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Judgment
Johnson John, J.
This writ petition is filed by the Employees State Insurance Corporation and its officials challenging the order dated 22.08.2025 in O.A. No.180/00212/2023 of the Central Administrative Tribunal, Ernakulam Bench.
The respondent herein filed the above OA before the Tribunal aggrieved by the refusal of the competent authority to regularise her absence from duty from 31.08.2013 to 31.10.2015 and 03.03.2016 to 02.03.2018 (excluding 17.01.2018 and 18.01.2018) as extraordinary leave for the purpose of pursuing higher technical and scientific study.
The applicant, while working as an Insurance Medical Officer Grade-II at ESIC Model and Superspecialty Hospital, Asramam, Kollam, applied for study leave for joining PG Diploma course for two years from 31.08.2013. Even though, her application was forwarded with the remark ‘recommended’ from the Controlling Officer and she joined the course on 31.08.2013, as per Annexure A10 memo dated 01.12.2014, she was informed that the period of her absence from duty with effect from 31.08.2013 will be treated as unauthorised absence.
Subsequently, in spite of various representations submitted by her, disciplinary proceedings were initiated against her. In the disciplinary proceedings against the applicant, a penalty order was issued on 14.11.2019 imposing stoppage of 3 increments for a period of 3 years. Subsequently, the applicant submitted representation dated 02.12.2019 seeking regularisation of her period of study as extraordinary leave for study purpose.
After considering the said representation, her period of absence from duty was regularised as extraordinary leave for personal purpose and not for higher studies. Aggrieved by Annexure A1 order dated 12.05.2020, the respondent herein filed the Original Application before the Tribunal on 09.05.2023 to quash Annexures A1, A2 and A3; and to declare that the applicant is entitled to have her period of absence from 31.08.2013 to 30.10.2015 and from 03.03.2016 to 02.03.2018 (excluding 17.01.2018 and 18.01.2018) treated as extraordinary leave for pursuing higher technical and scientific studies; and to direct the petitioners/respondents to grant such leave to the applicant regularising her period of absence as aforementioned with all consequential benefits, including reckoning the said period as qualifying for pension, increments and promotions.
The respondent/applicant has also sought for a declaration that the applicant is entitled to be considered for promotion to the post of Chief Medical Officer with effect from the date on which she completed nine years of service and to direct the first petitioner—Employees State Insurance Corporation, represented by its Director General, ESIC Head Quarters, New Delhi, to consider the applicant for such promotion with all consequential benefits, including arrears of pay and allowance with interest at the rate of 12% per annum; and for Post Graduate allowance from the date on which she is qualified for Diploma in Anesthesia i.e., 18.02.2016 and to direct the petitioners/respondents to pay the same with all consequential benefits, including arrears @ 12% per annum.
Heard Sri. Adarsh Kumar, the learned counsel for the petitioners and Sri. M.R. Hariraj, the learned counsel for the respondent.
The learned counsel for the petitioners argued that the respondent filed the Original Application against Annexure A1 order dated 12.05.2020 and the Tribunal ought to have found that the said Original Application dated 09.05.2023 is barred by limitation. It is pointed out that the reliefs sought for in the Original Application and granted by the Tribunal in the impugned order are beyond the scope of the issue adjudicated, in as much as the challenge was only against Annexure A1 order dated 12.05.2020, whereby the competent authority, after considering Annexure A28 representation of the respondent dated 02.12.2019 decided to regularise the period of her absence (from 31.08.2013 to 30.10.2015 and from 03.03.2016 to 02.03.2018) by grant of extraordinary leave for personal purpose and not for higher studies.
The learned counsel for the petitioners also argued that the Tribunal ought to have found that the rejection of the previous application of the respondent seeking study leave and subsequent disciplinary proceedings for unauthorised absence and imposing a penalty of stoppage of 3 increments for a period of 3 years, are not under challenge in the Original Application and therefore, the Tribunal ought to have found that Annexure A28 representation of the respondent dated 02.12.2019 is only a request for regularisation of her period of unauthorised absence and it is specifically stated in the said representation that the respondent has realised the fact that she is not eligible for study leave and therefore, the request to regularise her period of study can only be considered under sub-Rule (6) of Rule 32 of the Central Civil Services (Leave) Rules, 1972 (‘Rules, 1972’ for short) and that regularisation of her period of absence cannot be considered under sub-Rules (1) to (5) of Rule 32 of the Rules, 1972.
