Central Administrative Tribunal - Delhi
Mrs. Sneh Lata Khanna vs All India Institute Of Medical Sciences on 23 April, 2013
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1268/2012
Reserved on: 07.11.2012
Pronounced on: 23.04.2013.
Honble Mr. Sudhir Kumar, Member (A)
Mrs. Sneh Lata Khanna,
W/o Mr. Praveen Khanna,
R/o C-7/1, Mianwali Nagar,
New Delhi. -Applicant
(By Advocate: Shri Puneet Aggarwal)
Versus
1. All India Institute of Medical Sciences
Through its Director,
Ansari Nagar,
New Delhi-110029.
2. The Medical Superintendent
All India Institute of Medical Sciences
Ansari Nagar, New Delhi-110029.
3. The Administrative Officer (H),
All India Institute of Medical Sciences
Ansari Nagar,
New Delhi-110029. -Respondents
(By Advocate: Shri Sanjay Joshi)
O R D E R
This is an application filed by the applicant, who had joined the services with the Respondent No.1, All India Institute of Medical Sciences (AIIMS) on 07.04.1986 as a Staff Nurse pursuant to the Memorandum issued to her on 10.03.1986 at Annexure P/1. She was thereafter serving with the Respondent-Institute till she applied for Extra Ordinary Leave (EOL, in short) on personal grounds to go abroad, and to visit London, (U.K.) for 2 years, and was granted EOL without pay for 2 years w.e.f. 05.11.2008 to 31.10.2010 with permission to leave the country to visit London (U.K.) through Annexure P-11 dated 17.11.2008. The applicant has submitted that before her leave could end, the respondents asked her to rejoin her duties, which she did on 09.08.2010. Soon after rejoining back to her duties, on 11.08.2010 she applied for voluntary retirement from her service, which retirement could not have been granted to her without her joining back her duties. But since she had joined back her duties, she claims that she was allowed to retire on 20.08.2010, without any orders having been passed on her request for VRS under the Voluntary Retirement Scheme. She is now before this Tribunal praying for the following reliefs:-
8. a) Pass appropriate order or directions to respondents to immediately accept the claim of the applicant under Voluntary Retirement Scheme and to grant her all retiral benefits along with unpaid salaries, with benefits of pay commissions revision of pay, benefits of Assured Career Progression scheme and salary for 2 years when the applicant had taken leave to take care of her children as per the new and latest report of the pay commission.
b) Pass appropriate order or directions to respondents to process the claim of the applicant for pension and to give her the pension after calculating her total tenure of service as 24 years;
c) Pass appropriate order or directions thereby quashing the alleged show cause notice dated 4.1.2012 and the memorandum dated 25.2.2012 proposing to hold enquiry against the applicant;
d) Pass such other or further orders as this Honble Court may deem fit and proper in the facts and circumstances of the case.
2. The applicant had also made an interim prayer in the O.A., which was granted on the date of issuance of notice on 18.04.2012 itself, and the respondents were directed not to proceed in the inquiry proceedings initiated against the applicant through Memorandum dated 25.02.2012, against which she has filed this O.A. on 13.04.2012, as per her prayer at clause 8 (c) above.
3. The facts of this case lie in a very brief compass. There appears to have been no dispute between the applicant and her employers, the Respondent-Institute, from the date of her joining service from 07.04.1986 onwards for many years, and she was even promoted to the post of Sister Grade-I through Memorandum dated 27.07.1993 (Annexure P/2). Thereafter, the applicant entered a phase of being on leave quite frequently for long periods. However, through their Office Memorandum dated 10.06.1998 (Annexure P/3), the Respondent-Institute sanctioned her 697 days of leave, availed of by her in 45 spells, many of which were EOL without pay, and most were in the nature of Earned Leave, and Half Pay Leave, apart from Maternity Leave from 10.09.1994 to 08.12.1994, and Commuted Leave on some occasions. The Annexure P-3 has been filed by the applicant herself, and is not in dispute.
4. The applicant started having a grievance against her employer, the Respondent-Institute, when after having issued the Office Memorandum dated 22.09.2000 for allotment of residential accommodation at AIIMS through Annexure P/4, the Respondent-Institute notified the Seniority List of Nursing Staff for allotment of New Type-III residential accommodation at AIIMS for the year 2003 through Annexure P-5. Even in this list, the name of the applicant was shown at Sl. No.85 with the date of her joining service on 07.04.1986 having been correctly reflected, and she does not appear to have had any grievance against this. She was even issued a letter of Commendation by the Associate Professor of ENT, (Annexure P/6) dated 16.09.2004, and by the Professor and Head of ENT dated 18.09.2004. The grievance of the applicant is that the Respondent-Institute finalized the Seniority List of Nursing Staff for a limited purpose of allotment of New Type-III residential accommodation at the Institute was notified through Annexure P/7 dated 26.05.2006 in which two of her juniors were shown at Sl. Nos.5 & 11 as persons eligible for allotment of accommodation. The applicant started questioning this list through her representation (Annexure P/8), and her queries under the RTI Act, 2005, (Annexure P/9) when it was informed to her that her name did not figure in the eligibility list for allotment of house only because her confirmation in a regular service was intimated as on 15.12.1989. However, the respondents thereafter scrapped the list at Annexure P/7 with which the applicant had a grievance, and it was confirmed to her through Annexure P/10 stating that she was senior to the two persons whose names had been shown at Sl. Nos. 5 & 11 in the said list.
