Smt. Neha Tiwari Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 3095 of 2024

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1 - Hemsagar Gupta S/o Shri Santosh Gupta Aged About 31 Years R/o H. No. 132, Anand Bhoomi, Jora, Raipur Chhattisgarh.492012

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---- Petitioner

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versus

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1 - State Of Chhattisgarh Through The Secretary, Department Of Skill Development And Technical Education, Mantralaya Mahanadi Bhawan, Atal Nagar, Naya Raipur (C.G.)

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2 - Under Secretary Department Of Skill Development And Technical Education, Mantralaya Mahanadi Bhawan, Atal Nagar, Naya Raipur (C.G.)

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3 - Director Directorate Of Employment And Training Indravati Bhawan, Block 3, Atal Nagar, Naya Raipur (C.G.)

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4 - The Principal Government Co-Ed Polytechnic Raipur (C.G.)

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5 - Neha Tiwari Aged About 37 Years, Presently Posted As Lecturer (Mechanical) Government Co-Ed Polytechnic Raipur, District Raipur (Chhattisgarh)

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---- Respondents

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WPS No. 4871 of 2024

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1 - Smt. Neha Tiwari W/o Manish Tiwari, Aged About 38 Years R/o House No. D-28, Vip City, Saddu, Raipur, District Raipur, Chhattisgarh.

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---- Petitioner

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Versus

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1 - State Of Chhattisgarh Through Secretary, Department Of Skill Development And

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Technical Education, Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal Nagar, Chhattisgarh, 492002.

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2 - Under Secretary/special Secretary, Department Of Skill Development And Technical Education, Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal Nagar, Chhattisgarh, 492002

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3 - Director, Directorate Of Employment And Training, Indrawati Bhavan, Block-3, Nava Raipur Atal Nagar, Chhattisgarh, 492002

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4 - Principal, Government Co-Ed Polytechnic, Raipur, District- Raipur, Chhattisgarh.

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---- Respondents

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For Petitioner in WPS : Mr. Palash Tiwari, Advocate No.3095/2024 For petitioner in WPS : Mr. Aman Pandey, Advocate No.4871/2024 For Respondent/ State Mr. Sabyasachi Choubey, Panel Lawyer

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({ Hon'ble Shri Justice Sachin Singh Rajput })

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Order on Board

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11/09/2024

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Since the issue involved in both cases are interlinked, this Court proceeds to decide these petitions by passing a common order.

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WPS No.3095/2024 has been filed by the petitioner challenging the permission for study leave granted in favour of respondent No.5- Neha Tiwari to pursue the Ph.D for the year 2023-24 Annexure P-1. The petitioner has also prayed for the relief that his case may be considered for study leave for next academic session 2024-25.

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WPS No.4871/2024 has been filed by the petitioner Neha Tiwari being aggrieved by orders dated 09.07.2024 and 16.07.2024 passed by respondent

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authorities by which the permission granted for study leave Annexure P-1 in WPS No.4871/2024 was canceled.

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Facts of the case which emerges from these petitions are that the petitioners in both the petitions are working in Mechanical Branch of Government Engineering College, Raipur and are holding the post of lecturers. As per gradation list prepared for the department, the petitioner Hemsagar Gupta is placed at Serial No.10 and the petitioner Smt. Neha Tiwari is placed at Serial No.18. It appears that the petitioner Hemsagar Gupta made an application for grant of study leave to pursue M.Tech degree for the academic session 202324. A meeting was convened by a committee consisting of 5 members to consider the cases for grant of study leave. It appears that three lecturers of the mechanical department who are placed at Serial No.2,3 and 4 were recommended for grant of study leave. It is brought to the notice of this Court that an order granting them study leave has also been passed. The case of the petitioner Hemsagar Gupta was not considered being below in the gradation list. Challenging the same, he had filed a writ petition bearing WPS No.6097/2023 which was disposed of by this Court vide order dated 05.09.2023 Annexure P-4 directing respondent No.3 herein to consider and decide the claim of the petitioner for grant of study leave purely in accordance with relevant rules and regulations within a period of two weeks from the date of receipt of copy of that order. It appears that the case of the petitioner was considered in light of order passed by this Court and vide letter dated 11.12.2023 Annexure P-5, his claim was rejected inter alia stating that proposal to grant study leave for three teachers was sent on 07.08.2023 and since the petitioner Hemsagar Gupta is at serial No.10 in the gradation list hence, the permission to study leave was not granted to him. The records further reflects that vide order dated 06.05.2024 Annexure P-2 in WPS

