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Hon'ble Sudhanshu Dhulia, J.

Hon'ble Alok Kumar Verma, J.

Hon'ble Sudhanshu Dhulia, J.

This writ petition was filed by the petitioner, who is a lady Ayurvedic doctor in State Medical and Health Services, Uttarakhand. Her appointment though is not regular, but is on contractual basis, which is continuing since 2009. The contract which was for one year initially, has been periodically renewed or extended. The last extension was upto 28.02.2019 vide order dated 23.03.2018. As the petitioner was in the family way, she applied for her maternity leave, which was sanctioned to her from 08.04.2017 to 04.10.2017. After availing her maternity leave, the petitioner, however, did not join her service, but applied for Child Care Leave (from hereinafter referred to as the CCL). Her argument before the authorities was that in view of a decision of a Division Bench of this Court, in Writ Petition (S/B) No. 99 of 2015 (Dr. Shanti Mehra Vs. State of Uttarakhand*), even a contractual employee is entitled for CCL for a period of 730 days. Her application, all the same, was rejected by an order dated 24.05.2019 passed by the Director, Ayurvedic and Unani Services, where the reasons given while denying CCL to the petitioner are that the petitioner had applied for a child care leave, but in view of Government Order dated 30.05.2011 a child care leave can only be given to a "regular Government employee" and not to employees who are working on contractual basis, as their service conditions are given in their contract, where there is no mention of child care leave. Aggrieved by this order, the petitioner filed a writ petition before this Court.

decided on 15.12.2016, which have already been referred above.

7. Learned counsel for the petitioner would also rely upon two other decisions, one of the Division Bench of Allahabad High Court in "Dr. Rachna Chaurasiya Vs. State of UP (2017) 6 ALJ 454, and another Single Bench decision in Gauhati High Court in Doli Gogoi Vs. State of Assam (2017) 3 Gauhati Law Reports 247. Broadly the Allahabad High Court has held in its judgment that the law does not make any distinction between a regular and contractual employee, for grant of child care leave and CCL ought to be granted in favour of contractual employees as well. As far as Gauhati High Court is concerned, the Gauhati High Court though has relied upon substantially the decision of the Division Bench of this High Court, but with a caution, as it has expressed doubts whether a child care leave of 730 days can be granted to a contractual worker whose entire employment is for a lesser number of days. The Gauhati High Court has held that contractual employees should be granted CCL but on a pro rata basis. All the same, what would here be the pro rata basis has not been explained in the decision of the Gauhati High Court.

40. After giving our considered thought on this aspect, we have come to the conclusion that child care leave should be for the same number of days as an earned leave, which a regular employee gets in a year. We say this also because in G.O. dated 30.05.2011, it has been mentioned that CCL shall be treated on the same footing as earned leave, and will be sanctioned in the same manner. We have been told that the State Government employees are entitled for 31 days of earned leave in a year. The same principle ought to be adopted here as well and an employee whose entire employment is for one year, if he/she fulfils the other parameters given in the Government Order dated 30.05.2011 i.e. she has two children, who are less than 18 years of age, will also be entitled for the child care leave. G.O. dated 30.05.2011 further stipulates that CCL shall not be given as a matter of right, and no one will go on CCL without its proper sanction. The same principle shall be applicable for a contractual employee as well. Normally child care leave should not be denied. It could only be denied by the employer on very pressing valid and plausible reasons, which must be specifically stated, when such a request for child care leave is being denied.

(B) As regarding the second question, which is extremely wide, we may straight away answer that Courts do not legislate. A Court interprets an existing law. In the present context, however, though there is no statute or Rule for child care leave even for a regular employee, yet there is a "Government Order (dated 30.05.2011)", which is a provision of law, which presently governs the field. This law provides for a child care leave for a regular Government employee for 730 days. We have only read into this provision the rights of a contractual employee as well. In other words, Government Order dated 30.05.2011 shall also be applicable for a contractual employee, but with limitation, which we have specified while answering the first question.