Shalini Dharmani v. State of Himachal Pradesh & Ors

CASE TITLE: Shalini Dharmani v. 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

DATE OF JUDGEMENT:  APRIL 22,2024

INTRODUCTION

The case primarily deals with the child care leave. The petitioner relying on the Rule 43-C of the central civil services ( leave ) rules , 1972[i]  sought further leave after exhausting her sanctioned leave . After rejection of the leave by principal , she approached the high court of Himachal Pradesh . The High court of Himachal pradesh  also rejected her request on the ground that the policy has not been adopted  by the state of Himachal Pradesh .  In a special leave petition against the decision of high court of Himachal Pradesh , a two judges bench of Hon’ble CJI DY Chandrachud and Hon’ble justice J.B Pardiwala  directed the Himachal Pradesh govt. To reconsider the aspect of granting child care leave including special provisions concerning mothers who are bringing up children with special needs , with  special attention to the object and purpose of Rights of persons with Disabilities Act , 2016 . [ii]

The case marks as a significant step in promotion of inclusive and fair workplace .

FACTS

Shalini Dharmani  , an assistant professor in Himachal Pradesh ,sought child care leave to care for her 14 year old son suffering from a rare genetic disorder namely ‘osteogenesis imperfecta’ . For the same reason, the petitioner’s son needs constant care, treatment and attention for him to lead a healthy life.

After exhausting her sanctioned leaves ., she sought leave under section 43-C  of the Central Civil service (Leave) Rules 1972 which provides that “ a woman 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 upto two children whether for rearing or to look after any of their needs like examination, sickness, etc. ” Also by an Office Memorandum dated 3 March 2010, the Union Government 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.

However , the Principal of the said college on 16^th November 2018 denied her leave because the Government of Himachal Pradesh had not enacted legislation on “Child Care Leave,” making her ineligible for leave from the college.  Thereafter , the petitioner under article 226 of the Constitution of India approached the high court of Himachal Pradesh by filing writ petition seeking direction for adoption of the central civil services (leave) rules , 1972. Her writ petition was dismissed by the high court  , prompting her to appeal to the supreme court .  Subsequently, the petitioner filed a Special Leave Petition opposing the judgement of the Himachal Pradesh High Court dated 23- 04 – 2021 . [iii]

ISSUE

• Whether the State of Himachal Pradesh should include a Child Care Leave Policy for working mothers, with special attention to the Rights of Persons with Disabilities Act, 2016?
• Whether the absence of child care leave to a working mother of a child with special needs , consistent with constitutional rights under article 14 , 15 , 19 (1) (g) and 21 of the constitution of India ?

ARGUMENTS PRESENTED

Petitioner’s Arguments:

1. Shalini Dharmani, an Assistant Professor in Himachal Pradesh, sought CCL to care for her 14-year-old son suffering from Osteogenesis Imperfecta , a rare genetic disorder requiring continuous medical attention . Having exhausted her sanctioned leave, her request for CCL was denied on the grounds that the state had not adopted Rule 43-C of the Central Civil Services (Leave) Rules, 1972, which permits CCL for women employees.
2. Dharmani contended that this denial violated her fundamental rights under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India[iv] , which guarantee equality, prohibit discrimination, and protect the right to life and personal liberty.
3. She also invoked the section 80 of the Rights of Persons with Disabilities Act, 2016, arguing that the state’s inaction failed to support caregivers of children with disabilities .

Respondent’s Arguments:

1. The State of Himachal Pradesh argued that the child care leave policy was not mandatory to be adopted accordingly the state maintained it’s own leave policy and hence the state was not liable to provide the petitioner with leave .
2. The state maintained that it was state’s discretion to adopt the policy or not and that its omission did not constitute a violation of constitutional rights.
3. The High Court upheld this stance, dismissing Dharmani’s petition on the basis that the state had the discretion to adopt or reject specific service rules .

COURT’S REASONING AND ANALYSIS

The Hon’ble Supreme Court cited Rule 43-C of the Central Civil Service (Leave) Rules, 1972, which addresses “Child Care Leave” for working mothers, the said rule allows for child care leave to female government employees who have minor children. During the period of child care leave, she would be paid a leave salary equal to the pay drawn immediately before proceeding on leave. The competent authority may provide such leave during the entire service tenure for a maximum period of 2 years. Further, the Union, subject to conditions from time to time also permitted for Child Care Leave to working mothers of children with exceptional needs till the age of twenty-two years, by way of an Office Memorandum dated March 3, 2010.

