शिशु पालन अवकाश 1 साल की मांग में एकतरफा कटौती कर 1 महीने को करने पर कोर्ट ने जताई नाराजगी , सरकारी पक्ष ने बताया ट्रांसफर से बचने का तरीका , लेकिन कोर्ट ने समीक्षा कर 1 साल शिशु पालन अवकाश मान्य किया
Madras High Court
K.Subha vs The Deputy Inspector General Of ... on 4 March, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2013
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.31503 of 2012
K.Subha .. Petitioner
Vs.
1.The Deputy Inspector General of Police,
Group Centre, Central Reserve Police Force,
Avadi, Chennai
Tamil Nadu.
2.The Inspector General of Police,
Central Reserve Police Force,
Banjara Hills Southern Sector,
Andhra Pradesh.
3.The Director General of Police,
Central Reserve Police Force,
CGO Complex Lodhi Road,
New Delhi. .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to extend the child care leave from 30 days sanctioned on the first respondent's letter dated Nil 10.2012 No.L.11.,16/2012 SRC-1-GC to one year.
For Petitioner : Ms.Kovi Ramalingam
For Respondents : Mr.S.Udayakumar, SCGSC
for RR1 to 3
- - - -
ORDER
In this writ petition, the petitioner seeks for a direction to the respondents to extend the child care leave from 30 days sanctioned on the first respondent's letter dated Nil (October, 2012) to one year.
2.The petitioner is working as a Sub Inspector of Police in the Central Reserve Police Force and at present, she is posted at Group centre, Avadi. On 8.8.2012, she wrote to the first respondent Deputy Inspector General of Police, Group Centre, CRPF, Avadi, seeking for sanction of one year child care leave in accordance with the CCL Leave Rules, 1972. She informed the first respondent that she has two daughters, who are 15 years and 8 years respectively. The first daughter Priyanka requires personal attention by her and that her presence at home is very much necessary. Therefore, she sought for sanction of one year leave and necessary leave application was also sent by her. The petitioner was informed by an order dated 01.09.2012 that she was transferred to join ATC-Ranga Reddy on 03.09.202 pursuant to the order passed by the Inspector General of Police, SS, CRPF, Hyderabad. Subsequent to the petitioner sending leave letter, the first respondent informed her by an order dated 08.09.2012 that her child care leave for one year was not granted by the competent authority due to shortage of staff.
3.The petitioner had issued a legal notice reiterating her desire of availing child care leave as the children of the petitioner was suffering due to illness. Thereafter, she filed a writ petition before this court being W.P.No.26690 of 2012 challenging the order of rejection of child care leave and after setting aside the same, seeks for a direction to sanction child care leave applied by her. Her request was resisted by the respondent by stating that the medical certificate produced by her has to be verified. At times, some employees to avoid transfer produce fake medical certificates. This court by an order dated 03.10.2012 had disposed of the writ petition and the order dated 08.09.2012 was set aside and the matter was remitted to the first respondent, who was directed to consider the claim of the petitioner in the light of the medical records to be produced by her and also to consider her claim and pass final orders. In the meanwhile, the petitioner produced the medical certificate from the renowned Psychiatrist stating that her daughter Priyanka was suffering from Bi Polar Disorder and was taking treatment from him since January 2012. This treatment will take some time and it requires supervision.
4.But, by an order dated Nil (October, 2012), the first respondent informed the petitioner's counsel in the following lines :
"REGARDING W/P NO.26690/2012 FILED BY SI/M K.SUBHA SANCTION OF CHILD CARE LEAVE Reference your letter dated 16/10/12.
