The Study-Leave Circular That Said 'May'
Sagarmatha Multipurpose Cooperative, based in Lalitpur with 46 staff, issued a one-page HR circular in Baisakh. The operative paragraph reads: 'Staff who have completed one year of service may apply for study leave of up to 30 days in a fiscal year. Study leave shall not be granted during the internal audit period. Employees availing study leave may be required to attend office at short notice. The department head may approve or reject an application, and his decision shall be final.'
Two disputes have arisen. Bina, with 14 months of service, applied for 30 days beginning two weeks before the internal audit; the head rejected the application outright, saying the leave would overlap the audit. Suman, rejected last year, argues that 'may apply' means the cooperative cannot refuse to receive an application at all, and that 'may be required to attend office' makes any grant meaningless. A board member claims 'shall not be granted' only bars the leave from starting during the audit, not from continuing through it. The chairperson asks you, as an outside reviewer, to settle the text, not the people.
1. Identify the drafting faults in the paragraph and explain, with reference to specific words, how each fault produces one of the disputes described.
Read the worked answer
Two core faults, two disputes.
'May apply' is doing two jobs. Read as permission granted to staff, it means staff are entitled to apply; read as a discretion of the office, it means the head decides whether an application is even entertained. Suman exploits exactly this, taking 'may' as vesting a right in the employee, while the head takes it as vesting discretion in the office. The circular never separates the right to apply from the power to approve.
'Shall not be granted during the internal audit period' has a scope ambiguity. The phrase can modify the act of granting (a prohibition on saying yes at the moment of decision) or the whole span of the leave (a prohibition on any leave that overlaps the audit). Bina's case turns on this: her leave begins before the audit but runs through it.
Two softer faults. 'May be required to attend office at short notice' reserves an unrestricted right of recall, which makes a 30-day grant illusory. 'His decision shall be final' removes review without saying so, and the gendered pronoun signals how loosely the paragraph was checked.
The diagnostic habit: a dispute over meaning is usually a missing criterion, not a difficult word.
2. Rewrite the operative paragraph so that all three disputes disappear while keeping the original policy intent.
Read the worked answer
Rewritten clause set
'An employee with at least twelve months' continuous service is entitled to apply for study leave of up to 30 working days in a fiscal year. The leave may not begin, and may not continue, on any day of the internal audit period; where an application overlaps that period, it will be approved only for the days falling outside it. An employee on study leave may be recalled to office only for an emergency certified in writing by the head, and recalled days are restored to the employee's leave balance. The head must decide an application in writing within seven working days, and that decision may be appealed to the chief executive within 15 days.'
Why each dispute dies: 'is entitled to apply' fixes the right in the employee, so Suman's reading becomes the correct one. 'May not begin, and may not continue' closes the overlap loophole, so Bina is told precisely which days she may take. The conditional recall power makes short-notice attendance exceptional and compensable rather than fatal. Appeal replaces 'final', and the gendered pronoun is gone.
What has not changed: 30 days, the audit blackout, the recall power, and the head's authority to refuse. Good redrafting resolves ambiguity without quietly rewriting policy - if the head wanted the power to refuse all study leave, that should be stated, argued and approved, not smuggled in through a modal verb.
3. A staff member argues: 'If the head "may" approve, then approval is optional; but the circular also says study leave "shall not be granted" during audit, which is compulsory, so the two words contradict each other.' Evaluate this argument.
Read the worked answer
The argument confuses two different kinds of modal operator.
'May approve' confers a discretion: it states that the head has the power to approve and, by implication, to refuse, but it does not state the criteria. 'Shall not be granted' imposes a prohibition on the office: it removes the power to grant in specified circumstances. A discretion and a prohibition operate at different levels and coexist without contradiction - the head holds a discretion that may not be exercised during the audit period. There is no clash because 'may' governs the person and 'shall not' governs the act.
The apparent contradiction comes from reading 'may' as a prediction about what will happen ('possibly will be approved') rather than as a statement about authority. Under that reading an optional approval and a mandatory refusal do collide. In regulatory drafting, however, 'may' is permissive, 'shall'/'must' is mandatory, 'may not' is prohibitive, and none is a prediction.
The practical lesson for the cooperative: use 'may' only where genuine discretion is intended, then write down the criteria for exercising it. Where the writer means 'is entitled to', write that; where the writer means 'must', write 'must'. The staff member's argument fails on the text but succeeds as a criticism of drafting quality - which is the useful conclusion for the chairperson.