Dr. Akanksha Arya D/O Shri Pooran ... vs State Of Rajasthan
2022 Latest Caselaw 501 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 648/2022
1.    Dr Sonam Taji D/o Shri Ramesh Chand Meena, Aged
      About 24 Years, Resident Of Sachar Vihar Colony, Model
      Town, Malviya Nagar, Jaipur.
2.    Dr. Avinash Kumawat S/o Shri Maliram Kumawat, Aged
      About 28 Years, Resident Of Kheda Wail Dhani, V & P
      Hingonia, Via Jobner, Jaipur.
3.    Dr. Manveer Kaur D/o Shri Amar Singh, Aged About 25
      Years, Resident Of C-129, Kanta Khaturiya Colony,
      Bikaner.
4.    Dr. Pooja Hathiwal D/o Shri Dhankar Lal Hathiwal, Aged
      About 26 Years, Resident Of House No. 5, Gali No. 9,
      Shivaji Colony, Newai, Tonk.
5.    Dr. Vandana Badara D/o Shri Purushottam Badara, Aged
      About 27 Years, Resident Of 2-E-335, Indira Gandhi
      Nagar, Jagatpura, Jaipur.                        ----Petitioners
                                Versus
1.    State Of Rajasthan, Through The Principal Secretary,
      Medical & Health Department, Government Secretariat,
      Jaipur (Raj.)
2.    The Principal Secretary, Medical Education Department,
      Government Secretariat, Jaipur (Raj.)
3.    The Director (Public & Health), Directorate Of Medical &
      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
5.    National Medical Commission, Through Its Secretary,
      Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi
                                                             ----Respondents

Connected With S.B. Civil Writ Petition No. 90/2022

1. 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

(2 of 16) [CW-648/2022]

2. Dr. Mukesh Kumar S/o Shri Hanuman Singh, Aged About 25 Years, Resident Of Village Dabri Chhoti, Post Dheerwas Bara, Tehsil Taranagar, District Churu

3. 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

4. Dr. Ritesh Kumar Yadav S/o Shri Satyaveer Yadav, Aged About 28 Years, Resident Of CHC Badod, Behror, Alwar

5. Dr. Sahil Khan S/o Mohd. Salim, Aged About 24 Years, Resident Of Behind Subhash Petrol Pump, Near R.K. Public School, Bikaner

6. Dr. Krishan Yadav S/o Shri Tara Chand Yadav, Aged About 27 Years, Resident Of VPO Achrol, Near Tejaji Temple, Tehsil Amer, Jaipur

7. 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

8. Dr. Shubham Somra S/o Shri Rajesh Somra, Aged About 25 Years, Resident Of VPO Moj Sadan, Tehsil Buhana, District Jhunjhunu

9. Dr. Abhishek Panwar S/o Shri Satya Narayan Panwar, Aged About 27 Years, Resident Of Behind Rampuria College, Near Mohta Well Bikaner

10. 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

11. Dr. Mohammad Ali S/o Mohammed Haroon, Aged About 30 Years, Resident Of Madni Street, Old Panchayat Bhawan, Basni Behlima, Nagaur

12. Dr. Manohar Kumar Balach S/o Shri Kewal Ram, Aged About 25 Years, Resident Of Village Post Punjasar, Tehsil Serwa, District Barmer

13. 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

14. Dr. Usha Rao D/o Shri Uda Ram Rao, Aged About 26 Years, Resident Of 2/392, Kudi Bhagtasni Housing Board, Jodhpur

15. Dr. Sukirti Sarma D/o Shri Girdhar Gopal Sharma, Aged About 24 Years, Resident Of E-273, Shanti Kunj, Bank

(3 of 16) [CW-648/2022]

Colony, Murlipura Scheme, Murlipura, Jaipur

16. Dr. Jyoti Meena D/o Shri Kanhaiya Lal Meena, Aged About 26 Years, Resident Of B-44, Mayur Vihar, Jaipur Road, Bikaner

17. 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 ----Petitioners 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 & 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

----Respondents S.B. Civil Writ Petition No. 854/2022 Dr. Dimple Kanwar D/o Shri Nand Singh Rathore, Aged About 24 Years, Resident Of Plot No. 18A, Vidyut Nagar-A, Ajmer Road, Jaipur (Raj.) ----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Medical & Health Department, Government Secretariat, Jaipur (Raj.)

