State of Tripura v. Atanu Sinha — 1997 DIGILAW 198 (GAU)

M. Ramakrishna, C.J.— Dr. Atanu Sinha, the respondent herein, had been a working as a Doctor serving in the State of Tripura as Medical Officer. While he was so functioning, there was an offer of undergoing Diploma course known as Graduate Diploma Course in Opthalmology in the Regional Institute of Opthal-mology. Gauhati Medical College. Guwahati. for the session 1986-87. When the Govt issued a notification calling for applications from eligible candidates, the respondent also presented an application as one of the candidates for a seat reserved for in-service person. He was selected for the said course. According to the conditions of selection, one had to apply for leave to complete the course of study which is for a period often months sixteen days. Thus, he had applied for study leave for ten months and sixteen days with effect from 16.3.87 to 31.1.88. On the completion of the study course, the petitioner/respondent rejoined his duty at the GB Hospital, Agartala, on 1.2.88. 2. Thereafter, the respondent/petitioner approached the authorities of the State Govt praying that his leave period of study may be considered as on duty. The State Govt rejected that claim. He. thereafter, presented Civil Rule No. 155 of 1989 before this Court invoking the provisions of Article 226 of the Constitution of India seeking for a writ of Mandamus by way of direction to the appellants that the leave period often months and sixteen days may be treated as on duty. 3. The learned Single Judge after hearing the learned counsel on both sides, by an order made on 29th July, 1993. allowed the writ petition and issued a direction to treat the petitioner/respondent as on duty during the completion of his course of DOMS in the Regional Institute of Opthalmology, Gauhati Medical College. Guwahati. and a further direction came to be issued mat the writ petitioner shall be entitled to the full salary from 16.3.87 to 31.1.88 after deducting the part of the salary already paid during this period. This direction was directed to be implemented within a period of three months from the date of the order. 4. Aggrieved by this order, the State/appellants have presented this writ appeal challenging the correctness and the legality of the order of the learned Single Judge under appeal for the grounds taken therein. 5. This direction was directed to be implemented within a period of three months from the date of the order. 4. Aggrieved by this order, the State/appellants have presented this writ appeal challenging the correctness and the legality of the order of the learned Single Judge under appeal for the grounds taken therein. 5. We have heard the learned counsel for the appellants and also the learned counsel for the respondent. 6. Three contentions have been urged in support of the appeal: Firstly, the learned Single Judge was in error in not having referred to the specific defence taken in the statement of objections by way of counter in the writ petition opposing the claim. Secondly, the view taken by the learned Single Judge that the Fundamental Rules which are made applicable to the facts of the case and applying the provisions of Rule 9 (6) (b) of the Fundamental Rules and reaching the conclusion against the State cannot be sustained in law; and Lastly, it is contended that the learned Single Judge holding that earlier in Civil Rue No.2 of 1987, having taken a view against the State Govt and in favour of the writ petitioner therein, which is made a basis for allowing the writ petition, is again incorrect and erroneous. Thus the learned Govt Advocate argued that the entire approach of the learned Single Judge in allowing the writ petition and issuing direction by way of writ of Mandamus, is not sustainable in law. 7. Contrary to these argument of the learned counsel for the appellants, the learned counsel for the respondent, however, maintained that the view taken by 'the learned Single Judge is justified. It is reiterated that the provisions of Fundamental Rules in Rule 9 (6) (b) which was made, applicable to the facts of the case and thereby reaching the conclusion against the appellants, must be held to be correct. 8. In view of the foregoing, we will have to consider as to whether a case was made out by the writ petitioner to seek the relief which was accepted by the learned Single Judge for the .reasons assigned by him in the course of the order under appeal. 9. Let us now consider the first point urged by the learned counsel for the appellants in the instant case. 9. Let us now consider the first point urged by the learned counsel for the appellants in the instant case. At the outset, it is seen that a detailed statement of objections by way of counter had been filed opposing the claim of the writ petitioner in the writ Court and in that counter, a specific stand had been taken on behalf of the State Govt that out of several seats which were noticed for being filled up by way of selection, only one seat was reserved for in-service Doctor. The course known as DOMS. which is Post Graduate Diploma in Opthalmology, was made available to an in-service person for the session 1986-87 who intended to specialise and gain special knowledge in the field of Opthalmology though such person had been a qualified MBBS degree holdertand had been serving in the State. It is true that the selection was made offering this benefit of availing Diploma study in the Gauhati University in favour of the writ petitioner/respondent. In paragraph 8 of the counter, it was pointed out that according to the conditions of the offer made, the person who is selected, shall apply for study leave in the prescribed form for a period of one year. Accordingly, the writ petitioner in compliance of the said condition, did apply for grant of study leave which was granted by the Govt. The leave w?as granted as per Rule 36 (2) of the Tripura State Civil Services (Leave) Rules, 1986. hereinafter referred to as the Rules. 1986. The writ petitioner was again granted thirty seven days' leave between 15.4.88 to 21.5.88 and in addition to that, 25 days' Earned Leave from 22.5.88 to 16.6.88. was also granted in order to enable the respondent/petitioner complete the course and appear at the examination. In paragraph 8, it was pointed out that when the writ petitioner applied for leave under the terms and conditions of the offer made, he never claimed that he would be entitled to the full payment of his salary for the period during which he was attending the course having applied for leave. Indeed, it is stated that under the conditions of the notification issued, a person who has to attend the course, shall not be eligible for the full salary, on the other hand, he must apply for leave for which he is eligible under the Service Rules. 