Smt Shikha Yadav and another vs State of U.P. and 2 others

Heard Sri Mohammed Iftekhar Farooqui along with Sri Jeeshan Ahmed Siddiqui, learned counsel for the petitioner; learned Additional Chief Standing Counsel; and Sri Rajan Sharma, learned counsel for the respondents.

The present writ petition has been filed with the following prayer:-

Learned counsel for the petitioners submits that the petitioners' claim for the grant of maternity leave has been rejected on the basis of the Government Order dated 08.12.2008, which is contrary to the provisions of The Code on Social Security, 2020 (hereinafter referred to as “the Code, 2020"). He further submits that the rejection of the claim on the basis of the said Government Order, which provides that a second spell of maternity leave cannot be granted within a period of two years from the date of the last maternity leave availed, is patently illegal.

Since the question regarding the applicability of the Code, 2020, and the ground raised by the petitioners are purely legal in nature, the learned Additional Chief Standing Counsel states that he does not propose to file a counter affidavit and is prepared to address the legal issue. Accordingly, with the consent of the parties, the present writ petition is being decided at the admission stage itself.

The present writ petition has been filed by the two petitioners, who claim an identical cause of action, namely, the rejection of their applications for the grant of benefits under the Code, 2020, on the basis of the Government Order dated 08.12.2008.

As far as petitioner No. 1 is concerned, she is working as a regularly appointed Staff Nurse/Nursing Officer under the Department of Medical Education, Government of Uttar Pradesh. She was earlier granted 180 days' maternity leave from 29.01.2024 to 27.07.2024 by Office Order dated 12.02.2024. Thereafter, she again conceived and became pregnant with her second male child, whose expected date of delivery was 12.01.2026. Accordingly, she submitted an application dated 05.01.2026 seeking the grant of maternity leave from 19.01.2026 to 17.07.2026 (180 days). The said application has been rejected by the impugned order dated 09.01.2026 issued by respondent No. 3, solely on the ground that two years had not elapsed since the grant of the earlier spell of maternity leave, relying upon the Government Order dated 08.12.2008 and Rule 153(1) of the U.P. Financial Handbook applicable to the Department of Medical Education.

As far as petitioner No. 2 is concerned, she is also working as a regularly appointed Staff Nurse/Nursing Officer under the Department of Medical Education, Government of Uttar Pradesh. She was granted 180 days' maternity leave from 15.01.2024 to 12.07.2024 by Office Order dated 27.01.2024. Thereafter, she again became pregnant for the second time and submitted an application dated 24.12.2025, seeking the grant of maternity leave for 180 days with effect from 21.01.2026. However, the said application was also rejected by respondent No. 3 vide order dated 06.01.2026, relying upon the Government Order dated 08.12.2008.

The question that arises for consideration is whether Rule 153(1) of Chapter XIII of the U.P. Fundamental Rules contained in Financial Handbook, Volume II, Parts 2 to 4, is applicable to a regular Government servant, or whether, in the event of any inconsistency between the said Rule and the provisions of the Code, 2020, being a Central enactment, would prevail and govern the field under the constitutional scheme.

The contention of the learned counsel for the petitioners is that, in furtherance of the mandate contained in Article 42 of the Constitution of India, the Parliament enacted the Code, 2020. On the other hand, the provisions contained in the Financial Handbook, Volume II, Parts 2 to 4 were framed by the Governor in exercise of the powers conferred under Section 241(2)(b) of the Government of India Act, 1935, and continue to be applicable by virtue of Article 313 of the Constitution of India. He submits that the provisions of the Financial Handbook, at best, have the status of executive instructions and, therefore, must yield to the provisions of the Code, 2020. For ready reference Article 42 of the Constitution of India is reproduced herein below:-

He further submits that Section 161 of the Code, 2020, categorically provides that the provisions of the said Code shall have effect notwithstanding anything inconsistent therewith contained in any other law, whether made before or after the coming into force of the Code, 2020. For ready reference Section 161 of the Code, 2020 is reproduced below:-

It is further submitted that the Government of Uttar Pradesh, vide Government Orders dated 08.12.2008 and 24.03.2009, earlier adopted the decision of the Central Government along with the modifications made by it. Thereafter, the State Government, vide Government Order dated 11.04.2011, also adopted further modifications. However, the said Government Orders were in reference to ‘The Maternity Benefit Act, 1961; and subsequently in order to simplify and rationalise the relevant provisions, 9 Central Labour enactments relating to social security, the Code, 2020 was enacted on 28th September 2020, with an object to amend and consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organised or unorganised or any other sectors and for matters connected thereto. For ready reference, the Government Order dated 11.04.2011 is reproduced below:

On the strength of the aforesaid submissions, learned counsel for the petitioners contends that the intent of the State Government is also evident from the Government Order dated 11.04.2011 by way of which the Government Orders dated 08.12.2008 and 24.03.2009 were modified. He submits that, by virtue of the said Government Order, the policy of the Central Government relating to the grant of ‘Maternity Leave’ and ‘Child Care Leave’ to its employees has been adopted by the State Government. Consequently, Rule 153(1) of the Financial Handbook, Volume-II, Part 2 to 4, as well as the Government Order dated 08.12.2008, to the extent they are inconsistent with the provisions of the Code, 2020, must yield to the said Code.

