Merger of DA and 7th CPC from 1.1.2011- AIRF points for National Council Meeting

Merger of DA and 7th CPC from 1.1.2011- AIRF points for National Council Meeting

No.NC-JCM/2014/VII CPC

Dated: April 9, 2014

The Chairman,
Standing Committee National Council(JCM),
South Block, New Delhi

Dear Sir,

Sub: Agenda for discussion in the Standing Committee of National Council(JCM)

An agenda, comprising of 09 items, to be discussed in the Standing Committee of the National Council(JCM), is being enclosed herewith for necessary action.

Yours faithfully,
-sd-
(Shiva Gopal Mishra)
Secretary, Staff Side
National Council(JCM)

DA/As above

Copy to: All Constituent Organisations of the National Council(JCM) – for information.

TERMS OF REFERENCE FOR THE 7th CENTRAL PAY COMMISSION

The Government of India have finalized the Terms of Reference of the 7th CPC and circulated the same vide Ministry of Finance’s Resolution No1/1/2013-E.III (A) dated 28th February, 2014. It is a matter of concern that and disappointment that the Terms of Reference have been finalised unilaterally without having thorough discussion with the Staff Side and their views have also not been taken care of while doing so.

It may be recalled that a meeting was convened by the Secretary (Personnel) with the Staff Side members on 24th October, 2013 to discuss the possible Terms of Reference for the 7th CPC being appointed. In that meeting the Staff side had specifically requested that a copy of Terms of Reference for 7th CPC, as proposed by the Ministry of Finance may be circulated to all concerned and thereafter another meeting with Secretary, Department of Expenditure and Department of Personnel & Training be arranged with the Staff Side to discuss and finalise the same, which is clearly mentioned in para 11 of the Record Note of Discussion of that meeting. Subsequently, the Staff Side again requested for an urgent meeting with the Secretary(Expenditure) and Secretary DoPT for finalization of the Terms of Reference (ToR) for the Seventh Central Pay Commission vide its letter dated 23rd January, 2014. However, no such meeting was convened and Terms of Reference for the 7th CPC have been finalised by the Government on 28th February, 2014.

While going through the ToR, as finalized by the Government, it is observed that many of the suggestions of the Staff Side, in regard to date of effect of Pay Commission, Merger of D.A., Interim Relief, representation of labour representative in the Commission itself, parity issues in regard to pensioners, settlement of the pending Anomaly items etc., have not been duly considered, which is a matter of dissatisfaction.

The Staff Side, therefore, demands that the Government must discuss the Terms of Reference for the 7th CPC with them and make necessary amendments/revisions to the Terms of Reference.

1. Revision of Wage with effect from 01.01.2011

The present wage structure of the Central Government employees is in vogue on the basis of the recommendations of the 6th Central Pay Commission, which took effect from 01.01.2006 in the case of Pay, and in the case of Allowances from 01.09. 2008.

The wage revision of the Central Government employees is done every 10 years, which was recommended by the 5th CPC, however, in the case of Central PUSs, the wage revision normally takes place after every five years. In the past, wage revision has been linked to the extent of erosion of real wages. The degree of inflation in the economy determines the pace of erosion of the real value of wages. The retail prices of those commodities which are computed for determining the minimum wages have risen by about 160% from 01.01.2006 to 01.01. 2011, whereas the D.A. compensation, in the case of Central Government employees, on that date had been just 51%.

Since wage revision in all the Central Public Sector Undertakings takes places every five years through collective bargaining, revision of wages of the Central Government employees in 10 years gives rise to serious disparity in wages and allowances of the Central Government employees, vis-a-vis those in Public Sector Undertakings, which is a major cause of discontentment among them. The Staff Side, therefore, demands that the wage revision of the Central Government employees must also take place after every 5 years on the analogy of CPUSs and therefore, Government must specify the date of effect of the recommendations of the 7th CPC accordingly, i.e. to take effect from 01.01.2011 in place of 01.01.2016.

