Dr. Chayan Jain v. Municipal Corporation of Delhi & Ors.

1. This writ petition has been preferred on behalf of the Petitioner challenging the impugned order dated 16.08.2024 whereby Respondents No.1 and 2/Municipal Corporation of Delhi (‘MCD’) have rejected the request of the Petitioner for grant of study leave and for relieving him to join the PG (General Medicine) in Army Hospital (Research & Referral) [‘Army Hospital (R&R)’]. Direction is sought to Respondent No. 1 to treat DNB (General Medicine) resident period spent in Hindu Rao Hospital (‘HRH’)/Respondent No.3 as regular duty/extraordinary leave (‘EOL’).

2. Facts to the extent necessary are that Petitioner is currently pursuing DNB course on an ‘in-service DNB seat’ reserved for MCD regular medical officers. While in service of MCD, Petitioner had applied for sponsored DNB seat in 2022 session and got admission in Poona Hospital at Pune, however, as he was desirous of pursuing higher studies and in giving the NEET PG examination in the upcoming session, he chose not to proceed with the course and came back to join his duties with MCD in February,

2023.

3. It is averred in the writ petition that Petitioner appeared for NEET PG 2023 conducted by National Board of Examinations (‘NBE’) and qualified the same. On 26.07.2023, Respondent No.4/Director General of Armed Forces Medical Services (‘DGAFMS’) invited applications for the PG courses. Petitioner applied against the advertisement with all requisite documents. On 10.08.2023, DGAFMS published a merit list for priority-III candidates but Petitioner’s name did not appear in the said list. Representations were made by several medical officers who did not find their names in the said list. Petitioner and similarly placed medical officers assailed the merit list by filing writ petition being W.P.(C) 10856/2023 on 11.09.2023. In the counter affidavit filed by DGAFMS, it was revealed that the sponsorship certificates furnished by the medical officers including the Petitioner from their employers/departments were not in proper format and did not bear the official seal and rubber stamps of the concerned departments as required under the Information Bulletin.

4. It is stated that the writ petition was dismissed on 11.09.2023 and against the same, LPA No. 661/2023 was filed on 25.09.2023 by the Petitioner and 04 other medical officers. While the Petitioner was pursuing the appeal, some DNB seats fell vacant in HRH (in-service category) and there was no candidate in the mop-up counselling for the said seats. Since Petitioner’s challenge to the merit list issued by DGAFMS was pending, Petitioner instead of wasting a valuable DNB seat joined the said course at HRH. He sought permission on 11.10.2023 to be released from his current place of posting to join the Institute and work as DNB trainee-cum-medical officer.

5. Petitioner avers that in and around December, 2023, he learnt that he was likely to face difficulties in completing his sponsored DNB courses due to a clause in the NBE brochure and registration portal that if a medical officer drops the DNB course after joining on a seat reserved for in-service medical officers, he/she will be debarred from availing the benefit of reservation of DNB seat for the entire duration of the course. Since Petitioner had earlier withdrawn from Poona Hospital, there was a possibility that he could be debarred from appearing in the final examination or complete DNB PG course in HRH. Therefore, in order to prevent any such possibility in future, vide communication dated 26.12.2023 Petitioner requested Respondent No. 1 to relieve him from HRH to pursue the DNB PG at Poona Hospital and Research Centre.

6. Petitioner states that he received no response to this request and in the meanwhile, the Division Bench allowed the appeal vide judgment dated 31.05.2024 and set aside the judgment of the learned Single Judge, recognising the right of the Appellants to take admission in the AFMS Institutes and directed the DG to grant admission to the PG (General Medicine) course for the academic year 2024-25. In compliance of the said judgment, DG requested Ministry of Health and Family Welfare to grant admission to the Petitioner in PG (General Medicine) in Army Hospital (R&R), Delhi. Petitioner made a representation dated 06.08.2024 to Respondent No.1 to relieve him to join Army Hospital (R&R) and grant study leave and also mentioned that he may face impediment in completing the DNB sponsored PG course. However, by the impugned order dated 16.08.2024, Petitioner’s request for grant of study leave and permission to join Army Hospital (R&R) was rejected and Petitioner has approached this Court.

7. Learned counsel for the Petitioner argues that Respondent No.1 has without any justification denied permission to the Petitioner to join PG (General Medicine) course at Army Hospital (R&R) and has failed to appreciate that if Petitioner undergoes the said PG course, it would not only benefit him but also serve the interest of Respondent No. 1 and patient care. Study leave and permission to join Army Hospital (R&R) have been erroneously denied on the ground that Respondent No. 1 was not informed of the Court case filed by the Petitioner and nor was MCD impleaded as a party to the said litigation as also that Petitioner is pursuing DNB (Medicine) from HRH and is on study leave w.e.f. 20.10.2023 and in terms of CCS (Leave) Rules, he cannot be granted study leave beyond a period of 36 months in the entire service with the approval of the Competent Authority. It is urged that each of these grounds are unsustainable in law. It was a well-known fact in the hospital that Petitioner had filed a case for admission to PG (General Medicine) course under AFMS. Petitioner could not pursue the course at Poona Hospital due to health reasons and came back and immediately joined Respondent No. 1 and thus cannot be blamed for not pursuing the said course and cannot be prevented from pursuing a PG course merely for the sake of there being an upper limit to the number of study leaves that can be taken, which in any case is not a rule open to no exception.

