Himachal Pradesh High Court
Dr. Aarti Chaudhary vs Sree Rama Rao. 1964 2 Llj 150 = Air 1963 Sc ... on 1 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 1ST DAY OF NOVEMBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 5208 OF 2019
Between:-
DR. AARTI CHAUDHARY
WIFE OF DR. GAURAV KUMAR,
R/O VILLAGE AND POST OFFICE JASSUR
TEHSIL NURPUR, DISTRICT KANGRA,
HIMACHAL PRADESH
APPLICANT
(BY MR. LOKENDER PAUL THAKUR, ADVOCATE)
AND
1.
THE STATE OF HIMACHAL PRADESH
THROUGH THE PR. SECRETARY (HEALTH) TO THE
GOVERNMENT OF HIMACHAL PRADESH
SHIMLA.
2. THE DIRECTOR HEALTH SERVICES,
HIMACHAL PRADESH, SHIMLA
3. THE CHIEF MEDICAL OFFICER,
KANGRA DISTRICT KANGRA, H.P.
RESPONDENTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL)
This petition coming on for orders this day, the court passed the following:
O R D E R
Being aggrieved and dissatisfied with issuance of Notification dated 23.3.2012, Annexure A-1, whereby services of the petitioner came to be terminated on account of willful absence, petitioner approached erstwhile ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 2 Himachal Pradesh Administrative Tribunal by way of OA No. 1482 of 2015, which now on account of abolishment of learned Tribunal below, stands transferred to this court and re-registered as CWPOA No. 5208 of 2019 praying therein for following relief .
"(i) That the impugned Notification dated 23.3.2012 (Annexure A-1) may kindly be quashed and set aside and the applicant be reinstated into service with all consequential benefits."
2. For having birds' eyes, certain facts relevant for adjudication of the case at hand, are that the petitioner after having completed MBBS joined as Medical Officer at Primary Health Centre Khundian under Rogi Kalyan Samiti on 4.2.2009 on contract basis. However, her services were regularized vide Himachal Pradesh Government Notification dated 4.1.2012 (Annexure A-2).
Petitioner applied for no objection certificate for appearing in examination conducted by PGI MER Chandigarh for post graduation. Block Medical Officer Jawalamukhi, while acceding to the request made by the petitioner, issued no objection certificate to the petitioner vide letter No. 1363 dated 16.9.2011 (Annexure A-3). Petitioner after selection in PG course in General Surgery Department in PGI Medical Education and Research Chandigarh, requested respondent Department for grant of study leave enabling her to pursue higher studies in MS General Surgery vide letter dated 12.1.2012 (Annexure A-4) and handed over charge as per rules. Petitioner informed the Department about her having joined at PGI Medical Education and Research, Chandigarh vide letter dated 21.1.2012 (Annexure A-5) and requested to grant her study leave/ Extra Ordinary Leave, as per service norms. However, respondents, instead of considering the request of petitioner for grant of leave/ Extra Ordinary Leave., proceeded to terminate her services vide Notification dated ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 3 23.3.2012 (Annexure A-1) with effect from 12.1.2012 i.e. from the date, she allegedly remained absent from duty at her own will and joined new assignment at PGI MER Chandigarh. Petitioner, vide representation dated 16.4.2012, (Annexure A-6), requested respondents to revoke termination .
order and reinstate her, however no heed was paid to her request. Petitioner kept on reminding the respondents by sending reminders to the respondents to cancel termination order dated 23.3.2012 and in that regard, last reminder was sent to Additional Chief Secretary (Health) on 22.2.2015 (Annexure A-7).
Office of Additional Chief Secretary (Health) wrote a letter dated 12.11.2014 (Annexure A-8) to respondent No.2 to examine the matter in accordance with the Rules/Regulations in vogue andd complete proposal in a self contained note be sent to said office, enabling it to proceed further in the matter accordingly. Respondent No.2 issued letter dated 11.2.2015 (Annexure A-9) to Additional Chief Secretary (Health) to consider the case of the petitioner.
