Allowed

Dr Rohit Labana S/O Shri Ramesh Chandra Labana v. State of Rajasthan

Rajasthan HC9 Dec 2021CW/5873/2020

Case brief

AI extract

What is this about?

Group of government appeals and writ petitions on whether in-service medical officers on probation can be granted study leave for PG courses. Rule 122 puts probationers on par with permanent servants for leave, but the government's policy refusing study leave to freshly joined doctors is not unreasonable, and probationer-trainees earn no leave under Rule 122A. Appeals allowed; writ petitions dismi

What the court decided

AI extract

Dr Rohit Labana S/O Shri Ramesh Chandra Labana Vs… — Education and Admissions | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. Special Appeal Writ No. 911/2020

¶3

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur Rajasthan-302005.

¶4

Director (Public Health), Directorate Of Medical And Health Services, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur

¶5

The Chief Medical And Health Officer, Alwar Rajasthan 4. The Chairman, neet Pg Medical And Dental Admission/, Counseling Board 2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur Rajasthan

¶6

----Appellants

¶7

Versus

¶8

Dr. Kamaldeep Khatri S/o Shri Bhagwan Das, Aged About 36 Years, R/o 36, Yog Nagar, 60 Feet Road, Alwar 301001 (Raj)

¶9

----Respondent

¶10

Connected With

¶11

D.B. Civil Writ Petition No. 13444/2019

¶12

Dr. Ashok Pal S/o Shri Chhote Pal Singh, Aged About 36 Years, R/o Plot No.120, Goverdhan Nagar, Sanganer, Jaipur

¶13

----Appellant

¶14

Versus

¶15

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical And Health Services, Government Of Rajasthan, Secretariat, Jaipur.

¶16

Secretary, Department Of Medical And Health Services (Group-2), Government Of Rajasthan, Secretariat, Jaipur.

¶17

Director, Medical And Health And Family Welfare Services, Swasthya Bhawan, Jaipur

¶18

Additional Director (Gazetted), Medical And Health Services, Swasthya Bhawan, Jaipur

¶19

The Principal And Controller, Sms Medical College And Hospital, Jaipur

¶20

The Principal Medical Officer, Rajiv Gandhi District Hospital, Alwar

(2 of 25)

[SAW-911/2020]

----Respondents

D.B. Civil Writ Petition No. 13802/2019

¶25

Shiv Kumar Chahar S/o Shri Hardam Singh, Aged About 34 Years, By Caste- Jat, R/o Plot No.14, Brijvihar Colony, Madarpur Road, Bharatpur (Raj.)

¶26

----Appellant

¶27

Versus

¶28

State Of Rajasthan, Through Secretary, Department Of Medical And Health Services (Group-2), Government Of Rajasthan, Jaipur, Rajasthan.

¶29

The Director, Medical And Health And Family Welfare Service, Jaipur, Rajasthan

¶30

The Additional Director (Gazzetted), Medical And Health Services, Jaipur, Rajasthan.

¶31

The Principal-Cum-Controller, Government Medical College, Bharatpur, Rajasthan.

¶32

Chief Medical And Health Officer, Bharatpur, Rajasthan.

¶33

----Respondents

¶34

D.B. Special Appeal Writ No. 903/2020

¶35

State Of Rajasthan, Additional Chief Secretary, Department Of Medical And Health, Government Secretariat, Jaipur Rajasthan-302005.

¶36

The Chief Medical And Health Officer, Banswara.

¶37

The Chief Medical And Health Officer, Jhunjhunu.

¶38

Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

¶39

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶40

The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶41

----Appellants

¶42

Versus

¶43

Dr. Ajay Kumar Saini S/o Shri Mali Ram Saini, Aged About 24 Years, R/o Dhani Maliyan, Village Nayan, Via Amarshar,

¶44

(3 of 25)

¶45

[SAW-911/2020]

¶46

Tehsil Shahpura, District Jaipur, Rajasthan.

¶47

Dr. Ajay Kumar Saini S/o Mahesh Kumar, Aged About 26 Years, R/o Birodi Bari, Tehsil Laxmangarh, District Sikar, Rajasthan.

¶48

Dr. Mukesh Kumar Jat S/o Ram Lal Jat, Aged About 29 Years, R/o Vpo Khorashyamdass, Via Jaitpura, Tehsil Amer, District Jaipur, Rajasthan.

