Rajasthan High Court - Jaipur
State Of Raj And Anr vs Ram Singh Shekhawat on 6 May, 2016
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICIATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. D.B.Special Appeal (Writ) No. 1077/2014 45. D.B.Special Appeal (Writ) No. 1000/2015 2. D.B.Special Appeal (Writ) No. 117/2015 46. D.B.Special Appeal (Writ) No. 118/2015 3. D.B.Special Appeal (Writ) No. 1734/2014 47. D.B.Special Appeal (Writ) No. 1815/2014 4. D.B.Special Appeal (Writ) No. 1867/2014 48. D.B.Special Appeal (Writ) No. 1868/2014 5. D.B.Special Appeal (Writ) No. 1869/2014 49. D.B.Special Appeal (Writ) No. 1870/2014 6. D.B.Special Appeal (Writ) No. 1871/2014 50. D.B.Special Appeal (Writ) No. 1872/2014 7. D.B.Special Appeal (Writ) No. 1873/2014 51. D.B.Special Appeal (Writ) No. 1874/2014 8. D.B.Special Appeal (Writ) No. 1879/2014 52. D.B.Special Appeal (Writ) No. 1880/2014 9. D.B.Special Appeal (Writ) No. 1881/2014 53. D.B.Special Appeal (Writ) No. 1882/2014 10. D.B.Special Appeal (Writ) No. 1883/2014 54. D.B.Special Appeal (Writ) No. 1884/2014 11. D.B.Special Appeal (Writ) No. 1885/2014 55. D.B.Special Appeal (Writ) No. 1886/2014 12. D.B.Special Appeal (Writ) No. 1887/2014 56. D.B.Special Appeal (Writ) No. 1888/2014 13. D.B.Special Appeal (Writ) No. 1889/2014 57. D.B.Special Appeal (Writ) No. 1890/2014 14. D.B.Special Appeal (Writ) No. 1891/2014 58. D.B.Special Appeal (Writ) No. 1892/2014 15. D.B.Special Appeal (Writ) No. 1893/2014 59. D.B.Special Appeal (Writ) No. 1894/2014 16. D.B.Special Appeal (Writ) No. 1895/2014 60. D.B.Special Appeal (Writ) No. 1896/2014 17. D.B.Special Appeal (Writ) No. 1897/2014 61. D.B.Special Appeal (Writ) No. 1898/2014 18. D.B.Special Appeal (Writ) No. 1899/2014 62. D.B.Special Appeal (Writ) No. 1900/2014 19. D.B.Special Appeal (Writ) No. 1901/2014 63. D.B.Special Appeal (Writ) No. 191/2015 20. D.B.Special Appeal (Writ) No. 192/2015 64. D.B.Special Appeal (Writ) No. 1956/2014 21. D.B.Special Appeal (Writ) No. 1957/2014 65. D.B.Special Appeal (Writ) No. 1958/2014 22. D.B.Special Appeal (Writ) No. 1959/2014 66. D.B.Special Appeal (Writ) No. 1960/2014 23. D.B.Special Appeal (Writ) No. 1961/2014 67. D.B.Special Appeal (Writ) No. 1962/2014 24. D.B.Special Appeal (Writ) No. 1963/2014 68. D.B.Special Appeal (Writ) No. 1964/2014 25. D.B.Special Appeal (Writ) No. 1965/2014 69. D.B.Special Appeal (Writ) No. 1966/2014 26. D.B.Special Appeal (Writ) No. 1967/2014 70. D.B.Special Appeal (Writ) No. 1968/2014 27. D.B.Special Appeal (Writ) No. 1969/2014 71. D.B.Special Appeal (Writ) No. 1970/2014 28. D.B.Special Appeal (Writ) No. 1971/2014 72. D.B.Special Appeal (Writ) No. 1972/2014 29. D.B.Special Appeal (Writ) No. 1973/2014 73. D.B.Special Appeal (Writ) No. 1974/2014 30. D.B.Special Appeal (Writ) No. 1975/2014 74. D.B.Special Appeal (Writ) No. 1976/2014 31. D.B.Special Appeal (Writ) No. 1990/2014 75. D.B.Special Appeal (Writ) No. 2/2015 32. D.B.Special Appeal (Writ) No. 2000/2014 76. D.B.Special Appeal (Writ) No. 2012/2014 33. D.B.Special