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"The restriction on the Right to Maternity Leave of a female government servant, with regard to the birth of her child, would be reckoned with reference to the number of children living at the time she applies for maternity leave, irrespective of the fact whether the children living were born before or after she entered government service," held Allahabad High Court recently. 

The bench of Justice J.J. Munir was dealing with a petition filed by an Assistant Teacher at a Government Prathmik Vidyalaya impugning one order passed by the Basic Education Officer whereby she had been refused maternity leave on the ground that this was her third child and her other two children were completely healthy. 

Though the impugned order had not stated anything except "Leave applied for third child without any specific reason", the counsel representing the State had argued before the court that the leave had been rejected on the basis of the provisions of Rule 153 (1) of the U.P. Fundamental Rules, Vol. II Part II to IV of the Financial Handbook (the Rules).

As per Rule 153(1) of the Rules, maternity leave can be sought by a government female employee twice, with a gap of two years as a matter of right or entitlement. But it can be sanctioned a third time, with the condition that of the two living children, one suffers from an incurable disease or is handicapped.

The petitioner had contended that though the child which is now to be born is the third child, this is the second instance that she had applied for maternity leave. The facts were that she had entered into the government service in July 2011. At that time, she already had a son (born in 2007) and her daughter took birth on September 15, 2011, right after her entering the service for which she had taken her maternity leaves. 

She had asserted that Rule 153(1) was being misinterpreted by the respondent State as in her case, she had entered the service with one child and had sought the maternity leave only for the second time during her tenure.

Pointing out that the right to maternity leave flows from the Maternity Benefit Act, 1961 as amended by Maternity Benefit (Amendment) Act, 2017 which allows maternity leaves for twenty-two weeks, she had argued that there is no restriction envisaged in the Act regarding the count of children, on whose birth, sanction of maternity leave would depend.

She had alleged that if Rule 153(1) of the Rules is read the way the respondent (State) urges, the right given by the Rule itself would be nullified in case of a female government servant, who enters service with two living children, and none of whom suffer from any kind of disability or handicap.

Taking her submission into account, the court decided to moot on this question only as to whether the restriction on the Right to Maternity Leave of a female government servant with regard to a third child would reckon towards the total count of her children living when she makes the leave application, or the Rule takes into reckoning only such of her children as are born after her entering government service.

After a careful perusal of Rule 153(1) of the Rules, the court observed that the second proviso to the Rule shows that the Right to Maternity Leave is hedged in with the clear restriction that any female government servant, who has two or more children living, shall not be granted maternity leave, though such leave may otherwise be admissible to her.

Court noted that the words of the second proviso are disentitling in nature and an exception to the right otherwise conferred upon a female government servant.

Accordingly, court concluded that "It is entirely irrelevant in the scheme of Rule 153 of the Rules, whether the children were born before entering service or afterwards. The only relevant fact is that the time when she applies for leave, she has two or more children living or less than two."

Concluding thus, the court answered the moot question in the manner stated above and dismissed woman's petition. 

Case Title: Renu Chaudhary v. State Of U.P. And 3 Others