Madhya Pradesh High Court
Smt. Ratna Tripathi vs The State Of Madhya Pradesh on 3 August, 2017
1 W.P. No.20592/2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB : HON'BLE MS. JUSTICE VANDANA KASREKAR.
Writ Petition No.20592/2016
Smt. Ratna Tripathi
Vs.
State of M.P. and Others
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Shri Brindavan Tiwari, learned counsel for the petitioner.
Shri Rohit Sohgaura, learned Panel Lawyer for the
respondents.
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ORDER
(03/08/2017) The petitioner has filed the present petition under Article 226 of the Constitution of India challenging the circular dated 06.08.2016 passed by respondent no.1 as well as the consequential decision dated 18.11.2016 (Annexure P/2) passed by respondent no.4.
2. The petitioner was appointed as Shiksha Karmi Grade III vide order dated 18.09.1998. The petitioner was absorbed in Adhyapak Samvarg vide order dated 20.11.2007. In exercise of power conferred by sub section(1) of Section 95 read with sub section(2) of 2 W.P. No.20592/2016 Section 70 of the M.P. Panchayat Raj Gram Avam Adhiniyam, 1993, the State Government has framed the Rules regarding absorption of the Shiksha Karmi's namely; Madhya Pradesh Panchayat Adhyapak Samvarg (Employement and Conditions of Services) Rules, 2008 (hereinafter referred as 'the Rules of 2008'). The aforesaid Rules were made to absorb the candidates serving as Samvida Shala Shikshak in different Grades 1,2 and 3. In view of the aforesaid, the services of the petitioner were absorbed in Adhyapak Samvarg vide order dated 20.11.2007 and as the services of the petitioner have been absorbed in the Adhyapak Samvarg, therefore, all relevant Rules mentioned in the Rules of 2008 became applicable to the service condition of the petitioner. The Rule 8(b) of the said Rules provides that the person employed or merged under these Rules shall be entitled for leave similar as regular teachers in School Education Department. That the sub-rule 38(c) of the M.P. Civil Services (Leave) Rules, 1977 (hereinafter referred as 'the Leave Rules') provides for the maternity leave. The said 3 W.P. No.20592/2016 Rule has been amended by the State Government vide notification dated 22.08.2015 whereby the new sub rule 38(c) was incorporated. As per the aforesaid rule, it is provided that the Government Female Employees shall be entitled for maximum 730 days Child Care Leave. However, contrary to the said Rules, the State Government has issued a circular dated 06.08.2016 thereby denying this benefit to the female candidates of the Adhyapak Samvarg. The petitioner submitted an application on 9th January, 2016 before respondent no.4 seeking Child Care Leave. However, the respondents have rejected the application submitted by the petitioner (annexure P-2) by making endorsement stating that she is not entitled to get the Child Care Leave as per the circular dated 06.08.2016 issued by the State Government. Being aggrieved by that order, the petitioner has filed the present writ petition.
3. Learned counsel appearing on behalf of the petitioner submits that the circular dated 06.08.2016 is 4 W.P. No.20592/2016 illegal and discriminatory and is, therefore, violative of Article 14 of the Constitution of India. He further submits that initially the petitioner was working on the post of Samvida Shala Shikshak Grade-III and her services have been absorbed on the post of Adhyapak Samvarg in light of the circular issued by the State Government and after her absorption the Rules of 2008 were made applicable to the petitioner and as per Rule 8(b) of the said Rules it has been stated that the Leave Rules which are applicable to the Government Teachers would be applicable to the employees whose services have been absorbed and therefore, circular dated 06.08.2016 is contrary to the Rule 8 of the Rules of 2008. He further submits that the respondents in their notification dated 06.08.2016 has not given any reason for not extending the said benefit to the female candidates of Adhyapak Samvarg. He further relied on the judgment passed by this Court in the case of Smt. Vimlesh Verma Vs. 5 W.P. No.20592/2016 State of M.P. and others passed in W.P. No.4837/2016 on 08.02.2017 as well as the order passed in the case of Shalni Saxena Vs. State of M.P. and Others passed in W.P. No.828/2017 decided on 05.05.2017.
