CWP No. 14449 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 14449 of 2010 (O&M) Date of Decision : 30.08.2010 Dr. Jaswinder Singh .......... Petitioner Versus Union of India & others ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sudhir Nar, Advocate for the petitioner. Mr. Gurpreet Singh, Sr. Central Govt. Standing Counsel with Ms. Sangeeta Dubey, Central Govt. Standing Counsel. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 11777 of 2010 C.M. is allowed, short reply on behalf of respondents No.1 to 3 is taken on record. CWP No. 14449 of 2010 The petitioner has invoked the writ jurisdiction of this Court seeking quashing of order dated 4.7.2010 (Annexure P-12) whereby sanction of study leave was declined to the petitioner. The petitioner, also prayed for a writ of mandamus directing the respondents to sanction of the study leave. The undisputed facts are, that the petitioner after rendering more than ten years of unblemished service with the CWP No. 14449 of 2010 -2- ***** respondents, applied along with other 25 Medical Officers working with the respondents' department to appear in the Post Graduation Entrance Exams. In the seniority list maintained by the respondents, the petitioner was shown in the seniority list at Sr. No. 8. Vide sanction dated 26.11.2009 the competent authority permitted the petitioner to appear in the P.G. Entrance Exam 2010 i.e. Post Graduation Diploma in Anaesthesia (PGDA) with the condition, that in the event of selection for the course he would be permitted to join the institution / medical college, as per his seniority / on receipt of sanction of study leave, by the competent authority which was the Ministry of Home Affairs as per Annexure P-1. The petitioner appeared and qualified the entrance exam, and was allowed admission on 29.4.2010, in the Dayanand Medical College and Hospital, Ludhiana, Punjab vide Annexure P-2. In accordance with the result competitive exams, Dayanand Medical College and Hospital, Ludhiana Punjab, directed the petitioner to report at the Dumra Auditorium, Dayanand Medical College, Tagore Nagar, Ludhiana along with the requisite documents, and fees on 30.4.2010. On the date fixed for admission, the petitioner submitted the documents and deposited a sum of Rs. 2,83,000/- (Rupees two lac and eighty three thousand only) as provisional 1st year fee in favour of Dayanand Medical College and Hospital, Ludhiana vide receipt No. 40685 amounting to Rs. 2,70,000/- (Rupees two lac and CWP No. 14449 of 2010 -3- ***** seventy thousand only) and receipt No. 40688 amounting to Rs. 13,000/- (Rupees thirteen thousand only) vide (Annexure P-3) & (Annexure P-4) attached with the writ petition. The petitioner was issued provisional admission vide Annexure P-5, directing the petitioner to submit his joining through the head of the department by 2.5.2010. The petitioner was also directed to undergo medical examination on the date, to be notified, failing which the admission of the petitioner was to be cancelled. In view of the fact, that the study leave to the petitioner was not immediately sanctioned, he moved an application to the Principal, Dayanand Medical College and Hospital, Ludhiana for extending the joining period for the course of PGDA. On 1.5.2010, the petitioner moved application Annexure P-7, for sanction of study leave for Post Graduate Diploma in Anaesthesia, to the Director General, CRPF Head Quarter, C.G.O. Complex Lodhi Road, New Delhi so as to avoid the cancellation of his candidature. The petitioner also executed a bond in Form 7, as required under Rule 53(4) of CCS(Leave) Rules, 1972. On 3.5.2010, vide Annexure P-8 the Directorate General CRPF, recommended the case of the petitioner to the Deputy Director General (M), Directorate General of Health Services for issuing of certificate under Rule 50(3) of the CCS (Leave) Rules, 1972 stipulating therein, that it was essential to train more Medical Officer in the specialty (Anaesthesia). It was to encourage the serving Medical Officers to improve their professional qualification in CWP No. 14449 of 2010 -4- ***** various specialties by granting study leave. The certificate (Annexure P-9) under Rule 50(3) of the CCS (Leave) Rules, 1972 issued to the petitioner, reads as under :- “Certified that the study leave to Dr. Jaswinder Singh, Senior Medical Officer, CRPF for prosecuting PG Diploma in Anesthesia-2 years from Dayanand Medical College and Hospital, Ludhiana shall be valuable in increasing the efficiency of the said Medical Officer in the performance of his duties and will be in Public Interest.” The respondents failed to take any decision on the application / recommendation, made by the higher authorities for grant of study leave. On 2.7.2010, the petitioner was conveyed, that the Ministry Home Affairs has not sanctioned the study leave of the petitioner, in view of unfilled large vacancies. The order conveyed to the petitioner reads as under :- “To Dr. Jaswinder Singh, CMO Camp at P/Patri Fm. 163 BN No. L II 01/10-ST 04/07/10 U/CO Reg Study leave (.) Pl. JMU Sig No. G II -3/10 -ECII dtd. 23.6.10 – SR/B.O. Qte. (.) Study leave proposal in r/o Dr. Jaswinder Singh SMO Now CMO IRLA No. 5329 for prosecuting P.G. Diploma in Anaesthesia w.e.f. 2/5/10 was fwd. To DIG (Pers) and higher authy. Further fwded his case to MHA for sanction of study leave for period of 02 years w.e.f. the date of joining the course so as to enable said CMO to undergo P.G. Diploma in anaesthesia (.) As intimated by DIG (Pers) DTE vide their Ltr. CWP No. 14449 of 2010 -5- ***** Dtd. 11/6/10 MHA has not been sanctioned the study leave and turn down the file with the remarks that in view of large vacancy the proposal cannot be supported (.) Officer may pls. be informed accdly.