Central Administrative Tribunal - Delhi
Shallu Chauhan vs All India Institute Of Medical Sciences on 21 September, 2010
Central Administrative Tribunal Principal Bench : New Delhi O.A. No.2634/2010 New Delhi, this the 21st September, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shallu Chauhan, D/o Shri Chanderpal Singh R/o A-428, DDA Chaukhandi, Tilak Nagar, New Delhi 110 018 Applicant (By Advocate: Shri U. Srivastava) versus All India Institute of Medical Sciences 1. Director, All India Institute of Medical Sciences, Ansari Nagar, New Delhi 2. The Registrar, All India Institute of Medical Sciences, (Academic Section), Ansari Nagar, New delhi 3. The Chief, Jai Prakash Narayan Apex Trauma Centre, All India Institute of Medical Sciences, Ansari Nagar, New Delhi Respondents (By Advocate: Shri Sunil Fernandes) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, working as a Nurse in the AIIMS, is aggrieved at rejection of her request for considering her candidature for B.Sc. Nursing (Post Certificate) Course under the AIIMS. Challenging the impugned order dated 13.7.2010, the OA seeks by way of relief quashing of the impugned order along with a direction for granting her admission for this Course in the August 2010 session. The prayer for interim relief regarding allowing provisional candidature to this course subject to the outcome of the instant OA, was allowed. However, instead considering the peculiar facts of the case, after a short notice to the respondents and obtaining a counter affidavit from them, the matter is being decided finally expeditiously, to meet the ends of justice.
The learned counsel, Shri U. Srivastav and Shri Sunil Fernandes would appear before us respectively on behalf of the applicant and the respondents. We have heard the learned counsels and also perused the material on record carefully.
2. The AIIMS Academic Session vide their OM No.F.7-1/2010-Acad.(PM) dated 13th July, 2010 rejected an application by the applicant on the subject and gave the following reasons. It would be apt to extract this order in toto as hereunder:
Sub: Rejection in B.Sc. Nursing (Post Certificate) Course under the AIIMS category, AIIMS, New Delhi.
With reference to her letter dated 28-06-2010 on the subject cited above, Ms. Shallu Chauhan, Sister Grade-II, JPNATC, AIIMS, is informed that her request to consider her candidature for B.Sc. Nursing (Post Certificate) Course under the AIIMS catego0ry for the batch of August 2010 has been considered by the competent authority but the same not acceded to as she does not fulfill the guidelines/rules for the same which are as under:
She joined as a Sister Grade on 19-07-2008. As per Study Leave (copy enclosed) she is not eligible for higher studies. As per rules she should be completed 5 years regular service at AIIMS for applying higher study leave.
She has not completed two years probation period.
Her application was not forwarded by the Administrative Officer/Chief of JPNATC, AIIMS She cant also be allowed EOL without pay as there is shortage of nursing staff in JPNATC, AIIMS, as per comments received from the Chief, JPNATC as well as Nursing Supdt., JPNATC, AIIMS.
Sd/14.7.10 (V.P. GUPTA) REGISTRAR
3. At the outset, it may be mentioned that the applicant has been working as a Nurse in the Jai Prakash Narayan Apex Trauma Centre under the AIIMS. The case of the applicant, as per the written submissions in the OA and impassioned pleadings by the learned counsel, Shri Srivastav, broadly speaking is : a) a justification for the applicant to undertake this course in the context of its professed objectives. As per the Prospectus, the objective of the course is to train Nurses to provide comprehensive nursing care to patients; to develop skills in nursing management including leadership and decision making abilities in various situations. b) The main thrust is that none of the disabling grounds of rejection found a mention in the Prospectus. c) As regards, the forwarding of her application by the employer, the plea taken is that in accordance with the prospectus her application had been forwarded by a competent authority not below the rank of Nursing Superintendent. d) An averment of adverse discrimination vis-`-vis the similarly situated person has also been made.
On these grounds, depriving the applicant from undergoing this professionally highly relevant course is averred to be arbitrary, perverse, malafide, illegal and violative of the Articles 14, 16 and 21 of the Constitution of India.
4. The respondents case is that the applicant had applied as a departmental candidate under AIIMS category and therefore the Study Leave Rules would necessarily come into play in this case. It is also stated that as per the Study Leave Rules contained under Rule 50 (1) & (2), study leave can be granted for higher studies only to those service personnel who have completed five years regular service at AIIMS. Since admittedly the applicant does not fulfill this condition, she is not eligible for grant of study leave. It is also stated that as per the Rules, the applicant is not eligible for Extra-Ordinary Leave without pay either since at the time of the consideration of this case she had not even completed her two years period of probation. The respondents have also submitted that, despite being a departmental candidate, the applicant had not followed the prescribed procedures and the channel laid down in this regard and the application was not routed through the proper authorities, as it should have mandatorily been done. According to the respondents, because of huge shortage of Nursing staff in this highly sensitive and critical wing of AIIMS, apart from the non-entitlement of the applicant for leave, even administratively sparing her services for a prolonged period of two years has not been found administratively feasible. According to the respondents, for all practical purposes, the applicant had proceeded ahead in this matter as an independent candidate.
