Ashutosh Srivastava, J.

1. Heard Sri S. K. Singh, learned counsel for the petitioner, learned Standing Counsel for the State-Respondent Nos.1 & 2 and Sri Harsh Vardhan Gupta, learned counsel for the Respondent Nos.3 & 4.

2. By means of the present writ petition, the petitioner has prayed for issuance of a writ of certiorary quashing the order dated 26.02.2023, passed by the Respondent No.4, whereby and whereunder the sanction of maternity leave has been turned down by stating that the same is not admissible/or on the ground that the period of 2 years have not elapsed from the date of the expiry of the last maternity leave granted to her under the proviso to Rule 153 (I) of Chapter XIII of the U.P. Fundamental Rules in Financial Handbook Volume-II, Part 2 to 4.

3. At the very outset, learned counsel for the petitioner submits that the similar controversy, as raised in the present petition, has already been allowed by this Court in a bunch of writ petition, leading amongst them Writ (A) No.9535 of 2022 (Smt. Anupam Yadav vs. State Of U.P. And 2 Others) vide order dated 21.10.2022, with the following observations:-

"24 Thus the State of U.P. in exercise of powers granted under Section 28 has already issued Government Order dated 8.12.2008 and 24.3.2009 adopting the provisions of the Maternity Benefits Act, 1961 for the benefit of its employees. Further, the modifications made by the Central Government have also been adopted by the State of U.P. in its Government Order dated 11.4.2011 reproduced hereinabove. Once the provisions of the Maternity Benefit Act, 1961 has been adopted by the State of U.P. as held by this Court then the said Act of 1961 would apply with full force irrespective of the provisions contained in the Financial Handbook which is merely an executive instruction and would in any case be subsidiary to the legislation made by the Parliament.

25. In conclusion it can safely be said that the Maternity Benefit Act, 1961 has been enacted by the Parliament in exercise of powers under Entry 24 in List-III of the Seventh schedule of the Constitution of India and to secure the goals stated in Articles 38, 39, 42 and 43 of the Constitution of India and also to give effect to the provisions contained in Article 15 (3) of the Constitution. The provisions of Financial Handbook are merely executive instructions and would be subsidiary to the Act of the Parliament and in case of any inconsistency, the statutory enactment framed by the Parliament would prevail and hence, the provisions of the Maternity Benefit Act, 1961 would prevail over the provisions of the Financial Handbook and consequently, the provisions of Rule 153 (1) of the Financial Handbook Volume II to IV are read down with regard to the admissibility of leave to a women with regard to second pregnancy which would be governed by the Maternity Benefit Act, 1961 and not Rule 153 (1) of the Financial Handbook Volume II to IV. The State Government already having adopted the provisions of the Maternity Benefit Act, 1961 as recorded by the Division Bench of this Court and followed by the Single Bench in the case of Anshu Rani versus State of U.P. passed in Writ-A No. 3486 of 2019, it is clear that the provisions of the Maternity Benefit Act, 1961 would prevail over any law.

26. In the case at hand the maternity leave so applied by the petitioner has been rejected simply by stating "Anumanya Nahi". Learned counsel for the respondents has submitted that the petitioner is not entitled to the maternity leave in terms of the restriction imposed by the second proviso of Rule 153(1) of the Financial Handbook to the effect that second maternity leave cannot be granted where there is difference of less than two years between the end of the first maternity leave and grant of second maternity leave. Admittedly, the first maternity leave of the petitioner was availed and she gave birth to a male child on 4.1.2021. The petitioner became pregnant again and applied again for maternity leave on 11.6.2022. The second maternity leave to the petitioner has been refused by the impugned order. However, once the 1961 Act does not contain any such stipulation, the Basic Education Officer manifestly erred in rejecting the leave to the petitioner more particularly when Section 27 of the 1961 Act provides that it is the 1961 Act which would be applicable notwithstanding anything in consistent contained in any other law or contract of service.

27. In the light of the above discussion, the writ petition is allowed. The order impugned dated 23.6.2022 in the writ petition is set aside. The District Basic Education Officer concerned is directed to pass appropriate orders for sanctioning the maternity leave to the petitioner within a period of two weeks from the date of service of certified copy of the order upon him."

4. Learned counsel for the petitioner prays that the present writ petition may also be decided in terms of the aforesaid decision dated 21.10.2022 passed in Writ (A) No. 9535 of 2022 (Smt. Anupam Yadav vs. State Of U.P. And 2 Others).

5. Learned Standing Counsel for the State Respondents as well as Sri Harsh Vardhan Gupta, learned counsel for the Respondent Nos.2 & 3 have tried to justify the impugned order on the ground that the proviso to Rule 153 of the Fundamental Rules does not permit maternity leave within two years from the date of the expiry of first maternity leave. Reliance has been placed to a decision of the Division Bench of this Court dated 09.12.2020 rendered in Special Appeal Defective No.1119 of 2020 where by the Division Bench allowed the Special Appeal and set aside the order of the learned Single Judge granting maternity leave on the ground that the proviso to Rule 153 of the Fundamental Rules did not permit grant of maternity leave and in the absence of any challenge to the proviso to Rule 153 of the Rules the learned Single Judge was not justified to allow the writ petition.

6. The Court has considered the submissions of the learned counsel for the respondents and finds that the decision relied upon by the respondents is clearly distinguishable. The division bench has proceeded on the assumption that the Rule 153 of the Fundamental Rules are applicable, however, in the case of Smt. Anupama Yadav (Supra) the Court has held that the provisions of the Maternity Benefit Act, 1961 would prevail over the provisions of the Financial Handbook and consequently the provisions of Rule 153(1) of the Financial Handbook Volume II to IV were to be read down with regard to the admissibility of leave to a woman with regard to second pregnancy which would be governed by the Maternity Benefit Act, 1961 and not Rule 153(1) of the Financial Handbook Volume II to IV. The proviso to Rule 153 is not required to be challenged.

7. In view of the above, the impugned order dated 26.02.2023 is set aside. The present writ petition is allowed in terms of the order passed in Writ (A) No.9535 of 2022 (Smt. Anupam Yadav vs. State Of U.P. And 2 Others). Accordingly, the Respondent No.4, District Basic Education Officer, Kaushambi, is 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 this order.