¶49

----Respondents

¶50

D.B. Special Appeal Writ No. 930/2020

¶51

State Of Rajasthan, Additional Chief Secretary, Department Of Medical And Health, Government Secretariat, Jaipur Rajasthan-302005

¶52

The Chief Medical And Health Officer, Churu, Rajasthan

¶53

Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

¶54

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029

¶55

The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶56

----Appellants

¶57

Versus

¶58

Dr. Rita Shekhawat D/o Shri Sampat Singh, Aged About 26 Years, Resident Of Village Karanpura, Bhamasi, District Churu (Rajasthan)

¶59

----Respondent

¶60

D.B. Special Appeal Writ No. 931/2020

¶61

State Of Rajasthan, Additional Chief Secretary, Department Of Medical And Health, Government Secretariat, Jaipur Rajasthan-302005

¶62

The Chief Medical And Health Officer, Hanumangarh, Rajasthan

¶63

Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi- 110011

¶64

(4 of 25)

¶65

[SAW-911/2020]

¶66

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029

¶67

The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶68

----Appellants

¶69

Versus

¶70

Dr. Sunil Kumar Son Of Shri Jagdish Prasad Verma, aged about 29 years, Resident Of 170B, Sector No. 5, Near Lic Office, Nohar District Hanumangarh (Rajasthan)

¶71

----Respondent

¶72

D.B. Civil Writ Petition No. 5532/2020

¶73

Dr. Kamal Jain D/o Shri Deepak Jain, Aged About 25 Years, R/o 32 F Block, Ward No. 1, Srikaranpur, District Sri Ganganagar (Raj.)

¶74

----Appellant

¶75

Versus

¶76

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan, 302005.

¶77

The Chief Medical And Health Officer, Sri Ganganagar, Rajasthan.

¶78

Medical Counselling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

¶79

National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶80

The Chairman, Neet Pg Medical And Dental Admission/ Counselling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶81

----Respondents

¶82

D.B. Civil Writ Petition No. 5685/2020

¶83

Dr Vishal Tulsani Son Of Mr. Vinod Tulsani, Aged About 27 Years, Resident Of 34 A, C Scheme, Pratap Nagar, Chittorgarh, Rajasthan 312001

(5 of 25)

[SAW-911/2020]

----Appellant

Versus

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005

¶89

The Chief Medical And Health Officer, Chittorgarh, Rajasthan

¶90

Medical Counseling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi 110011

¶91

National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi 110029

¶92

The Chairman, Neet Pg Medical And Dental Admission/counseling Board 2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶93

----Respondents

¶94

D.B. Civil Writ Petition No. 5746/2020

¶95

Dr. Shivani Bhatter D/o Shri Sushil Kumar Bhatter, Aged About 24 Years, R/o Maheshwari Colony, Behind Pugal Bus Stand, Bikaner334001 (Raj.)

¶96

----Appellant

¶97

Versus

¶98

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005

¶99

The Chief Medical And Health Officer, Bikaner, Rajasthan 3. Medical Counselling Committee, Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi -110011

¶100

National Board Of Examinations, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029

¶101

The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

----Respondents

(6 of 25)

[SAW-911/2020]

D.B. Civil Writ Petition No. 5867/2020

¶106

Dr. Sunil Kumar Son Of Shri Jagdish Prasad Verma, Aged About 28 Years, Resident Of 170B, Secor No.5, Near Lic Office, Nohar District Hanumangarh (Rajasthan)

¶107

----Appellant

¶108

Versus

¶109

State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

¶110

The Chief Medical And Health Officer, Hanumangarh, Rajasthan

¶111

Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

¶112

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶113

The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶114

----Respondents

¶115

D.B. Civil Writ Petition No. 5871/2020

¶116

Dr Aman Thathai S/o Shri Rajendra Arora, Aged About 26 Years, R/o Gali No. 21, Ward No. 23, Nai Abadi, Hanumangarh Town, District Hanumangarh (Rajasthan)

¶117

----Appellant

¶118

Versus

¶119

1. State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

¶120

The Chief Medical And Health Officer, Hanumangarh, Rajasthan

¶121

Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

¶122

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶123

(7 of 25)

¶124

[SAW-911/2020]

¶125

The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶126

----Respondents

¶127

D.B. Civil Writ Petition No. 5873/2020

¶128

Dr Rohit Labana S/o Shri Ramesh Chandra Labana, Aged About 28 Years, R/o Village Bankda Via Peeth Tehsil Simalwara District Dungarpur (Rajasthan)

¶129

----Appellant

¶130

Versus

¶131

State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

¶132

The Chief Medical And Health Officer, Dungarpur, Rajasthan

¶133

Medical Counseling Committee, Through Director General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

¶134

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶135

The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶136

----Respondents

¶137

D.B. Civil Writ Petition No. 5874/2020

¶138

Dr. Rita Shekhawat D/o Shri Sampat Singh Shekhawat, Aged About 26 Years, Resident Of Village Karanpura, Bhamasi, District Churu Rajasthan.

