Rajasthan High Court - Jaipur
Dr Rajendra Singh Tanwar vs State (Medical And Health)Ors on 8 November, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.13303/2013 Dr. Rajendra Singh Tanwar Versus State of Rajasthan & Ors. DATE OF ORDER : 08/11/2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. R.C. Joshi, Sr. Adv. with Mrs. Namita Parihar, for petitioner
Mr. M.F. Baig, Dy. Govt. Counsel, for respondent No.1 Mrs. Shruti Dixit, Dy. Govt. Counsel, for respondent No.2 Mr. Ashok Gaur, Sr. Adv. with Mr. Ashwini Jaiman, for respondent No.4 Mr. M. Akbar Khan, for respondent No.5 *** This writ petition pertains to admission in DM (Nephrology) course. The petitioner apart from private respondent No.5 applied for and appeared in the entrance test. It was for in-service category candidates to which quota is separately provided.
The controversy involved in the present writ petition is as to whether private respondents are entitled to seek admission in in-service quota when no leave is due under Rajasthan Service Rules.
Learned counsel for petitioner submits that private respondents had earlier availed study leave to prosecute higher studies. After availing leave aforesaid, further leave either under rule 96 or under any provision is not admissible. In view of above, private respondents were not entitled to take leave yet they have not only made applications for grant of leave but pursuing the course without its sanction. If private respondents are not entitled to study leave or any other kind of leave, they have to quit the job and, in that eventuality, would not be considered as in-service candidates to occupy the seat/s meant for in-service candidates and petitioner being the next candidate in merit, is entitled for admission in DM (Nephrology) course.
Reference of Rules 96, 110 and 112 of the RSR is given apart from the Notes appended thereto. It is to show that even if the extraordinary leave is applied for study, it would be considered to be study leave only and can be granted only when a candidate has not availed the benefit of study leave. It is keeping in mind the bar provided under Rule 112 of the RSR. The maximum duration of the study leave is provided under the RSR. If the petitioner is granted study leave to pursue the course, it would be in excess to maximum limit of leave provided under the relevant rules. In that eventuality also, it will be violation of the RSR resulting in illegality in the action of official respondents, if they grant leave.
Referring to the Government of Rajasthan's Decisions under rule 96 of the RSR, it is emphasised that maximum period of study leave is of two years, that too, when it is in public interest. The Government of Rajasthan's Decisions is of December, 1959 when Rule 112 of the RSR was not as exists now. It was substituted vide notification dated 16.6.1979, but again maximum period is prescribed for study leave which is of 24 months. It can be in one spell or more, in combination with other kind of leave but would not be granted for more than 24 months. A Medical Officer has been given benefit of 36 months' study leave if he is acquiring degree of Post Graduation.
In the instant case, private respondents are Medical Officers. The respondent No.4 was granted study leave to pursue MD (Paediatrics) while serving as Medical Officer. Private respondent No.5 pursued MD (Paediatrics). He could not clarify as to how his studies would be under 'public interest' if, at all, it is admissible under rule 96 of the RSR because as per Government of Rajasthan's Decisions, leave of the aforesaid kind can be granted in public interest. Reference of the judgment in the case of State of Punjab & Ors. Versus Dr. Rajeev Sarwal, [(1999) 9 SCC 240] is given to show that when maximum period of study leave is provided under the rules, it cannot be granted beyond it. Further reference of the judgment in the case of Tara Singh versus State of Rajasthan & ors, [AIR 1975 SC 1487] is given to indicate that if Notes given under the rules are promulgated with the rules in exercise of legislative powers and are made contemporaneously with the Rules, it would be binding. The function of the Notes is to provide procedure and control discretion. The real purpose thereof is that when rules are silent, the Notes will fill the gap.
In view of aforesaid, private respondents were not entitled to any kind of leave more so when it does not involve public interest which is pre-condition for grant of study leave as per the Notes appended to the rules.
