Allahabad High Court
District Basic Education Officer vs Madiha Shamshi on 27 May, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:103977
Court No. - 5
Case :- CIVIL MISC REVIEW APPLICATION No. - 108 of 2024
Applicant :- District Basic Education Officer
Opposite Party :- Madiha Shamshi
Counsel for Applicant :- Yatindra
Counsel for Opposite Party :- C.S.C.,Santosh Kumar Tiwari
Hon'ble Ashutosh Srivastava,J.
Heard Shri Yatindra, learned counsel for the review applicant and Shri Santosh Kumar Tiwari, learned counsel for the writ petitioner/respondent.
The instant review application has been preferred seeking the review of the judgment and order of this Court dated 12.12.2022 passed in Writ-A No. 20149 of 2022 (Madiha Shamshi versus State of U.P. and 2 others).
By the impugned judgment and order dated 12.12.2022, the writ petition filed by the contesting respondent/writ petitioner herein was allowed in terms of the order passed in Writ-A No. 9535 of 2022 (Smt. Anupam Yadav versus State of U.P. and 2 others) and the order dated 10.10.2022 passed by the District Basic Education Officer, the review applicant herein, turning down the sanction of maternity leave by stating that the same was not admissible/or on the ground that the period of 02 years had not elapsed from the date of expiry of the last maternity leave granted under the proviso to Rule 153 (1) of Chapter XIII of the U.P. Fundamental Rules in Financial Handbook Volume-II, Part 2 to 4, had been set aside and the District Basic Education Officer, Pilibhit was directed to pass appropriate orders for sanctioning of the maternity leave to the petitioner within a period of two weeks from the date of service of certified copy of the order.
The Review Application has been reported beyond time by 315 days. A delay condonation application under Section 5 of the Indian Limitation Act, 1963 supported with an affidavit has been filed praying for condoning the delay in filing the review application and for deciding the same on merits.
Shri Santosh Kumar Tiwari, learned counsel appearing for the writ petitioner/respondent submits that he has no objection to the condonation of delay and does not propose to file any response to the affidavit filed in support of the delay condonation application.
Since, there is no contest by the writ petitioner/respondent to the delay being condone, the delay condonation application stands allowed and the delay is condoned. The Review Application shall be treated to have been filed within time.
The review of the judgment and order dated 12.12.2022 passed by this Court has been sought on the ground that the proviso to Rule 153 (1) of Chapter XIII of the U.P. Fundamental Rules in Financial Handbook Volume-II, Part 2 to 4 does not permit the maternity leave within 02 years from the date of expiry of the first maternity leave. The writ petitioner/respondent had not challenged the aforesaid proviso of Rule 153 and in absence of a challenge thereof was not entitled to the relief as has been granted under the impugned order. Reliance has been placed upon the judgment and order dated 9.12.2020 passed in Special Appeal (Defective) No. 1119 of 2020 (District Basic Education Officer, Prayagraj versus Vandana Mishra and 2 others).
I have heard Shri Yatindra, learned counsel for the review applicant as also Shri Santosh Kumar Tiwari, learned counsel appearing for the writ petitioner/respondent and have perused the records and have also gone through the decision dated 9.12.2020 passed in Special Appeal (Defective) No. 1119 of 2020.
A perusal of the records and the impugned order reveals that the impugned order dated 12.12.2022 is itself based upon the decision rendered in Writ-A No. 9535 of 2022 (Smt.Anupam Yadav versus State of U.P. and 2 others). In the said judgment, the legal import of Rule 153 (1) of the Financial Handbook and the provisions of the Maternity Benefit Act, 1961 was elaborately considered and it was concluded that the provisions of the Maternity Benefit Act, 1961 would prevail over the proviso of Rule 153 (1) of the Financial Handbook inasmuch as the provisions of the Financial Handbook are merely executive instructions and would be subsidiary to the Act of the Parliament and in case of inconsistency the statutory enactment of the Parliament i.e. the Maternity Benefit Act, 1961 would prevail. Section 27 of the Maternity Benefit Act, 1961 categorically provides that the provisions of the Maternity Benefit Act, 1961 shall have effect not with standing anything inconsistent therewith contained with any other law whether made before or after coming into force of 1961 Act. The 1961 Act does not contain any stipulation of the time difference between grant of maternity benefit for the first and second child as stipulated in Rule 153 (1) of the Financial Handbook. The decision dated 9.12.2020 rendered in Special Appeal (D) No. 1119 of 2020 proceeds on the assumption that the Fundamental Rules particularly, the proviso to Rule 153 thereof is applicable whereas the position is otherwise. The Court is not impressed by the submissions of the Review Applicant.
The provisions of review is not to scrutinize the correctness of the decision rendered rather to correct the error, if any, which is apparent on the face of the record/order without going into as to whether there is a possibility of another opinion different from the one expressed in the order sought to be reviewed. No error on the face of the record has been pointed out.
In view of the above, the Court finds no substance in the revision application. It is accordingly, dismissed. However, there shall be no order as to costs.
Order Date :- 27.5.2024
Ravi Prakash
(Ashutosh Srivastava, J.)
