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“Cannot act as an Appellate Authority over a decision taken at the highest level in the Government” : Delhi HC [READ JUDGMENT]

 “Cannot act as an Appellate Authority over a decision taken at the highest level in the Government” : Delhi HC [READ JUDGMENT]
A single judge bench of Justice V. Kameswar Rao of Delhi High Court on Tuesday ( February 4, 2021) observed that “they cannot sit as an Appellate Authority over a decision taken at the highest level in the Government.” The HC thereby refused to grant study leave to the petitioner, to pursue Postgrad in Paediatrics from PGI Chandigarh in a case of  Dr Rohit Kumar V. Lt Governor Of Delhi & Ors.

The bench was hearing a plea seeking directions against respondent to issue the relieving order and grant study leave to him to enable him to pursue MD/MS Course in Paediatrics from Post Graduate Institute of Medical Education & Research, Chandigarh. He contended that he has satisfied the criteria that is laid down for grant of study leave in the office memorandum dated November 02, 2012.

Facts of the case:

The petitioner, on being successfully, attended the offline counseling for MD/MS course at PGI, was allotted a seat in MD (Pediatrics) course. The DDU hospital where the petitioner is working even issued the required certificate and NOC to the petitioner. The certificate clearly states that the hospital did not need a substitute for the petitioner. However, after completing due formalities, when the petitioner submitted his study leave as per the Rules, on December 31, 2020, the respondents 1 and 2 deliberately delayed in granting the same to the petitioner. In the meantime, the respondent No.3 i.e PGI extended the last date for accepting the seat allotment to the petitioner till January 18, 2021 with a condition that in case, the petitioner fails to get the study leave by then from the respondent No.2, in that case, it shall cancel the seat and allot the same to some other candidate.

It was only on his visit to the secretariat on January 08, 2021 that he came to know that his application has not been forwarded. He was orally informed; that he has not been granted study leave on account of COVID-19.

Arguments by petitioner:

  • Ms Luthra, acting on behalf of petitioner submitted that denying study leave to the petitioner on account of COVID-19 is untenable since the data released by the respondent No.2 itself reveals the situation of COVID-19 with regard to management of pandemic and availability of beds in Delhi hospitals has improved considerably in the last couple of weeks and recently 326 Doctors have been freshly recruited as Medical Officers by the Govt. of NCT of Delhi, which is evident from office order dated May 01, 2020.
  • She submitted that the petitioner is a meritorious student and joining the MD/MS course at the most prestigious Institution of the Country, would be in public interest, for the betterment of the institution where he is working.
  • She submitted that similarly placed Doctors were granted study leave at the time when the number of COVID cases were at the peak and maximum number of beds were assigned for COVID patients in the hospital. She stated that in the DDU hospital, there are twenty (20) beds, which are vacant as of date, so the reasoning given by the respondents 1 and 2 for not granting the study leave due to COVID-19 is clearly an untenable reason.
Arguments by respondents:

  • The Delhi Government contended that the petitioner is not entitled for study leave as a matter of right. According to Chapter-VI, Rule 50 of Central Civil Services (Leave) Rules, 1972 deals with grant of study leave to a government servant. As per the said Rule, the study leave may be granted to a Government servant with due regard to exigencies of public service. Even though a Medical officer may be granted study leave for prosecuting a course of post graduate study in Medical Science but, in the exigencies of services the Competent Authority may deny the same. The Office Memorandum issued by the Govt. of India for CHS cadre officers in 2013 also states that study leave can only be granted to a government servant with due regard to the exigencies of public service.
 

  • The Counsel appearing on behalf of the government cited the top Court's judgment in the case of Punjab & Ors. Vs. Dr. Sanjay Kumar Bansal 2009 in support of her submission that the leave cannot be availed as a matter of right. In that case also, a Doctor was refused the leave on the ground that, there was shortage of Doctors and the Supreme Court held that the matters fell in the category of 'administrative exigencies' and Courts cannot sit in appeal thereon.
Final decision of HC:

The Delhi High Court in exercise of its power of judicial review observed that it cannot sit as an Appellate Authority over the decision taken by the administration or management. The court further said that the decision has been taken, giving due regard to the exigencies, which may arise in the course of administration by state. 

I am conscious of the fact that the petitioner being a meritorious candidate, has a legitimate expectation to acquire a higher qualification and advance in his career but at the same time, as an employee working in the Govt. of NCT of Delhi, is bound by the Rules framed by the Government i.e. Rule 50 of the Leave Rules clearly stipulates that the grant of study leave is not a matter of right, as the same shall be granted to the government servant with due regard to the exigencies of public service,” Justice V. Kameswar Rao said.

The Court thus refused to interfere in the Government's decision stating that when the decision has been taken at the highest level in the Government, the High Court cannot sit as an Appellate Authority over such a decision.

 

[READ JUDGMENT]


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