# Dr. Bhawana v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Special Appeal No. 64 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bhawana-v-state-of-u-p-ors-51964
- **Pages:** 10

## Headnote

(A) Service Law - The Allahabad High Court
Rules, 1952 - Chapter VIII Rule 5 - Special
Appeal - Appointment to Public Post -
Medical Officer in Community Health
Center (Ayurvedic and Unani) - unfair
treatment or unfair policy - differential
treatment for grant of study leave - no
rational and intelligible criteria for treating
the two classes differently. (Para - 39)

(B) Word and Phrases - Sub-rule (2) of
Subsidiary Rule 146-A - 'ordinarily' - itself
is indicative that in given circumstances,
may be extraordinary circumstances, such
leave can be granted to a government
servant who has put in less than five years
of service - Present facts constitute
extraordinary circumstances. (Para -
24,32)

Appellant/Petitioner took an entrance exam for a
PG course - applied for Medical Officer post
before knowing PG course result - selected as a
Medical Officer - with a 2-year probation - Joined
PG course - Completed half of PG course - Joined
as Medical Officer - Applied for 12 months study
leave - to complete remaining half of PG course
(16-18 months) - Leave application was rejected
- citing no provision for study leave for a
probationer with less than 4 months of service -
Rejection referenced Rules 81-B(4), 84, 146(2),
157-A(4), and Financial Handbook Vol. 2 Part-II
- Appellant challenged rejection by filing writ
petition - dismissed by Single Judge - rejection
was unfair and discriminatory -hence appeal.
(Para -7,27,28)

HELD: - Appellant's appointment as Medical
Officer valid. Eligibility criteria and selection
process
were
properly
followed,
and
appellant was eligible for appointment
despite
participating
in
PG
course
examination. Both groups consist of doctors
(P.M.H.S. and Ayurvedic Services), and there
should be no discrimination. State can't have
different standards for similar situations.
Discrimination unacceptable. Not only was
study leave permissible, but it was also a
fitting case for granting study leave. (Para -
35,40)

Writ Petition & Special Appeal allowed. (E7)

List of Cases cited:

Krishna Kant Pandey Vs St. of Uttarakhand & ors.,
(2015) 6 SERVLR 85

## Text

1102 INDIAN LAW REPORTS ALLAHABAD SERIES
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----------
(2024) 5 ILRA 1102
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 64 of 2024

Dr. Bhawana ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Shivang Tiwari, Apporva Tewari, Vimalesh Kumar
Singh

Counsel for the Respondent:
C.S.C.

(A) Service Law - The Allahabad High Court
Rules, 1952 - Chapter VIII Rule 5 - Special
Appeal - Appointment to Public Post -
Medical Officer in Community Health
Center (Ayurvedic and Unani) - unfair
treatment or unfair policy - differential
treatment for grant of study leave - no
rational and intelligible criteria for treating
the two classes differently. (Para - 39)

(B) Word and Phrases - Sub-rule (2) of
Subsidiary Rule 146-A - 'ordinarily' - itself
is indicative that in given circumstances,
may be extraordinary circumstances, such
leave can be granted to a government
servant who has put in less than five years
of service - Present facts constitute
extraordinary circumstances. (Para -
24,32)

Appellant/Petitioner took an entrance exam for a
PG course - applied for Medical Officer post
before knowing PG course result - selected as a
Medical Officer - with a 2-year probation - Joined
PG course - Completed half of PG course - Joined
as Medical Officer - Applied for 12 months study
leave - to complete remaining half of PG course
(16-18 months) - Leave application was rejected
- citing no provision for study leave for a
probationer with less than 4 months of service -
Rejection referenced Rules 81-B(4), 84, 146(2),
157-A(4), and Financial Handbook Vol. 2 Part-II
- Appellant challenged rejection by filing writ
petition - dismissed by Single Judge - rejection
was unfair and discriminatory -hence appeal.
(Para -7,27,28)

HELD: - Appellant's appointment as Medical
Officer valid. Eligibility criteria and selection
process
were
properly
followed,
and
appellant was eligible for appointment
despite
participating
in
PG
course
examination. Both groups consist of doctors
(P.M.H.S. and Ayurvedic Services), and there
should be no discrimination. State can't have
different standards for similar situations.
Discrimination unacceptable. Not only was
study leave permissible, but it was also a
fitting case for granting study leave. (Para -
35,40)

Writ Petition & Special Appeal allowed. (E7)

List of Cases cited:

Krishna Kant Pandey Vs St. of Uttarakhand & ors.,
(2015) 6 SERVLR 85

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Om Prakash Shukla, J.)

