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Rajasthan High Court · body

2022 DIGILAW 2839 (RAJ)

Himmat Singh v. State of Rajasthan

2022-11-30

ASHOK KUMAR GAUR

body2022
ORDER 1. The instant writ petition has been filed by the petitioners challenging the order dated 25.08.2015, whereby the respondents have rejected the application of the petitioners for grant of study leave for pursuing General Nursing and Midwifery (GNM) Course, as the petitioners belong to Class-IV cadre. 2. The petitioners have further sought a direction to sanction them two years study leave and give all the monetary and consequential benefits claimed as per Rule 112 (1) of the Rajasthan Service Rules, 1951. 3. Learned counsel for the petitioner submitted that all the three petitioners were initially appointed on the post of Class-IV employee in Medical and Health Department and they participated in the selection process for GNM Course in the year 2014-15 and further all the petitioners were allotted their respective centres for training course. 4. Learned counsel for the petitioners submitted that the petitioners were relieved by the Controlling Authority for Training Course and as such the petitioners while undergoing the course, filed applications for grant of study leave. The petitioners have placed on record the orders issued by the Chief Medical & Health Officer, Bharatpur dated 25.02.2015, requesting the Additional Director (Administration) Medical & Health Services, Jaipur to grant study leave to the petitioners. 5. Learned counsel for the petitioners submitted that by impugned order dated 25.08.2015, the respondents came to the conclusion that since the petitioners are working in the cadre of Class-IV and as such they cannot be granted the benefit of study leave for pursuing GNM Course. 6. Learned counsel for the petitioners submitted that the respondents have adopted discriminatory attitude towards the petitioners, as other similarly situated Class-IV employee were granted the benefit of study leave and as such example of one person - Mukesh Chand has been placed on record by filing an order dated 02.04.2012. 7. Learned counsel for the petitioner has made following submissions:- 1. The order dated 25.08.2015 passed by the respondents is arbitrary, illegal and discriminatory order. 2. The impugned order has been passed by ignoring the requirement, as has been prescribed in Rule 112 of RSR Rules, as the grant of study leave to the petitioners is in the interest of working of the Department and as such the knowledge, which has been acquired by the petitioners will ultimately be useful for all Department including the Department concerned. 3. 3. The petitioners after rendering 6 years of service, if decided to acquire higher qualification, then the very purpose of grant of study leave is frustrated by the respondents. 4. Learned counsel submitted that there are other similarly situated employees, who have been granted benefit and as such the similar treatment ought to have been given by the respondents to the petitioners. 8. Learned counsel for the petitioners has placed reliance on a judgment passed by this Court in S.B.Civil Writ Petition No.9331/2020 (Dr. Sheikh Mohmmad Afzal & Ors. Vs. State of Rajasthan & Ors.) decided vide order dated 23.02.2021. 9. Learned counsel on the strength of the said judgment submitted that the higher qualification, if acquired by a Government Servant and his acquiring of such qualification or pursuing the course is in the interest of the working of the Government, the employer cannot deny benefit of study leave to such employees. 10. Per contra learned counsel appearing for the respondents - Mr.Harshal Tholia submitted that reply to the writ petition has been filed by the respondents. 11. Learned counsel on the basis of the reply filed by the respondents submitted that the petitioners are working on the post of Class-IV employees and the study leave, which has been claimed by the petitioners cannot be given to them for pursuing GNM Course, as the regular cadre of the petitioners is from Class-IV employee to Ministerial Cadre for the purpose of promotion. 12. Learned counsel submitted that acquiring of qualification by any employee has to be in the same cadre to which he belongs and as such only by working in the Medical Department, it cannot be said that the grant of study leave will be in the interest of the service to which these petitioners belong. 13. Learned counsel for the respondents submitted that the interest of the working of the Department has to be in respect of service of such an employee after acquiring higher qualification but if the stream itself is changed from one cadre to another cadre, the study leave cannot be granted, as the same would not be in the interest of working of the Department. 14. 14. Learned counsel for the respondents further submitted that the judgment passed by this Court in the case of Dr.Sheikh Mohmmad Afzal (supra) is a subject-matter of challenge before the Division Bench and as such no assistance can be taken by learned counsel for the petitioners. 15. Learned counsel for the respondents further submitted that if any order has been issued in past for granting study leave to Class-IV employees for pursuing GNM Course, the same would not result into granting any benefit to the petitioners and if any wrong order has been passed in past, the same would not become precedent for giving benefit to the petitioners. 