The Supreme Court emphasized that “ women being a part of the workforce is a constitutional right, not a privilege” by citing Articles 14, 15 and 21 of the Constitution of India beside article 19(1)(g). [v]

There may arise situations wherein a working mother might have to attend to the needs of the Child, in such a scenario the provisions of Child Care Leaves play a pivotal role as it allows for paid leave to women to attend to the needs of their children. If such a provision is not granted to the women  workforce then a working mother might be compelled to leave the employment to attend to the needs of the child, especially if such a child is a child with special needs which arose in the present context.

The court contended that discrimination starts when unequal are treated in same manner. Equality matters but that does not eliminate the special areas of concern which might arise for woman employees. Therefore , the unique needs of female caregivers must be considered .

RATIO DECIDENDI

The binding legal principle (ratio decidendi) established by the Supreme Court in Shalini Dharmani v. State of Himachal Pradesh is:

• Child Care Leave (CCL), especially for mothers of children with special needs, must be in conformity with Articles 14, 15, and 21 of the Constitution, read with the Rights of Persons with Disabilities Act, 2016. State government of Himachal Pradesh as directed by the Supreme court is constitutionally obligated to adopt and implement leave policies that accommodate the needs of women, especially those caring for persons with disabilities.
• Employment policies must be aligned with constitutional guarantees and welfare legislation, such as the Rights of Persons with Disabilities Act, 2016, which mandates reasonable accommodation for caregivers.

JUDGEMENT

 The final order emphasized that the policies of the state have to be consistent and must be synchronise with constitutional protections and safeguards :

1. The supreme court directed the state of Himachal Pradesh 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 .
2. The State Government was directed to constitute a high-level committee chaired by the chief secretary of the state of Himachal Pradesh including the state commissioner of RPWD act ,be constituted to examine and recommend necessary amendments or adoptions in service rules to ensure conformity with constitutional principles .
3. The committee so constituted shall engage with (i) Secretary in the Department of Women and Child Development and (ii) Secretary in the Social Welfare Department (Department of Empowerment of Persons with Disabilities) of the Union Government.
4. The report of the Committee which shall be prepared by 31 July 2024 shall be placed before the competent authority so that a considered policy decision is taken expeditiously.[vi]

CRITICAL ANALYSIS

The court approach towards implementing constitutional principles in employment benefits marks a significant shift from the formal equality  approach to substantive equality. This requires governments to tailor legislation to respond to the realities of women’s lives which is a great initiative towards promotion of inclusive and fair workplace.

The court also connected the issue with the challenges that a working mother of a child with special needs deals with , directing the state to make special provisions in consideration with the Rights of Persons with Disabilities Act ,2016 .

However,  the court intervened in policy making as it did not just directed to implement an already existing legislation but directed the state government to constitute a committee and reconsider it’s policy . It might be in line with constitutional grounds but it also raises concerns about judicial overreach and separation of powers .

The judgement raises a significant question that if the relief was adequate . it was a progressive decision in favour of the petitioner and the state of Himachal Pradesh but it doesn’t subsequently create a comprehensive CCL entitlement to other similarly  situated women . Also child care leave is not exclusively a women issue , in this case the petitioner was not simply seeking the leave as a woman but as a caregiver of a child with special needs. The caregiving responsibilities can also be on the father .  A broader policy could have dealt with  unique problems relating to the child care leave .

CONCLUSION

In conclusion , the case emphasizes that every law, policy and administrative actions must conform to the grundnorm particularly the essential principles such as equity , fairness and non arbitrariness and the golden triangle of the constitution of India ( Article 14,19 and 21 ) . It also represent a important step towards dignity at workplace and protection of  parents caring for children with disabilities . It emphasizes that the government policies should be in conformity with substantive equality which enables women to participate in employment without being forced to choose between career and welfare of their children .

Reference(S):

[i] Central Civil Services (Leave) Rules 1972 (India), r 43-C

[ii] Rights of Persons with Disabilities Act 2016 (India)

[iii] Shalini Dharmani v The State of Himachal Pradesh, SLP(C) No 16864/2021 (Supreme Court of India, 22 April 2024) https://www.casemine.com/judgement/in/66297d3b93f68d5716028045(accessed 10 August 2026).

[iv] Constitution of India, Articles 14, 15, 19(1)(g) and 21

[v] Avishikta Biswas, ‘Case Analysis: Shalini Dharmani v. State of Himachal Pradesh & Ors, (2024) | Child Care Leave’ (13 May 2024) https://www.legalbites.in/landmark-judgements/case-analysis-shalini-dharmani-v-state-of-himachal-pradesh-ors-2024-child-care-leave-1030140 (accessed 10 August 2026)

[vi] Shalini Dharmani v State of Himachal Pradesh & Ors, SLP (C) No 16864 of 2021 (22 April 2024)    https://www.casemine.com/judgement/in/66297d3b93f68d5716028045 (accessed 11 august 2026)