Smt. Anupam Yadav v. State Of U.P. And
Case Details
Court No. - 33 Case :- WRIT - A No. - 18049 of 2022
Legal Reasoning
Petitioner :- Smt. Sarika Rajput Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Brij Bhushan Prasad Shrivastava Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Hon'ble Ashutosh Srivastava,J. Heard Sri B.B. Srivastava, learned counsel for the petitioner, Sri A.K. Yadav, learned counsel representing respondents No. 2 & 3 and learned Standing Counsel who has accepted notice on behalf of State-respondent. By means of the present writ petition, the petitioner is seeking issuance of a writ of certiorari quashing the impugned order dated 23.10.2022 passed by District Basic Education, Mathura/respondent No.2 whereby the claim of the petitioner for grant of maternity leave from 28.10.2022 to 25.4.2023 has been rejected stating that the same is not admissible on the ground that the period of 2 years have not elapsed from the date of the expiry of the last maternity leave granted to her under the proviso to Rule 153 (I) of Chapter XIII of the U.P. Fundamental Rules in Financial Handbook Volume-II, Part 2 to 4. Learned counsel for the petitioner at the very outset submits that the similar controversy, as raised in the present petition, has already gained attention of this Court in a bunch of writ petitions leading amongst them being Writ- A No. 9535 of 2022 (Smt. Anupam Yadav vs. State Of U.P. And 2 Others), which writ petition has been allowed by this Court vide order dated 21.10.2022, with the following observations:- "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 cousnel 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.
Decision
27. In the light of the above discussion, the writ petition is allowed. The order impugned dated 23.6.2022 in the writ petition is set aside. The District Basic Education Officer concerned is directed to pass appropriate orders for sanctioning the maternity leave to the petitioner within a period of two weeks from the date of service of certified copy of the order upon him." Learned counsel for the petitioner, therefore, prays that the present writ petition may also be decided in terms of the aforesaid decision of this Court dated 21.10.2022 passed in Writ- A No. 9535 of 2022. Sri A.K. Yadav as well as learned Standing Counsel representing the respondents have no objection to the aforesaid proposition. In view of the above, the impugned order dated 23.10.2022 is set aside. The present writ petition is allowed in terms of the order passed in Writ- A No. 9535 of 2022 (Smt. Anupam Yadav vs. State Of U.P. And 2 Others). Accordingly, the District Basic Education, Mathura/respondent No.2 is directed to pass appropriate orders for sanctioning of the maternity leave to the petitioner within a period of two weeks from the date of service of certified copy of this order. Order Date :- 15.11.2022 Vandana Digitally signed by VANDANA GAUTAM Date: 2022.11.18 16:50:47 IST Reason: Location: High Court of Judicature at Allahabad