Prakash Shrivastava, J. - (1.) Heard.
(2.) By this writ petition the petitioner who is working as Adhyapak in Adhyapak Samvarg has challenged the order dated 22.1.2018 whereby the petitioner's application for grant of Child Care Leave has been rejected on the ground that provision relating to the Child Care leave is not applicable to the Adhyapak Samvarg.
(3.) Having heard learned counsel for the parties, it is noticed that this issue has already been decided by this court in W.P.No.7981/2016 by order dated 2.08.2017. In the aforesaid writ petition, this court has held as under :- WP No.7981/2016 02.08.2017 Shri D.S.Panwar, learned counsel for petitioner. Ms.Archana Kher, learned counsel for State. Heard finally with consent. By this writ petition, the petitioner has prayed for a direction to the respondents to grant the child care leave. The case of the petitioner is that she was initially appointed on the post of Samvida Shala Shikshak Class II in the year 2006 and thereafter in the year 2010 the services were absorbed in the Adhyapak Samvarg. The petitioner had made an application Annexure P/5 for grant of child care leave which was returned to the petitioner with the endorsement that the petitioner is not eligible for the child care leave. Learned counsel for petitioner has pointed out that initially there was some controversy in respect of entitlement of Teachers and Adhyapak Samvarg for grant of child care leave, but the controversy has been settled by the judgment dated 20th July, 2017 passed in WP No.7299/2016 in the matter of Smt. Jayshree Sharma Vs. State of MP and others. The co-ordinate bench of this court in the matter of Smt. Jayshree Sharma has passed the following order:- "The petitioner before this court serving as a Teacher(Shiksha Karmi Class-I) in Government Higher Secondary School, Thandla, District Jhabua is aggrieved by the orders dated 06-08-2016 and 08- 09-2016, by which her application for grant of Child Care Leave has been turned down. 02. The petitioner's contention is that Child Care Leave is granted to all the female employees through out the State of Madhya Pradesh in various Departments. However, the petitioner has been discriminated by the respondents. The undisputed facts reveal that the petitioner has applied for Child Care Leave with effect from 07-01-2016 to 29-01- 2016 and the same has not been granted to the petitioner. 03. The respondents have filed the reply and their contention is that the State Government has issued a clarification dated 17-11-2015, wherein it has been clarified that the Child Care Leave will not be given to female employees who are working as Teachers. It is also been stated that the Circular for grant of Child Care Leave was issued on 17-11-2015 and it has not been marked to the Panchayat Department and as the petitioner is an employee of Panchayat Department and because the letter has not been marked to the Panchayat Department, she is not entitled for Child Care Leave. Except for the aforesaid, there is no other explanation offered by the respondents/State. 04. Heard learned counsel for the parties and perused the record. The matter is being heard finally with the consent of both the parties. 05. The facts of the case reveal that the petitioner is undisputedly working as Teacher (Shikshak Karmi Class-I) and has applied for grant of Child Care Leave with effect from 07-01-2016 to 29-01-2016. The statutory rules governing the field relating to the petitioner's appointment known as Madhya Pradesh Panchayat Adhyapak Samvarg (Niyojan and Sewa Sarte) Niyam, 2008 provides that the Shiksha Karmi appointed under the Rules will be entitled for all kind of benefits of leave as given to permanent Teachers of the School Education Department. 06. Relevant Rule i.e Rule 8 of the Notification dated 11-09-2008 reads as under :- XXX XXX XXX Meaning thereby, the petitioner is entitled for all kind of leaves for which the employees serving the other Departments are entitled for. 07. Undisputedly the State Government is granting Child Care Leave to female employees working in other Department and the Notification issued by the State Government dated 17-11-2015 reads as under :- XXX XXX XXX 08. The respondents have denied the benefit of Child Care Leave to the petitioner on account of a subsequent clarification order dated 06-08-2016 and the same reads as under :- XXX XXX XXX The aforesaid order reflects that the female employees working in the cadre of Teachers will not be entitled for Child Care Leave. 