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Supreme Court Judgement on CIVIL APPEAL NO. 4506 OF 2014: Govt woman employee can get uninterrupted two-year child care leave (CCL)

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Supreme Court Judgement on CIVIL APPEAL NO. 4506 OF 2014: Govt woman employee can get uninterrupted two-year child care leave (CCL)
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4506 OF 2014
(arising out of SLP (C) No. 33244 of 2012)
KAKALI GHOSH
… APPELLANT
VERSUS
CHIEF SECRETARY,
ANDAMAN & NICOBAR
ADMINISTRATION AND ORS
...RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2.       This appeal has been  directed  against  the  judgment  dated  18th September, 2012 passed by the High Court of Calcutta, Circuit Bench at  Port Blair.  By the impugned judgment, the Division Bench of  the Calcutta  High Court allowed the writ petition and set aside the judgment and  order  dated 30th April, 2012 passed by the  Central  Administrative  Tribunal  Calcutta, Circuit Bench at Port Blair (hereinafter referred to as, ‘the Tribunal’). 

3.       The only question which requires to be determined  in  this  appeal is  whether  a  woman  employee  of  the  Central  Government  can  ask  for uninterrupted 730 days of Child Care Leave (hereinafter referred to as, - 
‘the CCL’)  under Rule 43-C of the  Central Civil  Services  (Leave)  Rules, 1972 (hereinafter referred to as, ‘the Rules’). 

4.       The appellant initially applied for CCL for six  months  commencing from 5th July, 2011 by her letter dated 16th May, 2011 to take care  of  her son who was in 10th standard.  In her application, she  intimated  that  she is the only person to look after her minor son and her  mother  is  a  heart patient and has not recovered from the shock due to  the  sudden  demise  of her  father;  her  father-in-law  is  almost  bed ridden   and   in   such circumstances, she was not in a position to perform her duties  effectively.  While her application was pending, she was transferred to Campbell  Bay  in Nicobar District (Andaman and Nicobar) where she joined on 06th July,  2011. By her subsequent letter  dated  14th  February,  2012  she  requested  the competent authority to allow her to avail CCL for two years commencing  from 21st May, 2012.  However, the authorities allowed only 45  days  of  CCL  by their Office Order No. 254 dated 16th March, 2012.

5.        Aggrieved  appellant  then  moved  before  the  Tribunal  in  O.A. No.47/A&N/2012 which allowed the application  by  order  dated  30th  April,2012 with following observation:-     
“12. Thus O.A. is allowed.  Respondents are  accordingly  directed  to act  strictly  in  accordance  with  DOPT  O.M.  dated  11.9.2008   as amended/clarified on 29.9.2008 and 18.11.2008, granting  her  CCL  for the due period.  No costs.”
6.       The order passed by the  Tribunal  was  challenged  by  respondents before the Calcutta High Court which by impugned judgment  and  order  dated 18th September, 2012 while observing that  leave  cannot  be  claimed  as  a right, held as follows:
                       “It is evident from the provisions of sub r.(3) of r.43-C  of  the rules that CCL  can  be  granted  only  according  to  the  conditions mentioned in the sub-rule, and that one of the conditions is that  CCL shall not be granted for more than three spells in  a  calendar  year. It means that CCL is not to be granted for a  continuous  period,  but only in spells.                       From the provisions of sub r.(3) of r.43-C of the rules it is also evident that a spell of CCL can be for as less as 16 days.  This means that in a given case a person, though  eligible  to  take  CCL  for  a maximum period of 730 days, can be granted CCL in three  spells  in  a calendar year for as less as 48 days.”The High Court further observed:                  “Whether an eligible person should be granted CCL at  all, and, if so, for what period,  are questions  to  be  decided  by  the competent authority; for the person is to  work  in  the  interest  of public service, and  ignoring  public  service  exigencies  that  must prevail over private exigencies  no leave can be granted.”
7.       Learned counsel for the appellant submitted that there  is  no  bar to grant uninterrupted 730 days of CCL under Rule 43-C.  The High Court  was not justified in holding that CCL can  be  granted  in  three  spells  in  a calendar year as less as 48 days at a time.  It was also contended that  the respondents failed to record ground to deny uninterrupted CCL  to  appellant for the rest of the period.

8.       Per contra, according to respondents, Rule  43-C  does  not  permit uninterrupted CCL for 730 days as held by the High Court.

9.       Before we proceed to discuss the merits or otherwise of  the  above contentions, it will be necessary for us to refer the relevant Rule and  the guidelines issued by the Government of India from time to time.

