Himachal Pradesh High Court
Dr. Lalita Bansal vs State Of H.P. & Ors on 4 June, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2821 of 2015-C. .
Judgement reserved on: 3.6.2015.
Date of decision: 04.06.2015.
Dr. Lalita Bansal ...... Petitioner.
Vs.
State of H.P. & ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1 For the petitioner : Mr. Sanjeev Bhushan, Advocate with Mr. Sanjeev Kumar Suri, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma, Addl. Advocate General, Mr. Vikram Singh Thakur and Mr. Kush Sharma, Dy. Advocate Generals.
Tarlok Singh Chauhan, Judge.
By medium of this petition, the petitioner has sought the following relief(s):-
1. That respondents may kindly be directed to issue the NOC to the petitioner for competing under the category of GDO in service group on the basis of the marks obtained in the All India Post Graduation Medical Entrance Examination 2015 (AIPGMEE) for the admission to the PG (MD/MS) degree Course for the academic year 2015-2018.
2. That the clause No. 1.9 of the Notification dated 02-04-2013 and condition No. 3 (1) (vi) of the Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:20:44 :::HCHP ...2...
Prospectus may very kindly be held inoperative in the exceptional case of the petitioner.
.
3. That the clause No. 1.9 of the Notification dated 02-04-2013 and condition No. 3(1) (vi) of the prospectus may very kindly be held illegal as unconstitutional, arbitrary against the public policy.
The facts in brief may be noticed.
2. On 11.11.2009 the petitioner was appointed as Medical Officer. Thereafter, the petitioner after availing the study leave joined the Post Graduate course for the academic year 2014-2017 at Post Graduate Institute of Medical Education and Research, Chandi garh (PGIMER). On 12.8.2014, the petitioner came to know about her critical pregnancy diagnosed as "HYPEREMESIS GRAVIDARUM", being on study leave, she was not entitled to any maternity leave and therefore had no option but to submit her resignation.
3. The petitioner vide her letter dated 27.8.2014 requested the respondents to relax the P.G. policy so that she can appear in P.G. examination in future as sponsored candidate on medical and humanitarian grounds.
4. The respondent No. 2 vide notification dated 9.9.2014 issued a notification, wherein it was stated that the State Government is not going to conduct separate Entrance Test for filling up of 50% State quota PG (MD/MS) degree seats in government colleges and the seats for the academic year 2015-2018 would be filled up on the state merit drawn on the basis of marks obtained in All India Post Graduate Medical Entrance Examinations- 2015 (AIPGMEE).
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5. The petitioner applied through proper channel under the GDO in-service group. On 18.3.2015, the petitioner submitted a .
representation before respondent No. 2 for grant of no-objection certificate. The respondents on 26.3.2015 circulated the final merit list of PG (MD/MS) degree courses, but the name of the petitioner did not find mention therein.
6. The non-issuance of no-objection certificate by the respondents has been questioned as being illegal, unjust and unreasonable on the ground that it was on exceptional circumstances that petitioner had to leave her MD/MS course in midstream on account of her critical pregnancy and being not entitled to any kind of leave she was compelled to resign.
7. We have heard the learned counsel for the parties and have gone through the records.
8. Clause No. 1.9 of the notification issued by the government on 2.4.2013 reads as follows:-
"1.9 The In-Service Medical Officers who leave the PG/ Diploma course midway shall stand debarred to re-appear in the PG/ Diploma Entrance Examination for next 5 years. Further if the Medical Officer is on duty or on paid leave, full recovery of the amount for the period of PG/ Diploma course attended would be made."
9. Similarly conditions No. 3, 3.1 and (vi) of the prospectus read as follows:-
"3. ELIGIBILITY & DISTRIBUTION OF SEATS 3.1. (A) HPHS (In-service GDO) Group
(i) 66.6% of the State Quota Seats will be filled-up by in-
service Medical Officers. The in-service group will consist of two sub-groups i.e. one sub-group consisting of regularly appointed Medical Officer and second sub-group consisting of Contractual ::: Downloaded on - 15/04/2017 18:20:44 :::HCHP ...4...
and Rogi Kalyan Samiti appointees. The distribution of seats between regular and those appointed on contract basis including Rogi Kalyan Samiti appointees will be made in the ratio .
proportionate to their total number as on 31.10.2014. For the academic session 2015-18 the distribution of seats between above two sub-groups will be in the ratio of 2:1.
