Central Administrative Tribunal - Chandigarh
Dr Shabana Gandhi vs Education Deptt., Ut Chandigarh on 9 February, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No. 1364 / 2021
Chandigarh, this the 09.02.2024
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
Dr. Shabana Gandhi, Aged 43 years W/O Sh. Sanjeev
Bhateja, working as Assistant Professor on Contract basis,
Govt. Home Science College, Sector-10, Chandigarh-
160010 R/o House No. 2181, Sector-37 C, Chandigarh.
Group „A‟.
...Applicant
(BY ADVOCATE: Sh. R.K.Sharma)
VERSUS
1. Union Territory, Chandigarh Administration through
Advisor to Administrator, U.T. Civil Secretariat, Sector 9,
Chandigarh-160009.
2. Director Higher Education, Chd. Admn. (College-1
Branch), Additional Deluxe Building, 1st Floor, Sector-9,
Chandigarh- 160009.
3. Principal, Government Home Science College, Sector-10,
Chandigarh-160010.
...Respondents
(BY ADVOCATE: Sh. G.S.Toni)
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O R D E R(Oral)
Per: SH. RAMESH SINGH THAKUR, MEMBER (J):.
(1) This application has been filed by applicant against order No. 1287-DHE-UT-C3-12(15) Misc/4659 dated 01.12.2021, copy Annexure A-1, passed by Respondent No.2, whereby the request of the applicant for grant of Child Care Leave w.e.f. 28.11.2021 to 12.12.2021 for Class 10th examination of her daughter aged 16 years has been rejected without any reason. The brief facts leading to filing of this OA are the respondents issued advertisement for engagement of Assistant Professor in various subjects on contact basis. The applicant being qualified applied for post. The respondent No.3 appointed the applicant as Assistant Professor in Economics on contract basis vide appointment letter dated 31.08.2009 for the session 2009-10 and the applicant joined as such on 31.08.2009. A copy of appointment letter dated 31.08.2009 is attached as Annexure A-2. That in the session of 2010-11, fresh appointment letter dated 20.08.2010 issued to the applicant as Assistant Professor in Economics on contract basis after putting the break. A copy of appointment letter dated 20.08.2010 is attached as Annexure A-3. contractual period was of one year, applicant along with others approached this Hon'ble Tribunal, by filing Original Application No.402/CH/2011 titled as Nandini Sharma and others Vs Union of India and others, which came up preliminary hearing on 02.05.2011 and this Hon'ble Tribunal allowed the aforesaid O.A. filed by the applicant and others vide order dated 02.05.2011 in terms of Vandana Jain‟s case. A copy of order dated 02.05.2011 is 3 is attached as Annexure A-4. Prior to joining service as Assistant Professor on Contract, the applicant solemnized marriage on 21.11.2002 with Sh. Sanjeev Bhateja. Out of their wedlock, one daughter was born on 31.07.2005 namely (Ms. Vidhi). She is student of 10th Class and studying in Bhavan Vidyalaya, sector-27, Chandigarh and her CBSE examination for Term-1 was to start from 28.11.2021 till 11.12.2021. Copies of date sheet and certificate issued by the school are attached as Annexure A- 6 and A-7.
(2) The husband of the applicant is posted at Jammu and she is the only care taker of her minor daughter. Applicant is the only care taker of her minor daughter who is appearing in 10th class examination Term-1 so she submitted application dated 03.11.2021 for granting her CCL w.e.f. 28.11.2021 to 12.12.2021. Application of the applicant was dully forwarded by the respondent No.3 to respondent No.2 for necessary action as respondent No.2 is the competent authority to take decision in the matter of CCL of Assistant Professors.
(3) Since no intimation was received and the examination of her daughter was to start from 30.11.2021 with due intimation on college email id to the respondent No.3 on 30.11.2021 so she proceeded on leave. A copy of the screenshot is attached as Annexure A-13. Respondent No.2 has rejected the claim of the applicant vide order dated 01.12.2021 on stating that Jagjeet Kaur has been granted CCL in compliance of Judgment dated 09.01.2019 in O.A. No. 060/1013/2019 passed by this Hon‟ble Tribunal as personal measure to her and would not set precedent for others in any circumstances and no further such leave 4 would be granted to her in future. Rejection order dated 01.12.2021 has been communicated to the applicant through email by respondent No.3 on 01.12.2021. The applicant being aggrieved by this filed this OA. (4) Notice was issued to respondents on 06.12.2021. In the written statement filed by respondents, it is submitted that the applicant is not entitled for grant of CCL as there is no provision in the Rules to grant CCL to contractual employees. It has been further submitted that from the perusal of order dated 09.12.2021 passed by Hon‟ble High Court, it is clear that the High court had upheld the order of respondent department that it would not set precedent for others and it was granted only to Smt. Jagjeet Kaur whose daughter was undergoing treatment in Hospital. It has further been contradicted by respondents that OA No. 33/CH/2011 are not applicable in the present case as maternity leave and child care leave are different in nature. Respondents has shown reliance upon rule 1.4 of Punjab Civil Services Rules Volume-I part-I which states that Punjab Civil Services Rules are not applicable to the contractual employees.
