Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2083 (RAJ)

Jayant Sharma v. State of Raj.

2012-10-04

AJAY RASTOGI

body2012
Hon'ble RASTOGI, J.—Instant bunch of petitions since involves common question, hence being decided by the present order. 2. For examining the controversy the facts in CWP-9391/12 & 9325/12 have been taken note of. 3. The writ petitioners appeared in Pre P.G. Medical Examination-2012 against seats reserved for “in-service category” for selection to PG medical course and as it reveals from the record that as many as 178 seats were reserved for “in-service category” (161 degree & 17 diploma) & 176 for non- service (160 degree & 16 diploma), to be filled through P.G. Medical Entrance Examination-2012 in terms of Ordinance 278-E of University Ordinance regarding the eligibility criteria of “in-service category”, being relevant for the present purpose, reads ad-infra. IV. ELIGIBILITY FOR ADMISSION (II) for seats reserved for in-service candidates as referred at clause (II-b) the candidates should be duly selected by the R.P.S.C. under Rajasthan Medical & Health Services Rules, 1963 or should be working as adhoc/temporary/contractual basis and should be below the age of 45 years and should have completed at least three years of service in the rural areas of the State of Rajasthan or two years of continuous service of Rural Areas of desert/hilly/tribal parts of the state. Rural area is defined as a rural area where rural allowance is admissible to the doctors and should have actually served in the rural area. No application form for Pre PG entrance examination along with certificate of rural experience shall be accepted under the signatures of D.M. & H.S. No application of in-service candidates shall be accepted by the University, if sent directly”. 4. All such applicants/candidates who were selected by Rajasthan Public Service Commission (“RPSC”) under Rajasthan Medical Health Service Rules, 1963 (“Rules,1963”) or working on adhoc/temporary/contractual basis and are below the age of 45 and have completed either three years of service in rural areas of State of Rajasthan or two years of continuous service of rural areas of desert/hilly/tribal parts of the State could be considered to participate against the seats reserved for in-service category. 5. The written examination was held on 11th & 14th February, 2012 and after intervention of this Court while disposing of CWP-2641/12 (Vijay Kumar Saini & Ors. vs. State) vide order dt. 5. The written examination was held on 11th & 14th February, 2012 and after intervention of this Court while disposing of CWP-2641/12 (Vijay Kumar Saini & Ors. vs. State) vide order dt. 9.4.2012 directed the respondents to publish the revised merit list of all the candidates who appeared in Pre-PG Examination held on 11th & 14th Feb., 2012, introducing statistical equivalence percentile method (SEP). 6. In the first round of counseling held on 18.5.2012 the applicants locked their respective choice obviously as per their order of merit but as alleged the respondents re-scheduled their official website and disclosed that first round of seat allotment and publishing of information would be by 29.5.2012 & 30.5.2012, list of in-service candidates was disclosed by the respondent-University on their official website, but the respondents took decision to disallow such of the candidates who because of some protest or on account of strike as alleged remained absent from duty for some time in particular from 26.09.2010-20.10.2010 for a period of 25 days from 11.5.2010-17.5.2012 for a period of 7 days and the aforesaid period at one stage was treated as break in service and despite the fact that such of the applicants were in order of merit still not shown in the official web-site of the University were not permitted to participate in the counseling held on 30.5.2012 and at that stage they approached this Court by filing CWP-8932/12 and while the notices came to be issued, interim protection was granted by the Court ad infra:- “In the meanwhile, it is directed that the admissions given by the respondent University to less meritorious candidates than the petitioner in in-service category candidates will be subject to final decision of this writ petition. The stay application stands disposed of”. 7. The stay application stands disposed of”. 7. As it reveals from the record that the Government thereafter looked into the matter and the candidates who were meritorious and put-in their hard labour and were eligible to be considered for admission on the basis of their merit secured in Pre P.G. Admission 2012, took a paramount view that it may be a joint decision of the doctors as a whole to protest for their demands but that may not come in way against individuals who are otherwise meritorious and taking note thereof the State Government issued an order dt.06.06.2012 granting extraordinary leave without pay to such of the applicants who were on strike or protest for relevant period from 26.09.2010-20.10.2010 (25 days) & from 11.5.2010-17.5.2010 (7 days) and in reference thereto a corresponding order came to be issued by Rajasthan University of Health Sciences on 7.6.2012 and published in papers as under:- [Online P.G. (Medical) Seats Allotment-2012} 1st round of seat allotment of P.G. (Medical) for In-service category done on 30.5.2012 is hereby canceled. Fresh allotment of 1st round of In-Service P.G. (Medical) seats will be done again on 12.6.2012. 2nd Round of allotment of P.G. (Medical/Dental) seats for Non-Service category will also be done on 12.6.2012. 