Central Administrative Tribunal - Chandigarh
Azad Khan vs Post Graduate Institute Of Medical ... on 11 January, 2023
1- O.A. No. 1273/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1273/2022
Chandigarh, this the 11th day of January 2023
(Reserved On: 02.01.2023)
HON'BLE SH. SURESH KUMAR BATRA, MEMBER (J)
1. Azad Khan (File No. 4032), aged about 30 years, S/o Sikandar
Khan, working as Nursing Officer (Adult Gestro Enterology Ward),
PGIMER, Sector 12, Chandigarh, R/o 170, Sarangpur,
Chandigarh.
2. Rajesh Kumar (File No. 3882), aged about 39 years son of Sh.
Mohan Lal, working as Nursing Officer (Advance Kidney Unit),
PGIMER, Sector 12, Chandigarh, R/o # 170, Sarangpur,
Chandigarh.
3. Teekam Chand Garg (File No. 4254), aged about 22 years S/o Sh.
Jagdish Prasad Gupta working as Nursing Officer (Padiatric
emergency), PGIMER, Sector 12, Chandigarh, R/o 170,
Sarangpur, Chandigarh.
4. Mukesh Kumar Swami (File No. 3904), aged about 31 years, S/o
Sh. Har Shai, working as Nursing Officer (Advance Paediatric
Centre(OT), PGIMER, Sector 12, Chandigarh, R/o # 239,
Sarangpur, Chandigarh.
....Applicant
(By Advocate: Sh. Rohiteshwar Singh)
Versus
1. Post Graduate Institute of Medical Education and Research
(PGIMER), Sector 12, Chandigarh-160012 through its Director.
2. Medical Superintendent, Post Graduate Institute of Medical
Education and Research (PGIMER), Sector 12, Chandigarh-
160012.
3. Senior Administration Officer (H), Post Graduate Institute of
Medical Education and Research (PGIMER), Sector 12, Chandigarh
- 160012.
... .Respondents
(By Advocate: Ms. Sukhmani Patwalia)
2- O.A. No. 1273/2022
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicants have challenged the impugned office order dated 13.10.2022 (Annexure A-1) and 03.11.2022 (Annexure A-2) to the extent of incorporating stipulations/conditions, while granting NOC for applying in the M.Sc (Nursing Course) in Rajasthan University of Health Sciences (hereinafter refer to as RUHS) main campus only. They have prayed that the appropriate directions be issued to respondent authorities to review/re-consider their case and to forthwith grant permission /NOC to them to pursue M.Sc. Nursing Course for the Session 2022-23 and accordingly to relieve them immediately to join/attend their 1st year M.Sc. classes.
3. The factual matrix of the case is that the applicants joined the respondent PGIMER on various dates between 2015-2017 on the post of Nursing Officer and are working in different departments The RUHS issued advertisement dated 12.08.2022 for holding Admission Test for Master of Sciences (Nursing) for the session 2022-23. The last date of submission of online application was 18.08.2022. The applicants, being desirous and eligible to appear in the said examination, submitted representation to Respondent No. 2 seeking No Objection Certificate to appear in the entrance exam. They submitted their online applications for appearing in the test for admission to M.Sc. Nursing Course and also submitted the requisite application fee of Rs.3500/- and 1750/- along with the application.
4. It has further been submitted that Respondent No. 2 did not revert to the representation submitted by the applicants seeking NOC to appear in the said entrance examination. The applicants 3- O.A. No. 1273/2022 appeared in the written test held on 30.09.2022. All the applicants were declared passed in written examination and provisionally selected for admission to M.Sc. Nursing Course under Government quota, vide the combined provisional result list (Annexure A-5). Since the first counselling for admission to M.Sc. Nursing course- 2022 was scheduled to be held in the first week of December, 2022, therefore the applicants again approached Respondent No. 2 requesting him for grant of NOC for permission to attend counselling and to deposit fees to pursue M.Sc. Nursing Course. The Respondent No. 1, vide impugned order dated 13.10.2022 and further order dated 03.11.2022, granted NOC for applying in M.Sc. Nursing Course in RUHS to 05 candidates including applicants with the following conditions:-
"(i) This NOC is valid only for Rajasthan University of Health Sciences in Main Campus only.