1. Rejoinder affidavit filed today, copy
of which has been served to learned
5 All. Dr. Bhawana Vs. State of U.P. & Ors.
1103
Standing Counsel much earlier, is taken on
record.

2. Heard Shri Apoorva Tewari
along with Shri Shivang Tiwari, learned
counsel for the appellant and Shri V.P. Nag,
learned Standing Counsel for the State.

3. This is a Special Appeal under
Chapter VIII Rule 5 of the Allahabad High
Court Rules, 1952 challenging the judgment
and order dated 19.03.2024 passed by the
writ Court in Writ - A No. 2075 of 2024 by
which
writ
petition
of
the
appellant/petitioner has been dismissed.

4. In the aforesaid writ petition the
following reliefs had been sought:-

"a) issue a writ, order or direction
in the nature of certiorari to quash orders
dated 30.01.2024, passed by the Director,
Ayurvedic
services,
Uttar
Pradesh,
Lucknow, as contained in Annexure no. 1 to
the writ petition;
b) issue a writ, order or direction in
the nature of mandamus commanding the
respondents to grant the petitioner a study
leave of 12 (twelve) months in accordance
with the provisions laid down in the
Financial hand book;
c) Issue such other orders, which
this Hon'ble Court may deem just and
proper in favour of the petitioners; and
d) allow the petition with costs."

5. The facts of the case in brief are
that on 18.09.2021 an examination was held
for admission to P.G. Course, namely, M.
D.- Ayurveda Kayachikitsa, in which, the
appellant being eligible participated. It was
a three years course. Before the result of the
said examination could be declared an
Advertisement was issued on 23.11.2021 for
recruitment to the post of Medical Officer,
Community Health Center (Ayurvedic and
Unani) in the services under the State of
Uttar Pradesh. Written test was held on
31.07.2022.
The
appellant/petitioner
qualified the same. She was called for
interview which was held on 15.12.2022.
The result of the selection was declared on
11.01.2023 and the petitioner was one of the
successful candidates. Accordingly, an
appointment letter was issued to her on
01.09.2023. The appointment was on
probation of two years as Medical Officer in
the Pay-scale of Rs.15600-39100 Grade
Pay- 5400/- (Matrix Level - 10). The
appellant/petitioner joined her service on the
said post on 30.09.2023.

6. In the interregnum, the result of
the entrance test to the P.G. Course referred
above was declared and appellant/petitioner
was admitted to the said course. She took
admission on 01.03.2022 i.e. immediately
after
issuance
of
Advertisement
i.e.
23.11.2021 and possibly after having
applied for recruitment to the post of
Medical Officer, Ayurveda.

7. By the time, she joined on
30.09.2023 she completed almost one and
half years study in the P.G. Course and 16
months study remained, as, informed by
Shri Apoorva Tewari, learned counsel for
the
appellant.
Accordingly,
the
appellant/petitioner applied for leave on
30.11.2023, however, the said application
was rejected on 30.01.2024, meaning
thereby, in view of this rejection the
appellant/petitioner could not complete P.G.
Course. Consequently, she challenged the
said decision by filing the aforesaid writ
petition out of which this special appeal
arise. The rejection order is on record and
the only reason assigned for rejecting the
leave prayed for by the appellant/petitioner
is that there is no such provision for grant of
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
study leave to a probationer, especially as,
the appellant/ petitioner had put in less than
four months of service. Reference was made
in this regard to Rule 81-B(4) and 84 of the
Financial Handbook Vol. 2 Part-II and
subsidiary Rule 146(2) as also Rules 81-B of
Financial Handbook Vol. 2 Part- II to IV
Chapter- 10 and Subsidiary Rule 157-A (4).
The learned Single Judge has dismissed the
writ petition with reference to the Rules
referred in the order impugned before it as
also Rule 84.

