Dr. Rohit Kumar vs Secretary Office Of Lt. Governor … on 15 July, 2021


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Dr. Rohit Kumar vs Secretary Office Of Lt. Governor … on 15 July, 2021

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, V. Ramasubramanian

                                                                           REPORTABLE

                                           IN THE SUPREME COURT OF INDIA

                                             CIVIL APPELLATE JURISDICTION

                                           CIVIL APPEAL No. 2739 OF 2021
                                     (ARISING OUT OF SLP (C) NO. 3824 OF 2021)

                         DR. ROHIT KUMAR                                     …...Appellant


                                                           versus


                         SECRETARY OFFICE OF LT. GOVERNOR
                         OF DELHI & ORS.                                   .…Respondents




                                                    JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This appeal has been filed by the Appellant against a final

judgment and order dated 12-02-2021 passed by a Division Bench of

the Delhi High Court dismissing the appeal, being L.P.A. No.52/2021,

of the Appellant against an order dated 02-02-2021 passed by the

Single Bench dismissing the writ petition being WP(C) No.499 of 2021

filed by the Appellant.

3. The Appellant, a doctor, who joined service of the Government
Signature Not Verified

Digitally signed by
SUNIL KUMAR
Date: 2021.07.18
12:29:09 IST
of National Capital Territory (NCT) of Delhi, on 5th August 2014, is
Reason:

presently posted as Medical Officer of the Emergency and Accidents

Department at the Deen Dayal Upadhyay Hospital, New Delhi.

1

4. The Appellant has duly completed five years of regular and

continuous service with the Government of NCT of Delhi and is thus

eligible to avail Study Leave to pursue the post graduate course, in

accordance with the Directives and Guidelines of the Ministry of

Health and Family Welfare, Government of India issued vide

O.M.A.12034/0312012-CHS-V dated 2nd November, 2012, the

relevant portion whereof, is extracted hereinbelow:

“1.CHS officer who has satisfactory completed period of
probation and has rendered not less than five years regular
service including the period of probation under the
Government and is not due to reach the age of
superannuation from Government service within five years
from the date on which he is expected to return to duty after
the expiry of the leave, is entitled to avail study leave under
Rule 50 of CCS (leave) Rule 1072.”

5. On or about 14th October 2020, the Appellant was duly granted

permission to apply for and appear at the INICET-2020, a highly

competitive examination for admission to the MD/MS courses in some

of the premier medical institutions of the country, such as All India

Institute of Medical Sciences (AIIMS), New Delhi, the Post Graduate

Institute of Medical Education and Research (PGI), Chandigarh, etc.

6. The results of the INICET-2020 were declared on 28th

November, 2020. The Appellant successfully cleared the Examination

and was, accordingly called by PGI Chandigarh for counselling for

admission to the MD/MS course, by a notice dated 24 th December,

2020. The Appellant duly participated in the off-line counselling for

2
the MD/MS course at PGI, Chandigarh on 29 th December, 2020, and

was allotted a seat in the MD course in Paediatrics.

7. The authorities of Deen Dayal Upadhyay Hospital duly issued

the required ‘No Objection Certificate’ to the Appellant to enable the

Appellant to pursue the post graduate course in Paediatrics at PGI,

Chandigarh. After completing all the requisite formalities, the

Appellant applied to the Respondent No.1 for Study Leave as per the

Rules, to enable him to join the MD course in Paediatrics at the PGI,

Chandigarh. In the meanwhile, on or about 20th October 2020, a

policy decision was taken, not to grant any further Study Leave to the

doctors working in the hospitals of the Government of NCT of Delhi, in

view of the COVID-19 pandemic.

8. Another Office Order dated 22-10-2020 was issued by the

Government of NCT of Delhi, Health and Family Welfare Department

(Medical Branch), which is extracted herein below for convenience: –

“In view of the prevailing situation of COVID-19 in NCT of
Delhi and the projections made by Experts about the
expected increase in cases of COVID-19 during the period
November-December, 2020, it is not feasible, in public
interest to spare the services of GDMOs, to pursue Post
Graduation courses. GDMOs cannot be acceded to at this
juncture.”

