Government employees are not entitled to maternity leave under the Maternity Benefit Act, 1961, and the 3rd proviso to Rule 153 of the Fundamental Rules restricts the grant of maternity leave within two years of the expiry of the last maternity leave.

JUDGMENT :

(Karunesh Singh Pawar, J.)

1. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for respondents no. 1 to 3.

2. By means of this writ petition, the petitioner has prayed to quash the impugned order dated 16.07.2022 passed by respondent no.3 District Panchayat Raj Officer, Fatehpur by which the maternity leave of the petitioner has been rejected.

3. Further a writ of mandamus directing respondent no.2 Deputy Director (Panchayat) Prayagraj Division Prayagraj to sanction the maternity leave and pay salary in accordance with rule has also been prayed to be issued.

4. Admitted facts between the parties are as under:-

5. Petitioner was appointed on the post of Assistant District Panchayat Raj Officer (Pravi) on 18.06.2014. She joined in the month of June, 2014. After the marriage, she became pregnant and consequently she moved a representation before respondent no.2 praying for sanction of maternity leave from 01.07.2021 to 27.12.2021 which was sanctioned by order dated 30.06.2021. After one year, the petitioner again moved an application on 24.06.2022 for maternity leave for second issue before the respondent no.3 with a prayer to sanction maternity leave from 05.07.2022 to 31.12.2022 under the Maternity Benefit Act, 1961. The aforesaid application remained pending, however on a reminder dated 12.07.2022 given by the petitioner, impugned order dated 16.07.2022 has been passed, rejecting the maternity leave application given by the petitioner.

6. Learned counsel for the petitioner submits that in view of provisions of the Maternity Benefit Act, 1961, she is entitled for maternity leave. The provisions of the Act have been violated while rejecting her maternity leave. It is also submitted that the impugned order has been passed by non application of mind.

7. Sri Pramod Kumar Srivastava, learned Additional Chief Standing Counsel for the respondents submits that under the provisions of the Maternity Benefit Act, 1961, aforesaid benefit is not applicable in the case of the petitioner, who is government employee.

8. Second submission of the learned Additional Chief Standing Counsel is that in view of of the 3rd Proviso to Rule 153 of the Fundamental Rules, no maternity leave shall be admissible to the said employee until for the period of 2 years from the date of expiry of the last maternity leave granted under the Rules. He further submitted that first maternity leave lapsed on 21.12.2021 and therefore, the second application for maternity leave can be considered after expiry of two years from 27.12.2021, that is 27.12.2023, and not prior to that.

9. Rule 153 of the Fundamental Rules provides for grant of maternity leave to female government servant whether permanent or temporary provided that no such leave shall be admissible unless a period of 2 years have elapsed from the date of expiry of the last maternity leave granted under this rules.

10. Rule 153 of Financial Handbook is extracted as under:-

153. Maternity leave on full pay which a female Government servant, whether permanent or temporary, may be drawing on the date or 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 to 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 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, b