5. Thereafter, when the request of the applicant for 2 years EOL without pay w.e.f. 05.11.2008 to 31.10.2010, and to leave the country to visit London (U.K.), was sanctioned on 17.11.2008 through Annexure P-11, the following terms and conditions were imposed/included:-
1. She will not extend the leave from abroad and will join the duty after availing of above leave.
2. She will not submit her resignation from abroad.
3. She will join her duty on 01.11.2010 (F.N.) in the Institute.
6. Thereafter, as mentioned above also, the applicant rejoined her duties in August 2010, before completion of her EOL, surrendered her Government accommodation, and filed an application seeking Voluntary Retirement from service. The colleagues of the applicant even bid her farewell in a small ceremony, and also handed over to her the printed farewell address dated 20.08.2012 placed at Annexure P-12. The applicant then returned to U.K. without waiting for her request for V.R.S. to be formally accepted by the respondents.
7. Thereafter, applicant kept on writing letters and emails to the respondents from U.K., requesting them to release her pensionary benefits. One such letter was sent through e-mail dated 1.1.2012, a copy of which is at Annexure P/13, but the respondents did not respond to the request of the applicant. When no action was taken by the respondents on her request, the applicant sent reminders from her London address vide Annexure P/14 letter dated 30.01.2011, and Annexure P/15 colly. dated 10.03.2011, along with the postal receipts, and Annexure P/16 colly. dated 06.04.2011.
8. However, through office order issued vide letter dated 13.04.2011 (Annexure P/17) the respondents informed the applicant at her address of London (UK) that as she had not completed the required 20 years of qualifying service for entitlement of VRS, she is not entitled to VRS. She was also informed to give her appropriate alternative option in regard to the treatment under Rules to be accorded to her request, so that her case could be processed accordingly. The applicant thereafter sent another letter dated 1.1.2012 (Annexure P/18) to respondent No.2, contesting their conclusion regarding the commencement of her qualifying service, and acceptance of her application for VRS. But, even after constantly pursuing her case, she was not able to get her pensionary benefits, which was followed by her e-mail dated 13.01.2011 (Annexure P/19) requesting for information regarding the status of her application for VRS.
9. Instead of giving reply to the repeated requests of the applicant, vide Annexure P/20 dated 04.01.2012 the respondents issued her a Show Cause Notice asking her to explain as to why disciplinary action should not be taken against her under the CCS (CCA) Rules, 1965, on account of her lapses of not responding to the Office Memorandum dated 13.04.2011, whereby she was requested to give a suitable option, so that necessary action could be taken on her request for voluntary retirement. The applicant was required to give reply to the said Show Cause Notice within a period of 10 days, failing which it was to be presumed that she has nothing to say in the matter, and further action as deemed fit was to be initiated against her under the Rules. She was also directed to report for duty immediately. Soon after the receipt of the aforesaid Show Cause Notice, the applicant wrote another letter from U.K. itself, addressed to the respondent No.1, dated 15.01.2012 (Annexure P/21), requesting for a personal hearing in the matter.
10. Thereafter the applicant was informed through a reply e-mail to be in touch with Deputy Director Mr. Vineet Chaudhary, and his telephone number was also provided to her. The applicant ostensibly did not establish contact with the said Deputy Director, and was thereafter issued the Memorandum dated 25.02.2012 (Annexure P-22 (colly.), proposing to hold a disciplinary enquiry against her under Rule-14 of the CCS (CCA) Rules, 1965, along with Articles of Charge stating that she has been willfully and unauthorizedly absenting herself from duty from 12.08.2010 onwards, without prior permission, or sanction of leave by the competent authority, and the Imputation of Article of Charge further including that she has gone abroad without taking prior permission, or sanction of leave by the Competent Authority, and has thus failed to maintain devotion to duty, and contravened Rule 3(1) (ii) & (iii) of the CCS (Conduct) Rules, 1964 read with Regulation 33 (2) of the AIIMS Regulations, 1958 (as amended from time to time). A list of documents through which the charges were to be proved, and list of two witnesses were also included.
