Central Administrative Tribunal - Ernakulam
Alhafis P C vs The Administrator Utl Kavarathi on 1 April, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00129/2020
Friday, this the 1st day of April 2022
CO RAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Alhafis.P.C.,
Aged 27 years,
S/o.late Shri.M.K.Attakoya,
R/o.Parkiya Chetta, P.O.Kadmat Island,
U.T of Lakshadweep - 682 556. ...Applicant
(By Advocate Mr.K.P.S.Suresh)
versus
1. The Administrator,
U.T of Lakshadweep, P.O.Kavarathi,
U.T of Lakshadweep - 682 555.
2. The Collector cum Development Commissioner,
U.T of Lakshadweep, P.O.Kavarathi,
U.T of Lakshadweep - 682 555.
3. Smt.Mariyath.P.P.,
Pandarappura House,
Agathi Island, U.T of Lakshadweep - 682 553. ...Respondents
(By Advocates Mrs.Sreekala.K.L. [R1-2]
and Mr.Aashique Akthar Hajigothi & Mr.Vineeth.V [R3])
This application having been heard on 22 nd March 2022, the Tribunal
on 1st April 2022 delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The issue for consideration in this case is whether attaining an educational qualification for a post by attending and passing a course during the period of sanctioned Child Care Leave (CCL) can be held against the -2- official, on the ground that the educational qualification so secured has been achieved without the formal permission/approval of the authorities. Further, the associated question is whether the circumstances in which the said qualification was secured would invalidate the candidature/appointment of an employee for another Government job which is based on the said qualification.
2. The O.A has been filed by an unemployed graduate hailing from Kadmat Island of Lakshadweep. He had completed undergraduation in 2013 and is also in possession of a Diploma in Computer Applications. He had completed a course of instruction known as the "Survey Test Lower"
conducted by the Government of Kerala, Survey and Land Records Department at the Survey School, Thrissur. The course attended by him was held during August to October, 2013. It is submitted that the course is a certificate course conducted by the Government of Kerala and passing the same is treated as a qualification for appointment to the post of Surveyor or for other related assignments. Later, the applicant also completed another course on Advanced Surveying Using the Total Station with Autocad during 2015. On 01.06.2017 the Lakshadweep Administration, Department of Revenue, Collectorate, Kavarathi issued a circular inviting applications to fill up one post of Revenue Inspector in the Pay Matrix Level 1 at Rs.25500/-. The essential qualifications for this post were (a) graduation under any discipline from a recognized university (b) pass in the 3 months Chain Survey (Lower) course conducted by Government of Kerala or by any recognized Board and (c) certificate course in Computers for a -3- minimum period of 3 months. It was also indicated that a certificate course of minimum 3 months in Autocad would be a desirable qualification. The age limit prescribed for the post was between 18-25 years, which was relaxable for Government servants, SC/ST candidates, Ex-servicemen and other special categories of persons in accordance with instructions or orders. Recruitment would be on the basis of a written test of 100 questions of which 50% would be from the specific concerned subjects and remaining the 50% from General Knowledge and English language with a duration of one and a half hours for the examination with negative marking.
3. The applicant applied for the above post. He was shortlisted along with six other candidates for appearing in the Selection Test. The list of shortlisted candidates was published by the U.T Administration only on 23.03.2018 and the selection test too was conducted much later on 06.12.2019. After this, the Administration published a rank wise list for the appointment which has been produced by the applicant in the O.A at Annexure A-7. As per this list, Smt.Mariyath.P.P (the 3 rd respondent in this O.A) appears in the first position with a total mark of 86/100 followed by the applicant Shri.Alhafis.P.C with a total mark of 59/100. It is the submission of the applicant that Smt.Mariyath.P.P., the first rank holder, is a Government servant working in the U.T Administration. It is submitted by him that she secured one of the three essential qualification ie., pass in 3 months Chain Survey (Lower) Course conducted by Government of Kerala during the time she was on Child Care Leave. According to the applicant, as per the Service Rules, a Government servant has to obtain prior -4- permission from the competent authorities before undergoing any regular/evening or distance education programmes. He submits that the CCL was sanctioned for a different purpose and has been misused by the 3 rd respondent. Thus, he submits that the certificate for Chain Survey (Lower) Course secured by the 3rd respondent should not be treated as a valid qualification/eligibility for the purpose of recruitment to the post of Revenue Inspector. As the Lakshadweep Administration is about to issue the offer of appointment to the first rank holder, the applicant has approached the Tribunal for an immediate appropriate intervention.
