Kailash Kashinathrao Pawar v. State of Maharashtra

13. Mr.Deshmukh, the learned counsel for the petitioner, would submit that both the said decisions would support the petitioner’s contention and the relief as prayed for by the petitioner be granted.

14. On the other hand, Mr. Kankal, the learned A.G.P. has supported the impugned decision. He has drawn our attention to the G.R. dated 19th March 2019 and more particularly clause 4.5, official translation of which reads thus: “4.[5] It is necessary that a Medical Officer shall provide service by remaining present at the Head Quarter. No incident, such as a seriously ill patient did not get treatment, post-mortem was not performed, should have happened during the said period on account of the absence of the Medical Officer. If such an incident had happened and if it is proved during the course of preliminary enquiry, and also if a Departmental Enquiry is ordered against the officer concerned, and if a Departmental Enquiry or Criminal Case is pending / has been initiated against the Medical Officer in connection with any other ground, then he shall be considered to be ineligible for appearing for the (NEET PG) Entrance Test.”

15. Mr. Kankal would submit that this is clearly a case where departmental proceeding is pending against the petitioner and, hence, the impugned decision to refuse the NOC to the petitioner, would not call for an interference.

16. Having heard the learned counsel for the parties and having perused the record, we find substance in the contentions as urged on behalf of the petitioner, for more than one reason. In our opinion, in the peculiar facts and circumstances of the case, and more particularly, having given due consideration to the charges as levelled in the departmental charge sheet, issued to the petitioner, in our opinion, pendency of the departmental enquiry, ought not to be a ground, so as to take away the right of the petitioner, as an in service candidate to pursue higher education. We are also of the clear opinion that clause 4.[5] of the Government Resolution (G.R.) dated 19th March 2019 is not applicable in the present case, so as to refuse a NOC to the petitioner, to pursue the P.G. course.

17. There is another fundamental issue namely that the right to education is a substantive legal right of a person and is regarded to be a right emanating from Article 21 of the Constitution. In our opinion, this would be true, even if higher education is to be pursued as an in-service candidate. The position in law in this regard can be seen from catena of decisions of the Supreme Court, which we discuss hereunder.

18. The Supreme Court in Miss. Mohini Jain Vs. State of Karnataka & Ors.[3] has held that the right to education flows directly from right to life. It was held that the right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The court in such context observed thus:

17. We hold that every citizen has a “right to education” under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. (emphasis supplied)

19. The above principles are reiterated by the Supreme Court in the case State of Tamil Nadu & Ors. Vs. K. Shyam Sunder & Ors.[4] wherein the Supreme Court observed thus:-

20. In Society for Unaided Private Schools of Rajasthan Vs. Union of India[5] the Supreme Court observed thus: “27. At the outset, it may be stated, that fundamental rights have two aspects—they act as fetters on plenary legislative powers and, secondly, they provide conditions for fuller development of our people including their individual dignity. Right to live in Article 21 covers access to education.................. The word “education” was read into Article 21 by the judgments of this Court. However, Article 21 merely declared “education” to fall within the contours of right to live.

21. The Supreme Court in Janhit Abhiyan Vs. Union of India[6] has quoted with approval the observations of the Supreme Court in Miss. Mohini Jain (supra) and Unni Krishnan, J.P. Vs. State of A.P.7, when the Supreme Court observed thus:-

261. In the case of Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645, the decision in the case of Mohini Jain (supra) came up for consideration before a larger Bench of this Court. While not approving the judgment in toto, the above concept was further expanded and refined. It was observed as under: (Unni Krishnan case, SCC pp. 731-35, paras 168-75)

46. It is the tyrants and bad rulers who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said:“Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction.” (Rauschning, The Voice of Destruction: Hitler speaks.) A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these Articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately.

