Principal Secretary, Department ... vs Dr. Mrs Maina Raigar D/O Shri Babu ...
2022 Latest Caselaw 1411 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

        D.B. Special Appeal Writ No. 1015/2021

1.   Principal Secretary, Department Of Medical And Health,
     Government Of Rajasthan, Govt. Secretariat, Jaipur,
     Rajasthan.
2.   Director (Public Health) Department Of Medical And
     Health, Swasthaya Bhawan, Tilak Marg, C-Scheme, Jaipur,
     Rajasthan.
3.   Principal, Sms Medical College And Controller Of The
     Attached Hospitals, Jaipur, Rajasthan.
                                                                    ----Appellants
                                  Versus
1.   Dr. Mrs Maina Raigar D/o Shri Babu Lal Raiger, W/o Sh.
     Pritam   Raj,     Resident       Of     Plot    No.       1,   Raiger   Basti,
     Mansinghpura, Tonk Road, Jaipur, Rajasthan. Pursuing Pg
     M D Microbiology, At Sms Medical College, Jaipur
2.   Rajasthan Public Service Commission, Ajmer Rajasthan,
     Through Secretary.
                                                                ----Respondents

with D.B. Special Appeal Writ No. 1017/2021

1. Principal Secretary, Department Of Medical And Health, Government Of Rajasthan, Govt. Secretariat, Jaipur, Rajasthan.

2. Director (Public Health), Department Of Medical And Health, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur Rajasthan.

3. Secretary To The Government, Department Of Medical Education Department, Govt. Of Rajasthan, Secretariat, Jaipur, Rajasthan.

4. Additional Director (Admn.), Directorate Of Medical Education, Chikitsa Shiksha Bhawan, Govind Marg, Jaipur, Rajasthan.

5. Principal, Sms Medical College And Controller Of The Attached Hospitals, Jaipur, Rajasthan.

                                                                    ----Appellants
                                  Versus


                                          (2 of 7)                   [SAW-1015/2021]

1. Dr. Sanjay Jarwal S/o Shri Badri Lal Jarwal, Aged About 31 Years, R/o S-210-211, Shopping Centre, Mahesh Nagar, 80 Feet Road, Jaipur, Rajasthan. Pursuing Pg Md Anesthesia At Sms Medical College, Jaipur.

2. Rajasthan Public Service Commission, Ajmer, Rajasthan Through Secretary.

                                                                 ----Respondents


For Appellant(s)            :    Mr. Harshal Tholia on behalf of
                                 Dr. V.B. Sharma (AAG)
For Respondent(s)           :

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

10/02/2022

1. These appeals are filed against the judgment of the learned

Single Judge dated 18.01.2021. Since facts are similar in both the

appeals we may record them from those arising in D.B. Civil

Special Appeal No.1015/2021 which is connected with S.B. Civil

Writ Petition No.9703/2018. Petitioner Dr. Maina Raigar was

selected and offered appointment as Senior Demonstrator

(Pathology) by the State Government on 15.02.2017. At that time

she was pursuing her higher studies of post-graduation. She had

applied to the authorities for extension of joining time. The

Government on its own granted extension of six months. Since

she was not satisfied with this extension she approached the High

Court. By an interim order dated 21.08.2017 the Single Judge had

directed the respondents to maintain status quo with respect to

the petitioner. This interim protection continued till final disposal of

the writ petition. By the impugned order the learned Single Judge

disposed of the petition in terms of the orders passed in cases of

(3 of 7) [SAW-1015/2021]

Chandar Prakash Gunawat (Dr.) Vs. State of Rajasthan,

reported in 2014(2) RLW(Raj.) 1730 and Dr. Reenu

Choudhary Vs. State of Rajasthan (SB Civil Writ Petition

No.19964/2017). The portion of the judgment in case of Dr.

Reenu Choudhary was reproduced. Against this order the State

has filed this appeal. Facts in connected appeal are substantially

similar.

2. Having heard learned Government counsel in the facts of the

present case we are not inclined to interfere. This is so because as

noted after initial extension of joining time by the Government for

six months in the writ petition the Single Judge had protected the

petitioners by issuing order of status quo. This continued till the

petitions were disposed of. At this late stage, it would serve no

purpose in reversing the order of the learned Single Judge. Under

substantially similar circumstances the Single Judge in case of

Chandar Prakash Gunawat had issued necessary directions for not

cancelling appointment of petitioner concerned. This was carried in

appeal. The Division Bench had also upheld this judgment. In the

appellate order dated 21.07.2014 the Division Bench had also

noticed these peculiar facts.

3. Having said that we share the anxiety of the Government

advocate that Court should not follow these orders and judgments

and create a situation where after issuing interim protection, the

final orders are passed on the ground that under interim

protection the time for joining duty stands extended. We would

examine these questions in an appropriate case. However prima

facie it does appear that a person who has been selected and

appointed on a public post, has a duty to join such post within the

time permitted or extended. It would be questionable whether

(4 of 7) [SAW-1015/2021]

such a person has a vested right to insist that the offer of

appointment be kept in abeyance for an indefinite period of time

of several years till he or she completes higher studies which he or

she is pursuing. The requirement of administration to fill up the

posts would have to be taken into consideration and essentially

would be for the administration to exercise the discretion to

extend or not the extended time for joining duty.

4. Learned Government advocate may also be correct in

contending that such petitioners cannot be equated with regular

Government servants who can subject to certain terms and

conditions as provided in the service rules asked for study leave.

No leave can be granted to a person who is yet to join

Government duty. Even in case of the study leave to the newly

engaged doctors to pursue their post graduation courses, the

Division Bench of this Court in a recent judgment dated

09.12.2021 in D.B. Special Appeal (Writ) No.911/2020-State

of Rajasthan and Ors. Vs. Dr. Kamaldeep Khatri and other

connected matters has made following observations:-

"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

(5 of 7) [SAW-1015/2021]

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 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.

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

(6 of 7) [SAW-1015/2021]

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 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

(7 of 7) [SAW-1015/2021]

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 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."

5. These are prima facie observations and we would go into

these issues in detail in appropriate proceedings.

6. With these observations both the appeals are disposed of. All

pending applications stand disposed of.

                                   (SUDESH BANSAL),J                                                  (AKIL KURESHI),CJ

                                   KAMLESH KUMAR /4 & 5









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