2. Merger of DA with Pay

The wage revision of the Central Government employees takes place only through setting up of Central Pay Commissions, which has many a times proved to be a time consuming process. The 6th CPC submitted its report in the time frame provided to it, i.e. 18 months. Since the earlier Commissions had covered many aspects of the principles of wage determination and the periodicity of such revision had come down, the exercise might not now require a longer period of time as was the case earlier, still the 7th CPC shall require a reasonable time frame to go into the matter judiciously because the implementation of the recommendations of the 6th CPC have given rise to large number of anomalies and cadre related grievances.

The methodology adopted for compensating the erosion in the real value of wages in the interregnum period had always been though the mechanism of merger of a portion of DA. The 5th CPC had recommended that the DA must be merged with pay and treated as pay for computing all allowances as and when the percentage of Dearness compensation exceeds 50%. Accordingly even before the setting up of the 6th CPC the DA to the extent of 50% was merged with pay.

As on 1.1.2014, the Dearness compensation is 100%. The suggestion for merger of DA to partially compensate the erosion in the real wages was first mooted by the Gadgil Committee in the post 2nd Pay Commission period. The 3rd CPC had recommended such merger when the Cost of Living index crossed over 272 points i.e. 72 points over and above the base index adopted for the pay revision. In other words, the recommendation of the 3rd CPC was to merge the DA when it crossed 36%. The Government in the National Council JCM at the time of negotiation initially agreed to merge 60% DA and later the whole of the DA before the 4th CPC was set up. The 5th CPC merged 98% of DA with pay. It is, therefore, necessary that the Government takes steps to merge atleast 50% of DA with pay to compensate the erosion of the real value of wages immediately.

3. Appointment on compassionate grounds under the Central Government

Under the pretext of Hon’ble Supreme Court directives, the Central Government introduced a 5% ceiling on compassionate ground appointment. On account of this ceiling limit of 5%, a large number of cases of appointment on compassionate grounds of the dependents of the deceased Central Government employees have been pending in different departments, with the result that, the bereaved families of the late employees are constraints to face undue hardship due to loss of bread winner. Some of such candidates, belonging to Department of Posts, approached the Hon’ble Court of Law and obtained favourable orders, however, these directives have not been acted upon. The Government has chosen to dillydally by filing SLP in the Supreme Court.

It may be recalled that, the Central Administrative Tribunals were established with the intention of expeditious settlement of disputes on service matters. Even recently the Prime Minister’s office ordered that it would not be open for various Ministries to appeal against the orders of the Tribunal as a matter of course and efforts must be to explore the ways of acceptances of the judgements of the Tribunal. In the light of these directives, the SLP ought to have been withdrawn.

It is pertinent to further mention here that, the standing Committee on Department of Personnel in one of their reports has termed the scheme of compassionate ground appointments as a sacred assurance to a fresh entrant that if he dies in harness, his family shall not be left in lurch. Such an assurance is being breached by the provisions of limiting such appointments to 5% of vacancies.

The Staff Side is, therefore, of the firm view that this condition of 5% ceiling must be done away with to provide relief to the bereaved families of the deceased Central Government employees.

4. Regularisation of Casual/Contingent/Daily Rate workers

Due to ban on creation of posts and recruitment of personnel that continued for a very long period and the consequent strain on the existing workers, many departmental heads had to recruit personnel on daily rated basis or as casual workers. Thus, almost 25% of the present workforce in the Governmental organisations are casual workers deployed to do permanent and perennial nature of jobs, contrary to the prohibition of such unfair labour practices by the law of the land. In the fifties and sixties, even the casual workers who had been employed to do casual and non perennial jobs used to get priority for regular employment as and when vacancies for such permanent recruitment arise. It is, however, a matter of concern that thousands of persons are now recruited as casual workers and kept as such for years together and are paid pittance of a salary with no benefits, like Provident Fund, Dearness Allowance, other Compensatory Allowances etc. In order to ensure that they do not get the benefit of regularisation, these workers are technically discharged for a few days to be employed afresh again. The modus operandi differs from one department to another. While in some organisations, they are recruited through Employment Exchanges, in others, the functions are contracted out. Not only the quality of work suffers, but it is also an inhuman exploitation of the workers given the serious situation of unemployment that exists in the country. While the permanent solution is to sanction the necessary posts and resort to regular recruitment, the Government should evolve a scheme by which these casual/contingent/daily rated workers are made regular workers with all the concomitant benefits available for regular Government employees. Pending finalisation of such a scheme for regularisation, the non regular employees recruited for meeting the exigencies of work must be paid pro-rata salary on par with similarly placed regular employees on the principle of equal pay for equal work.