(ii) If selected, you will be relieved as per vacancy position and Institute requirement at the time of final admission for the above course. There are only 8 candidates can be relieved to pursue higher education in M.Sc. Nursing including NINE PGIMER. The priority-1 will be given to candidates selected in PGIMER. Presently, 6 candidates have already been relieved to join/pursue M.Sc. (nursing) Course at PGIMER. This NOC is issued for remaining 2 seats out of 8. As of now, the criteria to relieve candidates for these vacant posts will be taken as "Seniority" in the service and not individual merit.
(iii) You will be relieved to join course only after reviewing Covid-
19 situation prevailing in the country at the time of relieving.
(iv) NOC does not provide you any automatic or absolute right to be relieved for above course. The decision of the Competent Authority would be final and binding upon you.4- O.A. No. 1273/2022
(v) NOC is issued only for appearing in the specific examination and candidate may not claim NOC as a right to relieve her for course and will be relieved according to prevailing staff strength at the time of relieving.
(vi) You will submit necessary bond and other documents, if relieved."
5. The applicants have challenged the office orders dated 13.10.2022 and 03.11.2022 to the extent these incorporate conditions primarily on the ground that restricting validity of NOC for RUHS Main Campus only is totally in contravention of statutory notification dated 26.02.2005 issued by the Government of Rajasthan, Department of Health Education and Research, whereby the Hon‟ble Governor of Rajasthan had authorized RUHS to conduct entrance test for 2005 and onwards for selection of candidates for admission to M.Sc. Nursing Course in various institutions in the State of Rajasthan and it has been specifically mentioned that this notification covers all institutions affiliated with RUHS, whether Government/Private/aided/unaided.
6. It has further been averred that the decision/criteria to relieve candidates for admission on the basis of "Seniority" in the service and not individual merit is also illogical and without any rational basis as any employee senior in seniority may not be able to seek admission in any particular University/College and at the same time may get admission in another University/College during different calendar months/schedule of admission. Thus, relieving employees/candidates junior in seniority during early admission process in one university/college can take away the right of another candidate senior in seniority, who may get admission in subsequent 5- O.A. No. 1273/2022 months of admission scheduled in another University. Moreover, fixing of priority for candidates selected in Nursing Institute (NINE) in PGIMER also violates the fundamental right of equality among equals as in-service candidates cannot be discriminated in seeking admission among various Universities/Institutes/Colleges. Thus, the stipulation of issuing NOC for only two seats out of 8 is totally illegal, arbitrary and unreasonable.
7. The respondents filed their written statement stating therein that all the representations received from the applicants seeking NOC were put to the Competent Authority for considerations and were kept in abeyance till 03.10.2022. In this regard an agenda was placed before the Education Committee for framing the guidelines for deciding the requests of applicants and a meeting was held on 03.10.2022, wherein the agenda item was discussed and deliberated upon and ultimately it was deferred for further consideration. Upon repeated requests from the applicants, the Competent Authority granted NOC for M.Sc. Nursing in University Campus of Baba Farid University, Faridkot and Rajasthan University of Health Science, Jaipur vide order dated 13.10.2022.
8. It has further been submitted that a meeting was held on 29.01.2022 under the Chairmanship of Prof. Ashok Kumar, Additional Medical superintendent, Department of Hospital Administration to frame a policy to determine the number of employees in Nursing Cadre who can be relieved in a particular year to pursue Higher Education qualification i.e. M. Sc. Nursing (as in service candidate) without jeopardizing the working of the Institute. 6- O.A. No. 1273/2022 In the said meeting, it was also decided that the NOC can only be granted to the employees only if their applications are received well in advance before the last date of submission of application for the course for which NOC has been sought. It was further decided that the nursing officials, who get selected for higher studies at PGIMER, Chandigarh (NINE), AIIMS New Delhi, NIHMANS Bangalore, RAK College of Nursing New Delhi or any Institute of National Importance will only be allowed study leave. With these observations, the agenda was put up before the Education Committee, which, vide meeting held on 03.10.2022 under the Chairmanship of Prof. R. Sehgal, Dean (Academic) discussed agenda items and observed that the candidates opting for higher studies in the Institutes at par with PGIMER like AIIMS, NIMHANS and RAK College is logical but for medical colleges like Baba Farid University is not understandable. It was also observed that the candidates who wish to pursue higher studies should opt for better institutes not for medical colleges having recognition lesser than ours. It has been further submitted that the conditions in the NOC are clearly imposed for smooth functioning of the Institute and the same are within the power and prerogative of the employer I.e. respondent Institute. Further, the reasons for imposing a condition that the applicants must apply to the main campus of Rajasthan University of Health Sciences, is because the applicants are gaining quality experience and knowledge by working with the respondent Institute. In order to maintain the quality and standard of experience, the rationale behind insisting for education from main campus is that the main campus may still have 7- O.A. No. 1273/2022 the infrastructure and amenities and quality education, which may be lacking in the affiliated institutions.