¶139

----Appellant

¶140

Versus

¶141

State Of Rajasthan, Additional Chief Secretary Department Of Medical And Health, Government Secretariat, Jaipur, Rajasthan-302005.

¶142

The Chief Medical And Health Officer, Churu, Rajasthan.

¶143

Medical Counseling Committee, Through Director General

¶144

(8 of 25)

¶145

[SAW-911/2020]

¶146

Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011.

¶147

National Board Of Examination, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶148

The Chairman, Neet Pg Medical And Dental Admission/ Counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶149

----Respondents

¶150

D.B. Civil Writ Petition No. 6148/2020

¶151

Dr. Ajay Kumar Saini S/o Mali Ram Saini, Aged About 24 Years, R/o Dhani Maliyan, Village Nayan, Via Amarshar, Tehsil Shahpura, District Jaipur, Rajasthan.

¶152

Dr. Ajay Kumar Saini S/o Mahesh Kumar, Aged About 26 Years, R/o Birodi Bari, Tehsil Laxmangarh, District Sikar, Rajasthan.

¶153

Dr. Mukesh Kumar Jat S/o Ram Lal Jat, Aged About 29 Years, R/o Vpo Khorashyamdass, Via Jaitpura, Tehsil Amer, District Jaipur, Rajasthan.

¶154

----Appellants

¶155

Versus

¶156

1. State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005.

¶157

The Chief Medical And Health Officer, Banswara.

¶158

The Chief Medical And Health Officer, Jhunjhunu.

¶159

Medical Counseling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi - 110011.

¶160

National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029

¶161

The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶162

----Respondents

¶163

D.B. Civil Writ Petition No. 6582/2020

¶164

(9 of 25)

¶165

[SAW-911/2020]

¶166

Dr. Nidhi Yadav D/o Shri Bhopal Singh Yadav, Aged About 28 Years, R/o Ward No. 25, Bharthari Colony, Behror, District Alwar (Raj.)

¶167

----Appellant

¶168

Versus

¶169

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan 302005.

¶170

The Chief Medical And Health Officer, Sirohi, Rajasthan.

¶171

Medical Counselling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi - 110011.

¶172

National Board Of Examinations Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029

¶173

The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020 And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶174

----Respondents

¶175

D.B. Special Appeal Writ No. 107/2021

¶176

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur, Rajasthan- 302005.

¶177

The Chief Medical And Health Officer, Sri Ganganagar, Rajasthan.

¶178

The Chairman, Neet Pg Medical And Dental Admission/ Counselling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶179

----Appellants

¶180

Versus

¶181

Dr. Kamal Jain D/o Shri Deepak Jain, Aged About 25 Years, R/o 32 F Block, Ward No. 1, Srikaranpur, District Sri Ganganagar (Raj.)

¶182

Medical Counseling Committee Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

¶183

National Board Of Examinations Through Its Director,

¶184

(10 of 25)

¶185

[SAW-911/2020]

¶186

Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶187

----Respondents

¶188

D.B. Special Appeal Writ No. 114/2021

¶189

State Of Rajasthan, Through Additional Chief Secretary, Department Of Medical, Health And Family Welfare, Government Secretariat, Jaipur Rajasthan-302005

¶190

The Chief Medical And Health Officer, Bikaner, Rajasthan

¶191

The Chairman, Neet Pg Medical And Dental Admission/counseling Board-2020, And Principal, Govt. Dental College, Subhash Nagar, Behind T.b. Hospital, Jaipur, Rajasthan.

¶192

----Appellants

¶193

Versus

¶194

Dr. Shivani Bhatter D/o Shri Sushil Kumar, Aged About 24 Years, R/o Maheshwari Colony, Behind Pugal Bus Stand, Bikarner-334001 (Raj.)