8. Learned counsel for the appellant
in order to assail the judgment of the writ
Court and the order impugned before it has
invited our attention to subsidiary Rule
104(b) which relates to grant of leave to
probationers as also to the Rules made under
Rule 104(b) i.e. Rule 170. He has also
invited out attention to subsidiary Rule 146A and use of the word 'ordinarily' therein in
the context of probationers. According to
him, this itself indicative of the fact that it
does not exclude or preclude the grant of
leave including the Study Leave to
probationers also of course in exceptional
circumstances, such as, the one existing in
the
case
at
hand
wherein
the
appellant/petitioner has completed half the
course and midway had to join her services
on the post of Medical Officer, Ayurveda in
State of Uttar Pradesh. He also submits that
higher qualification which she will acquire
consequence to such study leave being
granted will ultimately benefit the public at
large, as, she would be better equipped and
qualified to render of her services in Medical
Department of the State. Moreover, he has
referred
to
the
discrimination
being
practiced by the State of U.P. in this regard
by extending the joining time of freshly
recruited Doctors of Provincial Medical
Health Services (P.M.H.S.) vide order dated
14.03.2024. The submission in this regard is
that the Doctors of the Ayurvedic Services
and P.M.H.S. are similarly situated as far as
Study Leave and an application for
Fundamental
and
Subsidiary
Rules
contained in the Financial Handbook
referred hereinabove are concerned. A
person who does not even join the service he
is being given extension up to three years to
complete the P.G. Course that too without
any bond in the case of those recruited to the
P.M.H.S., but, in a case, such as, the
appellant/petitioner who has in fairness after
taking leave from the Institution where she
was pursuing her P.G. Course and was half
way through, has joined the services and
thereafter, duly applied for grant of leave but
the same has been rejected on the mistaken
ground that there is no provision under
which the probationer, especially one who
had barely put in a few months of service,
could be granted such leave. The submission
is that this reasoning can not be justified in
view of the Rule position and in view of the
Government Order dated 14.03.2024 when
the State extends the joining of persons who
have not even joined the service to facilitate
completion of their study. He also says that
in the fact the appellant/petitioner is ready to
give a personal bond that after completing
her P.G. Course she will join her services
and serve the public in the State of U.P. as
per the terms and conditions of her service.

9. Learned Standing Counsel on the
other hand has tried to persuade the Court
that
the
Government
Order
dated
14.03.2024 has no application because they
have been given the benefit before joining
the services and therefore, such recruits to
the P.M.H.S. are differently placed than the
appellant/petitioner who has already joined
but has put in less than four months of
service. He has also invited our attention to
subsidiary Rule 146-A to contend that such
leave is not admissible. He has also referred
5 All. Dr. Bhawana Vs. State of U.P. & Ors.
1105
Fundamental Rule 67 and 84 to contend that
leave is not a matter of right and it is the
discretion of the Authority to refuse or
revoke leave of any description and this
right is reserved to the Authority empowered
to grant it. The U.P. Fundamental Rule 84,
according to him, clearly mentions that the
leave may by granted to Government
servants, on such terms as the Governor may
be 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. According to him,
subsidiary Rule 164- A (2) does not permit
grant of Study Leave to a Government
Servant of less than five years service in a
routine manner. He also refers to subsidiary
Rule 170 in support of his contention. As
regards subsidiary Rule 157 regarding
extraordinary leave the submission is that it
is a separate leave and was not applied by
the
appellant/petitioner.
Extraordinary
Leave can not be granted for study purposes.
It
is
also
his
submission
that
the
appellant/petitioner was aware of the fact
that she had applied for being recruited to
the post of Medical Officer, Ayurved on
23.11.2021 itself and therefore, she would
have desisted from taking admission to the
P.G. Course subsequently on 01.03.2022.
Knowingly having done so, she has to face
the consequence and she has to be treated in
terms of the Rules applicable and not merely
on the asking of the appellant/petitioner.

