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2020 Supreme(All) 1291
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Saurabh Lavania, J.
Snehkiran Raghuvanshi - Appellants
Vs.
V.C. King George's Medical University Gandhi Memorial and Ors.- Respondent
Service Single No. 6532 of 2020
Decided On : 04-03-2020
For the Appellant : Abhishek Srivastava and Vishwas Bajpai
For the Respondents: Abhinav N. Trivedi
Headnote:
Maternity Benefit Act, 1961 - Employees' State Insurance Act, 1948 - Section 5A - Minimum Wages Act, 1948 – Constitution of India, 1950 - Article 14 - Payment of maternity benefit – Claim of compensation – Employment and service - Learned counsel for KGMU submitted that petitioner is not entitled to benefit of maternity leave as provided in Government Order keeping in view terms and conditions mentioned in order of appointment of petitioner and in instant case Government Order is applicable - It is further stated that in view of Government Order leave to which petitioner was entitled was provided to petitioner and said period has already been exhausted by petitioner - Learned counsel for KGMU on basis of application preferred by petitioner further stated that writ petition for prayers sought is not maintainable as in application leave has been sought - On issue of grant and entitlement of maternity leave this Court in case of an employee appointed on honorarium basis after considering various pronouncements on issue by means of judgment and order passed in Writ-A has held that petitioner who appointed on honorarium basis is entitled to maternity leave – Held, It is clear that petitioner is entitled for maternity leave for period of six months but wholly illegally leave was granted only for a period of three months - In facts and circumstances of case a mandamus is issued directing respondent District Basic Education Officer to provide petitioner maternity leave with honorarium with effect - Taking into account observations made by this Court in judgment this Court is of view that petitioner is also entitled to maternity leave for period of days irrespective of fact that appointment of petitioner is tenure fixed term appointment - With regard to issue of maintainability of writ petition raised by learned counsel for side opposite on basis of application for grant of maternity leave for period this Court in view of judgment of this Court as well as period provided for maternity leave in Maternity Benefit Act, 1961 amended is of view that there is no force in submissions made learned counsel for KGMU - Considering entirety of case this Court is of view that indulgence in the matter is required - In regard to claim of maternity leave petitioner is at liberty to submit fresh representation before respondent Superintendent Gandhi Memorial & Associated Hospitals KGMU along with certified copy of this order - Petition Allowed
ORDER :
Saurabh Lavania, J.
1. Heard learned counsel for the petitioner and Sri Abhinav N. Trivedi, learned counsel for the respondent Nos. 2 to 3/King Goerge Medical University, Lucknow (in short "KGMU").
2. By means of the present writ petition, a challenge has been made to the order dated 23.09.2019, whereby maternity leave sought by the petitioner has been denied on the basis of the Government Order dated 12.10.1990.
3. It is stated by the learned counsel for the petitioner that the petitioner is entitled for maternity leave keeping in view the Government Order dated 08.12.2008 (Annexure No. 5 to the writ petition).
4. Per contra, Sri Abhinav N. Trivedi, learned counsel for KGMU submitted that the petitioner is not entitled to the benefit of maternity leave as provided in the Government Order dated 08.12.2008 keeping in view the terms and conditions mentioned in the order of appointment of the petitioner dated 31.07.2019 and in the instant case, the Government Order dated 12.10.1990 is applicable.
5. It is further stated that in view of the Government Order dated 12.10.1990, leave to which the petitioner was entitled was provided to the petitioner and the said period has already been exhausted by the petitioner.
6. Sri Abhinav N. Trivedi, learned counsel for KGMU, on the basis of the application preferred by the petitioner dated 18.09.2019, further stated that the writ petition for the prayers sought is not maintainable, as in the application, the leave has been sought w.e.f. 01.10.2019 to 15.01.2020.
7. On the issue of grant and entitlement of maternity leave, this Court, in the case of an employee appointed on honorarium basis, after considering the various pronouncements on the issue, by means of the judgment and order dated 19.04.2019 passed in Writ-A No. 3486 of 2019 (Anshu Rani v. State of U.P. and others), has held that the petitioner, who appointed on honorarium basis, is entitled to maternity leave. The judgment of this Court dated 19.04.2019 on reproduction reads as under:-
"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 ma
