# Dr. Bhawana v. State of U.P. & Ors. 472 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 3 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-19
- **Case number:** Writ A No. 2075 of 2024
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bhawana-v-state-of-u-p-ors-472-indian-law-reports-allahabad-series-51662
- **Pages:** 4

## Headnote

A. Service Law - Finance Hand Book - Part
III, Ch. XI A, Rule 146 A (2) - UP
Fundamental Rules - Rule 84 - Study
leave
-
Petitioner's
application
was
rejected as he has less than five years of
service and he is on probation for a period
of two years from the date of her joining -
Validity challenged - Held, whole Chapter
XI A deals with study leave and it is to be
read conjointly and not separately -
Chapter
XI-A
clearly
leads
to
the
conclusion that restriction of 5 years
completed service would be applicable to
the initial study leave as well. Otherwise,
it would mean that if initial leave granted
and requires extension for any reason
then there has to be a gap of certain
period before completing of 5 years
service for extra leave. This would not be
intention of the provision nor it seems to
be practicable. (Para 12 and 14)

Writ petition dismissed. (E-1)

## Text

3 All. Dr. Bhawana Vs. State of U.P. & Ors.
471
being two statutes: general or specific with
the latter treating the common subject
matter more specifically or minutely than
the former. Corpus Juris Secundum, 82
C.J.S. Statutes § 482 states that when
construing a general and a specific statute
pertaining to the same topic, it is necessary
to consider the statutes as consistent with
one another and such statutes therefore
should be harmonized, if possible, with the
objective of giving effect to a consistent
legislative policy. On the other hand, where
a general statute and a specific statute
relating to the same subject matter cannot
be reconciled, the special or specific statute
ordinarily will control. The provision more
specifically directed to the matter at issue
prevails as an exception to or qualification
of the provision which is more general in
nature, provided that the specific or special
statute clearly includes the matter in
controversy. (Edmond v. U.S., 520 U.S.
651, Warden, Lewisburg Penitentiary v.
Marrero).

36.
The
maximgeneralia
specialibus non derogant is dealt with in
Volume 44 (1) of the 4th ed. of Halsbury's
Laws of England at paragraph 1300 as
follows:

"The principle descends clearly
fromdecisionsof
theHouse
of
LordsinSeward v. Owner of "TheVera
Cruz", (1884) 10 App Cas 59and the Privy
Council inBarker v Edger,[1898] AC 748
and has been affirmed and put into effect
on many occasions....If Parliament has
considered all the circumstances of, and
made special provision for, a particular
case, the presumption is that a subsequent
enactment of apurelygeneral character
would not have been intended to interfere
with that provision; and therefore, if such
an
enactment,
although
inconsistent
insubstance, is capable of reasonable
andsensible application without extending
to the case in question, it is prima facie to
be construed as not so extending. The
special provision stands as an exceptional
proviso upon the general. If, however, it
appears from a consideration of the
general enactment in the light of admissible
circumstances
that
Parliament's
true
intention was to establish thereby a rule of
universal application, then the special
provision must give way to the general."

16. In view of above, the order passed
by the Regional Joint Director of Education
dated 21.12.2021 is hereby quashed.
Petitioner and 5th respondent having given
substantive appointment on 30.12.2016 and
they having joined on the same day as they
were issued appointment order, it will be
taken that they have been substantively
appointed together on 30th December, 2016
and the petitioner being senior in age is
held senior to 5th respondent in view of
provision as contained under Regulation
3(1) (a) and (b) of the Chapter III of
Intermediate Education Act, 1921. The
Committee
of
Management
shall
accordingly
pass consequential
orders
regarding inter se seniority
between
petitioner and 5th respondent for all
purposes.

17. Thus writ petition is accordingly
allowed with no order as to cost.
----------
(2024) 3 ILRA 471
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.03.2024
BEFORE
THE HON'BLE MANISH KUMAR, J.

