Point of Law: Article 18(3) require State to take all appropriate measures that children of working parents have right to benefit from child-care services and facilities for which they are eligible.

JUDGMENT :

C. Jayachandran, J.

Whether Section 43-C of the Central Civil Service (Leave) Rules, 1972 (for short, 'CCS Rules”) read with Annexure A5(a) clarification (O.M.No.13018/2/2008) dated 29.9.2008 stipulates that the Child Care Leave (for short, 'CCL') facility is restricted to the two eldest surviving children alone, especially when such leave facility has not been availed in respect of the first two children, is the question involved in this O.P. In the order impugned, the Tribunal declared Annexure-A5(a) order as unconstitutional and granted relief to the third child of the applicant/employee in the given facts, which order is under challenge at the instance of the BSNL/employer.

2. The essential facts are referred as under:-

The applicant in the O.A. (1st respondent herein) is working as Telecom Mechanic in the Palakkad Telecom Division. She applied for CCL in respect of her third child, for a period of 176 days in different spells between 24.6.2013 and 10.10.2015, which was originally granted. However, as per Annexure-A2 communication issued by the Accounts Officer (4th respondent in the O.A.), the CCL availed by the applicant was directed to be regularised as against eligible earned leave and half pay leave, with a further direction to recover the excess payment. Although the applicant preferred Annexure-A8 representation against Annexure-A2, the same was dismissed vide Annexure-A1. The legal issue as to whether the CCL Rule can be availed in respect of the third child has to be appreciated in the peculiar facts of the applicant, which is referred to here below. The applicant married one Vasu earlier, which, however, culminated in a decree of divorce, vide Annexure-A3 judgment. She had two children in that wedlock. However, no service benefits in respect of two children were availed by the applicant, for the reason that the said children were residing along with her ex-husband Vasu all throughout. According to the applicant, the said children were never dependent on her. After divorce, the applicant married Sri.Bhavadas in the year 1999 and a child in that relationship was born on 19.11.2000. In the above referred peculiar facts, it is the claim of the applicant that she is entitled to CCL in respect of the third child above referred, born in the second marriage, especially for the reason that she had not availed any CCL, or for that matter any other service benefit, in respect of her first two children born in the earlier wedlock.

3. On law, the petitioner would maintain that Annexure-A4 order which introduced CCL in the year 2008 only stipulates grant of CCL for a maximum period of two years (i.e., 730 days) during the entire service for taking care of upto two children, without mandating that the said two children should be the elder ones. Annexure-A5(a) order dated 29.9.2008 which is issued in purported clarification of Annexure-A4 stipulates that CCL shall be admissible for the two eldest surviving children only, which according to the applicant, is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. While Annexure-A4 is issued pursuant to the decisions taken by the Government, with the approval of the President of India, Annexure-A5(a) is issued by a lower functionary and a clarification in the nature of Annexure-A5(a), which has the effect of amending and modifying Annexure-A4, is arbitrary and violative of the constitutional guarantees, is the applicant's contention. The term 'eldest' is conspicuously absent in Annexure-A4, which only purports to limit the benefits to the two children of the employee, without any further stipulation that the said two children should be the eldest ones, wherefore, Annexure-A5(a), insofar as it purports to mandate that the said two children should necessarily be the elder ones, is bad in law.

4. Respondents 1 to 4, representing the BSNL filed counter/reply statement harping upon Annexure-A5(a) clarification. The said respondents contended that the CCL