The Maternity Benefits Act, 1961 prevails over any other law or executive instruction, and the State Government's adoption of the provisions of the Act makes it clear that the Act would prevail over any other law.

JUDGMENT :

ALOK MATHUR, J.

1. Heard Sri Anurag Shukla along with Sri Abhishek Misra and Ms. Ishit Mishra, Advocates for the petitioner and Sri Ram Pratap Singh Chauhan, learned Additional Chief Standing counsel appearing for the opposite parties.

2. The petitioner, who is working on the post of Lecturer (Hindi) in Rajkiya Balika Inter College, Hardoi, is aggrieved by the impugned order dated 30.07.2019 whereby her application for maternity leave from 18.11.2018 to 16.5.2019 has been rejected on the ground that she had previously availed maternity leave which ended on 18.5.2018, which was a period less than 2 years and hence was not entitled for the same.

3. It has been submitted by the counsel for the petitioner that the petitioner after expecting a child had applied for maternity leave for a period of 174 days from 26.11.2017 to 18.5.21018 which was duly sanctioned and the petitioner gave birth to a baby boy on 29.1.2018, but unfortunately the newborn child passed away due to cardio respiratory arrest on 30.1.2018, just a day after his birth.

4. The petitioner again conceived for the second time and applied for maternity leave for a period of 24 weeks from 18.11.2018 to 16.05.2019, which has been rejected by means of the impugned order.

5. Learned counsel for the petitioner contends that the said order would run contrary to the mandatory provisions of the Maternity Benefits Act, 1961 (hereinafter referred to as the ‘1961 Act’). He contends that Section 3 (h) of 1961 Act defines maternity benefit as the payment referred to in sub-section (1) of Section 5 while Section 5 (3) of 1961 Act provides that the maximum period for which any woman would be entitled to maternity benefit which shall be of 26 weeks. It is also contended that Section 6(4) of 1961 Act categorically provides that on receipt of the notice for maternity leave, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.

6. It is contended that taking into consideration the mandatory provisions of 1961 Act once the petitioner had applied for maternity leave for the aforesaid period consequently there was no occasion for respondents have rejected her application. The maternity leave has been rejected on the ground that she had previously availed maternity leave which ended on 18.5.2018, which was a period less than 2 years and hence was not entitled for the same as per Rule 153(1) of the Financial Handbook.

7. Learned counsel for the petitioner contends that Section 27 of 1961 Act categorically provides that the provisions of 1961 Act shall have the effect notwithstanding anything inconsistent therewith contained in any other law whether made before or after the coming into force of 1961 Act. Learned counsel for the petitioner contends that taking into consideration the aforesaid provisions of 1961 Act more particularly when Rule 153(1) of the Financial Handbook runs contrary to the mandatory provisions of 1961 Act then considering the provisions of Section 27 of 1961 Act Rule 153(1) of the Financial Handbook Vol. II to IX would have to be read down and it is the provisions of 1961 Act which would prevail.

8. Learned Standing counsel, on the other hand, has submitted that the impugned order is in conformity with the provisions of Rule 153(1) of the Financial Handbook Volume II to IV where a restriction has been placed for grant of maternity benefits prior to 2 years having lapsed from the date of expiry of the last maternity leave granted under the Rule. It has further been submitted that the provisions of Financial Handbook volume II to IV would apply to the facts of the present case rather than the provisions of the Maternity Benefits Act, 1971. It was stated that ‘health’ being a state subject, the State Government was fully empowered to legislate with regard to the matters pertaining to ‘health’ which was a subject mentioned in list II of the 7th Schedule of the Constitution.

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