# Taru Kashyap v. Union Of India & Ors

- **Citation:** (2025) 7 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-21
- **Case number:** Writ A No. 4360 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/taru-kashyap-v-union-of-india-ors-54620
- **Pages:** 7

## Headnote

A.S.G.I., Harsha Yadav

Issue for Consideration
(A) Applicability of the welfare provisions
regarding maternity leave to a woman employed
on contractual basis.
(B) Overriding effect of the engagement letter
dated 03.09.2021, which prohibit the maternity
benefit, to the Maternity Benefit Act, 1961.
350 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
(A) Service law - Right of woman to bear
child - Maternity leave - Entitlement -
Petitioner
was
initially
engaged
on
contractual basis - Earlier engagement
letter did not prohibit grant of maternity
benefit,
but
subsequent
engagement
letter
dated
03.09.2021
imposes
prohibition through its clause (7)
-
Validity challenged :
Held : The provisions of Act of 1961 would
be applicable even on ladies who are
employed on contractual basis - In case,
clause (7) of the letter dated 03.09.2021 is
held to be maintained, it would definitely
defeat provisions of Act of 1961 and
therefore, the consideration and object of
clause (7) would definitely be against
principles and objects of the Act of 1961
which are beneficial in nature and would
have reference to the right of a lady to bear
children which would come within realm of a
Fundamental Right under Article 21 of the
Constitution of India. [Paras 9 and 12] (E-1)
Case Law Cited
Dr. Kavita Yadav v. Secretary, Ministry of Health
and Family Welfare Department and others,
2023 SCC OnLine SC 1067; Dr. Rachna
Chaurasiya v. State of U.P. and others, 2017
SCC OnLine ALL 4396 - referred to.
List of Acts
Constitution of India - Article 21, 39 and 42;
Maternity Benefit Act, 1961 - S. 12(2) (a) and
27; Contract Act, 1872 - S. 23.
List of Keywords
Maternity leave; Service on contractual basis;
Prohibition; Principle of estoppel; Disparity in
maternal protection; Mandamus.
Case Arising From
Challenge to Clause (7) of the engagement
letter dated 02/03.09.2021 to the extent it
denies maternity leave to female employees in
the establishment.

## Text

7 All. Taru Kashyap Vs. Union of India & Ors.
349

9. The law is equally well settled that
when rules require a particular thing to be
done in a prescribed manner, it should be
done in that manner alone; M/S Tata
Chemicals v. Commissioner of Customs
(Preventive) Jamnagar (2015) 11 SCC
628, Krishna Rai (dead) through LRs
and others v. Banaras Hindu University
through Registrar and others (2022) 8
SCC 713.

10. There may be a question that
contract employees are not protected under
government service rules and hence, this
Court may not exercise its power under
Article 226 of the Constitution, but in my
considered view, where State and its
instrumentalists are employers, they must
ensure not only fairness in procedure by
following
their
own
circulars
and
instructions but should also be fair in their
assessment of work and conduct of the
contract
based
employees.
If
an
experienced employee's work and conduct
can be ensured to be smooth and in an
orderly manner by issuing warning to him,
such
employer
should
refrain
from
undergoing fresh exercise of selection
which will cause further burden upon
public exchequer.

11. In these circumstances, therefore,
the
recommendations
made
by
the
committee which was not duly constituted
as per the circular letter, should not have
been considered and ought not to have been
made a ground to rescind the contract of
appointment of the petitioner. Further I
notice that the charge of extortion by way
of corruption has not been proved in the
enquiry report and, therefore, the action
ultimately rescinding the contract should
not have been taken and petitioner should
have been issued with a warning to be
sincere in his work assigned to him.

12. In view of the above discussions
therefore, the order impugned cannot be
sustained in law.

13. Accordingly writ petition succeeds
and is allowed. The order terminating the
contract appointment of the petitioner dated
11.01.2022 is hereby quashed.

