Allahabad High Court
District Basic Education Officer ... vs Vandana Mishra And 2 Others on 9 December, 2020
Bench: Munishwar Nath Bhandari, Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 1119 of 2020 Appellant :- District Basic Education Officer Pryagraj Respondent :- Vandana Mishra And 2 Others Counsel for Appellant :- Arun Kumar Counsel for Respondent :- C.S.C.,Shashi Kant Mishra Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Saurabh Shyam Shamshery,J.
Order on Exemption Application The application seeking exemption from filing certified copies of the order of the High Court is allowed.
The defect stands cured.
Let a regular number be given to this appeal.
Order on Memo of Appeal By this appeal, a challenge is made to the judgment dated 20.09.2020 whereby the petition preferred by Vandana Mishra (petitioner/non-appellant) to seek maternity leave was allowed for its consideration.
The maternity leave was denied to the petitioner/non-appellant in the light of the U.P. Fundamental Rules (for short "Fundamental Rules"). Proviso to Rule 153 denies maternity leave unless it is with the gap of two years from the date of expiry of last maternity leave.
The maternity leave of the petitioner/non-appellant was denied for the reason that birth of first child was on 15.09.2018 and birth of second child was on 02.07.2020. The birth of second child was within two years and otherwise if the period is determined from the date of the expiry of maternity leave on first occasion, it is much less than two years.
The Proviso to Rule 153 of the Fundamental Rules does not permit maternity leave within two years from the date of the expiry of first maternity leave.
Learned Single Judge has made interpretation of the said Rule which virtually nullifies the Proviso, though not permissible. It is not a case where a challenge to the Proviso to Rule 153 of Fundamental Rules was made in reference to the provisions of Maternity Benefit Act, 1961. Without a challenge to the Proviso to Rule 153 of the Fundamental Rules, benefit of maternity leave could not have been given, it is so prohibited.
The learned Single Judge has given interpretation holding that there is no logic to deny maternity leave when it is meant for better care of mother and baby, though it has also been observed that for better health of mother and baby, a gap of two years may be logical.
The argument aforesaid could not have been accepted in absence of the challenge to the validity of the Proviso to Rule 153 of the Fundamental Rules and otherwise interpretation taken by the learned Single Judge changes the tenure of the Proviso not permissible unless it is so changed.
In the light of the aforesaid, we cause interference in the judgment and it is set aside.
The appeal stands allowed with the aforesaid.
Order Date :- 9.12.2020 //Nirmal//