Karnataka High Court
The Director General vs Mrs Reshmasudha S on 16 August, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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WP No. 16554 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT PETITION NO. 16554 OF 2022 (S-CAT)
BETWEEN:
Digitally signed
1. THE DIRECTOR GENERAL
by YASHODHA N HEAD QUARTERS OFFICE
Location: HIGH EMPLOYEE'S STATE INSURANCE CORPORATION
COURT OF PANCHADEEP BHAVAN
KARNATAKA
COMRADE INDRAJEET GUPTA (CIG) MARG
NEW DELHI-110 002.
2. THE MEDICAL SUPERINTENDENT
ESI POST GRADUATE INSTITUTE
OF MEDICAL SCIENCE AND RESEARCH
RAJAJINAGAR
BENGALURU-560 010.
3. THE DEAN
ESI POST GRADUATE INSTITUTE
OF MEDICAL SCIENCE AND RESEARCH
RAJAJINAGAR
BENGALURU-560 010. ...PETITIONERS
(BY SHRI. S. PRAKASH SHETTY, ADVOCATE)
AND:
1. MRS. RESHMASUDHA .S
W/O NEERAJ
AGED ABOUT 32 YEARS
WORKING AS NURSING OFFICER
ESIC POST GRADUATE INSTITUTE OF
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WP No. 16554 of 2022
MEDICAL SCIENCE AND RESEARCH (PGIMSR)
RAJAJINAGAR
BENGALURU-560 010.
2. THE DIRECTOR
NATIONAL INSTITUTE OF MENTAL
HEALTH AND NEUROSCIENCES
HOSUR ROAD
BENGALURU-560 029. ...RESPONDENTS
(BY SHRI. VISHWANATH BHAT, ADVOCATE FOR R1;
SHRI. K. PRABHAKAR RAO, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
WHICH ULTIMATELY RESULTED IN PASSING OF THE ORDER
ANNEXURE-E DATED 21.07.2022 MADE IN O.A No-170/258/2022 BY
CENTRAL ADMINISTRATIVE TRIBUNAL BENGALURU BENCH AND ISSUE
A WRIT ORDER, DIRECTION WRIT OF CERTIORARI AND QUASH THE
ORDER ANNEXURE-E DATED 21.07.2022 MADE IN O.A.No-
170/258/2022 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL
BENGALURU BENCH.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, P.S.DINESH KUMAR, J., MADE THE
FOLLOWING:
ORDER
The Director General, ESIC1, has presented this writ petition challenging the order dated 21.07.2022 in O.A.No.170/258/2022 passed by the CAT2, Bengaluru Bench, wherein the CAT has directed the ESIC to grant study leave to first respondent who was applicant before the CAT.
1 Employee's State Insurance Corporation 2 Central Administrative Tribunal -3- NC: 2023:KHC:29071-DB WP No. 16554 of 2022
2. Heard Shri S.Prakash Shetty, learned Senior Panel Counsel for petitioner, Shri Vishwanath Bhat, learned advocate for respondent No.1(hereinafter referred to as applicant) and Shri. K.Prabhakar Rao, learned advocate for respondent No.2-NIMHANS3.
3. Briefly stated the facts of the case are, applicant is an employee with ESIC working as a Nursing Officer. She desired to pursue her course in M.Sc Neuroscience and Psychiatric Nursing Course. She was not relieved from the ESIC. She approached the CAT inter alia with following prayers:
"a) To quash C-18(11)17/14/MED-VI (Study leave) dated 30.11.2018 passed by the second respondent (Annexure-A16) and A-27/15/1/2012-MED-VI dated 31.10.2018 passed by the second respondent (Annexure-A15); and
b) To direct the respondent Nos.2 to 4 grant the applicant study leave as per Rules 50 and 51 of CCS (Leave) Rules, 1972 and also as per Nursing Council (Continuing Nursing Education) Regulations, 2019 to pursue higher education in post-graduation in fifth respondent institution (NIMHANS)"3
National Institute of Mental health and Neurosciences -4- NC: 2023:KHC:29071-DB WP No. 16554 of 2022
4. The CAT has allowed the application and directed as follows:
"19. Accordingly, the OA is allowed. The respondents are directed to grant the applicant, study leave as per the Rules 50 and 51 of CCS (Leave) Rules, 1972, keeping in view the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019, to enable her to pursue higher education in the 5th respondent institution. Respondent Institute No:5 (NIMHANS) has stated in their reply that they, vide email dated 15.07.2022, have permitted the applicant to join M.Sc. in Neuroscience Nursing course on or before 31.07.2022. The respondents are therefore, further directed to ensure issuance of the necessary orders in order to enable the applicant to join the course on or before this date.
20. Respondents are further directed to review their policy guidelines of 2018 which deny grant of study leave to its Nursing Cadre employees to pursue higher studies. This shall be done keeping in view the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019 and a revised policy shall be framed accordingly."