¶195

Medical Counseling Committee, Through Director General, Directorate General Of Health Services, Ministry Of Health And Family Welfare, Nirman Bhawan, Delhi-110011

¶196

National Board Of Examinations, Through Its Director, Medical Enclave, Ansari Nagar, Ring Road, New Delhi110029.

¶197

----Respondents

¶198

For Appellant(s)	: Mr. Harshal Tholia for Dr. V.B. Sharma, AAG in SAW Nos.911/2020, 903/2020, 930/2020, 931/2020, 107/2021 and 114/2021. Mr. Tanveer Ahamad with Ms. Malti Mr. Satish Kumar Khandelwal Mr. Narendra Singh Yadav Mr. Ram Pratap Saini Ms. Purvi Mathur Mr. Kushagra Sharma Ms. Soni Bajaj for Mr. G.S. Gill Mr. Vivek Tyagi, Dy. Govt. Counsel for Medical & Health Department in SAW Nos.911/2020, 903/2020, 930/2020, 931/2020, 107/2021 and 114/2021.
For Respondent(s)	: Mr. Harshal Tholia for Dr. V.B. Sharma, AAG in DBCWP Nos.

For Appellant(s)

:
Mr. Harshal Tholia for
Dr. V.B. Sharma, AAG in SAW
Nos.911/2020, 903/2020, 930/2020,
931/2020, 107/2021 and 114/2021.
Mr. Tanveer Ahamad with
Ms. Malti
Mr. Satish Kumar Khandelwal
Mr. Narendra Singh Yadav
Mr. Ram Pratap Saini
Ms. Purvi Mathur
Mr. Kushagra Sharma
Ms. Soni Bajaj for Mr. G.S. Gill
Mr. Vivek Tyagi, Dy. Govt. Counsel for
Medical & Health Department in SAW
Nos.911/2020, 903/2020, 930/2020,
931/2020, 107/2021 and 114/2021.

For Respondent(s)

:
Mr. Harshal Tholia for
Dr. V.B. Sharma, AAG in DBCWP Nos.

¶199

(11 of 25)

¶200

[SAW-911/2020]

¶201

13802/2019, 5685/2020, 5873/2020 & 6582/2020.

¶202

Mr. Vivek Tyagi, Dy. Govt. Counsel for Medical & Health Department in DBCWP Nos.13444/2019 & 13802/2019. Mr. Harsh Sahu Addl. Govt. Counsel Mr. Bharat Saini, Addl. Govt. Counsel Mr. Angad Mirdha

¶203

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

¶204

Judgment

¶205

09/12/2021

¶206

All these proceedings arise out of common background. They have been heard together and would be disposed of by this common judgment.

¶207

We have heard learned Advocates for the respective parties in writ petitions and appeals respectively, who at our request appeared on advance copy, since the central issue involved is common and is also raised in Writ Petition No.5532/2020 which has been placed along with this group. Delay in filling the appeals is condoned in each appeal.

¶208

The central issue arising is the request of the medical officers appointed in government service for grant of study leave during the period of probation which the government resists. This issue has come up before this Court on number of occasions but so far has been dealt with by learned Single Judges. There has been a diversion of opinions. In some cases, the learned Single Judges have allowed the writ petitions and directed the government to grant study leave. In some cases, the petitions have been dismissed. These issues are otherwise also time bound. Once the study leave is granted under interim or final order of the learned

¶209

(12 of 25)

¶210

[SAW-911/2020]

¶211

Single Judge and the employee joins the higher PG medical course, even on the ground of equity and other considerations it would be difficult to recall the admission. If the petition is dismissed, the employee would in any way miss the deadline for enrolling in the PG course by the time he can approach the division bench and secure an order in his favour. It is perhaps because of this reason that majority of the judgments of the learned Single Judges have not traveled further. Therefore, in order to resolve this controversy, we heard learned advocates at a considerable length.

¶212

Counsel for the petitioners argued that the Government service rules do not prohibit grant of study leave to a probationer. Higher training obtained by the employees would enhance their quality of service. Even in the public interest therefore, government cannot object to grant of study leave to such candidates. By various judgments, the Single Judges of this Court have granted such permissions in past. Such trend which is existing since long should not be reversed.

