The main legal point established in the judgment is the entitlement of contractual employees to maternity leave under the Maternity Benefit Act, 1961, and the constitutional obligation of the state to provide maternity benefits and ensure gender equality.

Rajiv Sharma, J.

Petitioner was appointed as a Doctor in the Community Health Center, Gangolihat, Pithoragarh in Ayush Wing on contractual basis w.e.f. 18.06.2008. Her contract was renewed every year. The honorarium of the petitioner was enhanced from Rs.15,000/-per month to Rs. 24,000/-per month. Petitioner has gone on leave. She applied for maternity leave w.e.f. 01.01.2014 to 31.03.2014, however, the same was not granted to her. The petitioner also made representation on 11.12.2014.

2. No counter affidavit has been filed by the State but learned counsel on behalf of the State has vehemently argued that since, the petitioner was appointed on contractual basis, she was not entitled for maternity leave.

3. However, the fact of the matter is that maternity leave was not sanctioned and feeling aggrieved, she approached this Hon’ble Court for grant of maternity leave w.e.f. 01.01.2014 to 31.03.2014.

4. It would be apt at this stage to reproduce Section 5 of the Maternity Benefit Act, 1961.

“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 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 subsection, 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 day 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 preceding the date of her expected delivery shall be taken into account.

(3) [The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:]

Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:

[Provided further that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for the entire period but if the child also dies during the said period, then, for the days up to and including the date of death of the child.]”

5. Rule 153 of the U.P. Fundamental Rules, as applicable to the State of Uttarakhand, reads 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 in 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 dat