5. Downsizing, Outsourcing, Contractorisation etc.

To overcome the difficulties emanated from the total ban on recruitment and creation of posts and more specifically impacted by the 2001 executive fiat of the Government of India in the matter, many departments had to resort to outsourcing of its functions. Some were virtually closed down and a few others were privatised or contractorised. The large scale outsourcing and contractorisation of functions had a telling effect on the efficacy of the Government departments. The delivery system was adversely affected and the public at large suffered due to the inordinate delay it caused in getting the requisite service. The financial outlay for outsourcing of functions of each department increased enormously over the years, as a consequence of which, the quality of work suffered. In order to ensure that the people do get a better and efficient service from the Government departments and to raise the image of the Government employees in the eyes of the common people, it is necessary that the present scheme of outsourcing and contractorisation of essential functions of the Government must be abandoned. The practice of outsourcing and contractorisation is nothing but a cruel exploitation of the alarming situation of unemployment. The system of outsourcing of the functions seeks to informalise the workforce. The contract/casual workers get not even one third of the salary of the regular work force. They have no social security benefits like pension, provident fund gratuity etc. The Central Government employees fought against the temporary service rules which was in vogue in sixties and ensured that the recruitment to Government service is permanent and the civil servants are not allowed to be fired at the whim and fancy of their bosses. The outsourcing and contractorisation has paved way for large scale entry of casual workers and has resulted in the reversal of what all achieved in this direction through struggles in the past two decades.

The prevalent system of outsourcing and contractorisation, therefore, needs to be abandoned and all the regular and perennial nature works should be entrusted on regular Government employees only.

6. Revising Overtime Allowance(OTA) and Night Duty Allowance Rates

It may be seen that the Overtime Allowance is seldom paid to the Government employees. It is only in case of emergency and in the contingency in which the work cannot be postponed, like that happens in the Railways in smooth running of trains round the clock, in the RMS Division of Postal Department, in the Atomic Energy Commission offices or when the Parliament is in session in other administrative offices, employees are asked to do work beyond the stipulated working hours. The Night Duty Allowance is, however, paid to Government employees who have to work in night shifts with certain stipulated conditions. The 4th CPC recommended that since there had been considerable misuse of the provisions relating to grant of OTA, the Government should find alternative methods to compensate the employees who are asked to work on over time and pending such a scheme being evolved recommended not to revise the rates. However, the Government did not bring in any new scheme but issued the directive that the OTA and Night duty allowance will be paid to the employees who are called upon to do overtime or night duty on the basis of the 4th CPC pay structure. This directive is still in vogue.

Owing to certain disagreements with the Government on these issues, this matter was referred to Board of Arbitration under the JCM Scheme, whereupon the Board of Arbitration, having found unreasonable position taken by the Government, gave out the award in favour of the staff and directed the Government to revise the order whereby the allowance will be linked to the actual pay of the Government employees. The Government did not accept this award and decided to approach the Parliament for rejection of the same. The matter has not yet been placed in the form of a resolution in the Parliament. Despite the fact that the employees had been abiding by the directive of their superiors to be on overtime/night duty, and despite having won the case before the Board of Arbitration they continue to be compensated on the basis of the Notional pay as in 1986. There cannot be a much bigger injustice meted out to the employees. The Government must accept the award of the Board and issue instructions linking the Allowance to the actual pay of the employee.

