The Kerala High Court, with Justice Alexander Thomas and Justice C. Jayachandran presiding, recently affirmed the decision of the Administrative Tribunal. They declared the Office Memorandum dated September 29, 2008, which limited Child Care Leave (CCL) to the two eldest surviving children and excluded the third child, as unconstitutional.
The Court recognized that CCL, like maternity benefits, is a beneficial provision intended to safeguard the rights and welfare of women and children, in accordance with Article 15(3) of the Constitution.
Brief Facts:
The applicant, who works as a Telecom Mechanic in the Palakkad Telecom Division, applied for Child Care Leave (CCL) for her third child. She took CCL for a total of 176 days between June 24, 2013, and October 10, 2015. However, the Accounts Officer directed her to regularize the CCL as earned leave and half-pay leave and recover the excess payment. The applicant filed a representation against this decision, which was dismissed.
The legal issue was whether CCL can be granted for the applicant's third child, considering her unique circumstances. The applicant was previously married and had two children from that marriage, but she didn't avail of any service benefits for them as they resided with her ex-husband. After her divorce, she married again and had a child from her second marriage. The applicant argued that she should be entitled to CCL for her third child since she didn't use CCL or any other service benefit for her first two children.
Contentions of the Appellant:
The applicant maintained that the order introducing CCL (Annexure-A4) in 2008 allows for a maximum of two years (730 days) of CCL for up to two children, without specifying that they must be the eldest. She considers the subsequent clarification (Annexure-A5(a)) that CCL is only applicable to the two eldest surviving children as arbitrary, discriminatory, and a violation of constitutional rights.
Contentions of the Respondent:
The respondents, representing the BSNL, argued that the CCL Rules do not differentiate between children based on marriages and only consider the two eldest surviving children. They asserted that remarriage should not affect the interpretation of the rule. They also clarify that the applicant had availed maternity leave benefits for her first two children from her previous marriage.
The 5th respondent, the Secretary to the Government of India, Department of Personnel & Training, filed an application to be removed from the case and include the Department of Telecommunications as an additional respondent. This application was dismissed. The 5th respondent emphasizes that Rule 43-C only grants benefits to the two eldest surviving children, aligning with the National Population Policy's two-child norm.
After analyzing the arguments and relevant rules, the Tribunal concluded that the clarification (Annexure-A5(a)) cannot modify the original order (Annexure-A4) as it would require a presidential order to do so. Therefore, the Tribunal invalidated the clarification and the communications (Annexures A1 and A2) that denied CCL to the applicant.
Observations by the Court:
The Court clarified that the Office Memorandum dated September 29, 2008 (referred to as 'Annexure A5(a)'), which stated that Child Care Leave (CCL) is applicable only to the two eldest surviving children and not the third child, assumes that CCL has been used for the two eldest children. The Court overturned the Tribunal's decision that deemed Annexure-A5(a) unconstitutional. The Court stated that the order of the children's birth is irrelevant, and Annexure-A5(a) does not intend to stigmatize the third child. It merely sets a financial limit on the extent of the benefit. The Court concluded that Annexure-A5(a) is not in conflict with the benefit outlined in Annexure-A4 or Rule 43-C. It only reiterates that the benefit is available for up to two children.
The Court noted that like maternity benefits, CCL is a beneficial provision aimed at protecting the interests of women and children, as envisioned in Article 15(3) of the Constitution. The Court recognized that Rule 43-C provides benefits from both the mother's and child's perspectives.
Upon examining Annexure-A4, incorporated in Rule 43-C, the Court determined that CCL is available for "two children," regardless of birth order. Annexure-A5(a) should be interpreted as restricting CCL to the two eldest surviving children if the benefit was already utilized for them. The Court emphasized that Annexure-A5(a) only reaffirms that the statutory upper limit of the benefit is limited to two children.
Based on this interpretation, the Court concluded that it is unnecessary to set aside Annexure-A5(a), particularly given the unique circumstances of the present case.
The decision of the Court:
The Court upheld the Tribunal's order granting CCL benefits to the applicant but modified it by not setting aside Annexure-A5(a).
Case Name: The Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr.
Coram: Justice Alexander Thomas and Justice C. Jayachandran
Case No.: O.P.(CAT)No.340 of 2017
Advocates of the Appellant: Sri.T.Sanjay
Advocates of the Respondent: Adv. T.V. Vinu, Adv. Govindaswamy T.C., and Adv. Nishitha Balachandran.
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