8. The main grievance of the writ petitioners in the instant bunch of petitions is that the order of the State Government granting extraordinary leave without pay dt.06.6.2012 made such of the applicants eligible against seats reserved for in-service category, as a consequence whereof the present petitioners have been deprived of their vested right of admission and the reason is very obvious that since admissions are made strictly on merit-cum-preference and the petitioners being lower in the order of merit are not able to march over such of the candidates who are private respondents in the instant petitions and by virtue of grant of extraordinary leave without pay, such of the applicants being higher in merit succeeded in getting admission to P.G. Medical/Dental Course over the legitimate expectations of the petitioners. 9. 9. The main thrust of the submission of the counsel for petitioners is that strike by govt servant is prohibited and is treated as misconduct in terms of R.9 of Rajasthan Civil Service Conduct Rules, 1971 (“Rules,1971”) and such of the doctors who remained absent from work by going on strike that period cannot be treated as having served or worked for the prescribed period of continuous service which constitutes a criteria for eligibility and admittedly were not eligible to be considered for admission against seats reserved for in-service category pursuant to P.G. Examination 2012 held by the respondent-University. 10. Counsel submits that in accordance with Rule 96 of the Rajasthan Service Rules, benefit of extraordinary leave can be granted only for special reasons and there has to be an object and active application of mind while resorting to special circumstances for the government employee granting benefit of extraordinary leave for remaining absent from work and such of the applicants who have committed misconduct while taking recourse of strike should be punished but on the contrary have been rewarded by the respondent state by grant of extraordinary leave without pay vide order dt. 06.06.2012 and that being arbitrary exercise of power is in violation of Article 14 of the Constitution and deserves to be quashed. 11. Counsel further submits that taking any action with retrospective effect is a fiction which can only be brought by the legislative body or by rule making authority but that cannot be created by executive order and once admissions were made on 30.5.2012 and list was made available on the internet/official website of the respondent, such admissions could not be canceled without affording reasonable opportunity of hearing. 12. Reply to the writ petitions has been filed by the respondents State of Rajasthan, University of Health Services and also by the private respondents who are benefited by the order of the state government dt. 6.6.2012 which is impugned in the instant petitions. 13. 12. Reply to the writ petitions has been filed by the respondents State of Rajasthan, University of Health Services and also by the private respondents who are benefited by the order of the state government dt. 6.6.2012 which is impugned in the instant petitions. 13. Shri RP Singh, AAG, appearing for the State submits that it is true that leave cannot be claimed by incumbent as a matter of right but if the State Government in the given circumstances considered it appropriate to grant leave of nature including extraordinary leave without pay in exercise of power available under R.96 of the Rules, 1971 at least petitioners have no grievance to question and unless the petitioners are able to demonstrate that either State does not hold competence or action is covered with oblique motive or bias or without authority such decision of the state government ordinarily is not open to be interfered by this Court U/Art. 226 of the Constitution. 14. Mr. RP Singh further submits that doctors are not supposed to go on strike or protest as the case may be but that may be a decision of the doctors in general and government will certainly take action what the law permits but few individuals who have finally been selected and served the state government, their merit should not sacrifice and keeping that paramount pragmatic view into consideration the extraordinary leave has been sanctioned to the doctors and not to any individual but only few have been selected and find place in merit and able to succeed in getting admission on the basis of their merit in Pre P.G. Admission 2012 against the seats reserved for in-service and if petitioners were not found place in order of merit at least candidates who are higher in merit are not supposed to be deprived of their legitimate right accrued to them as regards seeking admission in the post graduate course against seats reserved for in-service category. 15. Mr. RA Katta appearing for University supported the submission made by the Additional Advocate General. However, Mr. S.P. Sharma, Sr. 15. Mr. RA Katta appearing for University supported the submission made by the Additional Advocate General. However, Mr. S.P. Sharma, Sr. Advocate appearing for private respondents additionally submits that present petitioners have no locus standi to question the decision of the state government sanctioning/granting extraordinary leave without pay for the relevant period vide its order dt.06.06.2012 since such decision of the government is not a part of process of the selection held by the respondents regarding admissions to PG course against in-service category and petitioners cannot be said to be person aggrieved to question granting extraordinary leave to the doctors in general without pay and writ petitions deserves to be dismissed. 16. I have Heard counsel for the respective parties and with their assistance examined the material made available during course of arguments. 