9. By an order dated 22nd January 2021, the Respondent No.1

rejected the application of the Appellant for Study Leave, having

regard to the policy decision taken by the Government on 20th

October, 2020 and the subsequent order dated 22nd October, 2020.

On 31st January, 2020, admission to the post graduate courses in PGI,

3
Chandigarh, for the 2020 session was closed, and the allotment of the

Post Graduate seat to the Appellant was cancelled.

10. The Appellant had filed a writ petition in the Delhi High Court

challenging the action of the Respondent No. 1 in not granting Study

Leave to the Appellant to enable him to join the post graduate course

at PGI, Chandigarh. The said writ petition was dismissed by a Single

Bench of the High Court, and an appeal therefrom, filed by the

Appellant, has been dismissed by the Division Bench of the High

Court, by the judgment and order impugned in this appeal.

11. As observed above, even though the Appellant cleared INICET-

2020 and was selected for the post graduate course in PGI, a premier

medical institution, he was declined Study Leave by the Respondent

No.1 in view of the COVID-19 pandemic and the consequential policy

decision adopted on 20th October 2020, not to grant Study Leave to

doctors working in Government hospitals in Delhi.

12. Ms. Geeta Luthra appearing on behalf of the Appellant argued

that the Appellant had arbitrarily been declined Study Leave whereas

many other doctors, similarly circumstanced as the Appellant, had

been granted Study Leave to pursue post graduate courses, even

after the onset of the COVID-19 pandemic. The Respondent Nos. 1

and 2 have thereby discriminated against the petitioner.

13. Ms. Luthra cited the instances of Dr. Dharmendra Kumar, Dr.

Vipul Pandey, Dr. Brijesh Patel, Dr. Avneesh Tripathi, Dr. Punit Mishra

4
who had admittedly been granted Study Leave in

July/August/September, when there were a large number of COVID-19

cases in Delhi.

14. Ms. Luthra argued that on 14th October 2020, when the

Appellant was granted permission to apply for and appear at the

INICET-2020, the number of new COVID-19 cases reported in the

preceding 24 hours was 3324. However, in December/January

/February, the daily figure of new cases had declined substantially.

There could, therefore, be no justification in refusing Study Leave to

the Appellant and depriving him of the opportunity to pursue post

graduate studies in a premier institution.

15. While it is true that admittedly numerous doctors named in the

SLP have been granted Study Leave during the COVID-19 pandemic,

when COVID-19 cases were on the rise, those doctors were granted

Study Leave before the policy decision of 20th October, 2020 and the

order dated 22nd October, 2020 referred to above. Our attention has

not been drawn to a single case of grant of Study Leave to a doctor of

a hospital under the Government of NCT, after the said policy

decision.

16. Ms. Aishwarya Bhati, learned Additional Solicitor General,

appearing on behalf of the Respondent No.1 argued that the

Respondent No.1 had neither acted arbitrarily, nor discriminated

against the Appellant, in turning down the request of the Appellant for

Study Leave. The order of the Respondent No.1 in refusing Study

5
Leave to the Appellant had to be taken in view of the Pandemic, with

predictions of exponential rise in the number of COVID-19 CASES and

the consequential policy decision taken on 20th October, 2020.

17. Ms. Bhati argued that even though there may have been a

decline in the number of fresh COVID-19 cases in

December/January/February, the policy adopted on 20th October,

2020 and the subsequent order dated 22nd October, 2020 had not

been annulled, in view of predictions of the likelihood of a possible

second wave and spurt in COVID-19 cases. The doctors of hospitals

run by the Government of NCT, Delhi, could not, therefore, be spared

for higher studies.

18. Ms. Bhati also argued that Study Leave could not be claimed as

a matter of right and it was open to the Government to refuse any

application for Study Leave, if the service of the concerned doctor was

required in public interest. She submitted that the Respondent No.1

has acted within the parameters of law and has not committed any

wrong in not allowing Study Leave to the Appellant.

19. It may be true, as argued by Ms. Bhati, that no leave can be

claimed as a matter of right. The concerned Respondents have

apparently acted within the parameters of law in declining Study

Leave to the Appellant in the teeth of COVID-19 pandemic, when

doctors were urgently required in Government hospitals, to treat

COVID-19 patients. The fact that some doctors may have been

granted Study Leave after the spread of COVID-19 cases in Delhi, did

6
not debar the Government from taking a policy decision not to grant

Study Leave to doctors any further, when exigencies necessitated

such a decision.