5.1 Admittedly the applicant, while applying for the higher course in question, had applied as a departmental candidate under AIIMS. This is clearly borne out by the relevant column 13 of her application form (Annexure A/3). It is axiomatic that in such a situation her candidature could be considered only subject to prior permission by the competent authority. The applicant was posted at the Jai Prakash Narayan Apex Trauma Centre at the time of applying for the course. It is the case of the applicant that her application had been forwarded by the competent authority, which as specified in the prospectus and the application form should not have been below a Nursing Superintendent. However, this contention has been right away rejected by the respondents stating that the application in this case had not been forwarded by the Administrative Wing of the JPATC, which alone would have been the appropriate authority to grant the NOC. The comments sent by the concerned Nursing Superintendent to the Deputy Controller of Exams in this context are revealed from the information furnished to the applicant in response to an application under the RTI Act vide the OM dated 15th July, 2010 (Annexure A/9). These are extracted as here under:
As stated above Ms. Shallu Chauhan, Sister Grade-II is still on probation period and she should have applied through proper channel only but appeared as a open candidate.
She is not entitled for any study leave and she can not be allowed to go on without pay also for two years as we are already having huge shortage of staff and can not block the post.
Submitted please Sd./N.S. dated 28.06.2010 Sd./Acting Chief dated 28.06.2010 To, Deputy Controller of Exam (emphasis supplied) 5.2 The learned counsel, Shri Srivastava in order to defend the claims in the OA, would mainly insist upon the terms and conditions spelt in the Prospectus of this course. It would further be the stand of the learned counsel that the respondents were mistakenly rejecting the candidature of the applicant on grounds of non-entitlement to Study Leave. As per the learned counsel, the applicant had not applied for the same; nor was grant of Study Leave an issue. However, in response to a specific query from the Bench as to how without the Study Leave and even EOL, to which the applicant was stated not to be entitled, how would the applicant reconcile the performance of her regular duties as a Nurse in the Trauma Centre; no satisfactory response would be forthcoming from the learned counsel. The applicants counsels suggestion regarding the respondents possibly adjusting the applicant in a second or a third shift would evoke a sharp reaction from the respondents counsel as to the very untenability of such a cour se considering the nature of the applicants duty as a Nurse and the acute shortage of Nursing staff in the Trauma Centre.
6. In State of Haryana & Ors vs. Babu Singh {(2008) 1 SCC (L&S) 286)} the Honble Apex Court had observed the following dicta:-
It is well settled that the relief granted by courts must be seen to be logical and tenable within the frame work of law rather than on misplaced sympathy.
It is trite in service jurisprudence that an employee cannot be said to have a legal right for grant of any kind of leave, which would naturally include Study Leave. Even in a hypothetical situation, where a Government employee is eligible as per the prescribed Rules; the Study Leave cannot be claimed as a matter of right. As a logical corollary the employer is always within the legitimate domain not to entertain such a request in the interest of administrative exigencies. In the present case, the applicant is not even entitled for grant of a Study Leave. How the course in question, of a duration of two years and prescribed as a regular Post Certificate Course, can be undertaken without grant of Study Leave or EOL is beyond our comprehension. There is no averment before us from either of the side, of this course being treated as a part of duty. The applicant who had admittedly applied as a departmental candidate under AIIMS category seems to have gone ahead by obtaining the NOC by some other official rather than the competent authorities. As per the respondents, the services of the applicant cannot be spared for pursing the higher studies in view of acute shortage of Nurses in the Trauma Centre. The adverse ramifications of allowing this OA, in disregard of the respondents pleas, on wider public interest in a sensitive and critical medical care facility like the Apex Trauma Centre of AIIMS cannot be lost sight of. The averment of adverse discrimination in such cases would have no scope in the facts and circumstances of the case. We find nothing arbitrary or unreasonable in the impugned order of the respondents. As per the settled law reiterated by the Apex Court in Babu Singhs case (supra), judicial relief cannot be provided on misplaced sympathy and outside the frame-work of logic and law.
7. In view of the foregoing, the OA is found to be devoid of merit and dismissed hereby with no order as to costs.
(Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
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