Woman employee of the Central Government can avail uninterrupted 730 days of Child Care Leave – Hon’ble Supreme Court decides in favour of Woman Government Employee whose CCL was restricted to 45 days
Issue in Brief :
The Woman Employee concerned applied for Child Care Leave for period of 6 months intitially to take care of her son who was in 10th Std. While her request for CCL was pending she applied for CCL for a period 2 years, which was restricted by the Department to 45 days. Aggrieved by this order she approached CAT where she got favourable orders. However, Department filed an appeal against the order of CAT before Hon’ble High Court, the case which was allowed by Hon’ble High Court in favour of Department by observing the CCL can not be claimed as matter of right. Now in the Civil Appeal filed by the woman employee against the judgement of High Court, Hon’ble Supreme Court has decided that Woman employee of the Central Government can avail 2 years of Child Care Leave without any break.
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:
“(1) 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.