¶213

On the other hand, learned Government advocate submitted that leave to an individual employee is always at the discretion of the employer. The service rules governing the petitioners specifically prohibit grant of study leave to a probationer. The government has issued circulars which also highlight this aspect. There is severe shortage of medical officers particularly in the rural areas. If therefore the government is unable to spare the services of doctors who have just joined the service for higher education, such policy is reasonable and no direction contrary to the same should be given. Counsel pointed out that in the recent appointments of medical officers the Government has inserted a

¶214

(13 of 25)

¶215

[SAW-911/2020]

¶216

condition that considering the Corona situation, study leave shall not be granted for a specified period. He drew our attention to a decision of the Supreme Court in the case of Dr. Rohit Kumar Vs. Secretary Office of Lieutenant Governor of Delhi and Ors. : (2021) 8 SCC 381 in which such condition has been upheld.

¶217

Before we offer our interpretation of the statutory provisions, we may take a quick look at the views expressed by the learned Single Judges on this question. Learned Single Judge in the case of Deepika Motwani Vs. State of Rajasthan and Ors. : SBCWP No.6191/2006 in a judgment dated 30/05/2008 held that for grant of study leave there is a mandatory requirement that the employee has to complete three years of continuous service. Study leave can be granted even to a temporary government servant however it has to be certified that the same is in the public interest. It was also found that the employee concerned had obtained admission in the B.Ed. course without seeking permission and study leave. Under such circumstances the petition was dismissed.

¶218

Another learned Single Judge in case of Dr. Babulal Meena Vs. State of Rajasthan and Ors. : SBCWP No.15955/2012 in a judgment dated 02/05/2013 drew a distinction between a temporary government servant and a probationer. It was held that the service of a probationer is of permanent nature and is not temporary. Eventually, the writ petitions were allowed.

¶219

In case of Chandar Prakash Gunawat (Dr.) Vs. State of Rajasthan and Ors. : 2013 SCC Online Rajasthan 3949 the learned Single Judge was dealing with slightly different situation. It was a case where the person already pursuing higher study was

¶220

(14 of 25)

¶221

[SAW-911/2020]

¶222

selected for government posts. While disposing of the petition it was observed that most of the petitioners had already completed their course and had joined service and therefore, they may be allowed to continue in service but the effective date of appointment would be the date when they joined the service after completion of the course and that the petitioners would execute a bond for serving for at least five years.

¶223

In case of Nadeem Sardar Vs. State of Rajasthan and Anr. : SBCWP No.5805/2019 learned Single Judge in a judgment dated 04/04/2019 after referring to the service rules and the government circulars dismissed the petition making following observations:-

¶224

“A petition under Article 226 of the Constitution of India can be maintainable in the event of contravention of legal or fundamental rights or failure of the respondents to discharge a statutory duty owed to a citizen. Neither of the two situations arise in the present case. The petitioner is admittedly a probationer-trainee and the nature of his services is thus yet temporary and not confirmed. In terms of the memorandum dated 22.5.2009 as also Rule 96(b) of the Rajasthan Service Rules, read with the Government of Rajasthan’s decision no.3 the petitioner with his current status in service is not entitled to Extraordinary Leave for over a year under any circumstance. A PG Medial course duration is at least 3 years. The absence of the petitioner from his current probation period for a period of three years while he undergoes the PG Medical Course cannot be therefore countenanced.

¶225

Aside of the above, I am of the considered view that in the event the petitioner were indeed desirous to pursue the PG Medical Course to which he may be admitted on his performance at NEET PG, 2019 he is free to resign from service as a Medical Officer. The State Government is the employer cannot be directed to issue a NOC to the petitioner for the three year PG Medical Course and thereby violate the Rajasthan Service Rules, 1951 as also its memorandum dated 22.5.2009.

¶226

I find no force in the petition. Dismissed.”

¶227

(15 of 25)

¶228

[SAW-911/2020]

¶229

The petitioner Nadeem Sardar challenged the judgment before the division bench. His appeal was decided on 29/04/2019 in following terms:-

¶230

“Having regard to the arguments aforesaid, this Court is not inclined to interfere with the order of the learned Single judge, but at the same time, relegate the appellant to the remedy of making a representation, with the undertaking to the aforesaid effect, to the Additional Chief Secretary, Department of Medical and Health, Government of Rajasthan, Jaipur, who shall in his wisdom consider and pass any order thereupon within 15 days of making such representation by the appellant.

¶231

The appeal is disposed of accordingly.”

