Smt. Janaki Menon Vs. the Commissioner, New Delhi and Others - Court Judgment

DR. K.B.S. Rajan, Judicial Member:

1. The applicant, a regular employee of the respondent organization as a trained graduate teacher since 1985, had fallen ill in August, 2003 and had to undergo two major brain surgeries and was under constant medical care. She was on leave on medical grounds for a substantial period from 29-08-2003 to 31-03-2005 and by 01-04-2005, she had joined the Kendriya Vidyalaya School at Hebbel, Karnataka. As her health condition did not improve, she had moved a representation in April 2006 requesting the respondents to shift her to some other post protecting the service conditions in the light of the provisions contained in para 47 of the the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. Annexure A-1 refers. The applicant was again on leave from 07-08-2006. Vide Annexure A-2 dated 23/28-02-2007, the applicant was advised to appear before the Regional Medical Board and get herself medically examined by a Medical Board on or before 10 - 03 -2007 . By a communication dated 19th of April 2007 vide Annexure A-3, the Board stated that the applicant has got difficulty in walking and unsteadiness and imbalance on the left side of the body with slurred speech. The Board expressed its opinion that the applicant may be given any other work at the office level other than teaching since her speech still has to improve. The Bangalore Region of the KVS addressed a communication to the Commissioner, KVS, New Delhi vide Annexure A-4 dated 30-04-2007 forwarding a copy of the medical report and stating the above and also informing that the applicant was on leave since August, 2006. The Headquarters at New Delhi by Annexure A-5 communication dated 19- 06-2007 informed the Regional Office at Bangalore that rules do not provide for shifting from teaching to non-teaching faculty. The applicant was advised to apply for voluntary retirement under the relevant Pension Rules, if so advised. The applicant approached this Bench of the Tribunal, by filing Original Application No. 594 of 2007 before Ernakulam Bench for a direction to the respondents to post her to non-teaching sector and transfer her to Trichur. This application was dismissed on account of lack of territorial jurisdiction as the applicant at the material point of time was functioning in Karnataka (Annexure R-1). Treating her absence as voluntary abandonment of service under the provisions of Article 81(D)(3) of the Education Code, the applicant was afforded an opportunity to make a representation, vide Annexure A-6 dated 19-11-2007. The applicant responded to the same contending that her case cannot be treated as one of voluntary abandonment since she had applied regularly for leave and also requested the respondents to afford her the benefits under the Persons with Disabilities Act, 1996, vide Annexure A-7 dated 03-12-2007. Her request was renewed again through communication dated 16th of April 2008 (referred to in Annexure A-8) and thereafter through Annexure A-8 representation dated 04-11-2008. Respondent No. 1 in his communication dated 01-01-2009 vide Annexure A-9, informed the Regional Office at Bangalore that the Medical Board be requested to give its opinion clearly recording the percentage of disability to enable the Headquarters to consider the case of the applicant for extension of the benefits of section 47 of the Persons with Disabilities Act, 1995. Thus the regional office requested the Medical Supt, Mallige Medical Centre, Bangalore, to once again convene the Medical Board, examine the applicants and send the medical reports highlighting the percentage of disability, type of disability and whether it is a permanent disability or can be cured. Annexure A-10 refers. As the Medical Superintendent of that Medical Centre had advised that the District Medical Officer be contacted in this regard, the District Medical Officer, Trichur was addressed by the Chennai Region of the KVS vide letter dated 09-07-2009 to examine the applicant and indicate the percentage of disability etc., as stated above. It was sometime by then that the applicant had filed a writ petition No. 19398 of 2009 which was disposed of by the High Court on 10th August, 2009 whereby the District Medical Officer was directed to constitute a Medical Board and examine the applicant on 24-08-2009 to certify the degree of disability. The said DMO was given liberty to use the services of a Neuro Physician to enable her to assess the disability suffered by the applicant and that it was open to the DMO to constitute such a Board with the aid of such experts as are necessary and are available, if he felt so. (This part of the fact had been made known to the Tribunal not through the pleadings but at the time of arguments). The Medical Board at Trichur conducted the medical examination and referring to the initial medical treatment, obtained by the applicant in August 2003 and also reflecting the present problems, of difficulty in speaking and unsteadiness and tendency to fall while walking, had expressed that the applicant was suffering from impairment with respect to Neurological disabilities to the extent of 40%, vide Annexure A-12 dated 21-08-2009. Keeping in view the aforesaid medical opinion the respondents had decided to post the applicant as librarian in the KVS Trichur with identical pay scale as that of a trained graduate teacher, vide Annexure A-13 dated 23-11-2009. The applicant took the post of Librarian on 09-12-2009 and in respect of the leave part, requested the Regional Office at Bangalore to grant her EOL on medical ground and the same was disposed of by the latter on 23-03-2010. (So referred to in the impugned order dated 03-08-2010 vide Annexure A-15.) The applicant had later on filed another representation to the Commissioner, KVS through proper channel requesting to do justice in her case by allowing her eligible increment for the period of three years i.e. from 2006 - 2009 and for treatment of the period of absence as leave on Medical ground. Giving the benefit of the Disabilities Act, the applicant was given posting as Librarian, Thus, after that part of the job (shifting from teaching to non teaching cadre) was over, the applicant applicant, by communication vide Annexure A-14 dated 21-06-2010, requested the authorities for regularization of absence from duty from 07-08-2006 to 08-12-2009 as EOL on medical grounds. By the impugned order dated 03-08-2010 the respondents had stated that the disability of the applicant was not due to her official performance of her official duty and from 2006 the applicant had remained on leave without any medical certificate. This request by the applicant was again renewed by Annexure A-16 representation dated 20th of July 2011.

