State Of Rajasthan vs Dr. Kamaldeep Khatri S/O Shri ...
2021 Latest Caselaw 7419 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            D.B. Special Appeal Writ No. 911/2020

1.    State Of Rajasthan, Through Additional Chief Secretary,
      Department Of Medical, Health And Family Welfare,
      Government Secretariat, Jaipur Rajasthan-302005.
2.    Director (Public Health), Directorate Of Medical And Health
      Services, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur
3.    The Chief Medical And Health Officer, Alwar Rajasthan
4.    The Chairman, neet Pg Medical And Dental Admission/,
      Counseling    Board       2020       And     Principal,    Govt.   Dental
      College, Subhash Nagar, Behind T.b. Hospital, Jaipur
      Rajasthan
                                                                 ----Appellants
                                   Versus
Dr. Kamaldeep Khatri S/o Shri Bhagwan Das, Aged About 36
Years, R/o 36, Yog Nagar, 60 Feet Road, Alwar 301001 (Raj)
                                                                ----Respondent

Connected With D.B. Civil Writ Petition No. 13444/2019 Dr. Ashok Pal S/o Shri Chhote Pal Singh, Aged About 36 Years, R/o Plot No.120, Goverdhan Nagar, Sanganer, Jaipur

----Appellant Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical And Health Services, Government Of Rajasthan, Secretariat, Jaipur.

2. Secretary, Department Of Medical And Health Services (Group-2), Government Of Rajasthan, Secretariat, Jaipur.

3. Director, Medical And Health And Family Welfare Services, Swasthya Bhawan, Jaipur

4. Additional Director (Gazetted), Medical And Health Services, Swasthya Bhawan, Jaipur

5. The Principal And Controller, Sms Medical College And Hospital, Jaipur

6. The Principal Medical Officer, Rajiv Gandhi District Hospital, Alwar

(2 of 25) [SAW-911/2020]

----Respondents D.B. Civil Writ Petition No. 13802/2019 Shiv Kumar Chahar S/o Shri Hardam Singh, Aged About 34 Years, By Caste- Jat, R/o Plot No.14, Brijvihar Colony, Madarpur Road, Bharatpur (Raj.)

----Appellant Versus

1. State Of Rajasthan, Through Secretary, Department Of Medical And Health Services (Group-2), Government Of Rajasthan, Jaipur, Rajasthan.

2. The Director, Medical And Health And Family Welfare Service, Jaipur, Rajasthan

3. The Additional Director (Gazzetted), Medical And Health Services, Jaipur, Rajasthan.

4. The Principal-Cum-Controller, Government Medical College, Bharatpur, Rajasthan.

5. Chief Medical And Health Officer, Bharatpur, Rajasthan.

----Respondents D.B. Special Appeal Writ No. 903/2020

1. State Of Rajasthan, Additional Chief Secretary, Department Of Medical And Health, Government Secretariat, Jaipur Rajasthan-302005.

2. The Chief Medical And Health Officer, Banswara.

3. The Chief Medical And Health Officer, Jhunjhunu.

4. Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

5. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

6. The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Appellants Versus

1. Dr. Ajay Kumar Saini S/o Shri Mali Ram Saini, Aged About 24 Years, R/o Dhani Maliyan, Village Nayan, Via Amarshar,

(3 of 25) [SAW-911/2020]

Tehsil Shahpura, District Jaipur, Rajasthan.

2. Dr. Ajay Kumar Saini S/o Mahesh Kumar, Aged About 26 Years, R/o Birodi Bari, Tehsil Laxmangarh, District Sikar, Rajasthan.

3. Dr. Mukesh Kumar Jat S/o Ram Lal Jat, Aged About 29 Years, R/o Vpo Khorashyamdass, Via Jaitpura, Tehsil Amer, District Jaipur, Rajasthan.