3. Interestingly, respondent No.2 apprised Additional Chief Secretary (Health) vide communication dated 7.3.2015, (Annexure A-10), enclosing therewith copy of no objection certificate issued by Block Medical Officer, Jawalamukhi, that the said Block Medical Officer was not competent to grant no objection certificate to the petitioner, as a consequence of which, request of the petitioner for revocation of termination was not considered. Being aggrieved and dissatisfied with aforesaid action of termination of services of the petitioner, she approached erstwhile Himachal Pradesh Administrative Tribunal, praying therein for the relief, as reproduced above, on the ground that once, Block Medical Officer had issued no objection certificate permitting her to participate in examination of MS General Surgery at PGI MER ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 4 Chandigarh, there was no occasion for the Department to deny Extra Ordinary Leave, enabling petitioner to complete her studies at PGI MER Chandigarh.
Besides above, petitioner also claimed that before issuing termination order, no opportunity of hearing was ever afforded to her as such, there is violation .
of principles of natural justice.
4. Pursuant to notices issued in the instant proceedings, respondents filed reply, wherein factum with regard to petitioner's being appointed on contract basis at Primary Health Centre Khundian is not disputed. It is also not in dispute that the petitioner had applied for no objection certificate to Block Medical Officer Jawalamukhi under whom, she was serving as GDO PHC Khundian, Kangra. Block Medical Officer, Jawalamukhi, instead of referring the matter to the Government of Himachal Pradesh, himself proceeded to grant no objection certificate to the petitioner and thereafter, she started pursuing her PG course in General Surgery at PGI MER Chandigarh. It is not in dispute that initially the petitioner was appointed on contact basis under Rogi Kalyan Samiti and at that particular time, she was working under the supervision and control of Block Medical Officer, Jawalamukhi. Since the petitioner had applied for No Objection Certificate for admission in MS General Surgery as a direct candidate under Rural Area category, but she was working on contract basis, she applied for No Objection Certificate to the Block Medical Officer, Jawalamukhi, who, while acceding to the request of the petitioner, proceeded to grant No Objection Certificate vide letter dated 13.9.2011 (Annexure A-3).
5. After grant of No Objection Certificate, services of the petitioner came to be regularized vide Notification dated 4.1.2012 (Annexure A-2) issued by ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 5 Health and Family Welfare Department. As per aforesaid Notification, candidate was to remain on probation for a period of two years and his/her services could be terminated at any time, without issuance of any notice.
Since pursuant to issuance of No Objection Certificate dated 13.9.2011 .
Annexure A-3, petitioner after her being selected at PGI MER Chandigarh, had joined the PG course and during this period, her services were ordered to be regularized vide Notification dated 4.1.2012 (Annexure A-2), she applied for Extraordinary Leave on 12.1.2012 (Annexure A-4). In the aforesaid communication she apprised the Director Health Services, Government of Himachal Pradesh that she has qualified the entrance examination of PGI MER Chandigarh under RA Category on 10.1.2011 in the second round of counseling. She also informed the aforesaid authority that the Block Medical Officer, before appearing in the said examination, had granted No Objection Certificate and as such, she be granted study leave for three years duration for the Academic Session 2012-2015 to pursue studies at PGI MER Chandigarh. Interestingly, no reply ever came to be given by authority to the aforesaid communication as such, petitioner vide communication dated 27.2.2012, (Annexure A-5) again requested Director Health Services, Himachal Pradesh to grant Extraordinary Leave as per service norms. In the said communication petitioner apprised the aforesaid authority that she has joined as Junior Resident under Rural Area category (non sponsored) on 16.1.2012. She claimed that since she is not sponsored by Himachal Pradesh Government, therefore, her leave can be considered as Extraordinary Leave as per service norms. Again on 16.4.2012 (Annexure A-
6), petitioner requested Additional Chief Secretary Health to consider her request for grant of Extraordinary Leave but the matter remained pending and ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 6 vide communication dated 23.3.2012 (Annexure A-1), Government of Himachal Pradesh, without serving any show cause notice upon the petitioner, proceeded to terminate her service, from the date of her willful absence from duties, at her own will. Vide communication dated 20.2.2015 .
(Annexure A-7), petitioner requested the Additional Chief Secretary to revoke her termination. She also enclosed copy of No Objection Certificate issued on 13.9.2011 (Annexure A-3) in her favour by Block Medical Officer Jawalamukhi. Additional Chief Secretary (Health) though called upon Director Health Services to explain the position, but he vide communication dated 11.2.2015 (Annexure A-9) apprised Additional Chief Secretary (Health) that the Block Medical Officer was not competent to grant No Objection Certificate to the petitioner to appear in MS examination and as such, no action, if any, ever came to be taken on the request of the petitioner to revoke her termination.
