Reserved
Court No. - 39
Case :- WRIT - A No. - 65084 of 2015 Petitioner :- Dr. (Mrs.) Sudarshana Chatterjee Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Suresh Chandra Counsel for Respondent :- C.S.C.
Hon'ble B. Amit Sthalekar,J. Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble B. Amit Sthalekar, J.) The petitioner in the writ petition is seeking quashing of the order dated 01.04.2015 passed by the State Government rejecting the claim of the petitioner for grant of extraordinary leave from 23.07.2004 to 30.09.2006 and for grant of permission to work as Associate Professor in the Chattisgarh Institute of Medical Sciences, Bilaspur, Chattisgarh (hereinafter referred to as 'CIMS, Bilaspur') and rejecting the representation of the petitioner dated 01.04.2005.
Briefly stated the facts of the case are that the petitioner was appointed as Assistant Lecturer in the Anesthesia Department of Moti Lal Nehru, Medical College, Allahabad (hereinafter referred to as the Medical College) on 25.03.1982. It is also stated that since the daughter of the petitioner was residing at Bilaspur, Chattisgarh, she applied for the post of Associate Professor/Reader in the Anesthesia Department against the Advertisement issued by the CIMS, Bilaspur published in the year 2003 on 30.09.2003, which was the last date for submission of the application form and applied to the Principal of the Medical College for grant of permission and No Objection Certificate to work in the CIMS, Bilaspur on the post of Associate Professor/Reader in the Department of Anesthesiology through letter dated 20.09.2003. This letter was served on the Principal of the Medical College on 25.09.2003 but no order was passed accepting or rejecting her request. She submitted another application on 27.01.2004 before the Director General of Medical Education and Training, U.P., Lucknow through Principal of the Medical College requesting issuance of No Objection Certificate but she did not receive any reply. In the meantime, the petitioner was selected for the post of Associate Professor/Reader in the Anesthesia Department in the CIMS, Bilaspur and appointment letter was issued to her on 22.04.2004 and therefore, on 30.04.2004 she again applied for permission to join on the post of Associate Professor/Reader in the Department of Anesthesia in the CIMS, Bilaspur and also for grant of two years extraordinary leave. It is stated that the application of the petitioner was duly forwarded by the Principal of the Medical College to the Director General of Medical Education and Training, U.P. on 03.05.2004 and the Director General in turn forwarded the letter with a recommendation to the Principal Secretary, Medical Education and Training, U.P. Lucknow. On 09.06.2004 the petitioner again submitted a request for grant of extraordinary leave for a period of two years to join as Associate Professor/Reader in the CIMS, Bilaspur, which was again forwarded to the Principal Secretary, Medical Education and Training, U.P. on 09.06.2004 itself but no order was passed by the State Government, therefore, the petitioner had no option left but to join on the post of Associate Professor/Reader in the Department of Anesthesia in the CIMS, Bilaspur on 23.07.2004. On 01.02.2005 she submitted an application before the Principal Secretary, Medical Education and Training, U.P. mentioning therein that her retirement was due on 30.09.2006 and therefore, she may be granted leave from 23.07.2004 till the date of her retirement being leave preparatory to retirement. The Principal of the Medical College issued an Office Memorandum dated 05.12.2005 informing her that she would be retiring on 30.09.2006. Thereafter the Principal vide his letter dated 09.12.2005 (Annexure-8 to the writ petition) provided the petitioner with the statement of leave available to her account mentioning therein that Earned Leave was 252 days and Medical Leave was also 252 days. On 02.01.2006 the petitioner submitted an application to the Principal Secretary, Medical Education and Training, U.P. seeking permission for grant of voluntary retirement. On 02.06.2007 the Principal of the Medical College sent a letter to the Director General, Medical Education and Training mentioning all the details as well as her claim for grant of leave from 23.07.2004 upto 30.09.2006 but no order was passed by the State Government. On 03.08.2009 the Principal of the 'Medical College' sent a letter to the Accountant General, U.P. Allahabad for issuing authority letter for grant of payment of 10% G.P.F. of the petitioner. When no action was taken by the respondents, the petitioner filed Writ Petition (A) No.36963 of 2013 praying for grant of pension, commutated pension, death- cum-retiral gratuity and encashment of accumulated leave on average pay and leave on half average pay alongwith arrears and to calculate the retiral benefits of the petitioner regularizing the period of her absence from service towards leave without pay.
The said writ petition was disposed of by the High Court by order dated 11.07.2013 with a direction to the Director General, Medical Education and Training, U.P. to look into the letters of the Principal of the Medical College. The order of the Division Bench of this Court dated 11.07.2013 reads as under:
“Heard Sri M.C. Chaturvedi, learned counsel appearing for the petitioner and learned counsel for the State.
The petitioner was appointed as Assistant Professor in Anesthesia Department of Moti Lal Nehru Medical College, Allahabad. In the year 2003, she applied for appointment on the post of Associate Professor in Anesthesia Department in CIMS, Bilaspur. For change of service, she wanted a 'No objection Certificate' from the Government, but no such certificate was granted till end of 2004. Ultimately in February 2005, she applied for grant of leave for the purpose of retirement and also for permission to work as Associate Professor in CIMS,Bilaspur.
It is stated by learned counsel for the petitioner that the Principal of Moti Lal Nehru Medical College sent all the details of leave available to the petitioner to the Director General, Medical Education and Training, U.P., Lucknow for grant of two years leave without pay and also grant for permission to join as Associate Professor in CIMS, Bilaspur.
Several communications were made by the Principal of Moti Lal Nehru Medical College, but no order has been passed.
