Central Administrative Tribunal - Delhi
Sangita Rani vs Govt. Of Nctd on 7 September, 2016
Central Administrative Tribunal
Principal Bench
OA 4315/2015
Reserved on: 01.09.2016
Pronounced on:07.09.2016
Hon'ble Mr. V.Ajay Kumar, Member (J)
Hon'ble Dr. B.K. Sinha, Member (A)
1. Sangita Rani w/o Shri Deepak Verma
R/o A-3, Lake View Apartment
Ward No.8, Mehrauli
New Delhi-110 030.
2. Teekam Singh Yadav
s/o Shri Govind Ram Yadav
R/o Flat No.9, Nurses Hospital
Jag Pravesh Chandra Hospital
Campus Shastri Park, Delhi
3. Kamlesh Meena s/o Shri Prahlad Meena
R/o Flat No.11, Nurses Hospital
Jag Pravesh Chandra Hospital
Campus Shastri Park, Delhi
4. Subhash Chand Yadav
s/o Shri Umrao Singh Yadav
R/o Type-2/06, Staff Quarters
Guru Gobind Singh, Government Hospital
Raghubir Nagar,
New Delhi-110 027.
5. Mukesh Kumari w/o Shri Kashmir Singh
R/o 330/5, Lal Darwaja,
Sonepat (Haryana).
(All applicants are staff nurses) ...Applicants
(By Advocate: Ms. Sriparna Chatterjee)
Versus
1. Government of NCT of Delhi
Through Secretary
Department of Health and Family Welfare
9th Level, A-Wing, IP Extension,
Delhi Secretariat
New Delhi - 110 002.
2
2. Indian Nursing Council
Combined Councils Building
Kotla Road, Temple Lane
New Delhi.
3. Rajkumari Amrit Kaur College of Nursing,
Govt. of India, Lajpat Nagar,
New Delhi - 110 024. .. Respondents
(By Advocates: Ms. Sangita Rai for R-1, Sh. VSR Krishna for
R-2 and Sh. S.M. Zulfiqar Alam for R-3)
ORDER
By Hon'ble Dr. B.K. Sinha, Member (A) The instant Original Application has been filed by five applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash the impugned order dated 23.07.2015 issued by respondent no.1 vide which their application for study leave has been rejected following Rule 50 (2)(iii) of the CCS (Leave) Rules, 1972 instead of Rule 50(1) of the Rules ibid being bad in law and contrary to the relevant rules.
2. The facts of the case, in brief, are that the applicants joined different hospitals under the respondent no.1 as Staff Nurses on the dates shown against their names in the following table:-
Sl. Name of Applicant Hospital where joined Date of No. joining 1 Sangita Rani Pt. Madan Mohan Malviya 03.09.2008 Hospital 2 Teekam Singh Yadav Jag Parvesh Chandra Hospital 16.07.2007 3 Kamlesh Meena -do- 13.07.2007 4 Subhash Chand Yadav Guru Govind Singh Govt. 27.10.2006 Hospital 5 Mukesh Kumari Satyawadi Raj Harish Chandra 27.07.2003 Hospital 3
3. The applicants, who were aspirant to pursue further study and fulfilling the requisite criterion, applied for admission to pursue 2 years full time (Post Graduate Degree) in M.Sc. Nursing Course for the session 2014-2016. It is noted that the applicant no.1 sought admission in Rajkumari Amrit Kaur College of Nursing (respondent no.3) and remaining applicants i.e. applicants no.2 & 5 sought admission in various institutes recognized by the respondent no.2. It is also seen from the pleadings that the applicant no.1 had to qualify an entrance examination for taking the said admission and necessary permission for the same was also granted by the hospital where she has been working. We take note of the fact that all the applicants were allowed admission by the respective institutes and, therefore, they applied for study leave. Their study leave applications with recommendations by the HOD of respective hospitals were forwarded to the respondent no.1 for obtaining necessary approval by giving the required information e.g. status of recognition, method of selection, duration of course and the letter from the institutes regarding applicants' selection. The same was rejected vide impugned order dated 23.07.2015 on a number of grounds - M.Sc (Nursing) is not a technical course but appears to be an academic qualification, acquisition of which is not necessary; it gives rise to no right on part of the applicants to press their claim; Finance 4 Department has disagreed with the recommendation of the respondent no.2 i.e. Indian Nursing Council that M.Sc nursing is a technical course; the matter was referred to the Government of India, which has not given any response so far; sanction of these applications shall lead to a large number of applications expected to be generated thereby affecting the normal hospital duties.
4. The applicants have assailed the impugned order on the following grounds:-
(i) The M.Sc (Nursing) is a technical course and no reasons have been cited for holding that the same is an academic qualification. The cases of the applicants have been duly forwarded by the respondent no.2, which is the appropriate body to decide all such issues.