A reference of rule 110 of the RSR has been given to show admissibility of the study leave along with Government of Rajasthan's Decisions under it, more specifically, a circular dated 20.2.2004. It is provided that study leave should be granted only when it would be beneficial to the post. In the instant case, studies in DM (Nephrology) is not going to aid or beneficial to the post held by private respondent No.5 thus, from any angle, he is not entitled to study leave and, in that eventuality, his admission in DM (Nephrology) against service quota becomes bad in law. Accordingly, his admission may be cancelled and direction may be issued to give admission to the petitioner in the course aforesaid.
It is lastly urged that private respondent has not submitted documents to show that he had undertaken required service on completion of his earlier studies. If the period of service has not been completed by private respondent as per bond then there would be violation of condition/ undertaking given by him while seeking admission in the earlier course.
Learned counsel for private respondent No.5, on the other hand, submits that entire arguments raised by the petitioner is based on misinterpretation of rule 96 vis-a-vis rule 112 of the RSR. It is no doubt true that private respondent No.5 earlier applied for and was granted study leave but he is not debarred to seek extraordinary leave to undertake further studies. He has not applied for study leave but for extraordinary leave under rule 96 of the RSR. The aforesaid is permissible when other leave is not admissible to an employee. Rule 96 does not provide outer limit of leave for those who are permanent employees. Rule 96 (b) provides maximum period of leave for those who are not permanent employees but proviso to it exclude even those who are appointed on temporary basis but by regular mode of selection and completed three years of service. The private respondent No.5 is a permanent employee thus entitled to extraordinary leave. The reference of rules 110 and 112 of the RSR is not relevant as the private respondent No.5 has not applied for leave under the aforesaid rules.
The private respondents would not claim salary or stipend while undertaking DM (Nephrology) course. The difference between study leave and extraordinary leave is that while one is granted study leave, he is entitled to half salary, whereas for extraordinary leave, nothing is payable thus only, limit is prescribed for study leave which does not exist for extraordinary leave to a permanent employee. The petitioner has unnecessarily confused the issue by referring the provisions pertaining to study leave which has not been sought by the private respondents. The admission to the private respondents is otherwise based on merit and cannot be questioned as to whether leave is due or not and as to which kind of leave is admissible. In view of the above, a challenge to the admission of private respondents in the hands of less meritorious candidate may not be accepted.
Learned counsel appearing for the State Government has supported the arguments of learned counsel for respondent No.5. Copy of the application submitted by private respondents has been shown indicating it not for study leave but a leave of kind permissible as per law. The respondent No.5 was relieved accordingly.
I have considered the rival submissions made by the parties and perused the record.
The issue involved in the present case is regarding admission of respondent No.5 in DM (Nephrology) course. It is not in dispute that petitioner is lower in merit than respondent No.5. The question however is that if respondent No.5 is not entitled to occupy a seat meant for in-service candidate, possibility of admission of petitioner comes out. The challenge is precisely made on the ground that respondent No.5 was not entitled to any kind of leave and if leave is not granted, he would not be eligible for admission to the course against in-service quota. The arguments have been raised in reference to Rules 96, 110 and 112 of Rajasthan Service Rules, thus are quoted hereunder for ready reference:
Rule 96. Extraordinary leave : (a) Extraordinary leave may be granted to a Government servant in special circumstances:
(i) when no other leave is by rule admissible, or
(ii) when other leave is admissible, but the Government servant concerned applies in writing for the grant of extraordinary leave.
(b) Except in the case of a Government servant in permanent employ, the duration of extraordinary leave shall not exceed three or eighteen months on any one occasion, the longer period being admissible, subject to such conditions as the Government may by general or special order prescribe, only when the Government servant concerned is undergoing treatment for:
(i) Pulmonary Tuberculosis in a recognised Sanatorium, or
(ii) Tuberculosis of any other part of the body by a qualified Tuberculosis Specialist or a Civil Surgeon, or
(iii) Leprosy in a recognised Leprosy Institution or by a Civil Surgeon or a Specialist in Leprosy recognised as such by the State Administrative Medical Officer concerned.
