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While briefing about some of the major reforms brought by Department of Personnel & Training (DoPT) Union Minister of State (Independent Charge) Development of North Eastern Region (DoNER), MoS PMO, Personnel, Public Grievances, Pensions, Atomic Energy and Space, Dr Jitendra Singh said that the male employees of the government are also now entitled to Child Care Leave.

However, Dr Jitendra Singh said that the provision and privilege of Child Care Leave (CCL) will be available only for those male employees who happen to be “single male parent”, which may include male employees who are widowers or divorcees or even unmarried and may, therefore, be expected to take up the responsibility of child care as a single-handed parent.

Describing it as a path-breaking and progressive reform to bring ease of living for government servants, Dr Jitendra Singh said, the orders regarding this had been issued quite some time back but somehow did not receive enough circulation in the public.

In further relaxation to this provision, Dr Jitendra Singh informed that an employee on Child Care Leave may now leave the headquarter with the prior approval of Competent Authority. In addition, the Leave Travel Concession (LTC) may be availed by the employee even if he is on Child Care Leave. Elaborating further, he informed that Child Care Leave can be granted at 100% of the leave salary for the first 365 days and 80% of leave salary for the next 365 days.

Based on the inputs over a period of time, Dr Jitendra Singh said, another welfare measure introduced in this regard is that in case of a disabled child, the condition of availing Child Care Leave up to the age of 22 years of the child has been removed and now Child Care Leave can be availed by a government servant for a disabled child of any age.

With the personal intervention and indulgence of Prime Minister Sh Narendra Modi and his special emphasis on governance reforms, Dr Jitendra Singh said, it has been possible to make several out-of-box decisions in the DoPT over the last six years. Basic purpose behind all these decisions has always been to enable a government employee to contribute to the maximum of his potential, although at the same time there will be no leniency or tolerance toward corruption or non-performance, he said.

Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 26-10-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Full-Bench of Ramesh Ranganathan CJ, Sudhanshu Dhulia and Alok Kumar Verma JJ, held that contractual state employees are also entitled to child care leave, and that its denial would mean the denial of the rights of a child.

The petitioner is a lady Ayurvedic doctor in Uttarakhand’s State Medical and Health Services, appointed on a contractual basis for one year which had been repeatedly renewed since her appointment in 2009. After her maternity leave, she did not rejoin service and instead claimed Child Care Leave (CCL), citing a 2015 Judgement by a division bench of the Uttaranchal High Court which allowed a contractual employee to get CCL for 730 days. Her application was rejected on the grounds of a 2011 Government Order which excluded contractual employees from availing CCL. A division bench referred the matter in the present case to a Full Bench, which had to decide whether CCL of 730 days could be granted to a contractual employee hired for only one year, and whether the High Court, exercising its jurisdiction under Article 226, could issue mandatory guidelines extending this benefit to contractual employees in the absence of any legislation in this regard.

Chief Standing Counsel for the State, Paresh Tripathi, contended that the petitioner was only entitled to a “fixed monthly honorarium,” and could claim CCL as a matter of right since she is not technically a government servant. He also argued that the petitioner is only relying upon Part IV of the Constitution i.e., the Directive Principles of State Policy, which are not enforceable. He rebutted claims of alleged violations of Articles 14 and 16, averring that regular and contractual employees form two different classes and their separation would fall under ‘reasonable classification’, and Article 21.

While acknowledging the recent worldwide emergence of the otherwise neglected concepts of maternity and child care leave, the Court stated that “the leave is not a recognition of the rights of a woman but it is more a recognition of the rights of a child.”

Bench took due cognizance of various Constitutional and statutory provisions, including Article 15(2) and several Articles under Part IV of the Constitution, which were enforced bearing the needs and rights of children in mind. It rejected the State’s argument that DPSPs are not enforceable, instead upholding their importance by citing Supreme Court judgments where the DPSPs were hailed as “fundamentals in the governance of the country.”

