IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7954 of 2007 Raj Kumar Singh, son of Sri Kamal Ray, resident of At Chhitnawan, P.O. Daudpur, P.S. Maner, District Patna (Bihar), presently residing at Qr.No. B519, IGIMS Campus, Sheikhpura, Patna … Petitioner Versus 1. The State Of Bihar through the Secretary, Department of Health, Bihar Govt., Patna 2. Indira Gandhi Institute of Medical Sciences, Sheikhpura, Bailey Road, Patna through the Director, Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna 3. The Director, Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna 4. The Deputy Director, Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna 5. The Chief Administrative Officer, Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna 6. The Superintendent, Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna … Respondents ---------------------------------- 3. 13.10.2011 Heard Mr. Rajendra Narayan, learned counsel for the petitioner and Mr. V.R.P.Singh, learned counsel for Indira Gandhi Institute of Medical Sciences as also learned counsel for the State. The petitioner in this writ application has assailed an order dated 26.5.2006 and a consequential order dated 20.11.2006 denying him payment of salary for the training period i.e. 4.7.2005 to 31.12.2005. Mr. Narayan would submit that the petitioner is a permanent employee of Indira Gandhi Institute of Medical Sciences (I.G.I.M.S.) and by virtue of past precedent he was entitled to get full salary for the period of training. In this regard Mr. Narayan has placed reliance on an order of the Institute dated 13.9.2004, as contained in Annexure 7, which according to him should have been followed also when the petitioner was selected for a training programme in the month of July, 2005. In this regard 2 he has laid stress on the recommendation on the application filed by the petitioner for admission to the training course wherein the Superintendent of I.G.I.M.S. had made certain favourable recommendation in favour of the petitioner. On the basis of the said recommendation and the past precedent Mr. Narayan would proceed that when the Govt. of India also in its communication dated 7.12.2005 had desired that the I.G.I.M.S. in future should depute its employees for training as on duty with full salary, nothing should come in the way of the petitioner in receiving the benefit of payment of salary for the training period. Mr. Singh, learned counsel for I.G.I.M.S., on the other hand referring to paragraphs no. 6 to 9 of the counter affidavit reading as follows:- "6. That the petitioner had himself requested IGIMS to allow him to undergo Medical Record Technician Training Course from 04.07.2005 to 31.12.2005 at Safdarjung Hospital, New Delhi/JIPMER, Pondichery and he was selected to undergo the said training course at Safdarjung Hospital, New Delhi and accordingly letter No. Z. 22013/2/2005-CBHI dated 18.05.2005 (Annexure-3) was issued stating, inter alia, that the petitioner would be entitled to stipend at the rate of Rs. 3,750 per month subject to the condition that he does not claim dearness allowance for the training period from the parent/sponsoring organization. 7. That accordingly the petitioner was allowed leave without pay for the said period with a further stipulation that no TA/DA would be payable to the petitioner for attending the said training programme (vide Annexure-4) 8. That it may be stated here that at the relevant time there was acute shortage of staff in Medical Record Section and as stated above the petitioner was allowed to attend the said course at his own request. 9. That the petitioner has been paid stipend at the rate of Rs. 3,750 per month during the training course from Safdarjung Hospital, New Delhi as 3 stipulated in the letter dated 18.5.2005(Annexure-3)." would submit that the petitioner had applied on his own for undergoing to a training programme course and the connected application form filled up by him, as contained in Annexure 2, will itself go to show that the remarks given by the Medical Superintendent of I.G.I.M.S. as with regard to past service record of the petitioner of being a good worker and that receiving training by him for a better career prospect by virtue of becoming trained would not mean that the petitioner was actually sent for training in the interest of the Institute. He would in fact also distinguish that the earlier order which was passed on 13.9.2004 sending the petitioner on deputation and training was on the job training at the instance of the Institute and that is how he was not only paid his salary for the whole period of one month as duty leave but also traveling and other expenses as permissible under the Rules of the Institute. He would accordingly submit that when the petitioner on his own volition had made selection of a course and had taken admission, the I.G.I.M.S. had no obligation to also make provision for payment of salary for the period of training or meet T.A./ D.A. expenses and that is how in the order that was issued on 2.7.2005 it was made clear that the period between 4.7.2005 to 31.12.2005 in which he was to undergo training at his own initiate was to be treated as leave without pay for which no T.A./D.A. was admissible. Mr. Singh accordingly would submit that once the petitioner had accepted the aforementioned terms and conditions 4 imposed in the office order dated 2.7.2005 he could not have later on claimed the full payment of salary or the entire period of his absence as duty leave with full pay. In the considered opinion of this Court every employee and employer is bound by a contract of service.. Such service contract is contained in the service conditions. There is no such service condition for an employee of I.G.I.M.S. which lays down that if the employee will keep on getting him selected