Bombay High Court
Kailash Kashinathrao Pawar vs State Of Maharashtra Thr Its Desk ... on 26 March, 2024
Author: G.S.Kulkarni
Bench: G. S. Kulkarni
Digitally signed
by PRASHANT
PRASHANT VILAS RANE
VILAS
RANE
Date:
2024:BHC-AS:16081-DB
2024.04.04
20:44:09
5 WP4415-24.DOC
+0530
Mohite
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4415 OF 2024
Kailash Kashinathrao Pawar
Age 35 years, Occ.Medical officer Group A
Having address at:- Late Indira Gandhi
Memorial Hospital, Bhiwandi, Dist.Thane ... Petitioner
Versus
1. State of Maharashtra
Through its Desk Officer,
Public Health Department,
having office at G.T.Hospital,
Complex building 10th Floor,
New Mantrlaya, Mumbai
2. Chief Administrative Officer
and Deputy Director of Health Services
Mumbai Circle, Thane,
Having office at : Regional Mental Hospital area
Thane West 400 604 ...Respondents
Mr.Balasaheb Deshmukh for the Petitioner
Mr.Sachin H. Kankal, A.G.P. for the State
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 26th March, 2024
_______________________
ORAL JUDGEMENT (PER: G.S.KULKARNI, J.) :
1. A short question which arises for consideration in the present
proceedings is whether the right of an in-service candidate to pursue a post
graduation in medicine, can be taken away by denying a 'no objection', merely
for the reason of pendency of a departmental enquiry.
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2. This Petition, under Article 226 of the Constitution of India, has prayed
for the following substantive relief.
"a) Be pleased to issue writ of certiorari or writ in
nature of certiorari, or any other appropriate writs, orders,
directions, calling from the record and proceedings of the
impugned order dated 30/01/2024 and 09.02.2024, and
after going through the legality validity and proprietary of
the same, be pleased to quash and set aside order of
rejection of No objection certificate / letter dated
30/01/2024 and 09.02.2024 issued by the Respondents
and further be a pleased to direct the Respondents to issue
No objection certificate being in service candidate for PG
Course the reasons and circumstances mentioned herein
above."
3. The petitioner is a qualified doctor having an MBBS degree. He is in
the service of the Government of Maharashtra as a Medical Officer, since 12 th
May 2015. He is presently posted at the Indira Gandhi Memorial Hospital,
Bhiwandi, District Thane.
4. The petitioner intends to pursue a Post Graduation Course in Medicine,
as an in-service candidate, for which he is required to apply for the National
Eligibility cum Entrance Test (NEET P.G.). To pursue the post graduation
course, as an in-service candidate, he is required to obtain a No Objection
Certificate (NOC) from the Deputy Director of Health Services - Respondent
No.2.
5. It is the petitioner's case that earlier, the petitioner had obtained a NOC
in October 2021 to appear at the NEET P.G. examination. Such NOC was
granted to the petitioner on 23 rd February 2021. The petitioner had duly filled
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up the NEET P.G. 2021 application form. He appeared at the said
examination in which he scored 247 marks. The petitioner had accordingly
become eligible for admission to the P.G. course. However, the petitioner
could not pursue the P.G. course, as the NOC granted to him, was cancelled by
respondent no.2 on the ground that the petitioner was involved in criminal
proceedings lodged by his wife interalia alleging an offence punishable under
Sections 493 and 498A of the Indian Penal Code. Also divorce proceedings
were initiated between the petitioner and his wife, (Petition No.A-106/2021
dated 24th January 2024) which are stated to be disposed of by a decree of
divorce being granted dissolving the marriage.
6. In the above circumstances, the petitioner, being aggrieved by the
cancellation of the NOC and the consequent inability of the petitioner to
pursue the P.G. course had approached this court in Writ Petition No.4045 of
2022. By an Order dated 7 th April 2022, a co-ordinate Bench of this Court
rejected the said Writ Petition. Being aggrieved by such orders passed by this
Court, the petitioner approached the Supreme Court by filing a Special Leave
Petition, which was rejected by the Supreme Court by an Order dated 13 th May
2022 which interalia recorded that the observations made in the judgment of
this Court should be restricted only for the purpose of deciding the said case
and not otherwise.