5. Feeling aggrieved, ESIC is before this Court.
6. Shri Prakash Shetty for the ESIC submitted that service conditions of ESI employee is governed by Section 17(2) of the ESI4 Act, 1948. As per the decision taken in 175th meeting of ESIC, notified on 31.10.2018 (Annexure-15), no study leave is permissible. In support of 4 Employees State Insurance -5- NC: 2023:KHC:29071-DB WP No. 16554 of 2022 his contention, Shri Shetty has placed reliance on the decision of the Hon'ble Delhi High Court in Asha Rani vs. Union of India through Secretary & Ors.5
7. Shri Shetty has also placed reliance on the decision in State of Punjab Vs. Dr.Sanjay Kumar Bansal6 and contended that court shall not sit in appeal over the decisions of the administrative authority.
8. Shri Shetty, in his usual fairness, also submitted that ESIC had offered to consider grant of leave other than study leave to the applicant in accordance with law.
9. Shri Vishwanath Bhat, for the applicant submitted that as per Regulation No.2 of the Notification dated 6th November 2020 issued by the Indian Nursing Council, the applicant is required to renew the registration once in 5 years and it is mandatory. To pursue higher studies and obtain Ph.D degree, she has to attend program of 150 hours. Therefore, the applicant was required to attend the 5 W.P(C) 3895/2020 DD 24.02.2021 para 8 6 (2009) 15 SCC 168 -6- NC: 2023:KHC:29071-DB WP No. 16554 of 2022 said program. ESI Corporation being the employer is duty bound to grant study leave.
10. With regard to authority in Asha Rani, Shri Bhat submitted that said judgment has been rendered by the Delhi High Court prior to issuance of the notification by the Nursing Council and therefore, on facts, the said authority is not applicable to this case.
11. Shri Prabhakar Rao for the NIMHANS submitted that academic year will commence from July 2024.
12. We have carefully considered rival submissions and perused the records.
13. Undisputed facts of the case are applicant is an employee of the ESI Corporation. Section 17(2) of the ESI Act reads as follows:
"17 Staff. --
(1) xxxxxxxxxxxxxx (2) (a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the -7- NC: 2023:KHC:29071-DB WP No. 16554 of 2022 Central Government drawing corresponding scales of pay:
Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government: 78 [Provided further that this sub-section shall not apply to appointment of consultants and specialists in various fields appointed on contract basis.]
(b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final."
14. Thus, the service condition of the applicant shall be in accordance with the ESI Regulations. The ESIC has taken a policy decision in it's 175th meeting wherein it is stated thus:
"In ESIC, there is no functional requirement for a decree of M.Sc. (Nursing). Therefore, the course cannot be said to be meeting the pre-condition as per Rule 50(3) of CCS (Leave) RULES Specifying grant of study leave for a course with a definitive advantage' to the organization.
Therefore, the Corporation in the 175th meeting and in supersession of previous guidelines on the subject, has decided that now onwards no study leave shall be granted to Nursing Cadre employees to pursue higher studies viz. M.Sc./B.Sc. (Nursing)."-8-
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15. In terms of the above policy decision, ESIC has decided not to grant study leave. A similar question was under consideration before the Delhi High Court and after considering Section 17(2) of the ESI Act, Division Bench of the Delhi High Court has held that it is not essential for the ESI hospitals to adopt policies of other hospitals. In that case, Delhi High Court was considering the service condition of an employee of RML hospital and Safdarjung hospital and in that contest, it is held as follows:
"8. We are unable to agree. The relevant rule qua study leave in the CCS Rules in Rule 50(3) supra and which lays down the parameters. If RML Hospital and Safdarjung Hospital, as per their requirement, have made a policy for grant of study leave, it is not essential that the ESIC hospitals should also adopt the same policy. Section 17 or Rule 50(3) nowhere provides so and once the decision on the application of the petitioner for study leave is in consonance with the policy framed by respondents ESIC for all, and no case of discrimination is made out, it is not for the Court to interfere".
16. The Division bench has further held that in that case, there was no challenge to the policy. As rightly pointed by the learned advocate for the applicant, the applicant had challenged the policy as per Anneuxre-15 before the CAT. However, without examining vires of the -9- NC: 2023:KHC:29071-DB WP No. 16554 of 2022 policy, the CAT has directed the ESIC to review the policy guidelines to the nursing category employees to pursue higher studies by keeping the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019, in mind. Thus, the CAT has not quashed Annexure-A15. So long as Annexue-A15 is in force, the ESIC will be guided by its policy.
17. It is settled that Courts shall not interfere in the policy matters (see Balco Employees Union Vs. Union of India & others7).
18. In view of settled position that Courts shall not substitute its opinion for policy decisions unless there is challenge to the said policy and it is set aside in the manner known to law, employees are governed by the policy laid down by the ESIC. In that view of the matter, the view taken by the CAT is unsustainable in law. Therefore, this petition merits consideration and hence the following: 7
2002(2) SCC 333
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WP No. 16554 of 2022
ORDER
(i) Writ petition is allowed;
(ii) Order dated 21.07.2022 in
O.A.No.170/00258/2022 passed by the
CAT, Bengaluru Bench, is set aside;
(iii) The Original Application is dismissed.
Keeping in view the fact that applicant is desirous of pursuing her higher studies, we direct that ESIC shall consider applicant's request for grant of leave other than study leave, to pursue her higher studies, strictly in accordance with it's policy.
No costs.
Sd/-
JUDGE Sd/-
JUDGE YN List No.: 1 Sl No.: 44