w w w . L a w y e r S e r v i c e s . i n

Sijesh George v/s The Union of India, Represented by its Secretary, Ministry of Labour & Employment (Social Security Division), New Delhi & Others

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    Original Application No. 170/00482 of 2020

    Decided On, 23 December 2020

    At, Central Administrative Tribunal Bangalore Bench


    For the Applicant: Vishwanath Bhat, Advocate. For the Respondents: R1 to R4, Vishnu Bhat, R5, K. Prabhakar Rao, Advocates.

Judgment Text

Rakesh Kumar Gupta, Member (A).1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:a. Issue writ of certiorari or any other appropriate writ or order or direction, quashing the impugned endorsement bearing No.532/A/20/15(249)/13- 14/Estt dated 20-10-2020 issued by the 3rd Respondent, true copy of which has been produced and marked as Annexure –A-9, as the same is illegal, arbitrary, unjust, capricious, irrational, without application of mind and the same is contrary to the provisions of Rule 50 of the CCS(Leave) Rules;b. Issue writ of mandamus or any other appropriate writ or order or direction, directing the Respondents 3 & 4 to grant study leave to the applicant as per Rule 50 & 51 of the CCS(Leave) Rules 1972;c. Pass such other order/s, as this Hon’ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice and equity.2. The facts of the case as pleaded by the learned counsel for the applicant, Shri Vishwanath Bhat, are as follows:a. The applicant after acquiring the qualification in General Nursing and Midwifery course joined the Post Basic Nursing course and also completed the said course. He was appointed as Staff Nurse in All India Institute of Medical Sciences (AIIMS), New Delhi on 16.03.2009. Subsequently, he applied through proper channel and was selected and appointed as Staff Nurse in the ESIC Model Hospital, Rajajinagar, Bengaluru on 18.10.2013. Subsequent to his joining as Staff Nurse in the ESIC Model Hospital, Rajajinagar, Bengaluru, he also underwent two years probationary period successfully and thereafter he was confirmed.b. The applicant wished to apply for admission to Post Graduation courses offered by National Institute of Mental Health And Neuro Sciences, Bengaluru. He accordingly, sought No Objection Certificate(NOC) from the 3 rd respondent to apply for M.Sc. Nursing course on 20.01.2020. The NOC was granted by respondent No.3 on 28.01.2020 granting him permission to apply for M.Sc. Nursing Entrance Examination vide Annexure-A2.c. The applicant subsequently had appeared for the entrance examination for M.Sc.(Nursing) course and was successful. He was provisionally selected at Sl.No.4 for M.Sc. in Psychiatric Nursing in All India category under General Merit. In pursuance to his selection to admission to M.Sc. in Psychiatric Nursing, he submitted an application dated 12.10.2020, through proper channel, requesting the concerned authorities to grant him study leave to pursue higher studies i.e. Post Graduation in Psychiatric Nursing. He also submitted a separate application on 19.10.2020 requesting permission to join the said course. However, the respondent No.4 did not accede to his request for grant of study leave for two years due to administrative exigencies. It was stated that if the applicant desires to pursue higher studies, he may quit the job for doing higher studies.3. The applicant has assailed the rejection of his application for granting him study leave to pursue the course on the following grounds:a. The application for study leave cannot be rejected mechanically and it is imperative on the part of the concerned authority to examine whether a higher study or special training in a professional or technical subject is having a direct and close connection with the sphere of said duty. It is also imperative to examine whether the higher study in which the government servant is intending to join is capable of applying his mind to improve his abilities and to equip him better to perform his duties.b. The applicant being a staff nurse, it would be beneficial to all the concerned including the Government as well as ESIC in view of the fact that post-graduation in Psychiatric Nursing is having a direct and close connection with the sphere of his duty. ESIC Hospital, Rajajinagar, where he is working, has a separate unit for Psychiatric Wing which is headed by senior specialists. There are 4 doctors in the Psychiatric specialty unit. If the permission as sought is granted, it will not only be beneficial to the patients but also to the doctors in the ESIC Model Hospital, Rajajinagar.c. The respondents had recently issued an advertisement on 14.11.2019 for filling up of the posts of Nursing Staff possessing M.Sc. Nursing in various specialities. The nursing personnel working in the ESIC Model Hospital, Rajajinagar, who possessed the qualification of M.Sc. (Nursing) have been called for options to work as Tutors in the ESIC College of Nursing, Indiranagar.d. The Government has taken several initiatives for further development of in-service training, education and upgradation of nursing services in the country since there is a rising demand for specialised, competent and highly skilled nurses. As per the gazette notification dated 06.11.2020, the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019 have been notified in which there