10. Referring to the Government
Order dated 14.03.2024 and discrimination
alleged by the appellant/petitioner we had
passed an order on 03.04.2024 which reads
as under:-

"1. Let the opposite parties file
affidavit specifically addressing the issue as
to how the claim of the petitioner for study
leave could have been rejected by the
Director, Ayurvedic Services vide order
dated 30.01.2024 on the ground that there is
no provision for grant of such leave to
probationers whereas even as per the
impugned judgment passed by the Writ
Court, Subsidiary Rule 146A(2) provides
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, meaning thereby
in exceptional circumstances it can be
granted. This can be the only understanding
of said provision in view of the use of word
'ordinarily' and also as in the context of
doctors of PMHS and doctors of Dental
Service,
Government
Order
dated
14.03.2024 has been passed, which permits
extension of joining of such persons, who
have been selected for appointment as
Medical Officer in PMHS for a period of six
months and even beyond the date till three
years with the permission of department,
whereas the case of the petitioner is better
placed in the sense that she has very fairly
joined the service after seeking leave from
the Institution where she was pursuing the
P.G. Course and has then applied for study
leave. How double standards can be
adopted in respect of apparently similarly
placed candidates/Government Servants
albeit appointed or proposed to be
appointed in different services, but under the
same employer, i.e. the State Government
and in any event if the study leave is not
permissible why on the same principle
extraordinary leave cannot be granted,
especially in view of S.R. 157A(IV) of the
Subsidiary Rules made under the Financial
Handbook.
2. List this case on 18.04.2024 as
fresh.
3. In the meantime, the appellant
may move an application before the
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
Institution where she was pursuing her P.G.
Course seeking indulgence for providing
further leave, if it is otherwise permissible."

11. In response to which a counter
affidavit has been filed by the State. We have
gone through the counter affidavit and we do
not find any rational and intelligible criteria
mentioned therein for differentiating the
Doctors who have been recruited for joining
as Medical Officers in the Provincial
Medical Health Services and such as the
appellant/petitioner
who,
after
such
recruitment as Medical Officer Community
Health Center (Ayurvedic and Unani) has
already joined the service, for the purposes
of grant of study leave.

12. The Government Order dated
14.03.2024 extends the joining of such recruits
in the P.H.M.S. up to three years to enable such
recruits to the Provincial Medical Health
Service to complete their study/course or to
acquire a specialization to which they have
already been admitted, meaning thereby, even
though, they have been recruited they have not
joined the service and the services of such
Doctors would not be available to the Public
and the State Government for different periods
up to three years depending upon the facts of
each case because they will be pursuing their
courses of study but the request of the
appellant for study leave has been rejeted on
the ground that Rules do not permit the same.
The appellant is no way differently situated.

13.

In
the
case
of
the
appellant/petitioner, she in all fairness joined
on 30.09.2023 and thereafter applied for
study leave. No doubt, she is a probationer
and she has put in less than four months of
service, but, she is better placed than those
recruits in P.M.H.S. who have not even joined
the service. Moreover, the extension of
joining of such recruits to P.M.H.S. has been
done without asking for any bond from them,
meaning thereby, it is quite a possibility that
some of the them after completing their P.G.
or whatever courses they are pursuing, may
not join, but, no security has been taken in
this regard by the State from them. This is
apparently
discriminatory
so
far
as
appellant/petitioner is concerned. Moreover,
learned Standing Counsel, on being asked to
show which rule permits the benefit granted
to recruits of P.M.H.S. Cadre as discussed
above, he could not show any Rules but
contended that they had not yet joined the
service, whereas, the petitioner had already
joined the service, therefore, they stand on a
different footing. Such a contention can
hardly be accepted as this can not form any
rational basis for differential treatment for the
purpose of grant of study leave/ or extension
of joining, for completing the course to which
both of such category have already been
admitted.

14. Now, we come to the Rule
position. Rule 84 of the Fundamental Rules
reads as under:-

"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."

15. The Study Leave Rules as
contained in the Subsidiary Rules have been
made by the Government under this
Fundamental Rule 84.

16. Fundamental Rule 104 reads as
under:-

''104. During their period of
probation or apprenticeship, probationers
5 All. Dr. Bhawana Vs. State of U.P. & Ors.
1107
and apprentices are entitled to leave as
follows:
(a) if appointed under contract in
the United Kingdom with a view to
permanent service in India, or if appointed
in the United Kingdom posts created
temporarily with the prospect, more or less
definite, of becoming permanent:
(i) to such leave as is prescribed in
their
contracts,
or,
when
no
such
prescription is made;
(ii) (1) when the period of probation
is not less than three years, to the same leave
which would be admissible if they held
permanent posts; or
(2) when the period of probation is
less than three years, to leave on average
pay up to one eleventh of the period spent on
duty, to which may be added, on medical
certificate, leave on half average pay;
provided that the total leave granted under
this clause shall not exceed three months
reckoned in terms of leave on average pay;
and
(b) If appointed otherwise, to such
leave as is admissible under rules framed
by the Government on this behalf.

