IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 6765 of 2010. Reserved on 01.06.2011. Decided on 05.07.2011. _____________________________________________________ D.S. Gurang. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Ms. Jyotsna Rewal Dua, Advocate. For the respondents. : Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: The Himachal Pradesh University issued prospectus for Government of Himachal Pradesh for entrance test of Post Graduate Degree (MD/MS) and Diploma Courses in Indira Gandhi Government Medical College, Shimla for academic session 2002-2004/2005. According to the prospectus, two seats were provided for the specialty of Radio-Therapy, but the admission was to be made subject to final permission of the MCI/GOI. Similarly, two seats for Post Graduate Diploma Courses in Orthopaedics (D. Ortho) were permitted to be started by the MCI, which were yet to be recognized. Petitioner was working as G.D.O.. He submitted an application, pursuant to which, he was permitted to sit in the entrance test on 29.12.2002. Petitioner was selected on the basis of counseling 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - held on 18.09.2003 in the specialty of M.D. Course in Radio- Therapy. Petitioner joined the three years’ course. However, he tendered his resignation vide Annexure P-7 on 9th December, 2004. The same was accepted and the petitioner was relieved on the same day and was directed to join his duties at Phagli. He submitted a representation for regularizing this period. The same was turned down by the competent authority on 28.03.2007 and it was decided to recover the actual amount of leave salary given to the petitioner together with interest thereon at the rates in force on Government loan. The period spent during incomplete P.G. course was regularized as “Extra Ordinary Leave”. Petitioner, aggrieved by Annexure P-12, preferred an Original Application bearing O.A. No. 1512/2007 before the learned erstwhile Himachal Pradesh Administrative Tribunal, which was transferred to this Court and was assigned CWP(T) No. 15313 of 2008. The petition was disposed of by this Court on 30.03.2010 and Annexure A-12, dated 28.03.2007 was quashed, since the petitioner was not heard before the issuance of same. Thereafter, the Principal Secretary (Health), Government of H.P. heard the petitioner. However, he up held the order dated 28.03.2007 (Annexure A-12) vide Annexure P- 14, dated 15.09.2010. 2. Ms. Jyotsna Rewal Dua, learned counsel for the petitioner has strenuously argued that the period, the petitioner has spent while pursuing M.D. Course was to be regularized and the amount could not be recovered as per Annexure P-12, dated 28.03.2007 and order dated 15.09.2010. - 3 - 3. Mr. R.P. Singh, learned Assistant Advocate General has drawn the attention of the Court to Rule-63 of the Central Civil Services (Leave) Rules, 1972 and the terms and conditions contained in the prospectus. He has justified the issuance of letters dated 28.03.2007 and 15.09.2010. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. It will be apt at this stage to refer to the terms and conditions contained in the prospectus. A bare perusal of Annexure P-1 makes it abundantly clear that petitioner and similarly situate persons were put to caveat that two seats in M.D. Course in the specialty of Radio-Therapy were being introduced, but the admission was to be made subject to final permission of the MCI/Government of India. Similarly, two seats for Post Graduate Diploma Courses in Orthopaedics (D. Ortho) were permitted to be started by the MCI, which were to be recognized. Petitioner applied for Post Graduate Diploma Course in the specialty of Orthopaedics (D. Ortho). However, he was selected in 3rd counseling held on 18.09.2003 for M.D. Course in Radio-Therapy. He started the course in 2003. He tendered his resignation on 9th December, 2004. It will be apt at this stage to reproduce the text of letter dated 9th December, 2004, which reads as under: “Sub:- Resignation from M.D. Post Graduation Radiotheraphy Cancer. Sir, Respectfully, I have to submit that due to unavoidable circumstance, I am not able to pursue my post graduation study(MD RT). I therefore submit my resignation today dt. on 09.12.2004 F/N. - 4 - Kindly allow me to leave the department and join at the Director of Health Services, H.P. Shimla, for the further newly posting.” 6. In sequel thereto, the petitioner was relieved on the same day, i.e., 9th December, 2004 and the Director of Health Services adjusted the petitioner at Civil Dispensary, Phagli on 16th December, 2004. Petitioner has made several representations for the regularization of study leave under Rule- 63. The same was finally turned down by the State on 28th March, 2007 and the decision, as noticed above, was taken to recover the actual amount of leave salary given to the petitioner together with interest thereon at the rates in force on Government loan. The Principal Secretary (Health) up held the order dated 28.03.2007 (Annexure A-12) vide Annexure P-14, dated 15.09.2010. The Principal Secretary has given a finding that petitioner knew that the P.G. Degree Course in discipline of Radiotherapy was not recognized, but was only permitted to be started as per the terms and conditions contained in the prospectus. The Principal Secretary (Health), Government of Himachal Pradesh has come to the right conclusion that the petitioner has only stated that he has tendered his resignation from the Course due to unavoidable circumstances. He has referred to CCS (Leave) Rules, 1972, according to which, a Government Servant on completion of study leave is required to submit the certificate of his examination. In the instant case, petitioner has failed to do so. - 5 - 7. Ms. Jyotsna Rewal Dua, learned counsel for the petitioner has strenuously argued that since the course in question was not recognized by the MCI, his client has no option to resign from the same. There is no merit in this contention. Petitioner knew throughout at the time when he submitted an application that M.D. Course in the discipline of Radiotherapy was being introduced for the first time and the admission was subject to approval of M.C.I.. This reason was also not stated in the resignation letter dated 09.12.2004. The reason mentioned in the resignation letter is that he could not complete the Course due to unavoidable circumstances. Petitioner cannot be permitted to take advantage of his own wrong. He has availed the study leave and has left the Course mid-way without completing the same. There is a detailed procedure provided under CCS (Leave) Rules, 1972, the manner in which an application for study leave is to be submitted, sanctioning of study leave and entitlement to leave salary during the study leave. However, it is provided in sub-rule (5) (a) that on completion of the course of study, the Government servant shall submit to the authority which granted him the study leave, the certificates of examinations passed or special courses of study undertaken, indicating the date of commencement and termination of the course with the remarks, if any, of the authority in charge of the course of study. In the instant case, petitioner could not submit the certificate of his examination since he has not completed Course. A plain reading of Rule-63 - 6 - makes it abundantly clear that in case a Government servant fails to complete the course of study and is unable to furnish the certificates, as provided under sub-rule(5)(a) of Rule-53 of the CCS(Leave) Rules, 1972, he is required to refund the amount mentioned therein. Thus, there is no illegality in the issuance of orders dated 09.12.2004 and 15.09.2010. Now, as far as order dated 9th February, 2007 is concerned, the same will apply prospectively, but the case of the petitioner is required to be looked into in view of the then existing provisions, i.e., Rule-63 of the Central Civil Services (Leave) Rules, 1972. 8. There is also another larger issue involved in this petition. Petitioner has chosen to seek admission in the course knowing fully well the caveat to which he was put as per the terms and conditions of the prospectus. He has left the course mid-way. In this manner, an another deserving candidate has been deprived of the admission to the M.D. Course in Radiotherapy. The seats in M.D. Courses are limited and the competition is very stiff. In case the petitioner was not desirous of continuing with the course, he should not have sought admission at the first instance. His action has resulted in loss of one seat, against which, an another candidate on the basis of entrance test dated 29.12.2002 could have been admitted. The action of the petitioner has harmed the larger public interest. The State needs the services of specialists as per the reply filed by the respondent-State. The courses are initially not recognized, but they are recognized by the MCI after their completion. - 7 - 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge July 05, 2011. (bhupender) - 8 - `