20. The policy decision is stated to have been prompted by

predictions of rise in the number of COVID-19 cases in Delhi. The

exponential rise of COVID-19 cases in Delhi in April/May, 2021 with

about 25,000 new cases per day and the consequential pressure on

hospitals, nursing homes, clinics and other medical establishments

justify the apprehension which led to the policy decision of 20 th

October, 2020. In any case the prudence of and/or justification for

the policy decision cannot be examined by the Court in exercise of its

extraordinary power of judicial review under Article 226 of the

Constitution of India.

21. The policy decision not to grant Study Leave to doctors for a

certain length of time, in apprehension of a rise in COVID-19 cases, to

ensure the availability of as many doctors, as possible for duty, is

neither arbitrary, nor discriminatory, nor violative of Article 14 of the

Constitution of India.

22. At the same time, this Court cannot be oblivious to the

legitimate expectation of COVID-19 warriors like the Appellant to fair

treatment, in conformity with the Service Rules by which they are

governed, to enable them to pursue higher education and enhance

their educational qualifications. Needless to mention that doctors

with higher qualifications and special knowledge in specific areas

7
would be an asset to the medical fraternity, as also to the society.

23. The guidelines and directions of the Ministry of Health and

Family Welfare, as contained in the Order being O.M.A.

12034/0312012-CHS-V dated 2nd November, 2012 entitles a Central

Health Service Officer who has satisfactorily completed probation and

rendered not less than five years of regular service, to avail Study

Leave under the CCS (Leave) Rules 1972, provided he is not due to

attain the age of retirement within 5 years from the date on which the

officer is expected to return to duty, and/or in other words, within five

years from the date on which his Study Leave ends.

24. The policy decision taken on 20th October, 2020, not to grant

further Study Leave to doctors working in hospitals under the

Government of NCT of Delhi in apprehension of rise in COVID cases, is

obviously a temporary one. The policy cannot continue indefinitely

irrespective of changes in circumstances. The policy has necessarily

to be reviewed from time to time and relaxed and/or modified once

there is decrease in the number of COVID-19 cases in the NCT of

Delhi.

25. Thankfully, the COVID-19 situation in Delhi is now under control.

As on 14th July, 2021, that is, yesterday, there were total number of

688 active COVID-19 cases, of whom about 250 were in home

isolation, as per news reports based on bulletins issued by the Health

Department of the Government. The number of new cases per day

has dropped to less than 100. It is reported that in most hospitals

8
COVID-19 beds are now lying vacant. The application of the Appellant

for Study Leave should, therefore, be reconsidered.

26. At the cost of repetition, it is reiterated that the Appellant could

not join the Post Graduate Course for no fault of his own, as his

services were required in public interest, for the cause of humanity, to

save lives. The admission to the Post Graduate Course was closed on

31st January, 2021 and classes commenced soon thereafter. The

Appellant continued to render service to the Government of NCT of

Delhi, treating patients at the Deen Dayal Upadhyay Hospital. Now

that the COVID-19 situation in Delhi is under control, the Government

of NCT of Delhi should, as a model employer, make an endeavour to

see that the Appellant is not deprived of the fruits of his success in

the INICET 2020 and is able to pursue post graduate studies.

27. Mr. Sudarshan Rajan, appearing for PGI Chandigarh, submitted

on instructions that candidates who had cleared the INICET 2020 and

selected to a post graduate course in PGI joined the January, 2021

session. The students who joined the January 2021 session, which

commenced in January, 2021, have completed one semester and are

now in the second semester. The admission to the next session,

which is due to commence in July, 2021 will be made by conducting

the INICET 2021.

28. Mr. Rajan submits that INICET 2021, which was originally

scheduled to be held on 16th June, 2021, has been postponed to 22nd

July, 2021 on account of the COVID-19 pandemic. One unfilled seat of

9
the MD course in Paediatrics, of the sponsored category, for the

January 2021 session, at PGI Chandigarh, which had not been filled up

because of the inability of the Appellant to join, has been re-

advertised for the July 2021 session and is to be filled up through

INICET 2021.

