Madhya Pradesh High Court
Smt. Pragati Gupta vs The State Of Madhya Pradesh on 12 July, 2018
HIGH COURT OF MADHYA PRADESH
Writ Petition No.18589/2017
(Smt. Pragati Gupta Vs. State of M.P. and others)
Jabalpur :12/07/2018
Shri Akash Choudhary, Advocate for the petitioner.
Shri Sheetal Tiwari, Panel Lawyer for the
respondent/State.
Heard on admission.
By this petition, the petitioner takes exception to the order dated 31.08.2017, whereby her application seeking child care leave has been rejected.
The case of the petitioner is that she was initially appointed as Government Teacher Grade-1 on Contract basis in the year 2010 and further by order dated 11.02.2014, she was absorbed as an Adhyapak. It is contention of the petitioner that after her marriage, in the year 2015, she gave birth to a girl child on 20.05.2017 at Jabalpur and applied for the child care leave to take care of the child in view of the notification dated 22.08.2015, which came to be rejected by the impugned order.
It is submitted by learned counsel for the petitioner that as per Rule 38(C) of the M.P. Civil Services (Leave) Rules, 1977, a woman government servant is authorized to avail child care leave upto 730 days for maximum of two children till they attained the age of 18 years. The authority HIGH COURT OF MADHYA PRADESH Writ Petition No.18589/2017 (Smt. Pragati Gupta Vs. State of M.P. and others) illegally rejected her application on the ground that there is no departmental order or instructions in this regard.
Rule 38(c) of the M.P. Civil Services (Leave) Rules, 1977, which deal with the aspect of child care leave, reproduced as under :-
38(C) Child Care Leave :-
(1) Subject to the provisions of this rule, a woman Government servant may be granted child care leave by the competent authority for a maximum of 730 days during her entire service for taking care of her two eldest surviving children.
(2) The leave cannot be claimed as a matter of right.
(3) For the purposes of sub-rule (1), "Child" means :-
(a) a child below the age of eighteen years (including legally adopted child);
or
(b) a child below age of twenty two years with a minimum disability of forty percent as specified in Notification No.16-18/97-N1.1, dated the 1st June, 2001, Government of India, Ministry of Social Justice and Empowerment.
(4) Grant of child care leave to a woman government servant under sub-rule (1) shall be subject to the following conditions namely :-
(a) it shall not be granted for more than three spells in a calender year. The leave availed even for a day, shall be counted as one spell. If the period of leave sanctioned continues into the next calender year also then the spell shall be counted adjacent the year in HIGH COURT OF MADHYA PRADESH Writ Petition No.18589/2017 (Smt. Pragati Gupta Vs. State of M.P. and others) which the leave was applied or in which major part of the leave applied falls. Calender year means the period commencing from Ist January to 31 st December of the year.
(b) it shall ordinarily not be sanctioned during the probation period. However, in special circumstances, if the leave is sanctioned during the probation period, then the probation period shall be extended by the period equivalent to the period for which the leave has been granted.
(5) During the period of child care leave, the woman Government servant shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(6) Child care leave may be combined with leave of any other kind.
(7) The leave account shall be maintained separately and entry shall be made in the service book of the concerned woman government servant.
This provision has been further clarified by the Circular No. F-6-1/2015/Rule/4/Bhopal dated 17.11.2015, wherein it is clarified that no certificate is required to avail child care leave and the reason mentioned in the application will be sufficient. The relevant portion of the circular (Annexure P-4) is extracted hereinbelow :-
^^e-iz- flfoy lsok ¼vodk'k½ fu;e] 1977 ds fu;e&38¼lh½ }kjk jkT; ljdkj dh efgyk 'kkldh; lsodksa dks larku ikyu vodk'k dh ik=rk fu/kkZfjr dh xbZ gSA larku ikyu vodk'k ds vkosnu Lohd`fr vkfn fcUnqvksa ij fofHkUu ek/;eksa ls le{k esa vkbZ ftKklkvksa dks fuEukuqlkj Li"V fd;k tkrk gS%& HIGH COURT OF MADHYA PRADESH Writ Petition No.18589/2017 (Smt. Pragati Gupta Vs. State of M.P. and others) ¼v½ larku ikyu vodk'k ds vkosnu ds le; fdlh izdkj ds izek.k&i= dh i`Fkd ls vko';drk ugha gksxh] vkosnu esa mYysf[kr dkj.k Ik;kZIr ekuk tkosxkA ¼c½ mi;qZDr vodk'k gsrq vkosnu izLrqr djus gsrq fu/kkZfjr le; lhek vftZr vod'k dh Hkkafr vFkkZr rhu lIrkg iwoZ gh gksxhA ¼l½ fdlh ,d volj gsrq dksbZ vf/kdre lhek fu/kkZfjr ugha gSA^^ A conjoint reading of Rule 38(c) and the circular dated 17.11.2015 makes it clear that a woman government employee is entitled to avail the child care leave upto 730 days for maximum of two children till they attained the age of 18 years.
A similar issue has come up for consideration before the Supreme Court in the case of Kakali Ghosh Vs. Chief Secretary and others (2014) 15 SCC 300 and the Supreme Court after going through the relevant clarification and also the provisions of law has held that a woman employee having minor child below 18 years of age can avail child care leave for a maximum period of 730 days during her entire service period. The relevant portion is reproduced as under :-
"12. 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 a maximum period of 730 HIGH COURT OF MADHYA PRADESH Writ Petition No.18589/2017 (Smt. Pragati Gupta Vs. State of M.P. and others) days i.e., during the entire service period for taking care of up to 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 a 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 a 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 a 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."
In W.P. No.333/2017 (Roshni Khare Vs. The State of Madhya Pradesh), this Court while deciding a similar issue has directed as under :-
"a direction that respondent No.3 shall consider the case of the petitioner for grant of child care leave strictly in terms of Rule 39(c) without getting influenced from any other instructions issued in the video conference or elsewhere unless there is a specific instruction not to grant child care leave to the persons belonging to teaching staff within a period of two months from the date of production of certified copy of the order passed today."
HIGH COURT OF MADHYA PRADESH Writ Petition No.18589/2017 (Smt. Pragati Gupta Vs. State of M.P. and others) In view of the aforesaid legal pronouncements quoted above and the provisions of child care leave Rules, this petition deserves to be allowed and the order passed in W.P. No.333/2017 shall apply mutatis-muntandis to this case also. However, respondent No.4 is directed to consider the application of the petitioner for grant of child care leave within a period of 15 days from the date of production of certified copy of this order.
With the aforesaid direction, this petition stands finally dispose of.
(Smt. Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2018.07.19 09:39:23 +05'30'