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7. It is the case of the petitioner that, in the earlier proceedings, the
respondents had contended that the pendency of the criminal case as instituted
by the petitioner's wife was not disclosed in the application filed for NOC
and / or for appearing for the NEET P.G. examination. It was hence held that
the recall of the NOC was justified.
8. To pursue his inherent desire and interest in higher education, the
petitioner again duly filled up the relevant form for obtaining an NOC, in
which he disclosed all the necessary particulars so that he would be granted an
approval to appear for the NEET P.G. which is scheduled to be held in May /
June 2024. However, such application of the petitioner has been rejected by
the impugned communication dated 9th February 2024, on the ground that a
departmental enquiry is pending against the petitioner. The relevant portion
of the impugned communication reads thus:
(Official Translation of a photocopy of a LETTER, typewritten in Marathi)
EMBLEM
GOVERNMENT OF MAHARASHTRA
DEPUTY DIRECTOR, HEALTH SERVICES, MUMBAI BOARD, THANE
Regional Mental Hospital Complex, Thane(W) 400604.
Telephone No. 022-25821474/25826514 E-mail : [email protected]
Outward No. Estt./Section-2/PG/Dr. Pawar/4616-10/24
Date : 09.02.2024.
Subject :- Regarding granting permission for In- Service Post
Graduation.
Reference :- Government Letter No. Miscellaneous-2024
/M.No.69/Service-3 dated 30.01.2024
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In connection with the above-mentioned subject, by the above-referred
letter, you have been informed that Government Memorandum dated
15.06.2022 in respect of the Departmental Enquiry against you, has been
issued and served upon you and as the departmental enquiry pursuant
thereto is going on, permission cannot be granted to you as an In-service
candidate for the post-graduation course, in view of the provisions
mentioned in Government Resolution dated 19.07.2023.
Hence, photo copy of the above-referred letter is enclosed herewith for
your information.
(sd)
(Shri Shailesh Patankar)
Chief Administrative Officer
Deputy Director, Health Services,
Mumbai Board, Thane.
9. For such reason, the petitioner has been informed that the petitioner
cannot be granted permission / NOC to pursue the P.G. course in Medicine as
an in-service candidate. It is such decision of respondent no.2 which is the
subject matter of challenge before us.
10. The learned counsel for the petitioner, in support of his contention,
would submit that the reasons as stated in the impugned communication are
per se arbitrary. It is his submission that the departmental enquiry is pending
against the petitioner for quite some time, which was initiated in August 2022.
It is contended that the same has not moved forward. He submits that the
pendency of the departmental enquiry cannot be taken to be any impediment
in the petitioner pursuing the P.G. course, as what is sought to be undertaken
by the petitioner is to achieve a higher qualification. It is next submitted that,
in fact the matrimonial proceedings which were initiated by his wife no more
survive, as such proceedings filed by the wife have already come to an end,
resulting into a decree of divorce being granted. Although not relevant, the
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criminal proceedings are, however, stated to be pending which, according to
the petitioner, form the basis of the departmental enquiry as initiated against
the petitioner, under the departmental charge sheet dated 22 nd August 2022,
copy of which is placed at page 62 of the paper book. In these circumstances, it
is submitted that the pendency of the departmental enquiry as also the criminal
proceedings ought not to hinder the petitioner's pursuit of higher education,
namely of obtaining a decree of post graduation in medicine. In support of
such contention, the petitioner has placed reliance on the decisions of this
Court, in Dr.Amol Kalidas Chavan vs. Directorate of Health Services and
another 1 and the second decision being in Dr.Satish s/o Daryappa Gadade vs.
