Pankaj Chandel Vs the State of Hp and Others

pursuing fellowship course of Abdominal Organ Transplantation in IKDRC-ITS Ahmedabad, Gujarat has been rejected by the respondents. Aggrieved, the petitioner has instituted this writ petition.

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2. Facts:-

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2(i). Petitioner passed his MBBS course from Dr. Rajendra Prasad Government Medical College & Hospital, Kangra at Tanda in the year 2011. He was

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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appointed as Medical officer in the respondent-Health Department in June, 2011. His services were regularized as such in the year 2012. Petitioner joined Post Graduate Degree Course in General Surgery in IGMC, Shimla in the year 2015. He completed the said degree course in June, 2018 and thereafter was posted as Medical Officer at Zonal Hospital, Mandi.

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2(ii). On 17.12.2019, petitioner joined as Senior Resident in IGMC, Shimla. On completion of his residency, he was posted as Medical Officer in Civil Hospital, Sarkaghat, District Mandi. On 21.08.2023, petitioner again joined as Senior Resident (Paediatrics) now in Atal Institute of Medical Super Specialty (AIMSS), Chamiana, Shimla.

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2(iii). Petitioner was interested in doing superspeciality in Abdominal Organ Transplantation and therefore, applied for fellowship course of Abdominal Organ Transplantation in IKDRC-ITS Ahmedabad, Gujarat for academic year 2024-25. Petitioner also applied for issuance of No Objection Certificate to respondent No.2-Director Health Services, Himachal Pradesh for doing the above fellowship programme on 18.10.2024.

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2(iv). Petitioner has projected that he has been selected for admission in fellowship programme in

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Abdominal Organ Transplantation in the Institute of Kidney Diseases and Research Centre, Ahmedabad for the academic year 2024-25. On receipt of admission order, petitioner applied to respondent No.2 on 08.11.2024 for grant of study leave for three years for joining the aforesaid fellowship programme. The Principal, AIMSS Chamianarespondent No.3 forwarded petitioner’s application for study leave to respondent No.2 on 02.12.2024 with the recommendation that the fellowship programme would be beneficial to the State in larger public interest.

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Petitioner’s grievance is to the decision of respondents No.1 and 2, as communicated to him on 09.12.2024 (Annexure P-15), conveying rejection of his application for grant of study leave. Hence, the present writ petition.

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3. Contentions:-

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3(i). Learned Senior Counsel for the petitioner has

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contended that petitioner’s admission into and completion of fellowship course of Abdominal Organ Transplantation would be in the larger public interest. It is for this reason, respondent No.3 had recommended petitioner’s case for grant of study leave. Respondents No.1 and 2 have unlawfully rejected petitioner’s application for study leave.

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No reasons have been accorded while rejecting petitioner’s application.

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Learned Senior Counsel also invited attention to notification dated 07.08.2024 (Annexure P-16), whereby the respondent-State had amended the Central Civil Services (Leave) Rules, 1972 [in short ‘CCS (Leave) Rules’] to contend that the petitioner ought to have been granted study leave. Learned Senior Counsel also highlighted the PG/Super Speciality Policy notified by the respondent-State on 27.02.2019 (Annexure PR-1), in particular, Clause 11.1.2 thereof and submitted that the State needs services of Super Specialists to improve its health care facilities, hence, rejection of study leave to the petitioner for undertaking super specialty course was not proper.

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3(ii). Respondents in their common reply , have

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taken a stand that since the State/respondent-Department is facing acute shortage of Medical Officers (Specialists), therefore, after due consideration, petitioner’s request for grant of study leave was rejected and the same was accordingly conveyed to him vide letter dated 09.12.2024.

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4. Heard learned counsel for the parties and

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considered the case file.

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4(i). Petitioner claims study leave for a period of

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three years for undertaking super specialty course, i.e. fellowship programme in Abdominal Organ Transplantation from IKDRC-ITS Ahmedabad, Gujarat. Grant of study leave is governed by the CCS (Leave) Rules, 1972. During the course of hearing, learned Senior Counsel for the petitioner could not point out any provision of the aforesaid Leave Rules, which mandates the respondents to grant study leave in favour of the petitioner. Notification dated 07.08.2024 (Annexure P-16), being relied upon by the petitioner, concerns the emoluments payable to an employee, who has been granted study leave. The aforesaid notification does not advance the case of the petitioner.