02.The petitioner No.911550514 SI(M) K.Subha of this office has already availed 35 days of Earned Leave and 13 days of Casual leave during this year. She was detailed to proceed to ATC, CRPF, Rangareddy w.e.f 3/9/12 (AN) on attachment duty vide this office order No.T.IX.13/2012-EC-3 dated 01/09/2012 and the copy of the Office Order was also served to her on the same day. She is absenting from duty w.e.f 3/9/12 (last 47 days)
03.As mentioned above she has already availed 35 days EL, 13 days CL and remained absent from duty for 47 days. However, considering the orders of the Honourable High Court, the petitioner No.911550514 SI(M) K.Subha is hereby sanctioned one month Child Care Leave w.e.f 20/10/2012 to 18/11/12. Since she is not available in the home address given by the petitioner and her parents/relatives are not receiving any correspondence send to her through special messenger, she may be conveyed about the sanction of 30 days Child Care Leave sanctioned to her w.e.f 20/10/2012 to 18/11/12."
5.But, however, in doing so, the first respondent did not really adhere to the directions issued by this court, wherein the order of rejection of leave was set aside and the first respondent was directed to consider the claim of the petitioner in the light of the medical records produced by the petitioner and to pass final orders. There was no reference to any medical records being considered by the respondents. He simply stated that leave from 20.10.2012 to 18.11.2012 was granted for a period of 30 days. This is not the way to respect the order of this court. If the respondent is satisfied that the petitioner's request based on medical records is genuine, then curtailing leave to 30 days is unwarranted. The petitioner after the receipt of the said order, sought for extension of child care leave for one year and came to file this writ petition.
6.When the matter came up on 27.11.2012, this court ordered notice of motion. On notice, the respondents have filed a counter affidavit, dated Nil (December, 2012) with supporting documents annexed to the counter. In fact, for the first time, in paragraph 27 of the counter, it was stated that the petitioner did not produce any authentic medical documents and that she had only submitted prescription slips from a private doctor, which were not valid supportive documents for further processing the case. It was further stated that there are more than 30 women employees waiting for their turn to avail child care leave in the office. Sanctioning more than 125 days leave to a particular employee is not a fair manner as the other women employees will approach the higher authorities or the court of law for such type of special concession which will hammer the administration. It was also stated that without prior approval of the competent authority, such leave cannot be given. The petitioner had already availed 125 days leave continuously without realising her role and responsibility in the organization and it had disturbed the administration.
7.Mr.S.Udayakuamr, learned Senior Central Government Standing Counsel also referred to a judgment of the Supreme Court in State of Punjab and others Vs. Dr.Sanjay Kumar Bansal reported in (2009) 15 SCC 168 to contend that the court cannot sit in the appeal over the administrative exigencies and the leave has to be granted only by the administration.
8.Per contra, Ms.Kovi Ramalingam, learned counsel for the petitioner referred to a circular issued by the Ministry of Home Affairs, dated 27.09.2011 in terms of similar leave rules and in paragraphs 2 and 3, the following guidelines were given by the Ministry :
"2.While the instructions provide that Child Care Leave cannot be demanded as a matter of right and is to be treated like Earned Leave and sanctioned as such, keeping in view that this leave is to be granted to women employees for rearing or to look after any of the needs of their children like examination, sickness etc., a more humane view needs to be taken when lady personnel apply for grant of this leave.
3.It is, therefore, requested that as far as possible lady personnel in all the CAPFs may be granted Child Care Leave subject to the conditions laid down in the instructions issued by DoPT on the subject."
9.In fact, even after refusal of leave, the first respondent had written to the Principal of the School, wherein the petitioner's child Priyanka was studying, by a communication, dated 04.12.2012. Out of 7 queries made by the first respondent, 6th query related to behavior report of the child. The Principal of the School, i.e., Velankanni Matriculation Higher Secondary School, Chennai-600 083, with reference to the specific question had stated that some times, the child behaves in abnormal fashion. Therefore, the statement made by the respondents that the mental condition of the petitioner's first daughter was not proved cannot be accepted as the first respondent himself made an enquiry and got an answer regarding the mental condition of the child.
