ASWATHIMOL C A vs EMPLOYEES STATE INSURANCE CORPORATION (ESIC) on 29 December 2022

1. The Union of India Represented by its Secretary, Department of Labour and Employment, Ministry of Labour, Employees State Insurance Corporation, No. 110, Shram Shakthi Bhawan, Rafi Marg, New Delhi 110 001

2. The Director General, Head Quarters Office,

Employees State Insurance Corporation, Panchdeep Bhawan, Comrade Inderjeet Gupta (CIG) Marg, New Delhi 110 002

3. The Medical Superintendent, ESI Post Graduate Institute of Medical Science And Research, Represented by its Dean, Rajajinagar, Bengaluru 560 010

4. The Dean, ESI Post Graduate Institute of Medical Science And Research, Rajajinagar, Bengaluru 560 010

5. The Dean Government College of Nursing, Kannur 670 017, Kerala State .…Respondents

(By Shri Vishnu Bhat, Senior Panel Counsel represents Shri N. Amaresh, Senior Panel Counsel for Respondent No. 1, Shri S. Prakash Shetty, Senior Panel Counsel for Respondents No. 2 to 4)

O R D E R (ORAL)

PER: JUSTICE S. SUJATHA, MEMBER (J)

The applicant has assailed the condition imposed in the permission letter dated 03.11.2022 issued by the Respondent No. 3 (Annexure A3) inter alia seeking a direction to the Respondent Nos. 2 to 4 to grant the applicant study leave as per the provisions of Rule 50 and 51 of the CCS (Leave) Rules, 1972 and as per

Indian Nursing Council (Continuing Nursing Education) Regulations, 2019 (‘Regulations, 2019’ for short) to pursue higher education i.e. Post Graduation, M.Sc in Obstetrics and Gynaecology Nursing.

2. The facts in brief as stated by the applicant are that she, after acquiring Diploma in General Nursing and Midwifery, joined Post Basic B.Sc (Nursing). After acquiring the said qualifications, she joined ESIC, PGIMSR, Rajajinagar, Bengaluru as a Staff Nurse on 19.08.2013. She has undergone two years of probationary period successfully and thereafter she has been declared as successful during the year 2015. Subsequently, the applicant was promoted to the post of Nursing Sister i.e. Senior Nursing Officer in the month of August, 2020. Since then, she is working in the said post.

3. Pursuant to the applications invited for admission to Post Graduation degree course in Nursing (M.Sc in Nursing) by the Government of Kerala, the applicant made a request through proper channel seeking permission to make an application to pursue higher studies. The 3rd respondent has accorded permission

to apply for the Post Graduation course in Nursing in the Government of Kerala through regular basis education. The permission has been granted with the condition that no study leave will be granted to nursing candidates to pursue higher studies in M.Sc. (Nursing). However, they can avail personal leave for pursuing higher studies. The applicant participated in the entrance examination and had secured 316 marks out of 800 and is placed at 26th rank. Subsequently, the applicant has submitted her option of the college and the subject.

4. The representation submitted by the applicant before the Respondent No. 4 for grant of permission to avail study leave for two years has been rejected. Hence, this application.

5. Learned counsel Shri Vishwanath Bhat appearing for the applicant submitted that the Indian Nursing Council in exercise of the powers vested in it under Section 16 of the Indian Nursing Council Act, 1947 issued Regulations, 2019 having regard to the nursing subject, a scientific discipline influenced by the scientific and technological advances in healthcare. As per the said Regulation, pursuing higher studies i.e. Ph.D/Post Graduation is

one of the requirements to award 30 CNE credits or 150 CNE hours for renewal of the registration. The nurses are required to get 30 CNE credits or 150 CNE hours for every 5 years for renewal of their registration which is mandatory.

6. Learned counsel placing reliance on the order passed by this Tribunal in OA No. 482/2020 in the case of Sijesh George vs Union of India and Others argued that the Tribunal has allowed the said application considering the identical issue involved. Being aggrieved by the said order passed in OA No. 482/2020, the respondents had preferred Writ Petition No. 1723/2021 before the Hon’ble High Court of Karnataka and the same came to be disposed of on 04.03.2021. On further challenge before the Hon’ble Apex Court, the Special Leave Petition has been dismissed in SLP (C) No. 3302/2022 (DD 07.03.2022).

