Supreme Court: In a special leave petition against the judgment and order passed by Himachal Pradesh High Court, wherein the Court dismissed the petition concerning adoption of Rule 43-C of the Central Civil Service (Leave) Rules, 1972, (‘CCS (Leave) Rules’) on the ground that Rule 43-C has been deleted by the State of Himachal Pradesh, the division bench of Dr. DY Chandrachud, CJI and J.B. Pardiwala, J. has directed the State of Himachal Pradesh to reconsider the entire aspect of the grant of Child Care Leave to mothers, including making special provisions consistent with the objects and purpose of the Rights of Persons with Disabilities Act 2016 (‘RPwD Act’) to mothers who are bringing up children with special needs. Further, the Court directed that a committee chaired by the Chief Secretary of the State of Himachal Pradesh be constituted to look into all aspects of the matter.
Background:
The petitioner is an Assistant Professor at the Department of Geography in Government College. Her son, who is fourteen years old, suffers from a rare genetic disorder, Osteogenesis Imperfecta and has undergone several surgeries since birth. He requires continuous treatment and surgical intervention to survive and lead a normal life. Due to the treatment of her son, the petitioner has exhausted all her sanctioned leave.
As per Rule 43-C of the CCS (Leave) Rules which provides for the grant of Child care leave.
By an Office Memorandum, the Union Government resolved to permit Child care leave for women employees with differently abled children up to the age of twenty-two years (instead and in place of eighteen years) subject to the conditions stipulated by the government in this regard from time to time.
The petitioner was informed by the Principal of the College on that since the State of Himachal Pradesh has not adopted provisions for Child Care Leave, such leave cannot be sanctioned to her.
Thereafter, the petitioner instituted a writ petition before the Himachal Pradesh High Court, which was dismissed by impugned order.
Analysis and Decision:
The Court viewed that the petition raises a serious matter of concern. Further, it noted that the petitioner has relied on the provisions of the RPwD Act.
The Court also noted that on 15-09-2022, a notice was issued to the Commissioner under the RPWD Act, who was requested to place on the record the policies/directions, if any, issued regarding the grant of leave to parents of children covered by the statute. The Commissioner has indicated on affidavit that no such policies or directions have been formulated.
The Court said that he participation of women in the work force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution; besides Article 19(1)(g). The State as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the work force. The provision of Child Care Leave to women sub-serves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force.
Further, the Bench added that in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force. This consideration also applies in the case of a mother who has a child with special needs. The policies of the State must be consistent and must be synchronize with constitutional protections and safeguards.
Thus, the Court directed State of Himachal Pradesh to reconsider the entire aspect of the grant of Child Care Leave to mothers, including making special provisions consistent with the objects and purpose of the RPWD Act to mothers who are bringing up children with special needs.
Further, the Court directed that a committee chaired by the Chief Secretary of the State of Himachal Pradesh be constituted to look into all aspects of the matter. The Committee shall consist of the:
(i) State Commissioner appointed under the RPwD Act;
(ii) Secretary in the Women and Child Development Department; and
(iii) Secretary in the Social Welfare Department
The Court asks the committee so constituted to engage with Secretary in the Department of Women and Child Development and Secretary in the Social Welfare Department (Department of Empowerment of Persons with Disabilities) of the Union Government. Further, the Bench directed the Committee to place the report before the competent authority so that a considered policy decision is taken expeditiously. The report was directed to be submitted to this Court by 31-07-2024.
The matter will next be taken up on 05-08-2024.
[Shalini Dharmani v. State of Himachal Pradesh, 2024 SCC OnLine SC 653, Order dated 22-04-2024]
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