Per contra, the learned Additional Chief Standing Counsel submits that the claim of the petitioners cannot be allowed in view of Rule 153(1) of Chapter XIII of the U.P. Fundamental Rules contained in the Financial Handbook, Volume-II, Part 2 to 4. In support of his submission, he places reliance upon the judgment of a Coordinate Bench of this Court in Renu Chaudhary v. State of U.P. and Others^{11.2022 (2) ADJ 147}, wherein, in relation to an employee of an institution established and maintained by the U.P. Basic Education Board, it was held that there is no conflict between the second proviso to Rule 153 of the Fundamental Rules and the provisions of the erstwhile Act, 1961, as the said Act does not apply to the establishments of the U.P. Basic Education Board or the schools maintained by it.

In view of the aforesaid submissions, learned counsel for the respondents prays for dismissal of the aforesaid writ petition.

Having considered the rival submissions made by the parties, before proceeding to examine the moot question as to whether the provisions of the Code, 2020, would be applicable to the employees of the State Government or whether the Fundamental Rules would govern the field, this Court deems it appropriate to consider the relevant constitutional provisions in the light of the parliamentary enactment and the Fundamental Rules that may be attracted to the facts of the present case.

Article 42 of the Constitution of India, as contained in Part IV thereof, provides that the State shall make provisions for securing just and humane conditions of work and for maternity relief. It is, therefore, to be examined whether the provisions contained in the U.P. Fundamental Rules in the Financial Handbook, on the subject of maternity relief, are in consonance with the constitutional mandate embodied in the Directive Principles of State Policy, applicable to the State.

The provisions of the Financial Handbook, Volume II, Parts 2 to 4, were framed by the Governor in exercise of the powers conferred under Section 241(2)(b) of the Government of India Act, 1935, and continue to remain in force by virtue of the provisions contained in Article 313 of the Constitution of India. It is no longer res integra that the nature of the said Rules contained in the Financial Handbook is, at best, is that of executive instructions; and by no stretch of imagination, can they be brought within the category of an "enactment" made by the legislature.

Further, Article 38 of Part IV of the Constitution of India, as amended by the 44th Amendment in 1978, directs the State to secure a welfare State. It mandates the State to promote the welfare of the people, by ensuring that the social order is informed by social, economic, and political justice; and requires the State to minimize inequalities in income, status, facilities, and opportunities.

Thereafter, Article 39 of the Constitution of India provides that the citizens, men and women equally, have the right to an adequate means of livelihood; and that the health and strength of workers, both men and women, are not abused or forced by economic necessity to enter into avocations unsuited to their strength.

Articles 42 and 43 of the Constitution of India, make provisions for just and humane conditions of work and maternity relief, and mandate the State to make provisions for securing such conditions of work and for providing maternity relief. To ensure that conditions of work remain equitable and dignified, reference may also be made to Article 15 of the Constitution, which provides that the State shall not discriminate on the ground of sex and shall not be prevented from making special provisions for women and children.^{22.(i) Municipal Corporation of Delhi vs. Female Workers (Muster Roll), (2000) 3 SCC 224 (ii) Yusuf Abdul Aziz vs. State of Bombay, AIR 1954 SC 321 (iii) Hindustan Antibiotics Ltd. Vs. Workmen, AIR 1967 SC 948}

A scrutiny of the aforesaid constitutional provisions reveals that the grant of maternity benefits, protection of the health and strength of workers, and maintenance of a decent standard of life through "just and humane conditions of work, constitute a constitutional mandate and an obligation upon the State.

In the backdrop of the aforesaid constitutional provisions, the question that arises for consideration is whether the benefit of "maternity relief" can be curtailed by executive instructions and policies framed by the State, or whether the legislation enacted by Parliament on the subject, namely, “The Code on Social Security, 2020”, which finds place in Entry 24 of List III of the Seventh Schedule to the Constitution of India, would prevail.

It is also trite in law that where Parliament has legislated on a subject contained in List III and the State Legislature enacts a law overriding the said provisions; For eg. The Code, 2020, such law would require the assent of the President as contemplated under Article 254(2) of the Constitution of India. The same, however, is not the case in the present matter.