Appeal (Writ) No. 2013/2014 77. D.B.Special Appeal (Writ) No. 2014/2014 34. D.B.Special Appeal (Writ) No. 2045/2014 78. D.B.Special Appeal (Writ) No. 2124/2014 35. D.B.Special Appeal (Writ) No. 2125/2014 79. D.B.Special Appeal (Writ) No. 2126/2014 36. D.B.Special Appeal (Writ) No. 2128/2014 80. D.B.Special Appeal (Writ) No. 2129/2014 37. D.B.Special Appeal (Writ) No. 2130/2014 81. D.B.Special Appeal (Writ) No. 2131/2014 38. D.B.Special Appeal (Writ) No. 2132/2014 82. D.B.Special Appeal (Writ) No. 2133/2014 39. D.B.Special Appeal (Writ) No. 2134/2014 83. D.B.Special Appeal (Writ) No. 2135/2014 40. D.B.Special Appeal (Writ) No. 2136/2014 84. D.B.Special Appeal (Writ) No. 2137/2014 41. D.B.Special Appeal (Writ) No. 2138/2014 85. D.B.Special Appeal (Writ) No. 2139/2014 42. D.B.Special Appeal (Writ) No. 287/2015 86. D.B.Special Appeal (Writ) No. 288/2015 43. D.B.Special Appeal (Writ) No. 289/2015 87. D.B.Special Appeal (Writ) No. 3/2015 44. D.B.Special Appeal (Writ) No. 998/2015 88. D.B.Special Appeal (Writ) No. 999/2015 Order reserved on : 6th April, 2016. Date of Order : 6th May, 2016. PRESENT REPORTABLE HONBLE THE ACTING CHIEF JUSTICE MR.AJAY RASTOGI HONBLE MR.JUSTICE J.K.RANKA Mr.N.M.Lodha, Advocate General assisted by Mr.Shyam Arya, Addl.Advocate General & Mr.Vishal Sharma ] Mr.Sheetanshu Sharma ] Counsel for appellant-State. Mr.Mahendra Sharma ] Mr.Ankur Rastogi ] Dr.Saugat Roy ] Mr.M.F.Baig ] Counsel for respondents. Mr.Sanjay Gangawar ] Mr.P.C.Dewanda ] Mr.Ramavtar Bochliya ] BY THE COURT (Per Honble The Acting Chief Justice):
Instant intra-court appeals have been preferred against self same judgment of the ld.Single Judge passed in the batch of writ petitions dt.30.08.2011 followed with review petitions which came to be dismissed vide order dt.17.10.2013.
Since the present batch of appeals are based on common question of law and facts, as such with the consent of the parties are being disposed of by the present judgment and the facts have been noticed from SAW No.1077/2014 & Review Petition No.198/2012 in Civil Writ Petition No.4415/2010.
The brief facts which culled out from the averments made in the writ petitions indicate that the respondents (writ petitioners) are working either as ANM (Auxiliary Nursing & Midwifery) or Lab.Technician, Multi-Purpose Worker, Accounts Clerk or other similarly situated posts and by and large are members of the Rajasthan Medical & Health Subordinate Service Rules, 1965 have applied for the course of General Nursing Training which is of three years duration and is regulated according to the General Nursing Training Course Rules, 1990, framed in exercise of powers conferred under sub-sec.(1) of Sec.33 of the Rajasthan Nurses, Midwives, Health Visitors and ANM Registration Act, 1964. The candidates are selected for training by open selection and in-service candidates are also eligible for admission provided they fulfill the conditions of eligibility for admission to in-service candidates as envisages u/R.9 & 11 of the Rules, 1990.