2. The Principal Secretary, Medical Education Department, Government Secretariat, Jaipur (Raj.)

3. The Director (Public & 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

5. National Medical Commission, Through Its Secretary,

(4 of 16) [CW-648/2022]

Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi

----Respondents

S.B. Civil Writ Petition No. 1051/2022

Dr. Akanksha Arya D/o Shri Pooran Chand, Aged About 25 Years, Resident Of Village Gadli, Post Office Manka, Tehsil Mundawar, District Alwar- 301401(Raj.) ----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Medical & Health Department, Government Secretariat, Jaipur (Raj.)

2. The Principal Secretary, Medical Education Department, Government Secretariat, Jaipur (Raj.)

3. The Director (Public & Health), Directorate Of Medical And & 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

5. National Medical Commission, Through Its Secretary, Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi

----Respondents

For Petitioner(s) : Mr. Tanveer Ahamad, Adv. For Respondent(s) : Dr. Vibhuti Bhushan Sharma, Additional Advocate General with Mr. Harshal Tholia, Adv.

Mr. Angad Mirdha, Adv.

[all through video conferencing]

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

20/01/2022

Since a common question is involved in these writ petitions,

as such with the consent of learned counsel for the parties, these

writ petitions are decided by this common order.

(5 of 16) [CW-648/2022]

These writ petitions have been filed by the in-service Doctors

working in the services of the Government of Rajasthan and all

the petitioners after participating in NEET (PG) 2021 are desirous

of issuance of No Objection Certificate (NOC) by the State

Government for pursuing their PG Medical Course/DNB Course and

they further claim their entitlement for study leave while

undergoing the said course.

The petitioners have challenged the circular dated

03.10.2019, wherein clause No.(3) provides that during probation

period, the Doctors will not be issued No Objection Certificate

while working and only on completion of the probation period

satisfactorily such Doctors can apply for grant of study leave.

The petitioners feel aggrieved because the period of

probation is taken to be completed by the State Government only

after one year and further cut off date on 30.09.2021 has also

been prescribed by the State Government for considering such

cases.

The petitioners have pleaded that after completion of

probation period, their entitlement flows for the purpose of

issuance of No Objection Certificate for pursuing higher studies

and further they become entitled for grant of study leave, as per

the provisions contained in the Rajasthan Services Rules, 1951.

This Court finds from the pleadings of the parties that the

petitioners were appointed as Medical Officer on probation for a

period of one year on a fixed remuneration in December, 2020.

The petitioners have pleaded that after completion of their one

year of probation period, they all have been fixed in regular pay

scale by the State Government and as such they have become the

confirmed employees on completion of one year of service.

(6 of 16) [CW-648/2022]

Learned counsel for the petitioner-Mr. Tanveer Ahamad

submitted that the Division Bench of this Court in D.B. Civil Writ

Petition No.11294/2017 (Suo Moto Versus State of

Rajasthan & Ors.) & other connected writ petition, has given

directions from time to time and the Division Bench while passing

the order dated 22.04.2019 has taken into account the availability

of Doctors who joined PG Courses and such joining of the Doctors

results into PG leave reserve posts and the State Government has

been directed not to keep such posts of Doctors vacant and the

Chief Secretary of the State was directed to take a policy decision

with regard to creation of PG leave reserve posts as large number

of Medical Officers on being admitted to undergo PG

Diploma/Degree Course, remained away from their duties.

Learned counsel for the petitioners refers to para 7 and para

5 of the directions given by the Division Bench vide its order dated

22.04.2019 in Suo Moto Versus State of Rajasthan & Ors. (supra),

which is reproduced as under:-

"Learned Additional Advocate General, on instructions, submitted that the administrative department has moved the finance department for creating the PG leave reserve posts so that in the event of regularly appointed medical officers proceeding to study the PG Courses, the post against which he/she is applied does not remain vacant. On being asked by the Court, he further submitted that administrative department would require permission of the Finance Department to initiate the process of recruitment on vacant posts of medical/paramedical and nursing staff.

(7 of 16) [CW-648/2022]

"(5) That the respondent State, especially the Chief Secretary of the State, shall take a policy decision with regard to creation of PG reserved posts, on the proposal sent by the administrative department, as large number of medical officers, on being admitted to undergo PG diploma/degree course, remain away from their duties of the place where they are posted merely for two to three years and the posts on which they are posted remain unfilled for all this time causing tremendous amount of inconvenience to the people of that area."