2. According to the applicant, there was a tacit delay in considering the case of the applicant in posting her to a non teaching faculty in terms of the medical Board.

3. The applicant has thus, sought for the following relief:-

1. To call for the records leading to Annexure A15 proceedings dated 3.8.2010 and set aside the same

2. To direct the respondents to regulate the period from 7.8.2006 to 4.12.2009 as extraordinary leave on medical grounds and to regulate the pay by granting increment fell due in the year 2006, 2007, 2008 and 2009 respectively.

3. To declare that the applicant is deemed to have been posted as Librarian in Kendriya Vidyalaya in the pay scale of Rs.9300/34800 with grade pay Rs.4600 with effect from April 2007 with all consequential benefits including fixation of pay and continuity in service.

4. Any other appropriate order or direction as this Hon'ble Tribunal may deem fit in the interest of justice.

4. Respondents have contested the OA. They have referred to the dismissal of the OA filed by the applicant before the Ernakulam Bench on account of territorial jurisdiction, vide Annexure R-1. The applicant's request for treating the period from 07-08-2006 to 04-12-2009 was without submitting the medical certificate and the Assistant Commissioner, KVS, Regional Office, Bangalore, being the competent authority took a lenient view and regularized the complete period by sanctioning EOL on Medical grounds wherever Medical Certificate was vailable and EOL on private affairs for the remaining period due to non availability of Medical certificate/application, vide Annexure R-2. The applicant had submitted representations relating to (a) grant of EOL on medical ground and (b) for grant of increment as per rules for the period the applicant was on medical leave. By Annexure R-3 dated 23-03-2010, the representations were disposed of. The Medical examination took place only in August, 2009 and thus there was no procrastination from the side of the Respondents. The respondents further contended that the applicant continued to overstay the leave already sanctioned. When the provisions of Clause 81(D) was sought to be imposed then only she had insisted about constitution of Medical Board in her native place, Thrissur.

5. In the rejoinder the applicant contended that the leave had been applied on medical grounds and medical certificates were invariably enclosed. The applicant has also reiterated that there has been delay on the part of the respondents in affording her alternative job. To substantiate that medical certificates have been submitted, copies of the said certificates had also been annexed to the rejoinder.