7. Inviting the attention of this Bench to the order passed in OA No. 258/2022 (Mrs. Reshmasudha vs Union of India and Others DD 21.07.2022) learned counsel submitted that a direction has been issued to the respondents therein, to grant study leave to Mrs. Reshmasudha to enable her to pursue higher education. A

further direction has been issued to the respondents to review their policy guidelines of 2018. This decision of the Tribunal is the subject matter of Writ Petition No. 16554/2022 pending before the Hon’ble High Court of Karnataka. In the said Writ Petition proceedings, the Hon’ble High Court of Karnataka has passed an interim order directing the Respondent No. 1 therein i.e. Mrs. Reshmasudha to execute a bond to make good the expenses incurred for the purpose of funding her further education and it is made clear that 1st Respondent shall not quit the job without permission of the Hon’ble High Court of Karnataka, specifically directing the respondents to implement the order of the Tribunal passed in OA No. 258/2022 within one week subject to the final orders in the said Writ Petition. Accordingly, seeks for similar orders in the present case.

8. Learned counsel Shri Prakash Shetty appearing for the respondents submitted that the respondent organization tries at its level best to accommodate the request of willing staff to obtain higher studies by granting them Earned Leave/HPL/Extra Ordinary Leave as per administrative feasibility and organizational policy to admissible staff as matter of general service conditions but

granting study leave to the employee would result in financial burden, as such, the applicant was granted only a conditional permission to apply for M.Sc (Nursing) and to appear for the entrance examination therein. Learned counsel argued that Regulations, 2019 is not applicable to the employment cases where Section 17 of the Employees State Insurance Act, 1948 would be applicable. Reliance was placed on the order of the Hon’ble High Court of Delhi in Writ Petition (C) No. 3895/2020 in the case of Asha Rani vs Union of India through Secretary and Others as well as the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 3798/2017 (DD 19.04.2018). Learned counsel has mainly placed reliance on the guidelines issued by the Headquarters Office, Employees State Insurance Corporation, New Delhi dated 31.10.2018 (Annexure R2). It was further submitted that the interim order passed by the Hon’ble High Court of Karnataka in Writ Petition No. 16554/2022 has been challenged by the respondents before the Hon’ble Apex Court and the same is registered in Diary No. 41318/2022.

9. We have carefully considered the submissions made by the learned counsel for the parties and perused the material on record.

10. The issue involved herein is no more res integra in view of the decision taken by this Tribunal in OA No. 482/2020 and OA No. 258/2022. Having regard to Rules 50 and 51 of CCS (Leave) Rules, 1972 vis-à-vis Regulations, 2019 as well as the policy guidelines of ESIC of 2018 notified vide its letter dated 31.11.2018 this Tribunal in OA No. 258/2022 has observed thus: “12. 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.

13. The stand taken by the ESIC that they will not grant study leave but will 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 she avails the study leave, as provided under the CCS Study Rules.

14. The respondents are relying on the decision taken by the ESIC on 31.10.2018 to deny study leave to the Nursing Cadre employees to pursue higher studies. However, this decision has been taken prior to the Regulations (Indian Nursing Council (Continuing Nursing Education) Regulations, 2019), issued by the Indian Nursing Council in exercise of the powers conferred by Sub-section (1) of Section 16 of the Indian Nursing Council Act, 1947, which came into effect from 6.11.2020.

15. Under the provisions of these regulations, all registered Nurses have to compulsorily undergo Continued Nursing

Education (CNE) for renewal of their registration after every 5 years. These regulations also stipulate that Nursing is a scientific discipline and is influenced by the scientific and technological advances in healthcare. Nurses form two thirds of the health workforce in India and they play a significant role in the healthcare system. In this healthcare scenario, to enhance the delivery of high quality, cost effective and safe care, professional nurses are mandated to update their knowledge and competence through Nursing Education programme. Under these regulations, all RN & RM (Registered Nurse and Registered Midwife) must participate in a professional CNE program and earn 30 CNE credits or 150 CNE hours for every 5 years (Minimum of 30 hours per year and a maximum of 60 hours per year). This is a mandatory requirement for renewal of registration of their licence after every 5 years. Under this CNE programme, the act of pursuing higher studies i.e. Post- graduation programmes recognised by Council (one year and above) provides with 150 hours or 30 CNE credits as per these regulations. Respondent No.5, NIMHANS is a prestigious and reputed organisation and there is no doubt that the Post- graduation in M.Sc. programme in Nursing conducted by it is recognised by the Indian Nursing Council.