Indisputably, in the instant batch of appeals all the in-service candidates admitted to the training course under the General Nursing Training Course Rules, 1990 on fulfillment of the condition prescribed u/R.9,10,11&14 of Rules, 1990. R. 9,10,11 & 14 of the Rules, 1990 which are relevant for the present purpose and relate to in-service staff working under the Medical, Health & Family Welfare Department and their services are regulated according to the Rules, 1965, with which we are concerned, are reproduced ad infra:-
9. Admission to in-service candidates.- (i) In-service staff working under the Medical, Health and Family Welfare Department shall be eligible for admission provided they fulfill prescribed qualification.
(ii) There shall be no deputation for Government servant, if selected. They shall have to take any leave which is permissible to him/her.
(iii) In-service candidates selected for the said course shall have to abide by the rules applicable to other non-service candidates in the matter of discipline, leave attendance etc.
10. Criteria for admission.- (i) There shall be no reservation for in-service candidates.
(ii) All the eligible candidates shall compete with the other candidates. However a weightage of tenure of service to in-service candidates shall be given by addition of 1% marks for each completed year of continuous service done by the candidate to the total percentage of marks obtained in the qualifying examination.
11. Eligibilities for in-service candidates.- (i) In-service candidates are eligible only after completion of 5 years service.
(ii) There age limit shall extend upto 35 years as on 1st October of the training year. The educational qualification shall be the same as those of direct recruitment.
(iii) In-service candidates will have to apply on the same prescribed form obtained from concerned training centre. The candidates shall have to submit his/her forms with service particulars duly verified by his/her controlling officer. He/She can also send advance copy to authority concerned. It shall be considered by Selection Board but merit shall be decided only after receiving the original application of the in-service applicant.
14. Stipend.- (i) Candidates shall be paid stipend at the rate prescribed by the Government from time to time and stipend will be paid for a maximum period of total duration of the course.
(ii) A candidate who fails to pass any examination, the stipend will be discontinued for the period till the candidate passes that examination.
(iii) The stipend of first three months will be released to candidates on passing of P.T.S.examination.
In-service working staff of the department of Medical, Health and Family Welfare are considered to be eligible for admission provided they fulfill the prescribed qualification, as contemplated u/R.9(i) & (ii) of the Rules, 1990, which clearly mandate that there shall be no deputation for the Government Servants & be entitled for stipend, if selected and they shall have to take leave which is permissible to him/her and it is at the discretion of the appointing/competent authority to treat his/her as a course of General Nursing Training other than the one which is permissible/admissible u/R.9 & 14 of the Rules, 1990.
Indisputably, all the respondents/writ petitioners submitted their application, in the prescribed proforma as in-service candidates, seeking admission to the course of General Nursing as envisaged u/R.9 of the Rules, 1990 and obviously such of the in-service candidates could be considered eligible to seek admission provided they fulfill the criterian for admission and eligibility u/R.11 of the Rules, 1990. At the same time, who are finally found suitable to be admitted to the course of General Nursing are entitled to be paid stipend, as referred to u/R.14 of the Rules, 1990.
The respondents/writ petitioners submitted their application for seeking study leave knowing it fully well that joining 3 years Nursing Course when the Rules, 1990 cannot be treated on deputation for the in-service candidates and after qualifying the training of General Nursing under the Rules, 1990, certificates were issued to each of them which make such candidates eligible to make their future prospectus better & eligible for participating in the selection process to be held for the post of Nurse Gr.II, a post included to Schedule appended to the Rules, 1965 to be filled 100% by direct recruitment and three years course of General Nursing undertaken by the in-service candidates in no manner benefit to the public at large or it is in the public interest but at the same time, such training is being imparted and acquired by the candidates only for their own better future and to obtain eligibility for participation in the selection process for the post of Nurse Gr.II, a post which is included in the scheme of Rules, 1965.
