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HIGH COURT OF DELHI
Date of Decision: August 07, 2023
GOVT OF NCT OF DELHI AND ORS. ..... Petitioners
Through: Mrs. Avnish Ahlawat, Standing Counsel with Ms. Tania Ahlawat, Mr. Nitesh Kumar Singh, Ms. Palak Rohmetra, Ms. Laavanya Kaushik and
Ms. Aliza Alam, Advocates.
Through: Mr. Setu Niket, Advocate.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO (Oral)
JUDGMENT
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of. W.P.(C) 10326/2023, CM APPL. 39990/2023
3. The challenge in this writ petition is to an order dated November 10, 2022, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (‘Tribunal’ in short) in O.A. 336/2020, which was filed by respondent herein for grant of study leave for undertaking a course. The Tribunal has allowed the O.A. by stating in paragraph No. 9 as under:
4. The submission of Mr. N. K. Singh, learned counsel appearing for the petitioners is that the Tribunal though directed the file be placed before the Chief Secretary, Govt. of NCT Delhi, for taking a decision, but in effect, has allowed the O.A. filed by respondent herein. In other words, it is his submission that there is no other decision to be taken by the Chief Secretary but to grant the study leave to the respondent and pay her salary. That apart, he states, a Government servant before proceeding on study leave, is required to have the approval of the competent authority for study leave. According to him, the Government servant cannot go on leave in expectation that the leave shall be granted. It may happen that in exigency of service, the approval for study leave can be rejected.
5. Mr. Setu, learned counsel appearing for the respondent submits that the reason for the Tribunal to remand the matter back to the Chief Secretary was that, even if, there was no approval granted by the petitioners before the respondent proceeded on study leave, an ex-post facto approval can be given for study leave. He also states that, there are three instances, where Nurses in the same Department, have been granted ex-post facto approval, and there is no reason why the said procedure is not followed in the case of respondent.
6. Noting the submissions made by the counsel for the parties, we agree with the submission made by Mr. N. K. Singh that the directions given by the Tribunal are as good as allowing the O.A. It should not have adverted on the merit of grant of study leave to the respondent. In other words, it should have left it to the Chief Secretary to decide the issue of study leave. To that extent, we set aside the order of the Tribunal, but the direction of the Tribunal for placing the file before the Chief Secretary for a decision is not disturbed.
7. The Chief Secretary shall decide the issue without being influenced by any observation made by the Tribunal, on merit. In other words, he shall take an independent decision, as per rules and regulations on the entitlement of the respondent for grant of study leave within two months from today.
8. We also like to add that the Chief Secretary shall issue necessary instructions to all the departments regulating the consideration of application for grant of study leave, well in advance, i.e. before a Government servant proceeds on leave.
9. Suffice to state, if the respondent is aggrieved by any order to be passed, liberty is with the respondent to seek such remedy as available in law. In view of our above directions, the writ petition stands disposed of. Pending application also stands disposed of.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J. August 07, 2023