Rajasthan High Court

State Of Rajasthan vs Dr Sheikh Mohmmad Afzal S/O Abdul ... on 20 October, 2023

Bench: Augustine George Masih, Sameer Jain

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                  D.B. Special Appeal Writ No. 428/2022

1.       State Of Rajasthan, Through Its Secretary, Department Of
         Medical Education, Government Secretariat, Jaipur (Raj.)
2.       Deputy Secretary, Department Of Medical Education
         (Group-1), Government Secretariat, Jaipur.
3.       Principal, Jln Medical College, Ajmer (Raj.)
4.       Principal, Rnt Medical College, Udaipur (Raj.)
                                                                       ----Appellants
                                        Versus
1.       Dr Sheikh Mohmmad Afzal S/o Abdul Hamid, Aged About
         43 Years, R/o 114, Sainik Marg, Raghunath Puri, Kalwad
         Rod, Jhotwara, Jaipur (Raj.)
2.       Dr. Sanjeev Kumar Goyal, S/o O.p. Goyal, Aged About 45
         Years, R/o 16 Manglam Complex, Shobhagpura, Udaipur
         (Raj.)
3.       Dr. Chandra Prakash Sharma S/o Ram Dhan Sharma,
         Aged About 39 Years, R/o S-4, Panaromic Apartment,
         Vidhya Vihar, Dewali, Udaipur (Raj.)
                                                                     ----Respondents

For Appellant(s) : Mr. Harshal Tholia for Dr. V.B.

                                    Sharma, AAG
For Respondent(s)             :     Mr. Aslam Khan
                                    Ms. Shashi Sharma for
                                    Mr. Manoj Kumar Avasthi

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH (THROUGH VC AT JODHPUR) HON'BLE MR. JUSTICE SAMEER JAIN Judgment

(Per Hon'ble Mr. Sameer Jain, J) Reserved on - 18/09/2023

Pronounced on - 20/10/2023

1. The instant appeal has been filed by the State against the

order impugned dated 23.02.2021, passed by the learned Single

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Judge, whereby the petition preferred by the respondents herein,

was allowed.

2. Concisely noted, the factual narrative of the instant appeal

dictates as under:-

2.1. That in pursuance to the notification issued for the NEET-PG

2020 Examination, the respondents sought a 'No Objection

Certificate' (NOC) from their employers, to participate in the said

examination.

2.2. That at the time of seeking the said NOC, the respondents

were employed in government service. Their portfolio/position

reads as under:

a. Respondent No.1- Senior Demonstrator (Pathology), S.M.S.

Medical College, Jaipur. [Non-Clinical Branch]

b. Respondent No.2- Senior Demonstrator (Microbiology),

R.N.T. Medical College, Udaipur. [Non-Clinical Branch]

c. Respondent No.3- Assistant Professor (Preventive & Social

Medicine), R.N.T. Medical College, Udaipur. [Non-Clinical

Branch]

2.3. That the NOC was issued to the respondents only for the

purpose of participating in the NEET-PG 2020 Examination. It was

categorically incorporated in the said NOC that the mere

possession of the same, shall not automatically bestow upon a

candidate the right to join the concerned course, which would be

subject to the candidates, upon selection, applying/seeking a

sanction for 'study leave' before joining the concerned course.

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2.4. That after successfully participating in the examination, the

respondents were allotted seats in medical colleges. They are

noted herein-under:-

a. Respondent No.1- M.D. Paediatrics, J.L.N. Medical College,

Ajmer [Clinical Branch]

b. Respondent No.2- M.D. General Medicine, R.N.T. Medical

College, Udaipur [Clinical Branch]

c. Respondent No.3- M.D. Anaesthesiology, R.N.T. Medical

College, Udaipur [Clinical Branch]

2.5. That as per the NOC so issued, the respondents submitted

an application for the grant of 'study leave' to join their respective

courses. However, the same was denied to the respondents as the

respondents had secured admission in the PG Courses of the

Clinical Branch, as opposed to the Non-Clinical Branch, in which

they are rendering their services at the respective

colleges/institutes.

