Rajasthan High Court

Himmat Singh Andors vs State Medical And Healthors on 30 November, 2022

Bench: Ashok Kumar Gaur

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 17843/2015

1.   Himmat Singh S/o Manohar Lal, aged about 30 years, R/o
Village & Post Takha Tehsil Kumher District Bharatpur at present
R/o House No.114, Ward No.42, Near Collector Residence,
Jattawali Gali, Sanjay Nagar, Bharatpur.
2.   Naresh Chand S/o Shri Ramswaroop aged about 35 years,
R/o Near Maila Medan, Khatik Mohalla, Deeg (Bharatpur).
3.   Pradeep Kumar S/o Shri Rameshwar Dayal Sharma, aged
about 36 years, R/o Opp. Sulabh Complex, Gulal Kund, Mathura
Gate, Bharatpur.
                                                                   ----Petitioner
                                   Versus


1.   The State of Rajasthan, through its Principal Secretary,
Medical And Health, Rajasthan Secretariat, Jaipur.
2. Dy. Director (Admn.) Medical & Health Services, Rajasthan,
Jaipur.
3. Chief Medical & Health Officer, Bharatpur.
                                                                ----Respondents

For Petitioner(s) : Mrs.Rekha Dixit, Adv.

For Respondent(s) : Dr.V.B.Sharma, AAG with Mr.Harshal Tholia, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

30/11/2022

The instant writ petition has been filed by the petitioners

challenging the order dated 25.08.2015, whereby the respondents

have rejected the application of the petitioners for grant of study

leave for pursuing General Nursing and Midwifery (GNM) Course,

as the petitioners belong to Class-IV cadre.

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The petitioners have further sought a direction to sanction

them two years study leave and give all the monetary and

consequential benefits claimed as per Rule 112 (1) of the

Rajasthan Service Rules, 1951.

Learned counsel for the petitioner submitted that all the

three petitioners were initially appointed on the post of Class-IV

employee in Medical and Health Department and they participated

in the selection process for GNM Course in the year 2014-15 and

further all the petitioners were allotted their respective centres for

training course.

Learned counsel for the petitioners submitted that the

petitioners were relieved by the Controlling Authority for Training

Course and as such the petitioners while undergoing the course,

filed applications for grant of study leave. The petitioners have

placed on record the orders issued by the Chief Medical & Health

Officer, Bharatpur dated 25.02.2015, requesting the Additional

Director (Administration) Medical & Health Services, Jaipur to

grant study leave to the petitioners.

Learned counsel for the petitioners submitted that by

impugned order dated 25.08.2015, the respondents came to the

conclusion that since the petitioners are working in the cadre of

Class-IV and as such they cannot be granted the benefit of study

leave for pursuing GNM Course.

Learned counsel for the petitioners submitted that the

respondents have adopted discriminatory attitude towards the

petitioners, as other similarly situated Class-IV employee were

granted the benefit of study leave and as such example of one

person - Mukesh Chand has been placed on record by filing an

order dated 02.04.2012.

(3 of 8) [CW-17843/2015]

Learned counsel for the petitioner has made following

submissions:-

1. The order dated 25.08.2015 passed by the respondents is

arbitrary, illegal and discriminatory order.

2. The impugned order has been passed by ignoring the

requirement, as has been prescribed in Rule 112 of RSR Rules, as

the grant of study leave to the petitioners is in the interest of

working of the Department and as such the knowledge, which has

been acquired by the petitioners will ultimately be useful for all

Department including the Department concerned.

3. The petitioners after rendering 6 years of service, if decided

to acquire higher qualification, then the very purpose of grant of

study leave is frustrated by the respondents.

4. Learned counsel submitted that there are other similarly

situated employees, who have been granted benefit and as such

the similar treatment ought to have been given by the

respondents to the petitioners.

Learned counsel for the petitioners has placed reliance on a

judgment passed by this Court in S.B.Civil Writ Petition

No.9331/2020 (Dr. Sheikh Mohmmad Afzal & Ors. Vs. State

of Rajasthan & Ors.) decided vide order dated 23.02.2021.

Learned counsel on the strength of the said judgment

submitted that the higher qualification, if acquired by a

Government Servant and his acquiring of such qualification or

pursuing the course is in the interest of the working of the

Government, the employer cannot deny benefit of study leave to

such employees.

