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Child care leave is a right that contractual state employees also have, and that to deny them this, would be to deny a child’s rights: Uttarakhand High Court

Child care leave is a right that contractual state employees also have, and that to deny them this, would be to deny a child’s rights is upheld by the Uttarakhand High Court in the case of Tanuja Tolia v. State of Uttarakhand through a full-Bench comprising of Chief Justice Ramesh Ranganathan , Justice Sudhanshu Dhulia and Justice Alok Kumar Verma.

FACTS OF THE CASE

The petitioner in the instant case, is a female ayurvedic physician who works for the Uttarakhand State Medical and Health Services. She was hired in 2009 and was given a one-year contract that was extended. She did not return to work following her maternity leave; instead, she filed a claim for Child Care Leave (CCL), relying on a 2015 ruling by a division bench of the Uttaranchal High Court that permitted a contractual employee to receive CCL for 730 days. Her application was turned down due to a 2011 government order that prohibited contractual workers from receiving CCL benefits.

A division bench referred the current case’s issue to the Full Bench, which had to decide whether a contractual employee hired for only one year could receive CCL of 730 days and whether, in exercising its authority under Article 226, the High Court could issue mandatory guidelines extending this benefit to contractual employees in the absence of relevant legislation.

JUDGEMENT

The Uttarakhand High Court noted that the leave is not a recognition of the rights of a woman but it is more a recognition of the rights of a child despite the fact that the concepts of maternity and child care leave have recently gained popularity on a global scale after being long disregarded.

The Court gave proper consideration to a number of constitutional and legislative provisions, such as Article 15(2) and many articles under Part IV of the Constitution, which were implemented with consideration for children’s interests and rights. The Supreme Court’s rulings that praised the DPSPs as “fundamentals in the government of the country” were cited to refute the State’s claim that they are not enforceable and to support their significance.

The Court believed that as there is no distinction made between a contractual employee and a normal employee when it comes to maternity leave, the same standard should be used while evaluating CCL as well. Regarding the initial question, the Court determined that a contractual worker who was engaged for a year had the same rights to CCL, just not for 760 days. Instead, they are able to receive paid CCL for 31 days under the same conditions as regular employees under the 2011 Government Order’s ‘earned leave’ policy. Regarding the second problem, the Court explained that it has merely inserted contractual employee rights into the 2011 Order, which have been properly subject to the limitations placed on any regular employee under the said Order.

Accordingly, the Court held that child care leave is a right that contractual state employees also have, and that to deny them this, would be to deny a child’s rights.

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JUDGEMENT REVIEWED BY NISHTHA GARHWAL

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