Learned counsel for the petitioners submitted that the

situation of sending the Doctors for higher studies is well within

the knowledge of the State Government and as such the State

Government is obliged to make such arrangements for filling the

posts of Doctors which become available on joining of in-service

Doctors for higher studies including the petitioners.

Learned counsel for the petitioners submitted that State

Government has also taken a policy decision of considering the

probationers for the purpose of their completion of one year upto

30.09.2021 and the said date is arbitrary and discriminatory.

Learned counsel for the petitioners submitted that the State

may take a policy decision of giving bonus marks for rendering

services in rural areas upto a particular date, however, the same

date cannot be made applicable in respect of counting the

probation period upto 30.09.2021.

Learned counsel for the petitioners submitted that the State

Government while filing reply has also come out with facts of

scarcity of Doctors in the rural areas and COVID-19 situation

(8 of 16) [CW-648/2022]

prevailing in the State and such ground cannot be termed

germane to the issuance of grant of study leave to the petitioners.

Learned counsel for the petitioners submitted that the

scarcity of Doctors in rural areas and COVID-19 situation was also

prevailing in the past years and yet the State Government has

granted study leave to the in-service Doctors and issued No

Objection Certificate to the Doctors accordingly.

Learned counsel for the petitioners further submitted that

the issue of grant of study leave to probationers was also duly

considered by the Division Bench of this Court in D.B. Special

Appeal (Writ) No.911/2020 (State of Rajasthan & Ors.

Versus Dr. Kamaldeep Khatri) and other connected appeals,

decided vide common order dated 09.12.2021.

Learned counsel for the petitioners submitted that right to

apply for study leave cannot be denied by the State Government

and the State Government is under obligation to consider the

grant of study leave to the petitioners as they are now confirmed

employees after successful completion of one year probation

period.

Learned counsel for the petitioners further submitted that

the petitioners after completion of their PG Courses have decided

to execute the requisite bond to serve the State Government and

their services would be utilized by the State Government after

pursing higher studies, in medical field and skill achieved by the

present petitioners, will be of great importance to the general

public of State of Rajasthan and as such the State Government

should not take such restricted view to oust the petitioners to

acquire the higher qualification.

(9 of 16) [CW-648/2022]

Learned counsel for the petitioners further submitted that

the State Government by not issuing No Objection Certificate and

not granting study leave is in fact creating a situation where the

meritorious candidates like petitioners would either be forced to

resign from service or they will be required to apply for

extraordinary leave, if permissible under the Rules.

Learned counsel for the petitioners submitted that this action

of the State Government is in no manner conducive to service

conditions of the petitioners as well as the welfare of the public of

the State.

Learned counsel for the petitioners has also placed reliance

on the directions made by the Division Bench of this Court in the

case of Suo Moto Versus State of Rajasthan & Ors. (supra) decided

on 12.07.2019 where again directions have been reiterated to get

the sanction from the Administrative Department of creating the

posts of Medical Officers falling vacant on account of in-service

Doctors, joining to pursue their PG Course.

Learned counsel-Mr. Harshal Tholia appearing for the State

submitted that the writ petitions filed by the petitioners do not

require indulgence from this Court.

Learned counsel-Mr. Harshal Tholia submitted that the State

Government has issued notification dated 08.01.2022 whereby it

has been made clear that those in-service Doctors who are

working in Remote/Difficult and Rural Areas, their service of one

year was to be counted initially upto 30.04.2021, however, the

same has been amended and now such period of one year is to be

counted from 30.09.2021.

Learned counsel submitted that the State has taken a policy

decision that counting the service in Remote/Difficult and Rural

(10 of 16) [CW-648/2022]

Areas will be only upto 30.09.2021 and accordingly, all those in-

service Doctors who have completed their one year of probation

upto 30.09.2021, their cases may be considered for the purpose

of relieving them by issuing No Objection Certificate as well as for

granting them study leave as per rules.

Learned counsel further submitted that on 08.01.2022 itself,

a letter has been written to the different CMHOs and other

Authorities concerned, whereby now the certificate has to be

obtained by the in-service Doctors concerned asking the

Authorities to give experience certificate of the in-service Doctors

upto 30.09.2021.

Learned counsel submitted that in the said letter clause No.

