Jammu & Kashmir High Court
Ut Of J&K And Another vs Javed Iqbal on 5 June, 2023
Bench: Sanjeev Kumar, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
WP(C) No. 372/2022
Reserved on: 24.05.2023
Pronounced on:05.06.2023
UT of J&K and another
......Petitioner(s)
Through: Mr. Amit Gupta, AAG
Vs.
Javed Iqbal
.....Respondent(s)
Through: Mr. Abhinav Sharma, Sr.
Advocate with Mr. Abhimanyu Sharma,
Advocate.
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE.
JUDGEMENT
Sanjeev Kumar-J
1. The respondent- Dr. Javed Iqbal was appointed as Medical Officer vide Government Order No.335-HME of 2010 dated 17.06.2010. After rendering almost four years of service as Medical Officer, the respondent approached Director Health Services, Jammu, for permission to undergo higher studies ( DNB) Course in LRS Institute of Respiratory Medicine, New Delhi with effect from 26-06-2014 to 25-06-2017. The request of the respondent was processed and the Administrative Department through its 2 WP ( C) No. 372/2022 under-Secretary vide communication No. HD/Gaz/Gen/116/2014 dated 24- 06-2014 conveyed NOC in favour of the respondent to join the said course in LRS Institute of Respiratory Medicine, New Delhi, [the Institute]. The respondent was relieved to undergo the said course at New Delhi. After completion of the course, the respondent re-joined on duty with effect from 07-07-2017 before the Director Health Services, Jammu. The matter with regard to settlement of period spent by the respondent in the Institute while pursuing his DNB course, was referred by the Director Health Services, Jammu to the Administrative Department for instructions. The Administrative Department vide its communication no. HD/GAZ/GAN/116/2014 dated 16.1.2019 conveyed the approval of the Administrative Department to settle the period of absence of respondent with effect from 26.06.2014 to 25.06.2017 as leave whatever kind due except study leave strictly as per the leave account of the respondent. It was further provided that any shortfall in the leave standing in the account of the respondent shall be met by treating the said period as dies non. The Director Health Services, Jammu was also asked by the Administrative Department to warn the respondent not to leave his place of posting for any occasion in future un-authorizedly.
2. Feeling aggrieved of the communication dated 16.01.2019 and subsequent communication dated 18.11.2019 issued by the Administrative Department, the respondent filed OA No. 61/528/2020 before the Central Administrative Tribunal, Jammu Bench ["The Tribunal" hereafter], seeking inter-alia quashment of the two communications of the Administrative Department referred to above. The respondent also prayed for direction to 3 WP ( C) No. 372/2022 the writ petitioners herein to treat the period with effect from 26-06-2014 to 25-06-2017 as on deputation and grant him all service benefits accruing therefrom.
3. The Original Application was contested by the Writ Petitioners. The factual position, as narrated by the respondent in his OA, was not refuted. However, it was averred that the issue of deputation of the Doctors undergoing higher study courses, was re-considered and it was found that Article 44-F of the Civil Service Regulations Part-I had, in the past, been misinterpreted to the benefit of some Government employees and, therefore, the Government servants, who would undergo higher study courses for their own benefit, were not entitled to be treated on deputation and even to the study leave. The Tribunal considered the OA in the light of the rival contentions urged by learned counsel for both the parties and concluded that both the impugned communications were not sustainable in law for more than one reason. The Tribunal opined that the respondent had been discriminated by the writ petitioners by denying him the relief as was given by them repeatedly to various similarly situated Doctors. The Tribunal also held that the Administrative Department had granted approval for issuance of NOC in favour of the respondent for undergoing the Course in question and, therefore, the respondent could not be treated as an employee on un- authorized absence during the period he underwent the DNB course in the Institute at New Delhi. Lastly the Tribunal concluded that the treatment to the period granted by the writ petitioners, including treating the short fall as dise non, had adversely affected the respondent and, therefore, such order could not have been passed in violation of principles of natural justice. The 4 WP ( C) No. 372/2022 Tribunal placed reliance on an un-reported judgment of this Court in the case of Ashok Kumar v. State (SWP NO. 2785/2001 decided on 22.05.2009).
4. This is how the Tribunal dealt with the grievance of the respondent and allowed the Original Application vide judgment dated 24-09-2021. It is this judgment passed by the Tribunal which is challenged by the Writ Petitioners before us by filing this present writ petition under Article 226 of the Constitution of India.
5. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the respondent is not treated fairly by the writ petitioners.
