Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J. allowed a special appeal where the order passed by the Single Judge was challenged.
The counsel for the State, Paresh Tripathi, submitted that the appellant was concerned with the effect of the declaration of law made by the learned Single Judge, to future cases; and they had no intention of recovering whatever benefit the State had already extended to the respondent-writ petitioner. It was further submitted that the validity of order under the appeal should be examined.
Factual matrix of the case was that the first respondent filed a writ and sought certiorari to quash the letter issued by the second respondent. A mandamus was also sought to command respondent to grant maternity leave and benefits to the petitioner under Maternity Benefits Act, 1961 and to declare Rule 153 of the U.P. Fundamental Rules, adopted by the State of Uttarakhand, as ultra vires and unconstitutional in so far as it relates to placing restrictions in not granting maternity leave to women having two or more living children.
The Fundamental Rule 153, which was applicable to the respondent – writ petitioner who was a government servant read as: ‘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 ……’. Rules were subjected to challenge before the learned Single Judge on the ground that they were in violation of Section 27 of the 1961 Act and Article 42 of the Constitution of India. Section 27 of the Maternity Benefit Act, 1961 stated that the ‘Effect of laws and agreements inconsistent with this Act’.
Further in the order under the appeal the Single Judge relied on a Division Bench Judgment of P&H High Court in Ruksana v. State of Haryana, 2011 SCC Online P&H 4666, and held that “the second proviso to FR 153 was not in conformity with Section 27 of the 1961 Act, and was also against the spirit of Article 42 of the Constitution of India. The second proviso to FR 153 of the U.P. Fundamental Rules, as adopted by the State of Uttarakhand, was declared ultra vires and unconstitutional, and was struck down.” The state was directed to provide maternity leaves to the aggrieved.
The counsel for the State contended that a bare reading of Section 2 of the 1961 Act showed that the said Act had no application to government employees; it was only to cases to which the 1961 Act was applicable, notwithstanding any other law to the contrary in terms of Section 27 of the said Act, arose for consideration; Article 42 was in Part-IV of the Constitution, which relates to Directive Principles of State Policy; the provisions of Article 42 of the Constitution are not enforceable by a Court; and, in such circumstances, the order of the learned Single Judge necessitates interference, since the law laid down by the learned Single Judge would apply even to future cases of government servants seeking maternity leave for a third child contrary to the second proviso to FR 153.
On the contrary the counsel for the respondent- writ petitioner submitted that a similar case was dealt by Madras High Court, in J. Sharmila v. Secretary to Education Department, 2010 SCC OnLine Mad 5221, where it was held that “while Article 42 may not be enforceable, the spirit of the provision must be borne in mind by the Government in matters of governance; and the order under appeal does not, therefore, necessitate interference.”
The Court noted that Section 27 of the Act, 1961 related to effect of laws and agreements inconsistent with the 1961 Act, and, in the light of the non-obstante clause in Section 27(1), the 1961 Act shall have effect notwithstanding anything inconsistent therewith contained in any other law whether made after or before the coming into force of the 1961 Act. Any law inconsistent with the 1961 Act would cease to apply in view of the non-obstante clause in Section 27 of the 1961 Act. It was only if the 1961 Act was applicable, would the question of inconsistency between the said Act and the second proviso to FR 153 arise for consideration. A close reference was given to Section 3(e) of the 1961 Act, which defined “establishment”. Further the Court noted that reference to an establishment belonging to Government in Section 2(1)(a) of the 1961 Act must be read in conjunction with Section 3(e) thereof, and, when so read, it would only mean that a factory, a mine, a plantation of the Government, would alone fall within the ambit of Section 2(1)(a) of the 1961 Act.
It was held that though the respondent was a government servant and was not governed by Section 2(1) (a) of the 1961 Act, further the Court held that the proviso of Rule 153 was contrary to the provisions of the Act hence, inapplicable to government. Court stated that 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.”
The Court further stated that the essence of Article 42 required the State government to make provisions for securing just and humane conditions of work and maternity relief, but Article 37 made it clear that the provisions contained in Part-IV shall not be enforceable by any Court, but the principles therein laid-down were nevertheless fundamental in the governance of the country, and it was the duty of the State to apply these principles in making laws.
It was held that the Single Judge had erred in striking down the second provision to FR, as in the absence of any law which provided maternity benefits to the government servants having third child, Article 42 was not enforceable in proceedings before any Court.[State of Uttarakhand v. Urmila Masih, 2019 SCC OnLine Utt 927, decided on 17-09-2019]