----Respondents D.B. Special Appeal Writ No. 930/2020

1. State Of Rajasthan, Additional Chief Secretary, Department Of Medical And Health, Government Secretariat, Jaipur Rajasthan-302005

2. The Chief Medical And Health Officer, Churu, Rajasthan

3. Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

4. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029

5. The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Appellants Versus Dr. Rita Shekhawat D/o Shri Sampat Singh, Aged About 26 Years, Resident Of Village Karanpura, Bhamasi, District Churu (Rajasthan)

----Respondent D.B. Special Appeal Writ No. 931/2020

1. State Of Rajasthan, Additional Chief Secretary, Department Of Medical And Health, Government Secretariat, Jaipur Rajasthan-302005

2. The Chief Medical And Health Officer, Hanumangarh, Rajasthan

3. Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi- 110011

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4. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029

5. The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Appellants Versus Dr. Sunil Kumar Son Of Shri Jagdish Prasad Verma, aged about 29 years, Resident Of 170B, Sector No. 5, Near Lic Office, Nohar District Hanumangarh (Rajasthan)

----Respondent D.B. Civil Writ Petition No. 5532/2020 Dr. Kamal Jain D/o Shri Deepak Jain, Aged About 25 Years, R/o 32 F Block, Ward No. 1, Srikaranpur, District Sri Ganganagar (Raj.)

----Appellant Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan, 302005.

2. The Chief Medical And Health Officer, Sri Ganganagar, Rajasthan.

3. Medical Counselling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

4. National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

5. The Chairman, Neet Pg Medical And Dental Admission/ Counselling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 5685/2020 Dr Vishal Tulsani Son Of Mr. Vinod Tulsani, Aged About 27 Years, Resident Of 34 A, C Scheme, Pratap Nagar, Chittorgarh, Rajasthan 312001

(5 of 25) [SAW-911/2020]

----Appellant Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005

2. The Chief Medical And Health Officer, Chittorgarh, Rajasthan

3. Medical Counseling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi 110011

4. National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi 110029

5. The Chairman, Neet Pg Medical And Dental Admission/counseling Board 2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 5746/2020 Dr. Shivani Bhatter D/o Shri Sushil Kumar Bhatter, Aged About 24 Years, R/o Maheshwari Colony, Behind Pugal Bus Stand, Bikaner- 334001 (Raj.)

----Appellant Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005

2. The Chief Medical And Health Officer, Bikaner, Rajasthan

3. Medical Counselling Committee, Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi -110011

4. National Board Of Examinations, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029

5. The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

                                                                   ----Respondents


                                           (6 of 25)                      [SAW-911/2020]

D.B. Civil Writ Petition No. 5867/2020 Dr. Sunil Kumar Son Of Shri Jagdish Prasad Verma, Aged About 28 Years, Resident Of 170B, Secor No.5, Near Lic Office, Nohar District Hanumangarh (Rajasthan)

----Appellant Versus

1. State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

2. The Chief Medical And Health Officer, Hanumangarh, Rajasthan

3. Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

4. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

5. The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 5871/2020 Dr Aman Thathai S/o Shri Rajendra Arora, Aged About 26 Years, R/o Gali No. 21, Ward No. 23, Nai Abadi, Hanumangarh Town, District Hanumangarh (Rajasthan)

----Appellant Versus

1. State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

2. The Chief Medical And Health Officer, Hanumangarh, Rajasthan

3. Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

4. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

(7 of 25) [SAW-911/2020]

5. The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 5873/2020 Dr Rohit Labana S/o Shri Ramesh Chandra Labana, Aged About 28 Years, R/o Village Bankda Via Peeth Tehsil Simalwara District Dungarpur (Rajasthan)

----Appellant Versus

1. State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

2. The Chief Medical And Health Officer, Dungarpur, Rajasthan

3. Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

4. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

5. The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 5874/2020 Dr. Rita Shekhawat D/o Shri Sampat Singh Shekhawat, Aged About 26 Years, Resident Of Village Karanpura, Bhamasi, District Churu Rajasthan.

----Appellant Versus

1. State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

2. The Chief Medical And Health Officer, Churu, Rajasthan.

3. Medical Counseling Committee, Through Director General

(8 of 25) [SAW-911/2020]

Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

4. National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

5. The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 6148/2020

1. Dr. Ajay Kumar Saini S/o Mali Ram Saini, Aged About 24 Years, R/o Dhani Maliyan, Village Nayan, Via Amarshar, Tehsil Shahpura, District Jaipur, Rajasthan.

