Judgment Mr. G.S. Sandhawalia, J. :-CM-1453-LPA-2021 Application for placing on record Annexures A-1 & A-2 andexemption from filing certified copy of the same, is allowed in view ofthe averments made in the application, duly supported by affidavit of theapplicant-respondent. Said documents are taken on record, subject to justexceptions. Office to append the same at appropriate place. 2.CM stands disposed of. LPA-1090-2019 (O&M) 3.Challenge in the present letters patent appeal, preferred bythe State, is to the judgment of the Learned Single Judge passed in CWP-4315-2019, dated 03.05.2019 and the subsequent order dated 16.05.2019wherein the review application was dismissed along with the applicationfor impleading the Director of Medical Education & Research, Haryanaand the application for clarification/modification, filed by the writpetitioner, was allowed. In effect, the Learned Single Judge had initiallyset aside the order dated 08/09.01.2019 (Annexure P-9) whereby theservice rendered by the petitioner in ESI Dispensary, Daultabad, DistrictGurugram was held not to be counted for the purpose of rural service,rejecting his claim. Similarly, the posting at ESI Dispensary, Rai, whichwas earlier a rural area, was also held as not liable to be counted for thesaid purpose and therefore, request made vide representation/legal noticedated 18.08.2018 (Annexure P-7) had also been rejected. 4.Vide the impugned order, the Learned Single Judge came tothe conclusion that on account of not having the infrastructure at the ESIDispensary, Daultabad, the petitioner had to be posted in Gurugramwhere patients were being treated from Daultabad and he had requestedfor transfer to a rural station so that he can fulfill the criteria of theHCMS/HCDS Post-Graduate Policy. While placing reliance upon thejudgment in Dr.Narinder Soni Vs. State of Haryana & others 2018 (2)RCR (Civil) 824, it was held that the petitioner could not be denied thebenefit and that he could not be allowed to suffer on account of lack ofinfrastructure which was to be provided by the Labour Department.Resultantly, directions were issued to grant No Objection Certificate tothe petitioner for pursuing the Post-Graduate Medical Science Course asan in-service candidate with full pay and continuity of service, for theincoming academic sessions. However, a condition was laid thatrespondent No.1 would be at liberty to put a condition in the NOC that hewould serve for 2 years in rural areas after completing the Post-Graduation Degree as it would serve the object of setting up ofdispensaries in the rural areas. However, a condition was laid thatrespondent No.1 would be at liberty to put a condition in the NOC that hewould serve for 2 years in rural areas after completing the Post-Graduation Degree as it would serve the object of setting up ofdispensaries in the rural areas. Vide the subsequent order dated16.05.2019, the writ petitioner was further given the benefit that since hehad been given the benefit of in-service candidate with full pay andcontinuity of service, he was also to be granted 30% incentive as a naturalconsequence since it was also granted to the similarly situated Doctorswho had done 2 years of rural service. 5.State Counsel has, accordingly, argued that as per the policydated 19.03.2018 (Annexure P-4) and Clause (1) therein, the writpetitioner was not entitled for full pay as it could only be granted if hehad 4 years of regular satisfactory service with at least 2 years of ruralservice in remote and difficult areas in the health institutions of Haryana.It was, accordingly, argued that the policy was in the form of incentiveand it was not a matter of right and even the Director of MedicalEducation & Research had not been impleaded at the time of filing of thewrit petition. Therefore, in the absence of the conditions in Clause 3 ofthe said policy having not been completed, the Learned Single Judge wasnot justified in issuing the said directions. It was further submitted thatthe petitioner, vide letter dated 04.04.2019 (Annexure R-1) was awarefirstly that he had drawn 20% HRA from 09.09.2014 to 10.10.2017 forbeing posted in an urban area. He had not been given rural healthallowance by the ESI Dispensary, Daultabad during the said period andhe had been transferred to ESI Dispensary, Rai for rural service onrequest, on 12.10.2017, which was not a rural area, as per informationprovided on 22.02.2018, which would be clear from the letter dated13.11.2018 (Annexure R-3). Accordingly, the request dated 20.12.2016(Annexure R-4) for being transferred in the rural area from ESIDispensary, Daultabad was referred to. It was further contended thatthere was no health camp organized in Daultabad area as per informationdated 10.04.2019 (Annexure R-5). 