Dr. Purnima Mitra Pandey vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 27406 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:64772
 
Court No. - 7
 
Case :- WRIT - A No. - 5845 of 2023
 
Petitioner :- Dr. Purnima Mitra Pandey
 
Respondent :- State Of U.P. Thru. Prin. Secy. (Medical Health) And 2 Others
 
Counsel for Petitioner :- Indu Prakash Singh,Usha Tripathi
 
Counsel for Respondent :- C.S.C.,Ran Vijay Singh
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of the respondents no. 1 & 2 and Sri Ran Vijay Singh, learned counsel appearing on behalf of the respondent no. 3.

2. Sri Ran Vijay Singh, learned counsel appearing on behalf of the respondent no. 3 states that as only a short question of law is involved, as such, he does not intend to file any counter affidavit and prays that the matter may be decided on the basis of arguments as advanced. Consequently, the Court proceeds to decide the matter.

3. Instant writ petition has been filed praying for quashing of the order dated 09.06.2023 passed by the respondent no. 3, a copy of which is annexure 1 to the writ petition. A further prayer is for a Mandamus commanding the respondents to allow child care leave to the petitioner on account of the ongoing treatment of minor son of the petitioner.

4. The case set forth by the petitioner is that the petitioner is working as a Professor with the respondent no. 3 i.e Maharaja Suhel Dev Swashasi Rajya Chikitsa Mahavidyalaya Evam Maharshi Balark Chikitsalaya, Bahraich.

5. It is contended that the petitioner's son is suffering from Autism Spectrum Disorder owing to which he is enrolled in an integrated Early Intervention Program at Geniuslane Child Development Center, Lucknow. Copy of the certificate issued by the development center dated 17.11.2022 is annexure 3 to the writ petition.

6. It is contended that as certain complications have developed with the son of the petitioner consequently, the petitioner applied for child care leave before the authority concerned i.e the respondent no. 3. The said request has been turned down by means of the impugned order dated 09.06.2023, a copy of which is annexure 1 to the writ petition and hence the petition.

7. Learned counsel for the petitioner contends that a perusal of the order impugned dated 09.06.2023 would indicate that the respondent no. 3 while rejecting the request of the petitioner for grant of child care leave has placed reliance on an office memorandum dated 08.12.2008 to indicate that the female teachers working in Government and Aided Institution would not be entitled for child care leave and consequently, the application for child care leave given by the petitioner has been rejected.

8. Reliance has been placed on the UGC Regulations of Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (hereinafter referred to as "Regulations, 2018") to contend that Clause 8.4 (IX) of Regulations, 2018 specifically provides that women teacher having any minor child/children may be granted leave up to a period of two years for taking care of the minor child/children.

9. Placing reliance on Regulations, 2018 along with the Division Bench judgment of this Court in the case of Dr. Rachna Chaurasiya Vs State of U.P and Ors passed in Civil Misc. Writ Petition No. 24627 of 2017 decided on 29.05.2017, the contention is that the respondent no. 3 has patently erred in law while rejecting the application of the petitioner for child care leave despite the Regulations, 2018 and the judgment of this Court in the case of Dr. Rachna Chaurasiya (supra) specifically providing for grant of child care leave to the persons entitled for the same.

10. On the other hand, Sri Ran Vijay Singh, learned counsel appearing on behalf of the respondent no. 3 has justified the order impugned dated 09.06.2023 by contending that till such time the office memorandum dated 08.12.2008 continues to be operative, the petitioner would not be entitled for grant of child care leave.

11. Having heard the learned counsel appearing for the contesting parties and having perused the records what emerges is that admittedly the petitioner is working as a Professor with the respondent no. 3 Institution. Her child is suffering from Autism Spectrum Disorder. On account of certain complications that have arisen with her child, the petitioner applied for child care leave through various application praying for being granted child care leave for three months. The said application has been rejected vide order impugned dated 09.06.2023 by contending that as per office memorandum dated 08.12.2008, the female teachers working in the institution would not be entitled for child care leave.