8. Learned counsel submits that Respondent No. 1 is overemphasising the issue that Petitioner cannot be relieved due to purported manpower shortage, which is a creation of the said Respondent itself. Respondent No. 1 could have prevented the present situation in December, 2023, when Petitioner had requested Respondent No. 1 to relieve him to rejoin the DNB course at Poona Hospital, citing NBE’s Instructions for reporting back at the said Hospital as also the condition that if any medical officer drops the DNB course on a reserved seat, he or she will be debarred from availing admission in a fresh DNB course during the remaining duration of the course left in between. Petitioner had no doubt finally succeeded before this Court in getting admission at Army Hospital (R&R), however, while the litigation was pending it was uncertain whether the Petitioner would succeed and therefore, at the earliest opportunity he joined HRH. Petitioner should not be deprived of taking admission in the PG (General Medicine) course at Army Hospital (R&R) after granting study leave, after he has succeeded in the appeal.

9. Learned counsel for Respondents No. 1 and 2 opposes the writ petition and submits that Petitioner is not entitled to grant of study leave and/or permission to join the PG (General Medicine) course at Army Hospital (R&R). The background of this case shows that Petitioner applies in one course or the other at his whims and fancies and drops out as and when he pleases. By letter dated 23.11.2022, Petitioner informed Respondent No. 1 that he was allotted a seat in MD (General Medicine) course at INHS ASVINI and was proceeding to join the same before 24.11.2022. He requested for study leave in this context. While Department of Hospital Administration, MCD was processing the study leave application, another letter was received from the Petitioner dated 29.11.2022 informing that he had not joined INHS ASVINI and requested for converting the leave period as earned leave (‘EL’). Petitioner was allowed to join MCD and his leave from 24.11.2022 to 29.11.2022 was converted into EL.

10. It is urged that on 03.02.2023, Petitioner again informed that he was allotted a seat in DNB (General Medicine) at Poona Hospital through counselling conducted on 31.03.2023 and sought study leave to join before 07.02.2023. While this application was being processed, letter dated 15.03.2023 was received from him stating that he had joined the Institute on 07.02.2023 but had discontinued the course and again requested for converting the leave period from 06.02.2023 to 15.03.2023 as EL. Letter dated 22.02.2023 by Poona Hospital indicated that Petitioner had resigned from the Hospital and this meant that there was loss in terms of manpower as the sponsored seat was vacated mid-session. Petitioner thereafter went missing for 22 days before joining Respondent No. 1 on 15.03.2023. Again, the benefit of regularising the leave into EL was given to the Petitioner. In August, 2023, Petitioner was given the sponsorship certificate by MCD, on his request, to appear for PG (General Medicine) course under AFMS. Not getting admission, Petitioner first filed a writ petition and then an appeal before this Court.

11. It is further submitted that while the appeal was pending, Petitioner without awaiting its decision, appeared for counselling for DNB course reserved for in-service doctors of MCD for session 2023 and was allotted a seat, which was also a type of sponsored seat. Petitioner requested Respondent No. 1 to grant study leave for 03 years for the DNB course and continued to pursue the appeal in this Court. Respondent No. 1 sanctioned the study leave on 20.10.2023 for 36 months for pursuing the post MBBS DNB course in HRH, which he continues to pursue. However, after succeeding in the appeal, Petitioner requested for permission to join Army Hospital (R&R), which has been denied for the reasons stated in the impugned order dated 16.08.2024 and rightly so.

12. Learned counsel contends that CCS (Leave) Rules do not permit grant of study leave beyond 36 months and Petitioner has been on study leave w.e.f. 20.10.2023. Petitioner is exploiting the entire system for his personal benefit and opts for a course and drops therefrom as and when he chooses to. When the Petitioner resigned from Poona Hospital, the seat was wasted mid-session and if he is now permitted to pursue the PG (General Medicine) course at Army Hospital (R&R), the DNB seat at HRH would get vacant and wasted and would also lead to shortage of manpower in the hospital. Petitioner has entered into a surety agreement by signing a bond which requires the Petitioner to indemnify Respondent No. 1 by paying a sum of Rs.10 lacs if he decides to leave the course mid-way. Moreover, as per the Rules, if any medical officer drops from the DNB course after joining on a seat reserved for in-service medical officer, he/she shall be debarred from availing the benefit of reservation for the entire duration of the course and will not be granted NOC for appearing in the PG entrance for this duration and in light of this Rule, permission cannot be granted to the Petitioner to join another PG course. Petitioner ought to have exercised his discretion carefully at the right time.

13. Heard learned counsels for the parties and examined their submissions.

14. The historic background of the Petitioner’s applications for various PG courses does reflect that Petitioner had initially applied for MD (General Medicine) at INHS ASVINI but did not join for reasons best known to him. Respondent No. 1 was processing his request for study leave at that time and cannot be blamed for Petitioner’s non-joining. Thereafter, Petitioner applied for DNB (General Medicine) at Poona Hospital and again requested for study leave. His application was processed and Petitioner joined the institute on 07.02.2023. However, he left the Institute and came back to Respondent No. 1 and on his request, the study leave period was regularised as EL. While the Petitioner claims that he left the Institute for health reason, counsel for Respondent No. 1 argues otherwise. Be that as it may, the fact remains that the seat fell vacant in mid-session owing to resignation of the Petitioner.