7. Stepping up of pay of seniors who are drawing less pay than the juniors consequent on fixation of pay due to implementation of 6th CPC recommendations between Direct Recruits and Promotees

Consequent upon implementation of the recommendations of the VI CPC, in respect of pay scales of various categories of staff, there are certain situations where the senior who were promoted before 01.01.2006 are getting lesser pay than their juniors promoted after 01.01.2006, on fixation of their pay w.e.f. 01.01.2006. This, being a serious anomaly, has been raised by different department in their Departmental Anomalies Committees for redressal thereof. While clarifications regarding stepping up of pay of senior who are drawing less pay than the juniors between Direct Recruitees and Promotees, i.e. the seniors and juniors placed in a pay scale, having some Direct Recruitment Quota, have already been issued, whereby seniors’ pay has been stepped up and equated to the juniors. However, in grades where there is no element of Direct Recruitment available, this provision has not been made till date, with the result that, the seniors are still drawing lesser pay than their juniors after fixation of their pay in new pay scales w.e.f. 01.01.2006, which, being a serious anomaly, is resulting in discontentment prevailing among the seniors.

The main incongruity in this case is basically due to the fact that it is for the first time that the 6th CPC has recommended specific entry level pay for Direct Recruits (DRs). This has resulted in employees who were appointed in service prior to the DRs and got promoted earlier are getting less pay as compared to their counterparts recruited directly and who joined after 1.1.2006. It has always been the case that on promotion, the pay of a promoted employee is never fixed at less than the entry level of pay of that post as admissible to a direct recruit.

The Staff Side, therefore, is of the firm view that orders need to be issued to the effect that the pay on promotion w.e.f. 01.01.2006 would not be fixed less than at the prescribed minimum of the Entry Pay as provided for the Direct Entrants in the Revised Pay Rules, to eliminate this anomalous situation.

8. Stepping up of pay of senior employees at par with their juniors consequent upon implementation of MACPS
The Modified Assured Progression Scheme(MACPS) came into effect on 01.09.2008, and prior to this, Assured Career Progression(ACP) was in vogue. There are number of cases where the seniors who were promoted before implementation of the MACPS and the juniors who could not get normal promotion due to non-availability of vacancy or otherwise, and were extended the benefit of financial upgradation under MACPS on fulfillment of conditions laid down therein, the seniors are drawing lesser pay than their juniors under this scheme.

The MACP Scheme does not stipulate the provision of stepping up of pay of the seniors at par with their juniors, in case the seniors getting lesser pay than their juniors, which is absolutely unjustified and discriminative.

The Staff Side has repeatedly raised this issue in the MACPS’s Anomaly Committee as well, however, this discrepancy has not been done away with till date, with the result that, the seniors are still drawing lesser pay than their juniors, having been extended the benefit of financial upgradation under MACPS and this is causing deep sense of frustration prevailing among the seniors.

Staff Side, therefore, is of the firm opinion that the above-mentioned discrepancy needs to be addressed at the earliest to provide relief to the seniors.

9. Granting of Additional Pay to Loco & Traffic Running Staff

On the basis of recommendations of the 6th CPC, Additional Pay of Rs.1000 p.m. with appropriate Dearness Allowance has been granted in favour of Loco Pilot(Mail/Express)/Sr. Motorman(PB-II, GP Rs.4200)/(Rs.6000-9800)(5th CPC). Similarly, Rs.500 has been granted to Loco Pilot(Passenger II/ Motorman)(PB-II, GP Rs.4200)/(Rs.5500-9000)(5th CPC) and Guard(Mail/Exp.)(PB-II, GP Rs.4200) (Rs.5500-9000)(5th CPC). But the same Additional Pay has not been granted to rest of the Loco & Traffic Running Staff, causing great injustice to these set of Loco & Traffic Running Staff.

It would be quite appropriate that the Additional Pay should be granted in favour of all other categories of Loco & Traffic Running Staff.