The State of Maharashtra and Ors. 2
11. We find that in Dr. Amol Kalidas Chavan's case (Supra) a departmental
enquiry was initiated against the petitioner and for such reason, an NOC was
denied. The Division Bench of this Court, considering the fact that although
more than 5 years had lapsed, and the enquiry was not being completed,
directed the respondents to issue NOC to the petitioner, subject to further
decision that would be taken by the respondents in the departmental enquiry
against the petitioner.
12. In Dr.Satish s/o Daryappa Gadade (Supra), the petitioner was serving as
a Medical Officer at a Primary Health Centre. He was facing departmental
1 Writ Petition No.4368 of 2021 decided on 16th March 2021
2 Writ Petition No.1106 of 2024 decided on 20th February 2014
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proceedings at the instance of another employee. There was failure of the
authority to complete the departmental proceedings even after lapse of more
than two years, which was observed to be of prejudice to the said petitioner, as
he was deprived of an opportunity of securing admission to PG degree /
Diploma course. It is in such circumstances, the petitioner had prayed that
departmental proceedings be concluded expeditiously, and that subject to the
outcome of the same, the Petitioner be granted admission to P.G. degree /
diploma course. On such backdrop the Division Bench of this Court directed
the Government - Director of Medical Education & Research, to consider the
claim of the petitioner for admission to PG degree / diploma course, as an in-
service candidate and, if found eligible, include his name in the merit list
provisionally. It was directed that admission of the petitioner as an in service
candidate shall be subject to the outcome of the departmental proceedings
initiated against him.
13. Mr.Deshmukh, the learned counsel for the petitioner, would submit that
both the said decisions would support the petitioner's contention and the relief
as prayed for by the petitioner be granted.
14. On the other hand, Mr. Kankal, the learned A.G.P. has supported the
impugned decision. He has drawn our attention to the G.R. dated 19 th March
2019 and more particularly clause 4.5, official translation of which reads thus:
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"4.5 It is necessary that a Medical Officer shall provide
service by remaining present at the Head Quarter. No incident,
such as a seriously ill patient did not get treatment, post-mortem
was not performed, should have happened during the said period
on account of the absence of the Medical Officer. If such an
incident had happened and if it is proved during the course of
preliminary enquiry, and also if a Departmental Enquiry is
ordered against the officer concerned, and if a Departmental
Enquiry or Criminal Case is pending / has been initiated against
the Medical Officer in connection with any other ground, then
he shall be considered to be ineligible for appearing for the
(NEET PG) Entrance Test."
15. Mr. Kankal would submit that this is clearly a case where departmental
proceeding is pending against the petitioner and, hence, the impugned
decision to refuse the NOC to the petitioner, would not call for an interference.
16. Having heard the learned counsel for the parties and having perused the
record, we find substance in the contentions as urged on behalf of the
petitioner, for more than one reason. In our opinion, in the peculiar facts and
circumstances of the case, and more particularly, having given due
consideration to the charges as levelled in the departmental charge sheet, issued
to the petitioner, in our opinion, pendency of the departmental enquiry, ought
not to be a ground, so as to take away the right of the petitioner, as an in service
candidate to pursue higher education. We are also of the clear opinion that
clause 4.5 of the Government Resolution (G.R.) dated 19 th March 2019 is not
applicable in the present case, so as to refuse a NOC to the petitioner, to pursue
the P.G. course.
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17. There is another fundamental issue namely that the right to education is
a substantive legal right of a person and is regarded to be a right emanating
from Article 21 of the Constitution. In our opinion, this would be true, even if
higher education is to be pursued as an in-service candidate. The position in
law in this regard can be seen from catena of decisions of the Supreme Court,
which we discuss hereunder.
18. The Supreme Court in Miss. Mohini Jain Vs. State of Karnataka & Ors. 3
has held that the right to education flows directly from right to life. It was held
that the right to life under Article 21 and the dignity of an individual cannot be
assured unless it is accompanied by the right to education. The court in such
context observed thus:
"9. The directive principles which are fundamental in the governance
of the country cannot be isolated from the fundamental rights
guaranteed under Part III. These principles have to be read into the
fundamental rights. Both are supplementary to each other. The State is
under a constitutional mandate to create conditions in which the
fundamental rights guaranteed to the individuals under Part III could
be enjoyed by all. Without making "right to education" under Article
41 of the Constitution a reality the fundamental rights under Chapter
III shall remain beyond the reach of large majority which is illiterate.