14. Petitioner shall be reinstated and
shall be paid his remuneration.

15. Appropriate order shall be passed by
the authority within a period of one month
reinstating the petitioner into employment,
reviving his contract employment within two
weeks' time, however, petitioner shall not be
entitled for any back wages.
----------
(2025) 7 ILRA 349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 4360 of 2023

Taru Kashyap ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Dheeraj Awasthi, Devak Vardhan

Counsel for the Respondents:
A.S.G.I., Harsha Yadav

Issue for Consideration
(A) Applicability of the welfare provisions
regarding maternity leave to a woman employed
on contractual basis.
(B) Overriding effect of the engagement letter
dated 03.09.2021, which prohibit the maternity
benefit, to the Maternity Benefit Act, 1961.
350 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
(A) Service law - Right of woman to bear
child - Maternity leave - Entitlement -
Petitioner
was
initially
engaged
on
contractual basis - Earlier engagement
letter did not prohibit grant of maternity
benefit,
but
subsequent
engagement
letter
dated
03.09.2021
imposes
prohibition through its clause (7)
-
Validity challenged :
Held : The provisions of Act of 1961 would
be applicable even on ladies who are
employed on contractual basis - In case,
clause (7) of the letter dated 03.09.2021 is
held to be maintained, it would definitely
defeat provisions of Act of 1961 and
therefore, the consideration and object of
clause (7) would definitely be against
principles and objects of the Act of 1961
which are beneficial in nature and would
have reference to the right of a lady to bear
children which would come within realm of a
Fundamental Right under Article 21 of the
Constitution of India. [Paras 9 and 12] (E-1)
Case Law Cited
Dr. Kavita Yadav v. Secretary, Ministry of Health
and Family Welfare Department and others,
2023 SCC OnLine SC 1067; Dr. Rachna
Chaurasiya v. State of U.P. and others, 2017
SCC OnLine ALL 4396 - referred to.
List of Acts
Constitution of India - Article 21, 39 and 42;
Maternity Benefit Act, 1961 - S. 12(2) (a) and
27; Contract Act, 1872 - S. 23.
List of Keywords
Maternity leave; Service on contractual basis;
Prohibition; Principle of estoppel; Disparity in
maternal protection; Mandamus.
Case Arising From
Challenge to Clause (7) of the engagement
letter dated 02/03.09.2021 to the extent it
denies maternity leave to female employees in
the establishment.
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Devak Vardhan, learned
counsel for petitioner and Ms. Harsha
Yadav, learned counsel for opposite parties.

2. Petition has been filed challenging
Clause 7 of the engagement letter dated
02/03.09.2021 to the extent it denies
maternity leave to female employees in the
establishment. Quashing of order dated
03.05.2023 granting matrimonial leave to
petitioner without pay has also been sought
alongwith
a
direction
to
concerned
authority to grant maternity benefit to
petitioner with full wages as applicable.

3. It has been submitted that petitioner
was initially engaged on contractual basis
on the post of Special Educator vide letter
dated 08.10.2020 on a fixed honorarium for
a period of 89 days. It is submitted that
subsequently upon completion of the
aforesaid tenure, the petitioner was again
re-engaged on the said post on contractual
basis vide letter dated 03.09.2021, again for
a period of 89 but with a new addition of
Clause
7
which
denied
benefits
of
maternity leave to petitioner. It is submitted
that subsequently petitioner submitted an email application dated 20.04.2023 seeking
maternity leave in terms of Section 10 of
the Maternity Benefit Act, 1961 for a
period of two weeks w.e.f. 20.04.2023 till
04.05.2023. The said application was
granted partly granting leave for the
aforesaid time period without pay on
medical grounds.

4. Learned counsel has adverted to the
Maternity Benefit Act, 1961 to submit that
the Act by its very nature applies even to
contractual
engagement
in
any
establishment including the one under
which petitioner was engaged. He has
7 All. Taru Kashyap Vs. Union of India & Ors.
351
adverted to various sections of the Act of
1961 to submit that petitioner had a right to
be granted the aforesaid benefit particularly
those indicated in Sections 5, 8 and 10 of
the Act. He has also placed reliance on
judgment rendered by Hon'ble Supreme
Court in the case of Dr. Kavita Yadav
versus Secretary, Ministry of Health and
Family Welfare Department and others,
2023 SCC OnLine SC 1067 as well as
Division Bench of this Court in the case of
Dr. Rachna Chaurasiya versus State of
U.P. and others, 2017 SCC OnLine ALL
4396.

