Prerna v. State of Jharkhand, through Chief Secretary
2024-01-08
RAJESH SHANKAR
body2024
DigiLaw.ai
ORDER : (Rajesh Shankar, J.) : 1. The present writ petition has been filed for issuance of direction upon the respondents to consider the petitioner’s application dated 2nd December, 2022 (Annexure-3 to the writ petition), whereby she had requested for child care leave for the period from 6th to 20th December, 2022 (total 15 days). Further prayer has been made for issuance of direction upon the respondent-State to make arrangement/separate rooms etc. at C.H.+2 High School Jhumri Telaiya so as to enable the petitioner to breastfeed her son during working hours. The petitioner has also prayed for issuance of direction upon the respondent-Union of India to implement the ratified convention in lieu of Maternity benefits for State of Jharkhand in terms of mandate of Article 253 of Constitution of India read with Schedule VII-Union List entry 14 or alternatively for issuance of direction upon the respondent-State to come up with rules for Child Care Leave since the said power is enshrined under Schedule VII-Concurrent List-Entry 24. 2. Heard learned counsel for the parties. 3. So far as the prayer for grant of Child Care Leave is concerned, on perusal of the relevant materials available on record, particularly the petitioner’s representation dated 2nd December, 2022, it appears that the petitioner had requested the District Education Officer, Koderma for grant of child care leave for the period from 6th to 20th December, 2022 (total 15 days), which according to her remained unresponded. 4. The petitioner herself has preferred the present writ petition after delay of more than nine months from the date of filing of said representation. She has also not assigned any cogent reason as to why the said delay has been committed in filing the present writ petition. Moreover, the petitioner has also not brought on record any such circular/scheme/policy of the Government of Jharkhand with respect to grant of child care leave. As such, this court is not inclined to entertain the said prayer of the petitioner. 5. So far as other prayers are concerned, this Court has perused the judgment rendered by the Hon’ble Supreme Court in the case of State of Jharkhand & Others Vs. Ashok Kumar Dangi & Others, reported in (2011) 13 SCC 383 , wherein it has been held as under: - “17.
5. So far as other prayers are concerned, this Court has perused the judgment rendered by the Hon’ble Supreme Court in the case of State of Jharkhand & Others Vs. Ashok Kumar Dangi & Others, reported in (2011) 13 SCC 383 , wherein it has been held as under: - “17. The High Court has found that the Government of Jharkhand, till date, had not framed any policy regarding the number of posts to be filled by physical trained candidates. How many posts of primary school teachers be filled up by physical trained candidates, in our opinion, is essentially a question of policy for the State to decide. In framing of the policy, various inputs are required and it is neither desirable nor advisable for a court of law to direct or summarise the Government to adopt a particular policy which it deems fit or proper. It is well settled that the State Government must have liberty and freedom in framing policy. Further, it also cannot be denied that the courts are ill-equipped to deal with competing claims and conflicting interests. Often, the courts do not have the satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of the case. 19. As observed earlier, the High Court itself has found that there is no policy in regard to the number of posts of teachers to be filled up by the physical trained candidates in the State of Jharkhand. The Act and the Rules governing appointment in the State of Bihar do not govern the appointment in the State of Jharkhand and those have specifically been repealed by Rule 16 of the Rules. Further, the need of the two States may not be identical and it was therefore necessary for the State of Jharkhand to frame a policy in this regard. In the face of it, we are of the opinion that the High Court erred in relying on the policy of the State of Bihar and directing for filling up 5% posts of the primary school teachers by physical trained candidates. 20. Now we revert to the decision of this Court in CAG [ (1986) 2 SCC 679 ] relied on by the respondents.
20. Now we revert to the decision of this Court in CAG [ (1986) 2 SCC 679 ] relied on by the respondents. In the said case while considering the power under Article 226 of the Constitution this Court has held that a mandamus can be issued where the Government or a public authority has failed to exercise or wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision. It has further been observed that in order to compel the performance of a public duty the Court may itself pass an order/direction. 21. Here, in the present case, neither any statute nor rule nor the policy of the State of Jharkhand provide for filling up certain percentage of the posts of primary school teachers by candidates trained in physical education. Any direction to the State Government to make appointment of physical trained candidates as primary school teachers do not flow from any of the rules or the policy of the State and as such the direction to make reservation in their favour would tantamount to framing a policy and cannot be said to be failure to exercise the discretion vested in the State Government.” 6. In the aforesaid case, it has been held that framing of policy is within the domain of the Government since various inputs are required and it is neither desirable nor advisable for a court of law to direct or summarise the Government to adopt a particular policy which it deems fit or proper. It is well settled that the courts are ill-equipped to deal with competing claims and conflicting interests. It has further been held that a mandamus can be issued where the Government or a public authority has failed to exercise or wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision. No mandamus can be issued in absence of any statute or a rule or a policy decision. 7. Since framing of policy/rule is within the domain of the State Government, other prayers made by the petitioner in the present writ petition also cannot be entertained by this Court. 8. Under the said circumstance, this Court is not inclined to entertain the present writ petition and the same is, accordingly, dismissed.