2.6. That being aggrieved by the rejection of their 'study leave',

the respondents approached this Court vide S.B. Civil Writ Petition

No. 9331/2020, wherein vide order impugned dated 23.02.2021,

the learned Single Judge directed the appellants to relieve the

respondents from service by way granting them a 'study leave'

and thereby, permit them to join their allotted PG Courses.

3. In this factual background, learned counsel for the appellant-

State has submitted that the order impugned dated 23.02.2021 is

passed in contravention to the settled position of law and the rules

framed in connection therewith. Therefore, it deserves to be

quashed and set aside. In support of the said claim, learned

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counsel relied upon Rule 59 and 112 of the Rajasthan Service

Rules, 1951 (hereinafter, Rules of 1951) and submitted that a

government servant cannot claim a 'study leave' as a matter of

right. The discretion to grant 'study leave' is reserved with the

sanctioning authorities. Furthermore, it was averred that prior to

the grant of a 'study leave', the sanctioning authority is duty

bound to assess and satisfy itself that the concerned

course/training, against which the leave is sought, is necessary in

the public interest for the working of the department/service in

which the applicant is engaged/employed. Lastly, whilst bracing

the averments made herein-above, reliance was placed upon the

dictum of the Hon'ble Apex Court as enunciated in Union of India

vs. IM Havildar/Clerk SC Bagari reported in (1999) 3 SCC

709 as well as the judgment of the Division Bench of this Court as

rendered in D.B. Special Appeal (Writ) No. 911/2020 titled as

State of Rajasthan & Ors. vs. Dr. Kamaldeep Khatri.

4. Per contra, learned counsel for the respondents has

submitted that the learned Single Judge, while passing the order

impugned, has passed a well-reasoned speaking order and after

consideration of material aspects, arrived at a logical conclusion.

In support of the said claim, it was averred that the exception to

Rule 112 of the Rules of 1951 mandates the grant of 'study leave'

to certain officers/employees, an exhaustive list of which is

provided therein, for a period of 36 months. Therefore, as the

respondents fall within the purview of the said exception, the

grant of 'study leave' in their favour, was an exercise steeped in

compulsion, and not discretion. Furthermore, it was averred that

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the stipulation upon which the grant of study leave is made

contingent, as averred by the appellants, gets negated by the

fundamental consequence of gathering knowledge by way of

completing the PG Course by the respondents, which inadvertently

is in the best interests of the Department in which they are

rendering their services. Lastly, learned counsel for the

respondents submitted that the bonafides of the respondents to

render their services in their concerned departments/institutes,

after the completion of the PG Course, are established by the

respondents giving an undertaking to serve the State Government

for five years after the completion of the post-graduate course and

executing a bond of Rs. 25,00,000/- to pay to the Govt., in case

the petitioner's leave the job, after completing the PG Course.

Relying upon the submissions made herein-above, learned counsel

prayed for the dismissal of the present appeal.

5. Heard the learned counsel for both the sides, scanned the

record of the appeal and perused the judgments cited at Bar.

6. Preceding to the discussion on merits, this Court deems it fit

to concisely note the statutory rules, instrumental for the

efficacious disposal of the instant appeal. They are noted herein-

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

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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.

Rule 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 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."

"Rule 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 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.

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(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.

Exception: Study leave to the Medical Officer/Medical Officer (Dental)/Ayurved Medical Officer/Unani Medical Officer/Homeopathy Medical Officer/ Teachers of Medical Education (Professor/Associate Professor/Assistant Professor/Sr. Demonstrator MBBS/BDS Degree holder) shall be admissible for 36 months for acquiring degree of post-graduation/super speciality course. Those Medical Officers/Medical Officers (Dental) Ayurved Medical Officers/ Unani Medical Officers/Homeopathy Medical Officers/Teachers of Medical Education (Professor/Associate Professor/Assistant Professor/Sr. Demonstrator MBBS/BDS Degree holder) who are already on study leave shall also be entitled for enhanced period of study, leave to the extent of remaining period of study leave."

