Jyoti Raj Prasad vs State Of Uttarakhand And Others
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        HIGH COURT OF UTTARAKHAND AT NAINITAL
                    Writ Petition (S/S) No. 2586 of 2019
Jyoti Raj Prasad                                             .....Petitioner
                                        Versus
State of Uttarakhand and others                              .... Respondents
Present :-
Mr. Vinay Kumar, Advocate, for the petitioner.
Mr. N.P. Sah, Brief Holder for the State of Uttarakhand.

                                                    Dated: 17th November, 2021
                                JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The brief facts of the case are, that the petitioner has come up with the case in the Writ Petition, that she was posted as an Assistant Teacher in the Primary School, before being granted a regular selection as an Assistant Teacher (LT. Grade) (Science) by way of a direct recruitment w.e.f. 4th January, 2007. Consequent to it, the petitioner, alleges to have joined the Government Inter College, Thal, District Pithoragarh. Subsequent thereto, the services of the petitioner as an Assistant Teacher (L.T. Grade) (Science), was transferred on administrative ground and she joined the services at Govt. Inter College, Halson Korar, Betalghat, District Nainital, where she started serving in the said capacity w.e.f. 10th September, 2010.

2. At this stage, itself, this Court clarifies, that this joining of the petitioner, on a transferred place to Betalghat, District Nainital, would be deemed to be a service in continuity, to her initial appointment which was made on 4th January, 2007.

3. While, she was discharging her duties as an Assistant Teacher (L.T. Grade) (Science), at Betalghat, District Nainital, she in order to enable her to pursue her further studies, and complete Ph.D., she was required to participate in the Ph.D. Entrance Test of 2011-12, and consequently, she has applied before the Principal on 24.01.2012, for the grant of requisite permission from the Office of the Principal of the Institution, and the said no objection certificate was granted to

her in her favour on 27th August, 2012, which was issued in pursuance to the direction issued by the Additional Director Education, Kumaon Mandal, Nainital, vide his letter No.Sewai/3d (2)/vjkt0/vuk0/13751- 52/2012-13 dated 27/08/2012.

4. After the grant of formal permission to pursue her Ph.D. course, the petitioner had joined Kumaon University, Nainital, which issued a communication to the petitioner to attend her second counselling, which was scheduled from 22nd August, 2012, and after completing her counselling, the petitioner was allotted the subject "Entomology", under the Research Director, Dr. Deepika Goswami of Zoology Department for completing the pre Ph.D. course. The petitioner contends, that she attended the course at DSB Campus, Kumaon University, and after obtaining leave for 72 days, which was sanctioned by the Chief Education Officer, Nainital, the petitioner was sanctioned 72 days of leave without pay from 20th September, 2012 to 30th November, 2012.

5. Owing to the nature of research work, which the petitioner was supposed to undertake at an advanced stage of her Ph.D. course, the permission for which was initially granted, the petitioner had to conduct the laboratory test for completing, which was as to be a part of research work, and for that purpose, she had submitted her application on 4th August, 2016, to the Additional Director, Education, wherein, she has requested for the grant of study leave for the period from 16th August, 2016 to 30th April, 2017, in order to enable her to conduct and complete the extended research work, which was necessarily required to be completed by her for the purposes of grant of her Ph.D. degree. The application, thus submitted by the petitioner was forwarded by the Principal to the Additional Director, Education, for necessary compliance. When no action was taken on the petitioner's application, praying for the extension of leave for the aforesaid period from 16th August, 2016 to 30th April, 2017, the petitioner represented, her case before the

Principal of the concerned College by submitting the request on 15th August, 2016, stating therein, that she has already earlier submitted an application for the grant of study leave but on account of the fact, that there was no decision taken on the same and no order has been passed by the competent authority on her application, therefore, she may be permitted to leave the Headquarter by sanctioning the leave in order to enable her to complete her advanced research work, for which, the initial permission was granted to her in 2012.