6. Counsel for the applicant argued that the matter has to be decided under two aspects - (a) Grant of leave on medical grounds and since it is on medical ground, grant of annual increment; and (b) since the applicant had applied for alternative job, and as it is on the part of the respondents that delay had occurred, the applicant must be deemed to have been given the alternative job in 2007 itself. Counsel for the applicant relied upon the decision of the Kerala High Court reported in 1984 KLT 141 (Rajappan Nair vs State of Kerala and others) which held that if for no part of the individual, promotion had been delayed and on grant of the same with retrospective effect, the individual is entitled to arrears of pay and allowances as well.

7. Counsel for the respondents, on the other hand, submitted that the action taken both in considering the grant of leave as also in grant of alternative employment under the Persons with Disabilities Act had been taken strictly in accordance with rules and there is no delay. The authorities had sanctioned medical leave for those periods for which medical certificate in appropriate manner had been filed.

8. Arguments were heard and the pleadings perused. In addition, the personal file of the applicant maintained by the respondents had also been called for and the same too gone through. The matter, as submitted by the counsel for the applicant has to be analyzed under two different aspects viz as to entitlement to increment for the period from 2006 to 2009 on the basis of leave on medical ground and (b) deemed posting as Librarian from 2007 onwards.

9. As to the grant of leave, CCS (Leave) Rules, which apply to the case of KVS provide for grant of leave on medical certificate and the same is as under:-

19. Grant of leave on medical certificate to Gazetted and non-Gazetted Government servants

1[(1) An application for leave on medical certificate made by-

(i) a Gazetted Government servant,....

(ii) a non-Gazetted Government servant, shall be accompanied by a medical certificate Form 4 given by a CGHS Doctor if such a Government servant is a CGHS beneficiary or by Government Hospital or by an Authorized Medical Attendant if he is not a CGHS beneficiary; and by an Authorized Doctor of the private hospital, recognized under CGHS/Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by the Competent Authority in respect of particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare:

Provided that the non-Gazetted Government servant who is a CGHS beneficiary, if at the time of illness is away from CGHS area or proceeds on duty outside the Headquarters will produce M.C. or F.C. in Form 4 or 5, as the case may be, given by an Authorized Medical Attendant (AMA) or by Registered Medical Practitioner (RMP) if there is no AMA available within a radius of 8 kilometers (kms) from his residence or place of temporary stay outside his Headquarters and also in the circumstances when he finds it difficult to obtain MC or FC from a CGHS Doctor or an AMA; defining as clearly as possible the nature and probable duration of illness.]

NOTE.- In the case of non-Gazetted Government servant, a certificate given by a registered Ayurvedic, Unani or Homoeopathic medical practitioner or by a registered Dentist in the case of dental ailments or by an honorary Medical Officer may also be accepted, provided such certificate is accepted for the same purpose in respect of its own employees by the Government of the State in which the Central Government servant falls ill or to which he proceeds for treatment.

(2) A Medical Officer shall not recommend the grant of leave in any case in which there appears to be no reasonable prospect that the Government servant concerned will ever be fit to resume his duties and in such case, the opinion that the Government servant is permanently unfit for Government service shall be recorded in the medical certificate.

(3) The authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of a Civil Surgeon or Staff Surgeon, to have the applicant medically examined on the earliest possible date.

(4) It shall be the duty of the Government Medical Officer referred to in sub- rule (3) to express an opinion both as regards the facts of the illness and as regards the necessity for the amount of leave recommended and for that purpose may either require the applicant to appear before himself or before a Medical Officer nominated by himself.

(5) The grant of medical certificate under this rule does not in itself confer upon the Government servant concerned any right to leave; the medical certificate shall be forwarded to the authority competent to grant leave and orders of that authority awaited.

(6) The authority competent to grant leave may, in its discretion, waive the production of a medical certificate in case of an application for leave for a period not exceeding three days at a time. Such leave shall not, however, be treated as leave on medical certificate and shall be debited against leave other than leave on medical grounds.

