Dr. Faleel Gafoor C .A vs Union Of India

Kerala High Court

Dr. Faleel Gafoor C .A vs Union Of India on 22 May, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                   OP (CAT) NO. 178 OF 2023
    ORDER DATED 27.09.2023 IN OA NO.353 OF 2023 OF CENTRAL
           ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONER/APPLICANT:

          DR. FALEEL GAFOOR C .A, AGED 36 YEARS
          S/O. LATE C.M ABDU, CIVILIAN MEDICAL OFFICER, NAD,
          ALUVA - 683563, RESIDING AT CHANDATHOPPIL HOUSE,
          MANJALY P.O, THAMARAMUKKU, ERNAKULAM, PIN - 683520

         BY ADVS.
         K.SUJAI SATHIAN
         DEEPA NARAYANAN
         PREETHI. P.V.
         M.V.BALAGOPAL
         GOURI MEEMPAT
         MARY LIYA SABU
         SANGEETHA SREEKUMAR
         T.SETHUMADHAVAN (SR.)



RESPONDENTS/RESPONDENTS:

    1    UNION OF INDIA ,
         REPRESENTED BY DIRECTOR GENERAL OF NAVAL ARMAMENT,
         INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE (NAVY),
         NEW DELHI., PIN - 110011

    2    THE DIRECTOR GENERAL,
         ARMED FORCES MEDICAL SERVICES, O/O THE DGAFMS, 5TH
         FLOOR, "A" BLOCK, DEFENCE OFFICES COMPLEX, AFRICA
         AVENUE, NEW DELHI, PIN - 110023

    3    THE FLAG OFFICER,
         COMMANDING-IN-CHIEF, SOUTHERN NAVAL COMMAND, NAVAL
         BASE,, PIN - 682004
 OP(CAT) No.178/2023

                               ..2..

    4       THE CHIEF GENERAL MANAGER,
            NAVAL ARMAMENT DEPOT, ALUVA, PIN - 683563

            BY ADV SHRI.K.S.PRENJITH KUMAR, CGC




        THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CAT) No.178/2023

                              ..3..




                          JUDGMENT

SHOBA ANNAMMA EAPEN, J.

This original petition is filed by the applicant before the Central Administrative Tribunal, Ernakulam, challenging the order dated 27.09.2023 in OA No.353/2023. The respondents herein are the respondents in the original application.

2. The original petitioner is a Civilian Medical Officer (CMO) of the Director General Armed Forces Medical Services (DGAFMS) cadre with All India Service Liability (AISL) and is presently working at the Naval Armament Depot (NAD) at Aluva from January, 2018. He possesses the essential educational qualification of MBBS for the said post. He has put in more than five years of service as CMO. While so, he applied for NEET, 2023 examination and on qualifying with a good score, he applied for sponsorship and study leave for pursuing post graduation, which was rejected by the respondents. Aggrieved by this, he approached the tribunal for a declaration that he is entitled to be granted study leave OP(CAT) No.178/2023 ..4..

and sponsorship for pursuing his post graduation. The tribunal, after elaborate consideration of the issue, dismissed the original application. Hence, this original petition.

3. Heard the learned counsel appearing for the petitioner and the learned Central Government Counsel appearing for the respondents.

4. The learned counsel for the petitioner submitted that the petitioner's application for sponsorship and study leave was rejected without proper consideration and hence, it is violative of principles of natural justice. According to him, Annex.A1 is not a considered order, which only intimated that "Study Leave is not granted to Civilian Medical Officers (CMOs) of DGAFMS as it is of no organizational advantage", and since the petitioner has completed five years of service, he is fully qualified to be selected. It is further submitted that the petitioner is entitled for improving his medical prowess within the framework of the facilities advanced to the medical officers under the Union Government and the second respondent issued Annex.A1 without considering the plight of the petitioner, who is continuously improving his qualifications without any disturbance to his duties, and the OP(CAT) No.178/2023 ..5..

rejection of his request is not based on any equitable principle or any norm of the department, which cannot be justified in any manner. It is pointed out that if the petitioner is granted the required sponsorship letter and study leave benefits, he can come back and discharge his duties in a much better way. The learned counsel further submitted that the tribunal erred in accepting the reason set out in Annex.A1 order, overlooking the fact that the organizational advantage shall not be taken as a criteria for providing sponsorship to meritorious candidates, whose service is utilized by the department as well as the public in the matter of providing medical service. According to the learned counsel, the further finding of the tribunal that duties provided to the CMOs and functions of CMO are at the periphery and they are not even called for inpatient treatment, is highly unjust and unfair. Pointing out to Annex.A14, it is further submitted that the limit of study leave for the Central Health Service (CHS) Officers was enhanced from 24 months to 36 months for prosecuting post graduation courses and it has been recognized therein that the post graduate qualification is a prerequisite for career advancement for the CHS Officers. Hence, according to the OP(CAT) No.178/2023 ..6..

learned counsel, the rejection of study leave to the petitioner is highly arbitrary and illegal.