16. Learned counsel for the respondents further submitted that two wrongs cannot make one right and in the present case, the order, which was issued in respect of one employee granting him benefit of study leave, has also been withdrawn by the respondents. 17. I have heard the submissions made by learned counsel for the parties and perused the material available on record. 18. This Court deems it proper to quote Rule 112 of the Rajathan Service Rules, 1951 as under:- "112. Condition for grant of Study leave. - (I) Study leave shall be granted to enable a Government servant: - (i) to pursue a course of study or investigation of a scientific or technical nature either in India or outside India provided that it is certified by the authority competent to sanction that the grant of study leave will be in the interest of the working of the department or the service to which the Government servant belongs. The authority competent to grant study leave shall ensure that it is not granted to a Government servant with such frequency work or to cause cadre difficulties owing to his as to remove him from contact with his regular absence on leave. A period of 12 months at one time should ordinarily be regarded as a suitable maximum and should not be exceeded save for exceptional reasons. (ii) The total period of study leave during the entire period of service of a Government servant shall not be more than 24 months. It may be taken in one spell or more than one spell. (ii) The total period of study leave during the entire period of service of a Government servant shall not be more than 24 months. It may be taken in one spell or more than one spell. Study leave may be combined with other kinds of leave, but in no case shall the grant of this leave in combination with leave, other than extra-ordinary leave, involve a total absence of more than twenty-eight months from the regular duties of the Government servant. (2) Study Leave is extra leave on half pay and leave salary during such leave shall be regulated in accordance with rule 97(2). (Emphasis supplied.) 19. This Court on bare perusal of the Rule 112 of the Rajasthan Service Rules, 1951 finds that the study leave is granted to Government servant to enable him to pursue the course of study and grant of study leave should be in the interest of working of the Department or the service to which Government Servant belongs. 20. This Court finds that if the study leave is in the interest of the working of the Department, then it cannot be said that the person, who is in Class-IV cadre and acquires qualification of GNM, the same would not be in the interest of working of the Department. 21. The submission of learned counsel for the respondents that the Rule 112 of the Rajasthan Service Rules, 1951 also provides a condition that if the Government Servant wants study leave, it should be in the interest of the service to which Government servant belongs, this Court finds that if the Rule making authority has clearly demarcated two situations by giving benefit of study leave in the interest of the working of the Department as well as in the interest of service to which Government servant belongs plain and purposeful interpretation has to be made of such Rule. 22. The rule making authority has kept in mind that it is the working of the Department, which is benefited by virtue of acquiring higher qualification by the employee and as such the employee belonging to cadre of Class-IV cannot be presumed, to be not acquiring such course of study, which would ultimately not be in the interest of working of the Department. 23. 23. This Court had occasion to consider the similar issue in the case of Dr.Sheikh Mohmmad Afzal (supra) and the relevant portion of the order is quoted hereunder:- "The submission of learned counsel for the respondents that the candidate, if appointed in a particular stream, later on joins in Post-graduation in other stream and as such, the change of stream cannot be in benefit of the State, as when such candidate reverts back, he is appointed on the same post, this Court finds that if the Senior Demonstrator or Assistant Professor acquires higher education/Post-graduation in Medical Science, his/her study or knowledge cannot go waste and the same can always be used by the Government, considering the higher education acquired by such candidate." 24. The submission of learned counsel for the respondents that the benefit, which was granted to the other candidates has been withdrawn or wrong orders if has been passed in past will not give right to the petitioners to claim benefit of study leave, this Court finds that the Rule making Authority once has provided in Rule 112 of the Rajasthan Service Rules, 1951 making a person entitled for grant of study leave in the interest of the working of the Department, such entitlement cannot be denied to the Government Servant. 25. This Court accordingly finds that the order dated 25.08.2015, has not been passed by the respondents in legal and proper manner and accordingly, the same is set aside. The petitioners are held entitled for grant of study leave and they will also be entitled for the consequential reliefs, which flow from granting of study leave. The compliance of this order will be made within a period of six weeks from the date of receipt of certified copy of this order. 26. The present writ petition stands allowed, accordingly.