Bombay High Court: While deciding a petition under Article 226 of the Constitution for issuance of writ of mandamus, the Court directed the respondents to grant leave to the Petitioner in terms of Rule 43-C for 730 days for bringing up and welfare of a disabled daughter, the bench of A.S. Oka and P.D. Naik, J.J., directed the State Government to constitute State Co-ordination Committee which shall take decision whether to grant child care leave with pay or not.
In a case where the petition was filed against State Government for not granting child care leave, the petitioners relied upon Rule 43-C of the Central Civil Services (Leave) Rules, 1972 which provides a woman Government servant having a minor child below the age of 18 years and who has no earned leave at her credit is entitled to apply for Child Care Leave for a maximum period of 730 days during the entire service for taking care of children. Sub-rule (2) of Rule 43-C, such woman Government servant is entitled to full pay during the said leave period. It was further contended that Section 13 of the Disabilities Act makes it obligatory for the State Government to establish a State Coordination
Committee and under Section 18 obliges the Committee to discharge several duties. Petitioners relied on Kakali Ghosh v. Chief Secretary, Andaman & Nicobar Administration, (2014) 15 SCC 300 where under the similar facts leave under Rule 43-C was granted to the appellant.
On the contrary, the respondent submitted that there is no such provision in leave rules of State Government on par with Rule 43-C of the Central Rules and therefore the petitioner is not entitled to leave. It was further submitted that Kakali Ghosh case is not applicable in the present case as in that case Central Rules were applicable and moreover, if such leave with pay is granted a large number of women Government servants will be on leave which will affect the functioning of the Government.
Considering the above mentioned contentions, the Court was to the view that as the Petitioner is not governed by the Central Rules, a writ of mandamus directing the Respondents to grant the benefits to the Petitioner which are available under the Central Rules cannot be issued. The Court passed the following orders:
- Directing the State Co-ordination Committee constituted under subsection (1) of Section 13 of the Disabilities Act to perform its function by advising the State Government to formulate legislations on the issue whether there should be a provision made for grant of special child care leave to a woman Government servant who is a mother of a disabled child covered by the definition of person with disability under Clause (t) of Subsection (2) of the said Act.
- That if there is no State Co-ordination Committee then it shall be constituted and decision shall be given before 30th June 2016.
- That if the State Government grants such relief, petitioner will be governed by its decision and if it does not grants, the petitioner will have to resume her duty. [Deepika Sagar Nersekar v State of Maharashtra, 2016 SCC OnLine Bom 2762, decided on May 13, 2016].
