Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 341 (MP)

Anjana Singh Rajawat v. State of M. P.

2017-03-07

VIVEK RUSIA

body2017
ORDER 1. Heard finally with the consent of the parties. 2. The petitioner has approached this Court challenging the order dated 13.3.2016, by which she has been denied child care leave as admissible to the State Government female employee. 3. The petitioner was initially appointed on the post of Shiksha Karmi Grade-III by the order of Chief Executive Officer, Janpad Panchayat, Kannod, District Dewas. Thereafter, the petitioner was absorbed in the Adhyapak cadre on the post of Sahayak Adhyapak in Nagar Panchayat, Kannod. The petitioner was treated as employee of Nagar Panchayat under the provisions of Madhya Pradesh Nagariya Nikaya Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 framed by the State Government in exercise of powers conferred under section 433 read with section 58(2) of the Madhya Pradesh Municipal Corporation Act, 1956 as well as in exercise of power conferred by section 355 read with section 95 of Madhya Pradesh Municipalities Act, 1961 4. The State Government has amended Madhya Pradesh Civil Services (Leave) Rules, 1977 vide notification dated 22.8.2015, by which female Government employee was entitled to get total 730 days of child care leave in her entire service tenure for taking care of two living children upto the age of 18 years. In pursuant to the Head Master of Government Girls Middle School, Kannod as her son was regular student of Class-10 and going to appear in the board examination. By order dated 15.2.2016, the District Education Officer has directed all the Principals of High School/Higher Secondary Schools, District Dewas not to sanction child care leave as the same is applicable to the female Government employee and Adhyapak Samvarg are not included in the same in light of the circular of the Finance Department, State of M.P dated 17.11.2015. In compliance of the aforesaid letter, chile care leave of the petitioner has been cancelled and she has been directed to report to the duty. The petitioner again submitted an application dated 21.3.2016 for grant of child care leave on the ground that under rule 8(b) of the Madhya Pradesh Nagariya Nikaya Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 she is entitled for child care leave which is admissible to the teachers of School Education Department. 5. The petitioner again submitted an application dated 21.3.2016 for grant of child care leave on the ground that under rule 8(b) of the Madhya Pradesh Nagariya Nikaya Adhyapak Samvarg (Employment and Conditions of Service) Rules, 2008 she is entitled for child care leave which is admissible to the teachers of School Education Department. 5. Shri L.C. Patne, counsel for the petitioner submits that the State Government has amended the leave rules and under which, all the female Government employee are entitled for 730 days child care leave under Rules 8(b) of the Rules, 2008. The female employees of the Municipal Council are also entitled for similar leave as admissible to the employees employed or merged under the Rules shall be entitled for leave similar to the regular teachers in School Education Department, therefore, the respondent has wrongly denied the child care leave to the petitioner. 6. Per Contra, Shri Dave, counsel for the respondent submits that the petitioner is not a Government employee, therefore, she is not entitled for the benefit of amendment made in the leave rules, even otherwise, the State Government has clarified that the said leave is not admissible to the teachers cadre, therefore, the petitioner is not entitled for the relief claimed and present petition is liable to be dismissed. 7. That the State Government has amended the leave rules by notification dated 22.8.2015, by which, child care leave can be sanctioned maximum to the period of 730 days for the child, who has not attained the age of 18 years. Amended Rules, 38(C) is reproduced below : "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. (2) The leave cannot be claimed as a matter of right. (3) For the purposes of sub-rule (1) "Child" means :- (a) a child below the age of eighteen years (including legally adopted child) ; or (b) a child below the age of twenty two years with a minimum disability of forty per cent as specified in Notification No.16-18/97-N, dated the 1st June, 2001, Government of India, Ministry of Social Justice and Empowerment. (4) Grant of child care leave to a woman Government servant under sub rule(1) shall be subjected to the following conditions, namely:- (a) it shall not be granted for more than three spells in a calendar year also then the spell shall be counted adjacent the year in which the leave was applied or in which major part of the leave applied