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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4506 OF 2014 (arising out of SLP (C) No. 33244 of 2012)

KAKALI GHOSH      … APPELLANT

VERSUS

CHIEF SECRETARY, ANDAMAN & NICOBAR  ADMINISTRATION AND ORS.             … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. This appeal has been directed against the judgment dated  

18th 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,  

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 Government

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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’).   

4. The  appellant  initially  applied  for  CCL  for  six  months  

commencing from 5th July,  2011 by her  letter  dated 16th 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 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 Nicobar) where she joined  

on 06th July, 2011.  By her subsequent letter dated 14th February,  

2012 she requested the competent authority 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 dated 16th 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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“12. Thus O.A.  is  allowed.  Respondents are accordingly   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  

respondents before the Calcutta High Court which by impugned  

judgment and order dated 18th September, 2012 while observing  

that leave cannot be claimed as a right, held as follows:  

“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 more than   three spells in a calendar year.  It means that 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,   though eligible to take CCL for  a maximum period of  730  days, can be granted CCL in three spells in a calendar year   for as less as 48 days.”

The High Court further observed:

“Whether an eligible person should be granted CCL at all,   and, if so, 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  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 be granted in

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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,  Rule 43-C does 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 refer the 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  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. ***

  Women  employees  having minor  children may be   granted  Child  Care  Leave  by  an  authority  competent  to   grant leave, for a maximum period of two years (i.e. 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  leave,  the  women  employees  shall  be  paid  leave  salary  equal  to  the  pay  drawn immediately before proceeding on leave.  It may be   availed of in more than one spell. Child Care Leave shall not  

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be debited against  the leave account.   Child  Care Leave  may also be allowed for  the third year as leave not  due   (without  production  of  medical  certificate).   It  may  be   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  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:-

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:-

(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 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,  published in  G.S.R. No. 170 in the Gazette of India dated 5th December, 2009  giving effect from 1st September, 2008 as quoted below:-

“43-C. Child Care Leave

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(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  period  of  two  years,  i.e.  730  days  during  the  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.

(2)During the period of child care leave, she 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 any other   kind.

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(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 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 one spell.

(6)Child care leave shall  not be debited against the leave   account.”   

13. On perusal of circulars and Rule 43-C, it is apparent that a  

woman government  employee having minor  children below 18  

years can avail CCL for maximum period of 730 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 Rule 43-C allows woman government employee to combine  

CCL with leave of any other kind.  Under Sub Rule (4) of Rule 43-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).  

From plain reading of Sub Rules (3) and (4) of Rule 43-C it is 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.

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The  Tribunal  was  correct  in  directing  the  respondents  to  act  

strictly  in  accordance  with  the  guidelines  issued  by  the  

Government of India and Rule 43-C.

14. In the present case, the appellant claimed for 730 days of  

CCL at a stretch to ensure success of her son in the forthcoming  

secondary/senior examinations (10th/11th 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 leave.   

15. Leave cannot be claimed as of right as per Rule 7, which  reads as follows:

“7. Right to leave  

(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   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 exigencies  

of public service.

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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,  

preferably annually by its Circular issued by the Government  of  

India  M.H.A.O.M. No. 6/51/60-Ests.  (A),  dated   25th January,  

1961,  reiterated  vide  Government  of  

India  letter  dated 22/27th March,  2001.   As per those circulars  

where all  applications for leave cannot, in the interest of public  

service,  be  granted  at  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 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  18th September,  2012  passed  by  the  Division  

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

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the directions issued by the Tribunal within three months from the  

date of receipt/production of this judgment.

19. The appeal is allowed with aforesaid directions. No costs.

………………………………………………….J.                      (SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………….J.                (V. GOPALA GOWDA)

NEW DELHI, APRIL 15, 2014.