Dr. Sourabh Kumar Sharma S/O Shri ... vs State Of Rajasthan
2022 Latest Caselaw 1167 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           D.B. Special Appeal Writ No. 291/2022

Dr. Sourabh Kumar Sharma S/o Shri Lalit Kumar Sharma, Aged
About 28 Years, Resident Of Post Office Nayan Via Amarsar,
Tehsil Shahpura, Distt. Jaipur.
                                                               ----Appellant
                                  Versus
1.     State Of Rajasthan, Through The Principal Secretary,
       Medical And Health Department, Government Secretariat,
       Jaipur (Raj.)
2.     The Principal Secretary, Medical Education Department,
       Government Secretariat, Jaipur (Raj.)
3.     The Director (Public And Health), Directorate Of Medical
       And Health Services, Tilak Marg, C-Scheme, Jaipur (Raj.)
4.     The Chairman, Neet Pg Admission / Counseling Board-
       2021, Government Dental College (Ruhs College Of
       Dental Sciences), Subhash Nagar, Behind T.b. Hospital,
       Jaipur, Rajasthan (Email- Rajpgmedical2021.com)
5.     National Medical Commission, Through Its Secretary,
       Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi
6.     Dr. Deepak Kumar Garg S/o Shri Omprakash Garg, Aged
       About 26 Years, Resident Of Plot No. 186, Near Sanskar
       Bharti School, Shiv Colony, Dausa.
7.     Dr. Mukesh Kumar S/o Shri Hanuman Singh, Aged About
       25 Years, Resident Of Village Dabri Chhoti, Post Dheerwas
       Bara, Tehsil Taranagar, District Churu
8.     Dr. Ritesh Kumar Yadav S/o Shri Satyaveer Yadav, Aged
       About 28 Years, Resident Of Chc Badod, Behror, Alwar.
9.     Dr. Sahil Khan S/o Mohd. Salim, Aged About 24 Years,
       Resident Of Behind Subhash Petrol Pump, Near R.k. Public
       School, Bikaner
10.    Dr. Krishan Yadav S/o Shri Tara Chand Yadav, Aged About
       27 Years, Resident Of Vpo Achrol, Near Tejaji Temple,
       Tehsil Amer, Jaipur
11.    Dr. Tania Bathala D/o Shri Vijay Kumar Bathala, Aged
       About 25 Years, Resident Of 61-B Block, Ward No. 6, Shri
       Karanpur, District Sriganganagar



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12.    Dr. Shubham Somra S/o Shri Rajesh Somra, Aged About
       25 Years, Resident Of Vpo Moj Sadan, Tehsil Buhana,
       District Jhunjhunu
13.    Dr. Abhishek Panwar S/o Shri Satya Narayan Panwar,
       Aged About 27 Years, Resident Of Behind Rampuria
       College, Near Mohta Well Bikaner
14.    Dr. Shweta Kaswa D/o Shri Kishor Singh, Aged About 26
       Years, Resident Of Jagdamba Bhawan, Dr. Darshan
       Bhargawa Ki Gali, Samarthpura, Piprali Road, Sikar
15.    Dr. Mohammad Ali S/o Mohammed Haroon, Aged About
       30 Years, Resident Of Madni Street, Old Panchayat
       Bhawan, Basni Behlima, Nagaur
16.    Dr. Manohar Kumar Balach S/o Shri Kewal Ram, Aged
       About 25 Years, Resident Of Village Post Punjasar, Tehsil
       Serwa, District Barmer
17.    Dr. Abhilasha Revaria S/o Shri Ashok Revaria, Aged About
       26 Years, Resident Of Plot No. 98-C, Near 61/165, Sector-
       6, Pratap Nagar, Jaipur
18.    Dr. Usha Rao D/o Shri Uda Ram Rao, Aged About 26
       Years, Resident Of 2/392, Kudi Bhagtasni Housing Board,
       Jodhpur
19.    Dr. Sukirti Sarma D/o Shri Girdhar Gopal Sharma, Aged
       About 24 Years, Resident Of E-273, Shanti Kunj, Bank
       Colony, Murlipura Scheme, Murlipura, Jaipur
20.    Dr. Jyoti Meena D/o Shri Kanhaiya Lal Meena, Aged About
       26 Years, Resident Of B-44, Mayur Vihar, Jaipur Road,
       Bikaner
21.    Dr. Jaiprakash S/o Shri Bhagwana Ram, Aged About 25
       Years, Resident Of Village Shri Rampura, Post Malam
       Singh Ki Sidd, Tehsil Bap, District Jodhpur
                                                                ----Respondents