are prescribed CNE(Continuing Nursing Education) requirements for all Registered Nurses and Registered Midwife personnel. These prescribe mandatory requirements of skill upgradation and continuing education for renewal of registration and licence of nurses and midwives every 5 years. All such personnel are required to earn 30 CNE credits or 150 CNE hours in every 5 years. Under the guidelines prescribed under these regulations, higher studies such as acquisition of higher studies shall provide the applicant 30 credits/150 hours, and would complete the mandatory requirement as prescribed under the guidelines.e. The CAT, Ahmedabad Bench in OA.No.432/2016 has observed that the mere fact that there was no post in the ESIC hospitals which requires M.Sc. (Nursing) degree, cannot be the basis for rejection of request for study leave to pursue M.Sc. Nursing Degree course. The Leave Rules require the competent authority to consider whether the proposed higher study has a direct and close connection with the sphere of the duties of the government servant duty, and whether the study proposed to be undertaken would be beneficial to the organization as well its beneficiaries. In a similar case decided by CAT, Principal Bench in OA.No.2247/2017 dated 17.07.2017, a direction had been issued to ESIC to sanction study leave to the applicant therein for pursuing Post Graduation in Nursing. The case of the applicant is also squarely covered under these two judgments.f. Though the grant of study leave is the discretion of authorities concerned, such discretion needs to be exercised in a judicious manner. The respondents have exercised such discretion in an arbitrary manner. The respondents have themselves granted study leave to several employees of their own in the past. In the year 2016 as well as 2017, study leave was granted to two Staff Nurses working in ESIC Hospitals in New Delhi and Noida respectively. Study leave has also been granted to several Medical Officers for pursuing their post-graduation. Since many others have been granted study leave, the respondents cannot single out the applicant and reject his application which would be violative of Articles 14 & 16 of the Constitution of India.g. The only reason given by the respondents to deny the study leave is administrative exigencies, which lacks in material particulars as already stated.4. Shri Vishnu Bhat, learned counsel for the respondents in his detailed reply has averred as follows:a. The main objective of the ESI Corporation is to extend medical and various kinds of cash benefits to the insured persons who are covered under Section 2(9) of the ESI Act. In order to extend the social security cover to the insured persons and their dependants and with a view to improve the quality of medical benefits, the ESI Corporation has started hospitals and medical colleges in many States in the country with ESIC MS & PGIMSR, Bangalore being one of them.b. Presently this hospital is facing acute shortage of qualified nursing personnel and facing difficulties in providing quality medical services to the stakeholders and general public during the pandemic period.c. The applicant wanted to do higher studies only for his professional growth and filed this instant OA and his additional/higher qualification is not at all required for the respondents at this point of time, for providing medical care to the stakeholders contributing to the ESI Scheme.d. The applicant had requested for issuance of NOC to apply for M.Sc. entrance examination in National Institute of Mental Health And Neuro Sciences(NIMHANS). The respondents had issued a conditional NOC according to which permission to only to apply for M.Sc. Nursing Entrance Examinations had been granted and it was also stated that this permission does not automatically give right to take leave and that the Dean reserves full right to amend or cancel the permission granted without assigning any reason as per condition No.02 and 05 of Annexure-A2. The applicant was fully aware of the same and he cannot claim the study leave as a matter of right.e. ESI Corporation in its meeting as communicated vide letter dated 31.10.2018(Annexure-R1) has decided that no study leave be granted to nursing cadre employees to pursue higher studies since there is no functional requirement for a degree of M.Sc. (Nursing) in ESIC and hence this cannot be said to be meeting the pre-condition as per Rule 50(3) of CCS(Leave) Rules specifying grant of study leave for a course with a definitive advantage to the organisation.f. Principal Bench of this Tribunal in OA.No.3798/2017 vide order dated 19.4.2018 has clearly commented that the study leave cannot be claimed as a matter of right and if the respondents have justifiable reasons to deny the study leave, they are well within their right to deny the same.g. Shri Vishnu Bhat, learned Advocate in a subsequent affidavit filed on behalf of respondents No.1 to 4 has further stated that as there is no functional requirement of staff nurses with M.Sc. nursing, the corporation has decided not to grant study leave to any of the nursing cadre employees in future. However, ESIC has no objection if he intends to do the higher studies by availing his personal leaves i.e. EL/HPL/EOL and not study leave which has a financial burden on public money contributed by workers class of the