Source: AIRF
[http://www.airfindia.com]

Seventh Central Pay Commissions Seeks Views of all Stake Holders

Seventh Central Pay Commissions Seeks Views of all Stake Holders

GOVERNMENT OF INDIA
SEVENTH CENTRAL PAY COMMISSION
9-1 WA, NEW DELHI-110001

Meena Agarwal
Secretary

D.O No. 7CPC/15/Questionnaire

9th April, 2014

Dear ………..,

As you may be aware the Seventh Central Pay Commissions has been constituted by the Government on 28 February 2014 with a view to go into various issues of emoluments’ structure, retirement benefits and other service conditions of Central Government employees and to make recommendations on the changes required. The terms of reference of the Seventh Central Pay Commission are available on the http://7cpc.india.gov.in .

2. A Questionnaire seeking the considered views of all stakeholders is enclosed. The response of your Ministry to this Questionnaire is sought. I shall be grateful if the replies are furnished to the Commission on or before 10th May, 2014, so as to enable the Commission to take them into account as part of its examination of the issues that it is mandated to address. The reply may be sent to Post Box No. 4599, Hauz Khas P.O, New Delhi 110 016, and in the case of email to secy-7cpc@nic.in.

Encl:- As above.

With Regards,

Yours sincerely,

(Meena Agarwal)

To all Secretaries to Govt of India

7th CPC Questionnaire

1. Salaries

1.1 The considerations on which the minimum salary in case of the lowest Group ‘C’ functionary and the maximum salary in case of a Secretary level officer may be determined and what should be the reasonable ratio between the two.

1.2 What should be the considerations for determining salary for various levels of functions falling between the highest level and the lowest level functionaries?

2. Comparisons

2.1 Should there be any comparison/parity between pay scales and perquisites between Government and the private sector? If so, why? If not, why not?

2.2 Should there at all be any comparison/parity between pay scales and perquisites between Government and the public sector? If so, why? If not, why not?

2.3 The concept of variable pay has been introduced in Central Public Sector Enterprises by the Second Pay Revision Committee. In the case of the Government is there merit in introducing a variable component of pay? Can such variable pay be linked to performance?

3. Attracting Talent

3.1 Does the present compensation package attract suitable talent in the All India Services & Group A Services? What are your observations and suggestions in this regard?

3.2 To what extent should government compensation be structured to attract special talent?

4. Pay Scales

4.1 The 6th Central Pay Commission introduced the system of Pay Bands and Grade Pay as against the system of specific pay scales attached to various posts. What has been the impact of running pay bands post implementation of 6th CPC recommendations?

4.2 Is there any need to bring about any change?

4.3 Did the pay bands recommended by the Sixth CPC help in arresting exodus and attract talent towards the Government?

4.4 Successive Pay Commissions have reduced the number of pay scales by merging one or two pay scales together. Is there a case for the number of pay scales/ pay band to be rationalized and if so in what manner?

4.5 Is the “grade pay” concept working? If not, what are your alternative suggestions?

5. Increment

5.1 Whether the present system of annual increment on 1 st July of every year uniformly in case of all employees has served its purpose or not? Whether any changes are required?

5.2 What should be the reasonable quantum of annual increment?

5.3 Whether there should be a provision of variable increments at a rate higher than the normal annual increment in case of high achievers? If so, what should be transparent and objective parameters to assess high achievement, which could be uniformly applied across Central Government?

5.4 Under the MACP scheme three financial up-gradations are allowed on completion of 10, 20, 30 years of regular service, counted from the direct entry grade. What are the strengths and weaknesses of the scheme? Is there a perception that a scheme of this nature, in some Departments, actually incentivizes people who do not wish to take the more arduous route of qualifying departmental examinations/ or those obtaining professional degrees?

6. Performance

What kind of incentives would you suggest to recognize and reward good performance?

7. Impact on other organizations

Salary structures in the Central and State Governments are broadly similar. The recommendations of the Pay Commission are likely to lead to similar demands from employees of State Governments, municipal bodies, panchayati raj institutions & autonomous institutions. To what extent should their paying capacity be considered in devising a reasonable remuneration package for Central Govt. employees?

8. Defence Forces

8.1 What should be the considerations for fixing salary in case of Defence personnel and in what manner does the parity with civil services need to be evolved, keeping in view their respective job profiles?

8.2 In what manner should the concessions and facilities, both in cash and kind, be taken into account for determining salary structure in case of Defence Forces personnel.