¶232

It can thus be seen that the division bench while refusing to interfere with the order of the learned Single Judge, still relegated the appellant for making a representation before the authorities. This order of the division bench cannot be seen as confirmation of the judgment of the learned Single Judge on the question of law.

¶233

There are some more orders passed by the learned Single Judges merely relying on the earlier orders of the courts and reference to them would not be necessary. It may however be recorded that while granting permission to the in-service doctors to pursue PG medical course under the interim or final orders the courts have imposed a condition of execution a bond for serving for five years after rejoining the duty on completion of the course.

¶234

It can thus be seen that the consideration of the issue at hand so far has been by the Single Benches and there is no authoritative pronouncement of the division bench of the High Court on the legal issue arising. In this background we may now refer to the statutory provisions applicable. Chapter-X contained in Part-IV of the Rajasthan Civil Services Rules, 1951 (hereinafter to be referred to as the said ‘Rules of 1951’) pertains to leave.

¶235

(16 of 25)

¶236

[SAW-911/2020]

¶237

Section I of Chapter-X pertains to general conditions of leave. Rule 57 falling in the said section provides for leave earned by duty. This rule provides that leave is earned by duty only including period spent in foreign service if contribution towards leave salary is paid on account of such period. Rule 59 reads as under:-

¶238

“ 59. Leave cannot be claimed as right— Leave cannot be claimed as a right. Discretion is reserved to the authority empowered to grant leave to refuse or revoke leave at any time according to the exigencies of the public service; provided that any leave applied for and due as preparatory to retirement shall not be refused by such authority and it shall be refused in writing by the Government or by such authority to whom powers have been delegated in this behalf. The nature of leave due and applied for by a Government servant cannot be altered at the option of the sanctioning authority, and so while it is open to the authority competent to refuse or revoke leave due and applied for under this rule, it is not open to him to alter the nature of such leave.”

¶239

As per this rule study leave cannot be claimed as a right and the discretion is reserved to the competent authority to grant leave or to refuse or revoke the same according to the exigencies of the public service. Rule 96 of the said Rules pertains to extraordinary leave and provides that the extraordinary leave may be granted to a government servant under the special circumstances mentioned therein. Section VI of the Rules of 1951 pertains to study leave. Rule 110 falling under said Section pertains to admissibility of study leave and reads as under:-

¶240

“110. Admissibility of study Leave.- (1) Study leave will be admissible to a permanent Government servant to pursue course of study or investigation of a scientific or technical nature which in the opinion of the sanctioning authority is considered necessary in the public interest for the working of the department in which he is employed. It will ordinarily be not granted to a Government servant who has completed 20 years of service or more.

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(2) Notwithstanding the provisions contained in sub-rule (1) study leave will also be admissible to a temporary Government servant who has completed three years

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continuous service provided that the initial appointment has been made on the advice of the Rajasthan Public Service Commission in case the post falls within the purview of the Rajasthan Public Service Commission or the appointment has been made by the competent authority in accordance with the rules regulating recruitment and conditions of service framed under proviso to Article 309 of the Constitution or where such rules have not been framed the appointment has been made by the competent authority in accordance with the orders issued by the Government prescribing academic qualification, experience etc.

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(3) In case of a temporary Government servant who has completed three years continuous service and is not covered by provisions of sub-rule (2) above extra ordinary leave may be granted for a period of two years for purpose of prosecuting higher studies certified to be in the public interest in relaxation of provision contained in rule 96 (b) of Rajasthan Service Rules.

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Note-.— 1. Diploma holders in any branch of engineering who are entitled to study leave under sub-rule (1) & (2) above may be granted study leave for a period of 24 months and in addition any kind of leave due and admissible to them upto a period of one year to enable them to obtain a degree in engineering. In case any other kind of leave is not due and admissible he may be granted extra ordinary leave not exceeding one year in addition to study leave admissible to him under this rule.

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3. Temporary diploma holders in any branch of engineering who have completed continuous three years service and are not covered by the provisions contained in note 1 above may be granted extra ordinary leave for a period not exceeding three years for the purpose of obtaining a degree in Engineering from any University in relaxation of the provisions contained in rule 96 (b) of Rajasthan Service Rules.”