9. With regard to notification dated 26.02.2005 issued by Government of Rajasthan Department of Health Education, relied upon by the applicants, it has been submitted that the said notification is not applicable to the employees of the PGIMER, Chandigarh since the respondent Institute is an autonomous body and all the employees of the Institute are governed by the "Post Graduate Institute of Medical Education & Research, Chandigarh, Rules 1967". It has also been submitted that the Institute is not denying study leave to the applicants but due to shortage of Nursing Staff and heavy rush of patients, certain conditions were imposed, while granting NOC since it is not possible to allow all the candidates to avail study leave, in order to ensure smooth functioning of patient care services. Therefore, in order to streamline the process of NOC and subsequent study leave, only 8 in service candidates are allowed to pursue higher education (M.Sc.). Out of these 8 seats, 6 seats are sanctioned for those, who pursue M.Sc. from PGIMR(NINE). The selection is made strictly in order of merit of the candidates in the respective merit lists of entrance test. Further, only 2 seats are left for those candidates, who are desirous to pursue M.Sc. Nursing from other colleges apart from PGIMER (NINE) and the criteria for allowing leave is as per seniority.
10. It has also been submitted that Study Leave is a matter of discretion of the employer as per Rule 50 of the Fundamental Rules and Supplementary Rule Part III of the Central Civil Service Rule. 8- O.A. No. 1273/2022 The applicants cannot claim leave of any kind as a matter of right. The answering respondents have full right to sanction or refuse leave in the exigency of services, particularly on the ground of shortage of staff. Reliance in support thereof has been placed on a decision dated 19.04.2018 of the Principal Bench of Central Administrative Tribunal in the case of Om Prakash Bairwa Vs. Union of India (O.A. No. 3798 of 2017).
11. Learned counsel for the applicants, during the course of proceedings, submitted that the matter is squarely covered by a judgment passed by this Tribunal in the case of Dinesh Lawat Vs. Health Secretary Chandigarh Administration and Another (O.A. No. 060/1454/2021). Confronted with this, Ms. Sukhmani Patwalia, learned counsel for the respondents submitted that the applicants in this case were granted the No Objection Certificate with a condition that in case they get the admissions in the Institutions of National importance, only then they will be allowed the benefit of study leave, therefore, the judgment rendered in the case of Dinesh Lawat (supra) will not apply in the case in hand. On the point of Institute of National Importance, this Tribunal has called for affidavit stating therein about the names of Institutes of National Importance and the criteria on the basis of which the respondents have arrived at the conclusion that the RUHS and its affiliated colleges are not of National Importance.
12. Pursuant to a direction issued by this Tribunal on 15.12.2022, Respondent No. 2 has filed an affidavit, which is taken on record. It has been stated therein that the reason for imposing a condition in 9- O.A. No. 1273/2022 the NOC is that the applicants must apply to main campus of Rajasthan University of Health Science is because the applicants are currently gaining quality experience and knowledge by working with the respondent Institute and the rationale behind insisting for education from the main campus is that the main campus may still have the infrastructure and amenities and quality education which may be lacking in the affiliated institutions. These conditions in the NOC are clearly imposed keeping in view the best interest of the patients which is in the larger public interest and also for smooth functioning of the Institute and the same are within the power and prerogative of the employer i.e. respondent Institute. It has further been stated that for the purpose of grant of NOC and subsequent study leave, the following institutes can be categorized as Institute of National importance : PGIMER, Chandigarh (NINE), AIIMS New Delhi, NIHMANS Bangalore, JIPMER, Pondicherry and AIIMS like Institute such as AIIMS, Rishikesh, AIIMS Jodhpur etc. It has been submitted that the Central Government grants the status of „Institute of National Importance‟ to premier higher educational institutions in India through an act of the Parliament and such Institutes get special funding and recognition from the Government of India. Further it has been submitted that due to shortage of Nursing Staff and heavy rush of patients, the above-mentioned conditions were imposed, in granting NOC, since it is not possible to allow study leave to all the candidates. It has also been averred that Study Leave is a matter of discretion of the employer as per Rule 50 of the Fundamental Rules and Supplementary Rule, Part III of the Central Civil Service Leave Rules 1972. The applicants cannot claim 10- O.A. No. 1273/2022 leave of any kind as a matter of right. The answering respondents have full right to sanction or refuse leave in the exigency of services particularly on the ground of shortage of staff.
