Central Administrative Tribunal - Bangalore
Deepa Malladad vs National Institute Of Mental Health And ... on 4 September, 2024
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O.A.No.170/416/2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00416/2024
Order Reserved on: 19.08.2024
Date of Order: 4.9.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Ms.Deepa Malladad
D/o Late Suresh Y Malladad
Aged about 38 years
Working as Nursing Officer
Department of Clinical Nursing Services
National Institute of Mental Health
And Neuro Sciences (NIMHANS)
Hosur Road, Bangalore-560 029
Residing at S3, 'A' Block
SV Jasmine, Raghuvanahalli
Vth Main, Kanakapura Road
Bangalore - 560 062 ...Applicant
(By Advocate Shri.Prithveesh M.K)
Vs.
1. Union of India
Represented by its Secretary
Ministry of Health & Family Welfare
Nirman Bhavan, New Delhi - 110 001
2. The National Institute of Mental Health
And Neuro Sciences (NIMHANS)
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O.A.No.170/416/2024/CAT/BANGALORE
Represented by its Director
Hosur Road, Bengaluru - 560 029
3. The Registrar
National Institute of Mental Health and Neuro Sciences
(NIMHANS)
Hosur Road, Bengaluru-560 029
4. The Dean & Controller of Examinations
National Institute of Mental Health and Neuro Sciences
(NIMHANS)
Hosur Road, Bengaluru - 560 029
5. Smt.Saranya Dharmalingam
Husband's age not known to the applicant
Aged Major, Working as Nursing Officer
Department of Clinical Nursing Services
NIMHANS, Hosur Road, Bangalore - 560 029
6. Smt.Drishya Thomas
Husband's age not known to the applicant
Aged Major, Working as Nursing Officer
Department of Clinical Nursing Services
NIMHANS, Hosur Road
Bangalore - 560 029 ...Respondents
(By Advocate Shri.K.Prabhakar Rao for 2 to 4)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 to seek the following relief:
" (I) Call for records from the Respondent Nos.1 to 4;
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O.A.No.170/416/2024/CAT/BANGALORE (II) Issue a Writ or order quashing the impugned Provisional Select List dated 4/7/2024 for 2nd Round of admission (Annexure A14) passed by 2nd respondent to the course of M.Sc in Neuroscience Nursing and set aside the selection and admission of the 5th and 6th respondent to the said course, and consequently direct the 2nd respondent to admit the applicant to the M.Sc in Neuroscience Nursing course for the academic year 2024-2025 (July Session) offered by the 2nd respondent - Institute, notwithstanding her admission in the DPN Course, to meet the ends of justice.
(III) Grant such other relief or reliefs as this Hon'ble Tribunal deems fit including the costs of this proceedings, in the interest of justice and equity. "
2. This Original Application is filed on various grounds as narrated in paragraphs 5.1 to 5.7 of the Original Application. The brief facts of the applicant are that the present Original Application has been filed seeking to set aside the impugned provisional selection list for 2nd round of admission to Post Graduate courses in the 2nd respondent Institute dated 4.7.2024, in so far as the selection of the 5th and 6th respondent to the course of M.Sc in Neuroscience Nursing is concerned and for such other reliefs, raising the following contentions.
3. That there is no bar whatsoever to the applicant being admitted 4 O.A.No.170/416/2024/CAT/BANGALORE to the course of M.Sc in Neuroscience Nursing. There is no restriction prescribed either in the prospectus pertaining to the course or in any other official document disentitling candidates pursuing diploma course from being admitted to M.Sc in Neuroscience Nursing course. The applicant further contends that after having been waitlisted for the M.Sc in Neuroscience Nursing course and after the vacancy became available to be filled up, the 2nd and 3rd respondent could not have rejected the candidature of the applicant on frivolous grounds. That even assuming that the reason for rejecting the candidature of the applicant that she is pursuing the DPN course and is hence ineligible to be selected for the course of M.Sc in Neuroscience Nursing is valid. The applicant has clearly stated her intention to surrender from the DPN course in order to pursue the M.Sc course. The 4th respondent has also endorsed that her case should be considered. Such being the case, the 2nd and 3rd respondent have arbitrarily overlooked the candidature of the applicant, which is illegal.