............
12. "Right to life" is the compendious expression for all those rights
which the courts must enforce because they are basic to the dignified
enjoyment of life. It extends to the full range of conduct which the
individual is free to pursue. The right to education flows directly from
right to life. The right to life under Article 21 and the dignity of an
individual cannot be assured unless it is accompanied by the right to
education.
13. The fundamental rights guaranteed under Part III of the
Constitution of India including the right to freedom of speech and
3 AIR 1992 SC 1858
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expression and other rights under Article 19 cannot be appreciated and
fully enjoyed unless a citizen is educated and is conscious of his
individualistic dignity.
14. The "right to education", therefore, is concomitant to the
fundamental rights enshrined under Part III of the Constitution.
17. We hold that every citizen has a "right to education" under the
Constitution. The State is under an obligation to establish educational
institutions to enable the citizens to enjoy the said right.
(emphasis supplied)
19. The above principles are reiterated by the Supreme Court in the case
State of Tamil Nadu & Ors. Vs. K. Shyam Sunder & Ors. 4 wherein the
Supreme Court observed thus:-
"20. ... ... ... Even before the said amendment, this Court has treated
the right to education as a fundamental right. (Vide Mohini Jain V.
State of Karnataka [AIR 1992 SC 1858]; Unni Krishnan, J.P. Vs. State
of A.P. [AIR 1993 SC 2178]; and T.M.A. Pai Foundation Vs. State of
Karnataka [92002)8 SCC 481]."
20. In Society for Unaided Private Schools of Rajasthan Vs. Union of India 5
the Supreme Court observed thus:
"27. At the outset, it may be stated, that fundamental rights
have two aspects--they act as fetters on plenary legislative
powers and, secondly, they provide conditions for fuller
development of our people including their individual
dignity. Right to live in Article 21 covers access to education.
.. .. .. .. .. .. .. .. . The word "education" was read into Article
21 by the judgments of this Court. However, Article 21
merely declared "education" to fall within the contours of
right to live.
(emphasis supplied)
4 (2011)8 SCC 737
5 (2012)6 SCC 1
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21. The Supreme Court in Janhit Abhiyan Vs. Union of India6 has quoted
with approval the observations of the Supreme Court in Miss. Mohini Jain
(supra) and Unni Krishnan, J.P. Vs. State of A.P.7, when the Supreme Court
observed thus:-
261. In the case of Unni Krishnan, J.P. v. State of Andhra Pradesh,
(1993) 1 SCC 645, the decision in the case of Mohini Jain (supra)
came up for consideration before a larger Bench of this Court. While
not approving the judgment in toto, the above concept was further
expanded and refined. It was observed as under: (Unni Krishnan case,
SCC pp. 731-35, paras 168-75)
"168. In Brown v. Board of Education [98 L.Ed. 873 : 347 US
483 (1954)] Earl Warren, C. J., speaking for the U.S. Supreme
Court emphasised the right to education in the following words:
"13. Today, education is perhaps the most important
function of State and local governments .... It is
required in the performance of our most basic
responsibilities, even service in the armed forces. It is the
very foundation of good citizenship. Today it is the
principal instrument in awakening the child to cultural
values, in preparing him for later professional training,
and in helping him to adjust normally to his
environment. In these days, it is doubtful any child may
reasonably be expected to succeed in life if he is denied
the opportunity of an education."
169. In Wisconsin v. Yoder [32 L.Ed.2d 15 : 406 US 205
(1971)] the court recognised that:
"11. ... Providing public schools ranks at the very apex
of the function of a State."
The said fact has also been affirmed by eminent educationists of
modern India like Dr Radhakrishnan, J. P. Naik, Dr Kothari
and others.
