A contractual employee is entitled to child care leave, but with limitations specified by the court.

JUDGMENT :

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, 2017 (1) U.D., 191), 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.

2. The petitioner relied upon the order dated 15.12.2016 passed by a Division Bench of this Court in Writ Petition (S/B) No. 99 of 2015, wherein the Division Bench, inter alia, had held that even a female employee who is working on a contractual basis is entitled for child care leave of 730 days. These directions were as under:

“The State Government is also directed to grant Child Care Leave (CCL) of 730 days’ to all the female employees, whether appointed on regular basis, contractual basis, ad hoc/tenure or temporary basis having minor children with a rider that the child should not be more than 18 years of age or older. The female employees shall be entitled to paid leave equal to the pay drawn immediately before proceeding on leave. CCL can be combined with leave of the kind due and admissible.”

3. When the matter came up before the Division Bench of this Court, argument by the State was that the total period of employment of the petitioner is for a period of twelve months i.e. 365 days, and therefore it is not possible to grant child care leave for 730 days. The Division Bench was also not in agreement with the order of the earlier Division Bench of this Court, which supported the case of the petitioner, and it observed:

“3. We find it difficult to agree with the view that a person, employed on a contractual basis for a period of one year should also be granted Child Care Leave for a period of 730 days i.e. for a period of two years, which would, in effect, obligate the Government to automatically renew the contract of employment, with the employee concerned, beyond the original contractual period of one year. In our view, the aforesaid judgment of the Division Bench, in Writ Petition (S/B) No. 99 of 2015 dated 15.12.2016, needs reconsideration.”

4. It then referred the matter to a Full Bench for examining the correctness of the matter by formulating the two questions:-

“(i) Whether Child Care Leave of 730 days i.e. for a period of 2 years can be granted to a person employed on a contractual basis only for a period of one year?

(ii) Whether the High Court, in the absence of any legislation or a Rule in this regard having been framed by the State Government, can issue mandatory guidelines, in the exercise of its jurisdiction under Article 226 of the Constitution of India, directing that such benefits be extended by the State Government to persons eng