2. Dr. Ajay Kumar Saini S/o Mahesh Kumar, Aged About 26 Years, R/o Birodi Bari, Tehsil Laxmangarh, District Sikar, Rajasthan.

3. Dr. Mukesh Kumar Jat S/o Ram Lal Jat, Aged About 29 Years, R/o Vpo Khorashyamdass, Via Jaitpura, Tehsil Amer, District Jaipur, Rajasthan.

----Appellants Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005.

2. The Chief Medical And Health Officer, Banswara.

3. The Chief Medical And Health Officer, Jhunjhunu.

4. Medical Counseling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi - 110011.

5. National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029

6. The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Civil Writ Petition No. 6582/2020

(9 of 25) [SAW-911/2020]

Dr. Nidhi Yadav D/o Shri Bhopal Singh Yadav, Aged About 28 Years, R/o Ward No. 25, Bharthari Colony, Behror, District Alwar (Raj.)

----Appellant Versus

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005.

2. The Chief Medical And Health Officer, Sirohi, Rajasthan.

3. Medical Counselling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi - 110011.

4. National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029

5. The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents D.B. Special Appeal Writ No. 107/2021

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan- 302005.

2. The Chief Medical And Health Officer, Sri Ganganagar, Rajasthan.

3. The Chairman, Neet Pg Medical And Dental Admission/ Counselling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Appellants Versus

1. Dr. Kamal Jain D/o Shri Deepak Jain, Aged About 25 Years, R/o 32 F Block, Ward No. 1, Srikaranpur, District Sri Ganganagar (Raj.)

2. Medical Counseling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

3. National Board Of Examinations Through Its Director,

(10 of 25) [SAW-911/2020]

Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

----Respondents D.B. Special Appeal Writ No. 114/2021

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur Rajasthan-302005

2. The Chief Medical And Health Officer, Bikaner, Rajasthan

3. The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Appellants Versus

1. Dr. Shivani Bhatter D/o Shri Sushil Kumar, Aged About 24 Years, R/o Maheshwari Colony, Behind Pugal Bus Stand, Bikarner-334001 (Raj.)

2. Medical Counseling Committee, Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

3. National Board Of Examinations, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi- 110029.

----Respondents

For Appellant(s) : Mr. Harshal Tholia for Dr. V.B. Sharma, AAG in SAW Nos.911/2020, 903/2020, 930/2020, 931/2020, 107/2021 and 114/2021.

Mr. Tanveer Ahamad with Ms. Malti Mr. Satish Kumar Khandelwal Mr. Narendra Singh Yadav Mr. Ram Pratap Saini Ms. Purvi Mathur Mr. Kushagra Sharma Ms. Soni Bajaj for Mr. G.S. Gill Mr. Vivek Tyagi, Dy. Govt. Counsel for Medical & Health Department in SAW Nos.911/2020, 903/2020, 930/2020, 931/2020, 107/2021 and 114/2021.

For Respondent(s) : Mr. Harshal Tholia for Dr. V.B. Sharma, AAG in DBCWP Nos.

(11 of 25) [SAW-911/2020]

13802/2019, 5685/2020, 5873/2020 & 6582/2020.

Mr. Vivek Tyagi, Dy. Govt. Counsel for Medical & Health Department in DBCWP Nos.13444/2019 & 13802/2019.

Mr. Harsh Sahu Addl. Govt. Counsel Mr. Bharat Saini, Addl. Govt. Counsel Mr. Angad Mirdha

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

Judgment

09/12/2021

All these proceedings arise out of common background. They

have been heard together and would be disposed of by this

common judgment.

We have heard learned Advocates for the respective parties

in writ petitions and appeals respectively, who at our request

appeared on advance copy, since the central issue involved is

common and is also raised in Writ Petition No.5532/2020 which

has been placed along with this group. Delay in filling the appeals

is condoned in each appeal.