6. Admittedly, the respondent having been appointed as Medical Officer vide Government order dated 17-06-2010 (supra) was in the service of the Directorate of Health Services, Jammu, when he came to be selected for undergoing higher study of DNB Course in the Institute at New Delhi. The course was spread over a period of three years. True it is that the respondent, who intended to join the aforesaid course, should have made a proper application to his employer seeking study leave or his deputation to the Institute, as the case may be, in accordance with rules. However, the respondent instead applied for issuance of NOC to the Director, Health Services, Jammu, so as to enable him to get relieved for joining the course in the Institute at New Delhi. Probably, this mode was adopted by the respondent having regard to the past practice prevalent in the Department. It is not disputed before us that as per the past practice, the Doctors/Medical Officers selected for undergoing higher studies like PG/DM/DNB were 5 WP ( C) No. 372/2022 being relieved by the Department after obtaining NOC from the Administrative Department, without deciding as to how the period of their absence in connection with higher studies was to be treated. Such Doctors/Medical officers would undergo their higher study courses and join back after completion of the course. Not only such Doctors/MOs were allowed to join back but their period of absence, in connection with pursuit of higher studies, was treated either as deputation or study leave wherever applicable.
7. Be that as it may, the NOC sought by the respondent was not declined by the Competent Authority nor the Director Health Services or the Administrative Department insisted for submission of any application form for grant of leave or sanction of deputation. Believing that respondent would also be dealt with as per the past practice, he left for undergoing the DNB Course in the Institute at New Delhi and remained there with effect from 26- 06-2014 to 25-06-2017. On reporting back for duty after completion of the course, the respondent was told that the matter with regard to treatment of his period of absence would be forwarded to the Administrative Department for instructions. The Administrative Department considered the matter and conveyed the approval for settlement of period of the respondent as leave whatever kind due except study leave vide communication dated 16-01- 2019. The Writ Petitioners submit and state that, with a view to re-examine the entire issue, as the similar cases were pouring in, in the Administrative Department, the Department vide Government Order No. 511-HME of 2018 dated 13-09-2018 read with Government Order No. 729-HME of 2018 dated 21-12-2018, re-constituted a Departmental Committee headed by Director 6 WP ( C) No. 372/2022 Finance, Health and Medical Education Department. The Committee recommended that the period of absence of the respondent shall be treated as leave whatever kind due except study leave, as per the leave account of the respondent, providing further that remaining period of short fall shall be treated as dies non. The respondent was also warned not to leave his place of posting for any occasion in future un-authorizedly. It is the stand of the writ petitioners that the said recommendations were accepted by the Competent Authority and are being applied uniformly to all the similar situated cases.
8. From the aforesaid stand of the petitioners, it is evident that the petitioners have forgotten to take note of the fact that the respondent was relieved by the Director Health Services, Jammu, for undergoing DNB course in the Institute at New Delhi, after a formal NOC was granted in his favour by none other than the Administrative Department. It is surprising to note that the Committee of Senior Officers headed by Director Finance and the competent authority i.e. the Commissioner/Secretary to Government, Health and Medical Education Department, have decided to treat the period spent by the respondent while undergoing DNB course with the permission of the writ petitioners, as un-authorized absence to be dealt with liberally by grant of leave whatever kind due. No reason is discernible as to why the respondent has not been held entitled to study leave, nor anything is forthcoming from the writ petitioners as to why the respondent could not be treated as per past practice and treated on deputation. We are not saying even for a minute that past practice, if it is contrary to rules, is not required to be changed, but this should be made known to the people before they undertake such ventures like going for higher studies to enrich them with 7 WP ( C) No. 372/2022 higher degree of knowledge and expertise in the field. We, therefore, cannot approve the manner in which the petitioners have treated the respondent. One would understand a case where a Doctor leaves his employment to undergo higher studies without the permission of his employer and comes back after three years to join back. In such a case the Doctor can be treated to be on unauthorized absence, liable to be proceeded in the Departmental proceedings. Such is not the case on hand. Not only the respondent was permitted by grant of NOC by the Competent Authority but he was also permitted to join back after completion of the course.
9. Having said that, the only question that now begs determination is how the period of absence from active duty is required to be treated. To look for an answer to this question, we may have to scan through the relevant provisions of the Jammu and Kashmir Civil Service (Leave) Rules, 1979 and CSR Part-I.
10. The respondent, having been appointed in the year 2010, is admittedly governed by the Leave Rules of 1979. Chapter VI of the 1979 Rules deals with Study Leave. Rule 61 to 63 deal elaborately with the Study Leave, which for facility of reference, are set out herein below:-
"61. Subject to the conditions specified in this chapter.- (1) Study leave may be granted· to a Government servant with due regard to the exigencies of public service to enable him to undergo in or oµt of India a special course of study consisting of higher studies or specialised training in a professional or technical subject having a direct and close connection with sphere of his duty.
