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The Uttarakhand High Court has upheld the validity of a State rule denying maternity benefits to female government servants having two or more children.
In doing so, the Division Bench of Chief Justice Ramesh Ranganathan and Justice Alok Verma set aside a judgment passed last year by a Single Judge of the High Court, which had struck down the said rule.
As per Rule 153 of the Uttar Pradesh Fundamental Rules (which were adopted by Uttarakhand after the reorganisation), female government servants having two or more living children shall not be granted maternity leave for the birth of the third child. The Rule states:
“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…
…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…”
Government employee Urmila Masih had challenged the vires of this Rule before the Uttarakhand High Court in 2015. By a judgment passed in August 2018, the Single Judge had declared Rule 153 unconstitutional and ultra vires the Maternity Benefits Act, 1961. The Court had also directed the State government to grant maternity leave and benefits to the petitioner as per the 1961 Act.
The State government subsequently challenged this decision before the Division Bench.
The Division Bench noted that the Single Judge struck down the Rule on the grounds that it was not in conformity with Section 27 of the 1961 Act, and that it was also against the spirit of Article 42 of the Constitution of India.
Section 27 of the Act is a non-obstante clause which provides that provisions of the Maternity Benefits Act will have effect over any laws that are inconsistent with the Act. Article 42 of the Constitution is a Directive Principle that provides that the State shall make provision for securing just and humane conditions of work and for maternity relief.
Appearing for the government, Chief Standing Counsel Paresh Tripathi argued that as per Section 2 of the Maternity Benefits Act, the Act was not applicable to government employees. Therefore, the question of Rule 153 being inconsistent with the Act would only arise if the Act itself was applicable. He also argued that Article 42, being a Directive Principle of State Policy, was not enforceable by courts.
Counsel for the government employee Sanpreet Singh Ajmani cited two judgments of the Punjab & Haryana High Court and the Madras High Court to argue that while Article 42 may not be enforceable, the spirit of the provision must be borne in mind by the government.
At the outset, the Bench noted that only if the 1961 Act is applicable would the inconsistency of Rule 153 arise for consideration.
As per Section 2(1)(a), the Act applies to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances.
While this is the case, the Court noted that Section 3(e) of Act defines “establishment” to mean (i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; (iv) a shop or establishment; or (v) an establishment to which the provisions of this Act have been declared under sub-section (1) of Section 2 to be applicable. It thus held,
“Government servants are not employed in Government factories, mines and plantations, and would not therefore fall within the ambit of Section 2(1)(a) of the 1961 Act, as the Act itself is inapplicable to Government servants. The question of the second proviso to FR 153, being contrary to the provisions of 1961 Act, does not therefore arise.”
The Bench went on to hold that decisions of other High Courts do not have the status of binding precedent.
“The decision of a High Court will have the force of a binding precedent only in the State or territories over which the Court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court, it may, at best, have persuasive effect. The doctrine of stare decisis cannot be so stretched as to give the judgments of one High Court the status of a binding precedent so far as the other High Courts are concerned.”
On the question of the enforceability of Article 42, the Court held,
“While it is, no doubt, true that Article 42 in Part-IV of the Constitution requires the State Government to make provisions for securing just and humane conditions of work and maternity relief, Article 37, in Part-IV of the Constitution, makes it clear that the provisions contained in Part-IV shall not be enforceable by any Court, but the principles therein laid-down are nevertheless fundamental in the governance of the country; and it shall be the duty of the State to apply these principles in making laws.”
Thus, in the absence of any law made by the State of Uttarakhand providing for maternity benefits to government servants having a third child, reliance could not be placed on Article 42 to strike down Rule 153, the Court held.
With these observations, the Division Bench held that the Single Judge had erred in striking down Rule 153.