Constitution
of India - Articles 15 (3) and 42 - Maternity Benefit Act, 1961 - Section 5 -
Maternity Benefit (Amendment) Act, 2017 - Right to payment of maternity benefit
- Provision for just and humane conditions of work and maternity relief - the
petitioner is entitled for maternity leave for period of six months but wholly
illegally leave was granted only for a period of three months.
The request was made by the petitioner to grant her maternity leave for 180 days was ignored by the District Basic Education Officer Bijnor while granting leave for 90 days. No reason whatsoever has been assigned by the aforesaid authority that under which circumstances the request for grant of maternity leave for a period of 180 days was turned down and the maternity leave was granted only for a period of 90 days. In the counter affidavit, it is contended that the maternity leave was rightly granted only for a period of 90 days since it is not possible in law to grant maternity leave to the petitioner for a period of 180 days in view of the Government Orders dated 20.11.2017 and 3.1.2018. The Division Bench of this Court in the case of Dr. Rachna Chaurasia (supra) directed the State Government to grant maternity leave to all female with full pay of 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or contractual basis. State-respondent was further directed to grant Child Care Leave of 730 days to all female employees, who are appointed on regular basis, contractual basis, ad hoc or temporary basis having minor children with the rider that the child should not be more than 18 years of age or older.
HIGH COURT OF JUDICATURE AT
ALLAHABAD
Hon'ble Prakash Padia, J.
19.04.2019
WRIT
- A No. - 3486 of 2019
Anshu
Rani v. State of U.P. and 2 Others
Counsel
for Petitioner :- Avadhesh Pratap Singh
Counsel
for Respondent :- C.S.C.,Prem Prakash Yadav
1.
The petitioner has preferred the present
writ petition with a prayer to issue a Mandamus directing the respondent
No.3/District Basic Education Officer, Bijnor to grant the petitioner maternity
leave with honorarium from 30.12.2018 to 31.3.2019. A further prayer is also made
to issue a mandamus directing the aforesaid respondents to decide the
application submitted by the petitioner on 21.12.2018 forthwith.
2.
Facts as contained in the writ petition
are that the petitioner was initially appointed on the post of Anudeshak on 20.07.2013
at Purwa Madhyamik Vidyalaya Gowali Noorpur, District Bijnor. Subsequently, The
petitioner was married with one Sunil Kumar on 18.2.2018. Due to wedlock, the
petitioner has conceived and to be born a female child. In this regard Doctor
advised to the petitioner to take complete bed rest. In this regard an
application dated 26.9.2018 was submitted by the petitioner before the Block
Education Officer as well as the District Basic Education Officer, Bijnor to
grant her maternity leave from 1.10.2018 to 31.3.2019. On the aforesaid
application, the District Basic Education Officer, Bijnor granted maternity
leave to the petitioner only for 90 days, i.e., 1.10.2018 to 29.12.2018 with
honorarium. The request was made by the petitioner to grant her maternity leave
for 180 days was ignored by the District Basic Education Officer Bijnor while
granting leave for 90 days. No reason whatsoever has been assigned by the
aforesaid authority that under which circumstances the request for grant of
maternity leave for a period of 180 days was turned down and the maternity
leave was granted only for a period of 90 days.
3.
It is contended by learned counsel for
the petitioner that the Parliament in the twelfth year of Republic of India has
enacted an Act namely Maternity Benefit Act, 1961. The aforesaid Act was
amended in the year 2017 known as Maternity Benefit (Amendment) Act, 2017. By
the aforesaid amendment, the period for grant of maternity leave as mentioned
in the Act 1961 is twelfth weeks has been increased from 8 weeks to 26 weeks.
The provisions contained in the maternity Benefit Act 1961 has been duly
adopted by the State Government and the Government issued orders in this regard
from time to time. Some of the Government Orders are appended along with the
writ petition as Annexure 5.
4.
Since the maternity leave for the period
of 90 days was only granted to the petitioner, the petitioner submitted a
representation addressed to the District Basic Education officer, Bijnor on
21.12.2018, since no order has been passed on the same, the petitioner has
preferred the present writ petition.
5.
Learned counsel for the petitioner relied
upon following judgments in support of his contentions:-
I.
