Punjab-Haryana High Court
Dr. Ashok Kumar vs The State Of Punjab And Ors. on 25 July, 1997
Equivalent citations: (1997)117PLR727
Author: Swatanter Kumar
Bench: K.S. Kumaran, Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. The petitioner Dr. Ashok Kumar had joined as medical officer in the Directorate of Health and Family Welfare, Punjab, on 5.7.1978 and his services were regularised with effect from 3.8.1983. The petitioner appeared in the entrance test examination held for M.D./M.S. Courses under 60% quota reserved for in-service medical officers, in the Medical College, Amritsar. The petitioner was selected and granted admission to M.D. (Pathology) Course. The admission of the petitioner was subject to the production of the No Objection Certificate from its employer. The Director, Health and Family Welfare, Punjab, issued no objection certificate on 5.9.1991 and the issuance of the no objection certificate was subject to the condition that the controlling authority was to verify that an officer is relieved subject to fulfillment of the conditions. In furtherance to this no objection certificate the petitioner was called upon - and he furnished a bond in the prescribed performa issued by the Government on 16.9.1991 alongwith an affidavit of the sureties of the same date. Consequently, the petitioner was relieved who joined this course of M.D. (Pathology) at Medical College, Amritsar.
2. The petitioner completed his course but was not paid full pay and allowances for the entire period of the Course i.e. 3 years on the ground that he had availed of such benefit earlier in a diploma course. This compelled the petitioner to file the present writ petition praying for issuance of directions to the respondents for payment of full pay and allowances for the complete course without any direction.
3. The petitioner based his claim, amongst others, on the ground that a Division Bench of this Court had granted similar relief to the petitioner in Civil Writ Petition No. 6783 of 1992 titled as Dr. Jaswant Singh Bhinder v. State of Punjab, decided on 31.3.1994. In the case of Dr. Bhupinder Singh v. The State of Punjab, Civil Writ Petition No. 16378 of 1992 decided on 31.5.1994, Ajit Singh v. State of Punjab and Ors., Civil Writ Petition No. 15262 of 1992 decided on 8.4.1993 other Benches of this Court had also granted identical reliefs to the petitioner as granted in the case of Dr. Jaswant Singh (supra).
4. When the present writ petition came up for hearing and the afore-sated order/judgments of the Court were brought to the notice of the Hon'ble Division Bench hearing the present writ petition No. 7247 of 1995, the Bench, for the reasons recorded in the order of reference dated 24.5.1995, directed that the case be admitted for hearing to a Full Beach. This is how the present writ petition has come up for hearing before the Full Bench.
5. In order to properly consider the respective contentions raised on behalf of the parties to the writ petition, we feel, it appropriate reproduce the order of reference dated 24.5.1995 as under:-
"Present - Mr. Dharamvir Sharma, Advocate for the petitioner.
Jawahar Lal Gupta, J.
The petitioner, a member of the Punjab Civil Medical Service, was selected for admission to a Post Graduate Course leading to the degree of M.D. (Pathology). A 'No Objection Certificate' permitting him to join the Course was issued by the Director, Health and Family Welfare, Punjab, vide letter dated September 5,1991. In this certificate, it was, inter alia, provided as under:-
"3. It should be ensured that he has not availed the privilege of full pay and allowance/stipend previously. This privilege of full pay and allowances/stipend will not be available to any Candidate for more than three years.
The petitioner avers that he had joined course on September 30,1991 and that the respondents have stopped the payment of his salary and allowance from September 19, 1993 onwards. It is, however, admitted by him that he had prior to the year 1991 studied for a Post Graduate Diploma Course in Clinical Pathology and Microbiology at Medical College, Amritsar for a period of one year and had been paid full salary and allowances. The petitioner complaints that the aforesaid condition by which the payment of full pay and allowances has been restricted to a period of three years, is illegal and arbitrary. Is it so?
We have heard Mr. Dharamvir Sharma, learned counsel for the petitioner Relying on the decisions in Civil Writ Petition No. 15262 of 1992, decided on April .8, 1993 and the Division Bench judgment in Civil Writ Petition No. 6783 of 1994, decided on May 31, 1994, the learned counsel has submitted that the condition imposed by the respondents is wholly illegal and deserves to be quashed.
