Allowed

Vandana Mishra v. State of U.P. and 2 Others

Allahabad HC29 Sept 2020WRIA/7501/2020

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the denial of maternity leave to a government servant due to a birth gap of less than two years. The Court held that the relevant notification's provision is directory, not mandatory, and denied leave would defeat the legislative object of the law. The impugned order was quashed and the matter remitted.

What did the court decide?

The rejection order dated 30th June 2020 was quashed. The matter was remitted to the District Basic Education Officer to consider the application afresh within ten days.

Vandana Mishra Vs State of U.P. and 2 Others — Service and Employment | Allahabad HC (2020)

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Court No. - 74

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Case :- WRIT - A No. - 7501 of 2020

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Petitioner :- Vandana Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shashi Kant Mishra,Virendra Pratap Yadav Counsel for Respondent :- C.S.C.,Arun Kumar

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Hon'ble Ajit Kumar,J.

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Heard Sri S.K. Mishra, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

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By means of present writ petition, the petitioner has challenged the order dated 30th June, 2020 whereby petitioner has been refused maternity leave on the ground that there is difference of less than 2 years between two children born.

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Learned counsel for the petitioner has argued that there is no such provision which entitles the respondent to reject the application of the petitioner for maternity leave. He has also drawn the attention of this Court towards the form of the petitioner in which she had applied for maternity leave where she stated that earlier she had opted "Child Care Leave" between 1st Feb, 2020 to 16th March, 2020 and the second baby was born to the petitioner only on 2nd July, 2020 which clearly indicates that first leave was mentioned in column 11 of the form in respect first baby only.

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On pointed querry being made to the learned Standing Counsel as to whether there is any such bar or any mandatory condition contained in any circular or rule which provides that no further maternity leave can be granted if there is less than two years difference between two babies born to a women, but he could not demonstrate any such provision of law. He has drawn attention of the Court to the notification of the State Government dated 3rd May, 1990 in which clause 2 of the paragraph reads as under:

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“¼2½ xHkZikr ds ekeyksa ls] ftlds vUrxZr xHkZL=ko Hkh gS] izR;sd volj ij dqy N% lIrkg dh vof/k rd gks ldrk gS] o’krZsa fd vodk’k vkosnu&i= ds lkFk vf/kd`r fpfdRld izek.k i= gksA

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ijUrq ,slk vodk’k lEiw.kZ lsok ds nkSjku ftlds vUrxZr vLFkk;h lsok Hkh gS] rhu ckj ls vf/kd Lohd`r ugha fd;k tk;sxkA

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ijUrq ;g Hkh fdlh efgyk ljdkjh lsod ds nks ;k nks ls vf/kd thfor cPps gks rks mls izlwfr vodk’k Lohdr ugha fd;k tk;sxk Hkys gh mls ,slk vodk’k vuqeU; gksA fQj Hkh izfr efgyk ljdkjh lsod ds nks thfor cPpksa esa ls dksbZ Hkh cPpk tUe ls fdlh vlk/; jksx ls Hkh ihfMr gks ;k fodykax ;k viax gks ;k ckn esa fdlh jksx ls xzLr gks tk;s ;k fodykax viax gks tk;s rks mls] viokn ds :i esa] bl 'krZ ij izlwfr vodk’k lEiw.kZ lsok ds nkSjku rhu ckj ls vf/kd Lohdr ugha fd;k tk;sxk] ,d cPpk vksj iSnk gksus rd izlwfr vodk’k Lohd`r fd;k tk ldrk gSA

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ijUrq ;g vkSj fd ,slk vodk’k rc rd vuqeU; ugha gksxk tc rd fd bl fu;e ds v/khu Lohd`r fiNys izlwfr dh lekfIr ds fnukad ds de ls de nks o"kZ dh vof/k O;rhr u gks tk;A

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fVIi.kh&1 &fudky nh x;hA””

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From bare reading of the aforesaid provisions, it is absolutely clear that proviso to the main provision permits third baby if two babies are already born to a woman and one of them is suffering from any ailment or other incurable disorder. A proviso should be read in harmony with the main provision. The issue is that if two issues are being permitted and even third issue is permitted in given exceptional circumstances, two/ three maternity leaves have also been made permissible to the same woman. A strict adherence two years difference between the two babies could be a sound logical argument to ensure good health for both mother and the babies but the concept of maternity leave is that it is granted to take care of baby yet to be born and then also after the birth for quite time and whole object would get defeated if maternity leave is denied only on the ground that difference between the two babies would be less than two years. The provision is good as a directory one but if it is taken to be a mandatory one then the very purpose for which two/ three maternity leaves are provided, gets defeated.

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In view of above, rejection order in respect of the maternity leave application of the petitioner dated 30th June, 2020 is hereby quashed and matter is remitted to the District

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Basic Education Officer to consider the maternity leave application in correct perspective and pass order within period of ten days from the date of submission of application alongwith copy of this order.

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With the aforesaid observations and directions, the writ petition is allowed.

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The order available on the official website of the High Court shall be taken to be genuine one, however, petitioner shall supply certified copy of the order as and when issued.

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Order Date :- 29.9.2020 Sanjeev

Vandana Mishra v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Vandana Mishra v. State of U.P. and 2 Others

Case brief

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What did the court decide?

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