Himachal Pradesh High Court
Neeraj Sharma vs State Of Himachal Pradesh And Ors on 9 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No.5394 of 2022
Date of Decision: 9.8.2023
_____________________________________________________________________
Neeraj Sharma
.........Petitioner
Versus
State of Himachal Pradesh and Ors.
of
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting?
For the Petitioner: Mr. Ajay Chauhan, Advocate.
For the respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General
with Mr. Rahul Thakur and Mr. Ravi
Chauhan, Deputy Advocates General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Petitioner herein, who was initially appointed as TGT (NM) on regular basis w.e.f. 23.8.2010 and at present working at GSSS Ghumarwin, District Bilaspur, H.P., applied for study leave for higher studies i.e. PHD in the year, 2021 (Annexure P-1).
2. Pursuant to office order dated July, 2021, issued under the signature of Director, though permission was granted to the petitioner, but subject to following term and condition No.1 i.e. "No Study leave shall be granted to the teacher concerned. He/She will have to apply for leave of kind due as admissible under the rules for ::: Downloaded on - 10/08/2023 20:33:03 :::CIS -2- appearing in the said study. If no kind leave is due at this/her credit .
then E.O.L. (without pay) may be sanctioned in his/her favour under the prevailing EOL Rules but this leave will not exceed more than three months."
3. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by learned counsel of for the petitioner is that aforesaid condition of availing leave of kind due and if same is not available, then to avail, EOL imposed by the rt respondents while granting permission to the petitioner for higher studies, is unreasonable and against the rules.
4. Pursuant to notices issued in the instant proceedings, respondents have filed reply, wherein it came to be stated that Rule 7 (1) of CCS (Leave) Rules, 1972, clearly provides that leave cannot be claimed as a matter of right. Apart from above, it has been further stated that study leave is not an assertable and enforceable legitimate right of an employee. In the petition, petitioner made specific allegation with regard to discrimination meted to her on account of the fact that similarly situate person namely Jagbir Singh, Lecturer (Hindi), was granted study leave but without imposition of conditions as has been stipulated in the case of the petitioner, but respondents in their reply though nowhere disputed factum with regard to grant of leave in favour of the Jagbir Singh, enabling him to pursue higher studies, but claimed that above named Jagbir is not working in the ::: Downloaded on - 10/08/2023 20:33:03 :::CIS -3- control of the Director (Elementary Education), rather he directly .
works under the control of the Director, (Higher Education). To demonstrate factum with regard to discrimination, petitioner by way of rejoinder pleaded that another person namely Smt. Santosh Kumari TGT (Arts), has been allowed to pursue PHD in Hindi for the year, 2023, 2024 and 2025, but without terms and conditions as have been of imposed in the case of the petitioner.
5. Having perused order dated 4.2.2023 (Annexure P-
rt 7annexed with the Rejoinder), whereby aforesaid person came to be granted study leave for 2023, 2024 and 2025, this Court specifically called upon the Director (Elementary Education), Himachal Pradesh to file sur-rejoinder. Interestingly, in the sur-rejoinder to the rejoinder filed by the petitioner, aforesaid factum with regard to grant of study leave in favour of Smt. Santosh Kumari TGT (Arts), without there being terms and conditions as contained in order granting permission to the petitioner, has not been disputed by the department, rather, to justify sanction of study leave in favour of Smt. Santosh without there being terms and conditions as imposed to the petitioner, it has been stated by the respondents that in exercise of powers delegated by the Secretary (Education) to the Government of Himachal Pradesh vide letter dated 23.2.2012, sanction of study leave was made in favour of Smt. Santosh Kumari, who is similarly situate to the petitioner herein.
It is not understood that once Secretary (Education) to the ::: Downloaded on - 10/08/2023 20:33:03 :::CIS -4- Government of Himachal Pradesh, in exercise of power delegated to .
him vide letter dated 23.2.2012, granted study leave in favour of the Smt. Santosh without there being any conditions as have been imposed in the case of the petitioner, what prevents the department to grant study leave in favour of the petitioner on same and similar conditions.
of
6. In the case of the petitioner, respondents vide order dated 5.7.2021 granted permission of higher studies i.e. PHD, subject to rt terms and conditions including that no study leave shall be granted to the teacher concerned and he/she shall have to apply for leave of kind due as admissible under the rules for appearing in the said study.
Apart from above, it has been stated that if no kind of leave is due at his/her credit, then EOL (without pay) may be sanctioned in his favour, but that shall not exceed more than three months. Even grant of EOL for three months in favour of the petitioner would not serve any purpose, especially when respondent-department itself granted permission to the petitioner to pursue higher studies i.e. PHD, which definitely cannot be completed in the period of three months. Leaving everything aside, this Court finds action of the respondents in not granting study leave to the petitioner to be highly discriminatory and arbitrary, especially when there is no dispute that similarly situate person Ms. Santosh Kumari, stands granted permission of higher studies for 2023, 2024 and 2025 without there being conditions as ::: Downloaded on - 10/08/2023 20:33:03 :::CIS -5- have been put in the case of the petitioner. It is not understood that .
once there is no provision to grant leave beyond three months, where was the occasion for the department to permit the petitioner or other similarly situate persons to peruse higher studies, especially PHD, completion whereof would definitely not take less than three years.
7. Consequently, in view of the above, this Court finds merit of in the present petition and accordingly, same is allowed and impugned order dated 5.7.2021(Annexure P-2) is quashed and set-aside and rt respondents are directed to grant study leave in favour of the petitioner as has been done in the case of one Santosh Kumari, without impressing upon the petitioner to avail leave of kind due or extraordinary leave. Since petitioner has been fighting for his rightful claim for the last two years, this court hopes and trusts that authority concerned would do the needful expeditiously, preferably, within three weeks. In the aforesaid terms, present petition is disposed of, along with pending applications if any.
August 9, 2023 (Sandeep Sharma),
manjit Judge
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