13. No rejoinder has been filed by the applicants.
14. Heard learned counsel for the parties.
15. Learned counsel for the applicants argued that when the Hon‟ble Governor of Rajasthan, by way of notification dated 26.02.2005, granted sanction for selection of candidates for admission to M.Sc. Nursing in various institutions in the State of Rajasthan including Government/Private/aided/unaided affiliated with RUHS, then the respondents has no power and authority under the law to restrict the validity of NOC only for RUHS Main campus and not to other affiliated institutes. It was argued that Nursing Cadre in the entire PGIMER has a sanctioned strength of about 2500-2600 nursing personnel and decision to relieve only 8 candidates to pursue higher education is illegal, arbitrary and without any logic. Reliance has been placed on a judgment of the Hon‟ble Supreme Court of India in the case of Mohini Jain Vs. State of Karnataka and Unni Krishan Vs. State of Andhra Pradesh, holding that the education is now a fundamental right of the people of India. Learned counsel has also relied upon a decision dated 09.02.2022 rendered by this Tribunal in the case of Dinesh Lawat Vs. Health Secretary Chandigarh Administration and Another (O.A. No. 060/1454/2021).
11- O.A. No. 1273/2022
16. Learned counsel for the respondents argued on the lines of submissions made in the written statement. Reliance has been placed on the following judgments.
(i) Anita Malik Vs. A.I.I.M.S. & Another 2006 (16) SCT 128
(ii) Babita Sahoo Vs. All India Institute of Medical Science through its Director Ansari Nagar New Delhi and Others, (OA NO.2868/2017 decided on 11.01.2018 by C.A.T Principal Bench New Delhi.
(iii) Om Parkash Bairwa Vs. Union of India and Others (OA No. 3798/2017 decided on 19.04.2018 by C.A.T. Principal Bench New Delhi.
(iv) Asha Rani Vs. Union of India through Secretary and Others, (WP(C) No. 3895/2020 decided on 24.02.2021 by Hon‟ble Delhi High Court.
(v) Dr. Rohit Kumar Vs. Secretary Office of Lt. Governor and Others (Civil appeal No. 2739 of 2021 decided on 15.07.2021)
17. I have gone through the pleadings, perused the records and considered the arguments of learned counsel for the parties.
18. The facts in the case of Dinesh Lawat (supra) relied upon by the applicants, is slightly different from the facts of the case in hand. In the matter of Dinesh Lawat, the respondents after granting NOC to the applicants therein rejected the study leave on the ground that such permission can be granted for the courses imparted by the 12- O.A. No. 1273/2022 Government Institutions only, whereas in the instant matter, the respondents have granted NOC with certain stipulations/conditions, which are under challenge before this Tribunal. It is an admitted fact that the applicants herein have not applied for study leave so far, as firstly they are aggrieved with the conditions imposed by the respondents in granting NOC.
19. The facts in the case of Anita Malik (supra), relied upon by the respondents, are distinguishable from the facts of the present case. In the case of Anita Malik, the request of the applicant for conversion of extra ordinary leave without pay into study leave with full pay and allowances was declined. The challenge by the applicant therein to denial of conversion of study leave was made after having accepted extra ordinary leave without pay and thereafter completion of her Post Certificate Course. In the judgment, the Hon‟ble High Court has also observed as under:-
"It is trite law that the Court sitting in judicial review, (service matters not excepting) does not sit in appeal over the wisdom of the executive's decisions or policies. It is concerned with the legality, procedural propriety or reasonableness (in the Wednesbry sense) of the order complained against. I am not persuaded to hold that the reasons given by the AIIMS are in any manner arbitrary or unreasonable while declining the petitioner's request for conversion of the class of leave granted to her into study leave."
In terms of the aforesaid observation of the Hon‟ble High Court, this Tribunal has to see whether the conditions imposed by the respondents in granting NOC are reasonable and justified ?. The facts of this judgment are different from the facts in present case.