Per contra, the learned counsel for the respondent argued that in Annexure A28 representation of the respondent, the request was to regularise her period of study as extraordinary leave for study purposes and therefore, the competent authority ought to have considered the said representation under sub-Rule (2)(e) of Rule 32 and Annexure A1 order passed under sub-Rule (6) of Rule 32 is not justifiable and therefore, the finding of the Tribunal that the applicant is entitled to have her period of absence treated as extraordinary leave for higher studies and the consequential reliefs granted do not warrant any interference by this Court in exercising the writ jurisdiction.
It is not in dispute that the application of the respondent dated 31.08.2013 for study leave was rejected and subsequently, she also faced disciplinary proceedings for unauthorised absence and penalty of stoppage of 3 increments for a period of 3 years was also imposed on her and the same was not challenged in the Original Application. The challenge in the Original Application was against Annexure A1 order dated 12.05.2020, wherein the request of the respondent in Annexure A28 representation dated 02.12.2019 to regularise her period of study as extraordinary leave for study purpose was denied and instead, her absence from duty for the period from 31.08.2013 to 30.10.2015 and 03.03.2016 to 02.03.2018 was regularised by grant of extraordinary leave for personal purposes.
The application of the respondent dated 31.08.2013 for study leave under Rule 52 was already rejected and for the period of unauthorised absence from duty, she also faced disciplinary proceedings and a penalty of stoppage of 3 increments for a period of 3 years was imposed and only thereafter, she preferred Annexure A28 representation dated 02.12.2019 for regularisation of her period of absence from duty. Rule 32 of the Rules, 1972 is extracted below for convenient reference:
“32. Extraordinary leave:
(1)Extraordinary leave may be granted to a Government servant (other than a military officer) in special circumstances-
(a)when no other leave is admissible:
(b)when other leave is admissible, but the Government servant applies in writing for the grant of extraordinary leave.
(2)Unless the President in view of the exceptional circumstances of the case otherwise determines, no Government servant, who is not in permanent employ or quasi-permanent employ, shall be granted extraordinary leave on any one occasion in excess of the following limits:--
(a)three months;
(b)six months, where the Government servant has completed one year's continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months’ extraordinary leave under Clause (a) and his request for such leave is supported by a medical certificate as required by these rules;
(c)[Deleted.]
(d)eighteen months, where the Government servant who has completed one year’s continuous service is undergoing treatment for -
(i)Pulmonary Tuberculosis or Pleurisy of tubercular origin, in a recognized sanatorium;
NOTE. - The concession of extraordinary leave up to eighteen months shall be admissible also to a Government servant suffering from Pulmonary Tuberculosis or Pleurisy of tubercular origin who receives treatment at his residence under a Tuberculosis Specialist recognized as such by the State Administrative Medical Officer concerned and produces a certificate signed by that Specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended.
(ii)Tuberculosis of any other part of the body by a qualified Tuberculosis Specialist or a Civil Surgeon or Staff Surgeon; or
(iii)Leprosy in a recognized leprosy institution or by a Civil Surgeon or Staff Surgeon or a Specialist in leprosy hospital recognized as such by the State Administrative Medical Officer concerned;
(iv)Cancer or for mental illness, in an institution recognized for the treatment of such disease or by a Civil Surgeon or Staff Surgeon or a Specialist in such disease.
(e)twenty-four months, where the leave is required for the purpose of prosecuting studies certified to be in the public interest, provided the Government servant concerned has completed three years’ continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months’ extraordinary leave under Clause (a).
(3)(a) Where a Government servant is granted extraordinary leave in relaxation of the provisions contained in Clause (e) of sub-rule (2), shall be required to execute a Bond in Form 6 undertaking to refund to the Government the actual amount of expenditure incurred by the Government during such leave plus that incurred by any other agency with interest thereon in the event of his not returning to duty on the expiry of such leave or quitting the service before a period of three years after return to duty.