6. Precisely the case of the respondents, as emerges from the reply and as has been canvassed by learned Additional Advocate General is that the Block Medical Officer Jawalamukhi had no authority to issue No Objection Certificate in favour of the petitioner, permitting her to appear in MS examination at PGI MER Chandigarh, especially when such permission could only be granted by the competent authority i.e. Secretary (Health) to the Government of Himachal Pradesh. Besides above, respondents have also stated in their reply that since the petitioner had not completed four years regular service, she was not entitled to be granted No Objection Certificate to pursue higher studies in PGI MER Chandigarh, being an in-service candidate.
No doubt, while petitioner was granted No Objection Certificate, Annexure A-
::: Downloaded on - 03/11/2022 20:30:54 :::CIS 73, she was working on contract basis under Rogi Kalyan Samiti under the supervision and control of Block Medical Officer Jawalamukhi, however, since the petitioner had applied for No Objection Certificate to the Block Medical Officer, Jawalamukhi, it was his duty to either have permission from the higher .
authority or consult whether he is competent to grant No Objection Certificate to the petitioner permitting her to pursue higher studies at PGI MER Chandigarh. Factum with regard to competence, if any, of the Block Medical Officer Jawalamukhi to grant No Objection Certificate may not be in the knowledge of the petitioner, who otherwise being sincere employee, before appearing in MS examination at PGI MER Chandigarh, applied for No Objection Certificate to the authority, under whom she was working. It was the duty of the Block Medical Officer Jawalamukhi to ascertain before granting No Objection Certificate, whether he has the authority to issue the same or not.
Once, No Objection Certificate was issued by the official of the Department under whose supervision and control, petitioner was working, now it does not lie in the mouth of respondents to say that the No Objection Certificate was not issued by competent authority. No doubt, immediately after issuance of No Objection Certificate, services of the petitioner were regularized as such, she applied for Extraordinary Leave. While making such request, petitioner in detail apprised the Director Health Services that she has been selected against Direct Rural Area category, but Director Health Services, instead of answering aforesaid communication, remained silent till the time, termination orders were issued on 23.3.2012.
7. If, respondent Department was of the view that the petitioner cannot be permitted to continue studies in PGI MER Chandigarh, on the strength of No ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 8 Objection Certificate issued by Block Medical Officer Jawalamukhi, it ought to have recalled the petitioner immediately but it straightway, without affording opportunity of hearing to the petitioner, proceeded to terminate her services, invoking power under sub-rule 5(1) of CCS(Temporary Service) Rules, 1965.
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No doubt, at the time, when order of termination was issued, petitioner was on probation, after being regularized, but that does not mean that no notice was required to be issued by the respondents, before taking any disciplinary action against the petitioner. In case, services of the petitioner were to be terminated on account of her willful absence from duties, she ought to have been issued show cause notice, calling upon her to explain that why her services be not terminated on account of willful absence.
8. Interestingly, in the case at hand, petitioner remained absent from duties for approximately for two months, after being selected in PGI MER Chandigarh and during this period she had intimated the Department with regard to her selection and with a request to grant Extraordinary Leave but the Department, in a most cursory manner and without application of mind proceeded to terminate services of the petitioner on 23.3.2012, that too without initiation of disciplinary proceedings.
9. No doubt, the Department could remove any employee during the period of probation but even for that purpose, notice was required to be served upon the petitioner, enabling the petitioner to explain her conduct.
Recently, Hon'ble Apex Court in K. Raghupathi v. State of U.P., (2022) 6 SCC 346 has held that though nature of employment of employee concerned may be temporary but his/her services cannot be terminated without following due procedure of law. In the case before Hon'ble Apex Court, though ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 9 petitioner therein was appointed on contractual basis and his services were terminated on the ground of expiry of contractual period of appointment, Hon'ble Apex Court having taken note of the fact that the petitioner in that case was appointed after following due selection process pursuant to .
advertisement issued inviting applications from all interested candidates, getting all benefits and allowance as per applicable Rules and terms and conditions of his service, identical to regularly appointed candidate, ordered that the Department. before proceeding to issue termination order, ought to have provided due opportunity of hearing to the person concerned. Hon'ble Apex Court held as under:
"9. As per the affidavit of the said University, it could thus clearly be seen that, for every vacant post, the said University publishes an open advertisement inviting applications from all the interested candidates. It would further show that the appointments are made only after the candidates are selected by the Selection Committee. It is thus clear that though the nomenclature given to the appointment is contractual, candidates are required to undergo the entire selection process. It could further be seen that as per the affidavit of the said University itself, though the employees are technically appointed on a contractual basis, they get all the benefits and allowances as per the Rules applicable. The affidavit would further show that even according to the said University, for permanency in tenure, their terms and conditions of appointment are identical to those of regularly appointed candidates.
