IMPORTANT POINT
The Maternity Benefit Act ensures that all female employees, regardless of their employment status, are entitled to maternity benefits, reinforcing the principle of non-discrimination.

JUDGMENT :

PANKAJ PUROHIT, J.

1. The writ petition has been filed by the petitioner seeking a writ of certiorari quashing the order dated 31.12.2022, passed by the respondent no. 3, whereby, the maternity leave provided in the Maternity Benefit Act, 1961 has been denied to the petitioner, and further a writ of mandamus directing the respondent to grant maternity leave to the petitioner for the period from 26.08.2022 to 21.02.2023 with full salary/pay as per the Maternity Benefit Act, 1961.

2. The petitioner is working with the respondent Education Department as a Guest Teacher (Lecturer in Physics), in Government Inter College, Bhalyuta, District Almora. The petitioner during the course of her employment conceived and applied for maternity leave on 25.08.2022 to the Block Education Officer.

3. The said application for maternity leave of the petitioner was denied by the respondent, which constrained the petitioner to move before this Court by filing a WPSS No. 2103 of 2022. The said writ petition was decided by this Court vide judgment and order dated 09.11.2022, whereby the Chief Education Officer, District Almora, was directed to decide the representation of the petitioner, which was submitted by the petitioner, within a period of four weeks from the date of the receipt of the representation filed by the petitioner.

4. The petitioner undisputedly has submitted her representation dated 15.11.2022 to the Competent Authority, and the same was decided by the Chief Education Officer, Almora vide order dated 31.12.2022, which is impugned in the writ petition.

5. It is submitted by the learned counsel for the petitioner that the reasons, which has been assigned by the Chief Education Officer, Almora, while rejecting the representation of the petitioner are highly arbitrary against the judgment and order passed by this Court as well as by the Hon’ble Apex Court.

6. Counter affidavit was filed by the respondent stating, therein, mainly that since in the agreement which was entered into between petitioner and respondent for Guest Teacher does not contain any condition, wherein, it has been provided that she would be entitled for maternity leave, she could not be entitled for maternity leave.

7. Though rejoinder affidavit has been filed by the petitioner reiterating the same averments made in the writ petition, however, it has been brought to the notice of this Court by way of the rejoinder affidavit that the said benefit of the maternity leave was extended by the respondent – State by issuance of the Government Order dated 11.09.2023, to all the female staff working with the respondent State, even to employees engaged through outsourcing agency, including the daily wager.

8. Having heard the learned counsel for the parties, the order impugned does not sound fit and is arbitrary in nature, inasmuch as, the order has been passed simply for the reason that there was no condition in the engagement agreement for payment of maternity leave. It has no longer been res integra that the maternity leave is available to all female employees whether they are working in the regular establishment or engaged by the outsourcing agency or daily wager. The Hon’ble Apex Court in the case of Dr. Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department and Others decided on 17.08.2023, has held that denial of maternity leave benefit, as available to the female staff, would amount to breach of fundamental right of their life and liberty. Moreover, denial of such benefit to those women employees, who are working in regular establishment, or through outsourcing or daily wager, would amount to discrimination. The Hon’ble Apex Court in the aforesaid judgment has held as under:

“3. It is this judgment which is assailed before us. For effective adjudication of this appeal, we reproduce below the following provisions of the 1961 Act:

“5. Right to payment of maternity benefit:

(1) Subject to the provisions of this Act, every woman shall be entitled to, a