4. The applicant further contends that the inclusion of the name of 5th and 6th respondent as selected candidates for the M.Sc Neuroscience Nursing course is illegal as it violates the criteria mentioned in the prospectus. And further contends that 5 O.A.No.170/416/2024/CAT/BANGALORE notwithstanding the above, the applicant would be entitled to admission to the M.Sc course even after completion of her DPN course in August, 2024. The M.Sc Courses are scheduled to commence on 1.7.2024, however the rules governing the admission to M.Sc courses clearly states that there can be an extension in the date of joining subject to approval of the competent authority. Moreover, the rules also prescribe that if a candidate joins late, they must make good the number of days lost after completion of the course duration. Therefore, even if the applicant joins the course in the month of September, 2024, upon completion of her DPN course, she will be about to complete the full duration of the course. The applicant further contends that despite making several representations to admit her to the M.Sc in Neuroscience Nursing Course, no reply is received from the 2nd and 3rd respondent and no official communication is issued to the applicant rejecting her candidature. Instead, the impugned Provisional Select List dated 4.7.2024 was published selecting the 5th and 6th respondent who are junior to the applicant. Hence, she prays to allow her Original Application and to set aside the impugned order.
5. On notice, the respondents have filed their reply statement and contested the case and they said that as per rules and procedure, the 6 O.A.No.170/416/2024/CAT/BANGALORE authorities have drawn up the list of successful candidates who have been eligible to be admitted. And on various grounds they contend that there is no merit in the case of the applicant. Hence, they pray that the Original Application should be dismissed.
6. The case came up for final hearing on 19.8.2024.
Shri.Prithveesh M.K for the applicant and Shri.K.Prabhakar Rao for the respondents 2 to 4 through video conference were present and heard.
7. We have carefully gone through the entire records and considered the rival contentions.
8. From the pleadings of the Original Application and from the contentions of the respondents, it is very clear that the case pertains to not appointment to a public employment, but admission to certain academic course in a public institution.
9. In such cases, the primary issue which comes to our consideration would be whether cases of admission to academic course will come within the purview of this Tribunal and the 7 O.A.No.170/416/2024/CAT/BANGALORE respondents have also contended that it may not come. Whereas the applicant vehemently argued that as it is a case of an in-service candidate getting academic course admission, hence her service eligibility condition is making her appearance in such Diploma/other courses for admission to an academic course justified the maintainability of this case before this Tribunal. The applicant also asserted that there are rulings to that effect but she has failed to file any such ruling before us, nor she has given any details regarding service rules under which such in-service candidate's cases are regulated.
10. We have also noted that in the pleadings of the applicant, some of the aspects which are agitated and contested before us are part of the prospectus 2024-25 Post Graduate Course Admission to various courses in National Institute of Mental Health and Neurosciences (for short NIMHANS) hospital.
11. After examining the whole record and considering the rival contentions, we are of the considered view that every aspect of that prospectus for any academic course like Post Graduate course admission is not justiciable before this Tribunal as those will not be 8 O.A.No.170/416/2024/CAT/BANGALORE strictly coming within the purview of service rule. But if there are service related matters like, how the admission of in-service candidates are governed, i.e., rules governing permission given to a prospective in-service candidate to participate in such examination or selection process such matter may be relevant within the framework of service jurisprudence and such issues can be agitated and decided before this Tribunal. Although we do not find any clear rules which have been placed before us which shows what are those conditions, and as to under which rule that in service permission to appear in the selection process are governed. Although it is evident that the applicant had obtained necessary permission as she asserts in the O.A to participate in the selection process, and we do not find that this fact is contested by the respondents.
12. The second aspect which may also be considered as part of the service jurisprudence, i.e., permission to spare the services of an in- service candidate after he/she is selected and allowed to join such courses. About this also, no rules have been placed before us, as to who has to permit to spare the services of an in-service candidate who has qualified for any academic course to join the said course and pursue the same. Barring these two major aspects, all other aspects of 9 O.A.No.170/416/2024/CAT/BANGALORE selection are governed by the contents of the prospectus. It is our considered view that such academic courses and subject matter contained in their prospectus, if it is not in any way contrary to the provisions of the service rules related to permission to appear in the selection process and finally permission to get spared of an in-service candidate to join such course and complete such course, none other provisions of the academic prospectus is justiciable before us. Only to that extend, any provision in the prospectus can also be maintainable before this Tribunal, and examined. Other matter in the prospectus are in the nature of something related to academic course and are not strictly a service matter and this Tribunal will not be appropriate authority to adjudicate such matter. With these caveats of limitation of relevancy of the Tribunal vis-à-vis the subject matter of an in service candidate for an academic course, we would like to examine this Original Application from the records and rival contentions.
