Jharkhand High Court
Mukul Kumar Dixit vs State Of Jharkhand & Ors on 21 August, 2017
Author: S.N.Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S)No. 579 of 2010
Mukul Kumar Dixit. ... ...Petitioner
-Versus-
1. The State of Jharkhand through Secretary, Health Medical
Education and Family Welfare, Department, Govt. of Jharkhand,
Ranchi.
2. The Joint Secretary, Health Medical Education and Family Welfare,
Department, Govt. of Jharkhand, Ranchi.
3. The Deputy Secretary, Health and Family Welfare Department,
Govt. of Jharkhand, Ranchi.
4. The Deputy Secretary, Finance Department, Govt. of Jharkhand,
Ranchi.
5. The Union of India through its Director, Ministry of Health and
Family Welfare, Department of Ayush, Govt. of India, New
Delhi. ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioners: Mr. Rama Kant Tiwari, Advocate.
For the State: Mrs. Neelam Tiwari, J.C. to Sr. S.C.I.
For the U.O.I.: Mr. Prashant Vidyarthi, Advocate.
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06/ 21.08.2017The petitioner has approached this Hon'ble Court for quashing the notification of the State Government issued vide memo No.3/Aa(Stha) 41/09356(3), Ranchi dated 07/09/2009 (Annexure-7) by which the leave already granted to the petitioner vide (Annexure- 4 ) dated 31.10.2006 has been modified.
Factual Matrix
2. The factual exposition as has been delineated in this writ petition is that the petitioner is working as Ayurvedik Medical Officer in the Government Ayurvedic Hospital, Budhmu, Ranchi. At the time of filing of this writ application, the petitioner was working as Ayurvedik Medical Officer in the Government Ayurvedic Hospital, Budhmu from the date on 11.11.2000. Vide circular dated 23 rd March, 2004 the Govt. of India in view of the circular of the Central Government dated 23rd March, 2004/18.08.2006 the petitioner was nominated for study of M.D. Course from the State of Jharkhand.
3. It has been further stated that under the terms No.1.5 of the said Circular the payment of any remuneration in this regard will be the responsibility of the State concerned. In the terms No.3.2 the Central Govt. also fixed the criteria that Medical Officer working in the State Government may also be sponsored. The name of the petitioner and one Dr. Manoj Kumar Sinha were sponsored by the State of Jharkhand for pursuing M.D. Ayurvedic course from the Government Ayurved Sansthan Jaipur. Vide letter No.Misc. /13/2006- 212(8)/Swa Ranchi dated 03.05.2006. As the name of the petitioner was nominated from the State of Jharkhand under the Central 2. Government scheme for study of M.D. (Ayurved) course in the Govt. Ayurved Sansthan Jaipur for which he was informed vide letter No.R- 12013/4/2006/E & C (i) and vide letter No.F-1(34)A.C.A./2006/1-11 dated 31.08.2006, the petitioner made an application to Secretary, Health Medical Education and Family Welfare Department, State of Jharkhand, Ranchi for sanction of study leave with full salary and also to issue NOC and relieving certificate to pursue the higher studies (Anneuxre-3). In view of the application made by the petitioner two years study leave with full salary was sanctioned vide memo No.451(8) dated 31.10.2008 by the State Government in terms of conditions laid down in Jharkhand Service Code which is at Annexure-4. On completion of the study leave, the petitioner made representation before the respondents on 15.06.2009 for adjustment of the 174 days from his earned leave and the rest 87 days from future earned leave i.e. a total of 261 days which was in excess of leave granted with full salary to pursue the M.D. Ayurved course in the Govt. Ayurved Sanstan, Jaipur and further payment of two years salaries have already been received by the petitioner.
4. It has been also stated that similar benefits have been given to other Ayurved Doctors working in different States. It has been further stated that Central Government as well as the different State Governments had given three years study leave for pursuing M.D. (Ayurved) course to the similarly situated persons subject to the condition that the person availing the said benefit shall have to furnish a bond that they shall serve the concerned State Government for at least 5 years after completion of their higher studies. To the utter surprise of the petitioner, vide order dated 07.09.2009 (Annexure-7) has been issued by the State Government whereby the earlier notification dated 31.10.2006 is modified to the disadvantage of the petitioner and aggrieved by the aforesaid modified notification the petitioner was compelled to knock the door of this Hon'ble Court for redressal of his grievances.