5. Per contra, the learned Central Government Counsel submitted that the present strength of the CMO is only 31 as against the sanctioned strength of 109 and there is no provision to grant study leave for post graduate courses to the CMOs of DGAFMS. It was further submitted that the petitioner applied for NEET Examination, 2023 without permission or obtaining 'No Objection Certificate' from the respondents. According to the learned Central Government Counsel, in order to grant a sponsorship certificate, the organization should ensure that on completion of the course, he would be suitably employed by the organization. But, having regard to the limited charge of duties of CMOs, the organization is not going to get any advantage in sponsoring a seat and granting him study leave. It is further submitted that grant of study leave is not a matter of right. Once the sponsorship is made and if he is selected for the course after counselling, it necessarily follows that he should be granted study leave under the Central Civil Services (Leave) Rules. Hence, it is for the sponsoring organization to OP(CAT) No.178/2023 ..7..

consider and decide whether the organization will derive any advantage. It is further submitted that it is within the realm of the competent authority as to whether such sponsorship should be made, following which study leave should be granted. According to the learned Central Government Counsel, Annex.A1 decision was taken only after considering a catena of factors like the vacancy position, comparative advantage of such sponsorship, utilization of their services post facto etc., and it cannot be interfered with by this Court since it has been taken after considering the organizational benefit etc.

6. We have considered the rival contentions raised on both sides. The relevant question to be considered is, having regard to the nature of assignments undertaken by a CMO of DGAFMS, whether the qualification of post graduation is imminent. It is a matter to be decided by the competent authority. As per the notification for the post of CMO, the medical qualification of post graduation is desirable and the basic educational qualification is MBBS only. In this context, it is relevant to refer to the duties of CMO, which reads thus;

"Civilian Medical Officer, Senior Medical Officer and Chief Medical Officer are adviser to the unit Commander on health OP(CAT) No.178/2023 ..8..

related matters. Their normal duties are summarized as under: -

(a) To provide medical care and arrange for hospitalization/specialist treatment, where necessary.

(b) Inoculation and vaccination of entitled personnel.

(c) To examine non-Gazetted Employees for fitness in respect of recruitment, etc.

(d) To maintain medical documents/data/statistics, sanitation and promote family planning.

(e) To carry out any duty as may be assigned by the Medical Directorate from time to time."

On a perusal of the duties of the CMO as above, it is clear that in order to perform the duties of a CMO, a postgraduate qualification may not be required. It is true that no policy decision has been taken by the respondents to sponsor any candidate for the post graduation course. Admittedly, the petitioner falls under Priority-III category for admission, i.e., Medical Officers sponsored by Para Military Organization/other Government of India organization. The petitioner, who commenced service in 2018, has completed five years of service and thereafter, qualified the preliminary NEET PG examination of 2023. As per Clause 13 of Annex.A13 issued by the Ministry of Health & Family Welfare (CHS Division), every application for study leave shall be submitted OP(CAT) No.178/2023 ..9..

through proper channel to the authority competent to grant leave and the course or course of study contemplated by the CHS officer and any examination, which he proposes to undergo, shall be clearly specified in such application. As per Clause 15, CHS officers shall seek prior approval of the concerned Head of the institution/participating unit for appearing in the entrance test of the PG courses and the Head of the participating units shall forward a copy of the permission order to the Ministry at the time of forwarding the application of the officer for grant of study leave.

7. As could be discernible from the materials on record, it is clear that the petitioner had not sought for any permission before applying for NEET and no permission or NOC was granted by the office of DGAFMS to appear for the NEET and as such, the application was not submitted through proper channel. It is pertinent to note that the petitioner being a government servant and the grant of study leave and sponsorship certificate to him foist financial burden on the respondents, he was duty bound to give prior information and obtain consent before appearing for the examination. As stated by the learned Central Government Counsel, as against OP(CAT) No.178/2023 ..10..

