa dfri; la'kks/ku fd, x, gSa vr% lE;d~
fopkjksijkUr Jh jkT;iky egksn; lanHkZxr 'kklukns'kksa
esa mfYyf[kr 'krksZ dks fuEuor~ la'kksf/kr djus dh
lg"kZ Lohd`fr iznku djrs gSa%&

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mikftZr vodk'k ns; gksrs gq, Hkh ckY; ns[kHkky
vodk'k vuqeU; gksxkA

1⁄421⁄2 ckY; ns[kHkky vodk'k dks ,d dys.Mj o"kZ
ds nkSjku rhu ckj ls vf/kd ugha fn;k tk;sxkA

1⁄431⁄2 ckY; ns[kHkky dks 15 fnuksa ls de ds fy,
ugha fn;k tk;sxkA

1⁄441⁄2 ckY; ns[kHkky vodk'k dks lk/kkj.kr;k
ifjoh{kk vof/k ds nkSjku ugha fn;k tk;sxk] ,sls ekeyksa
dks NksM+dj tgkWa vodk'k nsus 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 nkSjku vodk'k
fn;k tk jgk gS rks bl vodk'k dh vof/k
de&ls&de gksA

1⁄451⁄2 ckY; ns[kHkky vodk'k dks vftZr vodk'k
ds leku ekuk tk;sxk vkSj mlh izdkj ls Lohd`r
fd;k tk;sxkA

2& ;fn fdlh efgyk deZpkjh }kjk fnukad 0812-2008 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

3&
'kklukns'k
la[;k
th&2&2017@nl&2008&216&79]
fnukad
08&12&2008
rFkk
'kklukn
s'k
la[;k
th&2&573@nl&2009&216&
79
fnukad
24&03&2009 bl lhek rd la'kksf/kr le>s tk;saxsA
8 All. Kallu Ali (Supervisor Retired) Vs. State of U.P. & Ors.
83

4& laxr vodk'k fu;eksa es vko';d la'kks/ku
;Fkkle; fd;s tk;saxsA

Hkonh;k]

 1⁄4o`Unk l:i1⁄2

 izeq[k lfpo] foRrA**

24. Once the provisions of the
Maternity Benefit Act, 1961 has been
adopted by the State of U.P. as held by this
Court in the case of Anshu Rani Vs State
of U. P. 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
theParliament. The judgment of Anshu
Rani (Supra) has been followed and
approved in D. Snehkiran Raghuvansi Vs.
V.C. King George'S Medical University
Gandhi Memorial & Ors. passed in writ
petition No.6532 (S/S) of 2020.

25. In light of the above discussions,
the summary of issues determined are as
under:-

(1) The Maternity Benefits 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 Constituton of India and also to give
effect to the provisions contained in Article
15 (3) of the Constitution.

(2) The provision of Financial
Handbook are pre-Constitutional executive
instructions and would be subsidiary to the
Act of Parliament and in case of any
inconsistency,
the
statutoy
enactment
framed by the Parliament would prevail
and hence the provisions of Maternity
Benefits Act, 1961 would prevail over the
provisions of Financial Handbook and,
therefore, provision of Rule 153 (1) of the
Financial Handbook Volume I to IV are
read down with regard to admissibility of
leave to a woman with regard to second
pregnancy which would be governed by
Maternity Benefits Act, 1961 and not Rule
153 (1) of the Financila Handbook Volume
II to IV.

(3) The State Government already
having adopted the provisions of Maternity
Benefits Act, 1961 as per Government
Order dated 11.4.2011, as recorded by this
Court in the case of Anshu Rani Vs. State
of U.P. passed in Writ A No.3486 of 2019,
makes
it
abundantly
clear
that
the
provisions of Maternity Benefits Act, 1961
would prevail over any other law.

26. In light of the above, the writ
petition is allowed and the order dated
30.7.2019 is quashed, and the respondents
are directed to grant maternity benefit to
the petitioner in terms of the Maternity
Benefit Act 1961. They are also directed to
pass appropriate order in this regard within
a period of 4 weeks from the date a
certified copy of the order is produced
before the competent authority.
----------
(2022) 8 ILRA 83
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 5483 of 2022

Kallu Ali (Supervisor Retired)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: