JUDGMENT

Hon'ble Rajiv Sharma, J.

Petitioner applied for maternity leave w.e.f. 30.06.2015 to 09.12.2015. The maternity leave was declined to the petitioner on the ground that she had already two living children, as such for third child the maternity leave could not be granted. It is in these circumstances, the present petition has been filed.

2. Section 27 of the Maternity Act, 1961 reads as under:-

“27. Effect of laws and agreements inconsistent with this Act.—

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act:

Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act.

3. The Fundamental Rule 153 the Financial Hand Book of the U.P. Fundamental Rules, as adopted by 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 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."

4. According to second proviso of Fundamental Rule 153, produced hereinabove, in case, any female Govt. servant has two or more living children, she is not entitled to get maternity leave, even though, such leave may be otherwise admissible to her. This proviso is contrary to Section 27 of the Maternity Benefit Act, 1961. Section 27 of the Act, 1961 does not prohibit, in any manner, to grant of maternity leave to a female Govt. servant, who has already two children at the time of submission of application for maternity leave, after giving birth to third child.

5. Second proviso of the Fundamental Rule 153 is also against the letter and spirit of Article 42 of the Constitution of India. It reads as under:-

“42. Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief. The State shall make provision for securing just and humane conditions of work and for maternity relief."

6. The legal issue raised in the petition has also be