Point of Law: An alternate efficacious remedy though available has not been resorted to by the petitioner and hence the writ petition is not maintainable.

JUDGMENT :

C.S.Sudha, J.

Are contract employees entitled to the benefit of the Maternity Benefit Act, 1961 (the MB Act)? What does the term 'establishment' in Section 2 of the MB Act mean? Does the Centre for Professional and Advanced Studies, School of Medical Education (CPAS), a Society registered under the provisions of the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 come within the meaning of the term 'establishment', so as to entitle its employees to claim the benefit of the MB Act? Can special Rules framed by CPAS override the provisions contained in the MB ACT? These are the questions that we are called upon to answer in this intra-court appeal, which is against the judgment dated 28/02/2019 in W.P.(C) No.34821/2018. The appellant is the 2nd respondent and the respondents herein, the petitioner and respondents 1 and 3 respectively in the writ petition.

2. The writ petition was filed by the petitioner challenging the denial of maternity leave with allowance for a period of 26 weeks (180 days) by CPAS, i.e., the 2nd respondent Society. The 2nd respondent Society has been formed to take over the self financing institutions under the Mahatma Gandhi University. The petitioner alleges that after a due process of selection, she was appointed as Lecturer on contract basis in Pediatric Nursing under the 2nd respondent, a self financing institution directly run by the University with effect from 12/03/2012 for a period of three years as per Ext.P1 order dated 21/04/2012. According to the petitioner, her service conditions except the tenure of appointment and the scale of pay were governed by the provisions of the Mahatma Gandhi University Act and the Statutes. The petitioner was granted maternity leave for a period of 180 days with effect from 03/03/2014 to 29/08/2014 as per Ext.P2 order dated 21/05/2014. The appointment under Ext.P1 appointment order was renewed for a further period of three years with effect from 12/03/2015 as per Ext.P3 order dated 24/08/2015. During the course of the employment under Ext.P3, the petitioner conceived and so as per Ext.P4 application dated 03/10/2017, she applied for maternity leave for a period of 180 days from 03/10/2017 to 31/03/2018. It is further alleged that, at the instance of the Mahatma Gandhi University, the State Government constituted the 2nd respondent Society to take over and administer all the Self-financing Institutions of the University.

2.1. Separate Rules pertaining to qualification, method of appointment and service conditions of the 2nd respondent were also framed and approved by the Government vide G.O.(Ms) No.148/2018/H.Edn. dated 26/06/2018. As per the aforesaid Rules, though maternity leave is provided for 180 days, the maternity leave benefit has been limited to 90 days. The 2nd respondent as per Ext.P5 order dated 21/12/2017 has sanctioned maternity leave to the petitioner as per which though leave for 180 days has been sanctioned, leave with allowance has been limited to 90 days. The said order is in violation of the provisions of the the MB Act and the instructions contained in the circulars issued by the Ministry of Women and Child Health, Government of India. As is evident from Ext.P2 , the petitioner had been granted maternity leave for 180 days during the year 2014. The Rules framed by the 2nd respondent Society has been approved by the Government only on 26/06/2018. The service conditions of the petitioner cannot be altered to her disadvantage during the course of her employment. According to the petitioner, the denial of maternity leave with allowance for 180 days is illegal, arbitrary and violative of the fundamental rights and Constitutional principles. Hence the writ petition was moved seeking a direction to the 2nd respondent to sanction maternity leave with allowance for 180 days; to declare that the petitioner is entitled to maternity leave with allowance for 180 days notwithstanding the taking over of the Self-finan