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2014 DIGILAW 1178 (RAJ)

Sunil Gurjar v. State of Rajasthan

2014-05-20

MOHAMMAD RAFIQ

body2014
JUDGMENT All these writ petitions have been filed by the petitioners substantively working with the respondent-Medical and Health Department, Government of Rajasthan on different posts such as Lab Technician, Auxiliary Nurse Midwife and L.D.C. The petitioners with a view to advance their progress in the career are pursuing General Nursing Training Course in different batches. Some of them have applied as ex-service candidate against the seats earmarked for them whereas some are admitted to private nursing institutes. The petitioners applied for grant of study leave under Rule 109, 110 and 112 of the Rajasthan Service Rules, 1951 (for short the RSR) with the request that during the period of their study, they be treated on deputation. Learned counsel for the petitioners has relied upon the decision rendered by Co-ordinate Bench of this Court in the Case of Smt. Suman Kumari vs. State of Rajasthan & another (Civil Writ Petition No. 4415 of 2010 and other 15 connected writ petitions) vide order dated 30.08.2011. The petitioners have given example of one Kuldeep Singh, who filed Civil Writ Petition No. 2510 of 2007 (Kuldeep Singh vs. State & another) and one Ram Kumar Singh who also filed Civil Writ Petition No. 2324 of 2007 (Ram Kumar Singh vs. State & another) and argued that in compliance of the decision, respondents treated study period of the aforementioned petitioners on deputation entitling them to all consequential benefits. It is further contended that Civil Special Appeal (Writ) No. 1468 of 2006 (D.S. Nathawat vs. Rajasthan Civil Services Appellate Tribunal & other) was allowed vide judgment dated 03.03.2008. The Division Bench of this Court in the Case of D.S. Nathawat (supra) held that training period of the petitioner in that case be treated on deputation. Special Leave to Appeal (Civil) filed before the Hon'ble Supreme Court against the decision of Division Bench of this Court has been dismissed vide order dated 17.10.2008. Learned counsel for the petitioners has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Smt. Kirti Mehta & others vs. State of Rajasthan & others (Civil Writ Petition No. 2369 of 2008) decided vide order dated 24.07.2008, wherein writ petition was allowed following the decision in the case of D.S. Nathawat (supra). It is argued that no distinction can be made between those who are undertaking studies in government nursing colleges or private nursing institutes. It is argued that no distinction can be made between those who are undertaking studies in government nursing colleges or private nursing institutes. In fact, those studying in private nursing institutes have to pay heavy amount as fees as compared to government nursing colleges where only nominal fees is required to be paid. If the petitioners, who are studying in private nursing institutes, are treated dissimilarly that would amount to discrimination. It is contended that the respondent-Medical and Health Department, Government of Rajasthan ought to have given similar treatment to the petitioners at par with the medical officers, who are treated on duty when undertaking post graduation course and are paid stipend. Therefore, learned counsel for the petitioners has prayed that these writ petitions may be allowed and the respondents may be directed to treat the petitioners as on deputation for the course of General Nursing Training and to pay the petitioners full salary and all allowances including compensatory allowances till the completion of training with interest @ 18% per annum. Mr. J.M. Saxena, Additional Advocate General appearing on behalf of the Respondent-State argued that the decisions delivered in the cases of Kuldeep Singh (Supra) and Ram Kumar Singh (Supra) were complied with on filing of contempt petition by them subject to outcome of special appeal. Regarding decision rendered in the case of D.S. Nathawat (supra), it is argued that the Special Leave to Appeal (Civil) was filed by the State against the aforesaid decision. The Hon'ble Supreme Court rejected the argument of discrimination and held that if any person goes on study leave he would be granted benefits according to Rule 112 read with Rule 97 of the RSR and be entitled to only half of the salary. Hon'ble Supreme Court rejected the argument of discrimination holding that two wrongs do not make a right. In the present case, neither the petitioners were sent on deputation nor were they required to continue to discharge their existing duties in addition to their undertaking the course of study. It is argued that amended Rule 112 of the RSR does not permit the study leave to be treated as on deputation. In the present case, neither the petitioners were sent on deputation nor were they required to continue to discharge their existing duties in addition to their undertaking the course of study. It is argued that amended Rule 112 of the RSR does not permit the study leave to be treated as on deputation. This issue has been examined by Co-ordinate Bench of this Court in the case of Suman Kumari (supra) in which number of writ petitions were disposed of directing that to avoid discrimination for the present, the respondents have agreed to extend similar benefit to the petitioners. However, such arrangement would be limited to those who have already joined the training course of GNM and, now onwards, nobody would be allowed study leave benefit in violation of the provisions of RSR. Learned Additional Advocate General submitted that aforesaid decision was challenged before the Division Bench in Civil Special Appeal (Writ) No. 198 of 2012 (State of Rajasthan & another vs. Smt. Suman Kumari) and other 21 special appeals decided on 03.09.2012. The Division Bench of this Court in that case while considering the decision of Hon'ble Apex Court in the Case of State of Rajasthan vs. Sushil Sharma (SLP (C) No. 6037 of 1999) observed that concession which has been given by the state counsel is against the decision of Apex Court and plea of discrimination is required to be re-examined by the Single Bench. The State was, therefore, permitted to withdraw the special appeals with liberty to file review petitions. It was thereafter review petitions were filed in all the cases. However, review petitions were disposed of with liberty to the State to amend the RSR, though the judgment originally passed was kept intact to the extent of those who had already taken study leave prior to the judgment delivered in the case of Suman Kumari (supra) and not thereafter. Learned Additional Advocate General has also cited judgment of Co-ordinate Bench of this Court delivered in the case of Komal Bhati vs. State of Rajasthan & another (Civil Writ Petition No. 13906 of 2009) decided on 27.09.2014 and argued that in that judgment it was further clarified that case of the petitioner therein would be covered by the decision rendered in the case of Suman Kumari (supra), if she was undertaking GNM course in government college instead of private college. If anyone is doing course in private college, then the relief granted in the aforesaid judgment may not be made admissible. In view of above, it is clear that the controversy raised in these matters is no more res integra. Decision of Co-ordinate Bench of this Court in the case of Suman Kumari (supra) was clarified while deciding batch of review petitions (Civil Review Petition No. 35 of 2013, Ishwar Kumar Sangela & other vs. State of Rajasthan & another and other connected 20 matters) vide order dated 17.10.2013 and further clarified in the case of Komal Bhati (supra) vide order dated 27.09.2011. In order therefore to maintain parity, all these writ petitions thus deserve to be decided in conformity therewith. Consequently, the present petitions are disposed of with the direction that such of the petitioners, who have taken admission in government nursing colleges prior to 30.08.2011 i.e. the date on which the decision in the case of Suman Kumari (supra) was delivered, shall be entitled to the same benefits as granted to the petitioners in the case of Suman Kumari (supra). However, such benefits shall not be extended to those who are studying in private nursing institutes and to those who have taken admission subsequent to 30.08.2011, whose case shall be governed by Rules 97, 110 and 112 of the RSR for the grant of study leave and benefits as admissible according to the rules. Appropriate orders thereabout be passed on their applications. Compliance of this order be made within a period of two months from the date of copy of this order is produced before the respondents.