After having heard learned counsel for the petitioner, we find that there is no rule or law under which a member of the Civil Medical Service may be entitled to claim full salary for the period during which he studies at a Medical College for the award of a diploma or degree. It is a concession conferred by the Department by which the officer is paid while he is studying at a Medical College. The competent authority, has, however, restricted the grant of benefit to a period of three years. In other words, the officer may study for any number of years by taking leave etc., if permitted by the Department. However, the concession of payment of full salary and allowances is restricted to a total period of three years. Since the officer has no statutory right to the grant of full salary during the period of study, the action of the authority in restricting the grant of benefit to a period of three years can neither be said to be illegal nor arbitrary or unfair. In our view, it is a concession which cannot be claimed as of right. The action of the authority is not violative of any statutory provisions of the Rules or in derogation of any legal right of the petitioner. Consequently, the officer has no right to claim payment of full wages for a period beyond three years.
Even otherwise, the employer has the right to take a policy decision in the matter. There are various cadres of civil servants under the State. There are Teachers, Engineers, Doctors and various other categories of civil servants. If the State were to permit its officers to go in for higher studies leading to the award of degrees or diplomas in their respective fields, it may place a very unfair arid heavy financial burden on the State. The State may not have the resources to meet such a financial burden. If on consideration of the matter, the State has taken a policy decision to restrict the grant of full pay and allowances to a total period of three years, we are of the view that the action is absolutely just and reasonable. It calls for no interference at the hands of the Court.
There is another aspect of the matter. In September, 1991 when the Director, Health Services, issued the No Objection Certificate, the petitioner was informed that he would be paid salary of allowances for a period of three years only. The petitioner accepted this condition and joined the course. Factually, he had been paid full salary for a period of one year when he had studied for the award of diploma in pathology and microbiology. Thereafter, he has been paid for two years from September 1991 to August 1993. Thus, the Department has fulfilled its commitment as postulated in the No Objection Certificate. The petitioner having accepted the express condition and having taken the advantage of getting salary for the requisite period, is now estopped from challenging it.
We have perused the decisions in the aforesaid two cases. In fact, it appears that similar other matters have also been decided by this Court. Since we have reservations about the views expressed in the aforesaid decisions and more particularly in view of the fact that the pointed attention of the court had not been invited to the specific condition in the respective certificates issued by the Department, we deem it appropriate to admit this case to a Full Bench for decision.
We order accordingly. Let notice of this petition issue to the respondents and on completion of service, the case should be listed for hearing before a Full Bench after obtaining appropriate orders from Hon'ble the Chief Justice. Since the point arises very often, it would be appropriate to expedite the hearing of the case.
Sd/- Jawahar Lal Gupta, J.
May 24, 1995. Sd/- K.K. Srivastava, J.
6. As is evident from the facts narrated above that the petitioner was permitted to join the course in furtherance to the no objection certificate issued by the respondents and after he had furnished the bonds and was relieved from duty. The subject of the no objection certificate dated 5.5.1991 (Annexure P/1 to the petition) and its terms clearly indicate that petitioner was given permission to be admitted to the P.G. Course in the State Medical College Sessions 1991 'Three Years Residency Course'. In order to appropriately examine the cumulative effect of this no objection certificate read in conjunction with the bond and the affidavit furnished by the petitioner, in furtherance to which the petitioner was relieved from his duty to join the course, we must look into unambiguous terms of these documents. The relevant portion of the no objection certificate issued by the respondents reads as under:-
"Subject:- Issue of No Objection Certificate to PCMS Officers seeking admission to P.G. Course in State Medical College-Sessions, 1991, 3 Years Residency Course."
xx xx xx xx "1. He will have to execute a bond on the revised performa to serve the Punjab Govt. for 5* remaining period of the previous bond on completion of the P.G. Course (M.D. Path) or in default shall be liable to pay Rs. 1,00,000/-+Rs. 50,000/- as bond money of previous bond to the Punjab Govt.
