Dr. Ruchita Ghiloria & Ors. v. Medical Superintendent & Ors.

(i) The NOC dated 08.07.2020, which is on a standard format issued by respondent No.3 clearly states that the “signatory to the NOC is aware that the petitioners will be relieved from her parent office in case of her selection for the DNB training.” Respondents No.1 and 3 now seek to do a uturn and seeks to wriggle out of their own undertaking given in the NOC.

(ii) Further the act of respondents No.1 and 3 to deny the petitioners leave on the ground of the present pandemic/Covid- 19 situation is a surprising stand. Respondents No.1 and 3 themselves have given an NOC on 16.05.2020 and again on 08.07.2020 when the pandemic was very much in existence. There is no major change in the situation of the pandemic since May/July, 2020.

(iii) I cannot help noticing that the stand of respondents No.1 and 3 is also harsh on the petitioners. They have worked hard and appeared in the NEET PG 2020 exam and cleared the said exam after ex post facto permission from respondents No.1 and

3. They have participated in the counselling after permission from respondents No.1 and 3 and secured seats. All the hard work put in by the petitioners in the hope and zeal of improving their qualification /skill have been put to naught on account of the act of respondents No.1 and 3.

(iv) I also cannot help noticing that the selection process for

DNB seats(Post MBBS and Post Diploma) is over. The last date for joining is 15.10.2020. In case, for some reasons, the petitioners are not relieved, the seats which are kept for them would go waste as no other candidate can be permitted to join after counselling is over.

10. Keeping in view the above facts and circumstances, it would be in the interest of justice that respondents No.1 and 3 may reconsider the matter. The concerned authority from of respondents No.1 and 3 is requested to reconsider the matter in the light of the above noted facts and circumstances. A reasoned order may thereafter be passed by the concerned functionary. As time is short, the concerned functionary is requested to deal with the said issue within one week from today.”

5. In response to the above directions of this court, respondent No.1/Govt. of NCT of Delhi filed an additional affidavit dated 23.11.2020 in W.P.(C) 5987/2020. In the said affidavit, it has been stated that in larger public interest and as recommended by the Health Department, study leave to the mentioned doctors cannot be granted. It is stressed that the present situation is an emergent war like situation and study leave is not a matter of right. The competent authority as per CCS(Leave) Rules and the judgment of the Supreme Court in the matter of State of Punjab & Ors. vs. Dr.Sanjay Kumar Bansal, (2009) 15 SCC 168 can cancel or refuse study leave in larger public interest even after grant of NOC for appearing in the entrance exam.

6. Arguments were heard and judgment was reserved on 24.11.2020. To clarify certain aspects, the matter was listed for directions on 12.02.2021 before this court. On that date, learned counsel for respondent No.1 brought to the attention of this court an order dated 02.02.2021 passed in WP(C) No.499/2021 in the case of Dr. Rohit Kumar vs. Lt. Governor of Delhi & Ors., where it is pleaded that under similar facts and circumstances, the Coordinate Bench has dismissed the writ petition. Learned counsel also pointed out that against the said order dated 02.02.2021 an appeal has been filed before the Division Bench which was listed on that date i.e. 12.02.2021.

7. Today, I am informed that the Division Bench has reserved judgment in the appeal filed against the said order dated 02.02.2021.

8. A perusal of the said judgment of the 02.02.2021 in the case of Dr.Rohit Kumar vs. Lt. Governor of Delhi & Ors.(supra) shows that the facts are virtually identical to the facts of the present case. That was also a case where the petitioner had sought study leave to enable him to pursue MD/MS Course in Pediatrics from PGI, Chandigarh. The petitioner therein had applied for admission after taking requisite permission from respondent No.2 therein. DDU Hospital where the petitioner therein was working had issued the required certificate and an NOC to the petitioner. That was also a case where the seat in question was a sponsored seat. In those facts, the Coordinate Bench of this court held as follows:- “10. Having heard the learned counsel for the parties and perused the record, it is a fact that the petitioner while applying for the course in question, had taken the concurrence of the Authorities in the hospital. It is admitted by Ms. Luthra that the grant of study leave is not by the hospital authorities but by the Ld. Governor. No doubt, that as late as October 14, 2020, the respondent had granted permission to the petitioner to sit in INICET-2020 examination. There is also no dispute that the petitioner had cleared the said examination with a good rank. He is also a sponsored candidate from the respondent No.2 and the hospital where the petitioner is working, has also clearly expressed itself that it shall not require any substitute in place of the petitioner. But the fact remains that the decision has been taken by the Competent Authority i.e. Lt. Governor, Govt. of NCT of Delhi based on the prevailing COVID19 situation in the City that no study leave must be granted. No doubt, the initial order was passed by the Lt. Governor in July, 2020 and thereafter also in certain cases, the study leave has been granted but the fact remains that after October 22, 2020 when the order, which has been reproduced above was passed, no permission has been granted regarding study leave to the Doctors in the Govt. of NCT of Delhi because of the prevailing COVID-19 situation. In fact, I find that the case of the petitioner has been considered by the Competent Authority i.e. Lt. Governor as recently as January 19, 2021 and it was decided, based on the decision dated October 22, 2020, the request of the petitioner cannot be acceded to. xxx

12. From the above, it is clear that the Courts, in exercise of its power of judicial review, cannot sit as an Appellate Authority over the decision taken by the administration / management. Suffice would it be to state, that the decision has been taken, giving due regard to the exigencies, which may arise in the course of administration. 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.”

9. It is settled legal position that this court is bound by the judgment of a Coordinate Bench. This court is hence bound by the above judgment [Re.: Sant Lal Gupta & Ors. vs. Modern Corporative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336].

10. I may also note that learned counsel appearing for NBE/respondent No.2 Mr.Kirtiman Singh has stressed that dehors the above issue, the last date for joining the medical course has expired. He states that the last date for joining was 30.09.2020 which was extended up to 15.10.2020 by NBE vide notification dated 30.09.2020. The said date having expired, no student can be granted admission to a Post-Graduate Medical College as is now being sought.

11. The Division Bench of this court in Dr.Akshee Batra vs Union of India & Ors. (LPA No. 268/2020 dated 13.10.2020) on this aspect held as follows:- “15. In fact, even when seats remain vacant, as contended by the appellant in the present case, the Supreme Court has made it clear that extension of time cannot be granted to permit candidates to join. The following observations in Education Promotion Society for India & Anr. vs. Union of India & Ors. (2019) 7 SCC 38 clarify this position beyond controversy:-

6. In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the PG courses are lying vacant. It is stated that more than 1000 seats are lying vacant. In the affidavit filed by the UoI it is mentioned that as far as deemed universities are concerned there are 603 seats lying vacant. However, it is important to note that out of 603 seats lying vacant only 31 are in clinical subjects and the vast majority (572) that is almost 95% of the seats are lying vacant in non-clinical subjects. There is no material on record to show as to what is the situation with regard to the remaining 400- 500 seats. This Court however can take judicial notice of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed. If we permit violation of schedule and grant extension, we shall be opening a pandora's box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated

7. We may note that in the schedule prescribed, there are three rounds of counselling, the first round, the second round and the mop-up round. The mop-up round was to be completed by 31-5-2019 and. if some seats remain vacant even after the mop-up round it cannot be helped. Extension cannot be granted just because some seats are lying vacant without there being any other justification.

12. The last date for taking admission has lapsed. Hence, even otherwise, it is not possible to grant any relief to the petitioners.. (emphasis supplied)”

13. The writ petitions are accordingly dismissed. Pending applications, if any, also stand dismissed.

JAYANT NATH, J FEBRUARY 17, 2021 rb