17. Fundamental Rule 104 provides
that during their period of probation or
apprenticeship,
probationers
and
apprentices are entitled to leave as
mentioned therein. Now, Clause (a) thereof
deals with those appointed under the
contract in the United Kingdom with which
we are not concerned, but, Clause (b) thereof
which applies to this case, goes on to state
that if appointed otherwise i.e. otherwise
then what is mentioned in Clause (a), a
probationer would be entitled to such leave
as is admissible under rules framed by the
Government on this behalf.

18. Now, there are Rules which
have been made under FR 104- (b). These
rules are contained in Chapter XVII. We are
concerned with Chapter XVII of the
Subsidiary Rules. For the case at hand it is
Subsidiary Rule 170 which is relevant and it
reads as under:-

"170. Leave may be granted to a
probationer if it is admissible under the
leave rules which would be applicable to
him if he held his post substantively
otherwise than on probation."

19. Now, in this very context we
may refer to Subsidiary Rule 146-A
contained in Chapter XI-A and has been
made by the Governor under Rule 84 of the
Fundamental Rules under the heading
'Study Leave Rules'. Rule 146- A reads as
under:-

"146-A. The following rules have
been been made by the Governor to
regulate the grant of additional leave to
Government servants for the study of
scientific, technical or similar problems, or
in order to undertake special courses of
instruction. These rules relate to study
leave only. They are not intended to meet the
case of Government servants deputed to
other countries at the instance of the
Government, either for the performance of
special duties imposed on them or for the
investigation of specific problems connected
with their technical duties. Such cases will
continue to be dealt with on their merits
under the provisions of Rules 50 and 51 of
the Uttar Pradesh Fundamental Rules.
These rules apply to the Public Health and
Medical Research Departments, the Civil
Veterinary Department, the Agricultural
Department, the Education Department,
the Public Works Department and the
Forest Department (except in respect of
Continental tours, to which special rules
apply). The rules may be extended by the
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
Government to any Government servant
not belonging to any of the departments
mentioned above in whose case they may be
of opinion that leave should be granted in
the public interests to pursue a special
course of study or investigation of a
scientific or technical nature."

20. Fundamental Rule 67 is also
relevant and it reads as under:-

"67. Leave cannot be claimed as of
right, when the exigencies of the Public
service so require, discretion to refuse or
revoke leave of any description is reserved
to the authority empowered to grant it."

21. Fundamental Rule 67 clearly
means that if exigencies of Public service so
require any prayer for leave can be refused
and can not be claimed as a matter of right
and discretion to refuse or revoke leave of
any description is reserved to the authority
empowered to grant it. Now, discretion
obviously has to be exercised keeping in
mind the object and intent of the Rules and
also in a reasonable manner. Discretion can
not be exercised unfairly and unreasonable
merely on whims or fancies, clearly not to
discriminate or in a manner which may
result in discrimination.

22. Now, we come to Fundamental
Rule 84 which provides that 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.
Fundamental Rule 84 permits grant of leave
for study whether scientific, technical or of
any other nature referred therein subject of
course to the terms as the Governor may be
rule or order prescribe.
23. Now, Subsidiary Rule 146-A
has been framed under Fundamental Rule
84. We have already quoted it above. It is
under the heading 'Study Leave Rules'. The
said rule applies only to Government
servants which the appellant/petitioner
before us is. The said rule has been made by
the Governor to regulate the grant of
additional leave to Government servant for
the study of scientific, technical or similar
problems, or in order to undertake special
courses of instructions. These rules relate to
study leave only. From a reading of the said
Rule it is clear that these rules are in addition
to other Rules admissible to Government
servants including the extraordinary leave
under Subsidiary Rule 157. The rule
specifically states that they apply to the
Public
Health
and
Medical
Research
Departments,
the
Civil
Veterinary
Departments and other departments, therefore,
the rule clearly envisages situation where the
Officers and employees of such departments
may require study further in addition to the
educational qualifications already acquired by
them and therefore, the Rule caters to such
situation. In fact, the rule further goes on to
state that the rule may be extended by the
Government to any Government servant not
belonging to any of the departments
mentioned therein in whose case they may be
of opinion that leave should be granted in the
public interest to pursue a special course of
study or investigation of a scientific or
technical nature, therefore, there is an element
of public interest implicit in the grant of such
study leave and Subsidiary Rule made by the
Governor itself recognizes it and extend the
same even to those departments which are not
specifically mentioned under Subsidiary Rule
146-A, subject of course to there being public
interest involved.

