KAKALI GHOSHversusCHIEF SECRETARY, ANDAMAN & NICOBAR ADMINISTRATION AND ORS.

                       (2014) 14 S.C.R. 334


A                        KAKALI GHOSH
                                 v.
         · CHIEF SECRETARY, ANDAMAN & NICOBAR
                   ADMINISTRATION AND ORS.
B
                  (Civil Appeal No. 4506 of 2014)
                                  •
                        . APRIL 15, 2014.
          [SUDHANSU JYOTI MUKHOPADHAYA AND
                  · V. GOPALA GOWDA, JJ.]
C        Service Law:
          Child Care Leave (CCL) - 'Claim of appellant for 730
    days of child care leave in continuity - Held: In the instant
    case, respondents have not shown any reason to refuse
  .
0 730 days continuous leave - Order of Central Administrative
    Tribunal to act strictly in accordance with OOPT O.M. dated
 · 11.9.2008 as amended/clarified on 29.9.2008 and
    18.11.2008, granting the appellant CCL for the due period
    affirmed with a direction to respondents to comply with
E directions issued by Tribunal - Central Civil Services
    (Leave) Rules, 1972-rr. 43-C (3) and (4).
       In the instant appeal, the question for consideration
  before the Court was: whether a woman employee of
  the Central Government could ask for uninterrupted 730
F days of Child Care Leave {CCL) under r. 43-C of the
  Central Civil Services (Leave) Rules, 1972.
         Allowing the appeal, the Court
        HELD: 1.1 From a plain reading of sub rr. (3) and (4)
G of r. 43-C of the Central Civil Services (Leave) Rules,
  1972, it is clear that CCL even beyond 730 days can be
   granted by combining other leave if due. However,
  .under sub-r. (2) of r. 7, leave can be refused or revoked


H
                                334
KAKALI GHOSH v. CHIEF SECY., ANDAMAN & NICOBAR 335
                     ADMN.

by the competent authority in the case of exigencies of A
public service. [Para 13and15][341-A, G]
      1.2 In the.instant case, the appellant claimed for
730 days of CCL at a stretch to ensure success of her
son in th3; forthcoming secondary/senior examinations B
(10th /11 standard). The competent authority allowed
45 days of CCL in favour of the appellant. However, no
reason has been shown for disallowing rest of the period
of leave. [Para 14][341-C-D]
     1.3 The finding of the High Court is based neither c
on r. 43-C nor on guidelines issued by the Central
Government. The Tribunal was correct in directing the
respondents to act strictly in accordance with the
guidelines issued by the Government of India and r. 43-
C. The impugned judgment dated 18.09.2012, passed D
by the Division Bench of the High Court, is set aside
and the judgment and order dated 30.04.2012, passed
by the Tribunal is affirmed with a direction to the
respondents to comply with the directions issued by
the Tribunal. [Paras 13 and 18][341-B; 342-D-E]
                                                        E
     CIVILAPPELLATE JURISDICTION: Civil Appeal No.
4506 of 2014.
      From the Judgment and Order dated 18.09.2012 of
the Calcutta High Court, Port Blair Circuit Bench at Port
Blair in WPCT No. 550 of 2012.                              F
      Divya Jyoti Jaipuriar, Mrs. Bhuvneshwari Devi,
Jag dish Kumar Chawla, Advs., for the Appellant.
     Balasubramanian, K. V. Jagdishvaran, Mrs. G. Indira,
Advs., for the Respondents.                                 G
     The Judgm!'lnt of the Court was delivered by
      SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
granted.
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336         SUPREME COURT REPORTS                  (2014] 14 S.C.R.


A            2. This appeal has been directed against the judgment
      dated 1ath September, 2012 passed by the High Court of
      Calcutta, Circuit Bench at Port Blair. By the impugned judgment,
      the Division Bench of the Calcutta High Court allowed the writ
      petition and set aside the judgment and order dated 30th April,
B     2012 passed by the Central Administrative Tribunal Calcutta,
      Circuit Bench at Port Blair (hereinafter referred to as, 'the
      Tribunal').                         ·
          . 3. The only question which requires to be determined in
    this appeal is whether a woman employee of the Central
C Government can ask for uninterrupted 730 days of Child Care
  · Leave (hereinafter referred to as, - 'the CCL') under Rule 43-
    C of the Central Civil Services (Leave) Rules, 1972 (hereinafter
    referred to as, 'the Rules').
D       4. The appellant initially applied for CCL for.six months
  commencing from 5th July, 2011 by her letter dated 15th May,
  2011 to take care of her son who was in 10th standard. In her
  application, she intimated that she is the only person to look
  after her minor son and her mother is a heart patient and has
E not recovered from the shock due to the sudden demise of her
  father; her father-in-law is almost bed ridden and in such
  circumstances, she was not in a position to perform her duties
  effectively. While her application was pending, she was
  transferred to Campbell Bay in Nicobar District (Andaman and
F Nicobar) where she joined on oath July, 2011. By·her
  subsequent letter dated 14th February, 2012 she requested
  the competent authorify to allow her to avail CCL for two years
  commencing from 21st May, 2012. However, the authorities
  allowed only 45 days of CCL by their Office Order No. 254
G dated 15th March, 2012.               ·
           5. Aggrieved appellant then moved before the Tribunal in
      O.A. No.47/A&N/2012 which allowed the application by order
      dated 30th April, 2012 with following observation:-