10. It is thus clear that the appellant was appointed after he underwent the entire selection process. Even as per the University, though the appointment shows that it is on a contractual basis, for all the purposes, it is on a regular basis. It could thus be seen that even for the appointment on a contractual basis in the said University, a candidate is required to undergo the entire selection process. Though he is appointed on a contractual basis, his terms and conditions are almost like a regular employee. It will be relevant to note that the Annual Performance Assessment Report (for short "APAR") of the appellant during the period 201213 show his performance to be outstanding.::: Downloaded on - 03/11/2022 20:30:54 :::CIS 10
Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good."
.
10. At this stage, learned Additional Advocate General argued that since the petitioner was on probation and it was specifically mentioned in her appointment/regularisation letter that her services can be terminated without issuing notice and without attracting operation of Art. 311 of the Constitution of India, there was no requirement for the Department to serve show cause notice before issuing termination order.
11. However, this court finds it difficult to agree with the aforesaid contention of learned Additional Advocate General. Hon'ble Apex Court in Shamsher Singh v. State of Punjab, (1974) 2 SCC 381, has held that notwithstanding the provisions contained in statutory rules or employment conditions permitting termination of services of probationers without reason, if one was discharged on grounds of specific allegations or inefficiency without proper enquiry and reasonable opportunity of hearing, such an action would amount to 'removal' from service within the meaning of Art. 311(2) of the Constitution of India.
12. Reliance is placed upon a judgment dated 18.3.2020, rendered by Hon'ble Apex Court in Rajasthan High Court v. Ved Priya & Anr., Civil Appeal No. 8933-8934 of 2017, wherein, while taking note of Shamsher Singh supra, it has been held as under:
14. The present case is one where the first respondent was a probationer and not a substantive appointee, hence not strictly covered within the umbrella ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 11 of Article 311. The purpose of such probation has been noted in Kazia Mohammed Muzzammil v. State of Karnataka4:
"25. The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and functions to enable the authorities .
to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. ..."
15. Similarly, in Rajesh Kumar Srivastava v. State of Jharkhand5 it was opined:
"... A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the probationer (appellant) are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. ..."
16. It is thus clear that the entire objective of probation is to provide the employer an opportunity to evaluate the probationer's performance and test his suitability for a particular post. Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly. Written tests and interviews are only attempts to predict a candidate's possibility of success at a particular job. The true test of suitability is actual performance of duties which can only be applied after the candidate joins and starts working.
17. Such an exercise undoubtedly is subjective, therefore, Respondent No.1's contention that confirmation of probationers must be based only on objective material is farfetched. Although quantitative parameters are ostensibly fair, but they by themselves are imperfect indicators of future performance.
Qualitative assessment and a holistic analysis of non quantifiable factors are indeed necessary. Merely because Respondent No. 1's ACRs were consistently marked 'Good', it cannot be a ground to bestow him with a right to continue in service.
18. Furthermore, there is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee. Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two. Whereas in the case of ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 12 a confirmed employee the scope of judicial interference would be more expansive given the protection under Article 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis.
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19. Probationers have no indefeasible right to continue in employment until confirmed, and they can be relieved by the competent authority if found unsuitable. Its only in a very limited category of cases that such probationers can seek protection under the principles of natural justice, say when they are 'removed' in a manner which prejudices their future prospects in alternate fields or casts aspersions on their character or violates their constitutional rights. In such cases of 'stigmatic' removal only that a reasonable opportunity of hearing is sinequanon. Way back in Parshotam Lal Dhingra v. Union of India 6, a Constitution Bench opined that:
"28.... In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Article 311 is not attracted. But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."
13. Though, in the aforesaid judgment, Hon'ble Apex Court has held that probationer has no right to continue in employment until confirmed and he/she can be relieved by the competent Authority, if found unsuitable but, it also held that probationer can seek protection under the principles of natural justice, when, he/she is removed on account of misconduct and his/her removal may prejudice his/her future prospects.
