Punjab-Haryana High Court
State Of Haryana And Others vs Dr. Manoj Verma on 9 October, 2012
Bench: A.K. Sikri, Rakesh Kumar Jain
LPA No. 1209 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 1209 of 2012 (O&M)
Date of Decision : 09.10.2012
State of Haryana and others
...Appellants
Versus
Dr. Manoj Verma
...Respondent
CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. B.S. Rana, Additional Advocate General, Haryana,
for the appellants.
Mr. Manoj Kumar, Advocate,
for the respondent.
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A.K. SIKRI, C.J. (ORAL)
C.M. No. 3224-LPA of 2012 For the reasons mentioned in the application, delay of 95 days in filing the appeal is condoned.
Disposed of.
C.M. No. 4204 of 2012 Application is allowed.
Documents Annexures A1 and A2 are taken on record and C.M. disposed of.
LPA No. 1209 of 2012
This intra-Court appeal is preferred against the judgement LPA No. 1209 of 2012 (O&M) -2- dated 29.02.2012, rendered by the learned Single Judge of this Court in CWP No. 5713 of 2011, filed by the respondent herein. The issue before the learned Single Judge was as to whether the respondent, who is working as Civil Surgeon, Sirsa, under the State of Haryana and intended to pursue higher studies i.e. Post Graduate Degree of M.S. in General Surgery was required to execute service bond of a minimum period of 07 years or payment of an amount of Rs. 10 lacs in lieu thereof, as per policy dated 10/12.03.2008 or he was required to execute service bond of a minimum period of 07 years or payment of Rs. 25 lacs in lieu thereof in terms of policy dated 05/08.12.2008. To put it differently, the question is as to whether the respondent was governed by policy dated 10/12.03.2008 or 05/08.12.2008. In so far as grant of no objection certificate by the State of Haryana to the respondent to pursue the higher studies is concerned, this question fell for consideration in the following factual background.
The respondent was serving as Medical Officer at Primary Health Centre, Chautala, in the year 2010. He desired to undertake higher studies of MD/MS Course and for this purpose applied for admission to the said Course in Pt. B.D. Sharma, University of Health Science, Rohtak (hereinafter referred to as the University), as 'in service' category candidate. After clearing the admission test, he joined the said Course with the University on 10.05.2010. Before he could join, he needed a No Objection Certificate from the State of Haryana, which was given vide communication dated 23.03.2010 by the Financial Commissioner and Principal Secretary to Government LPA No. 1209 of 2012 (O&M) -3- of Haryana, Health Department, addressed to the Director General, Health Services, Haryana, Panchkula.
The State of Haryana had earlier issued policy dated 10/12.03.2008, which laid down the terms and conditions, on which the serving employees could be given no objection and study leave for pursuing higher studies. For employees like the respondent, one of the conditions was to execute service bond of minimum period of 07 years or payment of an amount of Rs. 10 lacs to the Government of Haryana in lieu thereof. This policy was amended vide another policy issued on 05/08.12.2008. In so far as the condition of executing a bond is concerned, it underwent a change and the amended clause read as under:-
"Before his/her relieving from the department he/she will have to execute a service bond for a minimum period of 07 years or pay an amount of Rs. 25 lacs to the Haryana Government in lieu thereof in the case of PG Degree/Super Specialty Courses and for a minimum period of 5 years or pay an amount of Rs. 10 lacs in lieu thereof in the case of PG Diploma."
As already pointed out above, the respondent herein sought admission in MD/MS Course in the year 2010. Obviously, by that time, policy dated 05/08.12.2008, had come into existence. Notwithstanding the same, the case of the respondent was that he should still be governed by policy dated 10/12.03.2008, in as much as, this was the policy reference to which was made by respondent No. 4/University in its prospectus. The argument of the respondent, thus, was that once it was the policy of March, 2008, which was reflected in the prospectus, going by the said policy he applied and LPA No. 1209 of 2012 (O&M) -4- took admission. This contention of the respondent was accepted by the learned Single Judge, relying upon the judgement of the Hon'ble Apex Court in Civil Appeal Nos. 9221-9223 of 2010, titled as State of Punjab and another Vs Dr. Viney Kumar Khullar and others. Para 9 of this judgement, which is relevant for us and is also extracted by the learned Single Judge, reads as under:-
"The prospectus notification dated 17.3.2008 requires the in-service doctors to produce NOCs, from the Director, Health & Family Welfare or the Director, Medical Education & Research as the case may be before joining the course, in accordance with the instructions contained in the circular dated 13.5.1996 and any other instructions issued by the Punjab Government. What is significant is that the circular dated 30.7.2007 increasing the period of minimum service under the bond from 5 years to 10 years (and bond amount from Rs. 2 lacs to Rs.10 lacs) for PG courses is not mentioned or made applicable. The words "any other instruction issued by the Punjab Government" in the context of the said clause in the Prospectus cannot be interpreted as referring to any instruction increasing the burden on the candidates to secure the No Objection Certificate. A candidate should be made known about the requirements to be fulfilled by him and cannot be exposed to unknown liabilities or limitations. If the intention was to make the amendment notification dated 30.7.2007 applicable to the 2008 PG admissions, the Prospectus should have referred to that amendment circular dated 30.7.2007, while mentioning the circular dated 13.5.1996. Nothing prevented the Government from stating that the NOC should be subject to the conditions mentioned in the circular dated 13.5.1996 as amended by circular dated 30.7.2007. It should be noted that the amendment circular dated 30.7.2007 was issued after the 2007 admissions and was sought to be made applicable for the first time in respect of the 2008 admissions. Therefore, the candidates for 2008 admissions would not know about the said amendment circular dated 30.7.2007 unless it was mentioned in the Prospectus. The candidates would have bonafide proceeded on the basis that eligibility LPA No. 1209 of 2012 (O&M) -5- for the NOC was in terms of the government circular dated 13.5.1996. The fact that provisional NOCs had been issued to them also would have led them to believe that prima facie they were eligible to get the NOCs."