6. Despite of the fact that the application of the petitioner has duly forwarded by the Chief Education Officer through the Office of Block Education Officer, Block Betalghat, but since no communication was made in response by the Block Education Officer, it was later on informed by the Principal, Government Inter College, that the petitioner's request for sanctioning of the study leave for the aforesaid period, as already referred above, has not been approved by the Chief Education Officer, therefore, the petitioner, who was already undertaking the research work at DSB Campus, was required to report back on duty, otherwise, her absence would be treated as to be a misconduct under the service conditions, which will be entailing a departmental proceedings against her. But, however, later on, the Chief Education Officer, vide his communication dated 26th November, 2016, returned the original application form for leave for study of the petitioner for the sanction of the leave for the period commencing from 16th August, 2016 to 30th April, 2017, for the purposes of undertaking the research work; on the premise, that since the petitioner was appointed as an Assistant Teacher (L.T. Grade) (Science), for which, she possessed the necessary educational qualification and training qualification prescribed under law and the research work has got no nexus in any manner, with regard to the nature of appointment, in which, the petitioner was already appointed, the request for study leave could not be favourably considered in favour of the petitioner.

7. In order to claim parity, the petitioner submitted before the Principal of Government Inter College Halson Korar, that there were other similarly placed teachers, who were granted the study leave for more than prescribed period by the Deputy Secretary, Education, Government of Uttarakhand, vide earlier communication, which was issued in their respective favour and hence, the petitioner contended, that there would not have been any legal and distinguishable embargo in granting the extended study leave from 16th August, 2016 to 30th April, 2017. But instead of considering the petitioner's claim for the grant of extension of study leave, the petitioner was issued with the communication, to show cause as to why, the petitioner has failed to give joining on the post after the completion of the study leave, which already stood sanctioned and the communication in that regard was issued to her on 20th January, 2017, by the Office of the Chief Education Officer.

8. The petitioner made several requests to the respondents and had further submitted a representation before the Secretary, Secondary Education, Government of Uttarakhand, who issued a communication to the Director, Secondary Education on 20th April, 2017, requiring her to furnish certain additional factual reports, along with the recommendation of the Government, for the purposes of sanctioning the study leave for the aforesaid period as prayed for by the petitioner. Hence, the Director, Secondary Education, issued a communication on 24th January, 2017 to the Regional Additional Director, Secondary Education, Kumaon Mandal, Nainital, calling for a clear and a fresh report, with the recommendation to the Directorate, for the purposes of sanctioning of study leave, which the petitioner claimed by way of her application, as well as by way of her representation of 3rd March, 2017.

9. In response to the communication, which was made by the Directorate, to the Office of Chief Education Officer, the Chief Education Officer, had in response thereto, submitted a detailed report

on 19th June, 2017, wherein, he forwarded his communication to the Regional Additional Director, which in turn, had communicated the same to the Office of the Director, Secondary Education on 12th July, 2017, with his favourable report for the purposes of consideration of the sanction leave to the petitioner, wherein, he had mentioned same facts as mentioned in the communication of 27th August, 2017. The report of the Chief Education Officer was forwarded to the District Education Officer by the Regional Director on 15th January, 2019, but when no action followed, the petitioner did not have any option except to and accordingly, she had to prefer the present Writ Petition.

10. Accordingly, the petitioner was inducted to complete her Ph.D. Course on 6th October, 2012, and accordingly, it is contended by the learned Counsel for the petitioner, that she had completed her Ph.D. course on 25th August, 2017, but however, the study leave for the period of 16th August, 2016 to 30th April, 2017, has not been granted to the petitioner, hence, the Writ Petition for the following reliefs :-

"(i) Issue as writ, order or direction in the nature of Certiorari calling for the record and quashing the communication dated 16.02.2019 submitted by the Director, Secondary Education, Uttarakhand to the State Government, whereby it has been reported that the petitioner is not entitled for study leave.

(ii) Issue a writ, order or direction in the nature of Mandamus directing the respondents to grant the study leave to the petitioner for the period in between 16.08.2016 to 30.04.2017 and accordingly regularized / verified the services of the petitioner of the said period and also grant all consequential service benefits such as arrears of salary of said period, selection grade, pay fixation etc.

