O R D E R

This Writ Petition is filed to quash the proceedings of the 2nd Respondent dated 22.07.2022, made in A.T.M.No.675/A2/2022, and direct the Respondents 2 to 4 to sanction maternity leave benefits for the Petitioner's third child for the period from 24.08.2022 to 23.08.2023 with full pay and all attendant benefits.

2.(a) It is the case of the Writ Petitioner that she was appointed on as Secondary Grade Teacher on 17.12.2012 and was posted at Panchayat Union Primary School, Chithrapalayam, Kongnapuram Union, Salem District. Thereafter she was transferred to Panchayat Union Primary School, Pelathur, Yercard union, Salem district on 17.08.2016. She is a married women. Even before she was appointed in the Government service she has two children. She has sent a representation dated 13.07.2022 to the 2nd Respondent through 1st Respondent requesting for maternity leave from 24.08.2022 to 23.08.2023. However, the same was rejected by 2nd Respondent by order dated 22.07.2022 on the ground that as per the Government rule No.105 dated 07.11.2016 and Government Rule No.154 dated 05.12.2011, maternity leave can be granted for the birth of 2 children only.

2.(b) The Respondents have misconstrued the fundamental Rule

101(a) which is applicable to State Government servants to deny her request for maternity leave stating that women employees are eligible to avail maternity leave only for two surviving children and there is no provision for grant of maternity leave for the third child. Hence according to the petitioner, the provisions of the Maternity Benefit Act, 1961 was enacted in pursuance of the constitutional guarantee enshrined in Article 42 of the Constitution, which does not impose any such restriction for availing the maternity benefit. Maternity Benefit Act is a social welfare legislation, which aims at providing social and economic justice to the citizens. Therefore, imposing the restrictions on the ground of maternity leave on Government employees are not correct until the Maternity Benefit Act, 1961 is suitably amended. Subjects relating to population control, family planning and maternity benefits fall within the Concurrent List. Therefore in the absence of any restriction in the Maternity Benefits Act, 1961, which is a Central Act, it is not open to the respondents and even the State Government to apply two child norm on the women folk. Section 5 of the Act, 1961, does not impose any such two child norm. Therefore, the impugned order passed by the Respondents have to be quashed.

3. The counter filed by the 2nd Respondent inter alia contended that the Maternity Benefit Act, 1961 is applicable to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein person are employed for the exhibition of equestrian, acrobatic and other performances as per section 2(1) of the said Act. As far as the Government Servant in the State of Tamil Nadu is concerned, it is the Fundamental Rule 101(a) which govern the maternity benefit applicable to them. The Government has issued orders relating to Maternity Leave from time to time. Hence it is the contention that the Tamilnadu Government Fundamental Rules alone is applicable to the Petitioner and the Maternity Benefit Act, 1961 is not applicable.

4. The Main contention of the learned counsel appearing for the Petitioner is that two children were born to the Petitioner prior to joining the Government service. Therefore, it is the contention that as she has not availed any Maternity Leave previously, the rejection of the representation on the ground that the maternity leave can be granted for the birth of 2 children only cannot be sustained in the eye of law. According to him Maternity Benefit Act is a social welfare legislation which is applicable. Therefore the Fundamental Rules is contrary to the Maternity Benefit Act, which cannot be pressed into service. He has also placed much reliance on the Judgment o