10.The relevant rule relating to child care under the All India Services (Leave) Rules, 1955 may be usefully reproduced below. Rule 18(D) was introduced with effect from 21.09.2011. The child care leave is given to a female member of the service. Rule 18(D) reads as follows :
"18(D)Child Care Leave to a female member of the Service--(1)A female member of the Service having minor children below the age of eighteen years may be granted child care leave by the competent authority for a maximum of 730 days during her entire service for taking care of upto two children.
(2)During the period of child care leave, such member shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(3)Child care leave may be combined with leave of the kind due and admissible.
(4)Notwithstanding the requirement of production of medical certificates contained in sub-rule (1) of rule 13 or rule 14, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation of child care leave granted under sub-rule(1).
(5)Child care leave may be availed in more than one spell.
(6)Child care leave shall not be debited against the leave account of the member of the Service."
11.When once there was a direction by this court to consider the petitioner's request in the light of the certificates produced by her and that the order refusing to grant leave was set aside and the first respondent having considered the same, cannot make adhoc sanction considering a part of the request of the petitioner and denying the rest of the part without any justification. The reason that the other employees may seek for such leave is an irrelevant consideration in deciding the case of the petitioner. The petitioner has admittedly produced the certificate from the well known Psychiatrist that her child was suffering from Bi Polar disorder and undergoing treatment. She is a girl child aged 15 years and she requires the attention of the petitioner. Therefore, sanctioning of leave only by considering the partial request cannot be justified.
12.Under these circumstances, the respondents are directed to grant leave to the petitioner as requested by her. Though this court is conscious of the fact that the court cannot sit in the appeal over the decision of the administrative authority, but the respondents persistently defied the orders passed by this court. Hence there is no other option except to interfere with the arbitrary exercise of power by the respondents.
13.In the light of the above, the writ petition will stand allowed to the extent indicated above. No costs.
vvk To
1.The Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Avadi, Chennai Tamil Nadu.
2.The Inspector General of Police, Central Reserve Police Force, Banjara Hills Southern Sector, Andhra Pradesh.
3.The Director General of Police, Central Reserve Police Force, CGO Complex Lodhi Road New Delhi
Madras High Court
K.Subha vs The Deputy Inspector General Of ... on 4 March, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2013
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.31503 of 2012
K.Subha .. Petitioner
Vs.
1.The Deputy Inspector General of Police,
Group Centre, Central Reserve Police Force,
Avadi, Chennai
Tamil Nadu.
2.The Inspector General of Police,
Central Reserve Police Force,
Banjara Hills Southern Sector,
Andhra Pradesh.
3.The Director General of Police,
Central Reserve Police Force,
CGO Complex Lodhi Road,
New Delhi. .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to extend the child care leave from 30 days sanctioned on the first respondent's letter dated Nil 10.2012 No.L.11.,16/2012 SRC-1-GC to one year.
For Petitioner : Ms.Kovi Ramalingam
For Respondents : Mr.S.Udayakumar, SCGSC
for RR1 to 3
- - - -
ORDER
In this writ petition, the petitioner seeks for a direction to the respondents to extend the child care leave from 30 days sanctioned on the first respondent's letter dated Nil (October, 2012) to one year.
2.The petitioner is working as a Sub Inspector of Police in the Central Reserve Police Force and at present, she is posted at Group centre, Avadi. On 8.8.2012, she wrote to the first respondent Deputy Inspector General of Police, Group Centre, CRPF, Avadi, seeking for sanction of one year child care leave in accordance with the CCL Leave Rules, 1972. She informed the first respondent that she has two daughters, who are 15 years and 8 years respectively. The first daughter Priyanka requires personal attention by her and that her presence at home is very much necessary. Therefore, she sought for sanction of one year leave and necessary leave application was also sent by her. The petitioner was informed by an order dated 01.09.2012 that she was transferred to join ATC-Ranga Reddy on 03.09.202 pursuant to the order passed by the Inspector General of Police, SS, CRPF, Hyderabad. Subsequent to the petitioner sending leave letter, the first respondent informed her by an order dated 08.09.2012 that her child care leave for one year was not granted by the competent authority due to shortage of staff.
