Mother Can Avail Child Care Leave For Third Child If It Wasn't Availed For Elder Children: Kerala High Court

The Kerala High Court recently upheld the Administrative Tribunal order which stated that Child Care Leave (CCL) facility cannot be said to be restricted to the two 'eldest' surviving children alone, particularly when such facility had not been availed in respect of the first two children.

Interpreting Section 43-C of the Central Civil Service (Leave) Rules 1972, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran said,

"CCL benefit is available for 'two children', no matter whether they are 'eldest' or not. The only stipulation is that the Rule is available 'upto two children'."

It passed the order while considering a case in which an employee of BSNL applied for CCL in respect of her third child born from her second marriage, while she had not availed such facility in respect of her two eldest children.

The Court clarified that Office Memorandum dated September 29, 2008 (hereinafter, 'Annexure A5(a)') which stipulated that CCL shall be admissible for two eldest surviving children and not to third child, pre-supposes the factual premise that the benefit of CCL has been availed in respect of the eldest two children. Therefore, it set aside the Tribunal's order to the extent it declared Annexure-A5(a) as unconstitutional.

Court added, 

"The order of the children is of no moment and the clarification does not intend to attach any stigma to the third child onwards. It only purports to put a financial cap by stipulating the extent upto which the benefit is available. We are not of the opinion that Annexure-A5(a) is in serious conflict with the benefit contemplated in Annexure-A4 order/Rule 43-C as it stood then. Annexure-A5(a) only purports to reiterate the statutory upper limit of the benefit being available to two children only". 

Factual Background

The applicant had applied for 176 days CCL in different spells in respect of her third child, which was originally granted. However, as per a communication issued by the Accounts Officer, the CCL availed by her was directed to be regularized as against eligible earned leave and half pay leave, with a further direction to recover the excess payment. It is noted that the applicant has two older children from her first marriage, but she had never availed CCL in respect of them since the said children were never dependent on her, but were residing with her ex-husband. 

The applicant averred that as per the Order which introduced CCL in the year 2008 (Annexure A4), it has been stipulated that CCL could be granted for a maximum period of two years (i.e., 730 days) during the entire service for taking care of upto two children, without mandating that the said two children should be the elder ones. It was submitted on behalf of the applicant that the Annexure A5(a) Order which was purported to be issued to clarify that Annexure A4 stipulates that CCL shall be admissible for the two eldest surviving children only, is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution.

The applicant thus contended that she is entitled to CCL in respect of the third child, particularly since she had not availed any CCL, or for that matter any other service benefit, in respect of her first two children born in the earlier wedlock.

On the other hand, the Standing Counsel for BSNL T. Sanjay argued that the CCL Rules did not distinguish between children based on marriages, but was restricted to only to the two eldest surviving children, wherefore re-marriage could not have any effect on the Rule and its interpretation.

The Tribunal had held that Annexure A5(a) could not alter, modify or insert something which was not originally provided for in Annexure-A4, as the same would have the effect of amending Annexure-A4, and accordingly, quashed the same. 

It is challenging the above order that the present petition was filed by BSNL. 

The question before the Division Bench in the present case was whether Section 43-C of the Central Civil Service (Leave) Rules which provides for CCL, read with Annexure A5(a) clarification stipulates that the CCL would be restricted to the two eldest children alone in this case. 

Findings of the Court

The Court noted that just as in the case of grant of maternity benefit, CCL is also a beneficial provision to advance the interest of woman and children as envisaged in Article 15(3) of the Constitution. The Court discerned that the beneficial provision in Rule 43-C was two dimensional - both from the perspective of the mother, as well as of the child.

The Court observed that a perusal of Annexure-A4, as engrafted in Rule 43-C would clearly portray that the CCL benefit is available for 'two children', regardless of whether they are the eldest or not. The Court stated that Annexure A5(a) if construed consistent with the purpose of clarification, would only imply that CCL benefit is restricted to the eldest two surviving children and not to the third child, on the premise that the benefit was availed of in respect of the eldest children. The Court emphasized that the purpose of Annexure A5 was only to reiterate the statutory upper limit of the benefit was available to two children only. 

"In the light of the above interpretation to Annexure-A5(a), we are of the opinion that it is not necessary to set aside the said order, especially so in the peculiar facts of the given case," the Court held. 

It thus confirmed the impugned order of the Tribunal affording the CCL benefit to the applicant, but modified the same to the limited extent of doing away with the order setting aside Annexure-A5(a).

Central Government Counsel T.V. Vinu, and Advocates Govindaswamy T.C., and Nishitha Balachandran appeared on behalf of the respondents. 

Case Title: The Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr. 

Citation: 2023 LiveLaw (Ker) 283

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