Author- Ridhima, student of Panjab University Regional Centre, Ludhiana
Case Title- Shalini Dharmani vs. 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
To the point
Parents play a significant role in the development of their child. They are their first teachers, friends and role models. From the moment a child is born, parents provide love, care and attention, which are essential for the overall development of the children. No doubt, a child needs parents in every age, but up to a certain age children need proper care and attention for their proper development. A strong foundation is the key to a strong structure. So to make a child strong the early years of child’s growth are very crucial. They need their parents the most at that time. But in current scenario, for better livelihood, both the parents started working and they can hardly put much time into their children. But it is important to understand that child needs parents the most at that time. Parents also wanted to spend time with their child but they are helpless. And here comes the role of ‘child care leave’. Child care leave is a policy under which leave is granted to mothers for taking care of their children, specifically considering the requirements for children with special needs.
Abstract
Shalini Dharmani (herein referred as petitioner), is an assistant professor in Government College. Her son, who is fourteen years old, is suffering from a rare genetic disorder, named as Osteogenesis Imperfecta and has undergone several surgeries since his birth. For leading a normal and healthy life, he requires continuous treatment. And as he was a small child who cannot look after himself, his mother needs to take care of him. The petitioner, the mother of the son needs to provide constant care, treatment and attention to him for leading a healthy life. Due to the continuous treatment of her son, the petitioner has exhausted all her leave sanctioned to her. And she has no more authorised leaves. On further request for leave, 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 seeking 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. 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 then 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.
Use of legal jargon
The case of Shalini Dharmani vs. State of Himachal Pradesh revolves around the adoption of child care leave by the state of Himachal Pradesh. Rule 43 C of the Central Civil Services (Leave) Rules, 1972, provides with the facility of Child Care Leave(CCL) for female government services. It allows a maximum of 730 days of CCL during their entire service, specifically for taking care of two eligible children (under 18 years of age). This leave can be taken for various reasons, like for nurturing or meeting any of their needs such as education or sickness.
Under this case law, the child care leave was demanded for taking care of a child who was suffering from rare genetic disorder. So this case specifies the role of CCL in case of disabled children in relevance with Rights of Persons with Disabilities Act, 2016.
The right to work is a fundamental right of every person provided under the Constitution of India. Denying women CCL will stop her from earning her livelihood and hence violates Article 14, 15, 21 and 42 of Constitution of India as such leave is not a welfare measure but a constitutional obligation.
The proof
The petitioner contended that doing work for earning livelihood is her right provided under Article 14, 15,19,21 of the constitution of India. These provisions along with right to work provide with right to have leave benefits, especially as a mother of a child with disabilities. The petitioner also contended and requested the court to direct the state to adopt CCL rules and to reconsider granting her special leave. The contentions of petitioner also include the consequences of non-adoption of CCL rules as this will lead to gender inequality. And if child care leave will not be granted to the women, this means they are forced to have their work, which is their constitutional right. Participation of women in the workforce is constitutional entitlement and denying mother’s child care leave violates this.
The state on the other side contended that Rule 43C of Child Care leave was explicitly deleted from Himachal Pradesh’s service rules and could not be applied in the petitioner’s case. They contended that as the state not formally adopted the central rule, the petitioner had no statutory entitlement to CCL under Himachal Pradesh’s existing leave regime.
Case laws
Sushma Sharma vs. State of Madhya Pradesh(2017)
The court held that petitioner is held entitled for child care leave and held a person employed or merged under these rules shall be entitled for leave similar as regular teachers in school education department.
Deepika Singh vs. CAT & others (2022)
Although not strictly about CCL, the Supreme Court expanded the legal definition of “family” and held that maternity or leave rights cannot be denied based on prior use of family related leave in blended families- for example, when caring for non-biological children. It reflects a broader trend towards inclusive caregiving rights under Article 14.
Calcutta Girls College vs. Assistant Professor (2025)
In this matter, the Calcutta High Court condemned the college for retrospectively cancelling 189 days of Child Care Leave and directing the petitioner-a female assistant professor-to refund her salary for the period despite being eligible under existing norms.
The court held that she had validly availed leave to take care of her 13 month old twin daughters and was well within the 730 day CCL entitlement. Notably, the court emphasized the importance of granting CCL during infants crucial years and observed that denying such benefits could amount to indirectly breaking the law.
NIMHANS vs. S. Anitha Joseph (2025)
In Nov 2024, the Karnataka High court upheld the order of CAT to grant 120 days of CCL to a female ICU nurse, overruling her employer’s refusal based on operational concerns. The court ruled that while administrative exigencies are relevant, they cannot override a valid constitutional entitlement to child care under Article 21 and 42 of the constitution.
Conclusion
Denying a woman her right to have child care leave is the violation of her fundamental rights. Even there a lot of landmark judgements in India which addressed the issue of child care leave, solidifying its status as a constitutional right for women in employment. CCL is not merely a privilege but a constitutional entitlement protected under Articles 14,15 and 21 of the constitution. Denying CCL can force women to leave the workforce, particularly mothers of children with special needs, hindering their career progression and overall contribution to the economy.
FAQs
What is Child Care Leave?
Child Care Leave is a policy available to female government employees. It is provided for maximum of 730 days in the entire service period. And under this the salary of the employee is not deducted. The purpose of child care leave is to take care of upto two children for sickness, exams, school functions and general well being. Rule 43-C of Central Civil Services (Leave) Rules, 1972 provides with Child Care Leave.
Why child care leave is essential for women?
The provision of child care leave is provided under Rule 43-C of Central Civil Services (Leave) Rules, 1972. As in modern era, for better lifestyle and survival, it becomes necessary for both the parents to work to secure the future of their children. Due to this, they give very less time to their children. But it is important to understand that parents are the first friends, mentors and role models of a child. And infants need more time to spend with their parents especially when the child is suffering from any kind of disability. So keeping this view in mind the government provides with the policy of child care leave to the government employees for 730 days without deducting their salary, so that they can spend time with their child and can take care of the child.
Which sates have policy of Child Care Leave?
Many states and union territories have policy of child care leave. States like Delhi, Punjab, Himachal Pradesh, Uttar Pradesh, Haryana, Kerala, West Bengal, Maharashtra, Tamil Nadu, Odisha, Chattisgarh, Jharkhand, Assam and union territories like Chandigarh and Puducherry.