Provided that a temporary employee who has been appointed after regular selection as per recruitment rules and who has completed three years regular service shall be entitled to extra ordinary leave on the scales admissible to a permanent Government servant.
(b) (A) Where the extraordinary leave is granted, under sub-rule (b), to a Government servant undergoing treatment for T.B. and he resumes his duty after availing of such leave and earns subsequently half pay leave, the extraordinary leave so availed of by him will be converted into half pay leave and it shall be adjusted against the half pay leave earned.
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.
Note: 1. Diploma holders in any branch of engineering who are entitled to study leave under sub-rule (1) & (2) above may be granted study leave for a period of 24 months and in addition any kind of leave due and admissible to them upto a period of one year to enable them to obtain a degree in engineering. In case any other kind of leave is not due and admissible he may be granted extra ordinary leave not exceeding one year in addition to study leave admissible to him under this rule.
2. Temporary diploma holders in any branch of engineering who have completed continuous three years service and are not covered by the provisions contained in note 1 above may be granted extra ordinary leave for a period not exceeding three years for the purpose of obtaining a degree in Engineering from any University in relaxation of the provisions contained in Rule 96 (b) of Rajasthan Service Rules.
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.
(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.
Rule 96 speaks about extraordinary leave, whereas Rules 110 and 112 are in reference to study leave. The Government of Rajasthan's Decision appended to Rule 96 has also been referred thus aforesaid is also quoted hereunder for ready reference:
Government of Rajasthan's Decision
1. Cases are being received for relaxing provisions of the above rule either on grounds of prolonged illness of the Government servant concerned or to enable him to undertake different courses of studies.
It has been decided that in future the recommendations received from Administrative Department for the grant of extraordinary leave in relaxation of Rule 96 (b) of the Rajasthan Service Rules will be considered only where the following conditions are satisfied:
(i) The Government servant concerned should have completed three years continuous service (including leave admissible under the rules) on the date of expiry of three months extraordinary leave, normally admissible to a temporary employee,
(ii) The total period of extraordinary leave (including three months admissible under the rules) should not exceed:
(a) six months, where the extraordinary leave is required on account of the illness of the Government servant and where the application of grant of such leave is supported by a Medical certificate as required under the rules; and
(b) two years for the purposes of prosecuting studies certified to be in the public interest.
(c) Where a Government servant who is not in a permanent employ fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him, or where such a Government servant., who is granted a lesser amount of extraordinary leave than the maximum amount admissible remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit upto which he could have been granted such leave under sub-rule (b) [he shall, unless the Governor in view of the exceptional circumstances of the case otherwise determines, [be removed from service after following the procedure laid down in the Rajasthan Civil Services (Classification, Control & Appeals), Rules, 1958.]
(d) The authority empowered to grant leave may commute retrospectively periods of absence without leave into extraordinary leave.
The respondent No.5 has already availed study leave on earlier occasion, thus he is not entitled for study leave keeping in mind the duration of leave given under Rule 112. In view of the above, whether respondent No.5 can seek extraordinary leave is an issue to be decided.
Perusal of Rule 96 reveals that if other leave is not admissible under the rules, one can apply for extraordinary leave. The other condition is that even if leave is admissible, the government servant can apply in writing for grant of extraordinary leave. Sub-clause (b) of clause (ii) however speaks about duration but it does not apply to a permanent employee but to a temporary employee. Proviso to it speaks about temporary employee if appointed after due process of selection and completed three years of service.