3.The petitioner had issued a legal notice reiterating her desire of availing child care leave as the children of the petitioner was suffering due to illness. Thereafter, she filed a writ petition before this court being W.P.No.26690 of 2012 challenging the order of rejection of child care leave and after setting aside the same, seeks for a direction to sanction child care leave applied by her. Her request was resisted by the respondent by stating that the medical certificate produced by her has to be verified. At times, some employees to avoid transfer produce fake medical certificates. This court by an order dated 03.10.2012 had disposed of the writ petition and the order dated 08.09.2012 was set aside and the matter was remitted to the first respondent, who was directed to consider the claim of the petitioner in the light of the medical records to be produced by her and also to consider her claim and pass final orders. In the meanwhile, the petitioner produced the medical certificate from the renowned Psychiatrist stating that her daughter Priyanka was suffering from Bi Polar Disorder and was taking treatment from him since January 2012. This treatment will take some time and it requires supervision.
4.But, by an order dated Nil (October, 2012), the first respondent informed the petitioner's counsel in the following lines :
"REGARDING W/P NO.26690/2012 FILED BY SI/M K.SUBHA SANCTION OF CHILD CARE LEAVE Reference your letter dated 16/10/12.
02.The petitioner No.911550514 SI(M) K.Subha of this office has already availed 35 days of Earned Leave and 13 days of Casual leave during this year. She was detailed to proceed to ATC, CRPF, Rangareddy w.e.f 3/9/12 (AN) on attachment duty vide this office order No.T.IX.13/2012-EC-3 dated 01/09/2012 and the copy of the Office Order was also served to her on the same day. She is absenting from duty w.e.f 3/9/12 (last 47 days)
03.As mentioned above she has already availed 35 days EL, 13 days CL and remained absent from duty for 47 days. However, considering the orders of the Honourable High Court, the petitioner No.911550514 SI(M) K.Subha is hereby sanctioned one month Child Care Leave w.e.f 20/10/2012 to 18/11/12. Since she is not available in the home address given by the petitioner and her parents/relatives are not receiving any correspondence send to her through special messenger, she may be conveyed about the sanction of 30 days Child Care Leave sanctioned to her w.e.f 20/10/2012 to 18/11/12."
5.But, however, in doing so, the first respondent did not really adhere to the directions issued by this court, wherein the order of rejection of leave was set aside and the first respondent was directed to consider the claim of the petitioner in the light of the medical records produced by the petitioner and to pass final orders. There was no reference to any medical records being considered by the respondents. He simply stated that leave from 20.10.2012 to 18.11.2012 was granted for a period of 30 days. This is not the way to respect the order of this court. If the respondent is satisfied that the petitioner's request based on medical records is genuine, then curtailing leave to 30 days is unwarranted. The petitioner after the receipt of the said order, sought for extension of child care leave for one year and came to file this writ petition.
6.When the matter came up on 27.11.2012, this court ordered notice of motion. On notice, the respondents have filed a counter affidavit, dated Nil (December, 2012) with supporting documents annexed to the counter. In fact, for the first time, in paragraph 27 of the counter, it was stated that the petitioner did not produce any authentic medical documents and that she had only submitted prescription slips from a private doctor, which were not valid supportive documents for further processing the case. It was further stated that there are more than 30 women employees waiting for their turn to avail child care leave in the office. Sanctioning more than 125 days leave to a particular employee is not a fair manner as the other women employees will approach the higher authorities or the court of law for such type of special concession which will hammer the administration. It was also stated that without prior approval of the competent authority, such leave cannot be given. The petitioner had already availed 125 days leave continuously without realising her role and responsibility in the organization and it had disturbed the administration.
