DEEPIKA SAGAR NERSEKAR Vs. THE STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY (AT: STATE)
Deepika Sagar Nersekar
THE STATE OF MAHARASHTRA
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(1.) The Petitioner is an unfortunate mother of 8 year old female child Hetal who is suffering from Cerebral Palsy Diplegia since her birth. On 19th May, 2014, the All India Institute of Physical Medicine and Rehabilitation has issued a medical certificate in the prescribed form certifying that Hetal is physically disabled and has 60% permanent physical impairment. The Petitioner is in the employment of the Court of Small Causes at Mumbai as the Stenographer (HG).
(2.) The Petitioner is relying upon Rule 43C of the Central Civil Services (Leave) Rules, 1972 (for short "the Central Rules") as amended in the year 2009. Rule 43C reads thus :
"43C. Child care leave.:-
(1) A woman government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years i.e. 730 days during the entire service for taking care of up to two children whether for rearing or to look after any of their needs like examination, sickness, etc.
(2) During the period of child care leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
(3) Child care leave may be combined with leave of any other kind.
(4) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).
(5) Child care leave may be availed of in more than one spell.
(6) Child care leave shall not be debited against the leave account."
(3.) Under the said Rules, a woman Government servant having a minor child below the age of 18 years and who has no earned leave at her credit is entitled to apply for Child Care Leave for a maximum period of 730 days during the entire service for taking care of children or looking after their needs like examination, sickness, etc. Under sub-rule (2) of Rule 43C, such woman Government servant is entitled to full pay during the said leave period. This leave under Rule 43C is not as a matter of right. It does not provide for grant of leave for a continuous period of 730 days in each case. It talks about grant of leave for total 730 days during the tenure of service. The Petitioner is not disputing that she is not governed by the Central Rules, but she is governed by the Maharashtra Civil Services (Leave) Rules, 1981 (for short "the State Rules"). The prayer in this Petition under Article 226 of the Constitution of India is for issue of a writ of mandamus directing the Respondents to grant leave to the Petitioner in terms of Rule 43C for 730 days for the purposes of bringing up and welfare of a disabled daughter.;
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