5. Learned counsel for opposite parties
on the basis of counter affidavit has refuted
submissions advanced by learned counsel
for
petitioner
and
has
adverted
to
paragraphs 4 to 6 of the counter affidavit
indicating the time periods whereunder
petitioner was engaged on contractual
basis. It is submitted that the aforesaid
benefit could not be extended to petitioner
in view of specific stipulation indicated in
paragraph-7 of the letter dated 03.09.2021
whereby petitioner was re-engaged in
service on contractual basis.

6. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record, it is evident that
petitioner was initially engaged in service on
contractual basis on the post of Special
Educator for a period of 89 days vide order
dated 08.10.2020. It is noticeable that the
aforesaid letter of engagement did not contain
any such prohibition in grant of maternity
benefit to petitioner and it is only in the
subsequent
engagement
letter
dated
03.09.2021 where such a prohibition was
indicated for the first time in Clause 7.

7. In view thereof, the question
requiring adjudication would be whether
petitioner would be governed by provisions
of the Act of 1961 or the specific
stipulation prohibiting maternity benefit as
indicated in the engagement letter dated
03.09.2021
particularly
in
view
of
principles of estoppel.

8. With regard to aforesaid, a perusal
of the Act of 1961 specifically in the
statement of objects and reasons indicates
that maternity protection is provided under
different acts under the Central and State
Governments and due to considerable
diversity
in
provisions
relating
to
qualifying conditions etc., the existing
disparities in that respect were required to
be removed. Section 2 of the Act clearly
indicates its application to every shop or
establishment within meaning of any law
for the time being in force in which ten or
more persons are employed, or were
employed, on any day of preceding twelve
months. The right to payment of maternity
benefit has thereafter been indicated in
Section 5 of the Act with qualifying period
being indicated in Sub Section 2 thereof
whereby no woman is to 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 80 days in the
12 months immediately preceding the date
of her expected delivery. The definition
clause indicated in Section 3 of the Act as
defined employer and establishment which
does
not
exclude
any
contractual
engagement on behalf of the State. The
explanation clause thereafter also indicates
methodology of calculation of the 80 days.
Sub-clause 3 indicates the maximum period
of 26 weeks for entitlement of maternity
benefit. The aspect of applicability of the
aforesaid Act to persons engaged on
contractual basis has been adjudicated by
Hon'ble Supreme Court in the case of Dr.
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Kavita Yadav (supra) in the following
manner:-

"5. The main question which falls
for determination in this appeal is as to
whether
the
maternity
benefits,
as
contemplated in the 1961 Act, would apply
to a lady employee appointed on contract if
the period for which she claims such
benefits overshoots the contractual period.
Ms.
Rachita
Garg,
learned
counsel
appearing for the respondent-employer,
sought to defend the reasoning given in the
judgment
under
appeal.
Her
main
argument is that once the term or tenure of
the contract ends, there cannot be a
notional extension of the same by giving the
employee the benefits of the 1961 Act in
full, as contemplated in Section 5(2)
thereof. It is her submission that any
benefits that the appellant would be entitled
to ought to be within the contractual
period.

