Central Administrative Tribunal - Delhi
Smt. Anita Srivastava vs Govt. Of Nct Of Delhi on 15 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.820/2010 New Delhi, this the 15th day of December, 2010 HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE DR. VEENA CHHORAY, MEMBER (A) Smt. Anita Srivastava, W/o Sh. S.C. Srivastava, R/o H.No. A-6/47, Sector 16, Rohini, Delhi-110089. Applicant. (By Advocate Ms. Rashmi Singal) Versus 1. Govt. of NCT of Delhi Through Chief Secretary Delhi Secretariat, Players Building, I.T.O., New Delhi. 2. Director of Education, Directorate of Education, (Govt. of NCT Delhi) Old Secretariat, Delhi. 3. Deputy Director of Edcuation, District North-West-B, FU-BLOCK, Pitampura, Delhi. 4. Principal, Govt. Sarvodya Co-ed Vidyalaya, Block, Sector-16, Rohini, Delhi-89. Respondents. (By Advocate Shri R.N. Singh) ORDER
Justice S.D. Anand:
The virtual havoc a formatted administrative approach can play requires no proof better than what is evident from the factual scenario available in this O.A. wherein the Competent Authority has held the applicant herein to ransom in the matter of consideration for the grant of second ACP (on an apparently illogical premise that the grant aforementioned is held up for want of a `regularization certificate), completely unmindful of the fact that she has, in the meantime, been promoted in the hierarchy to the post of a Lecturer and also the fact that no disciplinary proceedings, effective in character, have come to be launched against her till date. While we make mention of the last indicated item, we are cognizant of the fact that the Competent Authority did require the applicant herein to resume duty during the currency of the leave applied for the first duration i.e. from 27.01.2009 to 30.04.2009. That is all what was done. The scenario presented to us completely dilutes the quality of nobility which speakers attach to the teaching community, on ceremonial occasions wherein the teaching profession is extolled as `Noble in Character. In practice, however, little sacrosance is attached to the nature of duties performed by the teaching community which is charged with the responsibility of Nation building and educating the future leaders of tomorrow. It is to state the obvious that a discontented member of the teaching community can hardly do justice to the job. We do not, however, propose refraining from noticing whatever dereliction the applicant herein committed in the matter of refrain from observing the Rules but that refrain, which we would notice in the paras to follow, would not amount to such a contumacious approach on her part which would have enabled the Competent Authority to act in the manner it is proved to have done in the present case.
2. The applicant herein, having been initially appointed w.e.f. 10.11.1983, as a teacher on ad hoc basis, was confirmed on 08.08.1994 w.e.f. 01.04.1988. She was awarded the senior scale w.e.f. 10.11.1995 on the recommendation of the DPC, in pursuance of the Notification issued vide letter No. F-3-30/Coore./87/Edn. dated 03.12.2007. She has thereby been functioning as a Trained Graduate Teacher (in the Department of Education, Delhi Administration) w.e.f. 10.11.1983.
3. In accord with the recommendations of the 6th Central Pay Commission (hereinafter referred to as `the Commission) `relating to Maternity Leave and Child Care Leave, the Competent Authority decided to modify the existing provisions of the Central Civil Services (Leave), Rules, 1972 in respect of the civilian employees of the Central Government. Apart from extending the existing ceiling of 135 days Maternity Leave to a period of 180 days, and also providing that leave of the kind due and admissible in continuation of the Maternity Leave in terms of Rule 43 (4)(b) shall stand enhanced to two years, the female employees were held entitled to CCL for a maximum period of two years (i.e. 730 days) during their entire service. The CCL, which was to entitle the female employees to take care of their minor children `whether for rearing or to look after any of their needs like examination, sickness, etc, was not to be debited against their leave account. Those orders were to take effect from 01.09.2008 (OM No. 13018/2/2008-Estt. (L) dated 11.09.2008).
4. That O.M. came to be amended by OM No. 13018/2/2008-Estt. (L) dated 29.09.2008 vide which the Central Government announced the riders as under:
(i) Child Care Leave shall be admissible for two eldest surviving children only.
(ii) The leave account for child care leave shall be maintained in the proforma enclosed, and it shall be kept along with the Service Book of the Government servant concerned.
