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Judgment
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
"i). To set aside and quash OM dated 02.09.2014 regarding denial to the applicant of 273 days CCL from 01.08.2013.
ii) To set aside and quash Memorandum dated 19.08.2015 for sanction of 61 days E.L. w.e.f. 01.08.2013 to 30.09.2013 and ex post facto sanction of 212 days EOL w.e.f. 01.10.2013 to 30.04.2014 by the respondents to the applicant as the applicant was having 430 days CCL at her credit at that point of time.
iii) Directions to the respondents for grant of 273 days of Child Care Leave by the competent authority as applied for by the applicant on 08.07.2013 from 01.08.2013 to 30.04.2014 for rearing and to look after twin kids of one and half years' age.
iv) Award appropriate cost in favour of the applicant for undue harassment and mental agony."
Brief facts of the case are that the applicant, who is a permanent Teacher of Delhi Government, is presently posted as Lecturer (Hindi) at Rajkiya Sarvodaya Kanya Vidyalaya, Kalyanvas, Delhi w.e.f. 20.01.2017. It is submitted that the twin children were born to the applicant on 07.01.2012. She applied for 273 days Child Care Leave (CCL) on 08.07.2013 for a period from 01.08.2013 to 30.04.2014 for rearing and looking after her one and half year old twin children. It is further submitted that to process her leave application, she was compelled by the Principal of the School (respondent no.4) to give an undertaking that in case her CCL is not sanctioned she may be given EL and if the EL is not adequate then extra ordinary leave may be granted to her, and only after giving such an undertaking, her application was forwarded for further action on 11.07.2013. It is also submitted that on 12.02.2014, the respondent no.4 asked the applicant to submit fresh application and she submitted applications for grant of CCL on 17.02.2014 and again on 28.04.2014 requesting for grant of 273 days CCL from 01.08.2013 to 30.04.2014. The CCL application of the applicant was not rejected by the competent authority during the leave period, but the applicant received letter dated 02.09.2014 after resuming her duties vide which her CCL application was rejected without any valid reason, which is illegal and arbitrary as the rejection order was not passed by the authority competent to grant or reject the leave. The applicant further submits that her application for grant of CCL was never placed before the competent authority i.e. Director of Education as the Regional Director of Education (respondent no.2) is competent to sanction only upto 180 days CCL. Aggrieved, the applicant made a representation to the Director of Education on 16.01.2015 for consideration but she was informed vide letter dated 18.08.2015 that her application for CCL has been turned down and that 61 days EL w.e.f. 01.08.2013 to 30.09.2013 has already been sanctioned by the Head of School and ex-post facto sanction for EOL of 212 days w.e.f. 01.10.2013 has been accorded by the competent authority. However, it is the contention of the applicant that she has never been informed about sanction of 61 days EL.
Aggrieved, the applicant again made a representation dated 24.09.2015 to the respondent no.1 to reconsider the said decision being violative of the Leave Rules. The respondent no.4 vide OM dated 10.02.2016 forwarded the copies of office notes intimating that the application for CCL has been rejected by the higher authorities and the leave cannot be sanctioned in fraction by different authorities at the same time. Here, the applicant submits that she has never applied for EOL rather she applied for CCL by giving an undertaking, as referred to above, under pressure. Moreover, the respondents have no authority to change the nature of leave applied for by an employee. The applicant also referred to DoP&T OM dated 29.09.1986 which provides to encourage the employees to take leave with clear instructions to the Ministries that leave should not ordinarily be denied especially during the last ten years of service of employee though Rule 7 provides that leave cannot be claimed as a matter of right. The applicant also submits that since she was having 430 CCL to her credit, there was no reason to apply either for EL or EOL. The applicant contends that in view of the submissions made above, the instant OA deserves to be allowed.
Respondents have filed the written statement rebutting the contents of the OA. The respondents have taken the ground that CCL or any other leave cannot be granted as a matter of right. They have submitted that the applicant was informed on 29.07.2013 by the Head of School that her CCL has not been granted and when asked about the leave to be marked on the attendance register, the applicant agreed for EL & EOL as mentioned in her second application dated 08.07.2013, that she was never pressured by the Head of School [HOS] to give an undertaking that if CCL could not be sanctioned to her, EL & EOL be granted to her. The respondents have further submitted that HOS vide letter dated 14.02.2014 directed the applicant to join the school immediately otherwise she would be marked absent but the applicant submitted another application dated 17.02.2014 again requesting for sanction of 273 days CCL from 01.08.2013 to 30.04.2014 which request of the applicant was turned down pursuant to direction of Regional Director of Education (East).