6.Counsel for the respondent-writ petitioner, on the other hand,submitted that when CWP-4315-2019 was preferred, interim directiondated 20.02.2019 had been passed in his favour that he was to beprovisionally issued NOC for pursuing the Post-Graduate MedicalScience Course. It was further contended thatthere was no health camp organized in Daultabad area as per informationdated 10.04.2019 (Annexure R-5). 6.Counsel for the respondent-writ petitioner, on the other hand,submitted that when CWP-4315-2019 was preferred, interim directiondated 20.02.2019 had been passed in his favour that he was to beprovisionally issued NOC for pursuing the Post-Graduate MedicalScience Course. Reliance is placed upon the Sponsorship Certificateissued on 01.04.2019 (Annexure A-1) by appellant No.1, wherein nofinancial implication was liable to be paid by PGI, Chandigarh during theperiod of applicant’s course and the payment was to be the responsibilityof the sponsoring/deputing authority. It is, accordingly, submitted thatvide interim orders dated 12.04.2019, passed in CM-5246-CWP-2019,keeping in mind that the NOC had been issued, petitioner was allowed toparticipate in the counselling. Thereafter, he preferred LPA-789-2019 inwhich interim relief had been granted on 18.04.2019 whereby one seat ofMS (General Surgery) in PGIMS, Rohtak had been kept reserved. Thesaid LPA had been dismissed on 30.04.2019 being not maintainable andthe interim order had been discharged. It is submitted that as percertificate dated 11.09.2019 (Annexure A-2), attention of the appellantshad been drawn by the PGIMER, Chandigarh that the petitioner hadjoined as MD (General Surgery) and had been posted on 19.07.2019 inthe Department of General Surgery, PGIMER, Chandigarh and that hewas not liable to be paid any emoluments, stipends etc. by the saidinstitute during his period of studies. 7.Counsel has, accordingly, submitted that the petitioner hasbeen working for the last 2 years without any pay from the appellant orPGIMER, Chandigarh on account of the interim order now having beenpassed in the present case on 22.05.2019. He has also served thePGIMER, Chandigarh during the difficult times of Covid pandemic. It issubmitted that for no fault of his, the period at Daultabad has been treatedas non-rural area on account of lack of infrastructure, by appellant No.1and he has wrongly been denied the benefit of the policy of the State forseeking admission in the Post-Graduate Course. Counsel has, however,very fairly conceded that the petitioner is willing to refund the HRAwhich was received by him on account of having rendered duties atGurugram and having stayed at Gurugram and the fact that petitionercannot have both the benefits, and that he would abide by the condition torefund the HRA. Counsel has, however,very fairly conceded that the petitioner is willing to refund the HRAwhich was received by him on account of having rendered duties atGurugram and having stayed at Gurugram and the fact that petitionercannot have both the benefits, and that he would abide by the condition torefund the HRA. 8.A perusal of the paperbook would go on to show that it is notdisputed that the petitioner was initially appointed as Medical Officer inESI Health Care, Daultabad, Haryana at ESI Dispensary No.1, Gurugramon 12.08.2014 (Annexure P-1) against a vacant post. It is his specificcase that the dispensary at Daultabad was not having its own building andit was functioning within the dispensary at Gurugram and similarly, theESI Dispensary, Basai Road, Gurugram was also functioning from thesame premises. It has further been pleaded that ESI Dispensary,Daultabad falls in a rural area. Reliance has been placed upon letterdated 12.10.2015 (Annexure P-3) which was addressed to the Director,ESI Health Care by the Addl. Commissioner and Chief Executive Officer,DRDO, Gurgaon. Accordingly, it is his case that he had worked for 3years and 1 month at the ESI Dispensary, Daultabad, as per the performaissued on 16.04.2018. The posting at Daultablad was against a regularlysanctioned post and the patients were also coming from ESI Dispensary,Daultabad. This factum is not denied in the reply filed to the writ petitionand the defence of the State was to the extent that the ESI Dispensary wasfunctioning in the building of ESI Dispensary, Gurugram, as the samewas not having a building at Daultabad. It has further been pleaded thatDaultabad is a rural area but the petitioner was stationed at Gurugram asDaultabad was not having its own building and therefore, the ruralservice had not been rendered by the petitioner during the period of hisposting and therefore, he could not be given the said benefit. 