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4(ii). Clause 11.1.2 of the PG/Super Speciality Policy

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dated 27.02.2019, pressed upon by learned Senior Counsel for the petitioner, provides as under:-

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“11.1.2 Since the state needs the services of super specialists to improve the health care facilities within the state, the state would offer sponsorship to candidates who wish to pursue super specialty courses, subject to following conditions:

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a) GDO seeking sponsorship should be regular and should have completed the mandatory service of the State after Post Graduation as per clause 6.1 if the candidate had pursued post graduation earlier as a sponsored candidate.

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b) Those candidates who had initially joined as Direct Candidates but subsequently turned GDO or those who have joined GDOship after doing Post Graduation from elsewhere shall be considered for

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sponsorship to Super speciality courses subject to the condition that the GDO should be regular and should have served the State for at least three years including one year of mandatory field posting.

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c) In case of GDOs, who fulfil the conditions as laid down at clause (a) and (b) above, and have cleared NEET-SS or any such prescribed examination including unsponsored seats of Autonomous Institutions shall apply to the DHS for Sponsorship and shall be relieved after fulfilment of formalities as prescribed at Clause 11.3.

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d) In case of GDOs, who wish to pursue the Super Specialty courses on sponsored seats of autonomous institutions, NOC shall be granted only subject to fulfilment of clause 11.1.2(a) and (b), notwithstanding the requirement of lesser/greater service in the prospectus of any particular autonomous institution.

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e) Such candidates who have been granted NOC as prescribed at Clause (d) above and have been subsequently selected to pursue the Super Specialty course against sponsored quota of autonomous Institutions shall apply to the DHS for relieving and shall be relieved after fulfilment of formalities as prescribed at Clause 11.3.”

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There is no provision in the above-extracted

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clause, which binds the State Government to grant study leave in favour of an applicant, who wishes to pursue fellowship programme. Grant of study leave is prerogative of the employer. This is a concession, which cannot be claimed as a matter of right. The employer has to decide the grant of such concession keeping in view several relevant factors and aspects.

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4(iii)(a). In Poonam Kumari Versus State of Himachal

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Pradesh and others² , it was observed that right to apply for study leave or for extension of joining time is vastly different from claiming vested right to be granted the leave. The rules invariably recognize the right to apply for leave. However, before such an application is accepted, the administration has a right, power and duty to assess the relevant factors in interest of exigencies of public service.

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Petitioner has not demonstrated any right much

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less a vested right to be granted the study leave.

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4(iii)(b). At this juncture, it will also be relevant to extract following observations from State of Himachal Pradesh Versus Dr. Sanjay Vikrant³ , wherein act of the State Government in refusing the NOC for undertaking super specialty course in Nephrology on ground of shortage of doctors was held justified:-

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“……………… Be that as it may, the fact remains that the overriding consideration, rather the only consideration of the Super Specialty Department of Nephrology being left without any doctor is germane as well as relevant to the refusal of NOC on the part of the State Government. The act of the State Government in refusing the NOC on this count can thus neither be called as arbitrary nor whimsical. It is based upon the aforesaid objective criterion and has a direct nexus with the object sought to be achieved.

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2 CWP No.5707 of 2022, decided on 19.12.2022

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3 CWP No.1968 of 2007, decided on 20.12.2007

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If the respondent is very keen to better his career prospects, to advance his career and to attain what he thinks are brighter gains than available in IGMC Shimla, nothing stops or prevents him from resigning from the government employment…………………...”