29. Ms. Luthra’s submission that the Appellant be admitted in the

January 2021 session cannot be accepted, since the classes

commenced over six months ago and the students who were

admitted to that session, have completed their first semester and

entered the second semester. There can be no question of any

direction of this Court, to admit the Appellant to the second semester

directly, as suggested by Ms. Luthra, when he has not been able to

attend a single class of the first semester. The question is, whether

the Appellant can be accommodated in the next academic session

scheduled to commence in July, 2021. Since one unfilled seat in the

Post Graduate Course in Paediatrics at the PGI Chandigarh, has been

carried over and re-advertised for the July, 2021 course, no prejudice

will be caused to any one, if that vacant seat is re-allotted to the

appellant once again. Unless the seat is re-allotted to the Appellant,

and the Appellant is granted Study Leave by the Respondent Nos. 1

and 2, he will be irreparably prejudiced.

30. The question of whether a meritorious candidate, denied

admission to a medical course, can be accommodated in that course

in the following academic year, was considered by a three Judge

Bench of this Court in S. Krishna Sradha vs. The State of Andhra

10
Pradesh and Others1
. The Court held: –

“29. However, the question is with respect to a
student, a meritorious candidate for no fault of his/her
has been denied admission illegally and who has
pursued his/her legal rights expeditiously and without
delay is entitled to any relief of admission more
particularly in the courses like MBBS ….

30. The aforesaid question is required to be
considered only to the cases where (i) no fault in
attributable to the candidate;(ii) the candidate has
pursued her rights and legal remedies expeditiously
and without delay; (iii) where there is fault on the part
of the authorities and apparent breach of rules and
regulations; and (iv) candidate is found to be more
meritorious then the last candidate who has been
given admission.”

31. In S. Krishna Sradha (supra) this Court directed as follows :-

“33. In light of the discussion/observations made
hereinabove, a meritorious candidate/student who has been
denied an admission in MBBS Course illegally or irrationally
by the authorities for no fault of his/her and who has
approached the Court in time and so as to see that such a
meritorious candidate may not have to suffer for no fault of
his/her, we answer the reference as under: (i) That in a case
where candidate/student has approached the court at the
earliest and without any 25 delay and that the question is
with respect to the admission in medical course all the
efforts shall be made by the concerned court to dispose of
the proceedings by giving priority and at the earliest. (ii)
Under exceptional circumstances, if the court finds that
there is no fault attributable to the candidate and the
candidate has pursued his/her legal right expeditiously
without any delay and there is fault only on the part of the
authorities and/or there is apparent breach of rules and
regulations as well as related principles in the process of
grant of admission which would violate the right of equality
and equal treatment to the competing candidates and if the
time schedule prescribed–30th September, is over, to do the
complete justice, the Court under exceptional
circumstances and in rarest of rare cases direct the
admission in the same year by directing to increase the
seats, however, it should not be more than one or two seats
and such admissions can be ordered within reasonable time,
i.e., within one month from 30th September, i.e., cut off
date and 26 under no circumstances, the Court shall order
any Admission in the same year beyond 30th October.

However, it is observed that such relief can be granted only
1 (2019) SCC Online SC 1609

11
in exceptional circumstances and in the rarest of rare cases.

In case of such an eventuality, the Court may also pass an
order cancelling the admission given to a candidate who is
at the bottom of the merit list of the category who, if the
admission would have been given to a more meritorious
candidate who has been denied admission illegally, would
not have got the admission, if the Court deems it fit and
proper, however, after giving an opportunity of hearing to a
student whose admission is sought to be cancelled. (iii) In
case the Court is of the opinion that no relief of admission
can be granted to such a candidate in the very academic
year and wherever it finds that the action of the authorities
has been arbitrary and in breach of the rules and
regulations or the prospectus affecting the rights of the
students and that a candidate is found to be meritorious
and such 27 candidate/student has approached the court at
the earliest and without any delay,the court can mould the
relief and direct the admission to be granted to such a
candidate in the next academic year by issuing appropriate
directions by directing to increase in the number of seats as
may be considered appropriate in the case and in case of
such an eventuality and if it is found that the management
was at fault and wrongly denied the admission to the
meritorious candidate, in that case, the Court may direct to
reduce the number of seats in the management quota of
that year, meaning thereby the student/students who
was/were denied admission illegally to be accommodated in
the next academic year out of the seats allotted in the
management quota. (iv) Grant
of the compensation could be an additional remedy but not
a substitute for restitutional remedies. Therefore, in an
appropriate case the Court may award the compensation to
such a meritorious candidate who for no fault of his/her has
28 to lose one full academic year and who could not be
granted any relief of admission in the same academic year.

