SC directs HP govt to look into purpose of RPWD Act for mothers bringing up children with special needs

New Delhi [India], April 24 : The Supreme Court has directed the Himachal Pradesh govt to reconsider the entire aspect of the grant of Child Care Leave to mothers, including making special provisions consistent with the objects and purpose of the Rights of Persons with Disabilities Act (RPWD Act) to mothers who are bringing up children with special needs and forms the committee to look into all aspects of the matter. The court direction came as it noted that "the provision of Child Care Leave to women sub- serves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force."
Otherwise, in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force, remarked made by a bench headed by Chief Justice of India DY Chandrachud and also comprising justices JB Pardiwala on April 23 when it passed the direction. The detailed order was made available on April 24.
The top court held that the participation of women in the work force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution; besides Article 19(1)(g).
The top court further acknowledged that the State as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the work force.
"The provision of Child Care Leave to women sub- serves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force. Otherwise, in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force," the court said.
"This consideration applies a fortiori in the case of a mother who has a child with special needs. Such a case is exemplified in the case of the petitioner herself. We are conscious of the fact that the petition does trench on certain aspects of policy. Equally, the policies of the State have to be consistent and must be synchronise with constitutional protections and safeguards."
"In this view of the matter, we are of the view that the State of Himachal Pradesh must be directed to reconsider the entire aspect of the grant of Child Care Leave to mothers, including making special provisions consistent with the objects and purpose of the RPWD Act to mothers who are bringing up children with special needs," the order copy said.
Accordingly, the top court further directed that a committee chaired by the Chief Secretary of the State of Himachal Pradesh be constituted to look into all aspects of the matter.
The apex court also made it clear that the Committee shall consist of the State Commissioner appointed under the Rights of Persons with Disabilities Act (RPWD Act); Secretary in the Women and Child Development Department; and Secretary in the Social Welfare Department.
The court also made a request that the committee shall engage with the Secretaries in the Department of Women and Child Development, the Social Welfare Department (Department of Empowerment of Persons with Disabilities) of the Union Government.
The court directed the committee shall place the report before the competent authority so that a considered policy decision is taken expeditiously. The report of the Committee shall be prepared by 31 July 2024 and submitted to this Court as well.
The court also impleaded the Union of India as a party to these proceedings and requested Aishwarya Bhati, Additional Solicitor General to assist the Court in the matter.
"In the meantime, pending further orders, the application by the petitioner for
the grant of special leave under Rule 32 of the CCS (Leave) Rules shall be favorably considered by the competent authorities," the court said and listed the proceedings on August 5 2024.
Previously Himachal Pradesh High Court has declined to give any relief to the petitioner on the ground that Rule 43C has been deleted in the year 2012 but now apex Court has directed the State Government to again look into the aspect for granting CCL to female employees.
The court was a hearing plea by Shalini Dharmani, an Assistant Professor. Senior Advocate Suryanarayan Singh along with advocate on record Pragati Neekhra represented the petition. Her petition was filed in HP High Court by advocate Susheel Gautam.
According to the petition, her son, who is fourteen years old, suffers from a rare genetic disorder, Osteogenesis Imperfecta and has undergone several surgeries since birth. He requires continuous treatment and surgical intervention to survive and lead a normal life. Due to the treatment of her son, the petitioner has exhausted all her sanctioned leave. Rule 43-C of the Central Civil Service (Leave) Rules 1 1972, provides for the grant of Child Care Leave.
According to an Office Memorandum dated 3 March 2010, the Union Government
resolved to permit Child Care Leave for women employees with differently abled children up to the age of twenty-two years (instead and in place of eighteen years) subject to the conditions stipulated by the government in this regard from time to time.

The petitioner claimed that she was informed by the Principal of the Government College on November 16 2018 that since the State of Himachal Pradesh has not adopted provisions for Child Care Leave, such leave cannot be sanctioned to her.
The petitioner approached the HP High Court but her plea was dismissed by the High Court on April 23 2021. Aggrieved by the High Court order, she moved the Supreme Court and challenged the decision.
The top court on April 23 acknowledged that the petition raises a serious matter of concern, whereby the petitioner has relied on the provisions of the Rights of Persons with Disabilities Act 2016.