(5) The applicant has submitted rejoinder to the said written statement stating that the Hon‟ble High Court has in order dated 09.12.2021 has not upheld the order passed by respondents rather than quashed the offending portion of letter dated 04.01.2021, thus the respondents cannot discriminate with the applicant denying her benefit of child care leave. It is further submitted by applicant that in view of ratio of the judgement in Vandana Jain‟s case which is relating to maternity leave, the contractual teachers are entitled to maternity leave and hence, child care leave 5 which is also connected with the maternity leave cannot be denied to female government employees. It has been further stated that the respondents cannot adopt pick and choose policy where there is nothing in the judgment in Jagjeet Kaur‟s case that it will be applicable qua her only, thus, the case of applicant is fully covered by the judgment in Jagjeet Kaur.
(6) I have heard learned counsels for both the sides and have gone through the pleadings attached to OA. From the facts, it is clear that the applicant has been working with the respondents department on contract basis and has one daughter. The husband of applicant is working in Jammu and she is only care taker of her minor daughter. The applicant asked for CCL as her daughter in 10th class was to appear in term-1 examination. The same was forwarded by respondent no. 3 to respondent no. 2 for necessary action but when no intimation was received, the applicant proceeded on leave with due intimation on college email id to respondent no. 3 on 30.11.2021 as the examination was going to start from 30.11.2021 . The rejection order dated 01.12.2021 was communicated to applicant.
(7) The only question for determination is that whether the applicant is entitled for grant of CCL being a contractual employee. The applicant has relied upon the judgement passed by this Tribunal in the matter of Jagjeet Kaur OA No. 1013 / 2019 decided on 29.11.2019, whereby, this Tribunal has recued upon the judgement passed by the Hon‟ble Allahabad High Court in Civil Misc Writ Petition No. 24627 of 2017 titled as Dr. Rachna Chaurasiya Vs. State of UP and Others, decided on 29.02.2017. The relevant portion of which is as under:
6"Finding that child was not comfortable with the maid during the period when the petitioner and her husband went out for work, she applied for Child Care Leave for a period of three months before the Principal, respondent no. 3, Medical College vide application dated 18.05.2017. The said application was rejected vide order dated 20.05.2017 on the ground that the petitioner, being a contractual employee, is not entitled for grant of Child Care Leave.
Xxxxx From a perusal of the aforesaid Government Orders, it is clear that the State Government has adopted same policy as is enforced by the Central Government for grant of Maternity Leave as well as Child Care Leave to its employees. Maternity benefit is a social insurance and the Maternity Leave is given for maternal and child health and family support. On a perusal of different provisions of the Act, 1961 as well as the policy of the Central Government to grant Child Care Leave and the Government Orders issued by the State of U.P. adopting the same for its female employees, we do not find anything contained therein which may entitle only to women employees appointed on regular basis to the benefit of Maternity Leave or Child Care Leave and not those, who are engaged on casual basis or on muster roll on daily wage basis. The aforesaid view taken by us find full support from the dictum of Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) & Anr., (2000) 3 SCC 224. It may be relevant to produce paragraph 27 from the said report. "The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42.
A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to Maternity Leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of Maternity Leave and not to those who are engaged on casual basis or on muster roll on daily wage basis."
We are of the considered opinion that the benefit under the Act as well as the Rules of the Government Orders providing for grant of Maternity benefits and Child Care leave are applicable to all female employees, irrespective of their nature of employment whether permanent, temporary or contractual. In view of the aforesaid facts and discussions, order dated 20.05.2017 passed by respondent no. 3 denying Child Care Leave for a period of three months to the petitioner is arbitrary and violative of Articles 14 and 16 of the Constitution, cannot be sustained and is hereby quashed. Accordingly, the writ petition stands allowed with the following directions.
1. Respondents are directed to grant Maternity Leave to the petitioner with full pay as applied within 8 weeks from today.
2. The respondent-State is also directed to grant Maternity Leave to all family employees with full pay for 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or contractual basis.
3. State-respondent is also directed to grant Child Care Leave of 730 days to all female employees, who are appointed on regular basis, contractual basis, ad hoc or temporary basis having minor children with the rider that the child should not be more than 18 years of age or older".
8. This Tribunal has perused R-2 in CWP No. 6098 of 2021 decided on 09.12.2021 (R-2). This writ petition was against the execution petition filed before this Tribunal. Respondents 7 have relied upon R-2, whereby, the execution petition filed by the applicant has been dismissed on the ground that the order of this Tribunal has been complied with. It is clear that the order passed by this Tribunal in OA No. 1013 / 2019 decided on 19.11.2019 A-10 has attained finality, wherein, it has been clearly held by this Tribunal while relying upon the judgement passed by the Hon‟ble Allahabad High Court in Civil Misc Writ Petition No. 24627 of 2017 titled as Dr. Rachna Chaurasiya Vs. State of UP and Others that the benefit of child care leave is applicable to all the female employees irrespective of nature of job of employment i.e. permanent/ temporary/ adhoc/ or contractual basis. The applicant had applied for CCL but the same was rejected by respondents.
9. In view of above, the instant case is fully covered by the judgement of Jagjeet Kaur (supra) and the law has been settled. In view of above, this OA is allowed and A-1 passed by respondents rejecting the request of applicant for grant of CCL w.e.f. 28.11.2021 to 12.12.2021 for class 10th examination is hereby quashed and set aside. Respondents are directed to release the full pay and allowances with all consequential benefits within a period of six weeks after receiving order of this Tribunal.
10. No order for costs.
(RAMESH SINGH THAKUR) Member (J) Db*