Writ A No. 2075 of 2024

Dr. Bhawana ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
472 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Vimalesh Kumar Singh, Shivang Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - Finance Hand Book - Part
III, Ch. XI A, Rule 146 A (2) - UP
Fundamental Rules - Rule 84 - Study
leave
-
Petitioner's
application
was
rejected as he has less than five years of
service and he is on probation for a period
of two years from the date of her joining -
Validity challenged - Held, whole Chapter
XI A deals with study leave and it is to be
read conjointly and not separately -
Chapter
XI-A
clearly
leads
to
the
conclusion that restriction of 5 years
completed service would be applicable to
the initial study leave as well. Otherwise,
it would mean that if initial leave granted
and requires extension for any reason
then there has to be a gap of certain
period before completing of 5 years
service for extra leave. This would not be
intention of the provision nor it seems to
be practicable. (Para 12 and 14)

Writ petition dismissed. (E-1)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard.

2. Present petition has been
preferred for quashing of the impugned
order dated 30.01.2024 passed by the
respondent
no.
2-Director
Ayurvedic
Services, U.P. , Lucknow whereby the
application for grant of study leave for a
period of 12 months for pursuing P.G.
Course has been rejected and with a further
prayer to direct the respondents to grant the
petitioner study leave of 12 months in
accordance with the provisions laid down
in Chapter XI A of the Financial Hand
Book.

3. Learned counsel for the
petitioner has submitted that petitioner was
selected and appointed vide appointment
letter dated 01.09.2023 on the post of
Medical Officer, Community Health Center
(Ayurvedic and Unani), Ayush Department,
Govt of U.P..

4. It is further submitted that at the
time of appointment of the petitioner, she
was in the midst of her P.G. Course and to
complete the same, she had moved an
application for grant of study leave as
provided under Part III of Financial Hand
Book Volume II Part II to III.

5. The said application of the
petitioner has been rejected by the
respondent no. 2 by placing reliance on
Rule 146 A (2) on the ground that the
petitioner has less than five years of service
and as the petitioner is on probation for a
period of two years from the date of her
joining.

6. It is further contended that the
application of the petitioner has been
rejected by the respondent no. 2 by
wrongly placing reliance on the provision
which is not applicable as far as it is related
to the grant of extra leave. The case of the
petitioner is covered under Rule 146 A (3)
which deals with study leave and the said
provision does not provide any such
restriction that a Government Servant of
less than five years of services is not
entitled for the study leave.

7. On the other hand, learned
Standing Counsel has submitted that the
petitioner
since
the
date
of
appointment/joining
is on
two
years
probation period during which the leave
cannot be granted and there is no illegality
in the impugned order passed by the
respondent no. 2.
3 All. Dr. Bhawana Vs. State of U.P. & Ors.
473

8. After hearing learned counsel for
the parties and going through the record of
the case, the position which emerges out in
the present case is that under Part III,
Chapter XI A comes and these are ancillary
Rules made by the Governor while
exercising its power under Rule 84 of the
U.P. Fundamental Rules. For convenience
Rule 84 is quoted hereinbelow:-

"84. Leave may be granted to
Government servants, on such terms as the
Governor may by rule or order prescribe,
to enable them to study scientific, technical
or similar problems or to undergo special
courses of instructions. Such leave is not
debited against the leave account."

9. Chapter XI A of Part III of the
Financial Hand Book deals with study
leave. The Rule 146 A (2) provides that
study leave should not be ordinarily
granted to a Government Servant of less
than five years of service. For convenience,
the same is quoted hereinbelow:-

" 146 A (2):- Extra leave on half
average pay for the purpose of study leave
may be taken either in or outside India. It
may be granted to Government Servant of
any of the department named above by the
Government Servant, provided that when a
Government Servant borne permanently of
the cadre of one department is serving
temporarily in another department the
grant of leave is subject to the condition (a)
that local arrangements can be made to
carry on his work in his absence, and (b)
that the recommendation of the department
to which he is permanently attached is
obtained before leave is given. Study leave
should not ordinarily be granted to
Government Servant of less than five years'
service or to Government Servants within
three years of the date at which they have
the option of retiring."