¶248

Rule 112 pertains to condition for grant of study leave and

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reads as under:-

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“ 112. Condition for grant of Study Leave.- (1) Study leave shall be granted to enable a Government servant:-

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“(i) to pursue a course of study or investigation of a scientific or technical nature either in India or outside India

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provided that it is certified by the authority competent to sanction that the grant of study leave will be in the interest of the working of the department or the service to which the Government servant belongs. The authority competent to grant study leave shall ensure that it is not granted to a Government servant with such frequency work or to cause cadre difficulties owing to his as to remove him from contact with his regular absence on leave. A period of 12 months at one time should ordinarily be regarded as a suitable maximum and should not be exceeded save for exceptional reasons.

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(ii) The total period of study leave during the entire period of service of a Government servant shall not be more than 24 months. It may be taken in one spell or more than one spell. Study leave may be combined with other kinds of leave, but in no case shall the grant of this leave in combination with leave, other than extra-ordinary leave, involve a total absence of more than twenty-eight months from the regular duties of the Government servant.

¶256

(2) Study Leave is extra leave on half pay and leave salary during such leave shall be regulated in accordance with rule 97(2).”

¶257

Rule 122 pertains to leave to probationers and reads as under:-

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“ Leave to probationers. -Leave may be granted to a probationer if it is admissible under the leave rules which would be applicable to him, if he held his post substantively otherwise than on probation. If for any reason it is proposed to terminate the services of a probationer any leave which may be granted to him should not extend beyond date on which the probationary period as already sanctioned or extended expires, or any earlier date on which the services are terminated by the orders of an authority competent to appoint him.”

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Rule 122A reads as under:-

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“122A (i) Probationer-trainee shall earn no leave during the period of probation.

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(ii) Female probationer-trainees shall be granted maternity leave as per Rule 103 and 104”.

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Rule 122A thus provides that a probationer-trainee shall earn no leave during the period of probation however female probationer-trainee shall be granted maternity leave as per Rules.

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We may now refer to the government instructions relied upon by the Government Counsel. In a memorandum dated 22/05/2009 the Government of Rajasthan has issued certain clarifications with respect to the grant of leave to a probationertrainee. It is recorded that as per Rule 122A of the Rules of 1951, a probationer-trainee shall earn no leave during the probation period. However, for grant of extraordinary leave, he may be treated similar to a person appointed on temporary basis. It was therefore decided that the appointing authority may sanction extraordinary leave up to three months to a probationer-trainee during the period of probation-training. If leave is to be granted beyond said period, it would be in the exceptional circumstances, with the concurrence of the Finance department and the period of probation would be extended to that extent. In a memorandum dated 11/06/2014 the question of granting extraordinary leave to a probationer-trainee was again considered and to deal with the request for extraordinary leave promptly authorities were specifically empowered.

¶266

Few things which immediately emerge from the Rule position are that as provided in Rule 59 leave cannot be claimed by an employee as a right and the discretion is reserved with the authority to grant, refuse or revoke a leave at any time “according to the exigencies of the public services.” This Rule is thus of considerable importance. It empowers the government and the competent authority acting for and on behalf of the government to grant, refuse or even revoke a leave already granted and the employee cannot claim a vested right to claim leave. At the same time, such powers of the government are not unlimited or unrestricted. The powers are to be exercised while granting,

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refusing or revoking leave according to the exigencies of the public service.

¶270

We are in agreement with the interpretation of Rule 122 and 122A made by the learned Single Judges while allowing the petitions in the past that there is a clear distinction between leave to a probationer and leave claimed by a probationer-trainee. Leave to a probationer is governed by Rule 122 which provides that leave may be granted to a probationer if it is admissible under the leave Rules which would be applicable to him if he held his post substantively otherwise than on probation. In plain terms for the purpose of grant of leave, a probationer is put on the same position as that of a substantive government post holder. As a probationer he may not claim to be holding the post on substantive basis for other purposes but for the purpose of leave, he would be treated as such. His leave request will be considered like any other regular permanent government servant. In comparison Rule 122A provides that the probationer-trainee shall earn no leave during the period of probation, only exception is made in favour of a female probationer-trainee who would be granted maternity leave as per the Rules. The stand of the government therefore that an employee while on probation (and not probation training) cannot claim study leave is not correct. Only if the employee happens to be a probationer-trainee, by virtue of Rule 122A such right cannot be asserted.

