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2017 DIGILAW 1166 (MP)

Pammi Nath v. School Education Department

2017-11-15

PRAKASH SHRIVASTAVA

body2017
ORDER 1. This writ petition has been filed by the petitioner who is working as Senior Teacher under Adhyapak Samvarg challenging the order dated 24.10.2017 passed by the District Education Officer, whereby the child care leave has been denied to the petitioner on the ground that the rule relating to child care leave is not applicable to the Adhyapak Samvarg. 2. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that this issue has been examined in detail in the matter of Smt. Nita Yadav v. State of M.P and others by order dated 17.7.2017 by the coordinate Bench in Writ Petition No.8455/2016, whereby the coordinate bench while taking the view that the teachers of Adhyapak Samvarg are entitled to the Child Care Leave has held as under:- “By this writ petition petitioner approached this Court with a grievance that though petitioner is entitled for grant of child care leave in view of the amendment made in Rule 38(c) of Civil Services (Leave) Rules, 1977, but the same has been denied to it. Learned counsel relying upon the order passed by Co-ordinate Bench at Gwalior Bench of High Court in Writ Petition No.4837/2016 decided on 8.2.2017 (Rohit Arya, J.), wherein on similar facts and circumstances this Court has extended the benefit of child care leave to the similarly employee seeks parity. Per contra, Shri Rohit Mangal opposes the prayer relying upon the order passed in Writ Petition No.3096/2016, wherein Single Bench has declined the relief purportedly for the reason that the Finance Department vide circular dated 17.11.2015 has clarified that the benefit of child care leave shall not be extendable to Teachers cadre. During the course of arguments on a pointed query to Shri Rohit Mangal, he has passed on before this Court a copy of Circular dated 17.11.2015 and also supplied a copy to Shri Yashpal Rathore. The Circular was read out in the open Court and there is consensus between the parties that there is no mention of denial of extension of benefit of child care leave to the members of the Teachers cadre. In view of the aforesaid facts and circumstances the order passed by the Single Bench appears to be incurium. The Circular was read out in the open Court and there is consensus between the parties that there is no mention of denial of extension of benefit of child care leave to the members of the Teachers cadre. In view of the aforesaid facts and circumstances the order passed by the Single Bench appears to be incurium. The order passed in Writ Petition No.4837/2016 is based on existing provision of M.P.Civil Services (Leave) Rules, 1977 and M.P. Panchayat Adhyapak Samvarg Employment and Service Condition Rules, 2008, of which rule 8(b) as well as rule 38(c) of the Leave rules are relevant and quoted below :- “8(b ) A person employed or merged under these rules shall be entitled for leave similar as regular teachers in School Education Department.” “38(c) Child Care Leave - (1) Subject to the provisions of this rule, a woman Government servant may be granted child care leave by the competent authority for a maximum period of 730 days during her entire service for taking care of her two eldest surviving children.” Accordingly, maintaining parity the petition is allowed and the impugned order Annexure P-1 is quashed. The petitioner is held entitled for child care leave as per the entitlement. The order passed by the co-ordinate Bench at Gwalior shall apply mutatis mutandis to the case in hand.” 3. It has fairly been pointed out that another coordinate bench having regard to the provisions of Maternity Benefit Act in the matter of Smt. Brijlata Sharma v. State of M.P. vide order dated 11.7.2017 in Writ Petition No.9347/2017 has held even the contractual employee/teachers to be entitled to the benefit of child care leave by holding as under :- “2. The question involved in this case is : whether the petitioner, a contractual employee/Teacher, is entitled to get the benefit of child care leave ? 3. This point is no more res integra. This Court recently decided this aspect in Writ Petition No.15523/2016 (Smt. Archana Pandey v. State of M.P. and others), which reads as under : “The singular question in this case is whether the petitioner, a contractual employee is entitled to get the benefit of maternity leave. 3. This point is no more res integra. This Court recently decided this aspect in Writ Petition No.15523/2016 (Smt. Archana Pandey v. State of M.P. and others), which reads as under : “The singular question in this case is whether the petitioner, a contractual employee is entitled to get the benefit of maternity leave. The petitioner's claim is based on Maternity Benefit Act, 1961 and its interpretation by various Court whereas the stand of respondents is based on Clause 6.7 of the Contract of Appointment wherein it is mentioned that the petitioner will get the benefit of maternity leave only after completion of one year's period from the date of appointment. Thus, as noticed, the core issue is whether the petitioner is entitled to get the benefit of maternity leave.” 4. Though counsel for the State referring to the judgment of the Supreme Court in the matter of Kakali Ghosh v. Chief Secretary, Andaman and Nicobar Administration and others, reported in (2014)15 SCC 300 , and the amendment in M.P. Civil Services (Leave) Rules, 1977 has submitted that the child care leave cannot be claimed as of right and it can be refused on the exigencies of public service, but such an issue does not arise at this stage because by the impugned order the petitioner’s application for grant of child care leave has been rejected on the sole ground that the petitioner is not eligible for leave. 5. Having regard to the aforesaid, the impugned order dated 24.10.2017 is set aside and the competent authority is directed to consider the petitioner’s prayer for grant of child care leave afresh in the light of the aforesaid legal position within a period of one month from the date of receipt of certified copy of this order.