(2). Study leave may also be granted :-
(i) for a course of training or study tour in which a Government servant may not attend a regular academic or semi-academic course if the course of training or the study tour is certified to be of definite advantage to Government from the point of view of public interest and is related to sphere of duties of the Government servant ; and 8 WP ( C) No. 372/2022
(ii) for the purpose of studies connected with the framework or background of public administration subject to the conditions that:-
(a) the particular study tour should be approved by the authority competent to grant leave ; and
(b) the Government servant would be required to submit on his return a full report on the work done by him while on study leave;
(iii) for the studies which may not be closely or directly connected with the work of a Government servant, but which are capable of widening his mind in a manner likely to improve his abilities as a civil servant and to equip him better to collaborate with those employed in other branches of the public service.
(3) Study leave shall not be granted unless :-
(i) it is certified by the authority competent to grant leave that the proposed course of study or training shall be of definite advantage from the point of view of public interest ;
(ii) it is for prosecution of studies in subjects other than academic or literary ; and
(iii) it is for prosecution of studies in such specialities and subject in which there may be dearth of officers in a Department ;
(iv) the Department of Economic Affairs of the Ministry of Finance, Government of India agrees to the release of foreign· exchange involved in the grant of study leave, if such leave is outside India.
Study leave out of India shall not be granted for prosecution of studies in subjects for which adequate facilities exist in India or under any of the scheme administered by the Government of India.
(4) Study leave shall not ordinarily be granted to a Government servant:-
1 (i) who has rendered less than three year's service under the Government or till he/she, if probationer, does not complete the period of probation satisfactorily whichever is later.
(ii) who is due to retire or has the option to retire from the Government st:rvice within three years of the date on which he is expected to return to duty after the expiry of the leave.
(5) Study leave shall riot be granted to a Government servant with such frequency as to remove him from contact with a regular work or to cause cadre difficulties owing to his absence on leave.
62. · The maximum amount of study leave, which may be granted to a Government servant shall be :-
(a) ordinarily twelve months at any one time; and
(b) during his entire service twenty-four months in all (inclusive of similar kind of leave for study or training granted under any other rules).
63. (I) (a) Every application for study leave shall be submitted through proper channel to the authority competent to grant leave ; 9 WP ( C) No. 372/2022
(b) The course or courses of study contemplated by the Government servant and any examination which he proposes to undergo shall be clearly specified in such application.
(2) Where it is not possible for the Government servant to give full details in his application or if after leaving India he is to make any change in the programme which has been approved in India, he shall submit the particulars as soon as possible to the Head of the Mission or the authority competent to grant leave as the case may be and shall not unless prepared to do so at his own risk, commence the course of study or incur any expenses in connection therewith until he receives the approval of the authority competent to grant the study leave for the course."
11. From reading of Rule 61, it is evident that Study Leave is granted to enable a government servant to undergo, in or out of India, a special course of study consisting of higher studies or special training in professional or technical subject having direct and close connection with sphere of his duty. It is available to all those Government servants who have satisfactorily completed the period of probation and have rendered not less than three years regular and continuous service. The total period of study leave that can be granted to a government servant during his entire service career shall not exceed 36 months in all out of which ordinarily 12 months leave has to be sanctioned at any one time. This is so evident from reading of Rule 62.
12. It is true that a Government servant, applying for study leave, may not be entitled to be granted such leave unless the following conditions are satisfied:-
(i) It is certified by the authority competent to grant leave that the proposed course of study or training shall be of definite advantage from the point of view of public interest.10 WP ( C) No. 372/2022
(ii) It is for prosecution of studies in subjects other than academic or literary;
(iii) It is for prosecution of studies in such specialities and subjects in which there may be dearth of officers in a Department;
(iv) The Department of Economic Affairs of the Ministry of Finance, Government of India agrees to the release of foreign· exchange involved in the grant of study leave, if such leave is for undergoing study outside India.
13. From conjoint reading of Rule 61 and Rule 62, it becomes abundantly clear that Medical Officers/Doctors, who wish to pursue or undergo higher studies or specialized training in their professional field, must seek study leave after fulfilling the requisite conditions. The competent authority is required to take a decision as to whether the higher studies or specialized training in the professional subject, for which the study leave is applied for, has a direct and close connection with the sphere of duty of the applicant or it may not be closely or directly connected with the work of a Government servant but is otherwise capable of widening his mind in the manner likely to improve his abilities as a civil servant and to equip him better to collaborate with those employed in other branches of the public service. In short, Rule 61 and 62 and Chapter VI of 1979 Rules lays down elaborate procedure for grant of study leave in appropriate cases.