17. As regards preliminary objection raised by respondents that the petitioner had no locus standi to question the decision of the state government in granting extraordinary leave without pay vide its order dt. 6.6.2012 suffice to say that the petitioners' rights are being infringed and deprived from getting admission to P.G. Course which at one point of time may be on provisional basis and if such right is going to be defeated that will be examined at later stage as to what will be its effect but in the opinion of this Court certainly the petitioners were within their rights and have locus standi to question the action of the state in the writ jurisdiction of this Court under Article 226 of the Constitution. 18. While examining the question on merits this Court would like to first record as regard admissions of the petitioners for Post Graduate Course was on provisional basis and this Court also observed in writ petition no. 8932/12 on 31.5.2012 that admissions given by University to less meritorious candidates in in-service category will be subject to final decision of the writ petition. Thus, at least it cannot be presumed that right was vested in favour of the petitioners on the basis of provisional admission made by the respondent at one point of time. 19. 8932/12 on 31.5.2012 that admissions given by University to less meritorious candidates in in-service category will be subject to final decision of the writ petition. Thus, at least it cannot be presumed that right was vested in favour of the petitioners on the basis of provisional admission made by the respondent at one point of time. 19. The submission made by counsel for the petitioners regarding scope of the R.9 of the Conduct Rules, 1971 & 96 of the RSR 1951 suffice to say that R.9 postulates regarding strike as misconduct but whether it was misconduct or not that can be established only if the enquiry contemplated under the provisions of Rajasthan Civil Services (Classification, Control & Appeal Rules) being conducted, in absence whereof mere being a nomenclature of strike, this Court cannot pre-suppose of the misconduct committed by such of the doctors who have been benefited by decision of the state government granting extraordinary leave without pay vide its order dt. 6.6.2012 and even if the misconduct as alleged is proved in course of disciplinary enquiry still that will not preclude the competent authority from regularizing the period of absence as regard the scope of R.96 of the Rules,1971 but at same time it will not absolve the incumbent for the alleged misconduct from initiation of disciplinary enquiry under the Rajasthan Civil Services (Disciplinary & Appeal) Rules, 1958 20. Part IV of Chapter-X lays down general conditions of Leave & provides for leave earned while on duty in his service career and R.59 postulates that leave cannot be claimed as a matter of right. At the same time, Chapter XI deals with leave of different nature and if it is admissible and employee makes a request obviously cannot be claimed as a matter of right but it is always open for the authority while taking note of nature of leave can always consider obviously to grant or refuse as the case may be in terms of the relevant provisions of Chapter X and XI but as regards R.96 with which this Court is certainly concerned & being relevant reads ad infra: Rule 96. Extraordinary leave :(a) Extraordinary leave may be granted to a Government servant in special circumstances (i) when no other leave is by rule admissible, or (ii) when other leave is admissible, but the Government servant applies in writing for the grant of extraordinary leave; (b) Except in the case of a Government Servant in permanent employ, the duration of extraordinary leave shall not exceed three or eighteen months on any one occasion, the longer period being admissible, subject to such conditions as the Government may be general or special order prescribe, only when the Government servant concerned is undergoing treatment for:- (i) Pulmonary Tuberculosis is a recognized Sanatorium, or (ii) Tuberculosis of any other part of the body by a qualified Tuberculosis Specialist or a Civil Surgeon, or (iii) Leprosy in a recognized Leprosy Institution or by a Civil Surgeon or a Specialist in Leprosy recognized as such by the State Administrative Medical Officer concerned. 21. Thus, R.96 clearly envisage that when no other leave is by rule admissible and still a government servant apply for grant of extraordinary leave for certain reasons innumerate therein, it is always open for the state government to consider and sanctioned extraordinary leave in given circumstances while exercising power U/r 96 of the Rules,1971. 22. Here, in the instant case, the state government while resorting to its power available under R. 96 of the Rules,1971 granted benefit of extraordinary leave without pay not to individual but to a class of doctors irrespective of the fact whether one is being benefited or not. The State Govt. in the peculiar facts of the instant case considered it appropriate to grant benefit of extraordinary leave in general for the period in question without pay for which the state government indeed holds competence, in the considered opinion of this Court the Govt. was within its rights to grant leave and this Court does not find any error being committed by the respondent state government in its decision making process exercising its power provided under R. 96 of the Rules,1971. 23. was within its rights to grant leave and this Court does not find any error being committed by the respondent state government in its decision making process exercising its power provided under R. 96 of the Rules,1971. 