4. The respondents have filed their reply and in the reply they have stated that under the Leave Rules of 1977, a provision has been made by which the Female Government Employee has been provided a leave of 730 days for taking care of their two elder children. The Leave Rules, 1977 are applicable to the Government Employees, however, the petitioner being Adhyapak having different Rules governing their service condition under the Rules of 2008. It has subsequently provided that the Adhyapak working under the Panchayat Department and no such order for granting leave under the head of the child care leave has been issued so far as by the Panchayat Department is concerned. Accordingly, the 6 W.P. No.20592/2016 said benefit has rightly been refused to the teachers working under the Adhyapak Samvarg. In light of the aforesaid, learned counsel for the respondents submits that the petition is liable to be dismissed.
5. I have heard learned counsel for the parties, the petitioner was initially appointed on the post of Samvidha Shala Shiksha Karmi Grade-3 on 18.09.1988 her services have been absorbed in Adhyapak Samvarg vide order dated 20.11.2017. The State Government has framed the Rules of 2008 regarding absorption of Shiksha Karmi Rule 8 of Rules 2008 read as under:-
8. Other Conditions:- (a) A person employed under these rules shall discharge his duties under the administrative and disciplinary control of Zila Panchayat or Janpad Panchayat. Disciplinary Authority for 'Adhyapak Samvarg' shall be:-
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(b) A person employed or merged under these Rules
shall be entitled for leave similar as regular teachers in School Education Department.7 W.P. No.20592/2016
(c) A person employed under these Rules shall be governed by the Madhya Pradesh Panchayat Sewa (Conduct) Rules, 1998.
xx xx xx xx xx
6. The sub rule(b) of Rule 8 provides that the Leave Rules which are applicable to the government employees or teacher will be made equally applicable to the candidates who are absorbed in the Adhyapak Samvarg in view of the Rules of 2008. The Rule 38 of the Leave Rules provides for the maternity leave to the female employees, the said Rule was amended by the State Government vide notification dated 22.08.2015 whereby new sub rule 38(c) was incorporated. The said Rules provides that the female employees shall be entitled for maximum 730 days CCL. Thereafter, the State Government has issued a notification dated 06.08.2016 stating that the said benefit would not be available to the female employees of Adhyapak Samvarg. This circular is challenged by the petitioner in the present writ 8 W.P. No.20592/2016 petition. Once the State Government has framed the Rules by exercising the powers given under sub section 1 of the section 95 and sub section 2 of the section 70 of the Panchayat Raj Gram Avam Adhiniyam, 1993, they are having the statutory force. The sub rule (b) of the Rule 8 of the said Rules provides that all the new Rules shall be applicable to the employees governed by the Rules of 2008. The services of the petitioner, have been absorbed under these Rules, and therefore, all the Rules which are applicable to the teachers in the school education department would be applicable to the petitioner. The State Government by issuing the said circular has denied the said benefit to the female employees of the Adhyapak Samvarg. Once the Leave Rules are made applicable to all the female employees working in different department then the said benefit cannot be denied to the employees of the Adhyapak Samvarg and, therefore, the circular dated 06.08.2016 is contrary to the 9 W.P. No.20592/2016 Rule 8. It is also clear that while incorporating the amendment in Rule 38 (c) legislature has not excluded the female employees of the Adhyapak Samvarg from the said Rules and therefore, by issuing the executive instructions, the respondents cannot denied the said benefit to the female candidates of Adhyapak Samvarg. This action on the part of the respondents is amounts to the discrimination and is violative of Article 14 of the Constitution of India. The Gwalior Bench of this Court in the case of Shalni Saxena (supra) has set aside the said circular relying on the judgment passed in W.P. No.4837/2016.
7. Thus, in view of the aforesaid, I allowed this petition and quashed the circular dated 06.08.2016 (Annexure P-1) as well as the endorsement dated 18.11.2016 (Annexure P-2) by which the respondents have rejected the application preferred by petitioner for Child Care Leave and 10 W.P. No.20592/2016 the respondents are directed to extend the benefit of Child Care Leave to the petitioner.
8. With the aforesaid observation, the petition filed by the petitioner is allowed without any order as to costs.
Certified copy as per rules.
(MS. VANDANA KASREKAR) JUDGE Tabish 11 W.P. No.20592/2016