8.3 As per the November 2008 orders of the Ministry of Defence, there are a total of 45 types of allowances for Personnel Below Officer Rank and 39 types of allowances for Officers. Does a case exist for rationalization/ streamlining of the current variety of allowances?

8.4 What are the options available for addressing the increasing expenditure on defence pensions?

8.5 As a measure of special recognition, is there a case to review the present benefits provided to war widows?

8.6 As a measure of special recognition, is there a case to review the present benefits provided to disabled soldiers, commensurate to the nature of their disability?

9. Allowances

9.1 Whether the existing allowances need to be retained or rationalized in such a manner as to ensure that salary structure takes care not only of the job profile but the situational factors as well, so that the number of allowances could be at a realistic level?

9.2 What should be the principles to determine payment of House Rent Allowance?

10. Pension

10.1 The retirement benefits of all Central Government employees appointed on or after 1.1.2004 a re covered by the New Pension Scheme (NPS). What has been the experience of the NPS in the last decade?

10.2 As far as pre-1.1.2004 appointees are concerned, what should be the principles that govern the structure of pension and other retirement benefits?

11. Strengthening the public governance system

11.1 The 6th CPC recommended upgrading the skills of the Group D employees and placing them in Group C over a period of time. What has been the experience in this regard?

11.2 In what way can Central Government organizations functioning be improved to make them more efficient, accountable and responsible? Please give specific suggestions with respect to:

a) Rationalisation of staff strength and more productive deployment of available staff;

b) Rationalisation of processes and reduction of paper work; and c) Economy in expenditure.

12. Training/ building competence

12.1 How would you interpret the concept of “competency based framework”?

12.2 One of the terms of reference suggests that the Commission recommend appropriate training and capacity building through a competency based framework.

a) Is the present level of training at various stages of a person’s career considered adequate? Are there gaps that need to be filled, and if so, where?
b) Should it be made compulsory that each civil service officer should in his career span acquire a professional qualification? If so, can the nature of the study, time intervals and the Institution(s) whose qualification are acceptable, all be stipulated?
c) What other indicators can best measure training and capacity building for personnel in your organization? Please suggest ways through which capacity building can be further strengthened?

13. Outsourcing

13.1 What has been the experience of outsourcing at various levels of Government and is there a case for streamlining it?

13.2 Is there a clear identification of jobs that can be outsourced?

14. Regulatory Bodies

14.1 Kindly list out the Regulators set up unde r Acts of Parliament, related to your Ministry/ Department. The total number of personnel on rolls (Chairperson and members + support personnel) may be indicated.

14.2 Regulators that may not qualify in terms of being set up under Acts of Parliament but perform regulatory functions may also be listed. The scale of pay for Chairperson /Members and other personnel of such bodies may be indicated.

14.3 Across the Government there are a host of Regulatory bodies set up for various purposes. What are your suggestions regarding emoluments structure for Regulatory bodies?

15. Payment of Bonus

One of the terms of reference of the 7th Pay Commission is to examine the existing schemes of payment of bonus. What are your suggestions and observations in this regard?

Source:7cpc.india.gov.in

Child Care Leave for 730 days – Hon’ble Supreme Court Judgement

Child Care Leave for 730 days – Hon’ble Supreme Court Judgement


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 4506 OF 2014

(arising out of SLP (C) No. 33244 of 2012)



KAKALI GHOSH                                                                                                … APPELLANT

                                                             VERSUS

CHIEF SECRETARY,

ANDAMAN & NICOBAR

ADMINISTRATION AND ORS.                                                                       … RESPONDENTS


J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

                     Leave granted.

2. This appeal has been directed against the judgment dated 18th September, 2012 passed by the High Court of Calcutta, Circuit Bench at Port Blair. By the impugned judgment, the Division Bench of the Calcutta High Court allowed the writ petition and set aside the judgment and order dated 30th April, 2012 passed by the Central Administrative Tribunal Calcutta, Circuit Bench at Port Blair (hereinafter referred to as, ‘the Tribunal’).