5. The applicant herein initially applied for the grant of CCL from 27.01.2009 to 30.04.2009. As general elections came to be announced in the meantime, she was informed to resume duty within two days of the issuance of the relevant Memo dated 02.04.2009 which she obviously complied.
6. She, thereafter, filed an application on 07.07.2009 for being allowed to proceed on CCL for the period 20.07.2009 to 19.03.2011. This time as well, she was directed to cut short her leave and she resumed duty w.e.f. 01.09.2009.
7. In view of the fact that the CCL for the aforementioned duration has not yet been sanctioned by the Competent Authority, second ACP has not been sanctioned in her favour.
8. It was on the above factual premise that the applicant herein applied for the grant of a direction to the respondents to sanction CCL (for twin items of aforementioned duration) and also to direct them to sanction second ACP in her favour.
9. The respondents reiterated the correctness of the refrain on their part in the sanction of CCL to the applicant on an averment that she had not obtained prior permission of the Competent Authority before proceeding on CCL and further that the second ACP case could not be processed till `Regularisation Certificate is furnished, as desired by the competent authorities. The plea raised by the respondents, thus, was that the applicant having violated the relevant rules, was not entitled to ask for regularization of the period aforementioned. It was otherwise an averment by the respondents that The file for her regularization has been circulated by Dispatch No. 472 dated 05.12.2009. The applications and other files of the applicant were timely forwarded. It is also submitted that the applicant has been promoted to the post of Lecturer/PGT (Biology) and has been relieved from the school on 24.04.2010.
10. The factual controversy, as can be safely culled out from the above narration, is that the respondents are refraining from sanctioning CCL to the applicant as she did not get the same sanctioned before proceeding to actually avail it.
11. It was vehemently canvassed on behalf of the applicant that there was a certain amount of urgency for the applicant to proceed on CCL because one of her children required personal care. In support of that averment, our attention was invited to the medical certification issued by Maharaja Agrasen Hospital wherein one child of the applicant herein is indicated to be suffering from Gilberts Syndrome with ? AN..The patient admitted with complaints of Tingling sensation in all limbs. Tonic flexing of all limbsTingling sensation + in all limbs, gradually progressive even at the face then all over body. History of pain in all limbs. History of tonic flexing of all limbs, several times in a day, aggravated from 2 weeks.
12. It was also argued that the Competent Authority never communicated rejection (on whatever pleas) of the applications filed by her for being allowed CCL. The applicant herein, it was argued, acted responsibly by reporting for duty w.e.f. 06.04.2009 and 01.09.2009, respectively. On the former occasion, the announcement of the elections required the cancellation of leave of all the employees (including the applicant herein), while the other recall at the hands of the competent authority was on account of the applicant not having complied with the rules on the point.
13. Learned counsel, appearing on behalf of the respondents, argued that the act attributed to the applicant, was irresponsible in character inasmuch as the studies of the students, whom she was expected to teach during the relevant period, suffered a lot.
14. Though there can be no dispute about the fact that the applicant herein proceeded on leave (on both occasions) without getting the same sanctioned, and that act of hers, was not in accord with the instructions issued by the Government of India, the nature of ailment suffered by one minor son of hers, cannot be ignored from consideration. It would, thus, appear that the `mother in the applicant surfaced and overtook the `employee in her, when she opted to proceed on CCL (which was otherwise permissible), without getting it sanctioned in advance. In this context, we would like to notice the following facts which are apparent from the office noting (which appears at running page 133 of the paper book):
Sub: Child Care Leave w.e.f. 27.1.09 to 30.4.09.
May kindly see that HOS, GCoEov, Sec-16 Rohini, Delhi, has forwarded the application in r/o Ms. Anita Shrivastava, TGT (NSc) for grant of Child Care Leave w.e.f. 27.1.09 to 20.4.09 to take care of her child whose D.O.B. is 20.3.93. The D.O.B. Certificate of the child is placed in the file at P-3/C. In this connection it is submitted that in her note at P-1/N the HOS concerned has intimated that the teacher concerned has no earned Lave in her account (P-1/N).
It is further submitted that:
The teacher concerned has only two surviving children.
The application of the teacher concerned has been recommended by the HOS concerned (P-3/N).
