Telangana High Court

Dr.Jukanti Yamuna Devi vs The State Of Telangana on 31 January, 2023

Bench: K. Sarath

       THE HON'BLE SRI JUSTICE K.SARATH

                WRIT PETITION Nos.
           24053 of 2018 & 24067 of 2018

COMMON ORDER:

     These two Writ petitions are filed seeking the

following relief:

            "....to issue a Writ, more specifically in the nature of Writ of
           Mandamus, declaring the action of the respondent No.2 in

passing the impugned order in Proc.No.2772/OP&IMS/A2/2015 dated 23.10.2017 (which is served in the month of April, 2018 rejecting the claim of the petitioners for payment of pay and allowances with all benefits for prosecuting Post Graduation (PG) Course i.e. from 13.08.2014 to 12.08.2017 and 01.07.2015 to 30.06.2018 respectively and in treating the period of study as Extraordinary Leave (EOL) in Violation of orders in W.P.No.5345 of 2010 and 41280 of 2016 dated 28.09.2010 and 15.03.2017 respectively, is arbitrary, illegal and unjust and in violation of Article 14, 16 and 21 of the Constitution of India and in violation of State Subordinate Service Rules, 1996 and Fundamental Rules and set aside the impugned proceedings and to direct the respondents to pay the pay and allowances including all the benefits to the petitioners for Study Period by treating as 'on duty' under F.R 9 (6) (b) and State Subordinate Rule 2 (14) (a) as the petitioners prosecuted the P.G Course on deputation, for which the petitioners are entitled ......."

SK,J W.P.No.24053 of 2018 & 24067 of 2018

2. Heard Sri P.Mehar Srinivas Rao, Counsel for the

petitioners in both the petitions and Sri A.Sai

Chakravarthy, Learned Government Pleader for

Services-IV appearing for respondents.

3. Both the writ petitions are filed against one and

the same impugned order. In view of the same, both

the petitions were heard together and are being

disposed of by a common order.

4. The learned Counsel for the petitioners submitted

that both the matters are covered by judgments of

this Court, in.

Principal Secretary to Government Vs. Dr.N.Anantha Lakshmi 1

Dr.M.Vasurchan Reddy and others Vs. State of Telangana2

5. The Learned Government Pleader for Services-IV

vehemently opposed the contention of the petitioners

1. Unreported Judgment in WP No.5345 of 2010 (DB) of High Court of Andhra Pradesh dated 28.09.2010

2. 2018 (3) ALT 232 (DB)

SK,J W.P.No.24053 of 2018 & 24067 of 2018

and stated that the judgments in Principal Secretary

to Government Vs. Dr.N.Anantha Lakshmi (supra 1)

and M.Vasurchana Reddy and others Vs. State of

Telangana (supra 2) not apply to the instant case

matters and requested time for filing counters.

6. These two matters are being adjourned from time

to time for filing counters since 16.08.2017. Recently

the matters were adjourned on 18.10.2022,

23.11.2022 and 07.12.2022. As on 03.01.2023 also

no counter has been filed by the respondents and the

learned Government Pleader for respondents seeking

further time for filing counter and the same was

rejected.

7. As per Rule-12 (i) (a) of Writ Proceeding Rules,

1977, every respondent in every writ petition

intending to enter appearance and oppose any Writ

Petition on which notice is served by the High Court,

SK,J W.P.No.24053 of 2018 & 24067 of 2018

shall enter appearance and file a Counter Affidavit in

opposition as soon as may be and in any event within

120 days from the date of service of notice in the Writ

Petition or the Service of Rule nisi on the said

respondent. In view of the same, the right of filing

counter forfeited.

8. The learned Counsel appearing for the petitioners

submits that the petitioners completed M.B.B.S course

in 1997 and 1999 respectively. The petitioner in

W.P.No.24053 of 2018 was working as Doctor in ESI

Dispensary, Karwan, Hyderabad and the petitioner in

W.P.No.24067 of 2018 was working as Doctor at E.S.I

Hospital at Ramachandrapuram of Medak District.