(ii) The eligibility conditions regarding mandatory period of service (area-wise) in-respect of In-service group will be as under:-
Category Area Mandatory
service
period
I Chamba-Pangi & Bharmour, Tissa, 2 years
Lahaul & Spiti-All Medical Blocks,
Kinnaur Sangla & Pooh, Nichar
r (Except Bhabanagar). Shimla-
Chirgaon, Nerwa & Tikkar. Mandi-
Chohar Valley of Padhar Block.
II Kinaur-Bhabanagar of Nichar Block. 3 years
Kullu-Nirmand & Ani.
Mandi-Karsog & Janjelhi.
Chamba-Phukhari, Choori, Kihar,
Samote.
Sirmour-Shillai & Sangrah.
Kangra-Mahakal.
Shimla-Nankhari, Matiana, Kotkhai &
Kumarsain
III Other Medical Blocks of the State 4 years
(excluding the above and below) and
NRHM Office.
IV Within the limits of Shimla Municipal 5 years
Corporation, within the limits of Solan Municipal Corporation and within Baddi-Brotiwala-Nalagarh notified area
(iii) ........
(iv) .......
(v) ........
(vi) The candidates from In-Service Group who leave their PG
course in midway shall stand debarred to re-appear in the PG Entrance Examination Counselling for State quota seats next 5 years. Further if the Medical Officer is on duty or on paid leave, full recovery of the amount for the period of PG course attended would be made."
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10. Indisputably the aforesaid provisions relating to admission to PG courses are absolutely clear and unambiguous and .
therefore, this court cannot pass any direction to accommodate the petitioner or else the same would amount to judicial overreach, unless this court other wise holds these provisions to be illegal, arbitrary and ultra-vires etc.
11. It is clear from the record that the petitioner did not even made a slightest attempt to obtain leave and even in her representation dated 27.8.2014, the petitioner has simply stated that she resigned from the P.G. course on 12th August 2014 on medical grounds. It is further revealed that even no attempt was made by the petitioner to withdraw her resignation which as per own showing came to be accepted only on 22nd August 2014.
12. It is pertinent to note that petitioner vide her aforesaid representation had not sought the leave, but had made a specific request to consider her posting as Medical Officer in the Blood Bank, IGMC Shimla. In case the condition of the petitioner was so critical as alleged then why she sought continuity of her job as a Medical Officer at Shimla that too within three days of the acceptance of her resignation. If the petitioner was fit enough to work as a Medical Officer at Shimla then why she could not have continued with the PG course at PGI Chandigarh is not forthcoming.
13. The petitioner has then sought to invoke the provisions of FRSR Leave Rules to contend that petitioner being on study leave was not entitled to any leave whatsoever and therefore had no other ::: Downloaded on - 15/04/2017 18:20:44 :::HCHP ...6...
option but to resign. He has placed reliance upon FR 43 of the aforesaid Rules, which reads as follows:-
.
"43. Maternity Leave (1) A female Government servant (including an apprentice) with less than two surviving children may be granted maternity leave by an authority competent to grant leave for a period of (180 days) from the date of its commencement.
(2) During such period, she shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.
NOTE :- In the case of a person to whom Employees' State Insurance Act, 1948 (34 of 1948), applies, the amount of leave salary payable under this rule shall be reduced by the amount of benefit payable under the said Act for the corresponding period.
(3) Maternity leave not exceeding 45 days may also be granted to a female Government servant (irrespective of the number of surviving children) during the entire service of that female Government in case of miscarriage including abortion on production of medical certificate as laid down in Rule 19:
`Provided that the maternity leave granted and availed of before the commencement of the CCS(Leave) Amendment Rules, 1995, shall not be taken into account for the purpose of this sub- rule.
(4) (a) Maternity leave may be combined with leave of any other kind.
