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2019 DIGILAW 874 (ALL)

RICHA DEVI v. STATE OF U. P.

2019-04-08

RAJESH SINGH CHAUHAN

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JUDGMENT : Rajesh Singh Chauhan, J. Heard learned counsel for the parties. 2. By means of this petition, the petitioner has assailed the order dated 16.03.2019 passed by the District Inspector of School, Amethi addressing to the Principal, Government Inter College, Amethi, where the petitioner is serving on the post of the lecturer, rejecting her application, which was preferred by her seeking Child Care Leave. In the said application, which is dated 1.03.2019 (Annexure No.5 to the writ petition), the petitioner has appraised the Principal that her child is five months old and he needs due care and attention, therefore, she may be granted Child Care Leave for 56 days w.e.f. 26.03.2019 to 20.5.2019. Along with aforesaid application, the petitioner has enclosed an affidavit dated 1.3.2019 enclosing therewith the certificates of doctor which clearly indicate that the child need personal care of his mother. 3. The learned counsel for the petitioner has also drawn attention to this Court towards Annexure No.4 to the writ petition, which is discharged certificate issued from Fatima Hospital, Lucknow where son of the petitioner was admitted in critical condition but was discharged with the specific direction of the doctor that the diet of the child would be Mother Milk/MBF. 4. All the aforesaid facts and circumstances clearly indicate that the child of the petitioner is in tender age of five months and he needs special and personal care by his mother, therefore, application dated 1.03.2019 was preferred by the petitioner.? 5. By means of order dated 16.03.2019, Annexure No.7 to the writ petition, the District Inspector of Schools, respondent no.3 has rejected the application of the petitioner for the reason that the Election Commission of India has notified that the parliament election on 10.03.2019, therefore, no employee can seek leave. 6. The petitioner has moved application on 1.03.2019 when there was no election notification of the Election Commission of India and her application would have been disposed of at the earliest even without the election notification being issued so that she could properly look after and take care her child who is not only five months of age but was also suffering from some ailment in recent past days. 7. The learned counsel for the petitioner has produced one circular being issued by the Election Commission of India dated 21.12.1998. 7. The learned counsel for the petitioner has produced one circular being issued by the Election Commission of India dated 21.12.1998. Para (iii) thereto is relevant to be produced herein below; "(iii) No.458/4/96/PS-IV/Vol.II, dated 22.7.1996 relating to exemption of all such women who are in advanced stage of pregnancy, whether are on maternity leave or not, or who are otherwise not fit for any rigorous or hazardous work from being requisitioned for election duty. The same apply to women employees who are breast-feeding a newly born child." 8. The Hon'ble Apex Court in re: Kakali Ghosh Vs. Chief Secretary, Andamand and Nicobar Administration and others, (2014) 142 FLR 16 has held that seeking leave on the ground of child care is right of women government employee and if any government woman employee is having minor child she should not be refused to grant leave to that effect. 9. Learned Additional Chief Standing Counsel has, however, submitted that in the wake of election notification, the District Inspector of Schools has rejected the application of the petitioner. He has further submitted that during the existence of election notification, the leave may not be granted to the employees of the State Government. 10. I have heard the rival contentions of the learned counsel for the parties and perused the material on record, I am of the considered view that in view of the facts and circumstances of the issue in question, as considered above, the order dated 16.03.2019 passed by the District Inspector of Schools, Amethi, respondent no.3 is unwarranted and is uncalled for, inasmuch as, the child care of a tender child of five months of age who was ailing in past days is more important than to discharge the duties of election. Further, the petitioner had moved her application on 1.03.2019, before the election notification being issued, therefore, her claim could not have been rejected on the said ground and therefore, the aforesaid rejection would adversely effect the health/ life of the child of the petitioner and to protect once life is constitutional guarantee under Article 21 of the Constitution of India. 11. Accordingly, a writ in the nature of certiorari is issued quashing the order dated 16.3.2019 passed by the District Inspector of Schools, Amethi opposite party no.3 contained as Annexure No.7 to the writ petition. 12. 11. Accordingly, a writ in the nature of certiorari is issued quashing the order dated 16.3.2019 passed by the District Inspector of Schools, Amethi opposite party no.3 contained as Annexure No.7 to the writ petition. 12. A writ in the nature of mandamus is issued commanding the opposite parties to grant child care leave to the petitioner under special circumstances as considered above. 13. The petitioner is given liberty to file a fresh application seeking child care leave enclosing therewith a certified copy of this order as expeditiously as possible. 14. Writ Petition is allowed. 15. No order as to costs.