While working as doctors both the petitioners appeared

for the Entrance Examination for Post-Graduation

Degree (P.G) Courses conducted by the 4th

respondent and they both have got seats under Service

Quota and accordingly the respondents relived the

SK,J W.P.No.24053 of 2018 & 24067 of 2018

petitioners from their respective hospitals on

12.08.2014 and 01.07.2015 respectively to prosecute

P.G. Courses. While it being so, the petitioners made

representations to the concerned authorities on

24.01.2015, 08.01.2016 and 05.05.2016 for grant of

deputation with pay and allowances, but the

respondents did not respond. Thereafter the

petitioners approached this Court and filed Writ

Petition No.41280 of 2016 and this Court disposed of

the said writ petition on 15.03.2017 directing the

respondents to consider the representations of the

petitioners. Thereafter, the respondents passed the

impugned order in Proc.No.2772/OP&IMS/A2/2015

dated 23.10.2017 rejecting the claim of the petitioners

for payment of pay and allowances with all benefits for

prosecuting Post-Graduation Course and treated the

period of Study as Extraordinary Leave (EOL).

SK,J W.P.No.24053 of 2018 & 24067 of 2018

9. The Learned Counsel for the petitioners

submitted that both the petitioners got seats in

Post-Graduation Course and accordingly the

respondents relived them to prosecute the P.G Course.

In view of the same both the petitioners are entitled for

pay and allowances as Fundamental Rule 2 (14) (a) of

A.P.Servivce Rule, 1966.

10. The learned Counsel for the petitioners further

submits that the impugned order passed by the

respondents is without any base and more particularly

the impugned order are passed on the ground that as

on the date of existing rules i.e. as on 23.10.2017,

which is nothing but gross violation of the Articles 14,

16 and 21 of the Constitution of India for the reason

that there is a provision as on date the petitioners were

permitted on deputation for three years for prosecuting

the P.G Degree as in-service candidates and moreover

there is no provision in restricting the candidates who

SK,J W.P.No.24053 of 2018 & 24067 of 2018

completed the P.G Diploma before joining of the service

to do P.G Degree in different subjects. Moreover, the

Government has categorically clarified on 20.302.2009

in letter No.21752/E1/2008 with respect to

interpretation of the G.Os and circulars wherein it is

clarified that the G.O.Ms.No.279 of 2001 was

superseded/amended through G.O.Ms.No.719 of 2003

and there is no contradiction in so far as the eligibility

for the deputation and therefore the impinged order

passed by the 2nd respondent is perverse and is liable

to be set aside.

11. The learned Counsel for the petitioners further

submits that the candidates who are deputed by the

competent authority for higher studies shall be treated

as 'on duty' and would be entitled for full salary.

12. The learned Counsel for the petitioners submits

in view of law lay down in the above judgments the

SK,J W.P.No.24053 of 2018 & 24067 of 2018

impugned order is liable to be set aside and requested

to allow both the writ petitions.

13. After hearing both sides, this Court of the

considered view that the respondents without taking

into account of the orders passed by the Division

Bench in Principal Secretary to Government Vs.

Dr.N.Anantha Lakshmi (supra 1) passed impugned

orders declaring that the petitioners are not entitled

for pay and allowances for prosecuting Post-Graduate

Course and they are entitled for Extraordinary Leave

for study for deputation.

14. The Division Bench of this Court in the Principal

Secretary to Government Vs. Dr.N.Anantha

Laxmi(supra 1), at the operative portion of the order,

categorically held that:

".....We hold that all such in-service candidate who are deputed by the competent authority for higher studies and for undergoing training in India and abroad, shall be

SK,J W.P.No.24053 of 2018 & 24067 of 2018

treated as 'on duty' and would be entitled to full salary which normally they get and the question of payment of stipend and even where stipend is paid deduction thereof from the salary does not arise".

15. Moreover, recently this Court in Dr.M.Vasurchana

Reddy and others Vs. State of Telangana (supra 2) and batch,

at para No.7 of conclusion Para No.XI, held as follows:

" The second limb of Rule 5 (v) of the 2017 Rules, as amended by G.O.Ms.No.21 dated 30.03.2018 to the extent it relates to candidates, who did their post- graduate diploma course before joining government services, is struck down as irrational and ultra-virus Article 14 of Constitution of India. Consequently, the Government Doctors who have completed their post- graduate diploma courses before they joined government service, shall be entitled for deputing for a period of three years in terms of Rule 5(1) and (2) while undergoing post-Graduate medical course".

16. In the instant case also both the petitioners got

seats in Post-Graduation Course and accordingly the

respondents relived them to prosecute the P.G

Courses. In view of the same, the judgments relied on

by the learned Counsel for the petitioners apply to the

instant case.

SK,J W.P.No.24053 of 2018 & 24067 of 2018

17. In view of the same, the impugned order passed

by the respondents is liable to be set aside and

accordingly set aside, directing the respondents to pay

the pay and allowances including all benefits to the

petitioners from 13.08.2014 to 12.08.2017 and