The central issue arising is the request of the medical officers

appointed in government service for grant of study leave during

the period of probation which the government resists. This issue

has come up before this Court on number of occasions but so far

has been dealt with by learned Single Judges. There has been a

diversion of opinions. In some cases, the learned Single Judges

have allowed the writ petitions and directed the government to

grant study leave. In some cases, the petitions have been

dismissed. These issues are otherwise also time bound. Once the

study leave is granted under interim or final order of the learned

(12 of 25) [SAW-911/2020]

Single Judge and the employee joins the higher PG medical

course, even on the ground of equity and other considerations it

would be difficult to recall the admission. If the petition is

dismissed, the employee would in any way miss the deadline for

enrolling in the PG course by the time he can approach the

division bench and secure an order in his favour. It is perhaps

because of this reason that majority of the judgments of the

learned Single Judges have not traveled further. Therefore, in

order to resolve this controversy, we heard learned advocates at a

considerable length.

Counsel for the petitioners argued that the Government

service rules do not prohibit grant of study leave to a probationer.

Higher training obtained by the employees would enhance their

quality of service. Even in the public interest therefore,

government cannot object to grant of study leave to such

candidates. By various judgments, the Single Judges of this Court

have granted such permissions in past. Such trend which is

existing since long should not be reversed.

On the other hand, learned Government advocate submitted

that leave to an individual employee is always at the discretion of

the employer. The service rules governing the petitioners

specifically prohibit grant of study leave to a probationer. The

government has issued circulars which also highlight this aspect.

There is severe shortage of medical officers particularly in the

rural areas. If therefore the government is unable to spare the

services of doctors who have just joined the service for higher

education, such policy is reasonable and no direction contrary to

the same should be given. Counsel pointed out that in the recent

appointments of medical officers the Government has inserted a

(13 of 25) [SAW-911/2020]

condition that considering the Corona situation, study leave shall

not be granted for a specified period. He drew our attention to a

decision of the Supreme Court in the case of Dr. Rohit Kumar

Vs. Secretary Office of Lieutenant Governor of Delhi and

Ors. : (2021) 8 SCC 381 in which such condition has been

upheld.

Before we offer our interpretation of the statutory provisions,

we may take a quick look at the views expressed by the learned

Single Judges on this question. Learned Single Judge in the case

of Deepika Motwani Vs. State of Rajasthan and Ors. :

SBCWP No.6191/2006 in a judgment dated 30/05/2008 held

that for grant of study leave there is a mandatory requirement

that the employee has to complete three years of continuous

service. Study leave can be granted even to a temporary

government servant however it has to be certified that the same is

in the public interest. It was also found that the employee

concerned had obtained admission in the B.Ed. course without

seeking permission and study leave. Under such circumstances

the petition was dismissed.

Another learned Single Judge in case of Dr. Babulal Meena

Vs. State of Rajasthan and Ors. : SBCWP No.15955/2012 in

a judgment dated 02/05/2013 drew a distinction between a

temporary government servant and a probationer. It was held that

the service of a probationer is of permanent nature and is not

temporary. Eventually, the writ petitions were allowed.

In case of Chandar Prakash Gunawat (Dr.) Vs. State of

Rajasthan and Ors. : 2013 SCC Online Rajasthan 3949 the

learned Single Judge was dealing with slightly different situation.

It was a case where the person already pursuing higher study was

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selected for government posts. While disposing of the petition it

was observed that most of the petitioners had already completed

their course and had joined service and therefore, they may be

allowed to continue in service but the effective date of

appointment would be the date when they joined the service after

completion of the course and that the petitioners would execute a

bond for serving for at least five years.

