Uttarakhand High Court
WPSS/1449/2018 on 19 June, 2023
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
No
and Registrar's
order with
Signatures
19.06.2023 WPSS No. 1449 of 2018
Hon'ble Vipin Sanghi, C.J.
Hon'ble Rakesh Thapliyal, J.
1. Mr. Sanjay Raturi, learned counsel for the
petitioner.
2. Mr. Pradeep Joshi, learned Additional Chief
Standing Counsel for the State of Uttarakhand/
respondents.
3. The petitioner has preferred this Writ Petition to
assail the order dated 15.05.2018 passed by
respondent no. 2, whereby the petitioner's
representation to be granted Maternity Leave in respect
of the second child born by her, has been rejected. She
also seeks a direction that she may be granted
Maternity Leave and benefits from 28.03.2018 to
28.09.2018. The fourth relief sought in the Writ
Petition is to declare the second proviso to Rule 153 of
the Fundamental Rules as illegal and ultra vires the
Maternity Benefit Act, 1961, as well as the Constitution
of India. The petitioner seeks the striking down of the
second proviso to Rule 153 of the U.P. Fundamental
Rules.
4. Counsel for the petitioner submits that there is a
typographical error, and the challenge is, in fact, in
relation to the third proviso appended to Rule 153 of
the Fundamental Rules.
5. Counsel for the petitioner has relied upon the
judgment of the Division Bench of this Court in State
of Uttarakhand v. Smt. Urmila Masih and others
(Special Appeal No. 736 of 2019) decided on
17.09.2019, wherein it was held that Maternity Benefit
Act, 1961 is not attracted in respect of Government
servants. Counsel submits that this judgment has
already been upheld by the Supreme Court.
Consequently, the challenge to the third proviso to Rule
153 of the Fundamental Rules cannot be premised on
the provisions of the Maternity Benefit Act, 1961.
6. Learned counsel for the petitioner, in the
aforesaid background, emphasizes the challenge to the
said provision, namely third proviso to Rule 153 of the
Fundamental Rules, on the ground that the same is in
breach of Article 21 of the Constitution of India.
7. Counsel for the petitioner has also placed reliance
on the judgment of the Supreme Court in Suchita
Srivastava and another v. Chandigarh
Administration, (2009) 9 SCC 1, and, in particular,
to the observations made in paragraph no. 22 of the
said judgment, which reads as follows :-
"22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of "personal
liberty" as understood under Article 21 of the Constitution
of India. It is important to recognise that reproductive
choices can be exercised to procreate as well as to abstain
from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity
should be respected. This means that there should be no
restriction whatsoever on the exercise of reproductive
choices such as a woman's right to refuse participation in
sexual activity or alternatively the insistence on use of
contraceptive methods. Furthermore, women are also free
to choose birth control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlement to carry
a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of
pregnant women there is also a "compelling State interest"
in protecting the life of the prospective child. Therefore, the
termination of a pregnancy is only permitted when the
conditions specified in the applicable statute have been
fulfilled. Hence, the provisions of the MTP Act, 1971 can
also be viewed as reasonable restrictions that have been
placed on the exercise of reproductive choices."
8. The issue raised in the present Writ Petition is an
important issue. Counsels should get ready with their
submissions, and to support the same on the basis of
precedents.
9. List for arguments on 27.07.2023.
(Rakesh Thapliyal, J.) (Vipin Sanghi, C.J.)
19.06.2023 19.06.2023
Rahul