20. In the matters of Babita Sahoo (supra) and Om Parkash Bairwa (supra), the Central Administrative Tribunal, Principal Bench 13- O.A. No. 1273/2022 New Delhi has dismissed the Original Applications considering the fact that the respondents therein had rejected the request of the applicants for grant of study leave as per the prevalent policy adopted by the respondents. In the case of Asha Rani (supra) also, the rejection of the leave was in consonance with the policy framed by the respondents ESIC for all. The Hon‟ble High Court has held that, " We are unable to agree. The relevant rule qua study leave in the CCS Rules is 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. In the instant matter, under the Chairmanship of Professor Ashok Kumar, Additional Medical Superintendent, Department of Hospital Administration a meeting was held on 29.01.2022 to frame a policy to determine the number of employees in Nursing Cadre, who can be relieved in a particular year to pursue Higher Education qualification i.e. M.Sc.(Nursing). Admittedly, no such policy has been finalised by the respondents so far. Therefore, the respondents cannot take the advantage of these judgments.
21. In the case of Dr. Rohit Kumar (supra), the Hon‟ble Supreme Court has disposed of the appeal of the appellant and observed as under:-
14- O.A. No. 1273/2022
"41. In this case, there has not been any lapse on the part of the appellant. The appellant could not join the post graduate course in PGI Chandigarh for the January 2021 session for reasons attributable to the Respondent Nos. 1 and 2 though technically, the said respondents cannot be said to have acted illegally or in breach of rules and regulations, in denying the Appellant Study Leave, in apprehension of rise in COVID-19 cases and the exigency of availability of doctors in full strength, as far as possible.
42. xxxxxxxxxxx
43. Since the seat in the Post Graduate Course in PGI Chandigarh which remained unfilled due to the inability of the Appellant to join has been carried over to the July 2021 which is yet to commence, and re-advertised, this Court deems it appropriate to direct the PGI, Chandigarh, being the Respondent No. 3 to admit the Appellant to the post graduate course scheduled to commence in July 2021, on the basis of INICET 2020, which he has successfully cleared. The Respondent No. 1 shall re-consider the application of the Appellant for Study Leave, taking into consideration the decline in COVID-19 cases in NCT of Delhi, and take a reasonable decision in favour of the Appellant. Unless there is a substantial rise in COVID-19 cases, the leave application of the Appellant shall not be declined."
Therefore, the facts in the case of Dr. Rohit Kumar are distinguishable from the facts of the present case.
22. Learned counsel for the respondents has argued that Institute is not denying study leave to the applicants, but due to shortage of Nursing Staff and heavy rush of patients, certain conditions were imposed while granting NOC. The reasoning for imposing such conditions was that the respondents considered that the applicants must apply to the Main Campus of RUHS. This Tribunal is of the view that the said condition imposed by the respondents is neither reasonable nor justified as the applicants firstly applied for admission to the course of M.Sc. (Nursing) pursuant to advertisement notice issued by the RUHS and only after having successful in the entrance 15- O.A. No. 1273/2022 examination, the University has allotted affiliated Institutions to the applicants to pursue M.Sc. course. The respondents cannot restrict or supplement the choice of applicants to get admission for higher course from the institution of their choice. The respondents have not provided any data or details about the shortage of nursing staff to substantiate their arguments.
23. It has also been submitted by the respondents that the rationale behind insisting for education from the Main Campus is that the Main Campus may still have the infrastructure and amenities and quality education which may be lacking in the affiliated institutions. In the absence of any substantive material, the observation of the respondents about the standard of RUHS is not reasonable and justified. The respondents have not produced any list of Universities of National Importance issued by the Union of India to support their argument. The apprehension of the respondents about the standard of Rajasthan University of Health Science is without any reason.
24. It is seen that in the meeting held on 29.01.2022 under the Chairmanship of Professor Ashok Kumar, it was also decided that NOC can only be granted to the employees, only if the applications are received well in advance before the last date of submission of application for the course, for which NOC has been sought. In the said meeting, there was no deliberation about the number of restricted candidates, to whom NOC can be granted
25. In the case of Mohini Jain (supra), the Hon‟ble Court has held that right to education is implicit in the Right to Life and Personal Liberty granted by Article 21 and must be interpreted in the light of 16- O.A. No. 1273/2022 the Directive Principles of State Policy contained in Articles 41, 45 and 46.
26. Accordingly, the Original Application is allowed. The conditions/stipulations No. I, II, IV and V imposed in office order dated 13.10.2022 granting NOC to the applicants are set aside being unreasonable and without any policy on the subject. The respondents are directed to consider the applicants‟ case for grant of study leave under the provisions of Study Leave Rules 1972 and relieve them to pursue their higher studies.
(SURESH KUMAR BATRA)
MEMBER (J)
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