Case Analysis: Shalini Dharmani v. State of Himachal Pradesh & Ors, (2024) | Child Care Leave

The Supreme Court's ruling in this case marks a crucial milestone in safeguarding women's constitutional right to engage in the workforce and ensuring adequate state assistance for female government workers.

Case Title: Shalini Dharmani v. State of Himachal Pradesh & Ors

Court: Supreme Court of India

Citation: Special Leave to Appeal (C) No.16864/2021

Judges: Hon'ble CJI D Y Chandrachud, Justice J.B. Pardiwala

Introduction

Children up to a certain age need proper care and attention for their proper development. Proper parental attention and development are important for the cumulative development of a child. However in recent times, both parents have been working, and they can hardly put much time into their children. However, there might arise situations when the child might need the parent’s care and attention, wherein mothers or single parents have to attend to the needs of the child. Further, some children need special care, treatment and the proper attention of the parent.

Here the role of Child Care Leave and the Rights of Persons with Disabilities come into the picture. Child care leaves are work leaves granted to working mothers or single parents for their minor children. Recently the case by the Supreme Court dealt with the issue of child care leaves concerning the Rights of Persons with disabilities, which we will be discussing in detail here.

Background of the Case

Shalini Dharmani, further referred to as the petitioner, is an assistant professor in Government College, Nalagarh's Department of Geography (hereinafter referred to as ‘the said college’). The petitioner’s fourteen-year-old son suffers from a rare genetic disorder namely Osteogenesis Imperfecta for which he had to go through various treatments and surgeries throughout his life. For the same reason, the petitioner’s son needs constant care, treatment and attention for him to lead a healthy life. However the petitioner, that is the mother of the son had no more authorized leaves. "On further request for leave, however, the petitioner was denied leave by the Principal of the said college on 16th November 2018 because the Government of Himachal Pradesh had not enacted legislation on "Child Care Leave," making her ineligible for leave from the college.

Thereafter, the petitioner under Article 226 approached the High Court of Himachal Pradesh by filing a writ petition seeking the Hon’ble Court’s direction for the adoption of the Central Civil Services (Leave) Rules, 1972, particularly Rule 43-C (hereinafter referred to as the ‘said rule’). However, the Hon’ble High Court cited the ground that the said rule of the Central Civil Services (Leave) Rules, 1972 was deleted by the State, and denied the said petition. Subsequently, the petitioner filed a Special Leave Petition opposing the judgement of the Himachal Pradesh High Court dated 23-04-2021. A Special Leave Petition allows a party who is aggrieved by the decision of other courts to directly appeal to the Supreme Court of India.

Issue

• Whether the State of Himachal Pradesh should include a Child Care Leave Policy for working mothers, with special attention to the Rights of Persons with Disabilities Act, 2016.

Legal Provisions Applied

The Hon'ble Supreme Court of India applied the following legal provisions in this present case :

1. The Central Civil Service (Leave) Rules, 1972

Rule 43-C: Permits mothers employed under Government service for paid child care leave during their entire service tenure for a maximum period of two years. Such a leave may be granted for more than one spell.

2. The Constitution of India, 1950

In this case, the Hon’ble Supreme Court cited Articles 14, 15 and 21 of the Constitution of India and stated that the same protects the involvement of women employees in the workforce as a constitutional entitlement and not as a privilege.

3. Rights of Persons with Disabilities Act

The said Act was referred initially by the Petitioners, further, the Act was again referred to direct that the provisions of the said Act must be taken into consideration while deciding on Child Care Leaves.

Supreme Court's Observation

1. The Hon’ble Supreme Court cited Rule 43-C of the Central Civil Service (Leave) Rules, 1972, which addresses “Child Care Leave” for working mothers, the said rule allows for child care leave to female government employees who have minor children. During the period of child care leave, she would be paid a leave salary equal to the pay drawn immediately before proceeding 
   on leave. The competent authority may provide such leave during the entire service tenure for a maximum period of 2 years. Further, the Union, subject to conditions from time to time also permitted for Child Care Leave to working mothers of children with exceptional needs till the age of twenty-two years, by way of an Office Memorandum dated March 3, 2010.
2. The Commissioner under the Rights of People with Disabilities Act vide an affidavit declared that no regulations have been regulations concerning the grant of leaves to mothers of differently abled children (or children that fall within the ambit of this Act) under this Act.
3. The Supreme Court emphasized that women being a part of the workforce is a constitutional right, not a privilege by citing Articles 14, 15 and 21 of the Constitution of India, however, that does not eliminate the special areas of concern which might arise for woman employees.
4. There may arise situations wherein a working mother might have to attend to the needs of the Child, in such a scenario the provisions of Child Care Leaves play a pivotal role as it allows for paid leave to women to attend to the needs of their children. If such a provision is not granted to the women workforce then a working mother might be compelled to leave the employment to attend to the needs of the child, especially if such a child is a child with special needs which arose in the present context.

Supreme Court's Direction

The Hon’ble Supreme Court directed the State of Himachal Pradesh to re-evaluate the entire aspect concerning the importance of granting Child Care Leave laws, while also making sure that the objectives of the Rights of People with Disabilities Act are also covered to ensure that even the working mothers of differently abled children are properly safeguarded under the Act.

The Hon’ble Supreme Court directed for the constitution of a committee to look after every facet of the present matter. Such a committee shall be presided over by the Chief Secretary of the State of Himachal Pradesh, further, the committee shall include:

i) State Commissioner who is appointed under the RPWD Act

ii) Secretary in the Department of Social Welfare

iii) Secretary in the Department of Women and Child Development.

The said committee shall also communicate with the Secretary of the Department of Women and Child Development and the Secretary of the Social Welfare Department of the Union Government.

To make a policy decision effectively, the said committee are to place the report so prepared before the competent authority. The reports are to be prepared and submitted to the Hon’ble Court before 31st July 2024.

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Conclusion

In the current era, the majority of women are working and among them many are mothers. However, along with workload, there might arise situations wherein the mother has to give time and attention to the child for their well-being, in such a scenario it is required by the state to ensure child care leaves to the working mothers. Further, not every child is the same, some children need more care and attention than others, and the government should ensure that such mothers are given some benefits so that they can continue their work whilst looking after the needs of their Children.