24. Thereafter, Sub-rule (2) of
Subsidiary Rule 146-A, inter alia, provides
5 All. Dr. Bhawana Vs. State of U.P. & Ors.
1109
that study leave should not ordinarily be
granted to Government servant of less than
five years' of service or to government
servant within three years of the date at
which they have the option of retiring. The
use of the word 'ordinarily' itself is
indicative that in given circumstances, may
be extraordinary circumstances, such leave
can be granted to a Government servant who
has put in less than five years of service.

25. Fundamental Rules were
framed prior to independence, therefore, the
reference therein to Public Health and
Medical Departments has to be understood
accordingly in the light of the departmental
structure existing in the State of U.P. at
present and the Rules have to be applied
accordingly to corresponding departments
including Medical and Health Departments
such Ayurveda and Unani Medicine and it is
not the case of the opposite parties that the
position is otherwise.

26. From the Rules discussed above
the ground for rejection of leave requested
by the appellant is that there is no provision,
can not be sustained as, apparently there is a
provision in the said Rules even if hedged
with conditions whether these conditions are
satisfied in the case of the appellant is to be
considered.

27. Now, against this backdrop,
we
consider
the
case
of
the
appellant/petitioner. We find that it is not
a case where she has joined service barely
two three months earlier and thereafter has
applied for admission to the P.G. course
i.e. after joining, though, the Rules do not
specifically debar such an option also, but,
it is a case where on 18.09.2021 itself she
had appeared in an entrance examination
for admission to a P.G. Course as referred
above, but, before the result could be
declared the advertisement was issued
inviting applications for recruitment to the
post
of
Medical
Officer, Ayurveda.
Obviously, she being eligible applied for
the same and ultimately qualified. In the
interregnum, the result of the entrance
examination for admission to P.G. Course
was declared before the written test for
recruitment was held and she joined the
P.G. Course on 01.03.2022. Ultimately, on
being successful and the result of
recruitment having been declared, after
taking due leave from her educational
institution, she joined her service as
Medical Officer, Ayurveda on 30.09.2023
and then applied for grant of study leave
on 30.11.2023.

28. Now, the situation is that she
has completed half of the Course and only
half remains to be completed, which,
according to the learned counsel for the
appellant/petitioner, would take another
16 to 18 months, however, she had applied
for study leave of 12 months.

29. In this very context, of course
he has submitted that she is better placed
than those who have not even joined the
P.M.H.S. but their joining has been
extended for the same purpose and has
pleaded discrimination.

30. Now, the term 'ordinarily' used
in Subsidiary Rule 146-A(2) would include
an extraordinary circumstance as mentioned
hereinabove, as, she was already pursuing a
P.G. Course prior to selection for the post of
Medical Officer and was halfway through
on the date of her joining, especially as,
ultimately, the higher qualification which
she wants to acquire and is in fact in the
process of acquiring, the same will
ultimately benefit her services which are to
be rendered to the public at large as a
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Servant, therefore, the element
of public interest is also satisfied.

31. We are, therefore, not satisfied
with the stand of the State Government that
the Subsidiary Rule 146-A does not contain
any provision for grant of study leave to a
person who is a Government servant and
who has put in less than five years of service
or for that matter who has put in less than
four months of service. No such period of
less than four months of service is
mentioned in the said rules nor any such rule
has been pointed out.

32. We are of the considered
opinion that use of the word 'ordinarily' in
the said Rule permits the grant of study
leave in extraordinary circumstances (not
ordinarily or in a routine manner) and we are
also of the opinion that facts before us
constitute extraordinary circumstances as
already discussed hereinabove, more-so
because the appellant must have deposited
fee etc. and incurred other expenses for the
said Course , all of which will go waste.

