Employment LawSupreme Court allows CCL Leaves For Parents Of Differently Abled Children

The Hon’ble Supreme Court in the case of Shalini Dharmani v. The State of Himachal Pradesh & Ors.,[ SLP(C) No. 16864/2021], decided on 22.04.2024 directed the State of Himachal Pradesh to reconsider the grant of Child Care Leave to mothers, including making special provisions for mothers raising children with special needs, in accordance with the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as “RPWD Act”)

FACTS OF THE CASE

Shalini Dharmani (hereinafter referred to as ‘the Petitioner’), is an Assistant Professor at Government College, Nalagarh  and  has a 14-year-old son who suffers from a rare genetic disorder called Osteogenesis Imperfecta, requiring continuous medical treatment and surgical interventions.

Due to her son’s medical condition, the Petitioner had exhausted all her sanctioned leave. She sought Child Care Leave (hereinafter referred to as ‘CCL’) under Rule 43-C of the Central Civil Services (Leave) Rules, 1972 (hereinafter referred to as “CCS Leave Rules”), which allows women government servants to avail CCL for children under 18 years of age.

An Office Memorandum issued by the Union Government on 03.03.2010 extended the CCL provision for women having children suffering from disability up to an age of 22 years. However, it was informed to the Petitioners by the Principal of Government College on 16.11.2018 that the said provisions had not been adopted by the State of Himachal Pradesh for CCL, and hence her request could not be sanctioned.

She filed a writ petition before the Hon’ble Himachal Pradesh High Court under Article 226 of the Constitution of India (hereinafter referred to as “COI”) praying for adoption of Rule 43-C of the CCL Leave Rules, after rejection of her representation. However, the Hon’ble High Court dismissed the Petition on the ground that the State of Himachal Pradesh had deleted Rule 43-C of CCL Leave Rules.

ISSUES BEFORE THE SUPREME COURT

1. Whether the Petitioner is entitled to CCL under Rule 43-C of the CCS Leave Rules despite the Himachal Pradesh government not adopting the rule?
2. Whether the extension of CCL from 18 to 22 years for differently abled children applies to the Petitioner’s case?
3. Whether the denial of CCL violates the Petitioner’s constitutional rights under Articles 14, 15, 19(1)(g), and 21 of COI?
4. Whether the State of Himachal Pradesh should reconsider its policy on CCL, particularly considering the RPWD Act ?

CONTENTIONS OF THE PARTIES

The Petitioner argued that Rule 43-C of the CCS Leave Rules should be applicable to her, as it provides CCL for up to two years (730 days) for the care of minor children. She further relied on the extension of CCL from 18 to 22 years for mothers with differently abled children, which should apply in her case.

The Petitioner contended that the refusal of CCL by the Himachal Pradesh government violated her constitutional rights to equality as per Article 14 of the COI , is discriminatory  as per Article 15 of the COI , and the right to life and dignity Article 21 of the COI.

The Petitioner also invoked the RPWD Act, which emphasizes the welfare and support for persons with disabilities and their families, arguing that the state’s policy should align with the principles of the RPWD Act.

The Respondents submitted that the State of Himachal Pradesh had deleted Rule 43-C of the CLL Leave Rules and as such, the Petitioner could not claim the benefit of CCL.

The Respondent contented that since the State government had its own leave policies, it was under no obligation to follow the provisions of the CCL Leave Rules as adopted by the Union Government.

DECISION AND FINDINGS

The Hon’ble Supreme Court noted that Rule 43-C of the CCL Leave Rules had been deleted by the State of Himachal Pradesh. Thus, the provision for CCL up to 22 years of age for differently abled children under the Union Government’s policy did not apply in the state. However, the Hon’ble Court recognized that the Petition raises a serious issue about the participation of women in the workforce and the special needs of mothers with differently abled children.

 The Hon’ble Court also emphasized that a mother’s participation in the workforce is a constitutional entitlement protected under Articles 14, 15, 19(1)(g), and 21 of the COI. It is the responsibility of the state, as a model employer, to ensure that women are not deprived of opportunities due to the absence of supportive policies like CCL. This consideration is even more pressing in the case of a mother with a child with special needs, like the Petitioner.

The Hon’ble Court directed the State of Himachal Pradesh to reconsider the entire policy regarding the grant of CCL. It ordered the state to form a committee chaired by the Chief Secretary to review the matter considering the RPWD Act, and the state’s obligations under constitutional law. The Committee was directed to include the State Commissioner under the RPWD Act, the Secretary in the Women and Child Development Department, and the Secretary in the Social Welfare Department. The Committee would engage with the Union Government to ensure a comprehensive review.  The Hon’ble Court ordered that the Committee’s report should be submitted by 31.07.2024, both to the competent authority and to the Court, so that an informed policy decision can be made expeditiously.

Pending the final decision, the Hon’ble Court ordered that the Petitioner’s special leave application under Rule 32 of the CCL Leave Rules should be favourably considered by the competent authorities, providing her temporary relief.

AMLEGALS Remarks

This judgment reflects the progressive stance of the Hon’ble Supreme Court in protecting the employment rights of women, especially mothers of children with disabilities. In so doing, by way of its order, when the Himachal Pradesh government has been directed to reconsider the provisions of CCL, the Hon’ble Court places not only an importance on parental care but also emphasizes policies that are consonant with constitutional guarantees of equality and dignity.

This case underlines the need for governments to harmonize policies on employment with the needs of working parents, so that parents with children who have special needs are not thrown into making a choice between professional and parental duties.

– Team AMLEGALS