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KAKALI GHOSH v. CHIEF SECY., ANDAMAN & NICOBAR 337
   ADMN. [SUDHANSU JYOTI MUKHOPADHAYA, J.]

   · "12. Thus O.A. is allowed. Respondents are accordingly A .
     directed to act strictly in accordance with DOPT O.M.
     dated 11. 9.2008 as amended/clarified on 29.9.2008 and
     18. 11. 2008, granting her CCL for the due period. No
     costs."
      6. The order passed by the Tribunal was challenged by 8
respondents before the Calcutta HLQh Court which by impugned
judgment and order dated 1stl'I September, 2012 while
observing that leave cannot be claimed as a right, held as .
follows:
                                                                      c
      "It is evident from the provisions of sub r. (3) of r.43-C of
     the rules that CCL can be granted only according to
     the conditions mentioned in the sub-rule, and that one
     of the conditions is that CCL shall not be granted for
                                 a
     more than three spells in calendar year. It means that 0
     CCL is not to be granted for a continuous period, but
     only in spells.
     From the provisions of sub r. (3) of r. 43-C of the rules it
     is also evident that a spell of CCL can be for as less as
     16 days. This means that in a given case a person,               E
     though eligible to take CCL for a maximum period of
     730 days, can be granted CCL in three spells in a
     calendar ye_ar for as less as 48 days."
     The High Court further observed:
                                                                      F
     "Whether an eligible person should be granted CCL at
     all, and, irso, for what period, are questions to be
     decided by the competent authority; for the person is to
     work in the interest of public service, and ignoring public
     service exigencies that must prevail over private G
     exigencies no leave can be granted.•
      7. Learned counsel for the appellant submitted that there
is no bar to grant uninterrupted 730 days of CCL under Rule
43-C. The High Court was not justified in holding that CCL can
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338          SUPREME COURT REPORTS                   [2014] 14 S.C.R.


A 'be granted n three spells in a calendar year as less as 48
   days at a time. It was also contended that the respondents
   failed to record ground to deny uninterrupted CCL to appellant
   for the rest of the period.
            8. Per contra, according to respondents, Rule43-C does
8
       not permit uninterrupted CCL for 730 days as held by the High
      ·Court.                          ·
             9. Before we proceed to discuss the merits or otherwise
       of the above contentions, it will be necessary for us to referthe
C      relevant Rule and the guidelines issued by the Government of
       India from time to time ..
        10. The Government of India from its Department of
  Personnel and Training vide O.M. No. 13018/2/2008-Estt. (L)
  dated 11th September, 2008 intimated that CCL can be
D granted for maximum period of 730 days during the entire
  service period to a woman government employee for taking
  care of up to two children, relevant portion of which reads as
  follows:
             "(1) Child Care Leave for 730 days.
E
             ***
            Women employees having minor children may be
            granted Child Care Leave by an authority competent
            to grant leave, fora maximum period of two years (i.e.
 F          730 days) during their 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. Child
            Care Leave shall not be admissible if the child is
            eighteen years of age or older. During the period of such
G           leave, the women employees shall be paid leave salary
            equa!Jo the pay drawn immediately before proceeding
            on leave. It may be availed of in more. than one spell.
            Child Care Leave shall not be debited against the leave
            account. Child Care Leave may also be allowed for
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 KAKALI GHOSH v. CHIEF SECY., ANDAMAN & NICOBAR                  339
    ADMN. [SUDHANSU JYOTI MUKHOPADHAYA, J.]

