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7. Mr. Indra Dev, learned Counsel for the petitioner, further submits emphatically that the first and the second child, with regard to whose birth, a female government servant is entitled to maternity leave, as a matter of right, with restriction in the case of a third child, is to be regarded as one bearing reference to children born after the government servant's entry into service. He submits that the Rule postulates two instances of maternity leave, with a gap of two years, and the right given by the Rule, if read the way the respondents urge, would be nullified in case of a female government servant, who enters service with two living children, and none of whom suffer from any kind of disability or handicap. It is urged by the learned Counsel for the petitioner that this is not the purpose or the intent of Rule 153 of the Rules. He argues that Fundamental Rule 153 is not a charter about family planning, but a concession in favour of the female government servant. It has been introduced in order to afford equal right to women to work with men in accordance with the mandate of Article 15 without any discrimination, balancing at the same time their special role in society as birth-givers to the next generation. He submits that placing a restriction of this kind on the right of a woman to maternity leave would be a violation of the Maternity Act, as amended by the Act of 2017. It is argued that the Maternity Act does not envisage any kind of a restriction in the workplace on extension of maternity benefit, and the Rules cannot be given effect to in conflict with the Central Statute. In support of his contention, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and another1. Besides the authority, reliance has also been placed on the decision of this Court in Anshu Rani v. State of U.P. and others2. Learned Counsel for the petitioner further relies on the decision of a Division Bench of this Court in Rachna Chaurasiya v. State of U.P. and others3. To particularly support his submission, learned Counsel for the petitioner has relied on an unreported decision of Pradeep Kumar Singh Baghel, J. in Smt. Neelam Shukla v. State of U.P. and others4.

9. Mr. R.V. Yadav has reposed faith in the decision of a Division Bench of the Uttarakhand High Court in State of Uttarakhand v. Urmila Masih and others5 to submit that the Maternity Act does not apply to a government servant, or for that matter, anyone except those specific kind of employees who are referred to under Section 2 or 3(e) thereof. It is urged that since the petitioner is an Assistant Teacher and not an employee of any of the kind of employers or establishments envisaged under Section 2(1)(a) or (b), or the establishment of the kind envisaged under Section 3(e) of the Maternity Act, it cannot be argued that the provision of Rule 153(1) of the Rules are in conflict with the Maternity Act, which is a Central Statute, covering the same field. The decision in Municipal Corporation of Delhi (supra) is one that relates to female workers engaged by the Municipal Corporation of Delhi, who are daily wagers working on muster roll. They had raised a demand for grant of maternity leave that was available to regular female workers of the Corporation, but denied to muster roll employees. An industrial dispute was raised by the Delhi Municipal Workers' Union, which led to a reference to the Industrial Tribunal in terms whether the female workers working with the Corporation on muster roll should be given any maternity benefit. Admittedly, it was a case, to which no service rules, and more particularly, leave rules, would apply. These were women workers, whose conditions of employment were hardly any and absolutely unregulated by statutory rules, except the protection of industrial laws.

15. It was in the context of the aforesaid facts and the nature of employment that their Lordships of the Supreme Court held that the Maternity Act would apply to such women, who would be entitled to the various maternity benefits available under Sections 5, 5-A, 5-B, 9, 9-A, 10, 11 and 12 of the Act under reference. It was in the context of the aforesaid facts and nature of employment that it was held in Municipal Corporation of Delhi (supra) :

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 new-born. 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:

28. The Industrial Tribunal, which has given an award in favour of the respondents, has noticed that women employees have been engaged by the Corporation on muster roll, that is to say, on daily-wage basis for doing various kinds of works in projects like construction of buildings, digging of trenches, making of roads, etc., but have been denied the benefit of maternity leave. The Tribunal has found that though the women employees were on muster roll and had been working for the Corporation for more than 10 years, they were not regularised. The Tribunal, however, came to the conclusion that the provisions of the Maternity Benefit Act had not been applied to the Corporation and, therefore, it felt that there was a lacuna in the Act. It further felt that having regard to the activities of the Corporation, which had employed more than a thousand women employees, it should have been brought within the purview of the Act so that the maternity benefits contemplated by the Act could be extended to the women employees of the Corporation. It felt that this lacuna could be removed by the State Government by issuing the necessary notification under the proviso to Section 2 of the Maternity Act. This proviso lays down as under: