Denying child-care leaves to mother of disabled children violates State's constitutional mandate: Supreme Court

A woman professor in a state university had moved the apex court against a Himachal Pradesh High Court order, which dismissed her plea seeking Child Care Leave in terms of Rule 43-C of Central Civil Service (Leave) Rules, 1972.

New Delhi: The Supreme Court on Monday said that denying child care leave to working mothers of disabled children violated the constitutional mandate for equal participation of women in the workforce.

A bench of Chief Justice of India D Y Chandrachud and Justice J B Pardiwala emphasised that this is not just a matter of privilege but constitutional entitlement.

The court said the provision of Child-Care Leaves (CCL) to women subserves an important constitutional object, and denying the same to mothers of children with disabilities would violate the constitutional duty to ensure equal women participation in the workforce.

A woman professor in a state university through advocate Pragati Neekhra moved the apex court against the Himachal Pradesh High Court order, which dismissed her plea seeking Child Care Leave in terms of Rule 43-C of Central Civil Service (Leave) Rules, 1972.

Her son suffered from a genetic disorder which required him to go through numerous surgeries, resulting in his mother exhausting all her sanctioned leaves. 

The bench asked the Himachal Pradesh government counsel whether they give any child care leave or the woman employee has to resign in the event of a child falling sick. The counsel sought time to seek instructions in the matter. The apex court noted that the 14-year-old son of the petitioner Shalini Dharmani, an assistant professor in the Department of Geography at a government college, suffered from rare genetic disorder, Osteogenesis Imperfecta, and has undergone several surgeries since birth.

The court said the petitioner's son requires continuous treatment and surgical intervention to survive and lead a normal life. The bench noted that due to the treatment of her son, the petitioner has exhausted all her sanctioned leaves and the Rule 43-C of the Central Civil Service (Leave) Rules, 1972, provides for grant of child care leave. "By an office memorandum March 3, 2010, the Union government permit child care leave for women employees for differently abled children up to the age of 22 years (instead of 18 years), the Himachal Pradesh has not adopted the provision for child care leave," the bench noted.

The high court dismissed the woman’s plea on April 23, 2021, on the ground that rule 43 (C) has not been adopted. "The provision for child care leave was deleted by Himachal Pradesh. We are of the considered view that the petition raises a serious matter of concern, the petitioner has relied on provisions of Rights of Persons with Disability Act, 2016 (RPWA)," noted the bench.

The bench said the participation of women in the work force is not just a matter of privilege but constitutional entitlement by Article 15 of the Constitution. "State cannot be oblivious to the special concerns which arise in the case of women who are part of the workforce," the bench added.

The court stressed that the provision of child care leave to women subserves an important constitutional object of ensuring that women are not deprived of their due participation, and due to the absence of provision regarding the child care the mother may be constrained to leave the workforce.

“The policies of the state must be synchronous with constitutional protection and safeguards," the bench said.The bench directed the Himachal Pradesh government to reconsider rules for leaves for mothers who are bringing up children with special needs, and also directed the formation of a committee chaired by the Chief Secretary of the state to look into all aspects of the matter.

The court made the central government as a party to the matter and sought its response, and also asked additional solicitor general Aishwarya Bhati to assist it in the matter. It directed that the report of the committee should be prepared by July and listed the matter for further hearing in August 2024.