13. The first main ground of the applicant as mentioned in paragraph 5.1 is that there is no bar whatsoever to the applicant being admitted to the M.Sc in Neuroscience Nursing Course, despite her being enrolled in the DPN course. The applicant contends that the DPN Course and the M.Sc in Neuroscience Nursing course are 10 O.A.No.170/416/2024/CAT/BANGALORE separate and distinct and have no connection with one another. It is contended further that while the DPN course is a Diploma course which the students are required to attend after completion of their official duties and responsibilities in the 2nd respondent - Institute, whereas the M.Sc in Neuroscience Nursing Course is a full time course. It is contended that such being the case, when the applicant applied for the DPN Course, it was not intimated to her that her pursuit of the said course would bar her from admission to the M.Sc Course. Neither was it intimated to her when she sought to apply for the M.Sc course. In fact, knowing fully well that the applicant was undergoing the DPN course, NOC was issued to her to submit her application for the M.Sc course. Moreover, there is no restriction prescribed either in the prospectus pertaining to the course or in any other official document disentitling candidates pursuing diploma course from being admitted to the M.Sc in Neuroscience Nursing course. Such being the situation, the applicant cannot be held to be disentitled from being admitted into the M.Sc in Neuroscience Nursing course at a belated stage and therefore, the overlooking of her candidature vide the impugned Provisional List is illegal.
Critical examination of this contention will bring us to examine 11 O.A.No.170/416/2024/CAT/BANGALORE the right of an in-service candidate vis-a-vis the rights of an Institution and particularly a public institution, as it is contended that no specific provision in the rules exist regarding the same. We will have to explore as to how participation of an in-service candidate contributed to the overall public good or otherwise if they are permitted to participate in multiple courses at public expense. We have asked the parties if any rules are there regulating the issues in hand, and the parties have not placed any such rule before us. In the absence of any express rule in the books, we will have to examine it in the best interest of society and general welfare at large. We will have to examine as to how participation in multiple courses contributed to individual benefit, institutional benefit and also benefit to the public at large.
When we asked the applicant if she successfully completing such courses, in any way will contribute to her promotion, emoluments and any other service benefit; and we got a reply in the negative. That means, these courses are more of an academic in nature which enhances the general knowledge and abilities of the person and it will help both the individual to grow and the Institution to benefit, and may be it may benefit the general public in due course, due to the improved knowledge of the public servant. But as sponsoring a person 12 O.A.No.170/416/2024/CAT/BANGALORE for two years for M.Sc course required the sponsored public servant to remain away from work which may affect the day to day efficient management of the institution. By remaining away from work for an academic programme which is fully funded by the public exchequer, there cannot be two opinion that such instances has to be prudently and responsibly planned by the public authorities and the Institution. And even in the absence of any express rules to that effect, the public authorities in public interest would have inherent discretion to decide and put reasonable restrictions on individual's aspiration and their respective right for taking up and participating in more and more additional courses.
Such instances will require harmonising the individual rights and aspiration to acquire new academic degrees with the right of the institution to be run efficiently. It is a fact that the applicant had been sponsored for a DPN course which is a diploma course, and which she asserts that it is a course where students are required to attend after the completion of their duties and responsibilities in the Institution. Whereas the M.Sc in Neuroscience Nursing course is a full time course meaning the person has to be away from duties for a long time. Even if there is no rule specifically governing such instances, i.e., a person who is doing DPN course for an year cannot be given 13 O.A.No.170/416/2024/CAT/BANGALORE another course of M.Sc at present (as neither party as shown such rules). But from the point of view of public expenditure unlimited number of courses being pursued by the same employee at the institutional cost may not lead to prudent and optimal use of public resources.