(v) It is clarified that the aforesaid directions pertain for
Admission in MBBS Course only and we have not dealt with
Post Graduate Medical Course.”

32. The judgment in S. Krishna Sradha (supra) was rendered in

the context of admission to the MBBS Course and not to a post

graduate course. However, in National Medical Commission vs.

Mothukuru Sriyah Koumudi and Others2, this Court held:-

“11. As the dispute in S. Krishna Sradha (supra) pertained
to admission to the undergraduate MBBS Course, this Court
held that they have not dealt with the Post Graduate
Medical Courses. Mr. Parameshwar argued that there is no
2 (2020) SCC Online SC 992

12
reason why the logic behind the judgment in S. Krishna
Sradha (supra) should not be made applicable to Post
Graduate Courses. We find force in the said argument of
Mr. Parameshwar. This Court was only dealing with the
admission to the MBBS Course for which reason directions
given in the said judgment were restricted to the MBBS
Course. Directions issued in S. Krishna Sradha (supra) can
be made applicable to admission to Post Graduate Courses
as well.”

33. The proposition of law which emerges from the judgments of

this Court in S. Krishna Sradha (supra) and in National Medical

Commission v. Mothukuru Sriyah Koumudi and Others (supra)

is that in rare and exceptional cases, a meritorious candidate, who

has suffered injustice by reason of his/her inability to secure

admission in a medical course, whether under-graduate or post-

graduate, due to no fault of his/her own, who has taken recourse to

law promptly, without delay, might be granted relief of being

accommodated in the same post in the next session.

34. Of course, the judgments in S. Krishna Sradha (supra) and in

National Medical Commission vs. Mothukuru Sriyah Koumudi

and Others (supra) are clearly distinguishable, in that the concerned

petitioners had wrongfully and illegally been denied admission by

disqualifying them. The Appellant on the other hand, cleared INICET-

2020 and was allotted a seat in the post-graduate course in

Paediatrics. PGI, Chandigarh had also acceded to the request of the

Appellant to extend the last date of admission. Unfortunately the

Appellant was refused Study Leave.

13

35. It is well settled that a judgment is an authority for the issue of

law which is raised and decided. What is binding on the courts is

what the Supreme Court decides under Article 141 and not what the

Supreme Court does under Article 142, in exercise of its power to do

complete justice in any cause or matter pending before it.

36. To quote V. Sudhish Pai from Constitutional Supremacy A Revisit:

“Judgments and observations in judgments are not to be
read as Euclid’s theorems or as provisions of statute.
Judicial utterances/pronouncements are in the setting of
the facts of a particular case. To interpret words and
provisions of a statute it may become necessary for
judges to embark upon lengthy discussions, but such
discussion is meant to explain not define. Judges
interpret statutes, their words are not to be interpreted as
statutes. “

37. All the conditions set forth in paragraph 30 of the judgment in

S. Krishna Sradha (supra) quoted above, would not therefore, be

verbatim applicable in the distinguishable facts and circumstances of

this case, for grant of the rare and extra-ordinary relief of admission

to the same course in the next academic year. The broad principles

laid down by this Court for admission to the same course in the

following session, would have to be followed, to the extent feasible, to

advance the cause of justice, but not with pedantic rigidity.

38. In this case, the Appellant has not been able to take admission

to the MD Course in Paediatrics, which commenced in January, 2021,

in circumstances entirely beyond his control, in spite of being selected

for admission after successfully clearing the highly competitive INICET

14
2020. Unfortunately, the Appellant was not granted Study Leave from

the concerned Respondents, for reasons not attributable to him. The

Appellant was not at fault. But then PGI, Chandigarh was also not at

fault. The Appellant also approached the High Court promptly, well

before the admission was closed.