This being the grievance of the petitioner, we dispose of the writ application directing the respondent no.2 to look into the letters written by the Principal of Moti Lal Nehru Medical College, Allahabad in relation to above grievance of the petitioner and pass orders thereon within two weeks from the date of communication of this order.”
When no action was taken by the respondents the petitioner filed Contempt Application (Civil) No.7057 of 2014, which was disposed of by the High Court by the following order:
“It is contended by learned counsel for the applicant that for the reasons detailed in paragraph no. 26 of the affidavit accompanying the contempt application, there are no laches on the part of the applicant in approaching this Court.
Heard learned counsel for the applicant.
The grievance of the applicant is that the opposite party- contemnor has intentionally and deliberately flouted the order of the Writ Court dated 11.07.2013 passed in Writ A No. 36963 of 2013, copy of which is annexed as Annexure- 10 to the affidavit accompanying the application, whereby the letters of the applicant was directed to be looked into by the opposite party, who was directed to pass appropriate orders within a period of two weeks from the date of communication of a certified copy of the order before it.
Learned counsel for the applicant contends that the aforesaid order of the Writ Court was duly served upon the opposite party vide application dated 23.07.20914 by registered post and the copy of registry receipt has been filed as annexure-11 to the affidavit accompanying this application. It is contended that the aforesaid order of the writ Court has not been complied with and the opposite party has deliberately flouted the order of the Writ Court.
The opposite party is bound by the order of this court and in case he does not comply with the directions of the writ court within a period of two months of receipt of this order, without any reasonable cause, the court would have no option but to proceed against him under the Contempt of Courts Act.
The applicant shall supply a duly stamped registered envelope addressed to the opposite party and another self- addressed stamped envelope to the office within two weeks from today. The office shall send a copy of this order along with the self-addressed envelope of the applicant with a copy of contempt application to the opposite party within three weeks from today and keep a record thereof.
The opposite party shall comply with the directions of the writ court and intimate him of the order through the self- addressed envelope within a week thereafter.
In case, opposite party does not comply with the aforesaid directions, it would be open to the applicant to approach this court again.
With the aforesaid observations, this application is finally disposed of at this stage.”
It is then that the impugned order dated 01.04.2015 has been passed rejecting the claim of the petitioner.
We have heard Shri M.S. Pipersenia, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
Learned counsel for the petitioner submitted that the petitioner sent several applications, which were duly received by the respondents seeking leave and also seeking permission to join at CIMS, Bilaspur and when no reply was received she also applied for voluntary retirement and when that was also not accepted she had no option but to join as Associate Professor/Reader in the CIMS, Bilaspur.
Learned Standing Counsel, on the other hand, referred to Fundamental Rules, Rule 73 of the Financial Handbook and submitted that a Government Servant, who remains absent after the end of his leave is entitled to no leave salary for the period of such absence and that such period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Willful absence from duty after the expiry of leave may be treated as misbehavior. Paragraph 73 of the Fundamental Rules of the Financial Handbook reads as under:
“73. A Government Servant who remains absent after the end of his leave is entitled to no leave salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Willful absence from duty after the expiry of leave may be treated as misbehavior for the purpose of Rule 15.”
Note.- In the case of a Government servant governed by leave rules laid down in Fundamental Rule 81-B and Subsidiary Rule 157-A, who remains absent after the end of his leave, the period of such over stayal of leave should, unless the leave is extended by the competent authority, be treated as follows:
(a) If the Government servant is in superior service and holds a lien on a permanent post.-
(i) as leave on private affairs to the extent such leave is due, unless the overstayal is supported by a medical certificate.
(ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by a medical certificate.
(iii) as extraordinary leave to the extent the period of leave on private affairs and/or on medical certificate falls short of the period of overstayal;
(b) If the Government servant is in superior service without a lien on a permanent post or in inferior service, as in (a) (ii) and (iii) above mutatis mutandis.
The period of overstayal of leave will be debited as leave taken out no leave salary will be paid for such period unless it is covered by an extension of leave granted by the competent authority.”
We have given our anxious consideration to the rival contentions. In our opinion, Rule 73 of the Fundamental Rules of the Financial Handbook Volume-II has absolutely no application to the facts of the present case. This is not a case where the petitioner had remained absent without leave or had overstayed her leave. She had throughout submitted her application requesting permission for grant of leave for joining service at CIMS, Bilaspur from 2004 and when no action was taken by the Department, she applied for leave with half average pay and then she even sought voluntary retirement but that also was never considered by the respondents.
In the counter affidavit it has been stated by the respondents that there is no provision for according permission to an employee for moving to another job without any sanctioned leave or information and therefore, no retiral benefits could have been provided to the petitioner.
As we have already noted herein-above the petitioner had throughout moved applications requesting for grant of extraordinary leave; that also was not considered by the respondents. The facts of this case present a classic illustration of the extent to which the respondents can go to harass its employee and how simple it is for them to reject the claim of the petitioner without considering the fact that the petitioner had throughout submitted her applications from 2004 onwards but the respondents themselves never bothered to consider the same. Even her request for grant of voluntary retirement was not considered. In our opinion, therefore her services in the Medical College could not have been ignored for purposes of pension/notional pension as the case may be. She would also be entitled for adjustment of the period of her absence from the Medical College till the time of her joining the CIMS, Bilaspur against such leave as may be available to her account and even for grant of voluntary retirement.
We, therefore quash the impugned order dated 01.04.2015.
The writ petition stands allowed.
The matter is remitted to the respondent no.1, Principal Secretary (Medical Education and Training Department) Government of U.P. Lucknow to examine the case of the petitioner again in the light of the observations made above and pass fresh orders in accordance with law within a period of one month from the date of receipt of a certified copy of this order.
Order Date :- 24th August, 2018 N Tiwari