12. The order impugned appears to be in gross violation of the Regulations, 2018 which categorically provides in Clause 8.4 (IX) of women teacher having minor child to be granted leave up to a period of two years for taking care of the minor child.

13. Even otherwise, this aspect of the matter has been considered by a Division Bench of this Court in the case of Dr. Rachna Chaurasiya (supra) wherein the Division Bench after considering a Government order issued by the State Government dated 11.04.2011 has held as under:-

"The aforesaid decision of the Central Government has been adopted by the State of U.P. for its employees vide Government Order dated 08.12.2008 and 24.03.2009. Subsequently, certain modifications being made by the Central Government, the same was also adopted by the State Government vide Government Order dated 11th April, 2011. The aforesaid Government Order is being reproduced hereunder.

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From a perusal of the aforesaid Government Orders, it is clear that the State Government has adopted same policy as is enforced by the Central Government for grant of Maternity Leave as well as Child Care Leave to its employees.

Maternity benefit is a social insurance and the Maternity Leave is given for maternal and child health and family support. On a perusal of different provisions of the Act, 1961 as well as the policy of the Central Government to grant Child Care Leave and the Government Orders issued by the State of U.P. adopting the same for its female employees, we do not find anything contained therein which may entitle only to women employees appointed on regular basis to the benefit of Maternity Leave or Child Care Leave and not those, who are engaged on casual basis or on muster roll on daily wage basis.

The aforesaid view taken by us find full support from the dictum of Hon'ble Apex Court in the case of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) & Anr., (2000) 3 SCC 224. It may be relevant to produce paragraph 27 from the said report.

"The provisions of the Act which have been set out above would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, specially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the foetus. It is for this reason that it is provided in the Act that she would be entitled to Maternity Leave for certain periods prior to and after delivery. We have scanned the different provisions of the Act, but we do not find anything contained in the Act which entitles only regular women employees to the benefit of Maternity Leave and not to those who are engaged on casual basis or on muster roll on daily wage basis."

We are of the considered opinion that the benefit under the Act as well as the Rules of the Government Orders providing for grant of Maternity benefits and Child Care leave are applicable to all female employees, irrespective of their nature of employment whether permanent, temporary or contractual.

In view of the aforesaid facts and discussions, order dated 20.05.2017 passed by respondent no. 3 denying Child Care Leave for a period of three months to the petitioner is arbitrary and violative of Articles 14 and 16 of the Constitution, cannot be sustained and is hereby quashed.

Accordingly, the writ petition stands allowed with the following directions.

1. Respondents are directed to grant Maternity Leave to the petitioner with full pay as applied within 8 weeks from today.

2. The respondent-State is also directed to grant Maternity Leave to all family employees with full pay for 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or contractual basis.

3. State-respondent is also directed to grant Child Care Leave of 730 days to all female employees, who are appointed on regular basis, contractual basis, ad hoc or temporary basis having minor children with the rider that the child should not be more than 18 years of age or older. "

14. Accordingly, when the order impugned dated 09.06.2023 is seen in the context of the Regulations, 2018 along with the Division Bench judgment of this Court in the case of Dr. Rachna Chaurasiya (supra) it emerges that Regulations, 2018 categorically provide for grant of child care leave to the women teachers. The Division Bench of this Court also in the case of Dr. Rachna Chaurasiya (supra) has directed the State Government to grant child care leave of 730 days to all female employees who are appointed on regular basis, contractual basis, adhoc or temporary basis. The petitioner is a regular employee of the respondent no. 3 and consequently, there cannot be any occasion for the respondents to have rejected the claim of the petitioner for grant of child care leave.

15. Keeping in view the aforesaid discussion, the writ petition deserves to be allowed and is allowed. A writ of certiorari is issued quashing the order dated 09.06.2023, a copy of which is annexure 1 to the writ petition. It is open for the petitioner to submit an application for grant of child care leave within three days from today. In case, such an application is given along with certified copy of this order then the respondent no. 3 shall proceed to decide the same in accordance with law and the discussion made above within a period of one week from the receipt of the said application along with certified copy of this order.

Order Date :- 6.10.2023

Pachhere/-