On Tuesday, an order passed by single judge Mr. Justice Rajiv Sharma of High Court whereby a provision denying maternity leaves to female government servant having two or more children was stuck down as unconstitutional by Uttarakhand High Court.
The proviso second of the Fundamental Rule 153 of the U.P. Fundamental Rules states 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".
The aforementioned provision was held unconstitutional as it was ultra vires to Article 42 of Constitution as well as inconsistent with Section 27 of Maternity Benefits Act, 1961. Therefore it is struck down as it declines to grant maternity leave to a woman for her third child.
A Special Appeal filed by the state due to the domain effect which the impugned judgment may have. A division bench of Mr. Justice Ramesh Ranganathan and Mr. Justice Alok Kumar Verma reversed the finding of a single judge based on the submissions made by Standing Counsel Paresh Tripathi.
It was held that the government servant does not fall under the ambit of MB Act, 1961 as Section 2 of MB Act,1961 excludes government servant from the purview as it only includes persons employed in Government factories, mines, and plantations.
"Government servants… would not, therefore, fall within the ambit of Section 2(1) (a) of the 1961 Act, as the Act itself is inapplicable to Government servants. “The bench further adjudicated.
Article 42 requires the State Government to make provisions for securing just and humane conditions of work and maternity relief. Disagreeing with these submissions, the court quoted the case of Valliama Champaka Pillai v. Sivathanu Pillai, (1979) 4 SCC 429, and various other precedents.
Hence, the petitioner in the present matter was provided with maternity leave for her third child.
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