14. In the case on hand, the writ petitioners being employer of the respondent, should not have granted him NOC or relieved him without first asking him to submit an application for grant of study leave and then taking 11 WP ( C) No. 372/2022 a decision thereon in terms of Rule 61 and 62. This, however, was not done by the petitioners, who, as per past practice, left the period of absence from duty of the respondent during the period he was undergoing DNB course, to be determined after the respondent joined back.
15. Be that as it may, it would have been just and fair on the part of the petitioners to consider the case of the respondent under Rule 61 and 62 of the Rules and grant him ex-post facto study leave as to mitigate his hardship. The petitioners acted in a manner as if they are law on to themselves and issued the communications which have serious adverse consequences to the respondent. As rightly held by the Tribunal, such orders cannot be passed by the State or its functionaries without complying with the principles of natural justice.
16. We are, therefore, of the firm view that in the given facts and circumstances, the settlement of period of respondent with effect from 25- 06-2014 to 26-06-2017 ought to have been considered under Rule 61 and 62 of Chapter VI of the Rules of 1979. We, however, cannot give imprimatur to the observations of the Tribunal that the petitioners should have gone by the past practice and treated the period on deputation as had been done in the similarly circumstanced doctors. It is trite that two wrongs do not make one right and the past practice, if contrary to the Rules, cannot be perpetuated by judicial orders. The petitioners were and are well within their right to set right the wrong and put in place a better procedure which is in consonance with law. Unfortunately the petitioners have not done so nor have they put in place a proper mechanism to deal with such cases. The petitioners should do well to issue necessary Circular instructions for the benefit of all and in 12 WP ( C) No. 372/2022 particular those who intend to pursue higher studies during the course of their service, which elaborately lays down step-by-step procedure to obtain permission of the employer along with study leave, as may be permissible under Rules.
17. We shall now advert to Article 44-A and 44-F of the Civil Service Regulations, Part-II, which has been applied by the petitioners in the past to give benefit to their blue eyed employees/doctors. Before we proceed, it would be appropriate to set out relevant extract of Regulation 44-A and 44-F of the CSR as under:-
"44-A. **[Unless otherwise provided for in these rules, Government servant deputed to receive trainings/instructive courses in the Trainings Schools, Colleges, Institutions within the State, if such, trainings/instructive courses are connected with their immediate and current job profile only and do not form an essential qualification either for holding the post to which the Government servant stands appointed or for promotion to the next higher post under rules, shall, during the period of such trainings/instructive courses, be entitled to receive their pay/presumptive pay which they would have drawn but for their deputation to such training. No substantive appointments/promotions shall be made in place of the Officer/Officials deputed for such trainings;
Provided that the above regulation shall not be applicable to the courses of study in a specialty/subject consisting of higher studies or specialized training in profession or technical subject, such as M.Sc/M.Phil/Ph.d/Diploma etc. lasting beyond 8 weeks and during which the Government servant may even attend a regular academic or semi-academic course and also take necessary examination for qualifying the said course of study and the same shall be governed by rules 61, 62 and 67 of Jammu and Kashmir Civil Services (Leave) Rules, 1979.] ...........................................................................................................
............................................................................................................13 WP ( C) No. 372/2022
44-F. Government servants sponsored by the Competent Authority for training courses outside the State but within the country shall be governed by the following terms and conditions:-
(i) Full pay/presumptive pay for the entire period of training studies.
(ii) TA (at tour TA rates) at the time of joining the institution and discharge therefrom after completion of the courses and resumption of duties. For study tours connected with the training TA as admissible for tours under rules will be allowed.
(iii) Tuition fee, if any, payable to the Institutions shall be paid direct to them or reimbursed to the trainee if paid by him.
(iv) ...............................................................................................
Provided that:-
(a) Where a Government servant is provided free board and lodge at the training institution he will be allowed training allowance at 1/4th of the above rate for meeting incidental expenses.
(b) Where either board or lodge alone is provided free of charges the Government servant will be allowed training allowance at 1/2 at the above rates.
(c) Where board and lodge is allowed against payments the Government servant will be allowed training allowance equal to the amount so paid against production of vouchers plus 1/4th of the training allowance at the above rate to cover incidental charges.
(d) Where neither board nor lodge is allowed to a Government servant by the Institution the training allowance will be allowed at the above rates and shall be enhanced by 100% in respect of Principal Cities (refer Note 2 below Art. 335) and by 50% in respect of other towns.
