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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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[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
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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/-
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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
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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
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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