6. We have reproduced earlier in
this judgment the provisions of Section
12(2)(a) of the 1961 Act. The aforesaid
provision contemplates entitlement to the
benefits under the 1961 Act even for an
employee who is dismissed or discharged
at any time during her pregnancy if the
woman,
but
for
such
discharge
or
dismissal, would have been entitled to
maternity benefits or medical bonus. Thus,
continuation of maternity benefits is inbuilt in the statute itself, where the benefits
would survive and continue despite the
cessation of employment. In our opinion,
what
this
legislation
envisages
is
entitlement to maternity benefits, which
accrues on fulfillment of the conditions
specified in Section 5(2) thereof, and such
benefits can travel beyond the term of
employment also. It is not co-terminus with
the employment tenure. A two Judge Bench
of this Court in the case of Municipal
Corporation of Delhi v. Female Workers
(Muster Roll) [(2000) 3 SCC 224], while
dealing with a similar claim by female
muster roll workers who were employed on
daily wages, opined that the provisions
relating to maternity benefits in the 1961
Act would be applicable in their cases as
well. That dispute had reached this Court
through the Industrial Tribunal and the
High Court. Before both these fora, the
Union espousing the cause of the female
workers was successful. In that case, point
of discrimination was highlighted as
regular women employees were extended
the benefits of the said Act but not those
who were employed on casual basis or on
muster roll on daily wage basis. This Court
observed, in paragraph 27 of the said
judgment: -

"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.""

9. It has, thus, been held in the
aforesaid judgment taking recourse to
7 All. Taru Kashyap Vs. Union of India & Ors.
353
Section 12 (2) (a) of the Act of 1961 that
the provisions of Act of 1961 would be
applicable
even
on
ladies
who
are
employed on contractual basis.

10. The aforesaid reasoning has also
been adopted by Division Bench of of this
Court in the case of Dr. Dr. Rachna
Chaurasiya
(supra)
in
the
following
manner:-

"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.

The aforesaid view taken by us
find full support from the dictum of Hon'ble
Apex Court in the case of Municipal
Corporation of Delhi Vs. Female Workers
(Muster Roll) & Anr., (2000) 3 SCC 224. It
may be relevant to produce paragraph 27
from the said report.

"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."

We are of the considered opinion
that the benefit under the Act as well as the
Rules of the Government Orders providing
for grant of Maternity benefits and Child
Care leave are applicable to all female
employees, irrespective of their nature of
employment whether permanent, temporary
or contractual."

11. The aforesaid aspect may also be
required to be considered in view of Section
23 of the Contract Act which prohibits
unconscionable contracts, which are required
to be seen in terms of Articles 39 and 42 of
the Constitution of India pertaining to
directive principles in a welfare society.

12. Upon examination of Section 23 of the
Contract Act, it would be evident that in case
Clause 7 of the letter dated 03.09.2021 is held to
be maintained, it would definitely defeat
provisions of Act of 1961 and therefore, the
consideration and object of paragraph-7 of the
letter dated 03.09.2021 would definitely be
against principles and objects of the Act of
1961 which are beneficial in nature and would
have reference to the right of a lady to bear
children which would come within realm of a
Fundamental Right under Article 21 of the
Constitution of India.

13. The aforesaid aspect is also
required to be considered in the light of
Section 27 of the Act of 1961, which
clearly indicates as follows:-
354 INDIAN LAW REPORTS ALLAHABAD SERIES

"21. Penalty for contravention of
Act by employer - (1) If any employer fails
to pay any amount of maternity benefit to a
woman
entitled
udner
this
Act
or
discharges or dismisses such woman
during or on account of her absence from
work in accordance with the provisions of
this Act, he shall be punishable with
imprisonment which shall not be less than
three months but which may extend to one
year and with fine which shall not be less
than two thousand rupees but which may
extend to five thousand rupees :

Provided that the court may, for
sufficient reasons to be recorded in writing,
impose a sentence of imprisonment for a
lesser term or fine only in lieu of
imprisonment.

(2) If any employee contravenes
the provisions of this Act or the rules made
thereunder, he shall, if no other penalty is
elsewhere provided by or under this Act for
such contravention, be punishable with
imprisonment which may extend to one
year, or with fine which may extend to five
thousand rupees, or with both :

Provided
that
where
the
contravention is of any provision regarding
maternity benefit or regarding payment of
any other amount and such maternity
benefit or amount has not already been
recovered, the court shall, in addition,
recover such maternity benefit or amount
as if it were a fine and pay the same to the
person entitled thereto."