¶271

There is another indication for the conclusions that we have reached above. As per sub-rule (1) of Rule 110, the study leave would be admissible to a permanent government servant. As per sub-rule (2) of Rule 110, notwithstanding contained in sub-rule (1) study leave will also be admissible to a temporary government

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servant who has completed three years of continuous service provided his initial appointment is after following proper procedure. This rule thus makes a clear distinction between a permanent government servant and a temporary government servant as regards the study leave. A probationer in view of Rule 122 for the purpose of study leave is bracketed with a permanent government servant and not a temporary government servant.

¶275

This however is only a part of the picture. We may now refer to provisions as per which the study leave can be granted. As noted, Rule 110 pertains to admissibility of study leave. As per sub-rule (1) study leave would be admissible to a permanent government servant to pursue course of study or investigation of a scientific or technical nature which in the opinion of the sanctioning authority is considered necessary in the public interest for the working of the department in which he is employed. Study leave would be admissible to a permanent government servant by virtue of Rule 122 which we have just referred. Even a probationer can claim such study leave. Such study leave could be granted to pursue course of study or investigation of a scientific or technical nature “which in the opinion of the sanctioning authority is considered necessary in the public interest for the working of the department in which he is employed.”

¶276

Rule 112 which pertains to grant of study leave inter-alia provides that study leave may be granted to a government servant to pursue a course of study or investigation or a scientific and technical nature either in India or outside India provided that it is certified by the authority competent to sanction that the grant of study leave will be in the interest of working of the department and the service which the government servant belongs.

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The right of the government servant to seek study leave therefore is hedged by several conditions. To begin with, as per Rule 59 all leaves and not just study leave is within the discretionary powers of the employer which discretion has to be exercised in the exigencies of the public service. Coming to the study leave in particular, as per sub-rule (1) of Rule 110 the study leave would be granted only for pursuing course of study or investigation of a scientific or technical nature which in the opinion of the sanctioning authority is considered necessary in the public interest for the working of the department in which the person is employed. As per sub-rule (1) of Rule 112 such study leave shall be granted only when it is certified by the authority competent to sanction that the grant of study leave would be in the interest of the working of the department or the service to which the government servant belongs.

¶280

While considering the question of grant or refusal of study leave the exigencies of public service is thus of paramount consideration. When it comes to grant of study leave, this requirement is taken to a further higher level of the sanctioning authority being of the opinion that it is necessary in public interest for working of the department in which the person is employed. That such higher study would augment the skills of the employee upon return is just one of the considerations before the administration while considering the request for study leave. The vacancy position in the cadre, the requirement of sufficient employees to look after the service to be provided and range of other factors shall have to be weighed by the administration as enabled by Rules 59, 110 and 112 of the said Rules of 1951 before the request for grant of study leave can be accepted. The

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decisions of the learned Single Judges in favour of the petitioners proceed only on the basis of interpretation of the Rules which do not; and we believe correctly; prohibit a probationer from seeking study leave. 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.

¶284

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 what 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 services of a probationer before confirmation. Be

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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.

¶288

So far as probationer-trainees are concerned, however, this position is vitally different. Rule 122A in clear terms lays down that a probationer-trainee during the training period shall earn no leave. It was on account of this Rule that the government had issued the two clarifications vide memorandum dated 22/05/2009 and 11/06/2014 while recording that even probationer-trainees are being granted study leave, it was clarified that the same was to permissible and the probationer-trainee would be entitled only to extraordinary leave up to a period of three months. If any further leave is to be granted the same would be in rare situation, would be subject to approval of the Finance department and the probation period would be extended to that extent. The above discussion therefore on the analysis and interpretation of the Rules which we have made in the context of a probationer would not apply to an employee who is a probationer-trainee.

¶289

Before closing we may clarify that if in any of the cases before us the concerned employee pursuant to the order of the court has already been granted study leave and joined the course, nothing stated in this judgment would disturb such position and the permission granted would not be recalled. It is clarified that even those cases which may not be before us but where similar situation is obtaining, this judgment will not be cited to disturb such position.

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In the result, subject to above observations, all the government appeals are allowed. Respective judgments of the learned Single Judge are reversed. Writ petitions stand dismissed.

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(UMA SHANKER VYAS),J

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(AKIL KURESHI),CJ

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ANIL KUMAR GOYAL / BM GANDHI-88-90 & 95-108.

Dr Rohit Labana S/O Shri Ramesh Chandra Labana v. State of Rajasthan

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Dr Rohit Labana S/O Shri Ramesh Chandra Labana v. State of Rajasthan

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