10. Rule 146 A (3) provides the
period of leave which could be granted and
for convenience, the same is quoted
hereinbelow:-

" 146 A (3):- Study leave shall be
granted with due regard to the exigencies
of the public service. In no case the grant
of this leave, in combination with leave
other than extraordinary leave or leave on
medical
certificate,
shall
involve
an
absence of over 28 months from a
Government Servant's regular duties, or
exceed two years in the whole period of a
Government Servant service; nor shall it be
granted with such frequency as to remove
him from contact with his regular work or
to cause cadre difficulties owing to his
absence on leave. A period of twelve
months at one time will ordinarily be
regarded as a suitable maximum, and shall
not be exceeded save for exceptional
reasons"

11. Reading of Rule 146 A (2) which
is general provision of the Financial Hand
Book
is
applicable
upon
all
the
Government Servant who applies for the
study leave whereas Rule 146 A (3)
provides for not granting any study leave
by combining with any other leave. It
determines the maximum period for grant
of study leave. Rule 146 A (3) is restrictive
in nature which puts restriction for
maximum period of study leave.

12. If the submission of learned
counsel for the petitioner is accepted that
for study leave there is no condition that it
would not be granted before 5 years of
service, if that is to be accepted then it
would lead to absurd result. The whole
474 INDIAN LAW REPORTS ALLAHABAD SERIES
Chapter XI A deals with study leave and it
is to be read conjointly and not separately.

13. In case, the Government Servant
having less than 5 years of service has been
granted the study leave, suppose for a
period of 12 months and the duration of the
course has been extended by 6 months or
one year or more, in that case if the
application for extra leave is moved by a
Government Servant then the competent
authority cannot reject the same on the
ground that the Government Servant has
not completed five years of service so the
extra leave could not be granted. The
period of service is to be seen initially at
the time of grant of study leave not at the
time of granting extra leave beyond 12
months which could normally be given as
per Rule 146 A (3).

14. There is no force in the
submission that condition of completion of
5 years of service before grant of leave
applies only for grant of extra study leave
and not in a case where leave is initially
applied for. The whole reading of the
provision under Chapter XI-A clearly leads
to the conclusion that restriction of 5 years
completed service would be applicable to
the initial study leave as well. Otherwise, it
would mean that if initial leave granted and
requires extension for any reason then there
has to be a gap of certain period before
completing of 5 years service for extra
leave. This would not be intention of the
provision nor it seems to be practicable.
The restriction of 5 years completion of
service would more relevant for a fresher as
in the present case who has joined the
service a few months back and is still on
probation. It cannot be said that for grant of
initial study leave condition of completion
of 5 years of service would not apply but it
will applicable for extra study leave. This
argument does not appeal to reason. The
whole Chapter XI-A has to be read
harmoniously to achieve the purpose of the
provisions.

15. In view of the facts, circumstances
and discussion made hereinabove and as
the petitioner has completed only six
months of services that too on probation
her application has rightly been rejected by
the respondent no. 2 by placing reliance on
Rule 146 A (2) of the Chapter XI A of the
Financial Hand Book Volume 2 Part 3.

16. Writ petition is devoid of merit,
hence dismissed.
----------
(2024) 3 ILRA 474
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2024
BEFORE
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 3023 of 2024

Amarjeet Singh ...Petitioner
Versus
Smt. Shiv Kumar Yadav ...Respondents

Counsel for the Petitioner:
Ms. Rama Goel Bansal, Ms. Shalini Goel

Counsel for the Respondents:
C.S.C.

A. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Ss. 4 and
21(2) - Maintainability of proceeding -
Neither tenancy agreement was executed
nor information regarding tenancy was
given to the Rent Authority - Effect -
Held, a conjoint reading of the various
sub-sections of Section 4 of the Act
reveals that the intention of legislature for
requiring both the landlord and the tenant
to inform to the Rent Authority in the form
specified in the First Schedule within a