(b)The Bond shall be supported by Sureties from two permanent Government servants having a status comparable to or higher than that of the Government servant.
(4)Government servants belonging to the Scheduled Castes or the Scheduled tribes may, for the purpose of attending the Pre-Examination Training Course at the centers notified by the Government from time to time, be granted extraordinary leave by Head of Department in relaxation of the provisions of sub-rule (2).
(5)Two spells of extraordinary leave, if intervened by any other kind of leave, shall be treated as one continuous spell of extraordinary leave for the purposes of sub-rule (2).
(6)The authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave.”
A perusal of the above provision clearly shows that sub-Rule (6) of Rule 32 is not subject to the conditions in sub-Rules (1) to (5) and that sub-Rules (1) to (5) cannot be invoked for regularisation of a period of absence from duty after imposition of penalty in a disciplinary proceedings for unauthorised absence and that regularisation of such a period of absence can be considered only under sub-Rule (6).
Admittedly, disciplinary proceedings were initiated against the respondent for unauthorised absence and Annexure A27 order of the disciplinary authority dated 14.11.2019 would show that the explanation offered by the respondent was not accepted and the disciplinary authority recorded a finding that the charges levelled against her are true and accordingly, the penalty was imposed. Annexure A28 representation dated 02.12.2019 is not an appeal against the findings of the disciplinary authority and is only a request for regularisation of the period of unauthorised absence.
The Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), Government of India, issued office memorandum bearing No.13026/3/2010-Estt.(L) dated 22.06.2010 containing consolidated instructions on regularisation of unauthorised absence and paragraphs 5, 6 and 7 of the said official memorandum reads thus:
“5.The consequences and procedure to be followed in respect of an officer who is absent from duty without any authority has been brought out under FR 17(1) and 17-A. As per FR 17-A(iii) without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, remaining absent without any authority or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in department examinations, for which a minimum period of continuous service is required.
6.Comptroller and Auditor General have issued orders that the period of absence not covered by grant of leave shall have to be treated as "dies non" for all purposes, viz., increment, leave and pension. Such absence without leave when it stands singly and not in continuation of any authorized leave of absence will constitute an interruption of service for the purpose of pension and unless the pension sanctioning authority exercises its powers under Article 421, Civil Service Regulations [now Rule 27 of the CCS (Pension) Rules] to treat the period as leave without allowance, the entire past service will stand forfeited.
7.It may be noted that regularization of unauthorized absence for pension purpose is to be considered under the CCS (Pension) Rules. Only in cases where the disciplinary authority is satisfied that the grounds adduced for unauthorized absence are justified, the leave of the kind applied for and due and admissible may be granted to him under the CCS (Leave) Rules.”
An application to regularise unauthorised absence is a retrospective, reactive process, where an employee seeks regularisation of the period of absence. But it is pertinent to note that in this case, Annexure A28 representation for regularisation of the period of unauthorised absence was preferred after Annexure A27 order passed by the disciplinary authority on 14.11.2019, wherein the explanation of the respondent regarding her unauthorised absence was found without merit and consequently, the penalty of stoppage of 3 increments for a period of 3 years was imposed. In that circumstance, the competent authority is justified in considering Annexure A28 representation as one under sub Rule (6) of Rule 32.
It cannot be disputed that an application for regularisation is a retrospective request to excuse or formalize a period, where an employee was absent from duty without prior permission. But, a request for extraordinary leave under sub-Rules (1) to (5) is required to be submitted before taking the leave and a perusal of Annexure A28 representation of the respondent dated 02.12.2019 would clearly show that the same was for regularisation of her period of absence from duty for which a penalty was already imposed and therefore, the competent authority is legally justified in passing Annexure A1 order dated 12.05.2020 regularising the period of absence from duty by grant of extraordinary leave under sub-Rule (6) of Rule 32.