the sanctioned strength of 109, the present strength of the CMO is only 31. Since there is severe deficiency in the cadre and there are no organizational benefits, the grant for study leave to the cadre of doctors is not feasible. It may be true that study leave is granted in several other departments for doing post graduation, but, duties of such officers may be different from the duties of CMOs of DGAFMS. So, it cannot be equated with that of the doctors, who were granted study leave for pursuing post graduation. As per the charter of duties of CMOs, they have to provide medical care and arrange for hospitalization/specialist treatment where necessary, apart from inoculation, vaccination of entitled personnel, maintenance of medical documents/data/statistics, sanitation and promote family planning. Hence, after completion of post graduation, optimal utilization of the medical officer after post graduation may not be feasible. As far as the petitioner is concerned, acquiring post graduation may be beneficial to his career/profession, but for the department, his additional qualification or specialization in any field does not provide any additional benefit. Moreover, the petitioner cannot compel the respondents to grant OP(CAT) No.178/2023 ..11..

sponsorship certificate and study leave without having any sort of absolute right to demand for the same. The learned counsel for the petitioner could not point out any provision so as to demand study leave or sponsorship from the respondents as a matter of right.

8. On the basis of the charter of duties of CMOs, the respondents found it not necessary for the benefit of the organization, if CMOs are sent for PG courses by granting sponsorship. On a perusal of the charter of duties, it is seen that the duties of the CMOs do not even call for an inpatient treatment. By granting study leave, the department will be burdened with the payment of salary and allowances for the entire course period, which would cause serious financial implications and ramifications. No doubt, acquiring postgraduation in medicine is an accomplishment for a medical professional, but, as far as the employer organization is concerned, the post of CMO does not require a qualification of post graduation.

9. The learned Central Government Counsel brought to the attention of this Court a decision of the apex court in State of Punjab & Others v. Sanjay Kumar Bansal OP(CAT) No.178/2023 ..12..

[MANU/SC/1269/2009], wherein it has been held that special leave is not a matter of right vested in the employee and it depends on the administrative exigencies. Even in the case of discrimination, it is for the administration/management to take into account the contingencies, which may arise in the course of administration. The services of an employee may be required in a given case on a more emergent basis vis-a-vis other employees. In such cases, the services rendered by an employee, his seniority, the nature of work which he is required to do, his responsibilities etc. are required to be taken into account while taking decisions on such applications. It is further held therein that those matters fall in the category of "administrative exigencies" and this Court cannot sit in appeal thereon.

10. It is clear that the courts, in exercise of its powers of appeal/review, cannot sit over the decision taken by the administration/management. Suffice it would be to state, that the decision has been taken, giving due regard to the exigencies, which may arise in the course of administration. While rejecting the application of the petitioner for study leave for three years for pursuing post graduation, the OP(CAT) No.178/2023 ..13..

respondents found that no organizational interest would be protected. The said decision falls within the domain of the policy of the respondents, which cannot be interfered with by the tribunal. It is for the sponsoring authority/respondents to decide whether the candidature of the petitioner should be sponsored under priority-III category. It is for the government to take a policy decision on these matters whether the CMOs of DGAFMS can also be granted study leave up to 36 months as granted in Annex.A14.

11. Therefore, on a consideration of the entire facts of the case, we do not find any reason to interfere with the impugned order of the tribunal. However, we are of the view that the petitioner, if so advised, can approach the first respondent with a proper representation to consider the issue of granting study leave for pursuing post graduation.

Accordingly, the original petition is disposed of, as follows;

a) The petitioner, if so advised, shall approach the first respondent with a proper representation to consider the issue of granting study leave to the CMOs of DGAFMS for pursuing post graduation.

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b) On receipt of such representation, the first respondent shall take an appropriate decision, in accordance with law, within a period of three months thereafter.

Sd/-

A. MUHAMED MUSTAQUE JUDGE Sd/-

SHOBA ANNAMMA EAPEN JUDGE bka/-

..15..

                  APPENDIX OF OP (CAT) 178/2023

PETITIONER ANNEXURES

Annexure A1            TRUECOPY     OF     THE     LETTER    NO.

12017/CMO/LEAVE/EOL/DGAFMS/DG-2B/02 DATED 22.6.2023 ISSUED ON BEHALF OF THE 2ND RESPONDENT. COMPILATION NO. II Annexure A2 TRUE COPY OF THE LETTER DATED 27.1.2023 SUBMITTED BY THE APPLICANT Annexure A3 TRUE COPY OF THE RESULT CARD OF THE APPLICANT FOR NEET PG 2023 Annexure A4 TRUECOPY OF THE REPRESENTATION DATED 17.3.2023 SUBMITTED BY THE APPLICANT.