The applicant is already undergoing DPN course and would be completing the same in September 2024; whereas the M.Sc course would start earlier than that and would continue for two years, which will require the applicant to be away from duties for a very long time. Even if we agree that the DPN course being a Diploma where students may not be required to leave their work and after completion of their official duties and responsibilities they can participate in the course, but as every academic course is demanding enough to put pressure and distract a person from giving her full attention to the official duties and responsibilities, which may also affect their services to the 3rd party, the patients coming to such hospitals, thus contributing to the overall efficient running of a public institution and the impaired delivery of essential health services. And this is a case of an Institute of national importance concerning mental health where finally sparing of any employee for M.Sc course, their employer will have full right to decide whether they would like to spare the person or not, and 14 O.A.No.170/416/2024/CAT/BANGALORE whether the person is suitable to be spared or not in the public interest etc. As we earlier discussed that the employer has full discretion to spare (or otherwise) the services of an in-service employee, but we would also put the rider that such discretion cannot be arbitrary, discriminatory, reckless, perverse and without application of mind as no rules have been shown. But there cannot be two opinion that when public employer takes a decision in every such case in public interest, a speaking and reasoned record of the same is maintained by them, and the affected party is intimated of the reasons for arriving at such decision.
In such circumstances in the absence of clear rules, it would be in the fitness of things that the respondent department shall decide to frame clear rules as to how and under what circumstances, permission can be given to a prospective in-service candidate to appear in the selection process for such academic courses for, and under what circumstances they can be given permission to be spared to participate in such academic courses? The rules must be clearly defined as to, "for how many maximum years an employee could be spared from her duties during their entire career for such courses."
As we see in most of the departments of the government there 15 O.A.No.170/416/2024/CAT/BANGALORE are clear service rules/study leave rules where maximum number of years an employee is entitled for being spared, i.e., like two years of study leave in their life time exist. And if they over stay and take extra ordinary leave, it has serious service consequences. If such rules were clearly defined in NIMHANS, this type of cases would not have come before us. But in the absence of such rules also, we are unable to agree that a public employee will have unlimited right to choose and asserts they would like to be relieved and can do any number of optional academic courses as the employer had already permitted them to appear in the selection process. And consequently argue that the employer should also permit them to be spared for participating in such courses as a matter of right.
In public interest, strictly no one can be allowed more than two years of study leave, whether paid or unpaid. An employee cannot be permitted to pursue unlimited number of optional academic courses. In this context we are clear in our mind that the respondents public employers were having, an inherent right to consider and decide a case of an in-service candidate whether to permit them to participate in such in-service selection process and to spare them to participate in the in service post graduate course etc. In the present case as the employer and the authority who 16 O.A.No.170/416/2024/CAT/BANGALORE managed admission in the academic course are the one and same. And their order impugned about the filling up of list of candidates who are provisionally selected for 2nd round of admission in NIMHANS of July session of academic year 2024-2025 dated 4.7.2024, it may not be very clear whether this document is executed as an academic authority only or even as an employer; as the Director, NIMHANS is having the dual authority. The Director wearing both the hats. But as the second list of provisionally selected candidates is an academic exercise, understandably Director therein was acting as an academic authority. But from the record it is further evident that in this case the Director was simultaneously being guided with the consideration as employer. As it is clear that the academic authority did not strictly operate the first list dated 21.6.2024 at Annexure A-12 wherein the list of candidates who are provisionally selected for admission to various PG courses at NIMHANS under various departments for July session of the academic year 2024-25 were notified for selection as asserted by the applicant. It is also clear that the applicant was a sponsored candidate from NIMHANS and was on the waiting list.
But after the first list, when the 2nd list came out on 4.7.2024; even though some of the qualified candidates in the select list dated 21.6.2024 had not joined, the applicant was not offered admission and 17 O.A.No.170/416/2024/CAT/BANGALORE was overlooked. And the respondent nos.5 and 6 found their names as sponsored candidate from NIMHANS in the said second list, although their names were not there in the 1st select list as waiting list candidates. These type of orders on the first look may appear to be arbitrary, non-speaking and contradictory to the first order dated 21.6.2024; as it also does not give any specific reason for, as to why such anomalies had happened and why the applicant even though finding her name in the first list did not find her name in the second one?