(ii) There are serious internal contradictions in the impugned order as "on one hand it states that M.Sc nursing is not a technical course whereas on the other it states that the said course may be a technical course as per the opinion of the Indian Nursing Council and the Delhi Council. Therefore, the entire treatment of the applications for study leave under Rule 50 (@) (iii) of the CCS (Leave) Rules by the respondent is not based upon a confirmed 5 view of the respondent but mere speculation. Since the impugned order has been passed on the basis of an unsure and unconfirmed view of the respondents, the said order is in itself bad in law for being in violation of the principles of natural justice."
(iii) The respondents have also failed to give any reason as to on what basis M.Sc (Nursing) is held to be an academic qualification.
(iv) The syllabus of M.Sc (Nursing) clearly indicates that it is a technical course. It is also backed by the opinion of the respondent no.2 - an autonomous statutory registered body under the Delhi Nursing Act, 1997 laying down the procedure for renewal of registration of the Nurses, Midwives, Multipurpose Health Worker (Female).
(v) The impugned order contradicts the recommendation of the concerned hospitals stating that the applicants can be spared for pursing the course in question as the same would definitely be advantageous from the point of view of public interest.
(vi) The apprehension of respondent no.1 that by following this example a large number of such applications from nursing cadre will be received, which will require alternate arrangements to be 6 made. The action of the respondent no.1 is discriminatory as others have been allowed study leave under these circumstances.
5. The respondent no.1 has filed a counter affidavit stating that the competent authority has referred the consolidated proposal to the Finance Department, Govt. of NCT of Delhi keeping in view the fact that the officials will have to be given the full pay and allowances for 2 years while they would be away from their respective hospitals/medical institutes.
6. Though the respondent no.2 has not filed any counter affidavit, yet Sh. VSR Krishna, learned counsel appearing for the said respondent being a statutory body, it has nothing to do with the admissions of the 3rd respondent college.
7. The respondent no.3 has also filed a counter affidavit stating that Rajkumari Amrit Kaur College of Nursing functions under the aegis of Government of India and the applicant no.1 joined the course there after qualifying the entrance examination but left in October, 2014 without intimation.
8. The applicants have admitted these facts in the rejoinder and have stated that after having taken admission by the applicant no.1 with the respondent no.3, the course had to be discontinued on account of monetary constraints. 7 It has also been stated that the respondent no.3, being a proforma party, has nothing to say about the merits of the case.
9. In short, the arguments of three respondents concentrate on four points i.e. (i) leave is not a matter of right; (ii) there has been no reply from the Government of India whom the matter had been referred to; (iii) M.Sc (Nursing) course is not a technical course; (iv) the study leave will impose extra financial burden and loss in public convenience.
10. We have carefully gone through the pleadings of the rival parties and documents so adduced by them. We have also patiently heard the arguments of the learned counsels for the respective parties. We find that the issues germane to our determination in this case are as under:-
1. Whether the proposed study leave can be enforced as a matter of right?
2. Whether the decision of the Government is discriminatory?
3. Whether it shall cause loss in public goods and stress the finance of the institution?
4. What relief, if any, could be granted to the applicants?
11. Insofar as the first of the issues is concerned, the applicants have prayed for direction to the respondents to 8 consider their study leave applications under Rule 50 (1) of the CCS (Leave) Rules. For the sake clarity, the same is reproduced as under:-
"50. Conditions for grant of study leave (1) Subject to conditions specified in this Chapter, study leave may be granted to a government servant with due regard to exigencies of public service to enable him to undergo, in or out of India, a special course of study consisting of higher studies or specialized training in a professional or a technical subject having a direct and close connection with the sphere of his duty."
In addition, the CCS (Leave) Rules provide a certain conditions, which are as under:-
"53.Sanction of study leave -
(1) A report regarding the admissibility of the study leave shall be obtained from the Audit Officer: Provided that the study leave, if any, already availed of by the Government servant shall be included in the report.
(2) Where a Government servant borne permanently on the cadre of one department or establishment is serving temporarily in another department or establishment, the grant of study leave to him shall be subject to the condition that the concurrence of the department or the establishment to which he is permanently attached is obtained before the leave is granted.
(3) Where the study leave is granted for prosecution of studies abroad, the Head of the Mission concerned shall be informed of the fact by the authority granting the leave, provided that where such leave has been granted by an Administrator, the intimation shall be sent through the Ministry concerned.
NOTE:- The Head of the Mission shall be contacted by the Government servant for issue of any letters of introduction or for other similar facilities that may be required. (4) (a)Every Government servant in permanent employ who has been granted study leave or extension of such study leave shall be 9 required to execute a Bond in Form 7 or Form 8, as the case may be, before the study leave or extension of such study leave granted to him commences.