For Appellant(s) : Mr. Ashish Sharma Upadhyay through VC For Respondent(s) :

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment / Order

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01/02/2022

1. Defect/s pointed out by the Office is/are waived

2. Appellant has preferred this Special Appeal (Writ) aggrieved

by the impugned order dated 20.01.2022 passed by the Single

Judge on the ground that the learned Single Judge has wrongly

interpreted the cut off date i.e. 30.09.2021 for the purpose of

counting the period of completion of probation.

3. We have heard the counsel for the appellant and perused the

record and the impugned order passed by the learned Single

Judge.

4. The learned Single Judge has decided the Writ Petition by

observing that:-

"This Court finds that the petitioners who have not completed the probation period of one year upto 30.09.2021, have been rendered ineligible or dis-entitled for grant of study leave, as the State Government has decided to fix the cut off date as30.09.2021.

This Court finds that the State Government has to fix a date by keeping the relevant consideration in mind for counting the one year of probation period and in the present facts of the case, if the State Government has taken 30.09.2021 as the cut off date, no fault can be found with such decision.

This Court finds that completion of probation period by different in-service Doctors may vary from time to time as in-service Doctors are appointed by the State Government on different dates by issuing different orders. The completion of one year of probation period will ultimately come to an end on a particular date and such a date for different candidates, cannot be a shifting date for judging the eligibility for the purpose of study leave.

This Court finds that if for the purpose of counting the experience of 1/2/3 years, for the purpose of grant of bonus marks, date has been fixed by the State Government

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as30.09.2021 and all those Doctors who have gained experience upto 30.09.2021, then such in-service Doctors are considered for grant of bonus marks. The State Government accordingly thought it proper that if the experience of in-service Doctors is counted upto 30.09.2021, the candidates who have completed their one year of probation upto 30.09.2021, have accordingly been considered for the purpose of grant of study leave. The submission of the learned counsel for the petitioners that the Division Bench has already held that the reserved vacancies on account of availing study leave by the in- service Doctors, need to be kept in mind by the State Government and as such they are required to make appointments, suffice it to say by this Court that creation of posts by the State Government or filling it by regular method or by urgent temporary appointment, is the sole prerogative of the State Government which they are required to do.

This Court while considering the question of grant of NOC and study leave, cannot direct the State Government that it should leave the vacancies or they should allow the in- service Doctors immediately to join the higher studies. The submission of learned counsel for the petitioners that scarcity of Doctors or the situation of COVID-19 are not valid reasons for denying study leave, this Court finds that the Division Bench of this Court in the case of State of Rajasthan & Ors. Versus Dr. Kamaldeep Khatri (supra), has already dealt with the issue and found that if the State Government has found the shortage of Doctors in the rural areas, denial of study leave will not be a unreasonable decision of the State Government.

The submission of learned counsel for the petitioners that the petitioners who have their meritorious claim in admission and if they are not permitted to get No Objection Certificate and further not granted study leave, they will be forced to resign from their service, this Court finds that if the petitioners are entitled for any other leave like extraordinary leaves, etc., it is always open for the candidate whether he wants to go for higher studies or still wants to continue with the job.

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This Court finds substance in the submissions of learned counsel for the respondents that the State Government has taken a conscious decision this year to keep the cut off date of30.09.2021 by having a nexus with regard to the experience of in-service Doctors for all other purposes and as such this Court does not find any fault or error in the decision taken by the State Government. Accordingly, these writ petitions being devoid of force are dismissed."

5. It is not in dispute that the appellant has not completed his

period of probation before the cut off date i.e. 30.09.2021. Hence

he is rightly found to be ineligible.

6. We do not find any infirmity or illegality in the impugned

order passed by the Single Judge. Hence, this Special Appeal

(Writ) stands dismissed. Stay application also stands disposed of.

(ANOOP KUMAR DHAND),J (PANKAJ BHANDARI),J

ARTI SHARMA /166

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