7.Mr.S.Udayakuamr, learned Senior Central Government Standing Counsel also referred to a judgment of the Supreme Court in State of Punjab and others Vs. Dr.Sanjay Kumar Bansal reported in (2009) 15 SCC 168 to contend that the court cannot sit in the appeal over the administrative exigencies and the leave has to be granted only by the administration.
8.Per contra, Ms.Kovi Ramalingam, learned counsel for the petitioner referred to a circular issued by the Ministry of Home Affairs, dated 27.09.2011 in terms of similar leave rules and in paragraphs 2 and 3, the following guidelines were given by the Ministry :
"2.While the instructions provide that Child Care Leave cannot be demanded as a matter of right and is to be treated like Earned Leave and sanctioned as such, keeping in view that this leave is to be granted to women employees for rearing or to look after any of the needs of their children like examination, sickness etc., a more humane view needs to be taken when lady personnel apply for grant of this leave.
3.It is, therefore, requested that as far as possible lady personnel in all the CAPFs may be granted Child Care Leave subject to the conditions laid down in the instructions issued by DoPT on the subject."
9.In fact, even after refusal of leave, the first respondent had written to the Principal of the School, wherein the petitioner's child Priyanka was studying, by a communication, dated 04.12.2012. Out of 7 queries made by the first respondent, 6th query related to behavior report of the child. The Principal of the School, i.e., Velankanni Matriculation Higher Secondary School, Chennai-600 083, with reference to the specific question had stated that some times, the child behaves in abnormal fashion. Therefore, the statement made by the respondents that the mental condition of the petitioner's first daughter was not proved cannot be accepted as the first respondent himself made an enquiry and got an answer regarding the mental condition of the child.
10.The relevant rule relating to child care under the All India Services (Leave) Rules, 1955 may be usefully reproduced below. Rule 18(D) was introduced with effect from 21.09.2011. The child care leave is given to a female member of the service. Rule 18(D) reads as follows :
"18(D)Child Care Leave to a female member of the Service--(1)A female member of the Service having minor children below the age of eighteen years may be granted child care leave by the competent authority for a maximum of 730 days during her entire service for taking care of upto two children.
(2)During the period of child care leave, such member shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(3)Child care leave may be combined with leave of the kind due and admissible.
(4)Notwithstanding the requirement of production of medical certificates contained in sub-rule (1) of rule 13 or rule 14, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation of child care leave granted under sub-rule(1).
(5)Child care leave may be availed in more than one spell.
(6)Child care leave shall not be debited against the leave account of the member of the Service."
11.When once there was a direction by this court to consider the petitioner's request in the light of the certificates produced by her and that the order refusing to grant leave was set aside and the first respondent having considered the same, cannot make adhoc sanction considering a part of the request of the petitioner and denying the rest of the part without any justification. The reason that the other employees may seek for such leave is an irrelevant consideration in deciding the case of the petitioner. The petitioner has admittedly produced the certificate from the well known Psychiatrist that her child was suffering from Bi Polar disorder and undergoing treatment. She is a girl child aged 15 years and she requires the attention of the petitioner. Therefore, sanctioning of leave only by considering the partial request cannot be justified.
12.Under these circumstances, the respondents are directed to grant leave to the petitioner as requested by her. Though this court is conscious of the fact that the court cannot sit in the appeal over the decision of the administrative authority, but the respondents persistently defied the orders passed by this court. Hence there is no other option except to interfere with the arbitrary exercise of power by the respondents.
13.In the light of the above, the writ petition will stand allowed to the extent indicated above. No costs.
vvk To
1.The Deputy Inspector General of Police, Group Centre, Central Reserve Police Force, Avadi, Chennai Tamil Nadu.
2.The Inspector General of Police, Central Reserve Police Force, Banjara Hills Southern Sector, Andhra Pradesh.
3.The Director General of Police, Central Reserve Police Force, CGO Complex Lodhi Road New Delhi