11. She again sent a reply from U.K. to the said Memo dated 25.02.2012 through e-mail dated 22.03.2012 (Annexure P/24), intimating that her Palam Colony address at which the notice had been sent should be struck off, and giving a new address C-7/1 Mianwali Nagar, Paschim Vihar, New Delhi, and saying that she was not in a position to join the inquiry proceedings, and praying for postponement of the inquiry proceedings for at least 60 days, so that she could prove her innocence. Soon thereafter, the applicant filed the O.A. on 13.04.2013 before this Tribunal.
12. It is seen from the paper-book filed in the O.A. that by this date of 22.03.2012, it was tried to be shown as if the applicant had returned to India, even though there is some over-writing in the dates on page-86 in the paper-book of the Original Application filed on behalf of the petitioner under Section 151 CPC seeking interim directions, and once again on page-89 of the paper book, where a date of April 2012 has been over-written with the date of 22.03.2012, while the accompanying affidavit (page-90) shows that actually she had verified and filed an affidavit at London on 22.03.2012 before ABM Solicitors, Advocates and Commissioner for Oaths. The signature of the applicant at page 86, supported by the affidavit at page-87 was again verified at London on 22.03.2012. In comparison it is seen that on page-27 of the paper-book, date below the applicants signature is 13.04.2012, the date of filing of the OA at CAT Registry at Delhi. It is surprising as to why the applicant chose to overwrite and correct the dates at pages 86 and 89 of the paper-book when they were not true. Any way, the applicant can be pardoned for such minor errors and lapses.
13. As mentioned above also, when this case came up before the Single Bench on 18.04.2012 for issuance of notice, respondents were directed not to proceed in the enquiry proceedings initiated against the applicant till the final disposal of the OA, and the notices were issued with such interim relief having been granted ex-parte.
14. The respondents filed their counter-reply on 7.9.2012, in which it was pleaded that the applicant was appointed as a Staff Nurse on 7.4.1986 only on an ad hoc basis de hors the Rules. It was submitted that her substantive appointment as per Rules was to the post of Staff Nurse w.e.f. 15.12.1989 only. Subsequently, she was promoted to the post of Sister Grade-I on 27.07.1993. It was submitted that pre-maturely curtailing her already sanctioned two years Extraordinary Leave without pay w.e.f. 05.11.2008 to 30.10.2010, she had pre-maturely joined back her duties with the respondent-Institute on 09.08.2010, and applied for cancellation of the remaining unavailed portion of the Extraordinary leave without pay. She had also requested for conversion of her Extraordinary Leave to Child Care Leave as per the guidelines dated 07.09.2010, which was also allowed by the Respondent-Institute. But the applicant had in the meanwhile applied for voluntary retirement on 11.08.2010, and without any prior permission or sanction, once again left for U.K. w.e.f. 12.08.2010.
15. It was submitted that as per Rules in vogue, her request for voluntary retirement could have been considered favourably only if (a) she had attained the age of 50 years, and since she had not completed the age of 50 years, she was not entitled to seek VRS. It was further pointed out that as on 12.08.2010, when the applicant last attended her duties, she had not completed 20 years of service qualifying for pension, after deducting the earlier leave availed of by her, before the Extraordinary Leave without pay for 610 days was availed of by her, and, therefore, she was also not entitled for seeking voluntary retirement. It was further submitted that though the applicant has continuously been sending unilateral e-mails, but she has not been responding to the issue pending consideration, and while holding a sensitive position as Assistant Nursing Superintendent, her actions have been contrary to the concept of patient care services, besides being violative of the Conduct Rules. Therefore, it was denied that there is any merit in any of the grounds taken by the applicant in her OA, as, even though she had been in ad hoc or permanent employment for 24 years, due to her having taken Extraordinary Leave without pay frequently, she had never been able to complete 20 years of qualifying service, and thus becoming eligible to avail of voluntary retirement. It was also denied that any of the applicants juniors or colleagues have been allowed such VRS without having completed the requisite 20 years of qualifying service. The respondents had denied having taken any action against the principles of natural justice, and in violation of the fundamental rights of the applicant, and, therefore, the grounds A to F of the OA taken by the applicant were stoutly denied by the respondents.
16. The applicant filed a rejoinder on 09.10.2012, sworn to by her at London (U.K.) on 12.09.2012. It was submitted that the respondents have not put up any defence as to why they have failed either to accept or deny the voluntary retirement as sought by the applicant, and, have instead illegally started the disciplinary proceedings. It was submitted by her that as per the Rules, the respondents were required either to accept or deny her request for voluntary retirement from service within three months, and after the expiry of the said period, the request is deemed to have been accepted, and the respondents are, therefore, liable to pay the complete retiral benefits and other dues as per the Voluntary Retirement Scheme, without any further delay, and she had reiterated her claim that she was eligible for the same, as she had completed more than 20 years of service.