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18. Keeping the above points in view, the act of the respondents to deny the study leave to the applicant relying on their policy of 2018 can be considered as being arbitrary and not justified in line with the requirements, as framed under the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019.

19. Accordingly, the OA is allowed. The respondents are directed to grant the applicant, study leave as per the Rules 50 and 51 of CCS (Leave) Rules 1972, keeping in view the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019, to enable her to pursue higher education in the 5th respondent institution. Respondent Institute No: 5 (NIMHANS) has stated in their reply that they, vide email dated 15.07.2022, have permitted the applicant to join M.Sc. in Neuroscience Nursing course on or before 31.07.2022. The respondents are therefore, further directed to ensure issuance of the necessary orders in order to enable the applicant to join the course on or before this date.

20. Respondents are further directed to review their policy guidelines of 2018 which deny grant of study leave to its Nursing Cadre employees to pursue higher studies. This shall be done keeping in view the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019 and a revised policy shall be framed accordingly.”

11. This order is impugned by the respondents herein, in Writ Petition No. 16554/2022 before the Hon’ble High Court of Karnataka and the matter is pending for consideration. The order dated 01.09.2022 issued by the Hon’ble High Court of Karnataka makes it clear that the leave granted under OA No. 258/2022 by the Tribunal shall be subject to the final orders in the said Writ Petition. The Respondent No. 1 therein has been directed to execute a bond to make good the expenses incurred for the purpose of funding her further education and the 1st respondent shall not quit the job without the permission of the Hon’ble court.

12. The said order is challenged by the respondents before the Hon’ble Apex Court and the matter is pending for consideration. However, it is clear that there is no interim order of stay, staying the order passed by the Hon’ble High Court of Karnataka in Writ Petition No. 16554/2022. That being the position, we have no reason to differ from the decision taken by this Tribunal in OA No. 258/2022. With great respect, the judgment referred to by the learned counsel for the respondents was rendered by the Tribunal prior to the Regulations, 2019 coming into force. Hence there was no occasion for the Hon’ble

High Court of Delhi to examine this issue in the light of Regulations, 2019. Similarly, the policy decision of the respondents was also issued prior to the Regulations, 2019 coming into force in terms of the guidelines/letter dated 31.10.2018 (Annexure R2).

13. In Writ Petition No. 1723/2021, the respondent therein was relieved and permitted to proceed on study leave. Since the order passed by this Tribunal was given effect to, the Hon’ble High Court has not examined the matter on merits as the same having rendered academic at that stage. However, the Special Leave Petition filed against the said order by the respondents herein, also has been dismissed vide order dated 07.03.2022 in SLP (C) No. 3302/2022.

14. Rules 50 and 51 of Central Civil Services (Leave) Rules, 1972 deals with ‘conditions for grant of study leave’ and the ‘maximum amount of study leave’. In terms of Regulations, 2019 all Registered Nurses have to compulsorily undergo Continued Nursing Education (CNE) for renewal of their registration after every 5 years. Having regard to these aspects, this Tribunal has

directed the respondents to review their policy guidelines of 2018 to bring it in line with the Regulations, 2019 of the Indian Nursing Council wherein all RN and RM (Registered Nurse and Registered Midwife) are mandatorily required to participate in a professional CNE program and earn 30 CNE credits or 150 CNE hours for every 5 years.

15. Hence, in our considered view, ends of justice would be sub-served in disposing of this application in terms of the order passed by this Tribunal in OA No. 258/2022 (DD 21.07.2022) and the interim order dated 01.09.2022 passed by the Hon’ble High Court of Karnataka in Writ Petition No. 16554/2022 subject to the final order in the said Writ Petition and the pending matter before the Hon’ble Apex Court in the case of Mrs. Reshmasudha registered in Diary No. 41318/2022. Accordingly, we direct the applicant to execute a bond to make good the expenses incurred for the purpose of funding her further education with the condition that the applicant shall not quit the job without the permission of this Tribunal.

16. In the result, we pass the following:

ORDER

(i) The respondents are directed to grant the applicant study leave as per Rules 50 and 51 of CCS (Leave) Rules, 1972, keeping in view the Indian Nursing Council (Continuing Nursing Education) Regulations, 2019 to enable her to pursue higher education in the 5th respondent institution.

(ii) The respondents are further directed to relieve the applicant in order to enable her to join the course within one week from the date of receipt of the certified copy of this order.

(iii) The OA is allowed to the extent indicated above.

(iv) No order as to costs.

(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)

MEMBER (A) MEMBER (J)

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