7. Having methodically scrutinized the relevant statutory rules,

the following germane take-aways come to the forefront:-

7.1. That an applicant/employee cannot claim 'study leave' as a

matter of right.

7.2. That the discretion to grant 'study leave' is reserved with the

sanctioning authority.

7.3. That the sanctioning authority, while refusing and/or

revoking an application for 'study leave', has to provide reasons in

writing for the said refusal and/or revocation.

7.4. That it is not upon the sanctioning authority to change/alter

the nature of the leave sought by the applicant/employee.

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7.5. That 'study leaves' are admissible for permanent and

temporary government servants, wholly subject to the stipulation

that the leave as sought, is for pursuing a course of study or

investigation of a scientific or technical nature, which in the

opinion of the sanctioning authority, is necessary in the public

interest for the working of the department in which the

applicant/employee is employed.

7.6. That the condition for the grant of 'study leave' is wholly

contingent upon/subject to the said 'study leave' being in the

interest of the working of the department or the service to which

the government servant/applicant-employee, belongs.

7.7. That apart from those government servants/applicant-

employees expressly included in the exception to Rule 112, all

other government servants are permitted a total 24 months of

'study leave', subject to approval. Whereas, those government

servants/applicant-employee expressly included within the

exception, are entitled for 36 months of 'study leave'.

7.8. That the exception to Rule 112 providing 36 months of 'study

leave' is read in conjunction with Rule 112(1)(i), thereby implying

that the grant of 36 months of 'study leave' is contingent upon the

fulfilment of Rule 112(1)(i), which provides for the sanctioning

authority to satisfy itself that the grant of study leave will be in

the best interest of the working of the department or the service

to which the applicant-employee belongs.

7.9. That the exception to Rule 112 does not provide for

mandatory grant of 'study leave'. Rather, the exception merely

incapsulates a larger period of leave for certain employees, albeit

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subject to the initial fulfilment of the stipulation/condition noted

under Rule 112(1)(i).

7.10. That the grant of 'study leave' to the applicant/employees

falling within the purview of the exception is an exercise steeped

in discretion, not compulsion.

8. Therefore, relying upon the observations made herein-above,

it can be conclusively said that the exception to Rule 112 does not

take away the discretion bestowed upon the sanctioning authority

to determine whom to grant 'study leave'. Rather, it only provides

the maximum duration of 'study leave' to be granted to specific

employees mentioned therein, subject to the sanctioning authority

giving their nod of approval. Resultantly, the aspect of grant of

'study leaves' is wholly discretionary, as opposed to being

perceived to be mandatory as per the exception to Rule 112.

9. In the facts and circumstances of the present case, the

sanctioning authority dismissed the respondents application for

grant of 'study leave' on the ground that the respondents wanted

to join the PG Course in Clinical Branch, whereas, at the time, the

respondents were employed in the Non-Clinical Branch.

Subsequently, when the respondents approached this Court by

way of a writ petition, the learned Single Judge, whilst relying

upon the exception to Rule 112, held that the State Government

itself had made an exception by mandatorily permitting grant of

'study leave' for a period of 36 months to certain employees and

as such, the respondents falling under the said exception, were

required to be granted 'study leave'.

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10. In the view of this Court, the above said finding, as arrived

at by the learned Single Judge is erroneous, especially on account

of the fact that the exception to Rule 112 does not take away the

discretion bestowed upon the sanctioning authority to determine

whom to grant 'study leave'. In essence, the learned Single Judge

inadvertently failed to appreciate the factum of the exception to

Rule 112 not providing for mandatory grant of 'study leave'.