In case of Nadeem Sardar Vs. State of Rajasthan and

Anr. : SBCWP No.5805/2019 learned Single Judge in a

judgment dated 04/04/2019 after referring to the service rules

and the government circulars dismissed the petition making

following observations:-

"A petition under Article 226 of the Constitution of India can be maintainable in the event of contravention of legal or fundamental rights or failure of the respondents to discharge a statutory duty owed to a citizen. Neither of the two situations arise in the present case. The petitioner is admittedly a probationer-trainee and the nature of his services is thus yet temporary and not confirmed. In terms of the memorandum dated 22.5.2009 as also Rule 96(b) of the Rajasthan Service Rules, read with the Government of Rajasthan's decision no.3 the petitioner with his current status in service is not entitled to Extraordinary Leave for over a year under any circumstance. A PG Medial course duration is at least 3 years. The absence of the petitioner from his current probation period for a period of three years while he undergoes the PG Medical Course cannot be therefore countenanced.

Aside of the above, I am of the considered view that in the event the petitioner were indeed desirous to pursue the PG Medical Course to which he may be admitted on his performance at NEET PG, 2019 he is free to resign from service as a Medical Officer. The State Government is the employer cannot be directed to issue a NOC to the petitioner for the three year PG Medical Course and thereby violate the Rajasthan Service Rules, 1951 as also its memorandum dated 22.5.2009.

I find no force in the petition. Dismissed."

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The petitioner Nadeem Sardar challenged the judgment

before the division bench. His appeal was decided on 29/04/2019

in following terms:-

"Having regard to the arguments aforesaid, this Court is not inclined to interfere with the order of the learned Single judge, but at the same time, relegate the appellant to the remedy of making a representation, with the undertaking to the aforesaid effect, to the Additional Chief Secretary, Department of Medical and Health, Government of Rajasthan, Jaipur, who shall in his wisdom consider and pass any order thereupon within 15 days of making such representation by the appellant.

The appeal is disposed of accordingly."

It can thus be seen that the division bench while refusing to

interfere with the order of the learned Single Judge, still relegated

the appellant for making a representation before the authorities.

This order of the division bench cannot be seen as confirmation of

the judgment of the learned Single Judge on the question of law.

There are some more orders passed by the learned Single

Judges merely relying on the earlier orders of the courts and

reference to them would not be necessary. It may however be

recorded that while granting permission to the in-service doctors

to pursue PG medical course under the interim or final orders the

courts have imposed a condition of execution a bond for serving

for five years after rejoining the duty on completion of the course.

It can thus be seen that the consideration of the issue at

hand so far has been by the Single Benches and there is no

authoritative pronouncement of the division bench of the High

Court on the legal issue arising. In this background we may now

refer to the statutory provisions applicable. Chapter-X contained in

Part-IV of the Rajasthan Civil Services Rules, 1951 (hereinafter to

be referred to as the said 'Rules of 1951') pertains to leave.

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Section I of Chapter-X pertains to general conditions of leave. Rule

57 falling in the said section provides for leave earned by duty.

This rule provides that leave is earned by duty only including

period spent in foreign service if contribution towards leave salary

is paid on account of such period. Rule 59 reads as under:-

"59. Leave cannot be claimed as right-- Leave cannot be claimed as a right. Discretion is reserved to the authority empowered to grant leave to refuse or revoke leave at any time according to the exigencies of the public service; provided that any leave applied for and due as preparatory to retirement shall not be refused by such authority and it shall be refused in writing by the Government or by such authority to whom powers have been delegated in this behalf. The nature of leave due and applied for by a Government servant cannot be altered at the option of the sanctioning authority, and so while it is open to the authority competent to refuse or revoke leave due and applied for under this rule, it is not open to him to alter the nature of such leave."

As per this rule study leave cannot be claimed as a right and

the discretion is reserved to the competent authority to grant

leave or to refuse or revoke the same according to the exigencies

of the public service. Rule 96 of the said Rules pertains to

extraordinary leave and provides that the extraordinary leave may

be granted to a government servant under the special

circumstances mentioned therein. Section VI of the Rules of 1951

pertains to study leave. Rule 110 falling under said Section

pertains to admissibility of study leave and reads as under:-

"110. Admissibility of study Leave.- (1) Study leave will be admissible to a permanent Government servant to pursue course of study or investigation of a scientific or technical nature which in the opinion of the sanctioning authority is considered necessary in the public interest for the working of the department in which he is employed. It will ordinarily be not granted to a Government servant who has completed 20 years of service or more.