The learned counsel for the petitioners also cited the decision of the Honourable Supreme Court in R. Nagaraj (Dead) through Lrs. and Another v. Rajmani and Others [2025 SCC OnLine SC 762] to point out that even in the absence of specific pleadings regarding the limitation in the plaint or a plea of defense, there is a bounden duty on every civil Court to ascertain as to whether the lis has been initiated within the time prescribed under law, even if the parties to the lis had not raised any objections.
In R. Nagaraj (supra), it was also held that in cases, where the pleadings are silent, then it becomes the duty of the Court to ascertain from the evidence and the overall facts of the case, as pleaded by either party, and to render a finding on limitation where the question of limitation is to be treated as a question of law, since the Court cannot entertain frivolous or stale claims and that it is the settled position of law that a question of law can be raised at any stage
In spite of the fact that Annexure A1 order is dated 12.05.2020, the Original Application before the Tribunal was filed only on 09.05.2023 and therefore, we also find force in the argument of the learned counsel for the petitioners that the Original Application is barred by limitation, in view of Section 21 of the Administrative Tribunals Act, 1985, which provides that the application is to be filed within one year from the date of the order under challenge.
As noticed earlier, from a reading of Annexure A28 representation and Annexure A1 order, it is clear that the competent authority passed the said order regularising the period of absence from duty under sub-Rule (6) of Rule 32 by granting extraordinary leave to the respondent and the Tribunal is not justified in considering the merit of the previous order rejecting the application of the respondent for study leave and the subsequent findings in the disciplinary proceedings for arriving at a decision in favour of the respondent in the absence of any challenge regarding the same in the Original Application.
Under sub-Rule (6) of Rule 32 of the Rules, 1972, the period of absence from duty cannot be regularised as study leave, especially in view of the fact that the study leave application of the respondent dated 31.08.2013 was rejected by the competent authority and disciplinary proceedings were also initiated against the respondent which resulted in imposing a penalty of stoppage of 3 increments for a period of 3 years and therefore, we find that the Tribunal has exceeded its jurisdiction in granting extraordinary leave for pursuing higher technical and scientific study with all consequential benefits and therefore, we find that the impugned order is liable to be set aside.
In the result, this Original Petition is allowed and the order dated 22.8.2025 of the Central Administrative Tribunal, Ernakulam Bench in O.A. No.180/00212/2023 is set aside and the said OA stands dismissed.
APPENDIX OF OP (CAT) NO. 82 OF 2026
PETITIONERS’ ANNEXURES :
Annexure A1 TRUE COPY OF LETTER NO.19/11/1/274/2009 /MED.-4 DATED 12/5/2020.
Annexure A2 TRUE COPY OF LETTER NO. A/19/11/1/274/2009/MED. DEPT.-4 DATED 22.3.2021 ALONG WITH TYPED COPY
Annexure A3 TRUE COPY OF LETTER NO. FILE NO. /19/11/1/274/2009/PART-IV DATED 15/2/2023
Annexure A4 TRUE COPY OF CERTIFICATE NO. 042A/2/11/106/ MHA /ADM DATED 15/11/2012
