Statutory CCSL Rule 43-C prevails over institute circulars restricting CCL; promotes child care, cannot be denied arbitrarily citing staff shortages.

ORDER (ORAL)

Per: Justice S.Sujatha ...........Member(J)

The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

“a. Set aside the Official Memorandum dated 02.01.2023 bearing No.NIMH/PER(2)/AJ-NO/2022-23 issued by the Respondent No.2, as it is arbitrary, without application of mind and unjustified. (vide Annexure A4).

b. Direct the Respondents to consider the Applicant’s Representation dated 13.01.2023 to grant Child Care Leave from 14.01.2023 to 14.05.2023.

c. Allow the cost of this application to the applicant.

d. To pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in favour of the applicant and against the respondent in the interest of justice and equity.”

2. Briefly stated the facts as narrated by the applicant are that she was appointed to the post of Nursing Officer on 30.05.2016 in Emergency ICU Department at National Institute of Mental Health and Neuro Sciences (NIMHANS), Bengaluru. The applicant availed the maternity leave for a period of 180 days from 18.07.2022 to 13.01.2023 after the birth of her daughter in July, 2022. The applicant requested/applied for Child Care Leave (‘CCL’ for short) for a period of 120 days from 14.01.2023 to 14.05.2023, to take care of the child as her family reside in Kerala. The said application was rejected vide OM dated 02.01.2023. Being aggrieved, the applicant has preferred this OA.

3. Learned Counsel Shri Suraj Naik representing the applicant submitted that Rule 43-C of the Central Civil Services (Leave) Rules, 1972 (‘CCSL’ Rules for short) entitles a women Government employee with Child Care Leave of 730 days during her entire service for taking care of her two eldest surviving children, whether rearing or for looking after any of their needs. Such leave is essentially not a recognition of the rights of a woman but it is more a recognition of the rights of a child. The guidelines issued by the respondents vide Circular dated 30.11.2018 (Annexure R1) in respect of CCL is not in conformity with CCSL Rules. CCSL Rules governing CCL, nowhere states that the CCL can be availed only for a period of 40 days. The applicant had genuine reason for availing CCL and the request was made almost 45 days prior to the date of expiry of her sanctioned maternity leave. The respondents having not been recruiting an adequate number of staff members in line with Government recommendations which is required by SIU norms prescribed by the Nursing Council, cannot burden the applicant with the shortcomings of the institution to meet the staff exigencies. The respondent institute should take steps to address the shortage of staff. The applicant was in need of the Child Care Leave as her infant daughter was unable to cope up without mother’s care. However, the respondents have not taken into account the circumstances of the situation and arbitrarily rejected her request for CCL in defiance to the object of the statutory provisions of Rule 43-C which was inserted to provide proper facilities to women, so that she is easily able to balance her official duties along with her personal life, especially at the time of nursing the child with breast feeding.

4. Placing reliance on the judgment of the Hon’ble Apex Court in the case of Kakali Ghosh vs. Chief Secretary& others reported in 2014(15) SCC 300 and judgment of Hon’ble High court of Kerala in the Chairman and Managing Director, Bharat Sanchar Nigam Limited vs. C.R.Valsalakumari and another (OP (CAT ) No.340/2017, learned Counsel su