9.Further it has been pleaded that he claimed HRA atGurugram which is an urban area and he has not been given the ruralhealth allowance of rural area. Thus, in effect, it would be clear that it ison account of the State’s own lack of infrastructure his service was beingtreated as one not in the rural area, to deny him the benefit of the Post-Graduate Policy, though the petitioner was posted at Daultabad, whichfalls within a rural area, as per Annexure P-3. Thus, in effect, it would be clear that it ison account of the State’s own lack of infrastructure his service was beingtreated as one not in the rural area, to deny him the benefit of the Post-Graduate Policy, though the petitioner was posted at Daultabad, whichfalls within a rural area, as per Annexure P-3. The Learned Single Judge,therefore, was right in holding that he could not be made to suffer on thisground as he had examined the patients from Daultabad who were fromthe same rural area and if the Labour Department had taken time to makeavailable the infrastructure and after providing the same, shifted thedispensary to Daultabad from 14.10.2017, he could not be denied the saidbenefit. 10.It is also pertinent to notice that the petitioner, on coming toknow that his posting was not being considered as rural service, hadrequested on 20.12.2016 itself vide Annexure R-4 that he be posted to arural station so that he could fulfill the criteria of the Post-GraduatePolicy and sought postings at 4 different stations if they were to beconsidered as rural. Accordingly, he had been posted at Rai on12.10.2017, which would be clear from the certificate dated 16.04.2018(Annexure P-6) which showed that he had served from 09.04.2014 to11.10.2017 at Daultabad for a period of 3 years, 1 month and 3 days andfrom 12.10.2017 to 16.04.2018, he had served at ESI Dispensary, Raiwhich was for 6 months and 5 days which was also a rural area initially.The total period of rural area, thus, as per the certificate, was 3 years 7months and 7 days. The period at Rai was further truncated in view ofthe fact that Rai was brought within the limits of Municipal Corporation,Sonepat, as per information supplied on 22.02.2018, which would beclear from the letter dated 13.11.2018 (Annexure R-3). Therefore,petitioner’s request for granting the NOC had been rejected on24.04.2018. Directions had been issued in CWP-24123-2018 on20.09.2018 (Annexure P-8) to look into the representation dated18.08.2018, which led to the passing of the impugned order dated08/09.01.2019, which was subject matter of challenge in the writ petition. 11.The relevant conditions of the policy dated 19.03.2018 readas under: “(a) In-service HCMS/ HCDS doctors may appear in anyentrance/NEET examination for higher studies. Nopermission from the State Government will be required forappearing in the post graduation entrance examination’ Thispolicy will come into force from the academic year 2018. AllPG policies issued prior to this PG policy stand supersededwith this policy’. 11.The relevant conditions of the policy dated 19.03.2018 readas under: “(a) In-service HCMS/ HCDS doctors may appear in anyentrance/NEET examination for higher studies. Nopermission from the State Government will be required forappearing in the post graduation entrance examination’ Thispolicy will come into force from the academic year 2018. AllPG policies issued prior to this PG policy stand supersededwith this policy’. GENERAL CONDITIONS (1) Any in-service HCMS/ HCDS doctor who has completed 2 years of regular satisfactory service will be eligible for grantof NOC for pursuing PG Diploma/Degree/DNB coursesWITHOUT PAY. However, if granted NOC, this period of study will be treated as extraordinary leave without pay. Theservice will be protected for the purpose of increments,seniority and pension, if entitled. Such persons will also beentitled to stipend if available in the institution. (2) Before completion of 2 years, the doctor who wishes topursue will have to RESIGN from service and will not beconsidered as an candidate. (3) Any in-service HCMS/ HCDS doctor wishes to do PGDegree/ Diploma/ DNB courses after completion of 4 years ofregular satisfactory service with at-least 2 years rural service/at-least 2 years of remote and difficult areas service in HealthInstitutions of Haryana, such doctor will be eligible for NOCWITH FULL PAY as he/she was drawing and the periodspent on the prescribed duration of course will be treated asservice period for all intents and purposes. The doctor shallclaim pay and HRA from the station from where he/she wasrelieved in case of his/her eligibility for full pay, providedthat the release of pay and other remunerations will be subjectto deposition of stipend received/due on account of PGcourses in State Treasury. The candidates will be required togive a certificate/ affidavit in this regard duly attested/verified by head of the Institution to the office of DirectorGeneral Health, Services, Haryana.” 