3. The only question which requires to be determined in this appeal is whether a woman employee of the Central Government can ask for uninterrupted 730 days of Child Care Leave (hereinafter referred to as, -

‘the CCL’) under Rule 43-C of the Central Civil Services (Leave) Rules, 1972 (hereinafter referred to as, ‘the Rules’).

4. The appellant initially applied for CCL for six months commencing from 5th July, 2011 by her letter dated 16th May, 2011 to take care of her son who was in 10th standard. In her application, she intimated that she is the only person to look after her minor son and her mother is a heart patient and has not recovered from the shock due to the sudden demise of her father; her father-in-law is almost bed ridden and in such circumstances, she was not in a position to perform her duties effectively. While her application was pending, she was transferred to Campbell Bay in Nicobar District (Andaman and Nicobar) where she joined on 06th July, 2011. By her subsequent letter dated 14th February, 2012 she requested the competent authority to allow her to avail CCL for two years commencing from 21st May, 2012. However, the authorities allowed only 45 days of CCL by their Office Order No. 254 dated 16th March, 2012.

5. Aggrieved appellant then moved before the Tribunal in O.A. No.47/A&N/2012 which allowed the application by order dated 30th April,2012 with following observation:-

“12. Thus O.A. is allowed. Respondents are accordingly directed to act strictly in accordance with DOPT O.M. dated 11.9.2008 as amended/clarified on 29.9.2008 and 18.11.2008, granting her CCL for the due period. No costs.”

6. The order passed by the Tribunal was challenged by respondents before the Calcutta High Court which by impugned judgment and order dated 18th September, 2012 while observing that leave cannot be claimed as a right, held as follows:

“It is evident from the provisions of sub r.(3) of r.43-C of the rules that CCL can be granted only according to the conditions mentioned in the sub-rule, and that one of the conditions is that CCL shall not be granted for more than three spells in a calendar year. It means that CCL is not to be granted for a continuous period, but only in spells.

From the provisions of sub r.(3) of r.43-C of the rules it is also evident that a spell of CCL can be for as less as 16 days. This means that in a given case a person, though eligible to take CCL for a maximum period of 730 days, can be granted CCL in three spells in a calendar year for as less as 48 days.”

The High Court further observed:

“Whether an eligible person should be granted CCL at all, and, if so, for what period, are questions to be decided by the competent authority; for the person is to work in the interest of public service, and ignoring public service exigencies that must prevail over private exigencies no leave can be granted.”

7. Learned counsel for the appellant submitted that there is no bar to grant uninterrupted 730 days of CCL under Rule 43-C. The High Court was not justified in holding that CCL can be granted in three spells in a calendar year as less as 48 days at a time. It was also contended that the respondents failed to record ground to deny uninterrupted CCL to appellant for the rest of the period.

8. Per contra, according to respondents, Rule 43-C does not permit uninterrupted CCL for 730 days as held by the High Court.

9. Before we proceed to discuss the merits or otherwise of the above contentions, it will be necessary for us to refer the relevant Rule and the guidelines issued by the Government of India from time to time.

10. The Government of India from its Department of Personnel and Training vide O.M. No. 13018/2/2008-Estt. (L) dated 11th September, 2008 intimated that CCL can be granted for maximum period of 730 days during the entire service period to a woman government employee for taking care of upto two children, relevant portion of which reads as follows:

     “Child Care Leave for 730 days.

            Women employees having minor children may be granted Child Care Leave by an authority competent to grant leave, for a maximum period of two years (i.e. 730 days) during their entire service for taking care of up to two children, whether for rearing or to look after any of their needs like examination, sickness, etc. Child Care Leave shall not be admissible if the child is eighteen years of age or older. During the period of such leave, the women employees shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. It may be availed of in more than one spell. Child Care Leave shall not be debited against the leave account. Child Care Leave may also be allowed for the third year as leave not due (without production of medical certificate). It may be combined with leave of the kind due and admissible.”