Municipal Corporation of Delhi
Vs. Female Workers (Muster Roll) and another reported in 2000 (3) SCC 224.
II.
Dr. Shikha Jain Vs. State of
U.P. Through Prin. Secy. Higher Edu.Lko. & Ors. Service Bench No.1206 of
2012 decided on 29.8.2012.
III.
Dr. Rachna Chaurasiya Vs.
State of U.P. and others passed in Civil Misc. Writ Petition No.24627 of 2017.
6.
A counter affidavit was filed by the
contesting respondents namely respondent Nos.2 and 3. In the counter affidavit,
it is contended that the maternity leave was rightly granted only for a period
of 90 days since it is not possible in law to grant maternity leave to the
petitioner for a period of 180 days in view of the Government Orders dated
20.11.2017 and 3.1.2018.
7.
A rejoinder affidavit to the aforesaid
counter affidavit was also filed by the petitioner stating therein that the
Government Orders dated 20.11.2017 as well as 3.1.2018 appended along with the
counter affidavit are not Government Orders but only the circulars which were
issued by the respondents. It is further contended that the petitioner is
entitled for the benefit of the provisions contained in the maternity Act, 1961
as has been amended by Maternity Benefit (Amendment) Act, 2017 (hereinafter
referred to Act No.6).
It
is further contended that in view of the amendment made by the Parliament in
the Maternity Benefit Act, 1961 any order contrary to the same is liable to be
ignored.
8.
Heard Sri Avadesh Pratap Singh, learned
counsel for the petitioner, learned Standing counsel accepted notice on behalf
of respondent Nos. 1 and Sri Prem Prakash Yadav learned counsel appearing for
respondent Nos.2 and 3.
9.
Our Constitution in its preamble,
promises social and economic justice. Fundamental rights are enshrined 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. 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 empowers the State to make any
special provision for women and children. The said clause reads as under.
"15
(3). Nothing in this Article shall prevent the State from making any special
provision for women and children."
The
Directive Principles of State Policy is contained in Part IV of the
Constitution, which though are not enforceable by law, but is nevertheless
available for determining the legal efficacy of the actions of the State.
Article 42 contained in Part IV of the Constitution reads as under.
"42.
Provision for just and humane conditions of work and maternityrelief.- The
State shall make provision for securing just and humane conditions of work and
for maternity relief."
10.
In consonance with the provisions of
Article 42, Parliament has made the Maternity Benefit Act, 1961. Since Article
42 specifically speaks of "just and humane conditions of work" and
"maternity relief, the validity of an executive or administrative action
in denying maternity benefit has to be examined on the anvil of Article 42
which, though not enforceable at law, is nevertheless available for determining
the legal efficacy of the action complained of.
Section
2 of the Maternity Benefit Act, 1961 deals with the applicability of the Act.
Section 3 contains definitions. The word "child" as defined in
Section 3(b) includes a 'still-born' child. "Delivery" as defined in
Section 3(c) means the birth of a child. "Maternity Benefit" has been
defined in Section 3(h), which means the payment referred to in sub-section (1)
of Section 5. "Woman" has been defined in Clause (o) of Section 3
which means "a woman employed, whether directly or through any agency, for
wages in any establishment." "Wages" have been defined in Clause
(n) of Section 3 which provides, inter alia, as under :
"3
(n) 'wages' means all remuneration paid or payable in cash to a
woman......".
Section
5 provides, inter alia, as under :
"5.
Right to payment of maternity benefit - (1) Subject to the provisions of this
Act, every woman shall be entitled to, and her employer shall be liable for,
the payment of maternity benefit at the rate of the average daily wage for the
period of her actual absence, that is to say, the period immediately preceding
the day of her delivery, the actual day of her delivery and any period
immediately following that day.
Explanation
- For the purpose of this sub-section, the average daily wage means the average
of the woman's wages payable to her for the days on which she has worked during
the period of three calendar months immediately preceding the date from which
she absents herself on account of maternity, the minimum rates of wages fixed
or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the
highest.
(2)
No woman shall be entitled to maternity benefit unless she has actually worked
in an establishment of the employer from whom she claims maternity benefit, for
a period of not less than eighty days in the twelve months immediately
preceding the date of her expected delivery.
