Above: The Maternity Benefit Act protects the employment of a woman during maternity and entitles her to full pay during this time

The Uttarakhand High Court quashed Rule 153 of the Financial Handbook of Uttar Pradesh Fundamental Rules which disallows maternity leave to a woman employee for her third child

~By Atul Chandra in Lucknow

In a positive move, the Uttarakhand High Court has quashed Rule 153 of the Financial Handbook of Uttar Pradesh Fundamental Rules which disallows maternity leave benefit to a woman employee for her third child. The single-judge bench of Justice Rajiv Sharma termed Rule 153 as “ultra vires” and “unconstitutional” and allowed the writ petition of a woman employee seeking maternity leave benefits.

The Uttar Pradesh Fundamental Rules were adopted by Uttarakhand when the state was carved out of Uttar Pradesh. Rule 153 says: “Maternity leave on full pay which a female government servant, whether permanent or temporary, may be drawing on the date of 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 in 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 the 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.”

It was this second proviso which Justice Sharma said was “contrary” to Section 27 of the Maternity Benefit Act of 1961 which “does not prohibit, in any manner, to grant of maternity leave to a female government servant, who already has two children at the time of submission of application for maternity leave, after giving birth to third child”.

Section 27 also has an overriding power as it states that the “provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act”.

The Maternity Benefit Act 1961 was amended in 2017, following which the duration of paid maternity leave for women employees was increased from 12 weeks to 26 weeks. The amendment also provides that in the case of women expecting their third child, this duration will be restricted to 12 weeks.

The Act protects the employment of a woman during the time of maternity and entitles her to full pay during this time to take care of her child. The Act is applicable to all establishments employing 10 or more people and includes government and private workplaces.

Striking down Rule 153, Justice Sharma said it went against Article 42 of the Constitution which provides for “just and humane conditions or work and maternity relief”. The Court ordered that the petitioner, Urmila Masih, be granted maternity leave on humanitarian grounds.

Masih, a Haldwani-based nurse, was denied maternity leave in 2015 as she already had two children and hence, under Rule 153, could not be granted leave for her third child. Masih had applied for six months’ leave. Rule 153 also provides that “no such leave shall be admissible until a period of at least two years has elapsed from the date of the expiry of the last maternity leave granted under this rule”. It was, however, not known whether the petitioner met this criterion or not.

Justice Sharma said that the legal issue concerning the 1961 Act was settled by a division bench of the Punjab and Haryana High Court in Ruksana vs State of Haryana and Others. The division bench, Justice Sharma said, ruled that “the Act nowhere restricts the benefit of payment of maternity benefits to birth of two children. In other words, the provisions of the Act entitle the woman employee to maternity benefits for the birth of third child too… Unless an amendment is carried out in the Act, the Government cannot restrict beneficial provisions of the Act to a woman employee for the birth of a third child. Such a restriction imposed under the Rules is contrary to Section 27 of the Act and cannot sustain in the eyes of law”. It is expected that all women who were being denied maternity benefits for their third child would now be able to avail of all the entitlements.

Interestingly, Rule 153 has not been challenged in Uttar Pradesh so far and will continue to be in place despite the Uttarakhand High Court’s order.

But Rita Bahuguna Joshi, UP minister for women welfare, was not in favour of the provision which denies maternity benefits under Rule 153. “A woman should not be denied maternity benefits as she is not the one who decides on family planning. She does not have the right to plan. Any such law should be directed against males as it is they who decide on this personal issue,” Joshi said.

Way to go!