If we strictly consider it to be an academic list, it may not be right for us to scrutinise the same at our level. But from a broader perspective, If it is examined as and order of academic head/employer (both in one), we are satisfied that the authority in this instance has acted both as an academic authority and as an institutional employer (administrative head). As explained by the authority that because the applicant was continuing with the DPN course which would not have completed before September, and as the new PG course would have started in July, the applicant was not considered for the same; and consequently other eligible candidates were offered the course.
From the public perspective, if it is examined, it has many dimensions as even if the applicant says she wants to pay back for the 18 O.A.No.170/416/2024/CAT/BANGALORE present course and ready to surrender the present course, public expenditure as the same had already happened and the institution has lost the opportunity of offering the course to some other eligible candidate, or in overall public good no alternative use of the first course could be there. We note that the applicant was already spared for the DPN course and has pursued the same for one year, and none of her services attributes are affected by pursuing the additional course, as accepted by the applicant herself, hence we are of the considered opinion that the authorities had inherent discretion as the academic managers as well as the employer to decide whether to spare the applicant for the second time for two year PG course. And their decision to not offer her the said course cannot be faulted on the grounds which are mentioned in paragraph 5.1. But as earlier discussed the authorities in such instance were duty bound to record their reasons for such denial in writing as remark and also given a speaking endorsement to the affected party so that the affected party is kept informed. Failure to do so shows the authorities (employer) in bad light and for which act the employer is liable for paying the cost of this unwarranted litigation to the applicant.
14. Further, in paragraph 5.2, the applicant contended that for the 19 O.A.No.170/416/2024/CAT/BANGALORE course applied by the applicant i.e., M.Sc in Psychiatric Nursing and M.Sc in Neuroscience Nursing, 3 seats are earmarked for candidates who are sponsored by NIMHANS. In the course of M.Sc in Psychiatric Nursing, all the 3 candidates who were selected under NIMHANS sponsored category have taken up admission. For the course, M.Sc in Neuroscience Nursing, out of the 3 candidates, two had already taken admission in the other course and therefore 2 selected posts would become vacant and the waitlist candidate list would become operational. The candidate who was at Waitlist no.1 in the M.Sc in Neuroscience Nursing course is also selected to the M.Sc in Psychiatric Nursing course and has opted to take admission in the said course. Such being the case, the remaining 2 waitlisted candidates would have to be selected to the course of M.Sc in Neuroscience Nursing which would include the applicant herein, who was listed under waitlist No.3. Therefore, the applicant is fully entitled to be granted admission to the M.Sc in Neuroscience Nursing course. Such being the case, after having waitlisted the applicant for the M.Sc in Neuroscience Nursing course and after the vacancy became available to be filled up by the applicant, the 2nd and 3rd respondent cannot then reject the candidature of the applicant on frivolous grounds.
This paragraph does not bring any new fact or argument as it is 20 O.A.No.170/416/2024/CAT/BANGALORE the same earlier argument mentioned in paragraph 5.1. Here the applicant contends that the respondents have no discretion as once they have made out the list of candidates who were provisionally selected for admission to various Post Graduate courses under various departments for the academic year 2024-2025, the respondents have no business not to implement it. To change the nature of the select list and waiting list in their subsequent document dated 4.7.2024 which was the list of candidates who were provisionally selected for 2nd round of admission was not within the discretion of the respondents. But as we have already explained and we have no doubt in our mind that the Director of NIMHANS being both academic head as well as being the employer, had decided in overall public interest that as the applicant was already continuing with her DPN course which was yet not over, to overlook her candidature and offer the same slot to some other eligible persons. The applicant has not shown if in any other case in similar circumstances, the respondent authorities have acted differently. We are satisfied with the decision of the authorities in overlooking the case of applicant in an overall institutional and public interest. And we also do not find any arbitrary, malafide, vindictiveness or perversion in the instance. No such instance have been pointed out or substantiated before us. Hence, we have no doubt 21 O.A.No.170/416/2024/CAT/BANGALORE that the authorities have acted judiciously and prudently to ensured that the public money spend on DPN course and money to be spend on prospective M.Sc course are used in most productive way for wider public good. Hence we do not find this ground has any relevance at all. But again we record that the authorities should have recorded the reasons of their decision and also informed the same to the applicant. And in the absence of such endorsement the respondent authorities are liable to pay cost of this litigation.
