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2022 DIGILAW 179 (MP)

Hitendra Singh Yadav (Dr. ) v. State of M. P.

2022-02-01

ANJULI PALO, SUJOY PAUL

body2022
ORDER Paul, J:- 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed to set aside the order dated 6.12.2021, (Ann. P-20) and dated 27.1.2022, (Ann. P-24), whereby the respondents have disallowed his request to grant ‘Study Leave’. 2. Shorn of unnecessary details, the relevant facts necessary for adjudication of this matter are that the petitioner after completing his MBBS Course, applied for the post of Demonstrator. By order dated 30.5.2013, (Ann. P-3), the petitioner was appointed on temporary basis and on probation on the post of Demonstrator. The petitioner was placed under suspension by order dated 26.9.2014, (Ann. P-4). The petitioner was arrested and remained in custody for quite some time. His suspension was revoked only in the month of November 2021. 3. Shri Upadhyay, learned counsel for the petitioner by taking this Court to the appointment order dated 30.5.2013 (Ann. P-3) submits that the petitioner was appointed against a substantive post. Thus, despite the fact that petitioner was a probationer, he was entitled to get leave as per rule 32 of M.P. Civil Services (Leave) Rules of 1977, (in short ‘Leave Rules’). Next reliance was on rule 50 of the Leave Rules, wherein it is mentioned that if study leave or extension of such leave is granted to a servant not in permanent employment, the bond shall be executed as per prescribed form. It is argued that this provision makes it clear that leave can very well be granted to a Government servant, who is not in permanent employment. 4. Lastly, reliance is placed on document dated 7.1.2022, (Ann. P-23) filed with the rejoinder to contend that pursuant to the interim order passed by this Court, the petitioner was permitted to participate in the selection and he is already selected. 5. In nutshell, Shri H.K. Upadhyay submits that petitioner remained in employment since 2013. The criminal case pending against him will consume time. The petitioner is ready to forego the salary arising out of Study Leave. He may only be permitted to obtain the benefit of study leave minus salary being an ‘in service candidate’. 6. Per contra, Shri Bramhadatt Singh, learned Government Advocate by placing reliance on rule 42 of the Leave rules submits that the petitioner is not entitled to get the study leave. He has not rendered 5 years of service. He may only be permitted to obtain the benefit of study leave minus salary being an ‘in service candidate’. 6. Per contra, Shri Bramhadatt Singh, learned Government Advocate by placing reliance on rule 42 of the Leave rules submits that the petitioner is not entitled to get the study leave. He has not rendered 5 years of service. He is not holding the post on substantive basis and hence, respondents have rightly rejected his claim for study leave. 7. Parties confined their arguments to the extent indicated above. We have heard the parties at length and perused the record. 8. Rule 32(1) and rule 50 (relevant portion) of Leave Rules on which counsel for petitioner placed reliance read as under:- "Rule 32. Leave to probationer, a person on probation and an apprentice. - (1) (a) A probationer shall be entitled to leave under these rules if he has held his post substantively otherwise than on probation. Rule 50. Execution of bond. - Every Government servant in permanent employ who has been granted study leave or extension of such leave shall be required to execute a bond as given in Form 6 or Form 7, as the case may be, before the study leave or extension of such leave granted to him, commences. If study leave or extension of such leave is granted to a Government servant not in permanent employ, the bond shall be executed as given in Form 8 or Form 9 as the case may be." (Emphasis supplied) 9. A careful reading of sub-rule (1) of rule 32 makes it clear that one must hold the post in substantive capacity. The nature of post is not relevant, indeed what is relevant is as to in which capacity the employee is holding the said post. Admittedly, petitioner was a probationer and was not holding the post on substantive basis. Hence, he is not entitled to get ‘Study Leave’. 10. Rule 50 of the Leave Rules on which reliance is placed by Shri Upadhyay shows that it is only an enabling provision. This does not create any enforceable right in favour of a probationer to get the ‘Study Leave’. 11. Relevant portion of rule 42(4) of Leave Rules read as under :- "Rule 42. 10. Rule 50 of the Leave Rules on which reliance is placed by Shri Upadhyay shows that it is only an enabling provision. This does not create any enforceable right in favour of a probationer to get the ‘Study Leave’. 11. Relevant portion of rule 42(4) of Leave Rules read as under :- "Rule 42. Conditions for grant of study leave.- (4) Study leave shall not ordinarily be granted to a Government servant - (i) who has not been in Government service; (ii) who has rendered less than 5 years service under the Government; including service in adhoc capacity;” (Emphasis dupplied) 12. A careful reading of Clause (ii) of this rule leaves no room for any doubt that ordinarily study leave cannot be granted to an employee who has rendered less than 5 years of service under the Government. The petitioner indisputably remained under suspension from 19.5.2014 to 23.11.2021. Thus, he has not rendered 5 years of service as per Clause (ii) of rule 42 aforesaid. Thus, in our opinion, the competent authority has taken a plausible view, which is in consonance with statutory mandate ingrained in rule 42(4)(ii) of the Leave Rules. The administration is best suited to take a decision regarding grant of leave to its employees. This Court can interfere provided the decision so taken by the employer runs contrary to the Leave Rules or infringes any statutory, vested or Constitutional right of the petitioner. Petitioner has miserably failed to establish that any such right of petitioner is taken away or infringed. The department has taken a plausible view, which cannot be said to be irrational or contrary to the Rules. No flaw in the decision making process is pointed out. Another view is possible is not a ground for interference. 13. In Haryana Financial Corporation and another v. Jagdamba Oil Mills and another reported in (2002) 3 SCC 496 , the Supreme Court held as under :- “Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an Appellate Authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. If the High Court cannot sit as an Appellate Authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them.” It was further held as under :- “The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene.” Reference may be made to State of NCT of Delhi and another v. Sanjeev Alias Bittoo reported in (2005) 5 SCC 181 , the apex Court held as under :- “Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. The test is to see whether there is any infirmity in the decision - making process and not in the decision itself. Mere possibility of another view cannot be ground for interference.” 14. In view of foregoing analysis, petition is dismissed. 15. This order will not come in the way of petitioner to ask for any other leave from the department, if Rules so permit.