Allahabad High Court
Charu Gaur vs State Of U.P. And 2 Others on 13 December, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:195989-DB Court No. - 39 Case :- WRIT - A No. - 18775 of 2021 Petitioner :- Charu Gaur Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Abhijeet Mukherji,Vipin Kumar Counsel for Respondent :- C.S.C.,Shad Khan,Suresh Kumar Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri Abhijeet Mukherjee, learned counsel for the petitioner, Dr. D.K. Tiwari, learned Additional Chief Standing Counsel and Sri Shad Khan, learned counsel for the respondent No.3.
2. Present writ petition has been filed for the following reliefs:
"i. Issue a writ, order or direction in the nature of certiorari quashing the impugned rule 153 of the UP Fundamental Rules as ultra vires in the Constitution of India, Articles 42, 21, 14 16 as well as Section 5 of the Maternity Benefits Act.
ii. Issue a writ, order or direction in the nature of certiorari setting aside the impugned order dated 25.06.2021 passed by the respondent No.3 Basic Shiksha Adhikari, Kasganj, district- Kasganj.
iii. Issue a writ, order or direction in the nature of mandamus to pay the increments and salary to the petitioner in pursuance of Section 5 of the Maternity Benefits Act and the direction given by the Hon'ble Supreme Court in Municipal Corporation Delhi v. Female Worers and the judgment of this Court in the case of Rachna Chaurasiya v. State of UP & ors, as well as subsequent judgments of Single Bench of this Court."
3. On 11.12.2024, we had heard the matter substantially. Amongst other observations, the following order was passed:
"1. Submission is that the judgments rendered by learned Single Bench in Anupam Yadav v. State of UP & ors; 2022 (11) ADJ 669 and also Satakshi Mishra v. State of UP & ors; 2022 (10) ADJ 333 have attained finality. It has also been suggested that some of such orders were assailed before a co-ordinate bench in Special Appeal. Those special appeals have been dismissed and no further challenge has arisen therefrom. Therefore, matter stands concluded. In that regard, reliance has also been placed on a recent decision by a learned Single Judge in Smt. Sonali Sharma v. State of UP; 2023:AHC-LKO:77697.
2. Dr. D.K. Tiwari, learned Additional Chief Standing Counsel prays for a day's time to obtain instructions as to the stand of the State vis-a-vis abovenoted decisions of the learned Single Judge.
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4. Today, learned Additional Chief Standing Counsel could not point out any contrary decision to the abovenoted decisions of learned single benches.
5. In the case of Anupam Yadav (supra), it 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."
6. Also, learned Additional Chief Standing Counsel submits that State may not contest the law laid down by the Supreme Court in Deepika Singh v. Central Administrative Tribunal; 2022 OnLine SC 1088, wherein it has been observed as below:
"21. Under Article 15(3) of the Constitution, the State is empowered to enact beneficial provisions for advancing the interests of women. The right to reproduction and child rearing has been recognized as an important facet of a person's right to privacy, dignity and bodily integrity under Article 21.11 Article 42 enjoins the State to make provisions for securing just and humane conditions of work and for maternity relief.
26. The predominant understanding of the concept of a "family" both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one's familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the "mother" and the "father") of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination."
7. Also, vide paragraphs 29 & 30 of the counter affidavit, it has been stated as under:
"29. That in regard to the contents of paragraph no.17 and 18 of the writ petition, it is submitted that the Fundamental Rule 101 subsidiary Rule 153 provides that two years gap is mandatory between 1st and 2nd Pregnancy for the benefit of maternity leave.
30. That in regard to the contents of paragraph no.19 of the writ petition, it is submitted that the appropriate decision shall be taken after the guidelines issued by the State Government after due consultation with Medical and Health Department."
8. Clearly the State Government is in the process of reconciling the discrepancy that otherwise exists in Fundamental Rule 101 subsidiary Rule 153 in contrast to the provisions of Maternity Benefits Act, 1961. That exercise may involve bringing the fundamental rules in conformity to the statutory law.
9. In the first place, statutory rules, they may not prevail over principal statutory law made by a principal legislature. In any case, that issue has been examined both by the Supreme Court (in the context of law arising from another State) and also by this Court in decisions inAnupam Yadav (supra). Once those decisions have been made by the Court as are not shown to be in conflict with any other law, the petitioner is entitled to the relief claimed.
10. It may be useful to note, the decision inAnupam Yadav (supra) follows the law laid down by a co-ordinate bench in Rachna Chaurasiya v. State of UP & ors; 2017 (11) ADJ 399 (DB). There considering Government Order dated 11.04.2011, it had been observed that:
"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 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.
26. 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."
11. In view of the above, the writ petition deserves to succeed. It is allowed. Impugned order dated 25.06.2021 passed by the respondent No.3, Basic Shiksha Adhikari, Kasganj is set aside. The said authority is required to pass fresh order in accordance with law keeping in view of the observations made above.
12. Let such decision be made within a period of two months from today. All amounts, payable to the petitioner, may be paid to her within the same time.
Order Date :- 13.12.2024 P Kesari (Donadi Ramesh, J.) (S.D. Singh, J.)