4. When the matter first came before this Tribunal it was attacked by the official respondents (Respondent Nos.1 & 2), UT of Lakshadweep on the ground that the applicant was a third party and cannot raise objections qua the 3rd respondent (Smt.Mariyath.P.P) who had been selected through due process. Later, the 3rd respondent moved the Hon'ble High Court of Kerala in O.P.(CAT) No.86/2021 for an order to dispose this O.A pending before the Tribunal in a time bound manner. The Hon'ble High Court was pleased to dispose of the matter vide order dated 06.12.2021 that this Bench may take all reasonable endeavours possible to finally dispose of the O.A without much delay preferably within a period of three months from the date of receipt of a copy of the judgment or within any time limit that may be appropriately found as reasonable and fair by the Tribunal. The official respondents then have filed a reply statement in which they accepted that the contention of the applicant that the 3 rd respondent was employed under the Lakshadweep Administration, while undergoing the Chain Survey -5- Course was true. However, they also submitted that the contention by the applicant that the Chain Survey Course undergone by the 3 rd respondent cannot be reckoned by them as a valid qualification for the 3 rd respondent being appointed as Revenue Inspector based on the notification at Annexure A-5 was not legally sustainable. It is submitted that the 3 rd respondent was working as a Gumastha at the office of the SDO, Amini when she had applied for the CCL. The same was sanctioned to her for the period between 03.09.2015 and 29.02.2016. It has been noticed from the certificate submitted by the 3rd respondent that she underwent the Chain Survey (Lower) Course conducted by the Government of Kerala during the period between 01.11.2015 and 30.01.2016 ie., within the period of the sanctioned CCL.
5. It is submitted by the official respondents that the certificates submitted by the 3rd respondent also reveal that she had earlier successfully completed a B.Tech Degree course from the Government Engineering College, Thiruvananthapuram. Thus, she had fullfiled the first condition for appointment to the post of Revenue Inspector. She successfully completed the Chain Survey Course conducted by the Director of Survey and Land Records, Government of Kerala and thus has also fullfiled the second condition for being appointed to the post of Revenue Inspector. Hence, it is submitted that it is evident that she is fully qualified to be considered for the post. Regarding the fact that she had undergone the course while she was on CCL, it is submitted that the Administration accepts that this was done and has initiated action for a departmental inquiry in this regard. However, -6- as per the official respondents, even if there has been a procedural irregularity in not obtaining prior permission/sanction from the department for joining the course of three months, it would not invalidate the education qualifications obtained by the individual required for applying for the post.
6. The 3rd respondent, Smt.Mariyath.P.P., has also filed a separate reply. She submits that the fact that the rank list at Annexure A-7 has been challenged by the applicant in the O.A because one of the essential qualification (3 months Chain Survey Course) was secured by her during CCL, is not legally sustainable. The action done by her does not vitiate the qualification which has been obtained. The said qualification has been obtained by all legal means and it is an essential qualification for the post. It is submitted by the 3rd respondent that due to matrimonial discord, she is living separately from her husband and was residing with her parents and with her daughter. Due to medical exigencies, her parents moved to Ernakulam. During the said period, as she found her daughter getting impacted, she took the CCL, which was sanctioned between 03.09.2015 to 29.02.2016. As her stay in the Islands was not comfortable for her and her daughter, she moved to Ernakulam where her parents were undergoing treatment during this period. While she was in Ernakulam she applied and completed the Chain Survey Course conducted by the Government of Kerala. It is submitted by her that the CCL was sanctioned for the period from 03.09.2015 to 29.02.2016, whereas the Course started only on 01.11.2015. If her only intention was to undergo the course by availing the CCL, then she would have never applied for the leave as much as two -7- months prior to the date of the course. Further, she submits that she remained in Ernakulam for a period of one month even after the course was completed. Her contention is that there was no stipulation in any regulation requiring her to obtain permission from the Department for undergoing the Chain Survey Course. It is also submitted that she did not use the said qualification for any promotion or hike in pay scale which means that there was no direct or close connection between her present employment and the qualification. The Chain Survey Course was used to apply for a different employment notification.
