Anoopika Randhawa vs State of Haryana

Tejinder Singh Dhindsa, J.—The petitioner, who is serving on the post of Lecturer (History) under the Haryana State Education Department has filed the instant writ petition impugning the orders dated 24.9.2010 (Annexure P-4) and 11.11.2010 (Annexure P-8) issued by respondent No. 4, whereby the claim of the petitioner for the grant of Child Care Leave has been rejected and recovery is sought to be effected from the pay already disbursed to the petitioner for the month of September, 2010. Petitioner further seeks the issuance of a Writ in the nature of Mandamus for directing the respondents to grant and sanction the Child Care Leave applied for by the petitioner in the light of application dated 20.9.2010 (Annexure P-2). Brief facts of the case are that the petitioner was appointed on the post of Lecturer (History) on 29.6.1999. In the month of June, 2006 the petitioner was posted as Lecturer (History) at Govt. Senior Secondary School, Rajjipur (Panchkula). On 6.1.2010 the petitioner was blessed with a son, who happened to be the second child of the petitioner out of wedlock. The petitioner at that point of time availed Maternity Leave w.e.f. 3.12.2009 to 30.5.2010. As per the pleadings on record son of the petitioner had to be admitted in General Hospital, Sector 6, Panchkula on 29.6.2010 on account of being infected with "Rota Virus". On receiving medical intervention and treatment the child was discharged on 2.7.2010. The same medical condition resurfaced on 18.7.2010 and which necessitated admission in the hospital again from 18.7.2010 to 25.7.2010. To take care of the baby the petitioner utilized her Earned and Casual Leave w.e.f. 1.7.2010 till 17.9.2010. It is further pleaded that on account of the medical condition of the child and to provide proper and sensitive care, the petitioner submitted an application dated 20.9.2010 for the sanction of the Child Care Leave for a period of 730 days. However, vide order dated 24.9.2010 at Annexure P-4 such claim of the petitioner was rejected. The petitioner, accordingly, submitted a representation/appeal to the District Education Officer, Education Department, Panchkula, respondent No. 3. Vide communication dated 28.9.2010 (Annexure p-6) issued from the office of respondent No. 3, the petitioner was directed back to the Principal of the Institution i.e. respondent No. 4 as regards the claim for sanction of Child Care Leave. The petitioner, thereafter, was served with the subsequent impugned order dated 11.11.2010 (Annexure P-8) informing her that she had already been intimated as regards non-sanction of Child Care Leave keeping in view the interest of the students. The petitioner was further informed that the pay of September, 2010 that had been granted in full is also liable to be recovered.

Learned counsel for the petitioner has vehemently argued that the claim of the petitioner for sanction of Child Care Leave was covered in terms of State Govt. Notification dated 5.2.2010 (Annexure P-3) which had been issued with the objective of enabling the women govt. employees to take care of the children at the time of need like examination, sickness etc. Counsel would argue that under the notification dated 5.2.2010 Child Care Leave could be granted for a maximum period of two years i.e. 730 days during the entire service tenure to a woman govt. employee for taking care of her two eldest surviving children below the age of 18 years and the same would be admissible only when the concerned woman govt. employee has no Earned Leave to her credit. It has been argued that sanction of Child Care Leave had been sought by the petitioner on account of the medical condition of the male child of the petitioner, who was only a few months old and coupled with the fact that the petitioner had exhausted the Earned Leave to her credit, her claim was squarely covered in the light of notification dated 5.2.2010. It has further been argued on behalf of the petitioner that the impugned orders rejecting the claim of the petitioner for sanction of Child Care Leave are arbitrary as the same are cryptic and non-speaking.

A written statement has been filed on behalf of respondents No. 2 to 4 justifying the action of denial of Child Care Leave to the petitioner by stating that in the school in question there was only one Lecturer of History and as such the decision had been taken purely in the interest of the students. It has been stated that Child Care Leave for a period of 730 days had been sought which would necessarily entail loss of study of the students over a considerable length of time. It has further been stated that the petitioner had already availed Maternity Leave w.e.f. 3.12.2009 to 30.5.2010 and thereafter Earned Leave/Casual Leave w.e.f. 1.7.2010 to 19.9.2010. In the reply even the conduct of the petitioner has been frowned upon while stating that the petitioner having submitted an application for Child Care Leave on 20.9.2010, did not even wait for any response/reply and proceeded to absent herself. It is under such circumstances that the salary for the month of September, 2010 that had been released inadvertently was sought to be recovered and since the petitioner had again absented from duty from October, 2010 to 6.4.2011 except one day i.e. 17.1.2011, the salary for such period was also not payable.

A replication has been filed on behalf of the petitioner to the written statement filed on behalf of the State. In the replication the petitioner has referred to information received under the provisions of the R.T.I. Act and instances of various teachers including Smt. Vijayanti Gupta, Science Mistress, Smt. Harjot Kaur, Smt. Anita Sharma, Smt. Anuradha Singh, Smt. Shweta and Smt. Sudesh of different schools have been furnished. By citing such instances a plea of discrimination has been raised by the counsel stating that in the case of certain teachers Child Care Leave has been granted even where the wards were more than 18 years of age and as such were not even covered under the Notification dated 5.2.2010 (Annexure P-3) and in case of others where Child Care Leave had been granted to teachers, who were occupying the single available post like the petitioner.