and admitted in a number of training courses on his own accord, the employer I.G.I.M.S. will have to pay salary for such advance training to be received by the employee concerned. The concept of on the job training and the deputation of an employee at the instance of an employer with a compulsion on the employee to join such training can definitely make the employee entitled to claim payment of salary for full period but if such training course is joined by the employee on his own volition, usually the provision of study leave can be followed. In the case of I.G.I.M.S. there is however no such specific provision for study leave and at least nothing has been brought on record by the learned counsel for the petitioner despite an opportunity given to him as recorded in the earlier order of this court dated 26.9.2011 when this Court had adjourned the matter to enable the petitioner to bring on record any statutory provision by which I.G.I.M.S. was bound to follow the Rules of Govt. of India or the direction of the Govt. of India in the matter of laying down of service conditions which may entitle the person to claim salary for the period he is absent from duty and 5 is undergoing training on his own volition in some other Institute. As noted above, nothing has been brought on record which can justify the claim for payment of salary for the training period. There can also be no comparison in one month training course in which the petitioner was sent on deputation by the I.G.I.M.S. in which the employer I.G.I.M.S. rightly had undertaken to not only pay salary but also T.A./D.A. expenses. That was the part of the package of that training course which the petitioner had to undergo under the orders/ compulsion inflicted on him by the employer. The same analogy, however, will not be applicable in the case of the petitioner once he selects himself for undergoing and taking any admission in any course of his own volition. As a matter of fact Column Nos. 1 to 14 of the application form for admission to training course for Medical Record Technicians and Medical Record Officers, as contained in Annexure 2, would itself go to show that the petitioner had applied for this course in which any person working in Central Government/ State Government/ Local Govt. Bodies/ Public Sector Undertakings/ Autonomous Govt. Establishments engaged in preparation, handling and maintenance of medical and health data were eligible to seek admission. The very fact that this training course was opened for a number of categories including private organisation as clearly specified in the brief details of the course reading as follows: “Brief details of courses:- 1. Medical Record Technician: * Course duration : 6 months 6 * Stipend admissible : Rs. 3750 p.m. if D.A. not availed from sponsoring organization * Location of Training:Safdarjung Hospital New Centre Delhi and JIPMER Pondicherry Eligibility for Course:- 1) Non-medical official employed at Group-C and above levels in Central Govt./ State Govt./ Local Govt. Bodies/ Public Sector Undertakings/ Autonomous Govt. establishments and engaged in preparation, handling, and maintenance of medical and health data. Applications of candidates from registered Non-Govt. establishment involved in medical and health fields will be considered only against any vacancy existing after considering the eligible candidates from Govt. establishments indicated above. 2) should have successfully completed 10+2 (12 years) schooling with English as one of the subjects, recognized by Board/ University. 3) should have experience in English typewriting with speed of not less than 30 word per minute. The certificate will be awarded to only those candidates who successfully complete the course.” (underlining for emphasis) should be by itself an answer to the entire argument advanced by Mr. Narayan inasmuch as I.G.I.M.S. being represented by the petitioner that he was to receive stipend of Rs. 3750 per month had relieved him for undergoing training despite crunch of staff in I.G.I.M.S. for a long period of six months. Here was infact a training course in which any employee whether working in Government establishment or autonomous organisation or even 7 non-Government sector was eligible to take admission with an assured stipend of Rs. 3750/- per month. Such was never the concept of the earlier training course undergone by the petitioner in All India Institute of Medical Science when he was deputed in 2004 for a period of one month to undergo training at AIIMS New Delhi the instance of I.G.I.M.S. and at least nothing to this effect has been brought on record by the petitioner. It, therefore, becomes clear that each of the training programme by different organisations had its own facets and they cannot simply be compared only on the ground that the petitioner was on both the occasions relieved from his parent employer i.e. I.G.I.M.S. for undergoing training programme. As a matter of fact once the petitioner had accepted the order of I.G.I.M.S. dated 2.7.2005 reading as follows: “INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, SHEIKHPURA, PATNA-14 OFFICE ORDER With the approval of the Competent Authority, at N/P-29 in the file No. MS/ 2000 (Manpower for M.R.Section), Sri Raj Kumar Singh, L.D.C. (M.R. Cell) is hereby allowed to attend Medical Record Technician Training Course from 4.7.2005 to 31.12.2005 at Safadarjung Hospital, Ansari Nagar, New Delhi- 110029. For above-mentioned training Sri Raj Kumar Singh is hereby allowed Leave without pay for the said period. No T.A./D.A. will be paid for attending the said training programme. Sd/- Medical Superintendent 8 IGIMS, Patna.” it would be futile for him to contend that he could later on claim full salary for the period of training. In fact by his conduct also the petitioner did not