Neutral Citation No. - 2024:AHC-LKO:72468
Court No. - 5
Case :- WRIT - A No. - 9975 of 2024
Petitioner :- Jyoti Singh
Respondent :- State Of U.P. Thru. Prin. Addl. Chief Secy./Prin.
Secy. Secondary Education U.P. Lko. And 3 Others
Counsel for Petitioner :- Ashutosh Pratap Singh
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard learned counsel for petitioner and learned State
Counsel for opposite parties.
2. No notice be issued to respondents no.3 & 4 taking in view
of consideration of nature of order proposed to be passed.
3. Petition has been filed challenging orders dated 30.09.2024
& 03.10.2024 whereby petitioner's application for second
maternity leave has been rejected. Further prayer seeking a
direction to opposite parties to grant maternity leave to
petitioner with effect from 01.11.2024 till 29.04.2025 with full
salary has also been sought.
4. It has been submitted that a perusal of impugned order will
make it evident that petitioner's application for maternity leave
has been rejected only on the ground that as per Regulation 101
read with Regulation 153(1) of Financial Handbook Volume II
part 2 to 4, second maternity leave is not admissible in case it is
sought within a period of two years from the date first maternity
leave was sanctioned.
5. Learned counsel for petitioner has placed reliance on
judgments rendered by Coordinate Benches of this Court in the
case of Anupam Yadav & Ors versus State of U.P. & Ors.
reported in 2022(11) ADJ 669, Anshu Rani Versus State of
U.P. & Ors. reported in (2019) 3 UPLBEC 1741 and Satakshi
Mishra versus State of U.P. & Ors. reported in 2022(10) ADJ
333.
6. A perusal of aforesaid judgments make it evident that the
aforesaid issue has already been decided by Coordinate
Benches of this Court.
7. In the case of Anupam Yadav (supra) the following has
been held as under:
"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 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 counsel 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."
8. The aforesaid reasoning has also been indicated by
Coordinate Benches of this Court in the other two judgments as
well to the effect that the provisions of Maternity Benefit Act,
1961 being a beneficial legislation would have overriding effect
over the provisions of Financial Handbook. It was being
specifically held that Second Maternity Leave within a period
of two years from the grant of First Maternity Leave is
admissible.
9. Since the only reason indicated for rejection of petitioner's
application of second maternity benefit is already indicated in
the impugned order itself, the same cannot be supplemented or
made better by any other affidavit as indicated in judgment of
Hon'ble the Supreme Court in the case of Mohinder Singh Gill
& Ors. versus Chief Election Commissioner, New Delhi &
Ors. reported in AIR 1978 SC 851, therefore this petition is
being adjudicated upon at the admission stage itself considering
law settled as indicated hereinabove with regard to dispute in
the present petition.
10. Considering the aforesaid judgments on the point, it being
evident that there is no bar for an employee seeking Second
Maternity benefit within a period of two years from the grant of
First Maternity benefit, the impugned orders dated 30.09.2024
& 03.10.2024 are hereby quashed by issuance of a writ in the
nature of Certiorari. A further writ in the nature of Mandamus is
issued commanding the opposite party no.2 i.e. District
Inspector of Schools, Lucknow to sanction Maternity Leave to
petitioner with effect from 01.11.2024 till 29.04.2015 along
with all service benefits.
11. Resultantly, the petition succeeds and is allowed at the
admission stage itself. Parties to bear their own costs.
Order Date :- 25.10.2024
S. Shivhare
Digitally signed by :-
SHASHANK SHIVHARE
High Court of Judicature at Allahabad,
Lucknow Bench