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No.4871/2024 the petitioner Neha Tiwari was granted permission to study leave for the academic session 2023-24 for two years to pursue his Ph.D. course. This order was subject to challenge by petitioner Hemsagar Gupta. It appears that when this Court issued notices to the respondents, the orders dated 09.07.2024 and 16.07.2024 Annexure P-1 in WPS No.4871/2024 was passed canceling the permission so granted which is challenged by petitioner Smt. Neha Tiwari in WPS No.4871/2024. This is the scenario of facts which is emerging from the record.

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Learned counsel for the petitioner in WPS No.3095/2024 vehemently argued that though the petitioner is placed at Serial No.10 in the gradation list and three senior lecturers have already been granted permission to study leave. Suddenly out of the blue, the order dated 06.05.2024 was passed by the respondents/authorities bypassing the instructions, norms of seniority. He submits that the admittedly the petitioner is at serial No.10 and petitioner Neha Tiwari is at serial No.18, the permission could not have been granted to petitioner Neha Tiwari and rather it should have been granted to petitioner Hemsagar Gupta. He further submits that the petitioner Neha Tiwari before permission having been granted in her favour for study leave had already taken admission in Ph.D. course. He invited the attention of this Court to the circular dated 14.10.2022 issued by the State Government for consideration of the cases for study leave Annexure P-8. For ready reference, the relevant portion is quoted hereinbelow:-

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fdlh ,d ‘kS{kf.kd l= esa fdlh ladk; ds leLr inksa esa jkT; esa dk;Zjr dqy f’k{kdksa dh la[;k ds 05 izfr’kr ls vf/kd f’k{kdksa dks v/;;u vodk’k dh vuqefr iaznku ugha dh tkosxhA

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2 v/;;u vodk’k dh vuqefr gsrq lacaf/kr ladk;okj ofj”Brk lwph ¼ladk; ds lHkh inksa dh la;qDr ofj”Brk lwph½ds vk/kkj ij fopkj fd;k tkosxkA

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By reading this clause he contends that the seniority is a sine-qua-non for grant of permission for study leave. Here in the case in hand, the respondent failed to adhere to their own guidelines/circulars and therefore, the impugned order dated 06.05.2024 Annexure P-1 deserves to be set aside and in place of petitioner Neha Tiwari, the respondents may be directed to grant permission to the petitioner Hemsagar Gupta for study leave. He also invited attention of this Court to the judgment passed by this Court in WPS No.8335/2022 order dated 22.08.2023.

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Return has been filed on behalf of the State in which it has been stated that both the petitioners in the writ petitions are not entitled to grant of study leave as only 5% of total strength of cadre can be granted study leave. As such the cadre strength of Mechanical Branch of Engineering college was 75 and 5% of them have already granted permission for study leave, therefore, the case of both the petitioners is liable to be rejected. Mr. Choubey advanced the argument in tune with the return filed by the State Government.

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Mr. Aman Pandey, learned counsel for the petitioner in WPS No.4871/2024 submits that from perusal of order dated 06.05.2024, it is quite evident that as an exceptional case, the respondents in their wisdom took a decision granting permission to the petitioner for study leave to pursue her Ph.D. course for academic session 2023-24 for two years. The order also indicates that this permission may not be treated as a precedent for future, therefore, there is no illegality or irregularity committed by the State Government. Apart from this, he submits that the total number of candidates which could have been granted study leave is 3.75 which is also reflected from the meeting and only 3 lecturers were given permission earlier and 3.75 means 4 lecturers can also be granted permission and the case of petitioner has been considered as an exceptional case. Apart from this he also submits that after this Court issued

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notice in WPS No.3095/2024 as a counterblast, the earlier permission granted to the petitioner for study leave was canceled vide order dated 09.07.2024 Annexure P-1. He further submits that vide order dated 16.07.2024 she has been asked to take charge in the department. These two orders have been passed without giving any opportunity of hearing to her. The petitioner has already taken admission in Ph.D and continuously pursuing this course. If in the mid way, the impugned orders dated 09.07.2024 & 16.07.2024 Annexure P-1 are allowed to stand, it would cause great prejudice to the petitioner Neha Tiwari. He further submits that the petitioner Hemsagar Gupta has not taken admission, as such he may have an opportunity to take admission in the next academic session as the academic session of 2023-24 has already come to an end, even if the petitioner Neha Tiwari is allowed to continue her study, it would not jeopardize the Right of the petitioner Hemsagar Gupta for next academic session.

