Maternity benefits, as per the Maternity Benefit Act and U.P. Fundamental Rules, are applicable to all employees, including contractual workers.

Sudhanshu Dhulia, J.

1. The petitioner is a woman, presently employed in a Government Medical College at Haldwani, Nainital known as “Dr. Shushila Tewari Government Medical College. She has been continuing in service since the year 2006 in the said hospital, though on a contractual basis. Her contract period is for one year and since 2006 it is being renewed every year. It may also be necessary to mention here that earlier the said medical college was being run by a trust and on 30.4.2010 the Government of Uttarakhand has taken over the said medical college and it is now being run as a government medical college.

2. For the first time in her service, the petitioner went on maternity leave from 17.5.2012 to 12.11.2012. Subsequently, petitioner has joined her services and is presently serving at said medical college. The petitioner claims maternity leave for the said period, which was denied to her on the grounds that the petitioner is only a contractual worker and such benefit of maternity leave is only given to a permanent government employee. It is this stand of the State Government, which is presently under challenge before this Court, as the petitioner claims that she is liable to be given maternity benefit including maternity leave as she is employed in a government hospital and merely because her employment is on a contractual basis, she cannot be denied such benefit including maternity leave.

3. Learned counsel for the petitioner has urged that such benefit including maternity leave benefit was given to the contractual employee when they were in service of the trust. However, this is a paradox that once the institute has become a government institute the same benefits are being denied to them. Primarily, petitioner challenges violation of her rights under Articles 14, 19 and 21 of the Constitution of India. Moreover, petitioner submits that under Article 15 Clause (3) of the Constitution of India nothing can prevent the State from making any special provision for women or children and it is for that the Parliament has enacted beneficiary legislation for women, inter alia, including Maternity Benefit Act, 1961 to which we will refer shortly.

4. Counsel for the petitioner further relied upon Section 5 of the Maternity Benefit Act which was enacted by the Parliament in the year 1961. Section 5 of the said Act reads as under:

“5. Right to payment of maternity benefit.- [(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.]

Explanation.-- For the purpose of this sub- section, the average daily wage means the average of the woman' s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest.]

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery:

Provided that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation.-- For the purpose of calculating under this sub- section the days on which a woman has actually worked in the establishment, [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately prece