Annexure A5 TRUE COPY OF LEAVE APPLICATION DATED 31/8/2013
Annexure A6 TRUE COPY OF LETTER NO. 942/A/19/11/09/MHA(ADM) DATED 29/01/2014 ALONG WITH CHECK LIST OF STUDY LEAVE
Annexure A7 TRUE COPY OF REPRESENTATION DATED 02/04/2014 ALONG WITH TYPED COPY
Annexure A8 TRUE COPY OF REPRESENTATION DATED 17/4/2014
Annexure A9 TRUE COPY OF ILETTER NO. 942/A/19/11/53/09/MHA/ADM DATED 01/12/2014 ALONG WITH TYPED COPY
Annexure A10 TRUE COPY OF LETTER NO.542/A/19/11/53/09/MHA/ADM DATED 01/12/2014
Annexure A11 TRUE COPY OF REPRESENTATION DATED 11/12/2014, 14/08/2015 AND 31/10/2015
Annexure A12 TRUE AND TYPED COPY OF REPRESENTATION DATED 14/08/2015
Annexure A13 TRUE COPY OF REPRESENTATION DATED 31/10/2015
Annexure A14 TRUE COPY OF LEAVE APPLICATION DATED 8/12/2015
Annexure A15 TRUE COPY OF LETTER NO. 542/A/19/11(53)/09/MHA/ADM DATED 15/12/2015
Annexure A16 TRUE COPY OF COURSE CERTIFICATE DATED 21/12/2015
Annexure A17 TRUE COPY OF CERTIFICATE OF POST GRADUATE DIPLOMA IN ANESTHESIOLOGY (DA) DATED 18/02/2016
Annexure A18 TRUE COPY OF LEAVE APPLICATION DATED 02/03/2016
Annexure A19 TRUE COPY OF SHOW CAUSE NOTICE DATED 22/11/2017
Annexure A20 TRUE COPY OF REPRESENTATION DATED 28/11/2017
Annexure A21 TRUE AND TYPED COPY OF LETTER NO.A-19/11/ 1/ 274/2009-MED.IV DATED 05/01/2018
Annexure A22 TRUE COPY OF APPLICATION FOR LEAVE FROM 19/01/2018 TO 02/03/2018
Annexure A23 TRUE AND TYPED COPY OF REPRESENTATION DATED 18/01/2018
Annexure A24 TRUE COPIES OF COURSE COMPLETION CERTIFICATE DATED 02/03/2018 ISSUED BY LAKESHORE HOSPITAL & RESEARCH CENTRE LTD. AND REPRESENTATION (JOINING REPORT) DATED 03/03/2018
Annexure A25 TRUE COPY OF CHARGE MEMO NO. C-14/15/25 /14-VIG./1121 DATED 30/06/2018
Annexure A26 TRUE COPY OF INQUIRY REPORT DATED 17/04/2019
Annexure A27 TRUE COPY OF PENALTY ORDER DATED 14/11/2019
Annexure A28 TRUE COPY OF REPRESENTATION DATED 02/12/2019
Annexure A29 TRUE COPY OF REPRESENTATION DATED 01/10/2020
Annexure A30 TRUE COPY OF REPRESENTATION DATED 09/01/2023 ALONG WITH BOND DATED 07/01/2023
Annexure A31 TRUE AND TYPED COPY OF LEAVE APPLICATION DATED 09/01/2023 SEEKING REGULARIZATION FROM 31/08/2013 AND 31/10/2015
Annexure A32 TRUE AND TYPED COPY OF LEAVE APPLICATION DATED 09/01/2023 SEEKING REGULARIZATION FROM 02/03/2016 TO 02/03/2018
Annexure A33 TRUE COPY OF THE RELEVANT PAGES OF THE EMPLOYEES’ STATE INSURANCE CORPORATION (STAFF AND CONDITIONS OF SERVICE) REGULATIONS, 1959
Annexure A34 TRUE COPY OF THE REPLY DATED 31/03/2023 TO RTI REQUEST DATED 21/03/2023
Annexure A35 TRUE COPY OF THE CONSOLIDATION OF THE INFORMATION PROCURED THROUGH RTI
Annexure A36 TRUE COPY OF THE REPLY DATED 20/04/2023 TO RTI REQUEST DATED 21/03/2023
Annexure A37 TRUE COPY OF THE CONSOLIDATION OF THE INFORMATION PROCURED THROUGH RTI
Exhibit P1 A TRUE COPY OF ORIGINAL APPLICATION NO. 212/2023 FILED BY THE APPLICANT/RESPONDENT HEREIN ON THE FILES OF THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH.
Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS/PETITIONERS HEREIN IN OA NO. 212/2023 ON THE FILES OF THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
Exhibit P3 A TRUE COPY OF REJOINDER FILED BY THE RESPONDENT HEREIN IN OA NO. 212/2023 ON THE FILES OF THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
Exhibit P4 A TRUE COPY OF ORDER DATED 22-08-2025 IN ORIGINAL APPLICATION NO. 212/2023; PASSED BY THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
RESPONDENT’S EXHIBITS: NIL