After the writ petitioners completed their course or some of them either doing their internship or few after completion of their internship filed writ petitions before the ld.Single Judge of this court and prayed that in view of the R.109 & 110 of the Rajasthan Service Rules, study leave sanctioned to them by the competent authority may be treated as on deputation and made following prayer in the representation:-
... that by an appropriate writ, order or direction, the respondents may be directed to treat the petitioner as on deputation for the course of General Nursing Training and respondents may be further directed to pay full salary and allowances including compensatory allowance till the completion of training with interest.
At the outset, it may be noticed that before the present batch of writ petitions came up for consideration before the ld.Single Judge of this court, the self same controversy was examined before the Main Seat at Jodhpur in S.B.Civil Writ Petition No.6186/2008 [Smt.Sunni John & Another Vs. State of Rajasthan & Another] decided on 21.10.2009 and the ld.Single Judge of this court keeping into consideration R.9 of the Rules, 1990 and sub-rule(ii) of R.9, in particular, observed that once the mandate of Rule is clear and needs no further interpretation, the duration of training could not be considered as on deputation and it has been rightly treated as period on leave availed by the writ petitioners and the Single Bench judgment of this court which was relied upon by the writ petitioners in Iqbal Ahmed Afridi Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.2760/1988] decided on 15.02.2000 and in the case of D.S.Nathawat Vs. Rajasthan Civil Services Appellate Tribunal & Ors. [D.B.Special Appeal (Writ) No.1468/2006] decided on 03.03.2008 observed that these have no application for the reason that the scheme of Rules, 1990 was not brought to notice of the court and apart from it, the training was acquired by each of them, for the period prior to the Rules, 1990 came into force may not be of any assistance for the petitioners and finally observed that in view of sub-rule (ii) of R.9 of the Rules, 1990, the period in which the petitioners undertook training cannot be treated as a period on deputation and the writ petitions came to be dismissed by the ld.Single Judge vide judgment dt.21.10.2009. In furtherance thereto, another writ petition came up before the Main Seat at Jodhpur S.B.Civil Writ Petition No.3856/2008 [Jitendra Kumar Bhargav & Ors. Vs. State of Raj. & Ors.] it was also jointly prayed to treat their period of training as on deputation, the ld.Single Judge of this court taking note of the earlier judgment of coordinate Bench in S.B.Civil Writ Petition No.6186/2008 [Smt.Sunni John & Another Vs. State of Rajasthan & Another] decided on 21.10.2009 and also the view expressed in the case of Iqbal Ahmed Afridi & D.S.Nathawat (supra), concurred with the view expressed by the coordinate Bench at the Main Seat, Jodhpur dt.21.10.2009 and dismissed the writ petition vide judgment dt.12.08.2010 taking note of sub-rule (ii) of R.9 of the Rules, 1990 and observed that the case of D.S.Nathawat (supra) is not applicable in the instant case and in the light of R.9(ii) of the Rules, 1990, the period of training could not be treated to be as on deputation, as prayed for. In the light of two coordinate Benches of this court where the batch of writ petitions came to be considered before the Bench at Jaipur, the appellants (respondents before the ld.Single Judge) relied upon the judgment and dealing with the self same controversy, decided before Main Seat at Jodhpur, of which we have made a reference supra, submitted that in the light of the judgment relied upon, the controversy stands decided and the batch of writ petitions be disposed of accordingly but we find that the ld.Single Judge in the impugned judgment before us dt.30.08.2011 has taken note of both the judgments of the coordinate Single Bench of this court at Main Seat at Jodhpur dt.21.10.2009 in the case of Smt.Sunni John (supra) followed vide judgment dt.12.08.2010 in the case of Jitendra Kumar Bhargav (supra) did not consider it appropriate to refer the matter before the Division Bench, if he was not convinced with the view expressed which were binding upon him but took note of the unamended provisions of the Rajasthan Service Rules and making a microscopic artificial distinction which was an eye wash and without there being any factual basis or foundation allowed the batch of writ petitions with following directions:-
Looking to the aforesaid, these writ petitions are being disposed of with the following directions -
1. Respondents are directed to comply with the observations and expectations of the Hon'ble Apex Court as given in the case of Sushil Sharma (supra), thereby, they will not allow benefit of deputation allowance to anyone in violation of rule 112 read with rule 97 of the RSR. This is irrespective of the categories of the post in the respondent department;
2. If there is shortage of Junior Specialist, endeavour should be to amend the Rules so that direct recruitment can be made, as presently aforesaid post is filled up by promotion only. However, on the pretext of shortage of Junior Specialist, respondents cannot be allowed to violate or circumvent the rules. This is more so when it goes even against the observations and expectations of the Hon'ble Apex Court in the case of Sushil Sharma (supra). The respondents will accordingly allow study leave and benefit thereupon as per rule 111 and 112 read with rule 97 of the RSR;
3. Since, for many posts, benefit of study leave with full salary has been allowed, hence, to avoid discrimination, respondents have agreed to extend similar benefit to the petitioners also, however, arrangement aforesaid would be limited to those who have already joined the training course of GNM and, now, onwards, nobody would be allowed study leave benefit in violation of the provisions of RSR;
4. Compliance of the aforesaid order may be made within a period of one month from the date of receipt of copy of this order.