12.A perusal of Clause (1) of the above policy would go on toshow that any in-service HCMS/HCDS doctor, on completion of 2 yearsof regular satisfactory service, was eligible for grant of the NOC forpursuing the PG Diploma/Degree/DNB courses but the same was to bewithout any pay. The period was to be treated as extra-ordinary leave,without pay and the service was to be protected for all purposes includingincrement, seniority, pension etc., as per entitlement. Such persons werealso to be entitled for stipend, if available. The period was to be treated as extra-ordinary leave,without pay and the service was to be protected for all purposes includingincrement, seniority, pension etc., as per entitlement. Such persons werealso to be entitled for stipend, if available. 13.It is not disputed that vide communication dated 01.04.2019(Annexure A-1), the appellants have sponsored the candidature of thepetitioner subject to the fact that payment would be responsibility of thesponsoring/deputing authority. On the strength of the said sponsorship,appointment order was issued by the PGIMER, Chanidgarh, to thepetitioner on 11.09.2019 (Annexure A-2) after his joining on 19.07.2019,on the condition that he would not be paid any emoluments/stipendduring his period of studies. Thus, it would be apparent that from bothends petitioner is not being paid anything for the period of his service,which would be highly unjust for a doctor who is serving the society. Hecannot be denied the benefits of his pay and who be expected to workduring his Post-Graduate course without any financial emoluments. 14.Clause 3 further provides that after having 4 years of regularsatisfactory service out of which, 2 years of remote and difficult areas ofservice in any health institution of Haryana, the doctors who are to beeligible for NOC and can claim pay. The period prescribed for the saidduration of post was also to be treated for in-service period, for all intentsand purposes. The same is to be subject to deposition of stipend receivedon account of PG course in the State Treasury. It is not disputed that thepetitioner has the necessary 4 years of service and if the period from30.08.2014 onwards is to be counted before joining on 19.07.2019, theperiod at Daultabad from 09.09.2014 to 11.10.2017, which was for 3years, 1 month and 3 days, would entitle the petitioner for the benefit ofthe said Clause. It is only on account of lack of infrastructure, thedispensary at Daultabad was functioning from Gurugram. He could notbe put to a disadvantage on account of the fact that he was posted at arural dispensary which was functioning at Gurugram from the premises ofthe main dispensary, in the absence of the facility being available atDaultabad. 15.State itself has admitted that various ESI dispensaries atGurugram were functioning from the ESI Dispensary No.1, namely, theone at Basai Road and ESI Dispensary No.2 & 3 were also functioningfrom the main ESI Dispensary No.1. 15.State itself has admitted that various ESI dispensaries atGurugram were functioning from the ESI Dispensary No.1, namely, theone at Basai Road and ESI Dispensary No.2 & 3 were also functioningfrom the main ESI Dispensary No.1. The factum of the dispensary atDaultabad being in rural area is an admitted fact as per communicationdated 12.10.2015 (Annexure P-3) along with other dispensaries namelyESI Dispensary No.1, Manesar, ESI Dispensaries at Binola and at Kasan.The rest of the ESI Dispensaries in Gurugram fell in the urban area andtherefore, the petitioner cannot be denied the benefit mainly on accountof being stationed at Gurugram. Therefore, the Learned Single Judge didnot err in any manner in granting the relief to the writ petitioner. Thebenefit of 30% incentive with full pay and continuity of service is anatural corollary which has to be paid, keeping in view the fact that thePGIMER, Chandigarh is also not paying any stipend to the petitioner. 16.Accordingly, in view of the above discussion, the presentappeal is disposed of, with the following directions: (1) The order of the Learned Single Judge dated 03.05.2019is upheld. Resultantly, he will also serve the State after hisPost-Graduation Course is completed, in a rural area, for aperiod of 2 years, as directed by the Learned Single Judge asthe State would benefit from his experience which he wouldhave gained during his period of Post-Graduation in thePGIMER, Chandigarh and poor patients in rural areas wouldfurther be the direct beneficiaries. (2) However, the writ petitioner shall refund the HRA, whichhe has received during his period of posting at Daultabad,while stationed at Gurugram, after adjusting the rural areaallowance which was to be paid to him.