Heard the learned counsel for the parties and perused the material on record.
Rule 43-C deals with Child Care Leave, which provides as follows:-
"43-C. Subject to the provisions of this rule, a woman Government servant may be granted child care leave by an authority competent to grant leave for a maximum period of 730 days during her entire service for taking care of her two eldest surviving children, whether for rearing or for looking after any of their needs, such as education, sickness and the like.
(2) For the purposes of sub-rule (1). "child" means
(a) a child below the age of eighteen years: or
(b) a child below the age of twenty-two years with a minimum disability of forty per cent as specified in the Government of India in Ministry of Social Justice and Empowerment's Notification No.16-18/97-NI.I. dated the 1st June. 2001.
(3) Grant of child care leave to a woman Government servant under sub-rule (I) shall he subject to the following conditions namely:
(i) it shall not he granted for more than three spells in a calendar year:
(ii) it shall not he granted for a period less than fifteen days at a time: and
(iii) it shall not ordinarily be granted during the probation period except in case of certain extreme situations where the leave sanctioning authority is satisfied about the need of child care leave to the probationer. Provided that the period for which such leave is sanctioned is minimal.
(4) During the period of child care leave, the woman Government servant shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(5) Child care leave may he combined with leave of any other kind.
(6) Notwithstanding the requirement of production of medical certificate contained in sub-rule (I) of rule 30 or sub-rule (I) of rule 31, leave of the kind due and admissible (including commuted Leave not exceeding sixty days and Leave Not Due) upto a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).
(7) Child care leave shall not he debited against the leave account."
The applicant had duly applied for 273 days CCL on 08.07.2013 from 01.08.2013 to 30.04.2014 for rearing and looking after her one and half year old twins. The respondents instead of processing her leave application wanted an undertaking from the applicant that in case the CCL is not sanctioned, she may be given EL and if EL is not adequate then EOL may be granted to her. It is not clear to me as to under what provision of law such an undertaking was called for. It is understandable that if a mother desperately wants CCL, she will be ready to give any undertaking. Therefore, citing this undertaking as a reason for not granting CCL cannot be taken as a legal justification. She was finally informed vide order dated 02.09.2014 after she had availed the leave that she has not been sanctioned CCL and the reason given in this order was that she was asked to submit renewed applications on 17.02.2014 and 28.04.2014 and, therefore, the CCL applied by her was not granted. It was shown by the learned counsel for the applicant that the applicant had indeed submitted these two renewed applications but for CCL only. In these circumstances, it is not at all clear as to why CCL was denied to her when she was having sufficient number of CCL to her credit. This order even does not mention any administrative reason for the same.
Learned counsel for the respondents during the oral hearing cited Rule 7 of the CCS (Leave) Rules and argued that leave cannot be claimed as a matter of right. There could not be any disagreement with this statement. However, it is also equally necessary to establish that the leave was denied for a reasonable cause or for a reason which should stand judicial scrutiny of fairness and transparency. None of these is visible in the instant case. The provision of CCL was created for a specific reason. It was to ensure that the children born to government servants are not denied the opportunity to be reared and looked after by the parents while they were growing. The applicant had sought CCL because she had twins of one and half year of age. There could be no argument to suggest that the children at this tender age require mother's presence around them and, therefore, there was a strong justification for the leave to be granted to the applicant. I venture to observe that the respondents while refusing the leave to the applicant have shown lack of sensitivity in this matter. This matter of undertaking, on which the respondents have relied heavily to deny CCL to the applicant, reveals that the respondents were willing to grant the applicant leave but not the CCL. Obviously whatever may be the administrative exigency, they were agreeable to the applicant being on earned leave or extra ordinary leave then why not on CCL. This aspect of respondents' conduct defies logic and it does not even offer any credible explanation.
Given the above discussion, I have no hesitation in allowing the prayer of the applicant that she should be granted 273 days of CCL, as applied for by her on 08.07.2013 form 01.08.2013 to 30.04.2014 forthwith and any salary or allowance etc., if withheld or deducted on account of non-sanction of CCL, may be refunded/released to the applicant within a period of one month from the date of receipt of certified copy of this order. O.A. is accordingly allowed. Consequently, impugned orders dated 02.09.2014 and 19.08.2015 stand quashed and set aside. No costs.