Against judgment of the ld.Single Judge intra-court appeals were preferred by the present appellants and relying upon judgment of the Apex Court in the case of State of Rajasthan Vs. Sushil Sharma [Civil Appeal No.5283/2001] dt.10.08.2001 and submitted that two wrongs cannot make one right and any concession of the counsel, which has been recorded, if is contrary to the provisions of law that may not have a binding effect and merely because some Officer has been given some unwarranted favour, it cannot be a ground for the Rules being allowed to be violated. Taking note of the view of the Apex Court, the Division Bench was of the view that the ld.Single Judge ought to have dealt with the matter on merits and prima facie, good case of review was made out and accordingly, while dismissing the batch of special appeals vide order dt.03.09.2012 granted liberty to the appellants of filing review applications and ordered that if such review applications are filed, the same be decided on merits.
Pursuant to the liberty granted by the Division Bench of this court disposing of the batch of Special Appeals vide order dt.03.09.2012, review petitions were preferred and it appears from the record that the ld.Single Judge directed the Principal Secretary of the department to remain present before the court and in his presence considered the review petitions filed by the review petitioners and recorded his consent that since Doctors are entitled to full benefits during the course of study leave, the same can be considered in the case of present respondents/writ petitioners as well, with the rider that implementation of judgment would remain as one time arrangement only and would not apply to those who took study leave after the pronouncement of the judgment and after recording concession of the counsel for State modified its earlier order impugned in the review petitions vide order dt.17.10.2013 and observed that the benefits arising out of the judgment would be extended to the writ petitioners alone and be a one time measure and would not apply to those who took study leave after the judgment. The order dt.17.10.2013 passed by the ld.Single Judge in review petitions is also the subject matter of challenge in the instant batch of special appeals.
Mr.N.M.Lodha, Advocate General submits that at least any concession made by counsel may not come as an impediment if it is in clear contravention of scheme of the Rules and at least may not be binding upon the appellants. At the same time, further submits that concession made by the counsel for State, which has been recorded by the ld.Single Judge, was totally unwarranted concession and the concession on the question of law at least cannot be said to be binding upon the appellants.
