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2024 Supreme(SC) 892
SUPREME COURT OF INDIA
D.Y. Chandrachud, CJI, J.B. Pardiwala, J.
Shalini Dharmani – Petitioner
Versus
State of Himachal Pradesh – Respondent
SLP (C) No.16864 of 2021
Decided On : 22-04-2024
For Petitioner(s) Ms. Pragati Neekhra, AOR For Respondent(s) Mr. D.K. Thakur, Adv. Ms. Tavleen Singh, Adv. Mr. Bimlesh Kumar Singh, Adv. Mr. Mohan Lal Sharma, AOR Mrs. Sikha Sharma, Adv.
IMPORTANT POINT
The court established that the lack of Child Care Leave for mothers of differently abled children infringes upon their constitutional rights, necessitating policy reform.
Headnote:
ChildCare - Leave - CCS (Leave) Rules 1972 - The court emphasized the need for Child Care Leave for mothers of differently abled children, interpreting the CCS (Leave) Rules and the RPWD Act to ensure constitutional rights are upheld.
Fact of the Case:
The petitioner, an Assistant Professor, sought Child Care Leave for her son with a rare genetic disorder after exhausting her leave. The State of Himachal Pradesh had not adopted the relevant provisions for such leave, leading to her writ petition.
Finding of the Court:
The court found that the deletion of Child Care Leave provisions by the State was inconsistent with constitutional protections for women in the workforce, especially those with special needs children. It directed the State to reconsider its policies.
Issues: Whether the State of Himachal Pradesh should adopt provisions for Child Care Leave for mothers of differently abled children, in light of constitutional rights and the RPWD Act.
Ratio Decidendi: The court held that the absence of Child Care Leave for mothers of differently abled children violates constitutional rights and directed the State to establish a committee to review and formulate appropriate policies.
Result: The court directed the State to reconsider Child Care Leave provisions for mothers of differently abled children and constituted a committee for policy formulation.
ORDER :
1.The petitioner is an Assistant Professor at the Department of Geography in Government College, Nalagarh. Her son, who is fourteen years old, suffers from a rare genetic disorder, Osteogenesis Imperfecta and has undergone several surgeries since birth. He requires continuous treatment and surgical intervention to survive and lead a normal life. Due to the treatment of her son, the petitioner has exhausted all her sanctioned leave.
2. Rule 43-C of the Central Civil Service (Leave) Rules (CCS (Leave) Rules) 1972, provides for the grant of Child Care Leave and is reproduced below:
“43-C Child Care Leave.- (1) A woman 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 upto 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) upto 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.”
3. By an Office Memorandum dated 3 March 2010, the Union Government resolved to permit Child Care Leave for women employees with differently abled children up to the age of twenty-two years (instead and in place of eighteen years) subject to the conditions stipulated by the government in this regard from time to time.
4. The petitioner was informed by the Principal of the Government College on 16 November 2018 that since the State of Himachal Pradesh has not adopted provisions for Child Care Leave, such leave cannot be sanctioned to her. After making a representation on 26 December 2018, the petitioner instituted a writ petition before the High Court of Himachal Pradesh under Article 226 of the Constitution seeking a direction for the adoption of Rule 43-C of the CCS (Leave) Rules. The writ petition was dismissed by the High Court by the impugned order dated 23 April 2021 on the ground that Rule 43-C has been deleted by the State of Himachal Pradesh.
5. During the course of the hearing, it is not in dispute that the provision for Child Care Leave has been deleted by the State of Himachal Pradesh. Consequently, the extension of age from eighteen to twenty-two years for a mother of a differently abled child by the Union Government in the matter of the grant of Child Care Leave also does not apply. We are of the considered view that the petition raises a serious matter of concern. The petitioner has relied on the provisions of the Rights of Persons with Disabilities Act 2016 (RPWD Act).
6. On 15 September 2022, notice was issued to the Commissioner under the RPWD Act, who was requested to place on the record the policies/directions, if any, issued with regard to the grant of leave to parents of children covered by the statute. The Commissioner has since indicated on affidavit that no such policies or directions have been formulated.
7. The participation of women in the work force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution; besides Article 19(1)(g). The State as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the work force. The provision of Child Care Leave to women sub- serves the significant constitutional object o