(b)Every Government servant not in permanent employ who has been granted study leave or extension of such study leave shall be required to execute a bond in Form 9 or Form 10 as the case may be, before the study leave or extension of such study leave granted to him commences.
(c ) The Authority competent to grant leave shall send to the Audit Officer a certificate to the effect that the Government servant referred to in Clause (a) or Clause (b) has executed the requisite bond.
5 (a) On completion of the course of study, the Government servant shall submit to the authority which granted him the study leave, the certificates of examinations passed or special courses of study undertaken, indicating the date of commencement and termination of the course with the remarks, if any, of the authority in charge of the course of study.
(b)If the study is undertaken in a country outside India where there is an Indian Mission, the certificates shall be submitted through the Head of the Mission concerned."
12. It appears from the notings in the file at page 34 of the paper book that the Medical Superintendent of Shastri Park Hospital, where some of the applicants were working, had also submitting the following documents along with the proposal:-
"A. Details/copies of advertisement/prospectus (at pae 102/C to 115/C).
B. A letter from the institute offering the course informing that the applicant has been selected (at page 118/C).
C. A clear statement from the head of the hospital/institution as to whether the applicant 10 can be spared during the course of study leave or not [Point (A) at para 158 on 140/N]. D. A bond as laid down in Rule 53(4) undertaking to serve the govt. for a period of three years (at page 122/C to 123/C).
E. Clarification of Medical Superintendent, Shastri Park Hospital regarding advantage of this training in public interest (para 158-160 at page 47- 48/N)."
It is further mentioned in the notings (page 35 of the paper book) that there is a clarification from the Medical Superintendent Shastri Park Hospital in the following terms:-
Sl Observation of Secretary Clarification No. (H&FW)
(i) MS should certify he will not [Point (A) at para 158 on 47/N].
seek replacement Medical Superintendent, Shastri Park Hospital has submitted that " on pursuing study leave for a period of 02 years under the course of M.Sc Nursing (Paediatric) by Sh. Teekam Singh Yadav, Staff Nurse the service would not be affected. Hence, he may be allowed for two years Study Leave."
(ii) May ascertain from DNC that As the institute is situated in Noida, institute is recognized. UP therefore recognition with Delhi Nursing Council is not required.
Whereas, the institute is recognized with Indian Nursing Council (at page 143/C).
(iii) Length of service should be He is working as Staff Nurse under mentioned. GNCT of Delhi for last 07 years as he has joined the service w.e.f.
16.07.2007.
(iv) Note should bring out (A) briefly [Point (B) at para 158 on 47/N) for perusal of Lt. Governor. Medical Superintendent Shastri Park (A) Clarification of Medical Hospital clarified that:-
Superintendent, Shastri Park (i) M.Sc Nursing Paediatrics Hospital regarding advantage is to prepare nurses to of this training in public function in super interest. speciality areas in NICU and Paediatric Department.
(ii) M.Sc. Nursing Paediatrics
is a specialized course
which prepares nurses to
provide qualitative,
quantitative and
rehabilitative nursing care
to neonates, infants and
children.
11
(iii) M.Sc Nursing Paediatrics
is helpful to reduce infant
mortality and morbidity
rates.
(iv) M.Sc Nursing Paediatrics
is helpful to provide
specialized care to infants
and children.
(v) There will as help in
National Programme for
reduction on Neonatal
and Infant Mortality.
As per the comments of
HOD Nursing, these
above specifications will
help the official to serve
the public in a better way.
13. It appears that the applicants have met the
requirement of study leave in itself except for the objections raised by the respondents regarding the nature of leave and loss in public utilities.
14. We now come to the moot question to be decided legally that this application being not in order but still does it give rise to any legal right in favour of the applicants. In this regard, Rule 7 of the Leave Rules provides that it cannot be claimed as a matter of right. For the sake of greater clarity, we extract Rule 7 ibib as under:-
"7. Right to leave (1) Leave cannot be claimed as of right. (2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant."
In other words, it would be clear from above that grant of leave of any kind can be refused or revoked by the competent authority in exigencies of the public service. This 12 point has also been reiterated vide OM dated 22/27.03.2001, which reads as under:-
(1) Government servants to be encouraged to take leave regularly.--Government have had under consideration the recommendation made by the Second Pay Commission that the Heads of Departments, Offices, etc, should plan their work in such a way as to permit Government servants to take a certain amount of leave annually and a longer period after some years or according to any special necessity.
Leave cannot be claimed as a matter of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. However, as emphasised in the instructions issued by this Department from time to time, such provisions have been made in the Rules because it is not possible to let all those who want leave at a particular time to have it at that time and there is a limit beyond which depletion of staff cannot be permitted without dislocating the working of an establishment. These instructions are not intended to be used as in effect to abridge the leave entitlements of the staff. It is indeed desirable in the interest of the public services -that government servants take leave at suitable intervals and return to work relaxed and refreshed."
