Supreme Court Concerned At Lack Of Child Care Leave In Himachal Pradesh, Says CCL Necessary To Ensure Mothers Remain In Workforce

The Supreme Court today (April 22) directed the government of Himachal Pradesh to review its policies on Child Care Leaves (CCL) concerning working mothers, especially mothers of children with special needs. Noting the lack of any policy framework in the State to provide CCL to mothers of differently abled children, the Court further directed to constitute a committee headed by the State Commissioner under the Rights of Persons With Disability Act 2016 to examine the possible solutions to the present issue.  

The bench of CJI DY Chandrachud and Justice JB Pardiwala observed that CCL was elemental in ensuring that a working mother's fundamental rights are not compromised. The Court noted that where the state is the employer of a working mother, it cannot be ignorant of her responsibilities at home while serving the state. The petitioner was represented by Advocate Ms Pragati Neekhra. 

Bearing in mind that the participation of women in the force is a matter not just of privilege but also a constitutional entitlement protected by Article 15 of the Constitution, the State as a model employer cannot be oblivious with respect to the special concerns which arise in the case of the women who are a part of the workforce. The provision of CCL subserves an important constitutional object of ensuring that women are not deprived of their due participation, otherwise in the absence of a grant of CCL, a mother may be constrained to leave the workforce.

The petition has been filed challenging the Himachal Pradesh High Court's order dismissing the plea to grant additional child care leave. The High Court noted that since the state of Himachal Pradesh has not adopted the specific provisions on Child Care Leave as provided by the Central Civil Service(CCS) (Leave) Rules, 1972, the petition was devoid of any merit. 

The petitioner, who is an assistant professor in the Department of Geography Government College Nalagarh has a child suffering from Osteogenesis Imperfecta (a rare genetic disorder). Due to the medical condition of her son, who has undergone multiple surgeries since his birth, the Petitioner needs to tend to his treatment and continuous surgical treatments to ensure his survival. 

Since the petitioner had exhausted her prior sanctioner leaves, she applied for CCL which was declined by the state authorities. The petitioner's request was rejected on the grounds that the state of Himachal Pradesh has not adopted the provision of child care leave as provided under Rule 43-C of the Central Civil Service(CCS) (Leave) Rules, 1972. 

As per Rule 43 of the CCS Rules, Female government employees with children under 18 years of age, who have run out of their regular leave, can get up to 2 years (730 days) of childcare leave to look after their kids. This leave can be used for any child-related needs like exams or illness. The Rule also specifies that during this leave, the mothers will be paid their regular salary and the CCL  can be combined with any other kind of leave one is eligible for. The said leave will not be counted against their normal leave balance. It may be noted that the Government of India vide Office Memorandum dated 3.03.2010 permits Child Care Leave to women employees with disabled children up to the age of 22 years subject to the other conditions stipulated by the Government in this regard from time to time.

The Counsel representing the state of Himachal informed the bench that Rule 43 of the CCS was deleted from the Statute Book of the State. To which the CJI inquired whether there were any provisions for CCL to be availed by working women in the state. 

"So now you don't give any CCL ?" asked the CJI. 

The counsel replied saying there is only Maternity Benefit leave applicable in the state. Taking note of the same the CJI remarked on the impending need for CCL to be in place in the Himachal Pradesh. He also clarified to the counsel that Maternity benefits given for delivering the child were not sufficient and are perhaps distinct from the concept of CCL. 

" Maternity is for childbirth, but do you give CCL? .....so after the child is born, the child falls sick or something, the mother just resigns ....why should you not give CCL? You must give CCL. We are not saying that you adopt only the Central Rules, but you must give CCL."

Apart from Rule 43 of the CCS, the petitioner also relied upon Section 80 of the Rights of Persons with Disability Act, 2016 (RPwD) . Under S. 80 the State Commissioner of each state has powers to recommend and take several measures in furtherance of the rights of the disabled persons. In a previous hearing on September 15, 2022 the Bench led by Justice Sanjiv Khanna had sought a response from the  Commissioner under the RPwD Act in this regard. The Commissioner in his reply mentioned that no such policies have been framed with regard to children with disabilities and their parents. 

On The Constitutional Right Of Women To Pursue Their Career & Need For HP's Policy Reviews Towards Working Mothers

The Court observed that women's equal rights to work without obstruction were intrinsically embedded under Article 15 of the Constitution. It was important that their unique needs in the workplace are considered. The availability of Child Care Leave (CCL) is crucial to make sure women can work without having to quit because they need to take care of their children. This need is even more critical for mothers of children with special needs.

In light of the same, the bench thought it crucial that state policies should be consonant with the constitutional values and right. The court thus instructed the State of Himachal Pradesh to review and possibly amend its policies on granting Child Care Leave. This review should specifically consider making it easier for mothers of children with special needs to get this leave, in line with the intentions of the Rights of Persons with Disabilities (RPwD) Act.

"Bearing in mind that the participation of women in the force is a matter not just of privilege but also a constitutional entitlement protected by Article 15 of the Constitution, the state as a model employer cannot be oblivious with respect to the special concerns which arise in the case of the women who are a part of the workforce. The provision of CCL subserves an important constitutional object of ensuring that women are not deprived of their due participation, otherwise in the absence of a grant of CCL, a mother may be constrained to leave the workforce.
This consideration applies a fortiori for a mother with a child with special needs....we are conscious of the fact that ultimately the petition does fringe on certain aspects of policy. Equally, the policies of the state must be synchronised with the constitutional protection and safeguards...we are of the view of the matter that State of Himachal Pradesh must be directed to reconsider the entire aspect of grant of CCL to mothers, including in special provisions consistent with the objects and purpose of the RPwD Act to mothers who are bringing up children with special needs."

The bench further directed that a committee chaired by the Chief Secretary of the State of Himachal Pradesh shall be constituted to look into all aspects of the matter. The Committee shall consist of (1) the State Commissioner; (2) The Secretary of Women and Child Development ; (3) The Secretary of the Social Welfare Department. The committee so constituted shall engage with secretaries of the Department of Women and Child Development & The Social Welfare Department (Department of Persons with Disabilities). 

The bench has directed that the report of the committee shall be submitted before the Court on July 15, 2024.  

Case Details : SHALINI DHARMANI vs. THE STATE OF HIMACHAL PRADESH SLP(C) No. 016864 - / 2021 

Click Here To Read/Download Order