15. In paragraph 5.3, the applicant says that it is contended that even assuming that the reason for rejecting the candidature of the applicant that she is pursuing the DPN course and she is hence ineligible to be selected for the M.Sc in Neuroscience Nursing course, is valid, the applicant has clearly stated her intention to surrender from the DPN course in order to pursue the M.Sc course. The 4th respondent has also endorsed that her case should be considered. Such being the case, the 2nd and 3rd respondents have arbitrarily overlooked the candidature of the applicant, which is illegal. It is contended that the applicant possesses all the eligibility criteria for admission into the M.Sc in Neuroscience Nursing course. Such being the case, the implicit rejection of the applicant's candidature on the ground that she 22 O.A.No.170/416/2024/CAT/BANGALORE is ineligible since she is pursuing the DPN course is contrary to the records.
From public good perspective, this argument does not hold water even if now she post-facto intends to surrender her DPN course. The loss of a slot and loss of full attention of an employee from regular work, both will be detrimental and prejudiced to the public good and affected the wellbeing of 3rd party patient in the hospital and public at large who could have benefitted by alternative education of another person as DPN course holder and an M.Sc course holder. Hence, mere surrender of a free in-service availed seat is not a remedy. That may appear as a remedy when only it is considered from the applicant's own perspective, which may not be in public interest. And the authorities, who were acting both as academic head and the employer, have taken a decision in overall public interest to not offer her a 2nd course as her first course was getting over later. But we would re-emphasize, as we have already observed that the authority should frame a clear rule on the grounds and circumstances, on which, in future, they would like to give permission to appear in the selection process for an academic course as well as grounds for permission or not giving permission to spare them as an in-service candidate. 23
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16. Further in paragraph 5.4, the applicant contends that the inclusion of the name of 5th and 6th respondent as selected candidates for the M.Sc in Neuroscience Nursing course is illegal and it violates the criteria mentioned in the prospectus. It is contended that the prospectus for the M.Sc in Neuroscience Nursing course clearly mentions that for the sponsored category - "the selection will be based on inter-se seniority subject to qualification of entrance examination, irrespective of marks secured in the entrance test". Admittedly the applicant has qualified the entrance examination as she was waitlisted. Therefore, based on seniority, the candidature of the applicant ought to have been considered. However, in the impugned provisional list, the 5th and 6th respondents who are junior to the applicant in the seniority list are sought to be admitted in to the course, which is illegal. Therefore, based on seniority, the candidature of the applicant ought to have been considered. However, in the impugned provisional list, the 5th and 6th respondents who are junior to the applicant in the seniority list are sought to be admitted in to the course, which is illegal. Therefore, even on this ground, the impugned provisional list dated 4.7.2024 is liable to be set aside.
On careful examination, this contention is also related to the other contentions in the preceding paragraphs and although 24 O.A.No.170/416/2024/CAT/BANGALORE respondent nos.5 and 6 may be juniors to the applicant but in public interest there are strong reasons as the applicant had already undergone an academic course and her services were spared for an year for the said course and also her course was to complete only in the month of September which was later than the day when the next course was to start. We are of the considered view that in public interest, it is within the discretion of the respondents to decide to offer the said vacancy to the next in-service candidates who are eligible. The basic eligibilities of respondent nos.5 and 6 are not contested and disputed, only their inter-se seniority, being juniors, is contested. But as an employer and the academic head, the authority could have decided that as they have spared the services of the applicant for an year for DPN course and the course was yet to complete, they give the offer to those next in queue, i.e. the respondent nos.5 and 6; which cannot be said to be arbitrary. In future in all such cases of denial clear written decision with reason shall be recorded, and the authority must separately record its decision as an academic authority, and as an employer, and also inform the affected party in writing. We record again that not recording the reason and informing the affected party in writing respondent authorities are liable to pay cost of this proceeding to the applicant. 25
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17. In paragraph 5.5, the applicant avers that notwithstanding the above contentions, the applicant would be entitled to admission of the M.Sc course even after completion of her DPN course in August, 2024. The M.Sc courses are scheduled to commence on 1.7.2024, however the rules governing the admission to M.Sc courses clearly state that there can be an extension in the date of joining subject to approval of the competent authority. Moreover, the rules also prescribe that if a candidate joins late, they must make good the number of days lost after completion of the course duration. Therefore, even if the applicant joins the course in the month of September, 2024, upon completion of her DPN course, she will be able to complete the full duration of the course. Such being the case the reason provided by the 2nd and 3rd respondent to the applicant that her admission in the DPN course would act as a bar to being admitted in the M.Sc in Neuroscience Nursing course is frivolous, whimsical and capricious.