7. Indeed, it is stated that under the conditions of the notification issued, a person who has to attend the course, shall not be eligible for the full salary, on the other hand, he must apply for leave for which he is eligible under the Service Rules. 7. In paragraph 9 of the counter, it was made clear that when a Govt senvant applies for leave intending to attend some training, the Fundamental Rule 9 (6) (b) was made applicable only for the purpose of enabling the competent authorities to treat the period of training as on leave. Accordingly, the petitioner submitted an application for grant of study leave to the Secretary to the Govt of Tripura, Department of Health and Family Welfare through proper channel. It is further pointed out in that paragraph that a person who applies for study leave by virtue of the said Rule 9 (6) (b) of the Fundamental Rules, such a person shall not be entitled for the full salary. Therefore, the argument on behalf of the State Govt is that the learned Single Judge ought to have seen whether by virtue of the specific defence taken by the S'ate Govt, the writ Court ought to have applied its mind to record a finding, which the learned Single Judge failed to do. 8. We shall now examine the feasibility of applying the provisions of Fundamental Rule 9 (6) (b). At the outset, it is made clear that the Fundamental Rules which have been in force from 1922, have been made applicable to the employees of the Govt of India wherever they are made applicable. Admittedly, there is a provision in the said Rules, 1986, providing for the grant of study leave as per Rule 36 of the Rules, 1986. Therefore, the Court will have to examine as to whether a person who is governed by the special statute made applicable to the employees of the State Govt,'whether such a person shall be entitled to invoke the general provisions of Fundamental Rules which were made applicable for the employees of the Govt of India. Therefore, the Court will have to examine as to whether a person who is governed by the special statute made applicable to the employees of the State Govt,'whether such a person shall be entitled to invoke the general provisions of Fundamental Rules which were made applicable for the employees of the Govt of India. It is pertinent to note that in the event of a conflict between the two laws, on the one hand the Fundamental Rules enacted by the Parliament and on the other hand the State statute enacted by the State Legislature, in such an event, applying the salutary provisions of the law of interpretation of statutes, it is made clear that the Fundamental Rules being general rules whereas the Tripura State Civil Services (Leave) Rules being special rules, the later will have to prevail over the former. In other words, in the event of the fact that Rule 36 of the Rules, 1986, having been enacted by the Legislature of the State of Tripura, that must prevail over the provisions of the Fundamental Rules which are general in character. Therefore, the writ Court ought to have seen as to what extent, the Fundamental Rules could be applied to a Govt servant serving in the State of Tripura. Unfortunately, the learned Single Judge failed to apply his mind to this aspect of the matter. The benefit of Fundamental Rules, cannot be extended to a Govt servant serving in the State of Tripura who is governed by the statute enacted by the Legislature of that State. In that view of the matter, the conclusion reached by the learned Single Judge applying the provisions of the Fundamental Rules with a view to confer benefit upon the respondent/petitioner cannot be sustained in law. To that extent, the finding is required to be reversed. 9. Considering the other contentions raised by the learned counsel for the appellants, it is seen that merely because the learned Single Judge has taken a view in Civil Rule 2 of 1987 earlier, wherein he has allowed the benefit granting fill salary in favour of an Engineer similarly situated dealing with the study leave, he has applied the same principle extending the benefit to the writ petitioner in the instant case under appeal. By a careful consideration of the conclusion reached by him in that case, it is clear that the learned Single Judge has not followed any principle as such to extend the benefit. Indeed, as a matter of fact, the Division Bench dealing with that aspect of the matter, had to reverse (reported in 1997 (2) GLJ 515) the order made by the learned Single Judge in Civil Rule No.2 of 1987 earlier. Therefore, the conclusion reached by the learned Single Judge in that case is not based upon sound footing of law. In this matter also, the conclusion reached by the learned Single Judge cannot be sustained. 10. Lastly, the argument advanced by the learned counsel for the respondent that a Doctor who had been serving under the State Govt. if conferred with the benefit of undergoing a Diploma course with a view to enhance his efficiency and to serve in a better manner, particularly intending to specialise in the field of Opthalmology, why the Govt should not encourage such person extending full benefit of salary instead of part of the salary availing the benefit of study leave, as contemplated under Rule 36 of the Rules. 1986. There is some force in the submission of the learned counsel for the respondent though it is not possible for us to concede to this submission for the simple reason that if the Govt of Tripura offered this Diploma course to enable a Doctor to develop his personality and to enahance his knowledge in the field of medicine, it was open to the Govt to have provided a broader view having a comprehensive basis to enable the Doctor who had been serving the State Govt. to get ftill benefit of salary instead of the condition having been incorporated in the notification calling for applications from eligible candidates. In other words, it was open to the Govt to have a comprehensive view to provide full salary to the person who undergoes training of this type instead of providing only partial salary or leave salary. It is for the State Govt to provide for appropriate legislation covering this aspect in respect of Doctors serving in the State Govt. Since as on today. Rule 36 of the Rules, 1986. It is for the State Govt to provide for appropriate legislation covering this aspect in respect of Doctors serving in the State Govt. Since as on today. Rule 36 of the Rules, 1986. prevails which provides for the terms and conditions of contract found in the notification, the Court cannot take a different view invoking the provisions of Article 226 of the Constitution of India only with a view to confer a benefit upon a Govt servant. It is open to the Govt of Tripura to reconsider this aspect and amend the law with a view to maintain the equality of opportunity and equality before law as contemplated under Article 14 of the Constitution of India. 11. With the above observation, this appeal is allowed. The order passed by the learned Single Judge in Civil Rule No. 155 of 1989, dated 29.7.93, is set aside. Ordered accordingly.