Counsel further submits that in the light of R.9(ii) of the Rules, 1990, validity whereof was not under challenge at any point of time, at least the period of General Nursing Training cannot be treated to be on deputation. Counsel further submits that two views have been expressed by the Single Bench at the Main Seat at Jodhpur and keeping in view the mandate of R.9 r/w R.11 of the Rules, 1990, the writ petitions were dismissed holding that the period of study leave cannot be treated to be on deputation and further submits that although the ld.Single Judge while disposing of the review petitions relied upon R.112 of the Rajasthan Service Rules but the same has no application as regard the training of General Nursing Course is concerned, which is being regulated by a special Rules of 1990 framed in exercise of powers conferred by sub-sec.(1) of Sec.33 of the Rajasthan Nurses, Midwives, Health Visitors and ANM Registration Act, 1964 and further submits that if the ld.Single Judge still was of the view that the view expressed by the coordinate Bench was not acceptable to him to maintain judicial discipline, the ld.Single Judge was supposed to refer the matter to the Division Bench of this Court but the kind of artificial distinction made is not legally tenable in law and even the review petitions which came to be filed keeping in view the mandate of R.9 of the Rules, 1990 the statements of Principal Secretary, Department of Medical & Health was recorded and modifications in the order dt.30.08.2011 were made finally to treat the study leave to be on deputation to such of the in-service candidates in whose favour the judgment is there and even while passing order on the review petitions, two equals have been made unequal i.e. the candidates who approached this court and were able to get judgment by the ld.Single Judge dt.30.08.2011, they were made entitled for treating the study leave to be on deputation and at the same time, those who earlier approached before the Main Seat at Jodhpur who too were amongst the equals, their writ petitions were dismissed holding that they do not fulfill the mandate of R.9 of the Rules, 1990 and a third category was created by the ld.Single Judge as well while disposing of the review petitions holding that the benefit shall be confined only to such of the candidates who are party to the judgment meaning thereby that any other candidate selected thereafter and treated to be an in-service candidate, but will not be entitled for consideration of study leave as a period on deputation.
Counsel, in substance, submits that the view expressed by the ld.Single Judge in the light of R.9(ii) of the Rules, 1990 is legally unsustainable and requires to be interfered by the court and further submits that payments have been made perforce under threat of contempt petitions filed and submits that if they succeed, the respondents/writ petitioners would be directed to refund the salary by treating the period to study leave & not on deputation and liberty may be granted to recover the excess payment made from the salary and other available dues of the individual respondent/writ petitioner.
Counsel for respondents jointly submit that the Doctors who go for higher studies, their period of study leave is treated as on deputation and as regard the present respondents/writ petitioners are concerned, who undergo training of three years of General Nursing Course, they are differently treated and their study leave is not treated to be a period on deputation and that is an apparent discrimination amongst the candidates who are going ahead for further studies and this action of the authorities is certainly violative of Art.14 of the Constitution and the earlier judgment of the coordinate Bench of this court has not been taken note of by the ld.Single Judge under the judgment impugned and after the present order has been passed by the ld.Single Judge in review petitions, in which concession of the counsel for State has been recorded and payments have been made, at least it may not be now required to be interfered by this court.
At the outset, we may mention that concession recorded by the Government Counsel before the ld.Single Judge of this court in the light of scheme of Rules, 1990, in our considered view, is totally unwarranted concession and this being a concession on the question of law, it cannot be said to be a binding precedent upon the appellants. We are unable to persuade ourselves as to how a responsible Government Counsel, without instructions, could have made such a concession which is totally untenable in law and prejudicial to the interest of the party he was representing. We are equally of the opinion that this was not a matter in which the review petitions filed by the appellants should have been dismissed by recording concession of Government Counsel and confining it only to such of the candidates who are party to the judgment passed by the ld.Single Judge no discussion of R.9 of the Rules, 1990 which clearly mandates that there shall be no deputation for Government Servant, if selected and they have to take any leave which is permissible to him/her.
In the light of clear mandate of sub-rule (ii) of R.9 of the Rules, 1990, we do not find any difficulty in holding that at least such of the candidates who joined the course of General Nursing under the Rules, 1990, certainly their period of training cannot be considered to be on deputation and they are entitled to take leave which is permissible to him/her under the relevant Service Rules and entitled for stipend, as prescribed by the Government from time to time in terms of R.14 of the Rules, 1990 At the very outset, we make it clear that we are in conformity with the view expressed by the two coordinate Single Bench of this court before the Main Seat at Jodhpur in S.B.Civil Writ Petition No.6186/2008 [Smt.Sunni John & Another Vs. State of Rajasthan & Another] decided on 21.10.2009 which came to be further followed in S.B.Civil Writ Petition No.3856/2008 [Jitendra Kumar Bhargav & Ors. Vs. State of Rajasthan & Ors.] decided on 12.08.2010 and we find ourselves in full agreement in holding that in the light of sub-rule (ii) of R.9 of the Rules, 1990 the period spent on training course by the in-service candidates could not be treated as a period on deputation and be treated only on leave, whatever due to the candidate.