17. It was further reiterated by her that when she had submitted her request for voluntary retirement on 11.08.2010, requesting for it to be made effective from 12.08.2010, her application had been unnecessarily and illegally kept pending by the respondents for a long period, and she had denied that she had ever taken leave contrary to the Rules and Procedures, which was not duly sanctioned by the respondents. It was also submitted that the issue of her seniority is very relevant in the context of the present O.A, and, therefore she had prayed for the O.A. to be allowed. It was further reiterated that the Memorandum dated 25.02.2012 is against the Rules, and that the whole issue of disciplinary enquiry has been raked up by the respondents since they have themselves failed in their duty to act upon her request for seeking voluntary retirement.
18. Heard. During arguments, the learned counsel for the applicant heavily relied upon the judgments of the Honble Apex Court in the case of Rudra Kumar Sain and others vs. Union of India and others: AIR 2000 SC 2808 and in the case of B.S. Mathur & Another vs. Union of India & Ors.: AIR 2009 SC 137. In the case of Rudra Kumar Sain (supra), it is seen that the case relates to the seniority in between promotees and direct recruits in Delhi Higher Judicial Service, and in which the issues concerning stop-gap or fortuitous or purely ad hoc appointments vis-a-vis substantive appointments have been discussed by the Honble Apex Court, and the law in this regard has been laid down. It appears to us that the applicant cannot be allowed to derive any benefit out of this judgment, in support of her contention that she should be deemed to have retired after three months had elapsed after submission of her application for voluntary retirement. In the case of B.S. Mathur (supra) also, the case related to the seniority of the Members of Delhi Higher Judicial Service, and inter-se-seniority between direct recruits and promotees and the principle of continuous length of service had been discussed. However, after having carefully gone through this judgment, I find that the applicant cannot be allowed to derive any benefit out of the principle of continuous length of service as defined by the Honble Apex Court in this case.
19. Both these above cited judgments were not delivered in the context of the CCS (Pension) Rules, 1972, in which Rule-13 prescribes the Commencement of qualifying service, and Rule-14 prescribes the Conditions subject to which service qualifies, and Rule-21 prescribes the procedure for Counting of periods spent on leave. For the purpose of deciding this instant case, it may be useful to reproduce here the Rules-14 and 21 of the CCS (Pension) Rules, 1972, as follows:-
14. Conditions subject to which service qualifies (1) The service of a Government servant shall not qualify, unless his duties and pay are regulated by the Government, or under conditions determined by the Government.
(2) For the purposes of sub-rule (1), the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government.
(3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify:
Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply.
21. Counting of periods spent on leave All leave during service for which leave salary is payable and all extraordinary leave granted on medical certificate shall count as qualifying service :
Provided that in the case of extraordinary leave other than extraordinary leave granted on medical certificate the Appointing Authority may, at the time of granting such leave, allow the period of that leave to count as qualifying service if such leave is granted to a Government servant -
(i) Omitted.
(ii) due to his inability to join or rejoin duty on account of civil commotion; or
(iii) for prosecuting higher scientific and technical studies.
20. It is clear that the applicants Extraordinary Leave without pay for going to London (U.K.) was not granted on medical certificate, and at the time of grant of such leave, the Appointing Authority had not allowed that period of leave to be counted as qualifying service, and that neither the leave was for prosecuting higher scientific and technical studies, nor was the leave availed of by the applicant due to her inability to join or rejoin duty on account of civil commotion. Therefore, it is clear that the respondents were fully entitled not to count the periods of Extra Ordinary Leave without pay, availed of by the applicant, as qualifying service for the purpose of counting the period of the applicants eligibility of continuous service, and the applicant has failed to prove as to how when once such spells of Extraordinary Leave without pay period sanctioned to her through Annexure P-3 dated 08.12.1994 and Annexure P-11 dated 17.11.2008 are excluded, she can still claim to have completed 20 years of qualifying service.
21. Also, submitting her application for voluntary retirement on 11.08.2010, seeking voluntary retirement from the very next date on 12.08.2010, without giving the required three months notice for the respondents to settle her retiral dues and claims, and then flying off to U.K. once again on 12.08.2010, without prior permission to leave for abroad, cannot entitle the applicant to claim that she should have been deemed by the respondents to have retired after expiration of the three months period after submission of her application for voluntary retirement. There has been no irregularity in the applicants continuous service with the respondents, though with numerous spells of leave, till 11.08.2010, but her unauthorized absence from 12.08.2010 without prior permission has been an irregularity on the part of the applicant herself, for which the respondents cannot be faulted.
22. Therefore, I find no merit in the O.A., and none of the prayers as made out in this O.A deserves to be allowed. Therefore, the O.A. is dismissed, but there shall be no order as to costs.
(SUDHIR KUMAR) Member (A) cc.