(4 of 8) [CW-17843/2015]

Per contra learned counsel appearing for the respondents -

Mr.Harshal Tholia submitted that reply to the writ petition has

been filed by the respondents.

Learned counsel on the basis of the reply filed by the

respondents submitted that the petitioners are working on the

post of Class-IV employees and the study leave, which has been

claimed by the petitioners cannot be given to them for pursuing

GNM Course, as the regular cadre of the petitioners is from Class-

IV employee to Ministerial Cadre for the purpose of promotion.

Learned counsel submitted that acquiring of qualification by

any employee has to be in the same cadre to which he belongs

and as such only by working in the Medical Department, it cannot

be said that the grant of study leave will be in the interest of the

service to which these petitioners belong.

Learned counsel for the respondents submitted that the

interest of the working of the Department has to be in respect of

service of such an employee after acquiring higher qualification

but if the stream itself is changed from one cadre to another

cadre, the study leave cannot be granted, as the same would not

be in the interest of working of the Department.

Learned counsel for the respondents further submitted that

the judgment passed by this Court in the case of Dr.Sheikh

Mohmmad Afzal (supra) is a subject-matter of challenge before

the Division Bench and as such no assistance can be taken by

learned counsel for the petitioners.

Learned counsel for the respondents further submitted that if

any order has been issued in past for granting study leave to

(5 of 8) [CW-17843/2015]

Class-IV employees for pursuing GNM Course, the same would not

result into granting any benefit to the petitioners and if any wrong

order has been passed in past, the same would not become

precedent for giving benefit to the petitioners.

Learned counsel for the respondents further submitted that

two wrongs cannot make one right and in the present case, the

order, which was issued in respect of one employee granting him

benefit of study leave, has also been withdrawn by the

respondents.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court deems it proper to quote Rule 112 of the Rajathan

Service Rules, 1951 as under:-

"112. Condition for grant of Study leave. -- (I) 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 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.

(6 of 8) [CW-17843/2015]

(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).

(Emphasis supplied.)

This Court on bare perusal of the Rule 112 of the Rajasthan

Service Rules, 1951 finds that the study leave is granted to

Government servant to enable him to pursue the course of study

and grant of study leave should be in the interest of working of

the Department or the service to which Government Servant

belongs.

This Court finds that if the study leave is in the interest of

the working of the Department, then it cannot be said that the

person, who is in Class-IV cadre and acquires qualification of GNM,

the same would not be in the interest of working of the

Department.

The submission of learned counsel for the respondents that

the Rule 112 of the Rajasthan Service Rules, 1951 also provides a

condition that if the Government Servant wants study leave, it

should be in the interest of the service to which Government

servant belongs, this Court finds that if the Rule making authority

has clearly demarcated two situations by giving benefit of study

(7 of 8) [CW-17843/2015]

leave in the interest of the working of the Department as well as

in the interest of service to which Government servant belongs

plain and purposeful interpretation has to be made of such Rule.

The rule making authority has kept in mind that it is the

working of the Department, which is benefited by virtue of

acquiring higher qualification by the employee and as such the

employee belonging to cadre of Class-IV cannot be presumed, to

be not acquiring such course of study, which would ultimately not

be in the interest of working of the Department.

This Court had occasion to consider the similar issue in the

case of Dr.Sheikh Mohmmad Afzal (supra) and the relevant

portion of the order is quoted hereunder:-

"The submission of learned counsel for the respondents that the candidate, if appointed in a particular stream, later on joins in Post-graduation in other stream and as such, the change of stream cannot be in benefit of the State, as when such candidate reverts back, he is appointed on the same post, this Court finds that if the Senior Demonstrator or Assistant Professor acquires higher education/Post-graduation in Medical Science, his/her study or knowledge cannot go waste and the same can always be used by the Government, considering the higher education acquired by such candidate."

The submission of learned counsel for the respondents that

the benefit, which was granted to the other candidates has been

withdrawn or wrong orders if has been passed in past will not give

right to the petitioners to claim benefit of study leave, this Court

finds that the Rule making Authority once has provided in Rule

112 of the Rajasthan Service Rules, 1951 making a person

(8 of 8) [CW-17843/2015]

entitled for grant of study leave in the interest of the working of

the Department, such entitlement cannot be denied to the

Government Servant.

This Court accordingly finds that the order dated 25.08.2015,

has not been passed by the respondents in legal and proper