do so as would be manifest from his own application dated 2.7.2005 filed by him immediately after receipt of the aforesaid order which reads as follows:- lsok esa eq[; iz'kklh inkf/kdkjh b0 xk0 vk0 laLFkku 'ks[kiqjk iVuk&14 fo"k; %& izf'k{k.k vof/k ¼Ng ekg½ rd mikftZr vodk'k Lohd`r djus gsrqA egk'k;] lfou; fuosnu gS fd eseks ua0 2754@Adm(MS) ds vuqlkj eq>s iz0 ,e0 vkj0 Vh0 dh izf'k{k.k gsrq N% ekg dh vof/k rd fcuk osru ds Hkstus dk vkns'k gqvk gSA eSA ,d vYi osru Hkksxh deZpkjh gwW ftlds dk bruh vof/k rd fcuk osru ds izf'k{k.k ikus esa dkQh dfBukbZ;ksa dk lkeuk djuk iM+sxkA vr% Jheku ls fuosnu gS fd eq>s fnukad 04-07-2005 ls 03-01-2006 rd ¼N% ekg½ dk esjk mikftZr vodk'k Lohd`r djus dh d`ik dh tk,A eSa blds fy, vki dk lnk vkHkkjh jgwWxkA g0@& jktdqekj flag fu-o-fyfid esfMdy jsdkMZ lsDlu b-xk-vk-laLFkku 'ks[kiqjk iVuk&14 It thus becomes clear that the petitioner despite being aware of the earlier facility of deputation with one month traning at AI.I.MS. New Delhi with full benefit of salary T.A. D.A. and duty leave had only requested that in stead of his leave without pay he should be granted to earned leave so that he could receive salary. The petitioner even on 2.7.2005 infact never claimed that 9 he should be given the same facility of full payment of salary alike the last time when he was sent on training to A.I.I.M.S. for one month vide order of I.G.I.M.S. dated 13.9.2004. It thus becomes clear that the petitioner became wiser only after completion of training and probably on account of some self sought recommendation by the training authority who had while forwarding the representation of the petitioner made some sort of observation that in future the I.G.I.M.S. should only send such candidate whose full salary was paid by the employer. Such casual observation of the institution imparting training can have no binding effect on an independent autonomous organisation which I.G.I.M.S. is specially when the said training course was also having a specific clause of making payment of Rs. 3750/- per month as stipend to outside candidate who were receiving any financial assistance from their employer. This Court fails to understand the imposition of such condition by the training imparting institution which had never put such a condition in the prescribed form when the petitioner was sought to be sponsored by I.G.I.M.S. for training programme on 26th April, 2005. It thus becomes clear that the recommendation of the Central Bureau of Health Intelligence of the Director, General of Health Services, dated 7.12.2005 was not binding on the I.G.I.M.S., inasmuch as the Board of Management of I.G.I.M.S. only gets one representative from the Govt. of India and there is nothing in the service condition framed by the I.G.I.M.S. by which it is bound to follow the orders or direction of the Govt. of India. In any event 10 the letter dated 7.12.2005 had only contemplated that in future the candidates sponsored for CBIII inservice training should be sent on deputation as on duty with full salary but that never contained a clause for the petitioner to be also reimbursed his full salary. Thus such letter of the Govt. of India had no binding effect on the I.G.I.M.S. which is an independent autonomous organization and is run by its own Rules and Regulations. At this stage Mr. Narayan would point out that on account of petitioner being granted extraordinary leave without pay his date of increment was shifted and that there was a threat of the said period being treated as a break in service. Mr. Singh, learned counsel for the I.G.I.M.S., has however immediately clarified by referring to paragraph 11 of the counter affidavit that the said period of absence of the petitioner from duty has not been treated as an unauthorized absence from duty. Mr. Singh seems to be correct inasmuch as I.G.I.M.S. in Paragraph no. 11 of the counter affidavit has taken a categorical stand in the following terms:- "That with regard to the statement made in paragraph 9 of the writ petition it is stated that the petitioner has been treated by IGIMS for all other purposes "on duty", but on leave without pay as stipulated in the order dated 02.07.2005. In this connection it is reiterated that the petitioner has been paid stipend at the rate of Rs. 3,750 per month for the training period by Safdarjung Hospital, New Delhi." Once this aspect becomes clear that the petitioner 11 only has been made to avail extraordinary leave without pay between 4.7.2005 to 31.12.2005 without loosing anything further and with no adverse effect on his service career, this Court must hold that any action earlier taken by the I.G.I.M.S. either with respect to deferring the date of his increment or prejudicing him in any manner in the total length of his service is impermissible. None-the-less as the I.G.I.M.S. itself has pointed out in its counter affidavit that the petitioner is not going to be affected adversely in any manner, this Court must hold that the petitioner’s grievance even on this score is wholly misconceived. Mr. Narayan fairly submits that the petitioner in view of having drawn Rs. 3750/- per month as stipend in the training course is no longer interested in getting earned leave for the said period, as was originally prayed by him on 2.7.2005. Therefore, that should be the end of the matter, inasmuch as the petitioner in that case will be bound by the office order dated 2.7.2005 relieving him for joining the said training programme for the period 4.7.2005 to 31.12.2005 on specified terms and conditions including no payment of salary for the aforesaid period. In that view of the matter, this Court does not find any error in the two orders assailed in this writ application and this application, therefore, being devoid of any merit is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/