2. He will be entitled to full pay during the permissible period of the course provided he is having 5 years service including three years rural service.
3. It should be ensured that he has not availed the privilege of full pay and allowances/stipend previously. This privilege of full pay and allowances/stipend will not be available to any candidate for more than three years.
4. xx xx xx xx
5. Those doctors who have already been given HOCS for 2 years PG course and now are being given NOCS for 3 years PG course can avail any of the NOCS according to their choice."
Clause (3) of the afore stated letter placed an obligation upon the department concerned to ensure that a person who has not availed the privilege of full pay and allowances previously should be granted such permission, as such benefit would not be available to him for a period of more than three years. Vide the same letter the persons who were granted permission to do two years P.G. Course were also given extension for the third year.
7. It must be noticed here that earlier the Post Graduate Courses not only in M.D. but also in M.S. etc. were of duration of two years and diploma courses in various specialities were of one year. However, subsequently the duration of degree post graduate course was extended to three years, but Diploma Courses continued to be for the same period. With this background in mind, one has to read Clause (2) of the letter of No Objection Certificate with the material terms and conditions of the bond which were furnished by the petitioner and reads as under :-
"He will be entitled to full pay during the permissible period of the course ...."
The Sub-clause (ii) and even Sub-clause (iii) read in its correct perspective offer to give concession of full pay, stipend/allowances to a candidate for the entire duration of a course, which at the relevant time was for a period of three years. The bond, performa of which was furnished by the respondents itself, was executed by the petitioner and it contained the following specific terms :
"Whereas the Government has selected the obliger for undergoing training connected with in M.D. (Pathology) for the period from September, 1991 to September 1994 at Medical College, Amritsar, at the cost of Government by granting the leave of kind due full pay and allowances/study leave on the conditions of the obliger and sureties furnishing a bond as is herein contained."
"Now the condition of the above written obligation is such that if the obliger shall return to 0dqty after expiry of termination of the period of said training and serve the government after the period of five years plus remaining period of one year of the previous bond after his return to duty when the above written bond shall be void, but otherwise it shall in force and virtue."
8. Upon furnishing of the bond containing the above terms the petitioner was relieved from his post of blood transfusion officer to join the Medical College Amritsar. The true and correct intention of the parties appears to us that the permission granted to the petitioner was for the course and not a part thereof. The learned counsel appearing for the petitioner argued that the bond has to be read as an independent document dehors the no objection certificate granted by the Government or any other document. He further contended on this basis that the respondents are obliged to pay him full pay allowances and stipend for the entire period of course as the document does not admit any other interpretation.
9. On the other hand, it has been contended on behalf of the State and which is the sole ground of attack that the petitioner was not entitled to any such benefit because he had already done a diploma course and as such the period of the present course for the purposes of grant of benefit ought to be curtailed.
10. The contention of the learned counsel for the petitioner is ill-founded because the bond cannot be treated as an independent document but was an document executed in furtherance to the issuance of the no objection certificate itself as required under Term-1 of the letter. Thus, both these documents i.e. the no objection certificate and the bond and affidavit accompanying thereto would have to be construed together. The construction of these documents has to be interpreted keeping in mind the intention of the parties and the purpose for which these documents were executed.
11. The State has provided reservation for in-service candidates to pursue the diploma and/or Post Graduate Courses in medicine and surgery. The purpose behind such an intention is obvious as the Government desires that the doctors working in its various hospitals should be more qualified and preferably specialist in their branches. This reasoning has a direct nexus to the object sought to be achieved by grant of such permissions. A doctor who is granted such a permission is further required to serve the State minimum for the bond period and preferably for the larger period as well, in view of the benefits that accrue to him during the period when the doctor pursues his course. The State has the authority to grant permission for such purpose or decline the same. But once the State exercised its discretion in favour of the petitioner, the State cannot be permitted to go back on such permission to the disadvantage of the applicant. It is equally true that the Government intended to give permission for the period of the course and not in excess thereof. The words period of training, full course and at the cost of the Government as per the course" clearly indicate such intention on the part of the Government. The permission so granted is obviously subject to furnishing of a bond for the discharge of obligation imposed upon the obliger-applicant. Acceptance of such bond by the Authorities attaches finality to such permission and it becomes binding inter-se the parties. If an officer has been granted permission for the duration of the Post Graduation Course, which is three years, and he fails to complete the course within the prescribed period, the Government inspite of such sanction would obviously be not bound to grant concession to the candidate beyond the period of the course. Inability or failure on the part of an applicant-doctor to complete his course within the prescribed period of the course, would not entitle him to any further benefit. But this restriction will be hardly of any consequence if the candidate has completed his course within the prescribed period, then he should be entitled to the benefit of the permission of the Government, once it is exercised in his favour. This to us appears to be the correct interpretation of the afore-stated terms seen in the background of the facts and circumstances of this case.