The Court opined that since no distinction is made between a regular and a contractual employee with respect to maternity leave, the same principle should be adopted while considering CCL as well. On the first issue, the Court held that a contractual employee employed for a year was also entitled to CCL, but not for 760 days. Rather, they can be granted paid CCL for 31 days on the same terms as “earned leave” given to other employees under the 2011 Government Order. With regard to the second issue, the Court stated that it has merely read the rights of a contractual employee into the 2011 Order, which have duly been subjected to the restrictions imposed on any regular employee under the said Order. [Tanuja Tolia v. State of Uttarakhand, 2020 SCC OnLine Utt 337, decided on 24-07-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: The petitioner appeared before the High Court praying she was being denied child care leave on the ground that there are insufficient number of Medical Specialists available in the ESI Hospital at Jagadhari, with only one other Medical Specialist available other than the petitioner.

The Court noted down the fact that Rule 46 of the Haryana Civil Services (Leaves), 2016, stipulates in sub-rule 2 thereof that child care leave shall not be demanded as a matter of right and also, sub-rule 11 stipulates that child care leave would not be granted if it disrupts the functioning of offices/institutions/schools etc. The main reason to deny the leave was that there were no replacements available for the post of petitioner and to this, the Bench of Amol Rattan Singh, J. opined that the government cannot be allowed to take advantage of its own fault by denying a statutorily recognized right of anyone.

In the instant case, petitioners’ daughter was studying in Class 12 which the Court said is undoubtedly a very crucial year in the life of a school going child and therefore, the stand taken by respondents was termed wholly irrational and unacceptable. Finally, the Court allowed the petition and ordered the grant of child care leave within next 15 days and advised the respondents to engage a doctor on contract basis if required. [Dr. Kanchan Bala v. State of Haryana, CWP No. 21506 of 2017, decided on 10.10.2017]

Case BriefsHigh Courts

Bombay High Court: While deciding a petition under Article 226 of the Constitution for issuance of writ of mandamus, the Court directed the respondents to grant leave to the Petitioner in terms of Rule 43-C for 730 days for bringing up and welfare of a disabled daughter, the bench of A.S. Oka and P.D. Naik, J.J., directed the State Government to constitute State Co-ordination Committee which shall take decision whether to grant child care leave with pay or not.

In a case where the petition was filed against State Government for not granting child care leave, the petitioners relied upon Rule 43-C of the Central Civil Services (Leave) Rules, 1972 which provides a woman Government servant having a minor child below the age of 18 years and who has no earned leave at her credit is entitled to apply for Child Care Leave for a maximum period of 730 days during the entire service for taking care of children. Sub-rule (2) of Rule 43-C, such woman Government servant is entitled to full pay during the said leave period. It was further contended that Section 13 of the Disabilities Act makes it obligatory for the State Government to establish a State Coordination

Committee and under Section 18 obliges the Committee to discharge several duties. Petitioners relied on Kakali Ghosh v. Chief Secretary, Andaman & Nicobar Administration, (2014) 15 SCC 300 where  under the similar facts leave under Rule 43-C was granted to the appellant.

On the contrary, the respondent submitted that there is no such provision in leave rules of State Government on par with Rule 43-C of the Central Rules and therefore the petitioner is not entitled to leave. It was further submitted that Kakali Ghosh case is not applicable in the present case as in that case Central Rules were applicable and moreover, if such leave with pay is granted a large number of women Government servants will be on leave which will affect the functioning of the Government.

Considering the above mentioned contentions, the Court was to the view that as the Petitioner is not governed by the Central Rules, a writ of mandamus directing the Respondents to grant the benefits to the Petitioner which are available under the Central Rules cannot be issued. The Court passed the following orders:

  1. Directing the State Co-ordination Committee constituted under subsection (1) of Section 13 of the Disabilities Act to perform its function by advising the State Government to formulate legislations on the issue whether there should be a provision made for grant of special child care leave to a woman Government servant who is a mother of a disabled child covered by the definition of person with disability under Clause (t) of Subsection (2) of the said Act.
  2. That if there is no State Co-ordination Committee then it shall be constituted and decision shall be given before 30th June 2016.
  3. That if the State Government grants such relief, petitioner will be governed by its decision and if it does not grants, the petitioner will have to resume her duty. [Deepika Sagar Nersekar v State of Maharashtra, 2016 SCC OnLine Bom 2762, decided on May 13, 2016].