39. Having regard to the circumstances in which the Appellant has

been declined Study Leave, it cannot also be said that the Respon-

dent Nos. 1 and 2 have acted beyond the parameters of law. Never-

theless, the Appellant has suffered injustice, because of the denial of

Study Leave, in that he has been deprived of the opportunity to pur-

sue higher studies, which many other doctors have availed. It would

be unfair to deny the Appellant the opportunity to enjoy the fruits of

his efforts even now, when the COVID-19 situation has improved and

is in control, only because the Respondents have not committed “ap-

parent breach of rules and regulations” in refusing the Appellant

Study Leave. This Court cannot fold its arms and remain a mute

spectator to the plight of the Appellant. After all, “nothing rankles the

heart more than a brooding sense of injustice”.

40. In S. Krishna Sradha (supra), the condition of “fault on the

part of the authorities and apparent breach of rules and regulations”

for grant of the relief of admission to the next session to a candidate

wrongly denied admission in an earlier session, is a sequel to and

flows from the condition that there should be no fault on the part of

that candidate. The Court has elaborated on the condition of “no fault

of the candidate” to ensure that relief is not claimed as a matter of

15
right for any lapse or infraction of rules on the part of the candidate

by recourse to the plea of the candidate not being at fault. To cite an

example, an individual candidate cannot as a matter of right claim re-

lief when for inability to fulfil a condition of admission for reasons

such as computer crash at his end, inability to raise funds within time

for payment of admission fees, inability to adhere to time schedules

by reason of vehicular breakdown, illness, bereavement etc. which

may not be within the control of the candidate, as otherwise it would

be impossible for educational institutions to complete the admission

process, in time, when there are a large number of applicants.

41. In this case, there has not been any lapse on the part of the Ap-

pellant. The Appellant could not joint the post graduate course in PGI

Chandigarh for the January 2021 session for reasons attributable to

the Respondent Nos. 1 and 2 though technically, the said Respon-

dents cannot be said to have acted illegally or in breach of rules and

regulations, in denying the Appellant Study Leave, in apprehension of

rise in COVID-19 cases and the exigency of availability of doctors in

full strength, as far as possible.

42. The Appellant, who could not join the post graduate course, due

to the denial of Study Leave by the Government pursuant to a legiti-

mate policy decision and in response to the call of duty, cannot now

be denied relief on the hyper technical ground that the Respondent

Nos. 1 and 2 had not breached any rules or regulations. It would be a

travesty of justice to deny relief to the Appellant, when the Appellant

16
had to make a personal sacrifice in the larger public interest, to serve

the cause of humanity.

43. Since the seat in the Post Graduate Course in PGI Chandigarh

which remained unfilled due to the inability of the Appellant to join

has been carried over to the July 2021 session which is yet to

commence, and re-advertised, this Court deems it appropriate to

direct the PGI, Chandigarh, being the Respondent No. 3 to admit the

Appellant to the post graduate course scheduled to commence in July

2021, on the basis of INICET 2020, which he has successfully cleared.

The Respondent No. 1 shall re-consider the application of the

Appellant for Study Leave, taking into consideration the decline in

COVID-19 cases in NCT of Delhi, and take a reasonable decision in

favour of the Appellant. Unless there is a substantial rise in COVID-19

cases, the leave application of the Appellant shall not be declined.

44. These directions are being passed in exercise of the power of

this Court under Article 142 of the Constitution of India, in the facts

and circumstances of this case, having regard to the fact that the

Appellant had cleared INICET 2020 held in November 2020 and had

been offered admission to PGI, Chandigarh, but could not join as he

was not released on Study Leave in view of the serious COVID-19

situation prevailing in NCT of Delhi at the material time, and this order

will not be treated as a precedent.

45. The appeal is, disposed of, accordingly. The impugned

judgment and order of the Division Bench of the High Court, and

17
judgment and order of the Single Bench of the High Court dated

02.02.2021 are set aside.

….……………………………………. J.

[INDIRA BANERJEE]

………..……………………………… J.

[V. RAMASUBRAMANIAN]

New Delhi;

July 15, 2021

18



Source link