Learned counsel for petitioner placed much emphasis on the Government decision where maximum period of two years for study leave certified to be in public interest is provided. According to him, study leave can be granted once and even if one applies for extraordinary leave, it remains nothing but study leave only. The Government decision cannot be said to be have same status as Notes appended to the rules which were brought simultaneously to the RSR. The Hon'ble Apex Court in the case of Tara Singh (supra) held that if Notes below the provision were promulgated with the rules in exercise of legislative power, then would be binding in nature. The position of fact is not the same so far as Government decision is concerned. It is moreso when Government decision is of year 1959 and much prior to amendment in the rule, more specifically Rule 112 which was amended in the year 1979. When there exists separate provision for study leave, the Government decision cannot prevail if runs contrary to the rules so notified by way of amendment. The Government decision is only of administrative nature thus period of two years prescribed under Government decision for study leave cannot govern the Rule and if it is allowed to be read as a part of RSR, then there would be a conflict between Government decision and Rule 112 so far as duration given therein. Rule 112(i) provides leave for a period of 12 months at one time. But study leave to the Medical Officer is for maximum period of 36 months if it is for post graduation course. The Government decision decides maximum period of study leave only of two years thus there is a conflict between administrative decision hence Government Decision cannot govern the issue. The issue aforesaid can be considered from other angle inasmuch as Rule 96(i) provides about extraordinary leave where other leave under the rule is not admissible. The extraordinary leave can be sought if study leave is consumed and is not available to a candidate. If extraordinary leave is also considered to be study leave, then it could not be clarified as to when Rule 96(i) would come in operation. From both the angles, it cannot be said as and when study leave is granted, it should not be taken under Rule 96 if earlier study leave has been consumed under Rule 112.
The issue further remains as to whether study leave can be granted other than in public interest. The issue aforesaid has been raised in reference to the Government decision appended under Rule 96. It is taking note of the fact that respondent No.5 would be pursuing DM (Nephrology) course, whereas he is working only as Medical Officer having specialization in Paediatrics. I find that Rule 96 does not provide leave when it is in public interest. So far as Government Decision appended to it is concerned, it cannot hold field after amendment in Rule 112 providing separate provision for study leave. The present case is otherwise not a case of study leave but grant of extraordinary leave hence provision for study leave would not apply to the present matter. The difference between study leave and extraordinary leave is required to be understood. While an employee is on study leave, he is entitled to half of the salary during the period of leave, whereas on extraordinary leave, he would not only lose salary but period of service in certain circumstances. So far as duration of leave given under Rule 96(ii)(b) is concerned, it applies only to temporary employees thus arguments regarding duration would not be applicable to a permanent employee specially with Hindi version. In view of the above, if respondent No.5 has been given admission against seats meant for in-service candidate, there is no illegality. The application submitted by the respondent No.5 is not for study leave but a kind of leave admissible. The extraordinary leave can be taken for any purpose when other kind of leave is not available. It may be in a case for medical reasons and having availed it. The same apply for other kind of leave. If one has already taken study leave, then would not be entitled for study leave.
Learned counsel for petitioner has given reference of a judgment in the case of Dr. Rajeev Sarwal (surpa). Therein, interpretation of Rule 5 of Punjab Study Leave Rules, 1963 was given. The rule aforesaid was quoted in Para 4 which was to provide maximum duration of leave. The issue therein was decided in reference to a provision of study leave only i.e. as to whether one is entitled to the benefit of study leave if he has already availed it. The issue as to whether one is entitled to other kind of leave, which includes extraordinary leave, was not an issue before Hon'ble Apex Court with similar provision as exist under Rule 96 of RSR. In view of the above, the judgment in the case of Dr. Rajeev Sarwal (supra) would not be applicable to the facts of this case, rather this court is also of the view that once study leave has already been availed to the maximum, a candidate would not be entitled to the benefit of study leave. It would however not mean and deprive a candidate to seek kind of leave admissible to him. Taking note of the aforesaid, decision in the case of Dr. Rajeev Sarwal (supra) does not provide any assistance to the petitioner.
The fact further remains that so far as admission in DM (Nephrology) course is concerned, it is not to a less meritorious candidate but to the candidate stand higher in merit and that too when applied and allowed to appear in entrance test while in service. The aforesaid admission cannot be nullified on the issue raised herein.
In view of the above, I do not find any merit in the writ petition. It is accordingly dismissed along with stay application. However, it is made clear and as agreed by respondent No.5, he would not be entitled to any kind of salary or even stipend or benefits during the period while undertaking DM (Nephrology) course.
[M.N.BHANDARI], J.
FRBOHRA/13303CWP2013.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A.