The ld.Single Judge placed reliance on the judgment of coordinate Bench of this court in the case of Iqbal Ahmed Afridi Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.2760/1988] decided on 15.02.2000 which was followed in the case of D.S.Nathawat Vs. Rajasthan Civil Services Appellate Tribunal & Ors. [D.B.Special Appeal (Writ) No.1468/2006] decided on 03.03.2008, although the SLP against the judgment in the case of D.S.Nathawat came to be dismissed by the Apex Court vide order dt.17.10.2008 but the fact which can be noticed is that the scheme of Rules, 1990 was not placed for consideration before the Division Bench of this Court and apart from it, the period of training was prior to enactment of the Rules, 1990. The Apex Court in the order dt.17.10.2008 observed ad infra:-
Delay condoned.
Though there may be some merit in the contention raised by the State of Rajasthan, we find that the petition has been disposed of in view of the concession by the learned counsel for the State. Hence, leaving the question raised, the special leave petition is dismissed.
It can safely be noticed that the decision of Division Bench in the case of D.S.Nathawat was clearly distinguishable because the same was rendered on account of concession advanced by the Government Counsel, as noted in para-3 of the judgment. At the same time, R.9(ii) of the Rules, 1990 was not considered by the Division Bench or possibly the same was not brought to the notice of the Division Bench by the Government Counsel, who recorded his concession whereas sub-rule (ii) of R.9 of Rules, 1990 specifically negates that period of training course for General Nursing of the candidates cannot be treated as a period on deputation.
At the same time, the anomalous situation has been created. The similar set of employees, who joined the General Nursing Training Course and prayed that there period of leave should be treated as on deputation, approached the court by filing of writ petitions before the Main Seat at Jodhpur, their writ petitions were dismissed and the ld.Single Judge of this court vide judgment dt.21.10.2009 followed by another judgment of the ld.Single Judge dt.12.08.2010 and while dismissing the writ petition observed that in view of sub-rule (ii) of R.9 of Rules, 1990, the period of training for General Nursing Course cannot be treated to be on deputation. At the same time, a converse view has been expressed by the ld.Single Judge based on the same set of facts & circumstances much after the order came to be pronounced before the Main Seat at Jodhpur and observed that in-service candidates who joined training course for General Nursing, the period of leave shall be treated as on deputation. Although, sub-rule (ii) of R.9 of Rules, 1990 has been referred to but no distinction from the judgment pronounced before the Main Seat at Jodhpur has been pointed out.
It would have been appropriate in the facts & circumstances of the instant case and also in judicial propriety, if the ld.Single Judge hearing the matter was not inclined to take the view of coordinate Single Bench of this court or was of the view that it should be re-considered, the better course would have been to refer the matter for being examined by the Division Bench of this court or to constitute Larger Bench to examine the question and this is the normal way to deal with the matters.