      the third year as leave not due (without production of A
      mec/Jcal certificate). I~ combined with leave of
      the kind due and admissible."
        11. It was followed by Circular issued by Government of
. India from its Personnel and Training Department vide O.M.
  No.13018/2/2008- Estt. (L), dated 29th September, 2008. 8
  by which it was clarified that CCL would be also admissible to
  a woman government employee to look after third child below
 18 years of age, which is as follows:
      "(2)-Clarifications:-                                      c
      The question as to whether child care leave would be
      admissible for the third child below the age of 18 years
      and the procedure for grant of child care leave have
      been under consideration in this Department, and it has
      now been decided as follows:-                            D
      (i) Child Care Leave shall be admissible for two eldest
      surviving children only.
      (ii) The leave account for child care leave shall be
      maintained in the pro forma enclosed, and it shall be      E
      kept along with the Service Book of the Government
      Servant concerned. "
       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,      F
 published in G.S:R. No. 170 in the Gazette of India dated 5th
 December, 2009 giving effect from 1st September, 2008 as
 ql!oted below:-
      "43-C. Child Care Leave                                    G
      (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
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340      SUPREMECOWRTREPORTS                     [2014J 14 s:c.R.


A        period of two ye~, i.e. 730 days during the entire .
         servicefor taking c~tip 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
B        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.
c         (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
D       · 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
         orie spell.

 E       (6) Child care leave shall' not be debited against the
         leave account."
         13. On perusal of circulars and Rule43-C, it is apparent
   that a woman government employee having minor children
   below 18 years can avail CCL for maximum period of 730
F days i.e. during the entire service period for taking care of
   upto two children. The care of children is not for rearing the
   smaller child but also to look after any of their needs like
   examination, sickness etc. Sub Rule (3) of Rule43-C allows
   woman government employee to combine CCL with leave of
G any other kind. Under Sub Rule (4) of Rule43-C leave of the
   kind due and admissible to woman government employee
  ·including commuted leave not exceeding 60 days; leave not
   due up to a maximum of one year, can be applied for and
   granted in continuation with CCL granted under Sub Rule (1 ).
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 KAKALI GHOSH v. CHIEF, SECY., ANDAMAN & NICOBAR 341
    ADMN. [SUDHANSU JYOTI IVIUKHOPADHAYA, J.J

  From plain reading of Sub Rules(~) and (4) of Rule 43-C it is     A
  clear that CCL even beyond 730 days can be granted by
  combining other leave if due. The finding of the High Court is
. based neither on Rule 43-C. nor on guidelines issued by the
  Central Government. The Tribunal was correct in directing the:
  respondents to act strictly in accordance with the guidelines     B
  issued by the Government of India and Rule43-C. ·
       14. In the present case, the appellant claimed for 730
 days of CCL at a stretch to ensure success of he(son in the
 forthcoming secondary/senior examinations (1oth111th c
 standard). It is not in dispute that son was minor below 18 years
 of age when she applied for CCL. This is apparent from the
 fact that the competent authority allowed 45 days of CCL in
 favour of the appellant. However, no reason has been shown
 by the competent authority for disallowing rest of the period of D
 leave.
      15. Leave cannot be claimed as of right as per Rule 7,
 which reads as follows:
       "7. Right to leave
                                                                    E
          (1) Leave cannot be claimed as of right.
          (2) When the exigencies of public service so require,
          leave of any kind may be refused or revoked by the
          authority competent to grant it, but it shall not be open
          to that authority to alter the kind .of leave due and F
          applied for except at the written request of the
          Government servant."
      However, under Sub-Rule (2) of Rule 7 leave can be
 refused or revoked by the competent authority in the case of G
 exigencies of public service.
       16. In fact, Government of India from its Ministry of Home
 Affairs and Department of Personnel and Training all the time
 encourage the government employees to take leave regularly,
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342         SUPREME COURT REPORTS                [2014] 14 S.C.R.


A preferably annually by its Circular issued by the Government
  of India M.HA.0.M. No. 6/51/60-Ests. (A), dated 25th January,
  1961, reiterated vide Government of India letter dated 22127tll
  March, 2001.As per those circulars where all applications for
  _leave cannot, in the interest of public service, be granted at
B the same time, the leave sanctioning authority may draw up
  phased programme for the grant of leave to the applicants by .
  turn with due regard to the principles enunciated under the
  aforesaid circulars.
            17. In the present case the respondents have not shown
C     any reason to refuse 730 days continuous leave. The grounds
      taken by them and as held by High Court cannot be accepted
      for the reasons mentioned above.
        18. For the reasons aforesaid, we set aside the impugned
  judgment dated 1ath September, 2012 passed by the Division
0
  Bench of Calcutta High Court, Circuit Bench at Port Blair and
  affirm the judgment and order dated 30th April, 2012 passed
  by the Tribunal with a direction to the respondents to comply
  with the directions issued by the Tribunal within three months
E from the date of receipt/production of this judgment.
            19. The appeal is allowed with aforesaid directions. No
      costs.


      Rajendra Prasad                                Appeal allowed.