15. This also makes abundantly clear that leave cannot be claimed as a matter of right as the same rests upon the discretion and the judgment of the competent authority. This position has also been reiterated by the Hon'ble Supreme Court in a number of decisions. In New India Assurance Co. Ltd. Vs. Vipin Behari Lal Srivastava [2008 (3) SCC 446], the Hon'ble Supreme Court held as under:-
"11. The Rules governing "leave" read as follows "(1) General Principles Governing Grant of Leave:
The following general principle shall govern the grant of leave to the employees:
(a) Leave cannot be claimed as a matter of right.13
(b) Leave shall be availed of only after sanction by the competent authority, but one day's casual leave may be availed of without prior sanction in case of unforeseen emergency, provided the head of the office is promptly advised of the circumstances under which prior sanction could not be obtained..."
(4) Sick Leave:
(c) Sick Leave can be granted to an employee only on production of a medical certificate from a Registered Medical Practitioner, which term would include Homeopathic, Ayurvedic and Unani doctor also provided they arc registered medical practitioners.
(d) The certificate should state as clearly as possible the diagnosis and probable duration of treatment...."
16. The applicants have relied upon a decision of the Hon'ble Supreme Court in Coal India Ltd. & Ors. Vs. Saroj Kumar Mishra [2007 (9) SCC 625], perusal of which reveals that the same relates to claim of promotion wherein the respondents, who were employees of Mahanadi Coalfields Ltd., were not promoted from Grade E-3 to E-4 on account of vigilance clearance not being granted to them as cases had been pending against them. This decision relied upon by the applicants follows a different ratio and the same is, therefore, not applicable to the facts of the case in hand. Hence, this issue is conclusively decided against the applicants.
17. Insofar as the second issue is concerned, the applicants have relied upon Office Order No. 680 dated 23.07.2012 [page no.46 of the paper book] issued by Dr. 14 Baba Saheb Ambedkar Hospital, New Delhi wherein one Mahaveer Prasad Kaswan, Staff Nurse was granted study leave for 24 months w.e.f. 01.8.2012 for pursuing M.Sc Nursing course on regular basis from Prakash Institute of Physiotherapy Rehabilitation and Allied Medical Science, Greater Noida (UP). Likewise, others including Usha Phulara, Satwant Singh, Sajjan Kumar, Mahendra Solanki, all staff Nurses, had also been granted study leave for pursuing various courses. These instances have been used by the applicants to allege that the impugned order of the respondents is discriminatory. However, we do not agree with this view of the applicants. We have already seen while dealing with issue no.1 that rules vest discretion of the competent authority sanctioning leave to be exercised in accordance with the basic principle of law. However, if a few persons had been granted leave earlier, this cannot become a compelling precedent for grant of leave to all others who have applied for the same. The exigency of service may vary from time to time and unit-to-unit, therefore, the decision of the competent authority will have to rest on them. However, there is nothing on record to indicate that this discretion was guided by discrimination or mala fide. Hence, we do not discuss it any longer and hold that the action of the respondents in rejecting the study leave applications of the 15 applicants was not discriminatory. Hence, this issue is also decided against the applicants.
18. Insofar as the third of the issues is concerned, we have already held that sanctioning of study leave is within the discretion of the competent authority. If a large number of persons proceed on long leave of two years, there is no denying that the hospitals will have to make arrangements for them by whatsoever means that may be permissible. While recognizing that hospitals have certified that there will be no loss of work, it is still the job of the competent authority to make a judgement on that. The allegation of the applicants that the competent authority has decided their leave applications otherwise is not correct being a mere exercise on part of the competent authority based upon his better judgment, and in view of our findings in issue no.2, the same cannot be challenged before the court of law.
19. In totality of facts and circumstances of the case, we conclude that leave, not being a matter of right, cannot be claimed as such by the applicants. It is true that the leave applications of the applicants appear to be fulfilling the eligibility. However, it is not enough to grant leave as the same can be refused despite fulfilling all conditions of eligibility on the ground of public exigencies. We have also found that there is nothing discriminatory in the process of 16 declining study leave to applicants while it had earlier been granted to some other persons for the simple reason that raison d'être for the decision may differ from time to time. Since leave under similar conditions have been granted at one time does not imply that all such persons who apply for leave will have to be necessarily granted the same as the public services and utilities need to be kept in mind while taking such a decision.
20. In view of above discussion, the instant Original Applicants fails and the same is accordingly dismissed leaving the parties to bear their own costs.
(Dr. B.K. Sinha) (V. Ajay Kumar) Member (A) Member (J) /AhujA/