170. It is argued by some of the counsel for the petitioners
that Article 21 is negative in character and that it merely
declares that no person shall be deprived of his life or personal
liberty except according to the procedure established by law.
Since the State is not depriving the respondents'-students of
6 (2023)5 SCC 1
7 AIR 1993 SC 2178
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their right to education, Article 21 is not attracted, it is
submitted. If and when the State makes a law taking away the
right to education, would Article 21 be attracted, according to
them. This argument, in our opinion, is really born of
confusion; at any rate, it is designed to confuse the issue. The
first question is whether the right to life guaranteed by Article
21 does take in the right to education or not. It is then that the
second question arises whether the State is taking away that
right. The mere fact that the State is not taking away the right
as at present does not mean that right to education is not
included within the right to life. The content of the right is not
determined by perception of threat. The content of right to life
is not to be determined on the basis of existence or absence of
threat of deprivation. The effect of holding that right to
education is implicit in the right to life is that the State cannot
deprive the citizen of his right to education except in
accordance with the procedure prescribed by law.
171. In the above state of law, it would not be correct to
contend that Mohini Jain [Mohini Jain v. State of Karnataka,
(1992) 3 SCC 666] was wrong insofar as it declared that "the
right to education flows directly from right to life". But the
question is what is the content of this right? How much and
what level of education is necessary to make the life
meaningful? Does it mean that every citizen of this country can
call upon the State to provide him education of his choice? In
other words, whether the citizens of this country can demand
that the State provide adequate number of medical colleges,
engineering colleges and other educational institutions to
satisfy all their educational needs? Mohini Jain [Mohini Jain v.
State of Karnataka, (1992) 3 SCC 666] seems to say, yes. With
respect, we cannot agree with such a broad proposition. The
right to education which is implicit in the right to life and
personal liberty guaranteed by Article 21 must be construed in
the light of the directive principles in Part IV of the
Constitution. So far as the right to education is concerned,
there are several articles in Part IV which expressly speak of it.
Article 41 says that the "State shall, within the limits of its
economic capacity and development, make effective provision
for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and
disablement, and in other cases of undeserved want". Article 45
says that "the State shall endeavour to provide, within a period
of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they
complete the age of fourteen years". Article 46 commands that
"the State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes,
and shall protect them from social injustice and all forms of
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exploitation". Education means knowledge -- and "knowledge
itself is power". As rightly observed by John Adams, "the
preservation of means of knowledge among the lowest ranks is
of more importance to the public than all the property of all the
rich men in the country". (Dissertation on Canon and Feudal
Law, 1765) It is this concern which seems to underlie Article
46. It is the tyrants and bad rulers who are afraid of spread of
education and knowledge among the deprived classes. Witness
Hitler railing against universal education. He said:"Universal
education is the most corroding and disintegrating poison that
liberalism has ever invented for its own destruction."
(Rauschning, The Voice of Destruction : Hitler speaks.) A true
democracy is one where education is universal, where people
understand what is good for them and the nation and know
how to govern themselves. The three Articles 45, 46 and 41 are
designed to achieve the said goal among others. It is in the light
of these Articles that the content and parameters of the right to
education have to be determined. Right to education,
understood in the context of Articles 45 and 41, means : (a)
every child/citizen of this country has a right to free education
until he completes the age of fourteen years, and (b) after a
child/citizen completes 14 years, his right to education is
circumscribed by the limits of the economic capacity of the
State and its development. We may deal with both these limbs
separately.
(emphasis supplied)
22. It is thus clear, that right to education is implicit in the right to life and
personal liberty guaranteed and flowing from Article 21 of the Constitution.
