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Rajasthan High Court · body

2019 DIGILAW 1020 (RAJ)

Nadeem Sardar v. State of Rajasthan

2019-04-04

ALOK SHARMA

body2019
ORDER : Alok Sharma, J. 1. Admittedly the petitioner was appointed vide order dated 14.8.2018 as a probationer-trainee on the post of Medical Officer under the Rajasthan Medical Service Rules, 1963 (hereafter 'the Rules of 1963') on a fixed remuneration of Rs. 56,700/- for a period of two years. In pursuance thereof he joined service on 20.8.2018. During the period of probation, the petitioner wrote the NEET PG Examination, 2019 for admission into the Post Graduate Medical Courses, was successful and ranked at serial number 6169 (All India quota) and 2091 (50% quota category). The All India Post Graduate Counselling for admission as per merit choice of College/course started from 18.3.2019 and is to continue till 24.3.2019. 2. Mr. R.C. Joshi counsel for the petitioner submitted that as per the rank obtained in the NEET PG Examination, 2019 by the petitioner he is likely to be selected for admission in a PG course/college of choice in the State quota/All India quota following counselling as per the notified calendar and a allotted Medical College. However as on 30.4.2019 the petitioner will have completed only one year eight months (1 year 8 months) of probation and be short by a period of 3 months and 19 days on the two years probation, on completion of which he would be confirmed as Medical Officer with the Medical and Health Department, Government of Rajasthan. Mr. R.C. Joshi submitted that as per the circular dated 30.1.2019 issued by the Additional Chief Secretary, Medical and Health Department the petitioner has been deprived from being issued a NOC by the Department for joining the Post Graduate Medical course to which he is likely to be admitted on his merit. Mr. R.C. Joshi submitted that in the circumstances the petitioner submitted a representation on 14.2.2019 to the Additional Chief Secretary, Medical and Health Department praying that he be issued the NOC on the undertaking that he would rejoin service as a probationer-trainee Medical Officer after completion of the three year PG Medical Course, complete the remainder three months and 19 days period of probation prior to his confirmation. Mr. Mr. R.C. Joshi submitted that the petitioner also undertook in his representation that in the event a NOC were to be issued, he would not claim to be paid his current fixed remuneration during the PG Course nor even claim bonus marks under the proviso to Regulation 9(IV) of the Medical Council of India Postgraduate Medical Education Regulations, 2000 (hereafter 'Regulations of 2000') for ascertainment of merit. The petitioner's representation was however rejected and the relaxation sought not be granted for issuance of NOC. That view of the respondents is wholly arbitrary and unreasonable, submitted Mr. R.C. Joshi. He further submitted that in denying the requisite NOC the respondents have overlooked not only the detriment to the petitioner's professional career by being denied a PG Medical admission despite successfully passing the NEET PG, 2019 but also the detriment to public interest in a Medical Officer of the State being deprived higher education which would on the face of it be beneficial to the poor patients availing medical treatment at the Primary Health Centres/Community Health Centres where medical officers are ordinarily posted. 3. Mr. Harshal Tholia for Dr. V.B. Sharma, AAG appearing for the respondent-State, was served on notice on 1.4.2019 and for paucity of time being unable to file reply, orally submitted that the petitioner's representation for grant of NOC was rejected vide order dated 11.3.2019. A copy of the said order dated 11.3.2019 has been passed over to the Court during the course of hearing of this petition and is taken on record. Mr. Harshal Tholia submitted that the petitioner is only a probationer-trainee Medical officer and not yet confirmed as a regularly employed Medical Officer. In that status of a probationer, he is entitled to leave at the maximum for a period of three months as per the memorandum dated 22.5.2009 issued by the Secretary to the Government, Finance Department (Rules Division). Mr. Harshal Tholia submitted that as a temporary employee, the petitioner in terms of Rule 96(b) of the Rajasthan Service Rules, read with Government of Rajasthan's decision No. 3 is ordinarily entitled to extraordinary leave in appropriate circumstances made out only for a period of three months. Further under the memorandum dated 22.5.2009 a probationer-trainee is entitled to leave at the maximum for a period of one year. Further under the memorandum dated 22.5.2009 a probationer-trainee is entitled to leave at the maximum for a period of one year. In the circumstances the NOC to the petitioner a probationer to pursue a three year PG Medical Course was absolutely untenable and hence his representation in that regard rejected. Mr. Harshal Tholia pointed out that the aforesaid memorandum dated 22.5.2009 is not under challenge and therefor cannot be sidestepped by the Court, as the petitioner effectively prays for. 4. It was put to Mr. R.C. Joshi as to under which rule/provision of law the petitioner admittedly a probationer-trainee is entitled to grant of NOC to pursue a three year PG medical course and thereupon allowed three years absence or more till completion of the PG course during the period of probation. No such rule was brought to notice of the Court. Mr. R.C. Joshi instead propagated the vanilla equitable jurisdiction argument and submitted that "Justice" be done to the petitioner. In so doing Mr. R.C. Joshi sought overlooking the obtaining service rule relating to the right to leave at the instance of a temporary employee and the State Government's memorandum dated 22.5.2009, both with a bearing on the issue agitated before the Court. 5. Heard. Considered. 6. 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 Medical 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. 7. A PG Medical 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. 7. 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. 8. I find no force in the petition. Dismissed.