In view of the aforesaid discussion, I have no hesitation in concluding that The Code, 2020, does not contain any stipulation prescribing a time gap between the grant of maternity benefits for the first and second child, as provided under Rule 153(1) of the Financial Handbook. On the contrary, Section 161 of the Code, 2020, categorically provides that, notwithstanding anything inconsistent therewith contained in any other law, whether made before or after the coming into force of the said Code, the provisions of the Code shall prevail. Consequently, the stipulation contained in the Government Order dated 08.12.2008 and Rule 153(1) of the Financial Handbook cannot be permitted to override or curtail the benefits conferred under the Code, 2020.

The aforesaid fact further gains significance from the fact that the State Government, vide its Government Order dated 11.04.2011, adopted the same policy as is being followed by the Central Government for the grant of ‘Maternity Leave’ as well as ‘Child Care Leave’ to its employees; though at the relevant time “The Maternity Benefit Act, 1961” was applicable, however the relevant provisions are also pari materia in the Code, 2020.

Section 2 (43) of the Code, 2020, defines "maternity benefit", in respect of Chapter VI, which means the payment referred to in Section 60(1) thereof. For ready reference, Section 2 (43) of the Code, 2020 is reproduced below:

Section 60 of the Code, 2020 further stipulates that every woman shall be entitled to payment of maternity benefit, at the rate of the average daily wage that is payable to her, for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, subject to the minimum rate of wage fixed or revised under the Code on Wages, 2019 (29 of 2019), for a maximum period of 26 weeks. For ready reference, Section 60 of the Code, 2020 is reproduced below:

Section 62 of the Code, 2020, provides for a notice in writing by a woman to her employer, specifically indicating the date from which she intends to remain absent from work. However, such date shall not be earlier than eight weeks, from the date of her expected delivery. Thereafter, the amount of maternity benefit for the period preceding the date of expected delivery shall be paid in advance, and the amount due for the subsequent period shall be paid by the employer to the woman within 48 hours. The provision further stipulates that failure to give such notice shall not disentitle a woman to maternity benefit or any other amount payable under the Code, if she is otherwise entitled to such benefit. For ready reference, Section 62 of the Code, 2020 is reproduced below:

The entire scheme of the Code, 2020, does not contain any stipulation prescribing a time gap between the birth of the first and second child, as has been provided under Rule 153(1) of the Financial Handbook.

The aforesaid view is fortified by the judgment dated 21.10.2022 passed in Smt. Anupam Yadav v. State of U.P. and 2 Others^{33.Writ-A No. 9535 of 2022}, wherein the Court also considered the ratio laid down by a Division Bench of this Court in the case of Dr. Rachna Chaurasiya v. State of U.P. and Others^{44.2017 (11) ADJ 399 (DB)}.

The court is conscious of the fact that the aforementioned judgments were given considering the provisions of "Maternity Benefits Act, 1961"; but however as far as the consideration of the provisions of The Code 2020, is concerned; the same are pari materia to the sections indicated hereinabove and as such the nine Central labour enactments, relating to social security also included "The Maternity Benefits Act, 1961". The reasoning of the said judgement are therefore relevant. It lays down the ratio that the Act (erstwhile ‘The Maternity Benefits Act,1961’ and Act no. 36 of 2020 i.e., ‘The Code of Social Security, 2020’) shall prevail over the executive instructions, including Rule 153 (1) of the Financial Handbook, Volume II, Part 2-4.

The provisions of the Code, 2020, enacted by Parliament in exercise of its legislative powers under Entry 24 of List III of the Seventh Schedule to the Constitution of India, seek to secure the goals enshrined in Part IV of the Constitution of India, namely, the Directive Principles of State Policy, and also give effect to the provisions contained in Article 15(3) of the Constitution of India.

Accordingly, it is held that the provisions of The Code, 2020 shall prevail over any executive instructions, including Rule 153(1) of the Financial Handbook, Volume II, Part 2 to 4, which has also been read down by a Coordinate Bench of this Court in Smt. Anupam Yadav (supra) in relation to the grant of maternity benefits for the second pregnancy. The said benefits, therefore, shall be governed by the provisions of the Code, 2020; which does not put any embargo, by way of a timeline, between two pregnancies.

In view of the aforesaid, the impugned orders dated 09.01.2026 (Annexure-2) and 06.01.2026 issued by respondent No. 3, whereby the claims of the petitioners have been rejected, are hereby set aside. A further direction is issued to respondent No. 2 that, in the event the petitioners submit fresh applications for the benefits available to them under the Code, 2020, and if the same are permissible for the period for which the benefit is claimed, respondent No. 3 shall take an appropriate decision on such applications, keeping in view the observations made and the law laid down by this Court herein above.

The said exercise shall be completed expeditiously, preferably within a period of two weeks from the date of filing of the applications along with a certified copy of this order.

With the aforesaid directions/observation, the writ petition stands allowed.