(iii) Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(iv) Award the cost of the writ petition to the petitioner"

11. The learned counsel for the petitioner has submitted that so far as the area of grant of study leave is concerned, that would be regulated by Chapter XI-A of Study Leave Rules, as framed by His Highness, the Governor of the State under Rule 84 of the U.P. Fundamental Rules and Rule 146-A, as contained under Chapter 11-

A, would be the relevant provisions, which would govern the terms and conditions under which the study leave could be granted, to the petitioner :-

12. For the purposes of convenience, the relevant provisions of Rule 146-A is extracted hereunder :-

"146-A. The following rules have been made by the Governor to regulate the grant of additional leave to government servants for the study of scientific, technical or similar problems, or in order to undertake special courses of instruction. These rules relate to study leave only. They are not intended to meet the case of government servants deputed to other countries at the instance of the Government, either for the performance of special duties imposed on them or for the investigation of specific problems connected with their technical duties. Such cases will continue to be dealt with on their merits under the provisions of rules 50 and 51 of the Uttar Pradesh Fundamental Rules. These rules apply to the Public Health and Medical Research Departments, the Civil Veterinary Department, the Agricultural Department, the Education Department, the Public Works Department and the Forest Department (except in respect of Continental tours, to which special rules apply). The rules may be extended by the Government to any government servant not belonging to any of the departments mentioned above in whose case they may be of opinion that leave should be granted in the public interests to pursue a special course of study or investigation of a scientific or technical nature.

NOTE--The extension of these rules to the Public Works Department does not effect the existing rules under which government servants are allowed to visit engineering works when on leave in Great Britain.

1. The powers under these rules may be delegated by the Government to the High Commissioner for India, subject to any conditions they may think fit to impose.

2. Extra leave on half average pay for the purpose of study leave may be taken either in or outside India. It may be granted to a government servant of any of the departments named above by the Government, provided that when a government servant borne permanently on the cadre of one department is serving temporarily in another department the grant of leave is subject to the conditions (a) that local arrangements can be made to carry on his work in his absence, and (b) that the recommendation of the department to which he is permanently attached is obtained before leave is given. Study leave should not ordinarily be granted to government servants of less than five year's, or to government servants within three years of the date at which they have the option of retiring.

3. Study leave shall be granted with due regard to the exigencies of the public service. In no case the grant of this leave, in combination with leave other than extraordinary leave or leave on medical certificate, shall involve an absence of over 28 months from a government servant's regular duties, or exceed two years in the whole period of a government servant's service; nor shall it be granted with such frequency as to remove him from contact with his regular work or to cause cadre difficulties owing to his absence on leave. A period of twelve months at one time will ordinarily be regarded as a suitable maximum, and shall not be exceeded save for exceptional reasons."

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13. The petitioner had been consistently, raising the claim for the grant of study leave for the aforesaid period, for the reason being that after conducting her Ph.D. degree in the discipline and the topic of research called as "Biodiversity of earthworms and their role in nutrient turnover in cultivated and mixed forest soils at Kainchi (Uttarakhand)".

14. The respondents by virtue of the impugned order No. 1/32855 dated 16th February, 2019, had denied to sanction the study leave for the aforesaid period, on the ground, that the discipline, in which, the petitioner has completed her Ph.D. (as extracted above), on its completion, it was in no manner contributing to facilitate her specialization, in imparting her duties as an Assistant Teacher (L.T. grade) (Science), in which, she was already engaged, and hence, as per the provisions contained particularly under Clause (3) of Rule 146-A of Chapter XI-A of the Financial Hand Book, it was determined by the respondents, that she would not be entitled to be extended with the study leave, due to the bar created by the said rules, which has been wrongly interpreted otherwise by the respondents in the manner, as if, if a candidate who has been sanctioned with the study leave under Chapter XI-A of the Financial Hand Book, it never intended that if it is not found to be augmenting her efficiency in any manner to the services which he / she was previously dispensing at the time when permission was granted, she would not be entitled for the study leave for the period as referred therein, is absolutely untenable in the eyes of law. There are two logic / reasons for it :-

i. If at all, there was any such artificial embargo created by Chapter XI-A of the Financial Hand Book, that study leave could only be granted to those candidates, who pursue their Ph.D. courses only in relation to a subject, which is directly related to the subject, for which, she was seeking her permission for study leave and is related to the subject taught by the candidates applying, I am of the view, that it is not a condition precedent under Rule 146-A.

ii. The second reason is that even if, for the moment, it is presumed that the proposed study, i.e. research work, which the petitioner was supposed to carry after grant of study leave had any nexus with her prior engagement, from where the permission has been granted, had any correlation at all with it, in that eventuality, the Additional Director, Education, when he was considering the issue of study leave and has granted the permission way back on 29th August, 2012, he ought to have rationally applied his mind before granting the study leave to the petitioner under Rule 146-A of Chapter XI A of the Financial Hand Book. Having not applied his rationale mind from the said perspective in that eventuality on the completion of the course of Ph.D. by the petitioner in the discipline, as already extracted above, the respondents cannot be permitted to take a somersault stand to deny the benefit of study leave on the pretext, that the course, for which, the petitioner has completed her Ph.D. was not at all augmenting her efficiency in her previous engagement is absolutely preposterous and contrary to the provisions of Rule 146-A.