14. The aforesaid statutory provision,
therefore, clearly enunciates that the
provisions of Act of 1961 would have
precedence over any terms of agreement or
contract of service whether made before or
after coming in force of the Act. The
proviso thereto would be applicable only
where the contract of engagement would
have
any
provision
which
is
more
beneficial to an employee than the
provisions of Act of 1961.

15. It is also evident from a perusal of
counter affidavit, specifically paragraph 6
(7) thereof that petitioner was under
contract of engagement from 31.03.2023
till 30.05.2023 and had sought maternity
benefit during subsistence of her contract.

16.
As
has
already
been
held
hereinabove, the beneficial provisions of
Act of 1961 would have preference over
any prohibition of such maternity benefit as
indicated in Clause-7 of the letter dated
03.09.2021.

17. In view thereof, petitioner would
definitely be entitled to all the benefits
accruing to her in terms of the Act of 1961
specifically those indicated in Sections 5, 8
and 10 of the Act of 1961.

18.
Although
it
appears
that
subsequently petitioner has not been reengaged in under contract but the aforesaid
aspect also becomes irrelevant in view of
enunciation of law in the case of Dr. Kavita
Yadav (supra) in the following manner:-

"9. The respondents sought to
distinguish the present dispute from the
case of Female Workers (Muster Roll)
(supra) on the ground that the said case
arose from an award of the Industrial
Tribunal and that there was a finding by
the Tribunal that the muster roll lady
workers were working for a long period of
time. But the fact remains that in law,
daily-wage workers cannot be said to have
continuity of service for an unlimited
period. The effect of that judgment was that
7 All. Urmila Singh Vs. State of U.P. & Ors.
355
their tenure also stood notionally extended
so far as application of maternity benefits
under the 1961 Act was concerned.

10. Our independent analysis of
the provisions of the 1961 Act does not lead
to an interpretation that the maternity
benefits cannot survive or go beyond the
duration of employment of the applicant
thereof. The expression employed in the
legislation is maternity benefits [in Section
2(h)] and not leave. Section 5(2) of the
statute, which we have quoted above,
stipulates the conditions on the fulfilment of
which such benefits would accrue. Section
5(3) lays down the maximum period for
which such benefits could be granted. The
last proviso to Section 5(3) makes the
benefits applicable even in a case where
the applicant woman dies after delivery
of the child, for the entire period she
would have been otherwise entitled to.
Further, there is an embargo on the
employer from dismissing or discharging
a woman who absents herself from work
in accordance with the provisions of the
Act during her absence. This embargo
has been imposed under Section 12(2)(a)
of the Act. The expression "discharge" is
of wide import, and it would include
"discharge
on
conclusion
of
the
contractual period". Further, by virtue
of operation of Section 27, the Act
overrides any agreement or contract of
service found inconsistent with the 1961
Act."

19. In view of discussions made
hereinabove, Clause 7 of letter dated
03.09.2021 is hereby held not only to be
unconstitutional but also against provisions
of the Act of 1961. The opposite parties are
hereby directed not to incorporate any such
clause in any engagement on contractual
basis even in future.

20. Accordingly, a writ in the nature of
mandamus is issued commanding the
opposite
parties
to
ensure
maternity
benefits to petitioner in accordance with
Sections 5, 8 and 10 of the Act of 1961
within a period of six weeks from the date a
certified copy of this order is produced
before the concerned authority.

21. Resultantly, petition succeeds and
is allowed. Parties to bear their own cost.
----------
(2025) 7 ILRA 355
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2025

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 5545 of 2021

Urmila Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jitendra Prasad, Niraj Kumar Singh, Rajesh
Kumar Singh

Counsel for the Respondents:
C.S.C., Jay Ram Pandey

Issue for consideration
Eligibility of wife for family pension if nomination
is otherwise; correctness of order dated
21.09.2020 passed by respondent no. 3 -
Finance and Accounts Officer, Basic Education,
Mirzapur.
Headnotes
U.P. Retirement Benefit Rules, 1961-Rules
3, 6, 7- petitioner is legally wedded wife of the
deceased government servant- nomination was