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)
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KAKALI GHOSH
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APPELLANT
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VERSUS
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CHIEF SECRETARY,
ANDAMAN & NICOBAR ADMINISTRATION AND ORS |
...RESPONDENTS
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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.”
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.”
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.
(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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