10.      The Government of  India  from  its  Department  of  Personnel  and Training vide O.M. No. 13018/2/2008-Estt. (L)  dated  11th  September,  2008 intimated that CCL can be granted for maximum period of 730 days during  the entire service period to a woman government employee for taking care  of  up
to two children, relevant portion of which reads as follows:
Child Care Leave for 730 days. ***
Women  employees having minor children may be granted Child Care Leave by an authority competent to grant leave, for a  maximum  period of two years (i.e. 730 days) during their entire  service  for  taking care of up to two children, whether for rearing or to look  after  any of their needs like examination, sickness, etc. Child Care Leave shall not be admissible if the child is eighteen  years  of  age  or  older. During the period of such leave, the women  employees  shall  be  paid leave salary equal to the pay drawn immediately before  proceeding  on  leave.  It may be availed of in more than one spell. Child Care  Leave shall not be debited against the leave account.  Child Care Leave  may also be  allowed  for  the  third  year  as  leave  not  due  (without production of medical certificate).  It may be combined with leave of the kind due and admissible.”

11.      It was followed by Circular issued by Government of India from  its Personnel  and Training Department vide O.M.  No. 13018/2/2008-  Estt.  (L), dated   29th September,   2008   by  which    it    was    clarified    that CCL
would  be also admissible to a  woman  government  employee  to  look  after third child below 18 years of age, which is as follows:

“(2) Clarifications:-
The question as to whether child care leave  would  be  admissible for the third child below the age of 18 years  and  the  procedure for grant of child care leave have  been  under  consideration  in this Department, and it has now been decided as follows:-
i)      Child  Care  Leave  shall  be  admissible  for  two  eldest surviving children only.
ii)        The leave account for child care leave shall be maintained in the pro forma enclosed, and it shall be kept  along  with  the Service Book of the Government Servant concerned.”

12.      Rule  43-C  was  subsequently  inserted  by  Government  of  India, Department of Personnel and Training, Notification No.  F.No.  11012/1/2009- Estt. (L) dated 1st December, 2009, published  in  G.S.R.  No.  170  in  the Gazette of India dated 5th December, 2009 giving effect from 1st  September, 2008 as quoted below:-

“43-C. Child Care Leave
1) A women Government servant having minor children below the  age of eighteen years and who has no earned leave  at  her  credit, may be granted child care leave by an  authority  competent  to grant leave, for a maximum period of two years, i.e.  730  days during the  entire  service  for  taking  care  of  up  to  two children, whether for rearing or to look  after  any  of  their needs like examination, sickness, etc.
2) During the period of child care leave, she shall be paid  leave salary equal to the pay drawn immediately before proceeding  on leave.
3) Child care leave may be combined with leave of any other kind.
4)  Notwithstanding  the  requirement  of  production  of  medical certificate contained in sub-rule (1) of Rule  30  or  sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).
5) Child care leave may be availed of in more than one spell.
6) Child care  leave  shall  not  be  debited  against  the  leave  account.”
13. On perusal of circulars and Rule 43-C, it is apparent that a woman government employee having minor children below 18 years can avail CCL for maximum period of 730 days i.e. during the entire service period for taking care of upto two children. The care of children is not for rearing the smaller child but also to look after any of their needs like examination, sickness etc. Sub Rule (3) of Rule 43-C allows woman government employee to combine CCL with leave of any other kind. Under Sub Rule (4) of Rule 43- C leave of the kind due and admissible to woman government employee including commuted leave not exceeding 60 days; leave not due up to a maximum of one year, can be applied for and granted in continuation with CCL granted under Sub Rule (1). From plain reading of Sub Rules (3) and (4) of Rule 43-C it is clear that CCL even beyond 730 days can be granted by combining other leave if due. The finding of the High Court is based neither on Rule 43-C nor on guidelines issued by the Central Government. The Tribunal was correct in directing the respondents to act strictly in accordance with the guidelines issued by the Government of India and Rule 43-C. 

14. In the present case, the appellant claimed for 730 days of CCL at a stretch to ensure success of her son in the forthcoming secondary/senior examinations (10th/11th standard). It is not in dispute that son was minor below 18 years of age when she applied for CCL. This is apparent from the fact that the competent authority allowed 45 days of CCL in favour of the appellant. However, no reason has been shown by the competent authority for disallowing rest of the period of leave. 

15. Leave cannot be claimed as of right as per Rule 7, which reads as follows: 
“7. Right to leave 
(1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.”
However, under Sub-Rule (2) of Rule 7 leave can be refused or revoked by the competent authority in the case of exigencies of public service. 
16. In fact, Government of India from its Ministry of Home Affairs and Department of Personnel and Training all the time encourage the government employees to take leave regularly, preferably annually by its Circular issued by the Government of India M.H.A.O.M. No. 6/51/60-Ests. (A), dated 25th January, 1961, reiterated vide Government of India letter dated 22/27th March, 2001. As per those circulars where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority may draw up phased programme for the grant of leave to the applicants by turn with due regard to the principles enunciated under the aforesaid circulars. 

17. In the present case the respondents have not shown any reason to refuse 730 days continuous leave. The grounds taken by them and as held by High Court cannot be accepted for the reasons mentioned above. 

18. For the reasons aforesaid, we set aside the impugned judgment dated 18th September, 2012 passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated 30th April, 2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/production of this judgment. 

19. The appeal is allowed with aforesaid directions. No costs.

………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA) 

……………………………………………….J. 
(V. GOPALA GOWDA) 

NEW DELHI, 
APRIL 15, 2014. 

Source: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41412

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