We are not able to accept this argument as from public perspective, the employer had all discretion to decide that a person who has been spared for a course should complete the full course and once someone being spared cannot have unlimited right to claim to be 26 O.A.No.170/416/2024/CAT/BANGALORE spared many times for additional course at their own sweet will. In public interest there has to be clear rationing, restraint and restrictions as to under what circumstances and when the employer can spare any of its employee for pursuing academic courses, how many times, how many years etc. Although the parties have not put forth before us if there were any provision in service rules for this cadre, but there are enough number of service rules within the government which clearly defines an upper limit, i.e., 2 years, being spared for an academic course during the life time under the study leave rules. Otherwise, exception to such cases of being spared have consequence on salary, increment, promotion eligibility etc. when it is taken as an extra- ordinary leave, over and above, the eligible study leave.
Even if there is a rule for relaxation as asserted by the applicant that does not mean that such relaxation has to be used for profligacy and waste of public resources or to give unlimited educational opportunity to one individual. Such relaxation has to be in exceptional cases for broader public interest and efficiency. Public interest and prudent use of public resources guide the public employer, who have inherent right to use their discretion for regulating the study leave for pursuing various academic courses by their employees. The discretion to relax and grant joining time is for those who have not been able to 27 O.A.No.170/416/2024/CAT/BANGALORE join for some unforeseen contingencies. We do not find any such contingencies in this particular case as the applicant's services were already spared for one course which was not completed, by the time, the new course was to start and she would have been free from the earlier course only in September. The Director, NIMHANS as her employer could have decided in his discretion not to give permission to join such course as in-service candidate, even in cases where an in- service candidate found her name in the selection list of an academic course. Hence we do not consider that this argument also has any force. But again we would like to record our considered view that the public employer was duty bound to record its reason in taking decision to deny the applicant in-service seat, and was duty bound to inform the applicant of the said reasons.
18. In paragraph 5.6, the applicant contends that till date no official communication is issued to the applicant on her candidature. The applicant's name has been removed from the waitlist for the M.Sc in Neuroscience Nursing course without the 2nd respondent issuing anything in writing to her. It is contended that despite the applicant making several representations to admit her to the M.Sc in Neuroscience Nursing course, no reply is received from the 2nd and 3rd 28 O.A.No.170/416/2024/CAT/BANGALORE respondent and no official communication is issued to the applicant rejecting her candidature. Instead, the impugned provisional select list dated 4.7.2024 was published selecting the 5th and 6th respondents who are junior to the applicant, which amounts to arbitrary and malafide action by the 2nd respondent.
The respondents in their paragraph 10 of the reply statement contended that there are approximately 872 employees working in the Nursing cadre. There is no discrimination as alleged by the applicant that she was denied admission to M.Sc in Neuro Science Nursing and M.Sc in Psychiatric Nursing courses. Since, the applicant was ineligible her candidature was not considered for admission. The applicant is at liberty to apply for above said courses during the next academic year i.e, 2025-26.
We find that the impugned order at Annexure A14 dated 4.7.2024 is basically an academic selection order although the Director NIMHANS was also an employer and as an employer did not find the applicant as eligible as she was already pursuing one course; although expressly these things are not mentioned in the said 2nd list of selected candidates, but it can be drawn by inferences. And hence it cannot be considered completely arbitrary in the facts and circumstances of the case.
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O.A.No.170/416/2024/CAT/BANGALORE But for future the respondents are directed to have a clear rule on study leave (or study option) of in-service candidates, having clear guidelines regarding the principles governing the criteria to spare employees to participate in the selection process and then allowed to participate in the academic course. Such rule should also specify the limits and criteria to reject such cases or even recall such employees from such courses at any point of time, when their services are required by the organisation. Such rules are essential so that their employees are clear in their mind how do the employees choose any academic course. And it should be made clear that during their life time they cannot be spared for more than two years for academic courses. In exceptional cases if they want to choose more academic courses beyond those permissible years as in-service candidate, the employee must compete as outside candidate having clear repercussion on their service progression and benefits. These stipulations should be specified so that everyone is clear about it. And the orders which are passed by the academic authority should clearly mention and identifiably distinct as an academic decision with clear footnote or remarks as to why an in-service candidate is denied a seat. Orders passed as having dual authority as an employer and as an academic head, without recording any cogent 30 O.A.No.170/416/2024/CAT/BANGALORE reason as in this particular case is bad in practice and law.