Rather, the exception merely incapsulates a larger period of leave

for certain employees, albeit subject to the initial fulfilment of the

stipulation/condition noted under Rule 112(1)(i). Thus, it can be

conclusively said that the exception to Rule 112 providing 36

months of 'study leave' is read in conjunction with Rule 112(1)(i),

thereby implying that the grant of 36 months of 'study leave' is

contingent upon the fulfilment of Rule 112(1)(i), which provides

for the sanctioning authority to satisfy itself that the grant of

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

department or the service to which the applicant-employee

belongs.

11. Furthermore, the submission made by the learned counsel

for the respondent regarding the completion of a PG Course in any

field/skill, resulting in the applicant-employee gaining knowledge,

which is in the best of interests of the department, cannot be

countenanced. In this regard, it is observed that the best authority

to determine the satisfaction of its best interests and what they

entail, is the sanctioning authority of the concerned department

itself, which possesses the requisite knowledge of the skill and

techniques its employees must possess to alleviate the expertise

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and working standards of the department, resulting in the greater

public good. Even otherwise, by mere logical deduction, it can be

said that the respondents herein, who were rendering services in

the Non-Clinical Branch, cannot be said to be benefitting their

departments, if they finish a PG Course in the Clinical Branch. The

primary reason for the same being, the distinct nature of their job

portfolio i.e. Non-Clinical, juxtaposed with the PG Course they

sought to take admission in i.e. Clinical. Resultantly, garnering

knowledge in a contrasting/distinct sector of medicine, cannot be

said to be benefitting or enhancing the quality of work in the

department wherein the respondent is engaged/employed. Be that

as it may, the discretion to adjudicate upon the best interests of

the working of the department is with the sanctioning authority,

which possesses the requisite knowledge and/or expertise in the

field as well as the workings of the concerned departments.

Therefore, in light of the foregoing discussions, it can be stated

that the learned Single Judge erred in directing the appellants to

relieve the respondents from service and grant them 'study leave',

when the discretion lay with the sanctioning authority to do the

needful.

12. Furthermore, the issue regarding the grant of 'study leave' to

candidates who change their branch/stream/sector/speciality in

the PG Course, has been addressed by the circular dated

17.09.2020 issued by the Department of Medical Education

(Group-I). In the said circular, it was categorically stated that only

those Senior Demonstrators shall be eligible for the grant of study

leave, who have been allotted the same

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branch/stream/sector/speciality as that of the branch they have

been working in. Moreover, in the said order, it was also clarified

that if the Senior Demonstrator had been allotted a different

branch than the one they had been working in, then in such an

eventuality, the candidate would only be entitled for 'leave without

pay' and not 'study leave'. Thus, in light of the circular dated

17.09.2020, it becomes rather clear that the respondents are not

entitled to 'study leave' for the concerned PG Courses, as the

same are in a different branch/stream/sector/speciality, than the

one the respondents are working in.

13. It is also noted that the reliance placed upon the judgment of

the Coordinate Bench of this Court in S.B. Civil Writ Petition No.

9113/2020 titled as Dr. Pooja Mathur and Ors. vs. State of

Rajasthan and Ors., by the learned Single Judge, was

misplaced, as in the said judgment, the provisions related to the

grant of 'study leave' to candidates changing their

stream/speciality for PG Courses was not addressed and/or under

contention. Therefore, the reliance placed thereupon was per

incuriam. Whereas, the reliance placed upon the judgments of Dr.

Kamaldeep Khatri (Supra) is squarely applicable in the facts

and circumstances of the present case. In Kamaldeep Khatri

(Supra), it was held as under:-

"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

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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 that 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 service 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.

14. Therefore, considering the fact that the grant of 'study

leaves' is governed by the Rules of 1951 wherein discretion has

been reserved with the sanctioning authority to satisfy itself of the

best interests of the public as well as the department and/or

service in which the government servant is rendering his services

in; that a government servant cannot claim 'study leave' as a

matter of right; that the exception to Rule 112 providing 36

months of 'study leave' is read in conjunction with Rule 112(1)(i),

thereby implying that the grant of 36 months of 'study leave' is

contingent upon the fulfilment of Rule 112(1)(i), which provides

for the sanctioning authority to satisfy itself that the grant of

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