I have heard learned counsel for the petitioner at length.

In the first instance it would be apposite to examine the Notification dated 5.2.2010 (Annexure P-3) issued by the State Govt. in the light of which the claim of the petitioner for the grant of Child Care Leave has been raised. A perusal of the same would make it apparent that the State Govt. has taken a decision to allow Child Care Leave to women govt. employees subject to a maximum period of two years during their entire service tenure for taking care of the two eldest surviving children below the age of 18 years. Even the grant of such Child Care Leave is not mandatory and has been left to the discretion of the appropriate authority. The Notification dated 5.2.2010 makes it clear that such Child Care Leave may be availed of in more than one spell. The memo dated 5.2.2010 (Annexure P-3) itself further clarifies that even though, the decision has been taken to allow Child Care Leave to facilitate the women govt. employees to take care of the children at the time of need but the same does not mean that Child Care Leave should disrupt the functioning of the offices/institutions/schools etc. The memo still further clarifies that Child Care Leave cannot be demanded as a matter of right and under no circumstances can any employee proceed on Child Care Leave without prior sanction of leave by the competent authority.

In the present case the application dated 20.9.2010 submitted by the petitioner for sanction of Child Care Leave has been placed on record at Annexure P-2. In terms thereof, the petitioner has sought sanction of Child Care Leave for the complete period of 730 days in one go. No suggestive material has been referred to or appended along with the petition, wherefrom this Court could take notice of a medical condition of the child of the petitioner so as to justify the claim of sanction of Child Care Leave over a period of 730 days as on 20.9.2010 i.e. the date the application was submitted. The clear inference that can be drawn from the pleadings on record is that the claim of the petitioner for sanction of Child Care Leave for a period of 730 days i.e. the maximum entitlement under the memo dated 5.2.2010 (Annexure P-3) was not bonafide. Be that as it may, the question would arise as to whether this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India would act as a Court of Appeal to sit in judgement over a decision taken by a competent authority not to sanction Child Care Leave to an employee in citing the relevant administrative exigency i.e. the interest of the students.

The Writ Court cannot sit in appeal over a decision taken in administrative exigency. It was for the respondent-Department to consider the feasibility of granting Child Care Leave over a long period of time i.e. 730 days as claimed by the petitioner. Even otherwise, the grant of Child Care Leave is a concession and not a right. The plea of discrimination would also not be available to the petitioner. The concept of equality and protection against arbitrary action as envisaged under Article 14 of the Constitution of India is a positive concept. Such concept cannot be used as a tool in a negative manner to perpetuate an illegality. Even if, certain other employees have been sanctioned Child Care Leave inspite of not being covered under the memo dated 5.2.2010(Annexure P-3) the same would not vest any right in the petitioner. In any case the facts and circumstances of each and every employee seeking the sanction of Child Care Leave would vary and would be different.

The correctness of an order passed by this Court in directing the State of Punjab to grant Special Leave for a period of 5 years for self-employment of an employee on the ground of alleged discrimination came up for consideration before the Hon''ble Apex Court in the case of State of Punjab and Others Vs. Dr. Sanjay Kumar Bansal, . While setting aside the judgement of this Court the Hon''ble Apex Court observed in the following terms:- 3. Special leave is not a matter of right vested in the employee. It depends on the administrative exigencies. In the present case the respondent is working as a Medical Officer. He had applied for special leave for three years under the Scheme which is Annexure P-3 collectively in the SLP Paper Book. We have gone through Annexure P-3. It merely categorizes employees who are entitled to apply for special leave and those who cannot apply for special leave. Such policy does not confer any right on the applicant to obtain special leave. On facts, the question of striking down the order of Administration does not arise for the simple reason that in the counter the Administration has stated that shortage of doctors is one of reasons for not granting special leave. In our view these are matters which fall in the category of "administrative exigencies" and this Court cannot sit in Appeal thereon. In the circumstances, the High Court had erred in coming to the conclusion that the Management had erred in refusing the application for want of reasons.

Even on the case of discrimination it is for the Administration/Management to take into account the contingencies which may arise in the course of administration. The services of an employee may be required in a given case on more emergent basis vis-�-vis other employees. In such cases, the services rendered by an employee, his seniority, the nature of work which he is required to do, his responsibilities etc. are required to be taken into account while taking decision on such applications. Lastly, it may be stated that in the Original Writ Petition, factual mala fides have not been pleaded by the respondent.

Accordingly, for the reasons recorded in this order and in the light of the judgement of the Hon''ble Apex Court in Dr. Sanjay Kumar Bansal''s case (supra), I find no basis that would warrant interference in the decision of the respondent-authorities in denying to the petitioner the sanction of Child Care Leave. Inspite of taking such view and while dismissing the present writ petition, it is observed that it shall be open for the respondents to take a lenient view as regards recovery of the salary that already stands released to the petitioner under the interim orders of this Court. Such observations are being made purely on an equitable and humanitarian basis keeping in view the fact that the petitioner is a women govt. employee and who in addition to the discharge of her onerous duties as a Teacher had also to look after her child, who was suffering from a medical condition.

The writ petition, accordingly, is dismissed.