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4(iii)(c). Hon’ble Rajasthan High Court in State of Rajasthan and others Versus Dr. Sheikh Mohmmad Afzal and others⁴ observed that discretion to adjudicate upon the best interests of the working of the department is with the sanctioning authority, which possesses the requisite knowledge and/or expertise in the field as well as the workings of the concerned departments. Relevant paras from the decision are as under:-

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“11. .................. Be that as it may, the discretion to adjudicate upon the best interests of the working of the department is with the sanctioning authority, which possesses the requisite knowledge and/or expertise in the field as well as the workings of the concerned departments. Therefore, in light of the foregoing discussions, it can be stated that the learned Single Judge erred in directing the appellants to relieve the respondents from service and grant them ‘study leave’, when the discretion lay with the sanctioning authority to do the needful.

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13. It is also noted that the reliance placed upon the judgment of the Coordinate Bench of this Court in S.B. Civil Writ Petition No.9113/2020 titled as Dr. Pooja Mathur and Ors. Vs. State of Rajasthan and Ors., by the learned Single Judge, was misplaced, as in the said judgment, the provisions related to the grant of ‘study leave’ to candidates changing their stream/speciality for PG Courses was not addressed and/or under contention. Therefore, the reliance placed thereupon was per incuriam. Whereas, the reliance placed upon the judgments of Dr. Kamaldeep Khatri (Supra) is

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4 D.B. Special Appeal Writ No.428/2022, decided on 20.10.2023

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squarely applicable in the facts and circumstances of the present case. In Kamaldeep Khatri (Supra), it was held as under:-

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Right to apply for study leave is vastly different from claiming vested right to be granted the leave. The Rules recognize the right to apply, however, before such an application is accepted, the administration has a right, power and the duty to assess relevant factors of interest of exigencies of the public service. If in the opinion of the government, there is a severe shortage of the doctors particularly in the rural areas and due to which immediately after joining the service a doctor cannot be granted study leave, in our opinion such a policy cannot be stated to be unreasonable or ultravirus to the government's powers under the Rules. As long as this policy is framed after conscious consideration taking into account all relevant aspects of the matter, as long as this policy is otherwise reasonable and as long as this policy is applied uniformly without instances of pick and choose, this Court would not mandate the government administration to compulsorily grant leave to probationer doctors to pursue higher studies.

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We have noted that some of the courts have, while granting such permission either under the interim order or final orders imposed a condition of service for minimum five years after rejoining the active duty upon completion of the studies. We wonder that would happen if the government desires to terminate the service during probation on account of unsatisfactory service. A condition to serve a full length of a specified period would perhaps be incongruous with the right of the employer to terminate the service of a probationer before confirmation. Be that as it may, in our interpretation unless and until the government decisions suffer from irrationality, illegality or legal or factual malafides, we would not direct the government to grant study leave to a probationer contrary to the government policy.”

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4(iii)(d). Hon’ble High Court of Punjab and Haryana in Vikas Chaudhary Versus Pt. B.D. Sharma University of Health Sciences (UHS), Rohtak and others⁵ , held that “Concession of paid study leave is not a vested right of the employee. In fact, it is a privilege granted by the University (employer therein) to its permanent employees, who fulfil the requirements of the Regulations. Therefore, the petitioner cannot claim as a matter of vested right that he is entitled to paid study leave” .

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4(iv). During hearing of the case, learned Senior Counsel for the petitioner also urged that petitioner had been discriminated vis-a-vis similarly situated doctors. No mention of any specific name or alleged discrimination has been made out in the writ petition. However, in the rejoinder, three names have been quoted with assertions that those persons have been allowed to join super specialty courses. Learned Additional Advocate General in response submitted that to none of the doctors named in the rejoinder, study leave has been granted by the respondents. Petitioner, therefore, has failed to make out a case for discrimination as well.

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5 CWP No.15486-2018, decided on 22.08.2024

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Study Leave is paid for leave. There is no vested right in the employee to insist that study leave should be granted to him. Grant of study leave to an employee is the prerogative of the employer to be exercised in accordance with law after taking into consideration the relevant factors. In the instant case, the decision of the respondents in rejecting petitioner’s prayer for grant of study leave on account of shortage of doctors is well founded and does not call for any interference.

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5. In view of above discussion, I find no merit in the instant writ petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.

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Jyotsna Rewal Dua January 07, 2025 Judge Mukesh

Pankaj Chandel v. the State of Hp and Others

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Pankaj Chandel v. the State of Hp and Others

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