5. Mr. Rama Kant Tiwari, learned Counsel appearing for the petitioner streneously urges that the respondent-authorities have illegally and arbitrarily issued Annexure-7. Learned Counsel argues that in no way Annexure-4 could have been modified as the same was issued in the year 31.10.2006 and after that the same was accepted by the petitioner and petitioner had already availed the benefits given to him in view of (Annexure-4) and as such it was not 3. open to the respondent-authorities to modify the earlier order after three years in the year 2009 when the said benefits were already availed by the petitioner.
6. Learned Counsel further argued that the same benefit was already given to other similarly situated persons in all over the State and it was not open for the State Government to modify the notification already issued by the Central Government of India. It is binding on the State as the petitioner was nominated in view of the notification of the Central Government of India and not of that of the State Government and as such the petitioner is entitled for the entire benefits which accrued to him in view of Annexure-4 dated 31.10.2006.
7. Per contra counter-affidavit has been filed.
8. Mrs. Neelam Tiwari, J.C. to Sr. S.C. I vehemently opposes the contention of the learned Counsel for the petitioner and draws the attention of the Court towards paragraph No. 7,8 & 9 of the counter-affidavit and submits that when an opinion was sought for from Finance Department with respect to grant of study leave, the Finance Department opined that study leave sanctioned under Rule 204 of the Jharkhand Service Code is illegal. The appropriate authority to sanction study leave/extra ordinary leave under Rule 204 is the State Government.
9. It has been also argued by the learned Counsel for the State that in view of order dated 16.04.2009 passed in W.P. (S)No.516/2003 the matter was reviewed and a modified order has come out in form of notification, as contained in Memo No.356 (3) dated 7.9.2009 and as such there is no illegality in the impugned order and the contention of the learned Counsel for the petitioner is not in accordance with law and and as such is fit to be turned down and there is no merit in this writ application which is fit to be dismissed.
10. Learned Counsel for the Union of India Mr. Prashant Vidyarthi argues that in view of the said notification, payment regarding salary and the leave period was to be done by the State Government and the Central Government has no role to play.
11. Having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. Argument advanced by the learned Counsel for the respondent-State to the effect that review or 4. modification of the order in view of order passed in W.P. (S)No.516/2003 is not tenable neither acceptable to this Court. In W.P.(S)No.516/2003 the Hon'ble Court directed to the respondent- authorities to pay the calculated amount which accrued to the petitioner for the period of leave and as the said amount was not calculated as per Rule 217 of the Service Code a direction was given to hold enquiry as the persons, who are responsible for it and the amount shall be deducted from the salary of the erring officials. But in the instant case, the amount has already been calculated and the same was paid to the petitioner. The petitioner had availed that amount and only from adjustment of the study leave that was done in view of Annexure-4. Notification already issued and the benefits already availed could not have been modified and the amount already paid and already availed could not have been said to be modified in view of separate notification and that also after thee years in 2009.
12. It is not the case of the respondent-authority that Annexure-7 was issued in view of supersession of the earlier notification (Annexure-4) though earlier notification (Annexure-4) was also in existence and as such in view of that there was no occasion to issue modification by way of Annexure-7 and that also after three years when the benefits of Annexure-4 had already been availed. The nomination of the petitioner was done in view of the notification of the Central Government and also in view of Annexure- 4 and there is no notification neither any Rule nor any such law has been brought on record to show that in view of the notification of the Central Government the notification dated 31.10.2006 made by Annxure-4 has been withdrawn or rescinded.
13. As a cumulative effect of the aforesaid Rules, Guidelines, and observations, the writ petition stands allowed. Annexure-7 dated 07.09.2009 is quashed and set aside. Respondents are directed to comply with Annexure-4 and any benefit which has accrued to the petitioner should not be taken away and prayer made in the writ application for adjustment of leave stands allowed.
14. The writ petition stands allowed.
[Dr.S.N.Pathak,J.] P.K.S.