Mrinalini Pandey vs Union of India And Ors

Heard Mr. Diwakar Upadhyay, the learned counsel appearing for the petitioner and Mr. A.K. Mehta, the learned counsel appearing for the respondent-Indian School of Mines University.

The petitioner has prayed in this writ petition for quashing the order dated 24.07.2012 passed by the Registrar, Indian School of Mines University, Dhanbad whereby an application for Child Care Leave from 07.07.2012 to 18.10.2012 is rejected.

Mr. Diwakar Upadhyay, the learned counsel appearing for the petitioner submits that the petitioner is entitled for Child Care Leave in view of Rule 43-C of the Central Civil Services (Leave) Rules, 1972. She applied for 82 days of Child Care Leave which was rejected by Annexure-6. Drawing the attention of this Court to the rules he submits that in the impugned order the respondents have admitted that the petitioner is entitled for Child Care Leave but inspite of that, the said benefit was not extended to the petitioner. He further submits that in the impugned order the another reason is said that the contribution to the Department in the last two academic sessions was dismal by the petitioner and on these grounds the said leave was not allowed to the petitioner. He submits that the petitioner is entitled for that leave with effect from 07.07.2012 to 18.10.2012 and she has filed the application in the format of the University which is contained in Annexure-5. Mr. Diwakar Upadhyay, the learned counsel for the petitioner has relied in the case of "Kakali Ghosh vs. Chief Secretary, Andaman & Nicobar Administration & Ors." of the Hon'ble Supreme Court rendered in Civil Appeal No.4506 of 2014 which was disposed of by order dated 15.04.2014. He refers to paragraph no.12 of the said judgment, which is quoted hereinbelow :

"12.Rule 43-C was subsequently inserted by Government of India, Department of Personnel and Training, Notification No.F.No.11012/1/2009-Estt.(L) dated 1st December, 2009, published in G.S.R.No.170 in the Gazette of India dated 5th December, 2009 giving effect from 1st September, 2008 as quoted below :

43-C. Child Care Leave

1) A women Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e. 730 days during the entire service for taking care of up to two children, whether for rearing or to look after any of their needs like examination, sickness, etc.

2) During the period of child care leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

3) Child care leave may be combined with leave of any other kind.

4) Notwithstanding the requirement of production of medical certificate contained in sub-rule(1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule(1).

5) Child care leave may be availed of in more than one spell.

6) Child care leave shall not be debited against the leave account."

He further submits that a sum of Rs.25,000/- has been deducted from the salary of the petitioner for three months which is due to non-approval of the Child Care Leave. He has also annexed the salary-slip to show that the said deduction has been made.

On the other hand, Mr. A.K. Mehta, appearing for the University submits that the petitioner on 04.12.2012 applied for Earned Leave with effect from 07.07.2012 to 28.07.2012 (22 days). She further applied for Half Pay Leave (HPL) with effect from 29.07.2012 to 22.09.2012 (112 days) and she further applied for Leave Not Due (LND) with effect from 23.09.2012 to 18.10.2012 for 25 days. Referring to Annexure-N he submits that the said leave was granted in favour of the petitioner. He further refers to Annexure-M to the counter-affidavit and submits that the full data has been provided in Annexure-O so far the leave availed by the petitioner is concerned. He submits that in view of the application dated 04.12.2012 (Annexure-M) and subsequently the order contained in Annexure-O dated 22.04.2013 the order contained in Annexure-6 which is challenged in this writ petition has got no force.

Having heard the learned counsels for the parties, this Court finds that the Annexure-6 which is challenged in this writ petition wherein it is admitted that the petitioner is entitled for Child Care Leave. The another ground for rejection of the Child Care Leave is also seems to have one which says that the contribution of the petitioner in the last two academic sessions was dismal. This Court also finds that in the application dated 04.12.2012 the ground at column-8 is said Child Care and in view of the settled proposition of law that the petitioner is entitled for Child Care Leave, the impugned order cannot sustain in the eyes of law and, accordingly, the impugned order contained in Annexure-6 is quashed.

The matter is remitted back to the respondent-University who will consider the case of the petitioner afresh and the respondent-University will also look into the judgement of the Hon'ble Supreme Court rendered in "Kakali Ghosh" (supra) and will pass a reasoned order within eight weeks from the date of receipt/production of a copy of this order. It goes without saying that if the respondent-University takes a decision in favour of the petitioner, the deducted amount be refunded back to the petitioner within four weeks thereafter.

With the above observation/direction, this writ petition is disposed of.