(3), provides that those Doctors who have completed their

probation period upto 30.09.2021, only their forms are to be

forwarded by the Authorities to the Higher Authorities.

Learned counsel submitted that the cut off date of

completion of probation period has been fixed by the State

Government as 30.09.2021 and as such the petitioners who have

not completed their period of probation upto 30.09.2021, are not

entitled for issuance of No Objection Certificate or for grant of

study leave.

Learned counsel for the respondents also submitted that the

applications submitted by the petitioners for grant of study leave

have been dealt with by the respondents and accordingly letters

have been issued to different persons including the petitioners

vide letter dated 18.01.2022 informing them that as per circular

dated 03.10.2019 and in particular clause No.(3), the Doctors who

have not completed their probation period of one year, such

Doctors will not be considered for grant of study leave and further

(11 of 16) [CW-648/2022]

State has additionally informed that since there is a scarcity of

Doctors, COVID-19 situation and service of the in-service Doctors

being of emergent nature, the probationer in-service Doctors will

not be granted study leave.

Learned counsel submitted that in view of Policy Decision

taken by the State Government, after keeping in mind the

relevant consideration, this Court will be loath in interfering in

such policy decision.

Learned counsel Mr. Harshal Tholia further submitted that

grant of study leave is not a vested right and the right to apply for

the study leave has not been denied to any of the applicant,

however, if the candidates do not fulfill the requisite criteria for

issuance of No Objection Certificate and study leave, no such

benefit can be claimed as a matter of right.

Learned counsel further submitted that the Division Bench

while deciding the case of State of Rajasthan & Ors. Versus Dr.

Kamaldeep Khatri (supra), has clearly dealt with the issue of grant

of study leave to the in-service Doctors/probationers and has

upheld the decision of the State Government by holding that in

public interest if there is a shortage of Doctors in Rural Areas,

then such in-service Doctors who claim study leave can be denied

grant of study leave and decision of the State Government cannot

be termed as unreasonable or ultra vires. The relevant portion of

the order of the Division Bench is quoted as hereunder:-

"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

(12 of 16) [CW-648/2022]

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

(13 of 16) [CW-648/2022]

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. "

Learned counsel further submitted that as far as fixing of cut

off date by the State Government, for considering completion of

probation period, as 30.09.2021 is concerned, the same cannot be

termed as arbitrary and if the State Government has made a valid

classification, such decision cannot be termed as arbitrary,

violative of Article 14 of the Constitution of India.

Learned counsel-Mr. Harshal Tholia places reliance on the

judgment reported in (1994) 4 SCC 212 (Union of India &

Anr. Versus Sudhir Kumar Jaiswal), (1990) 3 SCC 368

(State of Bihar & Ors. Versus Ramjee Prasad & Ors.),

(2004) 2 SCC 76 (Ramrao & Ors. Versus All India Backward

Class Bank Employees Welfare Association & Ors.) and

(1996) 10 SCC 536 (University Grants Commission Versus

Sadhana Chaudhary & Ors. & connected matter Anil Kumar

& Ors. Versus State of Bihar & Ors.).

Learned counsel-Mr. Harshal Tholia submitted that as far as

grant of leave to any employee is concerned, the Apex Court in

the case of State of Punjab & Ors. Versus Dr. Sanjay Kumar

Bansal, (2009) 15 SCC 168 has also held that the exigency of

service has to be considered by the Administration about shortage

of Doctors and if such leave is not granted, the decision cannot be

termed as arbitrary.

Learned counsel on the strength of the said judgment

submitted that date which has been fixed by the State

Government as 30.09.2021, no foul play has been done by the

(14 of 16) [CW-648/2022]

State Government and as such the petitioners cannot be granted

the relief, as has been claimed by them.

Learned counsel-Mr. Angad Mirdha appearing for the

respondent-National Medical Commission has submitted that the

grant of study leave is primarily the field occupied by the State

Government for considering the cases of in-service Doctors and if

the State Government has taken a policy decision, this Court is

required to adjudicate the issue with regard to the grant of study

leave, keeping in mind the stand taken by the State Government.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

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 as

30.09.2021.

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.

(15 of 16) [CW-648/2022]

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 as

30.09.2021 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

(16 of 16) [CW-648/2022]

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.

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 of

30.09.2021 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.

A copy of this order be separately placed in each petition.

(ASHOK KUMAR GAUR),J

Ramesh Vaishnav/86/51-53 & 58

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