23. Apart from it Medical is a recognized noble profession and strike of any kind cannot be countenanced but at the same time it will not be appropriate for this Court to express any opinion in the absence of material which prevailed upon the doctors to take a drastic step to rush to strike or protest as alleged unless enquired upon as provided under the law. 24. Further submission of the counsel for the petitioner that action of retrospective effect can be brought only by legislative body or by rule making authority but such fiction cannot be created by executive order is of no substance for the reason that leave can always be sanctioned/granted by authority after being availed and that cannot be considered of exercising legislative power with retrospective effect and in the considered opinion of this Court no error has been committed by the state government sanctioning extraordinary leave without pay vide its order dt. 6.6.2012 and does not require interference of this court U/Art. 226 of Constitution. 25. Before parting with the judgment this Court would like to record that it has been repeatedly held by Hon'ble the Apex Court that the government employees have neither fundamental nor statutory or moral right to resort to strike. The impact of such strikes either by students and medical community who are directly connected with the hospitals is totally different from the strike in factory or trading establishment, as the ailing patients cannot be left waiting or unattended. Hospital activity is not the same as the lifeless functioning of machines in a factory or movement of trading material or other forms of commerce where workmen are being provided certain protection under the provisions of the Industrial Disputes Act. Almost all the activities in relation to hospital are such as require constant and incessant attending and care, unlike financial losses; the loss of life or limb cannot be recouped. Almost all the activities in relation to hospital are such as require constant and incessant attending and care, unlike financial losses; the loss of life or limb cannot be recouped. The doctors and student community undergoing medical course are to realize and understand the realities and their duties towards the ailing patients in particular and the society at large before resorting to any such activity has been examined by the Hon'ble Supreme Court in a case reported in AIR 1989 SC 2039 observed ad infra:- “Every doctor whether a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and para-mount, laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. Every doctor should be reminded of his total obligation and be assured of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. Thus for all above reasons, we are constrained to hold that the strike by the Doctors is illegal and unethical as it infringes the fundamental right of the patients enshrined in Article 21 of the Constitution of India. The patients have also a fundamental 'Right to Life' and therefore, at the same time the medical treatment, which is an integral and essential part of the fundamental right, cannot be ignored”. 26. The Apex Court time and again had held that employees have no fundamental right to such strike and there is no statutory provision empower-ing the employees to go on strike. The government employees cannot take society to ransom by going on strike. Even if any injustice to some extent in democratic welfare of the state, doctors have to resort to machinery provided under various provisions for redressal of their grievance and this court also take judicial notice that the strike as a weapon mostly misused which result in maladministration. Strike certainly affect the society as a whole. 27. This court do acknowledge the service of the medical profession as a noble service. Strike certainly affect the society as a whole. 27. This court do acknowledge the service of the medical profession as a noble service. Every injured citizen brought for treatment should instantaneo-usly be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death. Therefore, even if any isolated incident had taken place such as assault on a doctor, such an isolated incident should have been proceeded under general criminal law, but the same cannot be a ground for declaring a public strike or some of the medical professionals were attacked for the lapses committed by others. The social laws do not contemplate death by negligence. The doctors at the Government Hospitals positioned to meet the State obligation is, therefore, duty bound to extend medical assistance for preserving life. 28. At the same time, this court is not oblivious to the problem being faced by the medical community, they may also have genuine demands which required to be considered sympathetically while on the one hand this Court do not permit the doctors to go on strike on the other hand this Court cannot allow the state government to sit over the demands of the medical professions for unduly long periods and to overcome the menace of strike by medical officers the government has to take active steps to prevent interns or menace in medical profession from resorting to strikes, without making it a contentious issue and genuine demands should be accepted immediately without loss of time to prevent any ugly situation and all unreasonable demands should be turned down with an iron-hand and this Court certainly depose confidence in the government that keeping in mind the status of the doctor which is noble profession whether they are employed in government hospital or elsewhere the government will look forward to find out a solution of their reasonable grievance and to overcome the menace of strike by medical profession. 29. Consequently, the writ petitions being devoid of merit are accordingly dismissed. Copy of this order may be sent to Secretary, Medical & Health for necessary action. No cost.