10. The above rules provide for the necessity to enclose the medical certificate with leave application and the manner in which the certificate has to be furnished has also been provided for. Leave without medical certificate could be granted only if the leave period does not exceed three days and that again shall not be treated as leave on medical grounds

11. The personal file of the applicant maintained by the Respondents reflect the following:-

(a) Applicant had applied for leave on medical grounds from 29-10-2003 in various spells till 08-04-2005, and Earned leave for ten days on personal grounds from 12-12-2005 to 21-12-2005. and again earned leave for 8 days on personal grounds from 22-03-2006. The above was the leave history for the period upto March, 2006. Of course no relief was sought in respect of the above. However, it is seen from the medical certificate that there had been no mention in the above certificates filed by the applicant till then, that there was some problem relating to speech etc.,

(b) It was on 19-04-2006 that the applicant came out with the locomotive and dexterity disabilities and sought for transfer to Trichur and for change from teaching to non teaching faculty under the provisions of the Persons with disabilities Act. This application was not, however, supported by any medical certificate indicating the percentage of disability or nature of disability as stated in the application.

(c) The applicant thereafter submitted application for leave on medical grounds from 07-08-2006 without indicating the period of leave required. However, permission to leave headquarters was sought for till 01-11-2006. The Medical certificate produced was from an Ayurvedic Clinic. The applicant was advised by letter dated 09-08-2006 to produce CGHS Medical certificate as when he was a CGHS beneficiary. The applicant furnished certificate from Kottakkal Arya Vaidyashala on 30-09-2006 after she was informed that since there was no response to the communication dated 09-08- 2006 the period of absence would be treated as EOL on private affairs, vide letter dated 23-09-2006. The applicant continued to apply for extension of leave with medical certificate from Kottakkal Arya Vaidyasala and it was in March, 2007 that she was sent for examination by Medical Board. The Board opined that the applicant may be given any other work at the Office level other than teaching since her speech still has to improve. It was at this juncture that the applicant was advised to proceed on voluntary retirement. The applicant expressed her unwillingness to go on voluntary retirement but insisted for alternative job. The absence continued and a letter for sanction of EOL till 30th June, 2008 was given by the applicant on 31-03-2008. By Memorandum dated 28-04-2008, the applicant was informed that her request was not acceded to and she was advised to act as suggested vide KVS Hqrs letter dated 04-02-2008 (i.e. application for VRS) The applicant replied to the above communication stating that direction to apply for Voluntary retirement is against the Leave Rules or natural justice. Till then no percentage of disability had been reflected in any of the Medical Certificates and it was only after the District Medical Officer at Trichur conducted the medical examination on the direction of the High Court on 24-08-2009 that the percentage of disability and nature thereof had been spelt out.

12. From the above, it could be seen that though the Medical certificate or leave application may not be in the format the fact remains that the inability of the applicant from attending the office is purely on medical ground and that the applicant at least on two occasions had been examined by a team of doctors. Thus, there cannot be any doubt about the applicants having been absent on medical grounds. Thus, when the authorities were convinced to sanction leave, the same should be only on medical ground and if the rules permit for grant of increment for the period of absence absence on medical ground and leave had been also sanctioned, there should not be any bar in considering the case of the applicant for grant of annual increment for the period from 2006 to 2009.

13. In so far as advancing the date of posting as Librarian, it is not exactly known as to what purpose would it serve, for as per the counsel for the applicant, the post of TGT as well as Librarian carried the same pay scale and the applicant was on leave till she joined as Librarian in 2009. As such, no useful purpose would be served in adjudicating this issue. Strictly speaking, since the percentage of disability had not been specified till 2009, we do not find anything wrong in the action of the respondents in not considering the case as of 2007 for change of post. The citation of 1984 KLT 141is of least assistance to the applicant as the applicant was continuously on leave till she joined in 2009 as Librarian.

14. In view of the above the OA is disposed of with a declaration that the period of absence from 07-08-2006 till the date the applicant joined the post of Librarian is treated as leave on medical ground and the respondents are directed to consider the case of the applicant for grant of annual increment, if the rules provide for the same. In so far as the other relief of advancing the date of posting as Librarian is concerned, no case is made out.

15. This order shall be complied with, within a period of three months from the date of communication of this order. No cost.