falls. Calendar year means the period commencing from 1st January to 31st December of the year. (b) It shall ordinarily not be sanctioned during the probation period. However, in special circumstances if the leave is sanctioned during the probation period, then the probation period shall be extended by the period equivalent to the period for which the leave has been granted. (5) During the period of child care leave, the woman Government servant shall be paid leave salary equal to the pay drawn immediately before proceedings on leave. (6) Child care leave may be combined with leave of any other kind. (7) The leave account shall be maintained separately and entry shall be made in the service book of the concerned women Government servant. 8. This rule is applicable to the female Government employee. Vide circular dated 17.11.2015 the Finance Department has clarified that the benefit of this circular would not be applicable to the teachers cadre. The petitioner has not challenged the said circular of the Finance Department. Even otherwise, the circular is applicable to the female state Government employees. The petitioner was initially appointed by the Janpad Panchayat. Thereafter, her services have been merged in the School of Nagar Panchayat, therefore, the petitioner is not the State Government employee. Division Bench of this Court in the case of Arun Singh Bhadouriya v. State of M.P. and others, reported in [ 2009(II) MPWN 112 = 2009(2) MPHT 277 (DB)], has held that the employees of the Janpad Panchayat/Zila Panchayat are not the Government employees. Para 4 of the said judgment is reproduced below : "4 The petitioner was appointed under the Madhya Pradesh Panchayat Samvida Shala Shikshak (Recruitment and Conditions of Contract) Rules 2005 (for short the 2005 Rules) as Sambida Shala Shikshak by the Janpad Panchayat, Mehgaon, Distirct- Bhind. Para 4 of the said judgment is reproduced below : "4 The petitioner was appointed under the Madhya Pradesh Panchayat Samvida Shala Shikshak (Recruitment and Conditions of Contract) Rules 2005 (for short the 2005 Rules) as Sambida Shala Shikshak by the Janpad Panchayat, Mehgaon, Distirct- Bhind. On perusal of the 2005 Rules, we find that a candidated on a contract for a maximum period of 3 years for a particular school under rules 12, under the Zila Panchayat and Janpad Panchayat as the case may be, Hence, the employing authority of the petitioner is not the State Government, but the Janpad Panchayat and the tenure of employee is governed by the contract of employee is governed by the contract of appointment. In rule 10 of the 2005 Rules, it is stipulated that a Samvida Shala Shikshak shall be under the discretionary and administrative control of Zila Panchayat and Janpad Panchayat, as the case may be and the Disciplinary Authority of the petitioner is also the Janpad Panchayat. In rule 12(a) of the 2005 Rules, it is provided that a person employed under the Rules shall work under the administrative control of the Janpad Panchayat through its Chief Executive Officer and other officers as prescribed. Thus, the Controlling Authority of the petitioner is the Chief Executive Officer of the Janpad Panchayat. In rules 12(h) of the 2005 Rules, it is also stipulated that the person employed under this rule shall be be governed by the Madhya Pradesh Panchayat Services (Conduct) Rules, 1998, unlike a Government servant to whom the Madhya Pradesh Civil Services (Conduct) Rules, 1965 are applicable. Hence, the petitioner cannot be held to be a Government servant." 9. Therefore, the petitioner being Panchayat employee is not entitled for the benefit of rules, 38? Xk ??of the Leave Rules. The petitioner has placed heavy reliance over the rule 8(b) of the Rules, 2008. Rule 8 is reproduced below: 8. Other Conditions -- (a) ....... (b) A person employed or merged under these rules shall be entitled for leave similar as regular teachers in School Education Department. 10. Under this Rules, the persons employed or merged under this rule shall be entitled for similar leave as regular teachers in School Education Department are entitled. The State Government has clarified that the benefit of child care leave is not available to the teachers' cadre. 10. Under this Rules, the persons employed or merged under this rule shall be entitled for similar leave as regular teachers in School Education Department are entitled. The State Government has clarified that the benefit of child care leave is not available to the teachers' cadre. The petitioner has not placed any instance in the writ petition, where the teacher of School Education Department has been granted child care leave by the Department. 11. In view of the aforesaid, no relief can be granted to the petitioner. Accordingly, present writ petition is dismissed.