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Heard learned counsel for the parties and perused the record.

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The controversy is revolving around for grant of permission for study leave to petitioner Neha Tiwari. From the fact as emerges that the petitioner Hemsagar Gupta made an application for grant of study leave to pursue study of M.Tech. As it appears from the record that when the meeting of five members was convened only three lecturers senior to petitioner Hemsagar Gupta and petitioner Neha Tiwari were recommended for grant of permission for study leave. Thereafter an order has already passed in favour of three senior lecturers. The petitioner had filed a writ petition stating that his case to be considered for grant of study leave, this Court also directed to consider his case vide order dated 05.09.2023 passed in WPS No.6097/2023 Annexure P-4 and thereafter the petitioner was communicated vide order dated 11.12.2023 Annexure P-5 that since three senior lecturers have already been granted

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permission, he could not have been granted the permission. The important facet is that the petitioners have made applications for grant of study leave for academic session 2023-24.

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On query being asked, it is brought to the notice that the session of 2023-24 for M.Tech has already come to an end and the petitioner has made a prayer in the writ petition that his case should be considered for grant of study leave for next academic session 2024-25. Though learned counsel for the petitioner Hemsagar Gupta tried to persuade this court that only after the permission was granted to the petitioner Neha Tiwari within short span of time, this writ petition was filed by challenging the same, but the fact remains that the permission which was granted to petitioner Neha Tiwari for academic session 2023-24 for two years. Though a relief has been claimed by the petitioner to grant permission for next academic session, but it does not appear from the record or the learned counsel for the petitioner Hemsagar Gupta could not point out that for academic session 2024-25 that any application was made by the petitioner Hemsagar Gupta or not.

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From perusal of circular dated 14.10.2022, it is indicated that 5% employees of total cadre strength would be granted permission for study leave and as stated by Mr. Choubey that the cadre strength of mechanical Branch of Engineering College, Raipur is 75 and in the recommendation itself it is mentioned that on taking 5% of 75, 3.75 persons can be granted study leave which has been taken to 3. It appears that State in its own wisdom, taking the case of the petitioner Neha Tiwari as a special case granted permission to her. The challenge by the petitioner Neha Tiwari to the impugned order appears to be based on the fact that no notice was issued or opportunity of hearing was given. It has not been argued or brought on record that before passing the orders dated 09.07.2024 and 16.07.2024 (Annexure P-1), any opportunity of

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hearing was given or any notice was served upon the petitioner Neha Tiwari inviting her response. That would mean that the petitioner Neha Tiwari is required to leave the study in the mid way. It is an admitted position that she has already taken admission and pursuing her study. The law in this regard is very settled that any order which has a civil consequence would require at least natural justice to be followed. Therefore, in the opinion of this Court the impugned order so far as Neha Tiwari is concerned is liable to be struck down and impugned orders dated 09.07.2024 and 16.07.2024 (Annexure P-1) are hereby set aside. Considered the order passed by this Court in WPS No.8335/2022 wherein it has been observed in Para 7 as under:-

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“Considering this aspect of the matter and the application of the petitioner was submitted within the stipulated period, still the candidates who are juniors to the petitioner have been granted study leave which shows arbitrariness on the part of the respondents which warrants interference by this court by issuance of mandamus to the respondents directing them to grant study leave for the next academic session on the basis of the application submitted earlier by the petitioner as the course has already begun and more than one year has already lapsed.”

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In the case in hand also, one year is already lapsed. It is expected that respondents shall consider the case of the petitioner for grant of study leave in accordance with law for the academic session 2024-25 expeditiously preferably within a period of 10 working days from the date of receipt of copy of this order subject to petitioner Hemsagar Gupta had filed such application or submits it within 3 days from receipt of copy of this order.

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With these observations, both the writ petitions stand disposed of.

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Sd/-

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Parul

Smt. Neha Tiwari v. State of Chhattisgarh

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Smt. Neha Tiwari v. State of Chhattisgarh

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