The HOS concerned at P-2/N has certified that study of the students will not suffer in any way if the CCL is sanctioned to the teacher concerned from 27.1.09 to 30.4.09 as the periods/classes have been adjusted.
The HOS concerned has further certified that no substitute will be demanded for the teacher concerned for the above mentioned period (P-3/N).
Keeping in view the above, if approved, the file may be forwarded to RDE (N) with the request to grant her approval to sanction Child Care Leave in r/o Ms. Anita Shrivastava, TGT (NSc) w.e.f. 27.1.09 to 30.4.09..
15. It would be apparent from a perusal of the above quoted noting made by the office, that the application filed by the applicant (for the grant of CCL from 27.1.09 to 30.4.09) was duly recommended by the Head of School, who had also certified that the studies of the students will not suffer in any way with the grant of CCL as the period/classes had been adjusted. The Head of School had further certified that no substitute will be demanded for the teacher concerned for the above mentioned period.
16. There is, thus, no force in the plea raised on behalf of the respondents that the studies of the students had suffered on account of the applicant having proceeded on CCL, without getting it sanctioned. By the very nature of things, the rules would provide for advance sanction in order to enable the Competent Authority to make alternative arrangements for the conduct of studies. In this case, it is evident, that the studies of the students did not suffer at all. This fact is evident from the office noting aforementioned.
17. It is, thus, apparent from the above factual narration that though the applicant proceeded on CCL without getting it sanctioned in advance, she was actuated to do so on account of the illness of one of her sons and she dutifully resumed duty when she was told to do so.
18. In support of the plea advocated, learned counsel for the applicant argued that the respondents have not proceeded against the applicant on account of the averred absence till date. The learned counsel for the respondents reacted by arguing that the respondents had refrained from initiating departmental proceedings against the applicant on account of sheer compassion.
19. Be that as it may, it is evident from the record and conceded in the course of the presentation that no departmental action has been initiated against the applicant (on account of her having proceeded on CCL without getting it sanctioned) till date. While we say so, we are not unmindful of the fact that the communication dated 02.04.2009 did notice that the applicant had proceeded on leave without getting the same sanctioned from the competent authority. However, that communication nowhere announced that the CCL had been declined to her. On the other hand, the tenor of that documentation indicates that the CCL plea raised by the applicant herein had been considered by the competent authority and it had been decided that the teacher concerned may be directed to resume duty within two days of the receipt of this memo failing which necessary disciplinary action as deemed fit will be taken.
20. It is evident from the above documentation that the CCL plea raised therein had been duly considered by the competent authority which opted to rest content with the grant of a direction to her to resume duty. The initiation of departmental proceedings was to be ordered against her in case she did not resume duty within two days of the receipt of that memo. Once administrative discretion had been exercised by the competent authority in that manner, it cannot now retrace and deny the sanction of second ACP to the applicant, just for want of regularization certificate, particularly when the office noting above quoted also categorically avers that no earned leave was due to the applicant. That proven fact entitled the applicant to avail of CCL for a total period of 730 days in terms of O.M. dated 11.09.2008 and O.M. dated 29.09.2008.
21. The O.A. shall stand allowed accordingly. The respondents are directed to grant sanction of the CCL (to the extent actually availed by her) in favour of the applicant and also to issue regularization certificate to her. Thereafter, the respondents would be required to consider her for the grant of second ACP. The exercise in the relevant behalf, and also the disbursement of the consequential benefits, shall be concluded within one month from today.
22. The exasperation, indicated by us in the opening para of this order notwithstanding, we are also not oblivious of the fact that the applicant herein proceeded on CCL for both the occasions without getting it sanctioned. While we cannot approve the conduct of the applicant (in having opted to proceed on CCL without getting it sanctioned in advance and further without having announced the urgency thereof to the Competent Authority), we cannot be appreciative of the attitude of the Competent Authority either in not having tampered administrative justice with compassion and mercy. Be that as it may, the noticing of these facts would not be inferred to suggest any mala fides on the part of the Competent Authority. A case of sheer formatted and impersonal approach does not deserve any further cognizance.
23. In view of this, we would make the costs easy in the peculiar facts and circumstances of the case.
(Dr. veena Chhotray) (S.D. Anand) Member (A) Member (J) `SRD