That was also a case where the State of Punjab had earlier issued circular memo dated 13.05.1996, which contained clause regarding no objection certificate to be given for seeking admission. This was amended by the government circular dated 30.07.2007. However, in the prospectus of the University, circular memo dated 13.05.1996 only was mentioned and not 30.07.2007. It was on this basis that the Hon'ble Supreme Court held that the employees concerned (respondents in the said case) could take the advantage and benefit of circular dated 13.05.1996 and it was not open to the State of Punjab to impress upon the respondents to furnish bond in terms of revised circular dated 30.07.2007. The discussion contained in para 9, which is extracted above, predicates on the aforesaid factual position. Had the position been same in the instant case, probably, the contention of the respondent would have been acceptable. However, in the present case, there is another significant development which forces us to alter the course of action, as adopted by the learned Single Judge, relying upon the aforesaid judgement of the Hon'ble Supreme Court. Pertinently, in the instant case, when the State of Haryana granted no objection certificate to various such doctors who had applied for the same to pursue their higher studies vide communication dated 23.03.2010, it was granted specifically in terms of policy dated 05/08.12.2008, that is manifest from para 2 of LPA No. 1209 of 2012 (O&M) -6- the said communication, which reads as under:-
"The government have decided to grant "No Objection Certificate" to HCMS Doctors subject to the condition mentioned in the policy issued vide government letter No. 2/123/2008-1HB-I, dated 5/8.12.2008 shown in Annexure-A/B (copies enclosed) for entrance test of PG Degree/Diploma course conducted by Pandit B.D. Sharma University of Health Sciences, Rohtak as per detail for each Annexure given below for the session 2010."
May be, in the prospectus of the University, there was an inadvertent error in mentioning the policy of March, 2008, which had already undergone a change and was substituted by the aforesaid policy of 05/08.12.2008. However, before the respondent joined the aforesaid Course, in so far as he is concerned, he was specifically informed that a No Objection Certificate is granted subject to the conditions mentioned in the policy issued vide government letter dated 05/08.12.2008. Again, it would be of significance to point out that this policy was even annexed with communication dated 23.03.2010 and, therefore, all the persons who were supposed to join the Course including the respondent were made aware of this policy. Because of this reason, it does not behove the respondent to raise his case on the basis of policy of March, 2008, which is reflected in the prospectus issued by respondent No. 4/University. It is necessary to point out that the respondent is an employee of the appellant/State of Haryana. He wanted study leave for doing the aforesaid MD/MS Course. Being an employer, on what conditions and under what circumstances, study leave is to be granted or permitted is the prerogative of the employer. If the employer has stipulated certain LPA No. 1209 of 2012 (O&M) -7- conditions on the basis of which the said study leave is to be granted and the No Objection Certificate was given to the respondent clearly pointing out those conditions, which were mentioned in the policy dated 05/08.12.2008, the respondent would naturally be bound by the same and he cannot now fall back upon the mistake which occurred in the prospectus issued by the University over which the State of Haryana had no control. Position would have been different and the case of the respondent would have been at par with that of State of Punjab and another Vs Dr. Viney Kumar Khullar and others' case (supra), decided by the Hon'ble Supreme Court, had the respondent not been granted the No Objection Certificate in terms of policy dated 05/08.12.2008. This vital fact was not taken into consideration by the learned Single Judge.
We are of the opinion that on the facts of this case, the judgement of the Hon'ble Supreme Court has no application. As a result, impugned order of the learned Single Judge is set aside and the writ petition filed by the respondent herein is dismissed.
(A.K. SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 09.10.2012 Amodh