Explanation
- For the purpose of claculating under this sub-section the days on which a
woman has actually worked in the establish-ment, the days for which she has
been laid off or was on holidays declared under any law for the time being in
force to be holidays with wages during the period of twelve months immediately
preced-ing the date of her expected delivery shall be taken into account.
(3)
The maximum period for which any woman shall be entitled to maternity benefit
shall be twelve weeks of which not more than six weeks shall precede the date
of her expected delivery.
Section
5A provides that if the Employees' State Insurance Act, 1948 is applied or
becomes applicable to the establishment where a woman is employed, such woman
shall continue to be entitled to receive the maternity benefits under this Act
so long as she does not become qualified to claim maternity benefits under
Section 50 of that Act.
It
may be stated that Section 50 of the Employees' State Insurance Act, 1948
provides as under :
"50.
Maternity benefit - The qualification of an insured woman to claim maternity
benefit, the conditions subject to which such benefit may be given, the rates
and period thereof shall be such as may be prescribed by the Central
Government."
Section
5B of the Maternity Act speaks of payment of maternity benefit in certain
cases. Section 6 provides notice of claim for maternity benefit and payment
thereof. Section 8 provides that every womanentitled to maternity benefit under
this Act shall also be entitled to receive from her employer a medical bonus of
250 rupees, if no pre-natal confinement or post-natal care is provided by the
employer free of charge.
Reference
may also be made to the decision taken by the Central Government on the basis
of the recommendation of the VIth Central Pay Commission introducing Child Care
Leave in respect of the Central Government employee vide office memorandum No.
13018/2/2008-Estt. (L) dated 11.09.2008, which was issued by Ministry of
Personnel, Public Grievances and Pensions (Department of Personnel & Training).
Relevant clause (c) reads as under.
"(c)
Women employees having minor children may be granted Child Care Leave by an
authority competent to grant leave, for a maximum period of two years (i.e. 730
days) during their entire service for taking care of upto two children whether
for rearing or to look after any of their needs like examination, sickness etc.
Child Care Leave shall not be admissible if the child is eighteen years of age
or older. During the period of such leave, the women employees shall be paid
leave salary equal to pay drawn immediately before proceeding on leave. It may
be availed of in more than one spell. Child Care Leave shall not be debited
against the leave account. Child Care Leave may also be allowed for the third
year as leave not due (without production of medical certificate.) It may be
combined with leave of the kind due and admissible."
11.
The aforesaid decision of the Central
Government has been adopted by the State of U.P. for its employees vide
Government Order dated 08.12.2008 and 24.03.2009. Subsequently, certain
modifications being made by the Central Government, the same was also adopted
by the State Government vide Government Order dated 11th April, 2011. The
aforesaid Government Order is being reproduced hereinunder.
12.
From a
perusal of the aforesaid Government Order, 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.
13.
The maternity leave is a social
insurance. The maternity leave is given for maternal and child health and
family support. From perusal of the different provisions of the Maternity
Benefit Act, 1961 as amended in the year 2017 as well as the policy of the
Central Government to grant child care leve and Government orders issued by the
State Governments in the State of U.P. adopting the same for its female
employees, I am of the firm opinion that the female employees of the State of
U.P. are entitled for the benefits of the maternity leave as contained in the
Maternity Benefit Act 1961 as amended by the Maternity Benefit (Amendement)
Act, 2017.
14.
Ordinarily, in the Maternity Benefit Act,
1961, it was provided that a female employee is entitled for the maternity
leave for a period of 12 weeks only. The relevant Section of the Act is quoted
below:-
5.
Right to payment of maternity benefit. –
(3)
The maximum period for which any woman shall be entitled to maternity benefit
shall be twelve weeks, that is to say, six weeks up to and including the day of
her delivery and six weeks immediately following that day
15.
The Parliament introduced the Maternity
Benefit (Amendment) Act, 2017 by way of Act No.6 of 2017. By way of aforesaid
amendment in Sub Section 3 of Section 5 words “Twenty-six weeks of which not
more than eight weeks” have been replaced. The relevant part of the amended Act
is quoted below:-
2.