14. Thus, in the case at hand also, where services of the petitioner have been terminated not in ordinary course of probation but on the ground of 'willful absence from duties', which allegation amounts to misconduct and may debar the petitioner from being employed in public office, due to nature of ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 13 allegations of misconduct, as such, it was necessary for the respondents to comply with the principles of natural justice, having not done so, thus, the action of the respondents in terminating the services of the petitioner, is not sustainable in law.
.
15. True it is that High Court, while exercising power under Art. 226 of Constitution of India, would not normally interfere with the finding recorded in enquiry but if the findings of 'guilt' are based on no evidence, It would be a perverse finding and would be amenable to judicial scrutiny. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority. Reliance is placed upon judgment rendered by Hon'ble Apex Court in Kuldeep Singh v. The Commissioner Of Police, (1999) 2 SCC 10, wherein, it has been held as under:
"The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry.
This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 14 mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
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A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with."
16. It is quite apparent from law laid down by Hon'ble Apex Court that normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
17. In the case at had, what to talk about disciplinary proceedings, if any, initiated before awarding penalty of dismissal, even no notice before passing of termination order ever came to be issued to the petitioner, who otherwise, before joining PG course at PGI MER Chandigarh had duly informed her immediate officer, i.e. Block Medical Officer Jawalamukhi, who himself taking note of request of the petitioner, granted No Objection Certificate, enabling petitioner to appear in MS examination at PGI MER Chandigarh.
18. Interestingly, in the case at hand, petitioner, who at no point of time was at fault, repeatedly apprised the Department with regard to her having been granted No Objection Certificate by Block Medical Officer Jawalamukhi and her having joined at PGI MER Chandigarh but yet the Department instead of considering her request for grant of Extraordinary Leave/study leave, ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 15 proceeded to pass termination order, without opportunity of hearing to her, which action of the respondents cannot be said to be justifiable.
19. As has been observed herein above, if the department was of the view .
that the Block Medical Officer was not competent to issue No Objection Certificate it could recall the petitioner to join duties in the Department, but definitely, without affording opportunity of hearing to the petitioner, respondents could not pass termination order, which if allowed to sustain, would amount to violation of principles of natural justice.
20. Since in the case at hand, it stands established on record that initial appointment of the petitioner on contract basis was strictly as per Recruitment and Promotion Rules, for the post of General Duty Officer in the Health and Family Welfare Department and her services were regularized in consultation with Himachal Pradesh Public Service Commission, she was necessarily required to be equated with the regularly appointed General Duty Officers in the Department. If it so, she was required to be dealt with in accordance with law.
21. Once services of petitioner stood regularized before the same being terminated, it was obligatory for the Department to initiate disciplinary proceedings against her before imposition of penalty.
22. In the reply, respondents have claimed that since the petitioner had not completed four years regular service, she was not entitled to be granted No Objection Certificate enabling her to pursue higher studies at PGI MER Chandigarh but petitioner, in rejoinder, has placed on record details of doctors, who had not completed four years regular service but were not only ::: Downloaded on - 03/11/2022 20:30:54 :::CIS 16 granted No Objection Certificate to pursue higher studies but were also granted Extraordinary Leave (Annexure A-11). No sur-rejoinder/response to said documents ever came to be placed on record by the respondents, as such, said fact stands duly established on record. Since similarly situate .
persons Anilesh Thakur, Sofia, Pram Chand, Duni Chand, who had not completed four years, were granted Extraordinary Leave, enabling them to pursue higher studies, Department ought not have made any discrimination, while considering case of petitioner for grant of Extraordinary Leave. Action taken by respondents in terminating services of the petitioner, is without any authority of law and cannot be allowed to sustain in law, especially, when similarly situate persons, who had not completed 4 years, were granted Extraordinary Leave by the Department enabling them to complete their studies.
23. In view of above, this court finds merit in the petition and same is allowed. Order dated 23.3.2012 Annexure A-1, whereby services of the petitioner were terminated, is quashed and set aside and respondents are directed to reinstate the petitioner in service, alongwith seniority and continuity in service, without any back wages, immediately.
24. The petition stands disposed of in the aforesaid terms alongwith all pending applications.
(Sandeep Sharma), Judge November 1, 2022 (vikrant) ::: Downloaded on - 03/11/2022 20:30:54 :::CIS