Such right of an in-service candidate, who intends to pursue education, needs
to be recognized, however, certainly, such pursuit to higher education would be
governed by the terms and conditions of the employment, when it comes to
the exigencies of service. This would certainly not mean, that such right can be
denied or taken away, merely in view of the pendency of any departmental
proceedings or criminal proceedings against the employee. In this context, it
may also be observed that issuance of an NOC is with an object and reason that
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a candidate is required to be available to discharge the duties of public
employment or for any justifiable reason, it is appropriate to not permit an
employee to pursue further education as an in-service candidate which can
only be for some genuine reason touching the employment. In such eventuality,
the State Government as an employer would have an authority not to permit
the in-service candidate to undertake the P.G.course, unless the employee
fulfills the necessary criteria which may be prescribed under the Government
policy. However, any criteria which is arbitrary or illegal which would per se
take away the rights of higher education as recognized by the Supreme Court
cannot be foisted on an in-service candidate. Moreover in fixing such norms,
the State Government is required to be alive to the fact, that such employees
were not privileged to complete their education in the present case, hence,
there is nothing wrong to pursue further education as an in-service candidate.
23. It also cannot be overlooked that the State cannot have a policy, rule or
regulation which would adversely affect the citizen's pursuit to education
which he intends to achieve, much less of those who are in employment, as
right to education is now recognized to be a facet of the right to liberty under
Article 21 of the Constitution of India. Further, Article 41 of the Constitution
mandates the State to secure the right to education, as one of the directive
principles of State policy. Also in-service candidate achieving higher education
would ultimately enure to the public benefit.
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24. Insofar as the facts of the present case are concerned, although the no
objection of the petitioner, has not been rejected on the pendency of the
criminal proceedings, however, considering Mr. Kankal's submissions in the
context of paragraph 4.5 of the G.R. dated 19 March 2019 it can be seen that
the criminal proceedings which are pending against the petitioner, are also
proceedings which have arisen from a matrimonial dispute and in which a
decree of divorce between the petitioner and his wife, has already been granted
by the competent Court. It is also stated that the co-employee, against whom
the petitioner's wife had a grievance which was the subject matter of the FIR
against the Petitioner, has also not lodged any complaint / FIR against the
petitioner. It also appears from the departmental charge sheet, that the basis of
the departmental enquiry is on the complaint as made by the petitioner's wife
who is already divorced and on some information which was part of a
newspaper report, which was also based on her police complaint.
25. Be that as it may, today it cannot be ascertained as to what would be the
outcome of the departmental proceedings and as to when the proceedings
would stand concluded. However, merely for the reason that the departmental
or the criminal proceeding of the nature in question are pending, the
petitioner cannot continue to suffer on his pursuit and his intention to achieve
higher education, and for which NOC was applied for.
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26. In the light of the above discussion, we are of the view that the
impugned decision of the respondent rejecting NOC to the petitioner is
arbitrary as also discriminatory. The petitioner cannot indefinitely suffer on
account of the departmental enquiry pending against him. Similarly, pending
criminal case initiated by his former wife, cannot take away or extinguish the
petitioner's aspiration to achieve higher education/qualification. Such
proceedings take long years to attain finality, in view of the hierarchy of appeals
being provided both in the departmental proceedings or in the criminal
proceedings. It would be hence, harsh and unreasonable to prohibit the
petitioner to pursue his post-graduation till such proceedings attain finality.
The precious years available to the Petitioner to pursue PG examination cannot
be wasted.
27. In the aforesaid circumstances, we are inclined to allow the petition by
directing the respondents to grant NOC to the petitioner to undertake NEET
PG course. Hence, following order:
ORDER
a. The impugned decision dated 9th February 2024 rejecting the petitioner's application for grant of NOC by the respondents to pursue PG Medical Education by undertaking NEET 2024 examination, is quashed and set aside.
b. The respondents are directed to grant NOC to the petitioner within a period of two weeks from the date a copy of the order is made available.
Page 16 of 1726 March, 2024 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 13/04/2024 23:58:15 ::: 5 WP4415-24.DOC c. Needless to observe that if the petitioner, qualifies the PG NEET- examination, he shall undertake the P.G. course subject to the outcome of the departmental proceedings and an appropriate decision in that regard be taken by the State Government, in the event the departmental proceedings are decided against the petitioner. d. Disposed of in the aforesaid terms. No costs.
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