After Supreme Court's Nudge, Himachal Pradesh Govt Notifies Child Care Leave Rules

The Supreme Court today disposed of an SLP seeking child-care leave for working mothers with specially-abled children in Government jobs in the State of Himachal Pradesh after the Court was informed that the State Government has notified child-care leave pursuant to the central scheme.

The SLP has been filed by the petitioner, who is an Assistant Professor in the Department of Geography Government College, Nalagarh. Her son, 14 years old, suffers from Osteogenesis Imperfecta (a rare genetic disorder). Due to the medical condition, the son has undergone multiple surgeries since his birth. As per the petitioner's plea, the son requires continuous treatment and surgical interventions to survive and lead a normal life. Due to his treatments, the petitioner has exhausted all her sanctioned leave.

She instituted a writ petition before the Himachal High Court under Article 226 seeking a direction for the adoption of Rule 43C (child care leave) as under the Central Civil Services (Leave) Rules, 1972, for the State of Himachal Pradesh.

Through an Office Memorandum dated March 3, 2010, the Union Government resolved to permit childcare leave for women employees with differently abled children up to the age of 20 years. This benefit was also not provided to the petitioner.

However, the writ petition was dismissed on April 23, 2021, by the Himachal Pradesh High Court stating that the State of Himachal Pradesh has not adopted the specific provisions on child care leave as provided by the Rules, 1972. Therefore, the petition was devoid of any merit.

Today, a bench of Justices B.V. Nagarathna and NK Singh disposed of the SLP after it was informed by Advocate-on-Record Pragati Neekhra (for petitioner) that the State Government has issued a notification dated July 31, 2024, to notify Central Civil Services (Leave) Himachal Pradesh Amendment Rules, 2024.

This comes pursuant to the directions passed by the Supreme Court of the Himachal Pradesh Government to review its policies on childcare leave concerning working mothers, especially mothers with children having special needs.

On April 22, a bench of former Chief Justice of India DY Chandrachud and Justice J.B. Pardiwala observed that childcare leave was elemental in ensuring that a working mother's fundamental rights are not compromised. Nothing that the petition raises serious concern and that there is a lack of policy framework, the Court further constituted a committee headed by the State Commissioner under the Rights of Persons with Disability Act, 2016, to examine the possible solutions.

The amended rules notified in exercise to powers conferred under proviso to Article 309 of the Indian Constitution have amended the Rules, 1972, as applicable to the State of Himachal Pradesh, to insert Rule 43-C (child care leave).

Clause 1 of Rule 43C reads of Himachal Pradesh Rules read: "Subject to the provisions of this rule, a female Government servant may be granted child care leave by an authority competent to grant leave for a maximum period of seven hundred and thirty days during her entire service for taking care of her child with a minimum disability of forty per cent as specified in the Government of India Ministry of Social Justice and Empowerment's Notification No.16-18/96-N 1.1, stated the 1st June, 2001 up to two surviving children."

Neekhra today submitted that although the 2024 amended rules have been notified, they contain certain lacunas in terms of Rule 43C in the 1972 Rules.

Whereas, Advocate for the State of Himachal Pradesh, D.K. Thakur submitted that the petitioner has already availed the benefits of the 2024 Rules in as much as 93 days of childcare leave has been availed and duly granted.

Based on this, the Court observed: "In this backdrop, we dispose of this writ petition, preserving liberty to the petitioner herein to seek liberty vis-a-vis the aforesaid notification issued by the State of Himachal Pradesh by making a representation for enlarging the benefit under the scheme of child-care leave. If any such representation is made, the Respondent State shall consider the same as expeditiously as possible."

Case Details: SHALINI DHARMANI Vs THE STATE OF HIMACHAL PRADESH., SLP(C) No. 16864/2021

Appearances: Advocate Pragati Neekhra (for petitioner) and Advocate D.K Thakur (for State of Himachal Pradesh)