12. The power of the State Government to grant such permissions by a general or special order springs from the statutory provisions contained in the Punjab Civil Services Rules, as admittedly applicable to the present case. Rule 8.126 reads as under:-
"8.126. Leave may be granted to Government employees on such terms as may be prescribed by general or special orders of the competent authority to enable them to study scientific, technical or similar problems or to undergo special courses of instruction, such leave is not debited against the leave account."
13. The above rule is not only unambiguous but is a definite power vested in the competent authority to grant such leave for the study purposes as a matter of general policy or even as a special order. In furtherance to this statutory power the Government exercised its discretion and granted permission to the petitioner to join the course. From the aforestated terms and conditions of the no objection certificate and the bond it does not appear to us that the State Government ever intended to give benefit to the petitioner for a period Shorter than the period or duration of the course.
14. Necessary corollary to this argument is whether the State can be permitted to act contrary to its sanction and reduce the period of the course or reduce the benefit available to the petitioner for that period, in the facts and circumstances of the present case. Though, the principle of estoppel finds its origin in the provisions of the Indian Evidence Act, yet it is ultimately founded on basic principles of equity and good conscience. Once it is shown before the Court that the Authority concerned had the power to pass an order under the Rules and the Government had exercised discretion vested in it by general or special order in conformity with the rules on which the obliger has acted, then normally the State would be held to the sanction granted in its true spirit and substance. By Judicial pronouncements certain exceptions have been carved out to the application of this rule. If by issuing such permission or while passing an order in exercise of its powers, fraud has been played upon the authority concerned or powers have been exercised contrary to law or to violate implicit prohibition of law or rules and if it relates to a policy which had been altered in larger public interest are some of the exceptions to this rule. Obviously the Court has to apply these principles keeping in mind the facts and circumstances of each case and in our view, it would not be permissible to provide straight jacket formula which would universally be applicable to each and every case.
15. The basic ingredients which would normally bind a party to its promise or permission are that there should be clear promise or permission on behalf of the State, which should be in conformity with the rules and regulations and other persons should be acted thereupon, through not necessarily to his prejudice. These ingredients have been fully satisfied in this case. The provisions of promissory estoppel are certainly attracted in the present case against the State. The State had issued no objection certificate for the duration of the course at the cost of the State. The petitioner had executed a bond which contained definite terms in regard to duration of course which was accepted by the authorities and consequently the petitioner was relieved from his busy in the hospital to join the course at Medical College Amritsar. Further more, obligation was on the controlling authority to verify the facts and compliance of the rules in terms of the no objection certificate dated 5.9.1991 before relieving the petitioner.
16. Having taken the above exercise and having granted permission to the petitioner in its discretion, the Government would be estopped from varying the terms of the No Objection Certificate or construing the terms of the bond to the disadvantage of the petitioner. We are unable to see as to what prejudice is likely to be caused to the State as the petitioner had executed the prescribed bond in favour of the State. The bond specified the minimum period of service which the petitioner was required to render after completing the course to the State, in default thereof he was liable to pay specified sum to the Government.
