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Himachal Pradesh High Court · body

2018 DIGILAW 857 (HP)

Vishal Kalia v. State of Himachal Pradesh

2018-05-09

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT : Sanjay Karol, J. The short issue which arises for consideration in the present petition is, as to whether action of the respondents in not issuing the No Objection Certificate for allowing the writ petitioner to participate, as a direct candidate for entrance to the Postgraduate Degree (MD/MS) Courses in the respondent-institute can be said to be arbitrary, illegal or erroneous. 2. The Department of Medical Education and Research Himachal Pradesh, Shimla issued a Prospectus for counseling and admission in Postgraduate Degree (MD/MS) Courses in three medical colleges within the State of Himachal Pradesh. As per the prescribed schedule, applications were to be filed on or before 28.3.2018. 3. Undisputedly, only such of those candidates who had qualified the NEET (PG-2018) Examination, were eligible to have applied in terms of the Prospectus. The writ petitioner being one such candidate, applied in terms of the Prospectus for admission to the MD/MS Degree Courses under direct group. 4. Undisputedly, prior to the filing of the present petition, writ petitioner applied to the Government/ Employer, seeking No Objection Certificate, which as on the date of filing of the present petition, was not issued to him. 5. Thus, on 5.4.2018, petitioner filed the instant petition, inter alia praying for the following reliefs:- “(i) That respondent No.1 and respondent No.2 be directed to grant No Objection Certificate to the petitioner. (ii) That respondent No.1 and respondent No.2 be directed to grant study leave/ extraordinary leave to the petitioner. (iii) That respondent No.4 be directed to allow the present petitioner to attend and participate in the counseling to be held on 5.4.2018 at Indira Gandhi Medical College, Shimla.” 6. Same day, the matter was listed when by way of an interim order, this Court allowed the petitioner to participate in the counseling for admission to MD/MS Postgraduate Degree Courses, 2018 Session. However, his result was directed not to be declared without permission of the Court. 7. From the response filed by the State, it is evident that vide order dated 11.4.2018, petitioner’s request for issuance of No Objection Certificate stands rejected which incidentally, is not the subject matter of challenge either in the present petition or in any other proceedings before any fora. 8. Clause 3.1 of the Prospectus provides for eligibility and selection criteria with respect to in-service and direct group candidate. 8. Clause 3.1 of the Prospectus provides for eligibility and selection criteria with respect to in-service and direct group candidate. This compartmentalization is totally in consonance with the law laid down by the apex Court in K. Duraisamy and another vs. State of T.N. and others (2001) 2 SCC 538 and the view taken by a Co-ordinate Bench of this Court in Amarjeet Singh Chadha vs. State of H.P. and others, 2009 (1) Shim. LC 492. 9. In fact, it is the writ petitioner’s case that as a government employee he had applied as a direct group candidate. If that be so, this Court cannot force the employer to issue the No Objection Certificate in favour of its employee or grant extraordinary leave. 10. We may record that the writ petitioner who is present in the Court was asked to exercise his option as to whether he is ready and willing to resign and continue with the admission process in which he stands provisionally admitted. But however, he has chosen not to do so. This perhaps is for the reason that he has already undertaken one such PG Course in the specialty of Anatomy. 11. We cannot be oblivious of the fact that in the State of Himachal Pradesh, there is shortage of doctors and whether to relieve any employee or grant extraordinary leave or not, is solely within the domain and discretion of the employer, and with the view taken, we do not find any fault, particularly when the action can not be said to be malafide or illegal. Writ petitioner being an employee of the State has no fundamental or indispensable right of undertaking education during the course of employment. While granting approval to undergo higher education, there are various considerations which are required to be kept in mind by the employer. The decision making authority has to consider several aspects before according approval and public interest being one of them. The issue cannot be left to be considered only from the point of view of the employee. 12. For all the aforesaid reasons, we dismiss the present petition with the directions to the respondents to carry out the process of admission in terms of the Prospectus and the revised schedule. Interim order stands vacated. Pending applications, if any, also stand disposed of.