(2) Notwithstanding the provisions contained in sub-rule (1) study leave will also be admissible to a temporary Government servant who has completed three years

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continuous service provided that the initial appointment has been made on the advice of the Rajasthan Public Service Commission in case the post falls within the purview of the Rajasthan Public Service Commission or the appointment has been made by the competent authority in accordance with the rules regulating recruitment and conditions of service framed under proviso to Article 309 of the Constitution or where such rules have not been framed the appointment has been made by the competent authority in accordance with the orders issued by the Government prescribing academic qualification, experience etc.

(3) In case of a temporary Government servant who has completed three years continuous service and is not covered by provisions of sub-rule (2) above extra ordinary leave may be granted for a period of two years for purpose of prosecuting higher studies certified to be in the public interest in relaxation of provision contained in rule 96 (b) of Rajasthan Service Rules.

Note-.-- 1. Diploma holders in any branch of engineering who are entitled to study leave under sub-rule (1) & (2) above may be granted study leave for a period of 24 months and in addition any kind of leave due and admissible to them upto a period of one year to enable them to obtain a degree in engineering. In case any other kind of leave is not due and admissible he may be granted extra ordinary leave not exceeding one year in addition to study leave admissible to him under this rule.

3. Temporary diploma holders in any branch of engineering who have completed continuous three years service and are not covered by the provisions contained in note 1 above may be granted extra ordinary leave for a period not exceeding three years for the purpose of obtaining a degree in Engineering from any University in relaxation of the provisions contained in rule 96 (b) of Rajasthan Service Rules."

Rule 112 pertains to condition for grant of study leave and

reads as under:-

"112. Condition for grant of Study Leave.- (1) Study leave shall be granted to enable a Government servant:-

"(i) to pursue a course of study or investigation of a scientific or technical nature either in India or outside India

(18 of 25) [SAW-911/2020]

provided that it is certified by the authority competent to sanction that the grant of study leave will be in the interest of the working of the department or the service to which the Government servant belongs. The authority competent to grant study leave shall ensure that it is not granted to a Government servant with such frequency work or to cause cadre difficulties owing to his as to remove him from contact with his regular absence on leave. A period of 12 months at one time should ordinarily be regarded as a suitable maximum and should not be exceeded save for exceptional reasons.

(ii) The total period of study leave during the entire period of service of a Government servant shall not be more than 24 months. It may be taken in one spell or more than one spell. Study leave may be combined with other kinds of leave, but in no case shall the grant of this leave in combination with leave, other than extra-ordinary leave, involve a total absence of more than twenty-eight months from the regular duties of the Government servant.

(2) Study Leave is extra leave on half pay and leave salary during such leave shall be regulated in accordance with rule 97(2)."

Rule 122 pertains to leave to probationers and reads as

under:-

"Leave to probationers. -Leave may be granted to a probationer if it is admissible under the leave rules which would be applicable to him, if he held his post substantively otherwise than on probation. If for any reason it is proposed to terminate the services of a probationer any leave which may be granted to him should not extend beyond date on which the probationary period as already sanctioned or extended expires, or any earlier date on which the services are terminated by the orders of an authority competent to appoint him."

Rule 122A reads as under:-

"122A (i) Probationer-trainee shall earn no leave during the period of probation.

(ii) Female probationer-trainees shall be granted maternity leave as per Rule 103 and 104".

Rule 122A thus provides that a probationer-trainee shall earn

no leave during the period of probation however female

probationer-trainee shall be granted maternity leave as per Rules.

(19 of 25) [SAW-911/2020]

We may now refer to the government instructions relied

upon by the Government Counsel. In a memorandum dated

22/05/2009 the Government of Rajasthan has issued certain

clarifications with respect to the grant of leave to a probationer-

trainee. It is recorded that as per Rule 122A of the Rules of 1951,

a probationer-trainee shall earn no leave during the probation

period. However, for grant of extraordinary leave, he may be

treated similar to a person appointed on temporary basis. It was

therefore decided that the appointing authority may sanction

extraordinary leave up to three months to a probationer-trainee

during the period of probation-training. If leave is to be granted

beyond said period, it would be in the exceptional circumstances,

with the concurrence of the Finance department and the period of

probation would be extended to that extent. In a memorandum

dated 11/06/2014 the question of granting extraordinary leave to

a probationer-trainee was again considered and to deal with the

request for extraordinary leave promptly authorities were

specifically empowered.