Although in public interest we are not reopening this particular case and setting aside this particular order; only as we consider that the decision was bonafide by the head of the institution in public interest, and as the academic course has already commenced, and it is a fact that the applicant was already spared for another course and had not yet completed the said course on the scheduled date of the commencement of the new course. But such practice of taking decisions as dual authority, not recording reasons for such decision and not informing the same to the affected party in writing, should be discontinued forthwith. It is imperative that under the service rules speaking and reasoned order is passed giving permission to appear in the selection process or otherwise; and permission to be spared to participate as in-service candidate in an academic course or otherwise to an employee. We find limited lacunae in the present case, but certainly the case of the applicant is not of the nature where it can be labelled as to be against public good and which may convince us to interfere with the impugned orders and grant substantive reliefs. We are also not inclined to interfere with the impugned order for the reason that we consider the 2nd round provisional 31 O.A.No.170/416/2024/CAT/BANGALORE select list as being an academic order not justiciable before this Court, although it has some implied decision by a dual authority, who was also an employer. We categorically say that this case shall be taken as one of its kind and not cited as precedent. Further, we again reiterate that for not recording a clear reason for denial and informing the affected party the respondent authorities are liable to pay costs.
19. Further in paragraph 5.7, the applicant contends that even otherwise, it is contended that the impugned provisional select list dated 4.7.2024 for 2nd round of admission to various post graduate courses, in so far as the selection of the 5th and 6th respondent to the course of M.Sc in Neuroscience Nursing is wholly illegal, arbitrary and liable to be set aside. The applicant prays leave of this Tribunal to raise all and such other contentions that may be available to them, to meet the ends of justice.
But we are not convinced by the same considering the Director, NIMHANS as both academic head and also the employer and in the best interest of the institution and for the prudent use of public expenditure and best possible interest of all participating stake holders, the authorities have taken a decision which cannot be at this 32 O.A.No.170/416/2024/CAT/BANGALORE stage faulted. The applicant should complete her present course. And the respondents should clearly draft service rules on 'The eligibility of in-service candidates to join various academic courses, similar to the service rules on study leave provisions for the Government of India employees, where some clear restrictions are provided for the maximum number of years the services of an employee can be spared to pursue such course, and clear service conditions should be laid down regarding permission to appear in the selection process to such academic courses and also permission to spare the services of an in- service candidate for participating in such courses and under what circumstances it can be rejected or even in emergent cases the candidates could be recalled due to service exigencies from such courses during the course of the academic year etc. In the absence of clear defining rules the orders of the authorities may appear in first go to be arbitrary and it could be difficult for the respondent authorities to defend their action. Hence, in their interest, in a time bound manner, they shall come out with clear service rules on the subject.
20. With the above observations, we pass the following orders:
We do not find any malafide or any arbitrary exercise of discretion by the respondent authorities in this case; and we do not 33 O.A.No.170/416/2024/CAT/BANGALORE find any merit in the case of the applicant. Accordingly we dismiss this Original Application, and all associated M.As, if any pending, are also disposed of. However, we record that the authorities were responsible for framing clear rule on sparing services of employees for various academic courses, and they failed in their duty to put such rule in place. We further record that the authorities while taking decision in public interest, failed to record reasons for denying a seat to the applicant, a waitlisted candidate, and to inform her in writing. These omissions and commissions on the part of the authorities caused anguish and hardship to the applicant and forced her to come to this Tribunal, and the authorities are liable to pay suitable cost to the applicant. The NIMHANS as an organisation shall pay a cost of Rs.25000/- and the Director Dr.Pratima Murthy signatory of Annexure A-14 in her personal capacity shall pay Rs.2000 to the applicant in 15 days from the receipt of the certified copy of this order failing which they shall be liable to pay an interest of 6% also thereafter.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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