In the Maternity Benefit Act, 1961 (hereinafter referred to as the principal
Act), in section 3, after clause (b), the following clause shall be inserted,
namely:—
‘(ba)
“commissioning mother” means a biological mother who uses her egg to create an
embryo implanted in any other woman;’.
3. In the principal Act, in section 5,—
(A)
in sub-section (3)—(i) for the words ‘‘twelve weeks of which not more than six
weeks’’, the words ‘‘twenty-six weeks of which not more than eight weeks’’
shall be substituted;
16.
After going through the large number of
judgment and the matter in great detail, the Division Bench of this Court in
the case of Dr.
Rachna Chaurasia (supra) directed
the State Government to grant maternity leave to all female with full pay of
180 days, irrespective
of nature of employment, i.e., permanent, temporary/ad hoc or contractual
basis. Staterespondent was further directed to grant Child Care Leave of 730
days to all female employees, who are appointed on regular basis, contractual
basis, ad hoc or temporary basis having minor children with the rider that the
child should not be more than 18 years of age or older. The relevant portion of
the aforesaid judgment is quoted below:-
Accordingly,
the writ petition stands allowed with the following directions.
1. Respondents are directed to grant
Maternity Leave to the petitioner with full pay as applied within 8 weeks from
today.
2. The respondent-State is also directed
to grant Maternity Leave to all family employees with full pay for 180 days,
irrespective of nature of employment, i.e., permanent, temporary/ad hoc or
contractual basis.
3. State-respondent is also directed to
grant Child Care Leave of 730 days to all female employees, who are appointed
on regular basis, contractual basis, ad hoc or temporary basis having minor
children with the rider that the child should not be more than 18 years of age
or older.
17.
Insofar as the judgement of the Supreme
Court is concerned, the Supreme Court in the case of Municipal Corporation Delhi
(supra) after taking
into consideration the Universal Declaration of Human Rights adopted by the
United Nations on 10th December, 1948 set in motion the
universal thinking that human rights are supreme and ought to bepreserved at
all costs. This was followed by a series of Conventions. On 18th of December,
1979, the United Nations adopted the "Convention on the Elimination of all
forms of discrimination against women". The Supreme Court in this case
further held that the Maternity Benefit Act, 2016 should also be provided to
the women/muster roll employees also. Relevant paragraphs are reproduced
below:-
"6.
Not long ago, the place of a woman in rural areas has 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 advance 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 Chapter 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
flu's Article vis-a-vis the Labour Laws, this Court in Hindustan Antibiotics
Ltd v. Workmen, AIR (1967) SC 948=[1967] 1 SCR 652, 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: -"(3) Nothing in this article shall prevent the State from
making any special provision for women and children."
33.
A just social order can be achieved only when inequalities are obliterated and
everyone is provided what is legally due. Women who constitute almost half of
the segment of our society have to be honoured and treated with dignity at
places where they work to earn their livelihood. Whatever be the nature of
their duties, their avocation and the place where they work; they must be
provided all the facilities to which they are entitled. To become a mother is
the most natural phenomena in the life of a woman. Whatever is needed to
facilitate the birth of child to a woman who is in service, the employer has to
be considerate and sympathetic towards her and must realise the physical
difficulties which a working woman would face in per11 forming
her duties at the work place while carrying a baby in the womb or while rearing
up the child after birth. The Maternity Benefit Act, 1961 aims to provide all
these facilities to a working woman in a dignified manner so that she may
overcome the state of motherhood honourably, peaceably, undeterred by the fear
of being victimised for forced absence during the pre or post-natal period.
37.
Delhi is the capital of India. No other City or Corporation would be more
conscious than the City of Delhi that India is a signatory to various
International covenants and treaties. The Universal Declaration of Human
Rights, adopted by the United Nations on 10th of December, 1948, set in motion
the universal thinking that human rights are supreme and ought to be preserved
at all costs. This was followed by a series of Conventions. On 18th of
December, 1979, the United Nations adopted the "Convention on the
Elimination of all forms of discrimination against women".
Article
11 of this Convention provides as under :-
"Article
11
1.
States Parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment in order to ensure, on a basis of
equality of men and women, the same rights, in particular;
(a)
The right to work as an inalienable right of all human beings;
(b)
The right to the same employment opportunities, including the application of
the same criteria for selection in matters of employment;
(c)
The right to free choice of profession and employment, the right to promotion,
job security and all benefits and conditions of service and the right to
receive vocational training and retraining, including apprenticeships, advanced
vocational training and recurrent training;
(d)
The right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the
evaluation of the quality of work;
(e)
The right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity to work, as
well as the right to paid leave.
(f)
The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
2.
In order to prevent discrimination against women on the grounds of marriage or
maternity and to ensure their effective right to work, States Parties shall
take appropriate measures :
(a)
To prohibit, subject to the imposition of sanctions, dismissal on the grounds
of pregnancy or of maternity leave and discrimination in dismissals on the
basis of marital status;
(b)
To introduce maternity leave with pay or with comparable social benefits
without loss of former employment, seniority or social allowances;
(c)
To encourage the provision of the necessary supporting social services to
enable parents to combine family obligations with work responsibilities and
participation in public life, in particular through promoting the establishment
and development of a network of child-care facilities;
(d)
To provide special protection to women during pregnancy in types of work proved
to be harmful to them.
3. Protective legislation relating to
matters covered in this article shall be reviewed periodically in the light of
scientific and technological knowledge and shall be revised, repealed or
extended as necessary."
[Emphasis
supplied]
38.
These principles which are contained in Article 11, reproduced above, have to
be read into the contract of service between Municipal Corporation of Delhi and
the women employees (muster roll); and so read these employees immediately
become entitled to all the benefits conceived under the Maternity Benefit Act,
1961. We conclude our discussion by providing that the direction issued by the
Industrial Tribunal shall be complied with by the Municipal Corporation of
Delhi by approaching the State Government as also the Central Government for
issuing necessary Notification under the Proviso to Sub-section (1) of Section
2 of the Maternity Benefit Act, 1961, if it has not already been issued. In the
meantime, the benefits under the Act shall be provided to the women (muster
roll) employees of the Corporation who have been working with them on daily
wages."
18.
Insofar as the judgement delivered by the
Lucknow Bench of this Court in the case of Service Bench No.1206 of 2012 Dr.
Shikha Jain Vs.State of U.P. decided on 29.8.2012 is concerned, it was held by
the Coordinate Bench of this Court that in view of the law laid down by
the Supreme Court in the case of Municipal Corporation Delhi (supra), the
petitioner/employee has a right to avail the maternity leave and rejected the
objection raised by the Standing Counsel that a contractual employee/honorarium
employee is not entitled for maternity leave. The purpose of the maternity
leave does not change with the nature of employment. It is concerned with human
rights of the women. The employers and courts are bound under the
constitutional scheme, guaranteeing right to life, including right to live with
dignity and to protect the health of both the mother and child to preserve
these rights. Relevant paragraphs of this judgement are reproduced below:-
“The
petitioner has a right to avail the maternity leave, which is applicable to
regularly employed lecturers in the Government Degree Colleges.
Although
the respondents have not yet taken a decision on the leave application, we do
not find that the objection taken by the Standing Counsel, that a contractual
employee/honorarium employee is not entitled to maternity leave, is justified.
The purpose of the maternity leave does not change with the nature of
employment. It is concerned with human rights of the women. The employers and
courts are bound under the constitutional scheme, guaranteeing right to life,
including right to live with dignity and to protect the health of both the
mother and child to preserve these rights.”
19.
The High Court of Kerala at Ernakulam in W.P. (C) No.22007 of 2012 (A)
(Mini.K.T. Vs. Senior Divisional Manager (Disciplinary Authority), Life
Insurance Corporation of India, Divisional Office, decided on 21th December, 2017 had dealt with in great detail theory of
motherhood. It is held in the aforesaid the motherhood is a matter of
civilization. It is further held in the aforesaid judgement that family as a
social institution is considered as a backbone of the society. The relevant
paragraphs of the aforesaid judgment are reproduced below:-
1. “Motherhood
is the mother of all civilization. Family as a social institution is considered
as the backbone of the society. Family is the first model of political society
(Rosseau on the Social Contract). When people settled down and started living
as a commune, the family was the foundation of such commune, and women was the
center of such family. No civilization passed without recognising the power of
mother and often figuratively projected her as Goddess.