7. We considered the contentions of learned counsel for the applicant, Shri.K.P.S.Suresh, learned counsel for the official respondents, Smt.Sreekala.K.L and learned counsel for the 3 rd respondent, Shri.Aashique Akthar Hajigothi/Shri.Vineeth.V. As identified at the outset, the issue to be decided is whether the fact that the 3rd respondent attended and secured the Chain Survey (Lower) Course qualification while on CCL fatally or even substantially harms her application for the post of Revenue Inspector under the Department of Revenue in the Lakshadweep Administration. The contention by the learned counsel for the 3 rd respondent is that once she has obtained the qualification, she cannot be denied her chance for the said post of Revenue Inspector, notwithstanding, the fact that she has undergone the course during her leave. If she had committed any irregularity in that purpose, the Administration can take necessary departmental action against her and if after due inquiry the charges against her are proven, necessary penalty can also be imposed on her. However, that does not disqualify her -8- for being considered for appointment as Revenue Inspector at this stage, as she had all the necessary qualifications and had ranked at the top position in the selection test. On the other hand, learned counsel for the applicant submits that the fact of her misutilizing the CCL to secure the necessary qualification cannot be ignored by the official respondents as it shows that the purpose of the leave has been misutilized. He contends that the qualification that she has gained due to this misutilization of the CCL cannot be used for securing another better Government position. He also submits that if the O.A is not allowed, it would only encourage more such irregular activities on the part of the employees sanctioned the CCL. The leave would then be misutilized by the employee for any other purpose. The official respondents, on the other hand, appear to support the position of the 3rd respondent by contending that even if any procedural irregularity in not obtaining the prior permission from the department before attending the course was established, it would still not invalidate the essential educational qualification obtained by her for applying for the post.
8. We have considered these different points. At the outset, it is felt that the purpose of grant of CCL needs to be understood. As defined in the various circulars issued by the DoP&T from 2008 onwards the purpose of CCL granted especially to women employees is to take care of upto two eldest surviving children, whether for rearing or to look after their needs like examination, sickness etc. The Government of India, DoP&T also indicated in its circular No.13018/2/2008-Estt.(L) dated 18.11.2008 that the intention of the Pay Commission in recommending CCL for women -9- employees was to facilitate women employees to take care of their children at the time of need. It has also been declared in the circulars that CCL cannot be demanded as a matter of right and nobody can proceed on CCL, without prior permission of the leave sanctioning authority. The leave is to be treated much like Earned Leave and sanctioned as such. Later, vide another circular dated 07.09.2010 the condition that CCL can be availed only if the employee concerned has no Earned Leave at her credit has been deleted; however, the leave is still to be treated like Earned Leave and sanctioned as such. Later O.Ms issued by the DoP&T have reiterated that the leave is to be sanctioned to women employees having minor children for rearing or to look after their needs like examination, sickness etc. Further, a notification amending the CCS (Leave) Rules, 1972 issued on 27.08.2011 also specified that the CCL could be combined with leave of any other kind and that the CCL should not be debited against the leave account. Another O.M dated 03.04.2018 allowed that employees could use the leave for availing LTC by leaving headquarters with the prior approval of appropriate competent authority and that an employee on CCL could also proceed on foreign travel, provided clearances from appropriate competent authorities were taken in advance. As a condition for grant of CCL, it has also been indicated that it requires prior sanction.