11. It was followed by Circular issued by Government of India from its Personnel and Training Department vide O.M. No. 13018/2/2008- Estt. (L), dated 29th September, 2008 by which it was clarified that CCL
would be also admissible to a woman government employee to look after third child below 18 years of age, which is as follows:

     “(2) Clarifications:-

The question as to whether child care leave would be admissible for the third child below the age of 18 years and the procedure for grant of child care leave have been under consideration in this Department, and it has now been decided as follows:-

i) Child Care Leave shall be admissible for two eldest surviving children only.

ii) The leave account for child care leave shall be maintained in the pro forma enclosed, and it shall be kept along with the Service Book of the Government Servant concerned.”

12. Rule 43-C was subsequently inserted by Government of India, Department of Personnel and Training, Notification No. F.No. 11012/1/2009- Estt. (L) dated 1st December, 2009, published in G.S.R. No. 170 in the Gazette of India dated 5th December, 2009 giving effect from 1st September, 2008 as quoted below:-

      “43-C. Child Care Leave

1) A women Government servant having minor children below the age of eighteen years and who has no earned leave at her credit, may be granted child care leave by an authority competent to grant leave, for a maximum period of two years, i.e. 730 days during the entire service for taking care of up to two children, whether for rearing or to look after any of their needs like examination, sickness, etc.

2) During the period of child care leave, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

3) Child care leave may be combined with leave of any other kind.

4) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).

5) Child care leave may be availed of in more than one spell.

6) Child care leave shall not be debited against the leave account.”

13. On perusal of circulars and Rule 43-C, it is apparent that a woman government employee having minor children below 18 years can avail CCL for maximum period of 730 days i.e. during the entire service period for taking care of upto two children. The care of children is not for rearing the smaller child but also to look after any of their needs like examination, sickness etc. Sub Rule (3) of Rule 43-C allows woman government employee to combine CCL with leave of any other kind. Under Sub Rule (4) of Rule 43- C leave of the kind due and admissible to woman government employee including commuted leave not exceeding 60 days; leave not due up to a maximum of one year, can be applied for and granted in continuation with CCL granted under Sub Rule (1). From plain reading of Sub Rules (3) and (4) of Rule 43-C it is clear that CCL even beyond 730 days can be granted by combining other leave if due. The finding of the High Court is based neither on Rule 43-C nor on guidelines issued by the Central Government. The Tribunal was correct in directing the respondents to act strictly in accordance with the guidelines issued by the Government of India and Rule 43-C.

14. In the present case, the appellant claimed for 730 days of CCL at a stretch to ensure success of her son in the forthcoming secondary/senior examinations (10th/11th standard). It is not in dispute that son was minor below 18 years of age when she applied for CCL. This is apparent from the fact that the competent authority allowed 45 days of CCL in favour of the appellant. However, no reason has been shown by the competent authority for disallowing rest of the period of leave.

15. Leave cannot be claimed as of right as per Rule 7, which reads as follows:

     “7. Right to leave

(1) Leave cannot be claimed as of right.

(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.”

However, under Sub-Rule (2) of Rule 7 leave can be refused or revoked by the competent authority in the case of exigencies of public service.

16. In fact, Government of India from its Ministry of Home Affairs and Department of Personnel and Training all the time encourage the government employees to take leave regularly, preferably annually by its Circular issued by the Government of India M.H.A.O.M. No. 6/51/60-Ests. (A), dated 25th January, 1961, reiterated vide Government of India letter dated 22/27th March, 2001. As per those circulars where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority may draw up phased programme for the grant of leave to the applicants by turn with due regard to the principles enunciated under the aforesaid circulars.

17. In the present case the respondents have not shown any reason to refuse 730 days continuous leave. The grounds taken by them and as held by High Court cannot be accepted for the reasons mentioned above.

18. For the reasons aforesaid, we set aside the impugned judgment dated 18th September, 2012 passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated 30th April, 2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/production of this judgment.

19. The appeal is allowed with aforesaid directions. No costs.

………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA) 
……………………………………………….J. 
(V. GOPALA GOWDA)

NEW DELHI,
APRIL 15, 2014.

Source/View/Download: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41412

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