17. Promissory estoppel being an extension of principle of equity its basic purpose is to promote justice founded on fairness and relieve of promisee of any injustice perpetrated due to promissor going back on his promise unless it is contrary to 1 public policy or prohibited by law. (Amrit Banaspati Co. and Anr., v. State of Punjab and Anr., JT 1992(2) S.C. 217). The present case is certainly not one where the permission was ultra vires the Rules or competence of the Authority granting such relief. Thus, the Court would not come to the rescue of the defaulting party and more so when the action springs from exercise of powers in furtherance to the statutory provisions laid down by Hon'ble Apex Court in the case of Vasant Kumar Radha Kishan Vora v. The Board of Trustees of Port of Bombay, JT 1990(3) S.C. 609.
18. Another contention raised on behalf of the petitioner which certainly deserves to be considered appropriately is, that in number of other cases where this Court had granted reliefs to the petitioners identically placed like this petitioner, the State Government had preferred Special Leave Petition before the Hon'ble Supreme Court of India, which was dismissed in limine. Dr. Bhupinder Singh v. State of Punjab, Civil Writ Petition No. 16378 of 1992 is one of such cases where Special Leave Petition was dismissed by the Supreme Court of India. On this premises the State had not even preferred any Special Leave Petition in the case of Dr. Satinder Singh Bedi v. State of Punjab, Civil Writ Petition No. 3113 of 1994, which was also allowed by the Division Bench of this Court. This as a fact is not disputed by the learned counsel appearing for the State. However, he submits that leve to grant Special Leave Petition being dismissed in limine does not debar the State from challenging or raising similar issue again before the High Court or Hon'ble Supreme Court in subsequent petitions. He further submits that neither it operates as res-judicata against the State nor such dismissal amounts to laying down the law within the meaning of Article 141 of the Constitution of India. For this purpose, the learned counsel for the respondents has relied upon various judgments of the Supreme Court and of this Court in the cases of State of Maharashtra v. Digambar, AIR 1991 SC 1991, Supreme Court Employees Welfare Association v. Union of India and Ors., AIR 1990 S.C. 334, Rup Diamonds and Ors. v. Union of India and Ors., AIR 1989 S.C. 674, Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port and Anr., AIR 1978 S.C. 1283 and Full Bench decision of this Court in the case of Punjab State Electricity Board, Patiala and Anr. v. Ashok Kumar Seghal and Ors., AIR 1990 Punjab and Haryana 117. The above propositions of laws placed before us by the learned counsel for the respondents are no longer rest integra and have been finally settled by Hon'ble Supreme Court of India in the cases referred (supra). Though, we consider it now unnecessary to embark upon any further discussion in their regard, for the purpose of determining the controversy in the writ petition before us, but we can also not completely ignore the fact that the various Benches of this Court have granted reliefs to the petitioners in other writ petitions and Special Leave Petitions preferred against such judgments of this Court have been dismissed by Hon'ble Apex Court. Specially when the contentions raised on behalf of the respondents, as noticed above, have already been discussed and rejected by us. To grant or decline such permission is the discretion of the Department, to provide clarity in the terms and conditions of the document of the present nature is the obligation of the State and to accept the document so executed is part of State action. Having gone through this exercise, if the documents admit any ambiguity then they cannot be construed or interpretted to the disadvantage of the party, who acted in furtherance to such document or permission as commanded by the State. The State would not be permitted to interpret the document and act to the prejudice of the employees. Fairness in State action is the very foundation of administrative and executive exercise of powers. It is the settled rule of interpretation of documents that they must be read as they have been written. Terms of the and even specified the dates i.e. Sept., 1991 to Sept., 1994 to be the period for which the petitioner was given permission to join in the course at State expense. In its discretion, the State had certainly the right to decline such permission for valid and proper reason and by using clear and definite terms. As we see the documents in question, they do not admit any other plausible meaning which would be in conformity with the real intention of the parties executing such documents than the one given by us.
19. According to the reference order, the case itself was referred to the Full Bench for decision. Consequently we proceed to dispose of the writ petition in the following manner;
20. For the reasons aforestated, we allow this writ petition and hold that the petitioner is entitled to get pay and allowance/stipend for the complete duration of the course (i.e. three years). The respondents are directed to make the payment to the petitioner within one month from today. Keeping in view the facts and circumstances of this case, we decline the claim of interest raised by the petitioner in this writ petition on the said amount. The petition is allowed and there shall be no order as to costs.