The doctrine of binding principle certainly has the merit of promoting a certainty and consistency in judicial decisions and that enables an organic development of law besides providing assurance to the individuals and certainly there is a need for clear and consistent enunciation of legal principles and if the ld.Single Judge was not in agreement of the view expressed primarily with the judgment of the coordinate Single Bench of this court, it would have been better if the matter would have been referred to the Larger Bench rather than to take a different view and in the instant case, two divergent views have been expressed by the Single Bench of this court and before the Main Seat at Jodhpur, both the Single Benches of this Court at different point of time examined the scheme of Rules, 1990 and while dismissing the writ petitions clearly observed that the in-service candidates who undertook the training, their period of leave could not be considered to be on deputation in view of sub-rule (ii) of R.9 of Rules, 1990 and both the judgments were cited before the ld.Single Judge of this court and without there being any distinction in the facts & circumstances of the case, as both the sets of in-service candidates joined General Nursing Training Course under the Rules, 1990 and were claiming the period of leave on deputation and which indisputably, was declined in the batch of writ petitions filed at the Main Seat at Jodhpur but the ld.Single Jduge in the judgment impugned dt.30.08.2011 took a converse view and directed the State Government to consider and treat the period of leave as on deputation and salary be paid to them for the intervening period and even when the review applications were filed, the same were also disposed of with the modification that it shall remain confined to the writ petitioners who approached this court till passing of judgment by the ld.Single Judge of this court and that too creates an anomalous situation and equals have been made unequals, as those who approached this court earlier before the Main Seat at Jodhpur, in their cases orders were passed treating their training period on leave and not as on deputation but at the same time, those who have approached to the Jaipur Bench of this court, it was observed by the coordinate Single Bench that they shall be entitled to claim the period of training as on deputation and after going into merits of the matter, we have examined the question and are in conformity with the view expressed by the ld.Single Judge at the Main Seat at Jodhpur that in view of sub-rule (ii) of R.9 of Rules, 1990, the in-service candidates who have joined training course of General Nursing, they are entitled to seek leave which is due to them but such period of leave could not be considered to be a period on deputation.
Even if, we examine the scheme of the Rajasthan Service Rules, which at least in the present case, may not be of any relevance for the reason that training of General Nursing is being regulated by the scheme of Rules, 1990 and the Rajasthan Service Rules have no application to the present controversy but still if we examine the scheme of Rules of 1990 and R.97 & R.112 of the Rajasthan Service Rules, it is quite clear that any person who goes on study leave would be entitled to only half of the salary and in the present case, the respondents/writ petitioners were not sent on deputation and no one could claim to receive any salary in addition to one contemplated by R.112 read with R.97, as amended in 1979 and we are also clear in our view that if the Government Counsel or any Officer has given any unwarranted favour by recording his concession that cannot be a ground for the Rules being allowed to be violated and no payment could be made from the public exchequer if it is not due and at the same time, no one should be permitted to circumvent or violate the scheme of Rules as being done in the present case by the respondents/writ petitioners.
After examining the scheme of Rules, 1990 and taking note of the concession recorded by the Government Counsel being wholly unwarranted, the respondents/writ petitioners could not to be treated on deputation & claim salary for the aforesaid period under the threat of contempt as a matter of right which was totally unwarranted concession and a concession on a question of law, cannot be said to be binding on appellants and thus such concession being untenable in law, in our considered view, judgment of the ld.Single Judge dt.30.08.2011 followed with order dt.17.10.2013 passed in review petitions are not legally sustainable.
Before parting with the order, as informed to this court, payments have been made to the respondents/writ petitioners because of the threat of contempt petitions being filed. We make it clear that after we have recorded our finding that period of training could not be treated to be on deputation in the light of sub-rule (ii) of R.9 of the Rules, 1990, if the payments have been made out of public funds, which is tax payers' money and when it is not a case of payment being made due to bonafide mistake or for other possible reasons like carelessness or favouritism, we are of the view that whatever payments have been made to the respondents/writ petitioners in the light of the judgment dt.30.08.2011 followed by order dt.17.10.2013 deserves to be recovered but we consider it appropriate to observe that it may be recovered in easy equal installments which could be payable by each of the respondents /writ petitioners.
Consequently, the instant batch of special appeals succeeds and is hereby allowed. The judgment of the ld.Single Judge dt.30.08.2011 and the judgments thereafter passed relying on the impugned judgment dt.30.08.2011 and the order passed on review petitions dt.17.10.2013 are hereby quashed and set aside. The appellant-State is at liberty to recover the excess amount paid to the respondents/writ petitioners treating their period of training as the period on leave permissible to him/her in easy equal installments. No costs.
(J.K.RANKA),J. (AJAY RASTOGI),Acting CJ. Solanki DS, P.S.