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2017 Supreme(MP) 488
IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Anjana Singh Rajawat (Smt.) v. State of M.P. and others
Writ Petition No.3096 of 2016 (Indore) ; Decided on 7.3.2017.
L.C. Patne for petitioner;
Romesh Dave, Government. Advocate for respondent/State.
Headnote:Municipal Corporation Act, 1956 (M.P.) -- S.433 r/w S.58(2) -- M.P. Municipalities Act, 1961 -- S.355 r/w S.95 -- M.P. Nagriya Nikaya Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 -- R.8(b) -- M.P. Civil Services (Leave) Rules, 1977 -- R.38(c) -- child care leave denied to employee/petitioner of Nagar Panchayat -- petitioner initially appointed by Janpad Panchayat -- thereafter, her services merged in school of Nagar Panchayat -- therefore, petitioner is not State Government employee -- State Government clarified that benefit of child care leave not availables to teacher's cadre -- not placed any instance where teacher of school education department granted child care leave by department -- no relief can be granted -- petition dismissed.
Held : The petitioner was initially appointed by the Janpad Panchayat. Thereafter, her services have been merged in the School of Nagar Panchayat, therefore, the petitioner is not the State Government employee. The State Government has clarified that the benefit of child care leave is not available to the teachers' cadre. The petitioner has not placed any instance in the writ petition, where the teacher of School Education Department has been granted child care leave by the Department. In view of the aforesaid, no relief can be granted to the petitioner. Accordingly, present writ petition is dismissed. 2009(II) MPWN 112 relied on.
uxjikfyd fuxe vf/kfue;] 1+956 ¼e-iz-½ && /kkjk 433 lgifBr /kkjk 58¼2½ e-iz- uxjikfydk vf/kfu;e] 1961 && /kkjk 355 lgifBr /kkjk 95 && e-iz- uxjh; fudk; v/;kid laoxZ ¼jkstxkj rFkk lsok dh 'krsaZ½ fu;e] 2008 && fu-8¼[k½ && e-iz- flfoy lsok ¼vodk'k½ fu;e] 1977 && fu-38¼x½ && uxj iapk;r ds deZpkjh@;kph dks ckyd dh ns[kjs[k ds fy, vodk'k dk izR;k[;ku && ;kph izkjafHkd :i ls tuin iapk;r }kjk fu;qDr fd;k x;k && blds i'pkr~ mldh lsok,a uxj iapk;r ds fo|ky; esa foyhu dh xbZ && blfy, ;kph jkT; ljdkj dh deZpkjh ugha gS && jkT; ljdkj us Li"V fd;k fd ckyd dh ns[kjs[k ds fy, vodk'k dk ykHk v/;kid laoxZ ds fy, miyC/k ugha && dksbZ n`"Vkar izLrqr ugha tgkW Ldy f'k{kk foHkkx ds v/;kid dks foHkkx }kjk ckyd dh ns[kjs[k ds fy, vodk'k eatwj fd;k x;k gks && dksbZ vuqrks"k eatwj ugha fd;k tk ldrk && ;kfpdk [kkfjtA
vfHkfu/kkZfjr % ;kph vkjfEHkd :i ls tuin iapk;r ds }kjk fu;qDr dh x;hA blds i'pkr~ ml dh lsok,a uxj iapk;r ds fo|ky; esa foyhu dh xbZ blfy, ;kph jkT; ljdkj dk deZpkjh ugha gSA jkT; ljdkj Li"V dj pqdh gS fd ckyd dh ns[kjs[k ds fy, vodk'k dk ykHk v/;kid laoxZ ds fy, miyC/k ugha gSA ;kph us ;kfpdk esa dksbZ n`"Vkar izLrqr ugha fd;k tgkW Ldwy f'k{kk ds v/;kid dks ckyd dh ns[kjs[k ds fy, vodk'k dk ykHk foHkkx }kjk eatwj fd;k x;k gksA iwoZ dfFkr dks ns[krs gq, ;kph dks dksbZ vuqrks"k eatwj fd;k tk ldrk rn~uqlkj] ;g fjV ;kfpdk [kkfjt dh tkrh gSA 2009¼2½ e-iz- ohDyh uksV~l 112 voyafcrA
1. Heard finally with the consent of the parties.
2. The petitioner has approached this Court challenging the order dated 13.3.2016, by which she has been denied child care leave as admissible to the State Government female employee.
3. The petitioner was initially appointed on the post of Shiksha Karmi Grade-III by the order of Chief Executive Officer, Janpad Panchayat, Kannod, District Dewas. Thereafter, the petitioner was absorbed in the Adhyapak cadre on the post of Sahayak Adhyapak in Nagar Panchayat, Kannod. The petitioner was treated as employee of Nagar Panchayat under the provisions of Madhya Pradesh Nagariya Nikaya Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 framed by the State Government in exercise of powers conferred under section 433 read with section 58(2) of the Madhya Pradesh Municipal Corporation Act, 1956 as well as in exercise of power conferred by section 355 read with section 95 of Madhya Pradesh Municipalities Act, 1961
4. The State Government has amended Madhya Pradesh Civil Services (Leave) Rules, 1977 vide notification dated 22.8.2015, by which female Government employee was entitled to get total 730 days of child care leave in her entire service tenure for taking care of two living children upto the age of 18 years. In pursuant to the Head Master of Government Girls Middle School, Kannod as her son was regular student of Class-10 and going to appear in the board examination. By order dated 15.2.2016, the District Education Officer has directed all the Principals of High School/Higher Secondary Schools, District Dewas not to sanction child care leave as the same is applicable to the female Government employee and Adhyapak Samvarg are not included in the same in light of the circular of the Finance Department, State of M.P dated 17.11.2015. In compliance of the aforesaid letter, chile care leave of the petitioner has been cancelled and she has been directed to report to the duty. The petitioner again submitted an application dated 21.3.2016 for grant of child care leave on the ground that under rule 8(b) of the Madhya Pradesh Nagariya Nikaya Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 she is entitled for child care leave which is admissible to the teachers of School Education Department.
5. Shri L.C. Patne, counsel for the petitioner submits that the State Government has amended the leave rules and under which, all the female Government employee are entitled for 730 days child care leave under Rules 8(b) of the Rules, 2008. The female employees of the Municipal Council are also entitled for similar leave as admissible to the employees employed or merged under the Rules shall be entitled for leave similar to the regular teachers in School Education Department, therefore, the respondent has wrongly denied the child care leave to the petitioner.
6. Per Contra, Shri Dave, counsel for the respondent submits that the petitioner is not a Government employee, therefore, she is not entitled for the benefit of amendment made in the leave rules, even otherwise, the State Government has clarified that the said leave is not admissible to the teachers cadre, therefore, the petitioner is not entitled for the relief claimed and present petition is liable to be dismissed.
7. That the State Government has amended the leave rules by notification dated 22.8.2015, by which, child care leave can be sanctioned maximum to the period of 730 days for the child, who has not attained the age of 18 years. Amended Rules, 38(C) is reproduced below :
"38(C) Child Care Leave :-
(1) Subject to the provisions of this rule, a woman Government servant may be granted child care leave by the competent authority for a maximum period of 730 days during her entire service for taking care of her two eldest surviving children.
(2) The leave cannot be claimed as a matter of right.
(3) For the purposes of sub-rule (1) "Child" means :-
(a) a child below the age of eighteen years (including le