society.h. Grant of NOC for appearing in the entrance exam is not being restricted by the ESIC for the simple reason that in the event of qualifying the entrance exam and securing the seat in the higher study course, an employee has the option to decide further course of action according to one’s own priorities. In this case, the applicant has the option to either resign from the service to pursue higher studies in the eventuality where leave is not granted to them due to administrative exigencies, or he/she may leave the course and continue with the employment. ESIC has authorized MSs/Deans to issue NOC to the applicants to appear in entrance exam for PG courses which is mandatorily required in terms of Rule 3 of CCS(Conduct) Rules. Grant of specific kind of leave for pursuing higher studies is a separate matter and the discretionary powers of the competent authority have to be exercised for grant of leave. The competent authority vide its letter dated 30.11.2018 has specifically stated that ‘all representations in future received from nursing personnel for grant of study leave may be treated as rejected without a formal communication from Hqrs., unless or until specific approval of the competent authority is communicated to the applicant and the concerned office’. The applicant was fully aware of the same letter and he cannot claim the study leave as a matter of right.5. A careful examination of the Central Civil Services (Leave) Rules 1972 indicate the following:1. Subject to conditions specified in this Chapter, study leave may be granted to a Government servant with due regard to the 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.2. Study leave may also be granted –(i) For a course of training or study tour in which a Government servant may not attend a regular academic or semi academic course if the course of training or the study tour certified to be of definite advantage to Government from the point of view of public interest and is related to sphere of duties of the Government servant.6. The course of M.Sc. (Nursing), for which study leave has been requested, is without any doubt, related to the sphere of duties of the applicant. It would also be in public interest as is evident from the fact that the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019, emphasize the mandatory requirement of updating skills and acquiring higher PG qualifications in Nursing is listed as one of the important ways of upgrading skills. The contention of ESIC that there is no prescribed requirement of Post Graduate qualified nursing staff in its nursing cadre does not imply that that acquisition of post graduate degree in nursing would not be beneficial to the beneficiaries(patients) in the ESIC hospital as well as to the organisation itself.7. The applicant has specifically averred that the ESIC hospital, where he is working at present, has a separate psychiatric wing established by the Corporation for treating patients comprising of 4 doctors. Hence it would not only be beneficial to the patients but also to the concerned doctors in the ESIC Model Hospital if suitable Post Graduate qualified nursing personnel is made available to the unit. A large organisation like the ESIC does not have to look only at only its present-day requirements alone. It should also focus on its long-term goals and plan for human resource development keeping in view its future requirements as well. It can be nobody’s case that acquisition of higher qualification in the sphere of work being done by the medical fraternity in the hospital would not be relevant or beneficial to the organisation as well as its beneficiaries.8. The stand taken by the ESIC that they will not grant study leave but w

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ill allow the applicant to go for higher studies by either availing their personal leaves such as EL/HPL/EOL and NOT study leave defies logic. If the applicant is being allowed to take other forms of leave, then the claim of the respondents that they cannot allow the applicant to undergo the course on account of immediate shortage of staff becomes irrelevant. The only reason which can be argued by the respondents is that study leave has a financial burden on public money contributed by the workers class of society. However, this contention has to be seen in contrast with the benefit which would accrue to both the organisation as well as the beneficiaries, by making available services of better/higher qualified medical personnel in a long term perspective. The legitimate concern, if any, of the organization, that such highly qualified personnel after training, would leave the organization for greener pastures elsewhere, can be adequately safeguarded through the requirement of a suitable bond to be signed by the applicant before he avails study leave.9. Hence, keeping in view the above, the contention of the respondents to deny the study leave to the applicant on the grounds of administrative exigencies is rejected as being arbitrary and not justified.10. Accordingly, the OA is allowed. The impugned endorsement bearing No.532/A/20/15(249)/13-14/Estt dated 20.10.2020 issued by the respondent No.3 is quashed and the respondents are directed to allow study leave to the applicant as per Rule 50 & 51 of CCS(Leave) Rules, 1972.11. There shall be no orders so as to costs.