9. It is clear from the above circulars that the focus of the grant of CCL has always been on taking care of upto two eldest surviving children either for rearing or looking after their needs like examination, sickness etc. As a contrast, it is instructive to look at the purpose of granting Study Leave to -10- employees. The focus of the Study Leave as per the instructions is to enable the Government servant to undergo a special course consisting of higher studies or specialized training in a professional or technical subject having a direct and close connection with the sphere of his duties or being capable of widening his mind in a manner likely to improve his ability as a civil servant. The course of study has to be of definite advantage to the Government of India from the point of view of public interest and should have been approved by the authority competent to grant leave. Further, the Government servant should not have less than 5 years of service before applying for such leave including the period of probation. Hence, it is equally clear that Study Leave has to be specifically granted by the authorities and that course of study has to be approved before the employee proceeds on the leave. It is to be understood that the focus of the Study Leave is the improvement in the abilities of the individual employee and thereby improving the quality of the service he/she provides to the Government.
10. From the facts provided, the 3 rd respondent did not apply for any leave to study nor was she granted permission to undertake the course of study, notwithstanding the fact that she may have been eligible for the same. She was in regular employment as a Gumastha in the office of the SDO, Amini. She clearly applied only for the CCL and it is thus to be presumed at the time of application that it was in order to take care of her daughter owing to personal issues. However, the facts and sequence of events would also reveal that she has spent three out of the total of around six months (ie. -11- half her time) granted to her for the CCL in undergoing the Chain Survey Course. Learned counsel for the official respondents has confirmed that necessary action for a departmental inquiry for doing the course without permission during CCL has been initiated against the 3 rd respondent and that they will take necessary action, if required, after due inquiry. From this we can conclude that the question of whether this will affect her eligibility or right to apply for the post of Revenue Inspector would be known, only after the inquiry is duly conducted and the question of penalty decided, provided of course, there is a departmental proceedings actually being conducted. Therefore, at this stage, we do not wish to pre-empt any decision on the eligibility of the applicant to apply for the job, until the above departmental proceedings, if it has been so ordered in the case, are completed. If it has been decided to conduct major penalty proceedings against the 3 rd respondent, it could even result in a penalty being ordered amounting to a disability for applying for Government service or any other job within the Government. We, however, hasten to add that we do not wish to presume or imply anything by our comments in this regard. We only confine our directions to the extent that the official respondents may, at the outset, first decide whether they are conducting an inquiry under the CCS (CCA) Rules against the applicant or whether they do not think the same is required to be done and if so ordered, complete the proceedings in the earliest possible time.
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11. In light of the above, the O.A is disposed off with directions to the official respondents to immediately decide on their future course of action qua the 3rd respondent. Till the matter has been decided and all formalities are completed, no steps should be taken regarding the appointment to the post of Revenue Inspector from the rank list of candidates at Annexure A-7. However, it is directed that this process of inquiry etc. should be completed within a maximum period of six months from the date of this order. After the process is completed, they may take the necessary steps regarding the appointment to the post of Revenue Inspector depending on the outcome of the inquiry. We are not passing any order as to costs.
(Dated this the 1st day of April 2022)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00129/2020
1. Annexure A-1 : True copy of the B.A Degree certificate of the applicant dated 05.08.2017.
2. Annexure A-2 : True copy of the DCA certificate of the applicant dated 25.03.2013.
3. AnnexureA-3 : True copy of the survey test lower certificate of the applicant dated 16.08.2014.
4. Annexure A-4 : True copy of the AUTOCAD certificate of the applicant dated 05.07.2015.
5. Annexure A-5 : True copy of the Notification F.No.1/11/2012-LR dated 01.06.2017.
6. Annexure A-6 : True copy of the short listed candidates vide order F.No.1/11/2012-LR/Estt/249 dated 23.03.2018.
7. Annexure A-7 : True copy of the rank wise result published by the respondents.
8. Annexure A-8 : True copy of the letter No.F.No.12/5/2020/VDP(Kdt)/112 dated 20.01.2020.
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