09. This court really fails to understand as to how the State Government can discriminate between a lady employee working in the Home Department and a lady employee working in the School Education Department. The aforesaid clarification is certainly unconstitutional and the employees cannot be segregated Department- wise and once female employees working in all other Departments are entitled for Child Care Leave, female employees working as Teachers in School Education Department are also entitled for Child Care Leave. Merely, because the order of the State Government granting benefit of Child Care Leave was not communicated/endorsed to the Panchayat Department, it does not mean that it is not applicable in respect of Panchayat Department. On the contrary Annexure-R-1 dated 17-11-2015 reflects that it is addressed to the heads of all Department of the State Government. The similar controversy came up before this court in the case of Smt Vimlesh Verma Vs. The State of M.P. and other, in Writ Petition No.4837/2016 dated 08-02-2017 and the learned Single Judge has allowed the identical Writ Petition. 10. This court in light of the aforesaid is of the considered opinion that the petitioner's application was wrongly turned down by the respondents. The petitioner being a lady employee is also entitled for Child Care Leave. Accordingly, the Writ Petition stands allowed. The impugned orders dated 06-08-2016 and 08-09-2016 are quashed. The respondents are directed to regularize the period 07-01-2016 to 29-01-2016 by treating the period spent on Child Care Leave. With the aforesaid the petition stands allowed." The other co-ordinate bench has also passed the following order on 17/7/2017 in WP No.8455/2016 in the matter of Smt. Nita Yadav Vs. State of MP and others in respect of the similar controversy:- "Shri Yashpal Rathore, learned counsel for the petitioner. Shri Rohit Mangal, learned Govt.Advocate for the respondents/State. By this writ petition petitioner approached this Court with a grievance that though petitioner is entitled for grant of child care leave in view of the amendment made in Rule 38(c) of Civil Services (Leave) Rules, 1977, but the same has been denied to it. Learned counsel relying upon the order passed by co- ordinate Bench at Gwalior Bench of High Court in W.P.No.4837/2016 decided on 8.2.2017 (Rohit Arya, J.), wherein on similar facts and circumstances this Court has extended the benefit of child care leave to the similarly employee seeks parity. Per contra, Shri Rohit Mangal opposes the prayer relying upon the order passed in W.P.No.3096/2016, wherein Single Bench has declined then relief purportedly for the reason that the Finance Department vide circular dated 17.11.2015 has clarified that the benefit of child care leave shall not be extendable to Teachers cadre. During the course of arguments on a pointed query to Shri Rohit Mangal, he has passed on before this Court a copy of Circular dated 17.11.2015 and also supplied a copy to Shri Yashpal Rathore. The Circular was read out in the open Court and there is consensus between the parties that there is no mention of denial of extension of benefit of child care leave to the members of the Teachers cadre. In view of the aforesaid facts and circumstances the order passed by the Single Bench appears to be incurium. The order passed in W.P.No.4837/2016 is based on existing provision of M.P.Civil Services (Leave) Rules, 1977 and M.P.Panchayat Adhyapak Sanvarg Employment & Service Condition Rules, 2008, of which Rule 8(b) as well as Rule 38(c) of the Leave Rules are relevant and quoted below:- " 8(b) A person employed or merged under these rules shall be entitled for leave similar as regular teachers in School Education Department. 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. Accordingly, maintaining parity the petition is allowed and the impugned order Annexure P/1 is quashed. The petitioner is held entitled for child care leave as per the entitlement. The order passed by the co-ordinate Bench at Gwalior shall apply mutatis mutandis to the case in hand." Having regard to the aforesaid, I am of the opinion that the petitioner's entitlement for grant of child care leave on the ground that she is in the Adhyapak Samvarg cannot be disputed since the aforesaid controversy has already been decided. In view of the above, the writ petition is disposed of by granting liberty to the petitioner to file a fresh application for grant of child care leave which will be decided by the concerned respondents having regard to the aforesaid judgment within a period of 10 days from the date of its receipt. c.c as per rules.";