(vi) Training courses which do not last beyond a period of 8 weeks will be treated as short training course. [Government servants deputed for such courses if provided free board and lodge and board and lodge against payment (by the institution) will receive daily allowance at 1/4th of the rate admissible under rules in lieu of 14 WP ( C) No. 372/2022 training allowance]. In case such employees have to make their own arrangements for board and lodge they may be allowed daily allowance as admissible under rules for tours outside the State except hire conveyance for local journeys. They shall not be required to obtain separate sanction for prolonged halt but the daily allowance will be paid to them at the rates admissible for the prolonged halts outside the State. For study tours during short training courses T.A. as admissible for tour under rules will be allowed.
Note.- Where in case of any short training course a trainee is provided free of charges board or board alone, he shall be allowed to draw 3/4 th of daily allowance in lieu of training allowance.
(vii) Expenditure in respect of training allowance be debitable to the same Head of Account to which pay and allowance of the officer concerned are charged and booked under the object of Expenditure "Travel Expenses."
(viii) Authority competent to sanction deputation under these rules shall be the Administrative Department concerned to the extent of their budget allocation. However, no substitute appointments/promotions shall be made in place of the officers/officials deputed for such training.
(ix) Such of the Government servants who on the date of issue of this Notification are already under training sponsored by their Administrative Departments, will have the option to be governed by the above terms or to continue to be governed by the pre- amended terms of Art. 44. The option shall be exercise by them within a period of two months from the issue of this Notification and the same shall be final when once exercised. Those who do not exercise the option within the said period will be deemed to have opted for the old terms. The option will be addressed to the concerned Heads of Departments who will forward the same to the Accountant General in respect of the Gazetted Officers and retain the same in their officers in respect of the Non-Gazetted trainees. Pending cases, if any, shall be decided according to the provisions of this Notification."
18. From the plain reading of the Regulation 44-A, it transpires that the Government servants deputed to receive training/ Instructional courses in the 15 WP ( C) No. 372/2022 Training Schools/ Colleges/Institutions within the State shall be entitled to receive pay/ presumptive pay which they would have drawn but for their deputation to such training, provided such trainings/ courses are connected with their immediate and current job profile only and do not form an essential qualification either for holding the post to which they are appointed or for promotion to the next higher post under rules. The proviso appended to Rule 44 A, however, provides that the above Rule shall not be applicable to the courses of study in a speciality/ subject consisting of higher studies or specialized training in professional or technical subject, lasting beyond 8 weeks. Rule 44-F is evidently not applicable to the Doctors seeking to undergo higher studies or specialized training in professional/technical subjects beyond the period of 8 weeks.
19. We now turn to the provisions of Article 44-F and, as is evident from its reading, it would apply to the government servants sponsored by the Competent Authority for training courses outside the State but within the country. Many of the Doctors like the respondent herein are not Government servants sponsored by the Competent Authority to undergo the higher study of DNB course. The respondent has decided to undertake the DNB course from the Institute in New Delhi on his own and is not sponsored by the Competent Authority for such training course. Viewed thus the case of the respondent and such like cases are neither covered under Article 44-A or 44- F. We, therefore, agree with the writ petitioners that in the past, Article 44-A and 44-F have been misinterpreted to confer wrongful benefit to some vested interest in the Government.
16WP ( C) No. 372/2022
20. In view of the aforesaid discussion, we do not fully concur with the view taken by the Tribunal and, accordingly, allow the writ petition partly. The impugned judgment of the Tribunal is modified to the extent and insofar as it directs the petitioners herein to treat the period undergone in DNB course by the respondent as on deputation and we, instead, direct the petitioners to consider the case of the respondent , who is prima facie eligible under Rule 61 and 62 of Chapter VI of the 1979 ( Leave) Rules for grant of study leave, to which we find the respondent entitled to. The respondent is also entitled to all consequential benefits that would accrue to him after his period with effect from 25-06-2014 to 26-06-2017 is treated as study leave.
21. Before we part, we deem it appropriate to direct the petitioners to put in place a proper mechanism in the light of the provisions of Rule 61 and 62 of the 1979 Rules and Regulation 44-A and 44-F of Part-II of the Civil Service Regulations, to deal with the study leave and deputations to be granted in appropriate cases well in advance before permitting the applicants to leave the Department to join higher study/ training courses, as the case may be. This would not only strengthen and simplify the procedure but will also avoid unnecessary litigation in the Courts of law.
( Puneet Gupta) (Sanjeev Kumar)
Judge Judge
JAMMU:
05.06.2023
Anil Raina, Addl. Registrar/Secy
Whether the order is reportable: Yes