33. We may in this very context
refer to Subsidiary Rule 170 which has been
made under Fundamental Rule 104(b) and
says that leave may be granted to a
probationer if it is admissible under the
leave Rules which would be applicable to
him if he held his post substantively
otherwise than on probation, meaning
thereby, if the probationer was substantively
appointed on a post after completed of
probation and would be entitled to certain
leaves, then, those leaves would also be
admissible to a probationer. This rule also
does not come in the way of the
appellant/petitioner in the grant of study
leave in the factual circumstances as already
noticed hereinabove, rather it supports her
case.
34. No doubt, Rule 67 is there, but,
then, the State Government has not rejected
the leave application with reference to any
Public exigency nor with reference to
Fundamental Rule 67, in fact, rejection is on
the ground that it is impermissible, there
being no such provision for a probationer,
which is factually and legally incorrect as
already discussed.

35. Moreover, the State can not
blow hot and cold in the same vein. If there
is no such provision for a probationer where
is such provision for a new recruit who is yet
to join service who have been given this
benefit
by
Government
Order
dated
14.03.2024. To say that the latter have not
joined
service
as
yet,
therefore,
Fundamental Rules/ Subsidiary Rules do not
apply to them, they form a different class
vis-a-vis the appellant who has already
joined service, is an argument made only to
be rejected. It is accordingly rejected as
being discriminatory and arbitrary. Once, it
has extended the joining of new recruits to
the P.M.H.S. who have not even joined the
service, that too, up to a period of three
years, then, it cannot say that in the case of
the appellant-petitioner, who is the only
person seeking such leave after having
joined, albeit in the Ayurvedic Services, she
is not entitled to similar benefit, especially
as, she claims leave for only 12 or 18 months
as the case may be. Both the classes consist
of Doctors, one of P.M.H.S. Service, the
other of Ayurvedic Service and there can be
no discrimination in this regard. Rule 67 can
not be pressed into service in the case of the
appellant-petitioner while giving a go by to
it while issuing the order dated 14.03.2024
in respect of new recruits, who are yet to join
the P.M.H.S. Service.

36. We are convinced that any
differential treatment to the
5 All. Rambha Singh Vs. State of U.P. & Ors.
1111
appellant/petitioner as has been metted out
to her by the order which was impugned
before the Writ Court, would be a clear case
of discrimination, which the Constitution
abhors in letter and spirit.

37. The reasons in the order, which
were impugned before the writ Court, are
not sustainable in view of the above
discussion. The learned Writ Court has also
lost sight of the rule position and the
extraordinary
situation
as
discussed
hereinabove.

38. As regards the reliance placed
by Shri V. P. Nag, learned Standing Counsel
upon a judgment of Uttarakhand High Court
reported in (2015) 6 SERVLR 85; Krishna
Kant Pandey Vs. State of Uttrakhan and
Ors., there was no case of discrimination in
the said case, as has been set up by the
appellant/petitioner herein, successfully.
Moreover, that was a case, where the
petitioners before Uttarakhand High Court
had not joined hence the Court held that they
had no right under Fundamental Rule 170,
but, here in this case, similarly placed
persons who have not joined PMHS, have
been granted the benefit by the State of U.P.
vide Government Order dated 14.03.2024,
therefore, the said judgment does not apply
here.

39. At this stage, Shri V. P. Nag,
learned Standing Counsel submits that the
order of rejection of the leave in respect of
the appellant/petitioner is dated 13.01.2024,
whereas, the benefit granted to the new
recruits of P.M.H.S. is by subsequent
Government Order dated 14.03.2024. This
hardly improves the situation. This has
nothing to do with the point of time when
the claim of the appellant/petitioner was
rejected and the date on which the request of
new recruits to P.M.H.S. was acceded. It is a
case of unfair treatment or unfair policy. It is
a clear case of differential treatment for
grant of study leave. There can be no
rational and intelligible criteria for treating
the two classes differently.

40. We do not consider the plea of
the appellant- petitioner that extraordinary
leave would also be admissible, as, we are
of the considered opinion that not only it
was permissible to grant study leave to the
appellant,this was a fit case where study
leave should have been granted.

41. For all these reasons, we set
aside the judgment of Writ Court as also the
order impugned before it.

42. The Director, Ayurvedic
Services is directed to issue necessary orders
afresh in the light of what has been
discussed hereinabove within a period of
three weeks from the date a certified copy of
this order is submitted. The appellant is also
permitted to move a fresh application, if
required.

43. Accordingly, the Special Appeal
as also the writ petition is allowed.
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(2024) 5 ILRA 1111
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 229 of 2019

Rambha Singh ...Appellant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Appellant: