Gujarat High Court
Dhara Harish Kotak vs State Of Gujarat on 29 March, 2023
C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 25075 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DHARA HARISH KOTAK
Versus
STATE OF GUJARAT
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Appearance:
MR ASIM PANDYA, LD. SENIOR COUNSEL with
NISARG H VYAS(9431) for the Petitioner(s) No. 1
MS NIRALI SARDA, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 29/03/2023
ORAL JUDGMENT
1. Draft amendment is allowed. To be carried out forthwith.
Page 1 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023
2. Rule. Learned Assistant Government Pleader Ms.Nirali Sarda waives service of Rule on behalf of the respondents. Considering the issue involved and with the consent of the learned Advocates for the respective parties, the matter is taken up for final hearing today.
3. The petitioner has invoked extraordinary jurisdiction under Articles 226 of the Constitution of India, challenging the decision of respondent Nos. 1 & 2 dated 17.10.2022, in not acceding the request, for grant of study leave for 14 months to complete her study in Post Graduate Master of Dental Surgery (hereinafter referred to as "PGMDS" for short).
4. Brief facts are as under:
4.1 At present, the petitioner is serving as Dental Surgeon (Class-2) at Village- Umrala, District: Bhavnagar. Before joining, she had joined the PGMDS Course in prosthetic branch with the Government Dental College and Hospital, Civil Campus, Asarwa, Ahmedabad for the Academic Year 2015-16.
The PG-MDS course is of 36 months.
4.2 Prior to her admission in PG MDS Course, the petitioner had applied for recruitment in Dental Surgeon (Class-2) post, through GPSC examination, which was created for the first Page 2 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 time by Gujarat Public Service Commission. Result of written examination and interview were declared in 2016. Appointment order was given on 21.02.2017, wherein she was asked to resume duty within 30 days.
4.3 At the time of appointment, the petitioner had already completed 22 months of PGMDS Course in the college, where she got admission and 14 months studies were left to complete post-graduation. Therefore, at the time of joining, she, along with other candidates approached respondent No.1 with a request for late joining, however her request was rejected. Therefore, after joining the duties, the petitioner applied for study leave without pay for 14 months for completion of her PG-MDS course. However, the same was denied on the ground that she had not completed 5 years of service. On account of her not attending the PG MDS course, under order dated 02.05.2017, her admission got cancelled.
4.5 The petitioner made representation for restoration of her admission in PGMDS course on 15.06.2022. As per say of the petitioner, she has been orally conveyed by the authority that upon sanctioning of study leave, her request for restoration of the admission, will be considered. Her representation requesting restoration of admission in PG-MDS before Gujarat University is pending.
Page 3 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 4.6 Thus, as the petitioner had completed 5 years of service on 17.03.2022, she once again applied for study leave on 08.07.2022, which has been denied by communication dated 17.10.2022, aggrieved by which, present petition is filed.
5. Learned Senior Counsel Mr.Asim Pandya assisted by Mr.Nisarg Vyas for the petitioner, submitted that the decision of respondent No.1 is bad in law for the following reasons :
5.1 The reason given by respondent No.1, for not granting study leave is illegal, arbitrary and prejudicial to the petitioner. He submitted that dental post in question was created for the first time in the year 2016, and therefore, reason shown is arbitrary, biased and a high-handed approach on part of respondent No.1.
5.2 Similarly situated candidates, namely (i) Balubhai Nagabhai Ram (ii) Satya Prakash Shah (iii) Maitri N Joshi (iv) Vishal B Verma, have been granted study leave and they have finished their higher education by now. In the recent recruitment of Dental Surgeon (Class-II) for 89 posts held by the Gujarat Public Service Commission, out of 89, 7 candidates were pursuing MDS course. All 7 candidates have been given exemption and their date of joining has been extended to facilitate them for completing their higher education in MDS Page 4 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 course. Therefore, the decision of respondent Nos.1 and 2, being arbitrary and discriminatory, deserves to be quashed and set aside.
5.3 He further submitted that in this case power vested with the authority has been exercised arbitrarily and therefore judicial review of administrative action is required. In support of his submissions, he relied upon following decisions:
(i) AIR 2010 SC 2794 - East Coast Railway & Ors. Vs. Mahadev Appa Rao & Ors.
"19. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf & Jowell in their celebrated book on "Judicial Review of Administrative Action"
emphasized how the decision-maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitution democracy unless of course the statue under which such power is exercisable indicates otherwise. One of the most fundamental principles of rule of law recognized in all democratic systems is that the power vested in any competent authority Page 5 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite:
We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretion is to be exercised in accordance with those principles unless Parliament clearly indicates otherwise.
Once such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to that law and that power should not be arbitrarily exercised. The rule of law above all rests upon the principle of legal certainty, which will be considered here, along with a principle which is partly Page 6 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 but not wholly contained within the rule of law, namely, the principle of equality, or equal treatment without unfair discrimination."
(ii) AIR 2010 SC 3745 - Kalabharati Advertising Vs. Hemant Vimalnath Narichania & Ors.
"25. The State is under obligation to act fairly without ill will or malice - in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Page 7 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 Jabalpur v. Shivakant Shukla MANU/SC/0062/1976 : AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India MANU/SC/0359/1978 : AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti MANU/SC/0218/2003 : AIR 2003 SC 1941; Chairman and M.D., B.P.L Ltd. v. S.P. Gururaja and Ors.
MANU/SC/0804/2003 :(2003) 8 SCC 567 and West Bengal State Electricity Board v. Dilip Kumar Ray MANU/SC/8716/2006 : AIR 2007 SC 976)."
6. On the other hand, learned Assistant Government Pleader Ms.Nirali Sarda for the respondents, submitted that the grant of study leave is neither a legal right nor a fundamental right and therefore, present petition under article 226 of Constitution of India is not maintainable. Rule 77 of Gujarat Civil Services (Leave) Rules 2002 ("the Rules' for short) does not mandate to grant the same under any circumstances, and it is the discretion of administration and therefore, judicial review is not warranted. In this case, the petitioner is posted in Community Health Center as a Dental Surgeon covering large population of Umrala Taluka, Bhavnagar district, which includes 8 Villages. She caters to the need of large population. Therefore, keeping in mind the public welfare of such a large population, the presence of petitioner is essential and needed Page 8 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 in the particular Community Health Center, as each Community Health Center has only one Dental Surgeon. The main objective of their posting is to cater to the medical needs of rural parts of country and on account of this administrative exigency, study leave of the petitioner has been rightly rejected.
She further submitted that the aspect of parity would come into operation where there is a legal right, and the petitioner does not have the right of study leave and therefore, decision taken does not call for any interference. Moreover, as the admission of the petitioner has been cancelled, no prejudice has been caused as pleaded. She therefore submitted that the order passed by respondent Nos.1 and 2 rejecting the grant of study leave to the petitioner on the ground of administrative exigency involving public interest, does not call for any interference.
Learned Assistant Government Pleader Ms.Nirali Sarda relied upon the decision of the Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Dr.Sanjay Kumar Bansal in Civil Appeal No.4532 of 2009 and submitted that as held by Hon'ble Supreme Court, this case falls within category of "administrative exigency" and therefore, no interference of this Court is called for.
7. Heard learned advocates appearing for the respective Page 9 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 parties and considered the decisions relied upon by the respective counsel.
8. Rule 77 of Gujarat Civil Services (Leave) Rules,2002, reads as under:
"77. Conditions for grant of study leave:
(1) Subject to the conditions specified in this Chapter, study leave may be granted to a Government employee with due regard to the exigencies of public service to enable him to undergo, in or out of India, a special course of study consisting of higher studies or specialised training in a professional or a technical subject having a direct and close connection with the sphere of his duty.
(2) Study leave may also be granted -
(a) for a course of training or study tour in which a Government employee 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 Page 10 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 duties of the Government employee;
(b) for the purpose of studies connected with the frame work or background of public administration subject to the conditions that -
(i) the particular study or study tour should be approved by the authority competent to grant leave,
(ii) the Government employee should be required to submit, on his return, a full report on the work done by him while on study leave; and
(c) for the studies which may not be closely or directly connected with the work of a Government employee, but which are capable of widening his knowledge in a manner likely to improve his abilities as a Government employee 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 -
(a) 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;
(b) It is for prosecution of studies in subjects other Page 11 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 than academic or literary subjects; and
(c) 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 out of India.
(4) Study leave out of India shall not be granted for the prosecution of studies in subjects for which adequate facilities exist in India or under any of the schemes
- administered by the Department of Economic Affairs of the Ministry of Finance or by the Ministry of Education, Government of India.
(5) Study leave shall not ordinarily be granted to a Government employee -
(a) who has rendered less than five years' service under the Government; or
(b) who does not hold a gazetted post under the Government; or
(c) who is due to retire, or has the option to retire, from the Government service within the years of the date on which he is expected to return to duty after the expiry of the leave.Page 12 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023
C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 (6) Study leave shall not be granted to a Government employee with such frequency as to remove him from contact with his regular work or to cause cadre disbursed owing to his absence on leave."
9. Under Rule 77 of the Rules, the authority is vested with the discretion to grant the study leave with due regard to the exigencies of public service. In the above context, reiteration of certain facts would be relevant:
(i) The petitioner had secured admission in PG-MDS course, prior to her appointment in the year 2017. There appears no prohibition to apply for the said post pending higher studies.
(ii) Before she joined in the year 2017 to the post of Dental Surgery (Class-II), her academic year for PG-MDS had started and she had completed 22 months of her studies. Only 14 months studies were left to be completed to obtain the degree of PG-MDS.
(iii) When the petitioner applied for study leave first time in the year 2017, it was denied as she had not completed 5 years of service. As rule does not permit study leave for initial 5 years, she continued with the service and again applied in the year 2022 upon completion of 5 years of service.Page 13 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023
C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023
10. In the above context, the following factors, which need consideration:
(i) The denial of study leaves in the year 2017 was only on the ground that 5 years services was not completed.
(ii) Though negative comparison could not be made to get any relief however, it cannot be ignored that similarly situated colleagues were granted study leave to complete their studies. The reason for using the discretion positively in favour of other colleagues is not found from the reply of the respondents.
(iii) Moreover, higher education would definitely be advantageous to the sphere of duties which the petitioner is performing and it would help in discharging her duties effectively and efficiently as Government servant to the public at large. On this aspect, the factors as contemplated in Rule 77(3)(a) that the proposed course of study or training shall be of definite advantage from the point of view of public at large have not been properly perceived.
(iv) Further, I am mindful of the fact that the scope of judicial review in administrative action is very minimal however, one more factor which needs to be considered is that, the Government in the year 2022, had appointed 89 candidates on the same post at Page 14 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 different places. Out of 89 candidates, 7 candidates, have been granted exemption from the date of immediate joining under order dated 11.07.2022 (Annexure-E), and their date of joining has been extended to facilitate them to complete their higher education. Therefore, as noted above the ground stated by the Government for non-grant of study leave on account of administrative exigencies, does not appear to be plausible.
Most importantly, the petitioner had stated on oath that an undertaking shall be filed that if her admission is not restored by the University, she will not avail of the study leave, if any sanctioned, and would resume the service once again.
11. In a recent decision of Hon'ble Supreme Court in the case of Dr.Rohit Kumar Vs. Secretary Officer of Lieutenant Governor of Delhi and others reported in (2021) 8 SCC 381, Hon'ble Supreme Court in relation to non-grant of study leave of the candidate, who was denied the same on account of Covid-19, has held as under :
"37. Having regard to the circumstances in which the Appellant has been declined Study Leave, it cannot also be said that the Page 15 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 Respondent Nos. 1 and 2 have acted beyond the parameters of law. Nevertheless, the Appellant has suffered injustice, because of the denial of Study Leave, in that he has been deprived of the opportunity to pursue higher studies, which many other doctors have availed. It would be unfair to deny the Appellant the opportunity to enjoy the fruits of his efforts even now, when the COVID-19 situation has improved and is in control, only because the Respondents have not committed "apparent breach of rules and regulations" in refusing the Appellant Study Leave. This Court cannot fold its arms and remain a mute spectator to the plight of the Appellant. After all, "nothing rankles the heart more than a brooding sense of injustice".
40. The Appellant, who could not join the post graduate course, due to the denial of Study Leave by the Government pursuant to a legitimate policy decision and in response to the call of duty, cannot now be denied relief on the hyper technical ground that the Respondent Nos. 1 and 2 had not breached Page 16 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 any rules or regulations. It would be a travesty of justice to deny relief to the Appellant, when the Appellant had to make a personal sacrifice in the larger public interest, to serve the cause of humanity."
Therefore, in view of above, particularly the petitioner had already completed 22 months of PG-MDS course, remaining only 14 months denial would amount to travesty of justice when the petitioner had to make personal sacrifice in the larger public interest. It is also noticed that there is no formation of opinion as per Rule 77(3)(a) as stated herein above. Further, the petitioner is ready and willing to file Undertaking that in the event of her non restoration of her admission, she would not avail of the study leave and would join the service once again. Therefore, considering the irreparable prejudice caused to the petitioner in relation to her academic career, the order passed by respondents dated 17.10.2022, in rejecting study leave of the petitioner is hereby quashed and set aside. Respondents are directed to reconsider the application of the petitioner for study leave keeping in mind the observation made herein above and also upon the Petitioner furnishing necessary Undertaking as stated herein above, if so desired by the Respondents. The application of the petitioner for study leave shall be re-decided within a Page 17 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023 C/SCA/25075/2022 JUDGMENT DATED: 29/03/2023 period of three weeks from the date of the order. It is hereby made clear that this order is passed in the facts and circumstances of the present case, and shall not be treated as precedent.
12. In view of the above, petition is allowed to the aforesaid extent. Rule made absolute.
(MAUNA M. BHATT,J) DIPTI PATEL Page 18 of 18 Downloaded on : Mon Apr 03 20:36:42 IST 2023