(See
our own glorious past, as described by Jasodhara Bagchi, a feminist writer in
her book, "Interrogating motherhood"):
"The
celebration of motherhood has happened in most cultures in the world, and
Indian culture is no exception. The oldest available cultural artifacts in the
pre-Aryan civilization in Mohenjo-daro and Harappa bear testimony to the mother
cult.The principle of fertility represented by the embodiment of mother is the
oldest testimony to the sense of continuity of the species. Not just birthing
but the process of nurturance that makes it incumbent upon homo sapiens to
recognize the value of the mother."
A
child born to a family sees the world first through the eyes of his mother and
develops his cognitive skills through the vision of his family. In earlier
centuries, predominantly, in agrarian society, the role of woman was limited to
taking care of children, household and family. Social conditions of modern
family underwent transformation due to industrialisation and urbanisation. As a
result, the social and legal concept related to the society also got changed.
Motherhood then has become a contentious issue in the modern society,
particularly, in economic frontier, as the competing market interests override
notions of culture and social justice like gender equity. Identity of a women
is often tangled within the patriarchal structure of a commercially or profit
motivated enterprise which dare to see mothering or family responsibility
remain subordinate to their interest. Complexity of working environment as
above is designed by an architecture without adhering to rules of gender
equality; often overwhelmingly to suit men.”
23. Coming
back to the question of dignity, those dignity has to be understood in the
societal background. Indian cultural and traditional practices would go to show
that motherhood is an essential part of family responsibility. International
Human Rights Law thus protect dignity of woman and also family. The
Constitution thus demand interpretation of its provisions in that background.
Person-hood of a woman as mother is her acclaim of individuality essentially
valued as liberty of her life. This was so designed by culture, tradition and
civilisation. Mother's role in taking care of the child has been considered as
an honour; she enjoyed such status because of her position in respect of the
child. If on any reason she could not attend her workplace due to her duties
towards child (compelling circumstances), the employer has to protect her
personhood as "mother". If not that, it will be an affront to her
status and dignity. No action is possible against a woman employee for her absence
from duty on account of compelling circumstances for taking care of her child.
No service Regulations can stand in the way of a woman for claiming protection
of her fundamental right of dignity as a mother. Any action by an employer can
be only regarded as a challenge against the dignity of a woman. Motherhood is
not an excuse in employment but motherhood is a right which demandsprotection
in given circumstances. What employer has to consider is whether her duty
attached to mother prevented her from attending employment or not. As already
adverted above, motherhood is an inherent dignity of woman, which cannot be
compromised.
The
High Court of Madras in W.P.
No.12660 of 2017 (U. Ishwarya Vs. Director of Medical Education, Directorate of
Medical Education and Others), decided on 22nd December, 2017 had also dealt with in great detail
theory of motherhood. It is held in the aforesaid judgement that maternity
leave cannot be denied and the period of maternity leave should not be kept
apart or executed from service and maternity leave has to be excluded from the
period of service is “null and void”. The relevant paragraphs of the aforesaid
judgment are reproduced below:-
“…it
is not only the fundamental right of the lady to give birth to a child and also
necessary for existence of mankind and without a lady, a child could not be
born in the world. Even nature requires a child birth through a lady. When that
is the position, the petitioner (a lady doctor in the instant case) cannot be
denied the maternity leave and the period of maternity leave, which the
petitioner availed, should not be kept apart or excluded from two years of
service. Even in their two years of service, if maternity leave is sanctioned,
the maternity leave period should be deemed to be the service period. Any rule
or regulation which goes against the same is null and void,”
20.
In view of the facts as narrated above,
it is clear that the petitioner is entitled for maternity leave for period of
six months but wholly illegally leave was granted only for a period of three
months.
21.
In the facts and circumstances of the
case, a mandamus is issued directing the respondent No.2/District Basic
Education Officer, Bijnor to provide the petitioner maternity leave with
honorarium with effect from 30.12.2018 to 31.3.2019. The Writ Petition stands
allowed.
22.
No order as to costs.