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Allahabad High Court · body

2022 DIGILAW 1376 (ALL)

Kiran Verma v. State Of U. P.

2022-08-31

KARUNESH SINGH PAWAR

body2022
JUDGMENT : (Karunesh Singh Pawar, J.) 1. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for respondents no. 1 to 3. 2. By means of this writ petition, the petitioner has prayed to quash the impugned order dated 16.07.2022 passed by respondent no.3 District Panchayat Raj Officer, Fatehpur by which the maternity leave of the petitioner has been rejected. 3. Further a writ of mandamus directing respondent no.2 Deputy Director (Panchayat) Prayagraj Division Prayagraj to sanction the maternity leave and pay salary in accordance with rule has also been prayed to be issued. 4. Admitted facts between the parties are as under:- 5. Petitioner was appointed on the post of Assistant District Panchayat Raj Officer (Pravi) on 18.06.2014. She joined in the month of June, 2014. After the marriage, she became pregnant and consequently she moved a representation before respondent no.2 praying for sanction of maternity leave from 01.07.2021 to 27.12.2021 which was sanctioned by order dated 30.06.2021. After one year, the petitioner again moved an application on 24.06.2022 for maternity leave for second issue before the respondent no.3 with a prayer to sanction maternity leave from 05.07.2022 to 31.12.2022 under the Maternity Benefit Act, 1961. The aforesaid application remained pending, however on a reminder dated 12.07.2022 given by the petitioner, impugned order dated 16.07.2022 has been passed, rejecting the maternity leave application given by the petitioner. 6. Learned counsel for the petitioner submits that in view of provisions of the Maternity Benefit Act, 1961, she is entitled for maternity leave. The provisions of the Act have been violated while rejecting her maternity leave. It is also submitted that the impugned order has been passed by non application of mind. 7. Sri Pramod Kumar Srivastava, learned Additional Chief Standing Counsel for the respondents submits that under the provisions of the Maternity Benefit Act, 1961, aforesaid benefit is not applicable in the case of the petitioner, who is government employee. 8. Second submission of the learned Additional Chief Standing Counsel is that in view of of the 3rd Proviso to Rule 153 of the Fundamental Rules, no maternity leave shall be admissible to the said employee until for the period of 2 years from the date of expiry of the last maternity leave granted under the Rules. 8. Second submission of the learned Additional Chief Standing Counsel is that in view of of the 3rd Proviso to Rule 153 of the Fundamental Rules, no maternity leave shall be admissible to the said employee until for the period of 2 years from the date of expiry of the last maternity leave granted under the Rules. He further submitted that first maternity leave lapsed on 21.12.2021 and therefore, the second application for maternity leave can be considered after expiry of two years from 27.12.2021, that is 27.12.2023, and not prior to that. 9. Rule 153 of the Fundamental Rules provides for grant of maternity leave to female government servant whether permanent or temporary provided that no such leave shall be admissible unless a period of 2 years have elapsed from the date of expiry of the last maternity leave granted under this rules. 10. Rule 153 of Financial Handbook is extracted as under:- 153. Maternity leave on full pay which a female Government servant, whether permanent or temporary, may be drawing on the date or proceeding on such leave may be granted to her by the head of the department or by a lower authority to whom power may be delegated to this behalf subject to the following: (1) In cases of confinement the period of maternity leave may extend up to the end of three months from the date of the commencement of leave: Provided that such leave shall not be granted for more than three times during entire service including temporary service; Provided also that if any female Government servant has two or more living children, she shall not be granted maternity leave even though such leave may otherwise be admissible to her. If, However, either of the two living children of the female Government servant is Suffering from incurable disease or is disabled or crippled since birth or contracts some incurable disease or becomes disabled or crippled later, she may, as an exception, be granted maternity leave till one more child is born to her subject to the overall restriction that maternity leave shall not be granted for more than three times during the entire service: Provided further that no such leave shall be admissible until a period of at least two years has elapsed from the date of expiry of the last maternity leave granted under this rule. (2) In cases of miscarriage. (2) In cases of miscarriage. including abortion, the period of maternity leave may extend up to a total period of six weeks on each occasion, irrespective of the number of surviving children of the female Government servant concerned provided that the application for leave is supported by a certificate from the Authorised Medical Atterndant. 11. It is not disputed between the parties that first maternity leave was sanctioned on 27.12.2021 and therefore, second maternity leave which was sought by the petitioner within two years, is not admissible under Rule 153. 12. So far as grant of maternity leave under the Maternity Benefit Act, 1961 is concerned, the same are applicable to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition or equestrian, acrobatic and other performances. It also applies to establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more person are employed, or were employed, on any day of the preceding twelve months. 13. Section 2 of the Maternity Benefit Act, 1961 is extracted below :- 2. Application of Act.-[(1) It applies, in the first instance, (a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performance; (b) to every shop or establishment within the meaning of any law for time being in force in relation to shops and establishment in a State in which ten or more persons are employed, or were employed, on any day of the preceding twelve months: Provided that the State Government may, with the approval of the Central Government, after giving not less than two month's notice of its intention of so doing by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. (2) Save as otherwise provided in sections 5-A and 5-B, nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being. 14. (2) Save as otherwise provided in sections 5-A and 5-B, nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being. 14. It is not disputed that petitioner is a government servant and it is also not disputed that she is an employee of the State Government and the Fundamental Rules 153 applies for service of Government employees as also for the grant of maternity leave. Petitioner is not an employee under an establishment as defined in Section 3 of sub-section (e) of the Maternity Benefit Act, 1961, read with Section 2 of sub-section (i). 15. Obviously, the petitioner is not an employee in the department, mine or plantation in a establishment so as to exhibit of equestrian, acrobatic and other performance etc. as provided under Act, 1961. Hence it is evident that petitioner is not an employee of establishment. This question has been considered and decided by this Court in Renu Chaudhary Versus State of U.P. and others 2022 (2) ADJ 14. 16. From the aforesaid, it is clear that second application for maternity leave of the petitioner is within two years from the date of expiry of the first maternity leave and in view of 3rd proviso to Rule 153 of the Fundamental Rules, the maternity leave could not be granted to the petitioner. The petitioner is a government employee and not an employee as provided in Section 3 (e) of the Maternity Benefit Act,1961 read with section 2 (1) thereof. 17. In view of the above, the writ petition is dismissed.