Annexure A5 TRUECOPY OF THE REPRESENTATION DATED 3.4.2023 SUBMITTED BY THE APPLICANT Annexure A6 TRUECOPY OF THE LETTER NO. AAE/1500 DATED 10.4.2023 OF THE 4TH RESPONDENT.

Annexure A7 TRUECOPY OF THE LETTER NO. 12017/CMO/STUDY LEAVE /DGAFMS/ DG-2B DATED 13.4.2023, FROM THE 2ND RESPONDENT'S OFFICE Annexure A8 TRUCCOPY OF THE LETTER NO. AAE/1500 DATED 26.4.2023 BY THE 4TH RESPONDENT.

Annexure A9 TRUECOPY OF THE REPRESENTATION DATED 5.7.2023 SUBMITTED BY THE APPLICANT.

Annexure A10 TRUE COPY OF THE NOTICE FOR REGISTRATION FOR COUNSELING OF PRIORITY III Annexure A11 TRUE COPY OF THE SCHEDULE OF COUNSELING FOR NEET PG 2023.

Annexure A12 TRUE COPY OF THE APPLICATION FOR COUNSELING SUBMITTED BY THE APPLICANT Annexure A13 TRUE COPY OF THE OM NO. 12034/03/2012-CHS-

V DATED 2.11.2012 ISSUED BY THE MINISTRY OP(CAT) No.178/2023 ..16..

OF HEALTH AND FAMILY WELFARE Annexure A14 TRUE COPY OF THE OM NO. 13023/3/98-ESTT.

(L) (VOL.II) DATED 26.10.2007 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING Annexure R1 TRUE COPY OF THE CHARTER OF DUTIES OF CIVILIAN MEDICAL OFFICER Annexure R2 TRUE COPY OF THE CHARTER OF DUTIES OF LADY MEDICAL OFFICER.

Annexure MA - 1 A TRUE COPY OF THE NOTIFICATION NO.

38217/NEET PG-2023/DGAFMS/DG-1 D/IV(E) DATED 10.8.2023 ISSUED BY THE 2ND RESPONDENT.

Annexure MA - 2 A TRUE COPY OF THE NOTIFICATION NO.

38217/NEET PG-2023/DGAFMS/DG-1/IV(A) DATED 10.8.2023 ISSUED BY THE 2ND RESPONDENT. Annexure R3 A TRUE COPY OF THE NOTIFICATION 2.

NO:38217/NEET PG-2023/DGAFMS/DG-1D (II) DATED 26.07.2023 Annexure R4 A TRUE COPY OF THE RELEVANT PAGES OF INFORMATION BULLETIN FOR PG ADMISSION IN AFMS INSTITUTIONS THROUGH NEET PG 2023. Annexure R5 A TRUE COPY OF THE NOTIFICATION 4. NO:

38217/NEET PG-2023/DGAFMS/DG-ID (VI) DATED 14.08.2023 Exhibit P1 A TRUE COPY OF THE O.A NO.353 OF 2023 DATED 28.07.2023 Exhibit P2 A TRUE COPY OF THE INTERIM ORDER DATED 01.08.2023 IN O.A NO.353 OF 2023 Exhibit P3 A TRUE COPY OF THE MA 710 OF 2023 DATED 09.08.2023 Exhibit P4 A TRUE COPY OF THE ORDER DATED 10.08.2023 PASSED BY THE TRIBUNAL IN MA 710 OF 2023 OP(CAT) No.178/2023 ..17..

Exhibit P5 A TRUE COPY OF THE MA 731 OF 2023 FILED BY THE PETITIONER HEREIN ON 15.08.2023 Exhibit P6 A TRUE COPY OF THE ORDER IN MA NO 731 OF 2023 DATED 18.08.2023 Exhibit P7 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS DATED 21.08.2023 Exhibit P8 A TRUE COPY OF THE REPLY STATEMENT IN O.A NO.353 OF 2023 FILED BY THE RESPONDENTS 1 TO 4 DATED 04.09.2023 Exhibit P9 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER DATED 12.09.2023 Exhibit P10 A TRUE COPY OF THE JUDGEMENT IN O.A NO.353 OF 2023 DATED 27.09.2023 Exhibit P11 A TRUE COPY OF THE EMPLOYMENT ADVERTISEMENT NO.2/2016 DATED NIL Exhibit P12 A TRUE COPY OF THE POSTING ORDER RECEIVED BY THE PETITIONER DATED 03.01.2018 Exhibit P13 A TRUE COPY OF THE SEAT MATRIX FOR AFMS PG COUNSELLING 2023 DATED 24.08.2023