Few things which immediately emerge from the Rule position

are that as provided in Rule 59 leave cannot be claimed by an

employee as a right and the discretion is reserved with the

authority to grant, refuse or revoke a leave at any time "according

to the exigencies of the public services." This Rule is thus of

considerable importance. It empowers the government and the

competent authority acting for and on behalf of the government to

grant, refuse or even revoke a leave already granted and the

employee cannot claim a vested right to claim leave. At the same

time, such powers of the government are not unlimited or

unrestricted. The powers are to be exercised while granting,

(20 of 25) [SAW-911/2020]

refusing or revoking leave according to the exigencies of the

public service.

We are in agreement with the interpretation of Rule 122 and

122A made by the learned Single Judges while allowing the

petitions in the past that there is a clear distinction between leave

to a probationer and leave claimed by a probationer-trainee.

Leave to a probationer is governed by Rule 122 which provides

that leave may be granted to a probationer if it is admissible

under the leave Rules which would be applicable to him if he held

his post substantively otherwise than on probation. In plain terms

for the purpose of grant of leave, a probationer is put on the same

position as that of a substantive government post holder. As a

probationer he may not claim to be holding the post on

substantive basis for other purposes but for the purpose of leave,

he would be treated as such. His leave request will be considered

like any other regular permanent government servant. In

comparison Rule 122A provides that the probationer-trainee shall

earn no leave during the period of probation, only exception is

made in favour of a female probationer-trainee who would be

granted maternity leave as per the Rules. The stand of the

government therefore that an employee while on probation (and

not probation training) cannot claim study leave is not correct.

Only if the employee happens to be a probationer-trainee, by

virtue of Rule 122A such right cannot be asserted.

There is another indication for the conclusions that we have

reached above. As per sub-rule (1) of Rule 110, the study leave

would be admissible to a permanent government servant. As per

sub-rule (2) of Rule 110, notwithstanding contained in sub-rule

(1) study leave will also be admissible to a temporary government

(21 of 25) [SAW-911/2020]

servant who has completed three years of continuous service

provided his initial appointment is after following proper

procedure. This rule thus makes a clear distinction between a

permanent government servant and a temporary government

servant as regards the study leave. A probationer in view of Rule

122 for the purpose of study leave is bracketed with a permanent

government servant and not a temporary government servant.

This however is only a part of the picture. We may now refer

to provisions as per which the study leave can be granted. As

noted, Rule 110 pertains to admissibility of study leave. As per

sub-rule (1) study leave would be admissible to a permanent

government servant to pursue course of study or investigation of a

scientific or technical nature which in the opinion of the

sanctioning authority is considered necessary in the public interest

for the working of the department in which he is employed. Study

leave would be admissible to a permanent government servant by

virtue of Rule 122 which we have just referred. Even a probationer

can claim such study leave. Such study leave could be granted to

pursue course of study or investigation of a scientific or technical

nature "which in the opinion of the sanctioning authority is

considered necessary in the public interest for the working of the

department in which he is employed."

Rule 112 which pertains to grant of study leave inter-alia

provides that study leave may be granted to a government

servant to pursue a course of study or investigation or a scientific

and technical nature either in India or outside India provided that

it is certified by the authority competent to sanction that the grant

of study leave will be in the interest of working of the department

and the service which the government servant belongs.

