JUDGMENT :

Ramesh Ranganathan, J.

Heard Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand and Sri Sanpreet Singh Ajmani, learned counsel for the respondent-writ petitioner and, with their consent, the Special Appeal is disposed of at the stage of admission.

2. We may at the outset note the submission of Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, that the appellant is concerned more with the effect of the declaration of law, by the learned Single Judge, to future cases; and they have no intention of recovering whatever benefit the State has already extended to the respondent-writ petitioner.

3. In the light of the submissions, urged on behalf of the State Government, by Sri Paresh Paresh Tripathi, learned Chief Standing Counsel, we shall proceed to examine the validity of the order under appeal.

4. The first respondent herein filed Writ Petition (S/S) No. 1778 of 2015 seeking a writ of certiorari to quash the letter issued by the second respondent; for a writ of mandamus commanding the respondents to grant maternity leave and benefits to the petitioner as per the Maternity Benefits Act,1961 (for short the 1961 Act'); and to declare Rule 153 of the U.P. Fundamental Rules, adopted by the State of Uttarakhand, as ultra vires and unconstitutional in so far as it relates to placing restrictions in not granting maternity leave to women having two or more living children.

5. Fundamental Rule 153, which was applicable to the respondent-writ petitioner (a government servant), 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 date of the commencement of leave:

Provided that such leave shall not be granted for more than three times during the 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, be granted maternity leave till one more child is born to her subject to the overall restriction that maternity leave shall not be granted for more than three times during the entire service.

Provided further that no such leave shall be admissible until a period of at least two years has elapsed from the date of expiry of the last maternity leave granted under this rule.

(2) In cases of miscarriage, including abortion, the period of maternity leave may extend upto a total period of six weeks on each occasion, irrespective of the number of surviving children of the female Government servant concerned, provided that the application for leave is supported by a certificate from the Authorised Medical Attendant:

Note-(1) Deleted. 5

Note-(2) In the case of a person to whom the provisions of Employees' State Insurance Act,1948, apply, leave salary payable under this rule shall be reduced by the amount of benefit admissible under the said Act for the corresponding period.

Note-(3) Abortion induced under the Medical Termination of Pregnancy Act,1971, should also be considered as a case of 'abortion' for the purpose of granting 'Maternity leave' under this rule."

6. This Rule was subjected to challenge before the learned Single Judge on the ground that it was in violation of Section 27 of the 1961 Act and Article 42 of the Constitution.

7. Section 27 of the 1961 Act reads as under:-

"27. Effect of laws and agree