15. On the contrary, and also in addition, it has also been argued by the learned counsel for the petitioner, that this stand taken by the respondents in the impugned order may not be logical, for the reason being that it is not in controversy that the petitioner was engaged as an Assistant Teacher (L.T. Grade) (Science) w.e.f. 4th January, 2007 and by a common analogy, to the discipline, in which,

she has completed her Ph.D., if not absolutely still the Court is of the definite view, that it did had her direct reference and relation to the discipline of study in which she was engaged as an Assistant Teacher (L.T. Grade) (Science). Hence, it is absolutely irrational to analize at this belated stage that the course of Ph.D., which the petitioner has completed, was not having any nexus to her previous engagement, as an Assistant Teacher (L.T. Grade) Science.

16. The impugned order of 16th February, 2019, denying to grant the study leave to the petitioner under Rule 146-A, I am of the view, it is absolutely based upon illogical rational, which has been adopted by the Director, Secondary Education, merely because of taking an advantage of an expression given by him under the Fundamental Rules, that when it is "opined" by the authority, that the study, for which the study leave admittedly has been granted, was not relevant for the purposes of the initial appointment or dispensation of duties, in fact, the word "opinion" taken by the respondents to deny the study leave, has had to be rationally based with a subjective and analytical consideration of the material on record, as to how the discipline of the petitioner in which she has completed her Ph.D. has got no nexus to discharge her official duties, in which, she was already engaged, i.e. Assistant Teacher (L.T. Grade) Science, which is not based on credible material, or an opinion of an expert, in an alternative on the subject. Hence, personal opinion of Director, may not be treated as to be conclusive expert opinion to come to that conclusion, particularly, when the Director, himself lacked that subject expertise, to conclude that the topic of research of petitioner, had no relation in discharge of duties as Assistant Science Teacher. In these circumstances personal opinion cannot be ruled out to be arbitrary and without any sound basis.

17. Even otherwise also, we cannot be oblivions of the fact that Chapter XI-A of the Financial Hand Book, has been legislated, as a consequence of exercise of power by His Highness, the Governor under Rule 84 of the Fundamental Rules and in that eventuality, when

a statute contemplates grant of study leave, there cannot be any margin for exercising a latitude of interpretation, particularly when it is exclusively based on an individual opinion, which is the solitary reason for passing the impugned order of denying to grant the study leave, by misapplication of Rule 146-A (3) of the Financial Hand Book, Part II to IV.

18. Hence, this Court is of the view, that if at all even, if there is any scope of opinion, to be taken by the authority granting the permission, that opinion cannot be exercised arbitrarily and that too without a rationale application of mind, which is lacking in the instant case and particularly merely because of an opinion of the Director, Secondary Education, that the study, which the petitioner has carried subsequent to the grant of study leave by an order of 29th August, 2012, and had completed her Ph.D. is not beneficial at all in her prior engagement is without any genuine foundation and rational application of mind.

19. Consequently, I am of the view that the stand taken by the Director, Secondary Education, for denying study leave to the petitioner for the said period is by virtue of misconstruing the provisions of Rule 146-A of the Financial Hand Book, Part 2 to 4. Hence, the impugned order, as per my opinion, cannot be sustained and the same is quashed. A writ of mandamus is issued to the respondents to grant the study leave to the petitioner as prayed for in the Writ Petition for the period from 16th August, 2016 to 30th April, 2017 with a continuity of service, and also to pay all consequential benefits, which she would be entitled to as per law, as such, arrears of salary, selection grade, pay fixation, etc. as permissible to her after the grant of study leave as a consequence of today's judgment.

(Sharad Kumar Sharma, J.) 17.11.2021 Shiv