(b) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave for a period not exceeding 60 days and leave not due) up to a maximum of (two years) may, if applied for, be granted in continuation of maternity leave granted under sub-rule (1).
(5) Maternity leave shall not be debited against the leave account. "
14. The interpretation sought to be given by the petitioner is erroneous because what sub-rule(5) of Rule 43 contemplates is that maternity leave shall not be debited against the leave account, meaning thereby that maternity leave is a special benefit extended to pregnant woman employee during pregnancy and has no connection with any other kind of leave. The maternity leave as dealt with in rule-
43 is a self contained provision and has not been subjected to the ::: Downloaded on - 15/04/2017 18:20:44 :::HCHP ...7...
conditions applicable to any other leave including extra-ordinary leave.
.
15. The learned counsel for the petitioner would then contend that clause No. 1.9 of the notification dated 2.4.2013 and conditions No. 3 (1) (vi) of the prospectus be declared inoperative in case of the petitioner or in the alternative the same be held to be unconstitutional, arbitrary and against the public policy.
16. It is more than settled that a rule cannot be declared unreasonable merely because in a given case, it operates harshly.
17. In State of Gujarat vs. Shantilal Mangaldas and others AIR 1969 SC 634, it has been held as follows:-
"52. It was urged that in any event the statute which permits the property of an owner to be compulsorily acquired by payment of market value at a date which is many years before the date on which the title of the owner is extinguished is unreasonable. This Court has, however, held in Smt. Sitabati Debi v. State of West Bengal, (1967) 2 SCR 949 that a law made under clause (2) of Article 31 is not liable to be challenged on the ground that it imposes unreasonable restrictions upon the right to hold or dispose of property within the meaning of Art. 19 (1) (f) of the Constitution. In Smt. Sitabati Debi's case, (1967) 2 SCR 949 an owner of land whose property was requisitioned under the West Bengal Land (Requisition and Acquisition) Act, 1948, questioned the validity of the Act by a writ petition filed in the High Court of Calcutta on the plea that it offended Article 19 (1) (f) of the Constitution. This Court unanimously held that the validity of the Act relating to acquisition and requisition cannot be questioned on the ground that it offended Article 19 (1) (f) and cannot be decided by the criterion under Article 19 (5). Again the validity of the statute cannot depend upon whether in a given case it operates harshly. If the scheme came into force within a reasonable distance of time from the date on which the declaration of intention to make a scheme was notified, it could not be contended that fixation of compensation according to the scheme of Section 67 per se made the scheme invalid. The fact that considerable time has elapsed since the declaration of ::: Downloaded on - 15/04/2017 18:20:44 :::HCHP ...8...
intention to make a scheme, cannot be a ground for declaring the section ultra vires. It is also contended that in cases where no reconstituted plot is allotted to a person and his land is wholly .
appropriate for a public purpose in a scheme, the owner would be entitled to the value of the land as prevailing many years before the extinction of interest without the benefit of the steep rise in prices which has taken place all over the country. But if Section 71 read with Section 67 lays down a principle of valuation it cannot be struck down on the ground that because of the exigencies of the scheme, it is, not possible to allot a reconstituted plot to an owner of land covered by the scheme."
18. It is equally settled that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. A plea of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of statute is obscure. It is trite law that where the meaning of any provision is clear and explicit, but if any hardship or inconvenience is felt, it is for the authorities to take appropriate steps to amend the provision and not for the courts to virtually legislate under the guise of interpretation.
Hard cases make bad law and the plea of hardship and inconvenience has been said to be a dangerous and a misleading one and if acceded to, would lead the court to forbidden territories.
19. The learned counsel for the petitioner has not been able to show as to how the aforesaid provisions can be held to be unconstitutional or even arbitrary being against the public policy. As already observed this is a matter which can only be considered by the respondents and this court has no authority to declare that the clauses and the conditions as referred to herein above, be not applied to the case of the petitioner.
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20. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the .
parties to bear their own costs.
(Mansoor Ahmad Mir), Chief Justice.
June 04, 2015. ( Tarlok Singh Chauhan ),
(Hem) Judge.
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