(22 of 25) [SAW-911/2020]

The right of the government servant to seek study leave

therefore is hedged by several conditions. To begin with, as per

Rule 59 all leaves and not just study leave is within the

discretionary powers of the employer which discretion has to be

exercised in the exigencies of the public service. Coming to the

study leave in particular, as per sub-rule (1) of Rule 110 the study

leave would be granted only for pursuing course of study or

investigation of a scientific or technical nature which in the opinion

of the sanctioning authority is considered necessary in the public

interest for the working of the department in which the person is

employed. As per sub-rule (1) of Rule 112 such study leave shall

be granted only when it is certified by the authority competent to

sanction that the grant of study leave would be in the interest of

the working of the department or the service to which the

government servant belongs.

While considering the question of grant or refusal of study

leave the exigencies of public service is thus of paramount

consideration. When it comes to grant of study leave, this

requirement is taken to a further higher level of the sanctioning

authority being of the opinion that it is necessary in public interest

for working of the department in which the person is employed.

That such higher study would augment the skills of the employee

upon return is just one of the considerations before the

administration while considering the request for study leave. The

vacancy position in the cadre, the requirement of sufficient

employees to look after the service to be provided and range of

other factors shall have to be weighed by the administration as

enabled by Rules 59, 110 and 112 of the said Rules of 1951 before

the request for grant of study leave can be accepted. The

(23 of 25) [SAW-911/2020]

decisions of the learned Single Judges in favour of the petitioners

proceed only on the basis of interpretation of the Rules which do

not; and we believe correctly; prohibit a probationer from seeking

study leave. Right to apply for study leave is vastly different from

claiming vested right to be granted the leave. The Rules recognize

the right to apply, however before such an application is accepted,

the administration has a right, power and the duty to assess

relevant factors of interest of exigencies of the public service. If in

the opinion of the government, there is a severe shortage of the

doctors particularly in the rural areas and due to which

immediately after joining the service a doctor cannot be granted

study leave, in our opinion such a policy cannot be stated to be

unreasonable or ultravirus to the government's powers under the

Rules. As long as this policy is framed after conscious

consideration taking into account all relevant aspects of the

matter, as long as this policy is otherwise reasonable and as long

as this policy is applied uniformly without instances of pick and

choose, this Court would not mandate the government

administration to compulsorily grant leave to probationer doctors

to pursue higher studies.

We have noted that some of the courts have, while granting

such permission either under the interim order or final orders

imposed a condition of service for minimum five years after

rejoining the active duty upon completion of the studies. We

wonder what would happen if the government desires to terminate

the service during probation on account of unsatisfactory service.

A condition to serve a full length of a specified period would

perhaps be incongruous with the right of the employer to

terminate the services of a probationer before confirmation. Be

(24 of 25) [SAW-911/2020]

that as it may, in our interpretation unless and until the

government decisions suffer from irrationality, illegality or legal or

factual malafides, we would not direct the government to grant

study leave to a probationer contrary to the government policy.

So far as probationer-trainees are concerned, however, this

position is vitally different. Rule 122A in clear terms lays down

that a probationer-trainee during the training period shall earn no

leave. It was on account of this Rule that the government had

issued the two clarifications vide memorandum dated 22/05/2009

and 11/06/2014 while recording that even probationer-trainees

are being granted study leave, it was clarified that the same was

to permissible and the probationer-trainee would be entitled only

to extraordinary leave up to a period of three months. If any

further leave is to be granted the same would be in rare situation,

would be subject to approval of the Finance department and the

probation period would be extended to that extent. The above

discussion therefore on the analysis and interpretation of the

Rules which we have made in the context of a probationer would

not apply to an employee who is a probationer-trainee.

Before closing we may clarify that if in any of the cases

before us the concerned employee pursuant to the order of the

court has already been granted study leave and joined the course,

nothing stated in this judgment would disturb such position and

the permission granted would not be recalled. It is clarified that

even those cases which may not be before us but where similar

situation is obtaining, this judgment will not be cited to disturb

such position.

                                                                                (25 of 25)                 [SAW-911/2020]



                                         In the     result, subject         to    above observations,           all   the

government appeals are allowed. Respective judgments of the

learned Single Judge are reversed. Writ petitions stand dismissed.

(UMA SHANKER VYAS),J (AKIL KURESHI),CJ

ANIL KUMAR GOYAL / BM GANDHI-88-90 & 95-108.

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