22. It is thus clear, that right to education is implicit in the right to life and personal liberty guaranteed and flowing from Article 21 of the Constitution. Such right of an in-service candidate, who intends to pursue education, needs to be recognized, however, certainly, such pursuit to higher education would be governed by the terms and conditions of the employment, when it comes to the exigencies of service. This would certainly not mean, that such right can be denied or taken away, merely in view of the pendency of any departmental proceedings or criminal proceedings against the employee. In this context, it may also be observed that issuance of an NOC is with an object and reason that a candidate is required to be available to discharge the duties of public employment or for any justifiable reason, it is appropriate to not permit an employee to pursue further education as an in-service candidate which can only be for some genuine reason touching the employment. In such eventuality, the State Government as an employer would have an authority not to permit the in-service candidate to undertake the P.G.course, unless the employee fulfills the necessary criteria which may be prescribed under the Government policy. However, any criteria which is arbitrary or illegal which would per se take away the rights of higher education as recognized by the Supreme Court cannot be foisted on an in-service candidate. Moreover in fixing such norms, the State Government is required to be alive to the fact, that such employees were not privileged to complete their education in the present case, hence, there is nothing wrong to pursue further education as an in-service candidate.

23. It also cannot be overlooked that the State cannot have a policy, rule or regulation which would adversely affect the citizen’s pursuit to education which he intends to achieve, much less of those who are in employment, as right to education is now recognized to be a facet of the right to liberty under Article 21 of the Constitution of India. Further, Article 41 of the Constitution mandates the State to secure the right to education, as one of the directive principles of State policy. Also in-service candidate achieving higher education would ultimately enure to the public benefit.

24. Insofar as the facts of the present case are concerned, although the no objection of the petitioner, has not been rejected on the pendency of the criminal proceedings, however, considering Mr. Kankal’s submissions in the context of paragraph 4.[5] of the G.R. dated 19 March 2019 it can be seen that the criminal proceedings which are pending against the petitioner, are also proceedings which have arisen from a matrimonial dispute and in which a decree of divorce between the petitioner and his wife, has already been granted by the competent Court. It is also stated that the co-employee, against whom the petitioner’s wife had a grievance which was the subject matter of the FIR against the Petitioner, has also not lodged any complaint / FIR against the petitioner. It also appears from the departmental charge sheet, that the basis of the departmental enquiry is on the complaint as made by the petitioner’s wife who is already divorced and on some information which was part of a newspaper report, which was also based on her police complaint.

25. Be that as it may, today it cannot be ascertained as to what would be the outcome of the departmental proceedings and as to when the proceedings would stand concluded. However, merely for the reason that the departmental or the criminal proceeding of the nature in question are pending, the petitioner cannot continue to suffer on his pursuit and his intention to achieve higher education, and for which NOC was applied for.

26. In the light of the above discussion, we are of the view that the impugned decision of the respondent rejecting NOC to the petitioner is arbitrary as also discriminatory. The petitioner cannot indefinitely suffer on account of the departmental enquiry pending against him. Similarly, pending criminal case initiated by his former wife, cannot take away or extinguish the petitioner’s aspiration to achieve higher education/qualification. Such proceedings take long years to attain finality, in view of the hierarchy of appeals being provided both in the departmental proceedings or in the criminal proceedings. It would be hence, harsh and unreasonable to prohibit the petitioner to pursue his post-graduation till such proceedings attain finality. The precious years available to the Petitioner to pursue PG examination cannot be wasted.

27. In the aforesaid circumstances, we are inclined to allow the petition by directing the respondents to grant NOC to the petitioner to undertake NEET PG course. Hence, following order: ORDER a. The impugned decision dated 9th February 2024 rejecting the petitioner’s application for grant of NOC by the respondents to pursue PG Medical Education by undertaking NEET 2024 examination, is quashed and set aside. b. The respondents are directed to grant NOC to the petitioner within a period of two weeks from the date a copy of the order is made available. c. Needless to observe that if the petitioner, qualifies the PG NEETexamination, he shall undertake the P.G. course subject to the outcome of the departmental proceedings and an appropriate decision in that regard be taken by the State Government, in the event the departmental proceedings are decided against the petitioner. d. Disposed of in the aforesaid terms. No costs. (FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.)