(.) U/Qte(.) For info. In ref. To yr. Ltr. No. GII 5329/10- Dr. J.S. Dtd. 11/6/10 psem.” The petitioner challenged the impugned order by placing reliance on the standing orders dated 8.6.2009 issued by the Ministry of Home Affairs, regarding Post Graduate Study in various Medical Colleges, and detailment of Medical Officers for short refresher courses. The policy decision of the Home Ministry stipulated, that the study leave was to be granted to the Govt. servant, having more than five years service. The object of granting study leave was to widen the knowledge and professional competence of the medical faculty and Medical Officer, who could be encouraged to undertake the P.G. Course in the subjects which were not well represented, and Anaesthesia is one of the discipline which is not well represented, in the medical set up. According to the guide lines, Anaesthesia was one of the discipline, where there was shortage of the Specialists. The guidelines further provided, that permission for PG/ Diploma course, and study leave was to be granted to six MOs to undertake PG/ Diploma studies, in one of the specialties mentioned in the circular, which included the Anesthesia. The guidelines further provided, that not more than 6 medical officers would be sent on study leave, for the P.G. Courses. The chances given to the Doctors CWP No. 14449 of 2010 -6- ***** were restricted to three to qualify the test. The guidelines also provided, that if more than than 6 medical officers secured admission, permission to pursue the Post Graduate Course was only to be given to six medical officers, and the officer was to be selected strictly in accordance with the principle in the circular. The contention of the learned counsel for the petitioner was, that once the petitioner had fulfilled the criteria under the guidelines and also fell in the seniority, for pursuing the Course and was one of the six of the Medical Officers, the action of the respondents in rejecting his study leave, on the grounds, that large vacancies were unfilled, was totally untenable, arbitrary, illegal, and in violation of Article 14 of the Constitution of India, because at the time of granting permission to appear in the exams, the strength of the doctors available with the respondents was already known, and was not a fact which came to their knowledge after the passing of the test, by the petitioner. The learned counsel for the petitioner also contended, that on the principle of promissory estoppel, the respondents were restrained from declining the study leave, as in pursuance to the representation made by the department, the petitioner deposited the fee and had put in hard labour to pass the test. On notice, short reply has been filed on behalf of respondents No. 1 to 3, the facts referred to above were not disputed. CWP No. 14449 of 2010 -7- ***** The defence of the Union of India, in support of the impugned order was, that as per the judgment of the Hon'ble Supreme Court in the case of Mansukhlal Vithaldas Chauhan V. State og Gujarat 1997(7) SCC 622, the administrative authority has a discretion to determine the question, and the Court could not issue a writ of mandamus, to compel it to reach some particular decision. This ground of the respondents, deserves to be rejected straightway. The Hon'ble Supreme Court in this judgment held, that the writ of mandamus would lie if the decision making authority exceeds its powers or reached to a decision, which no reasonable person could have reached. Paras 25 to 30 of the judgment, reproduced in the written statement, read as under :- “25. This principle was reiterated in Tata Cellular vs. Union of India in which it was, inter alia, laid down that the Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers? 2. committed an error of law; CWP No. 14449 of 2010 -8- ***** 3. committed, a breach of the rules of natural justice; 4. reached a decision which no reasonable Tribunal would have reached; or 5. abused its powers. 26. In this case, Lord Denning was quoted as saying (SCC pp.681-82, para 83) "Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the Courts will not themselves take the place of the body to which Parliament has entrusted the decision. The Courts will not themselves embark on a rehearing of the matter : See Healey v. Minister of Health." 27. Lord Denning further observed as under : (p.682) "If the decision-making body is influenced by considerations which ought not influence it; or fails to take into account matters which it ought to take into account, the Court will interfere: see, Padfield v. Minister of Agriculture, Fisheries and Food." 28. In Sterling Computers Ltd. vs. M & N Publications Ltd. it was pointed out that while exercising the power of judicial review, the Court is concerned primarily as to whether CWP No. 14449 of 2010 -9- ***** there has been any infirmity in the decision- making process? In this case, the following passage from Professor Wade's Administrative Law was relied upon : (SCC p. 457 para 17) "The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the direction of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended." The undisputed facts stated above show, that no reasonable person could pass the impugned order. The respondents were not only knowing the strength of the doctors, but had taken a conscious decision to allow the Doctors as per seniority to pursue the PG course. Thereafter the petitioner was permitted to take the test as per the rules and guidelines, referred to above. Thereafter there was no occasion to deny the study leave to the petitioner on the ground of public interest. The Union of India also contested the petition, on the CWP No. 14449 of 2010 -10- ***** plea, that leave could not be claimed as a matter of right, as it was within the discretion of the competent authority to refuse the leave. There can be no dispute with the proposition of law, but at the same time the competent authority can not be allowed to act in an arbitrary manner as done in the present case. The petitioner was allowed to sit in the examination by granting him permission, after recording, that the study to be taken by the petitioner, was in public interest as the department was having shortage of Anaesthesia doctors. In spite of the fact, that the study to be undertaken, was as per guidelines issued by the Government, the selected candidate was refused leave, on a ground which was known at the time of granting permission to appear in admission test. The learned counsel for the Union of India in order to rebut the stand of the learned counsel for the petitioner, that respondents were estopped on the principal of promissory estoppel, to deny him leave, relied on the judgment of the Hon'ble Supreme Court in the case of Shrijee Sales Corporation and another Vs. Union of India (1997) 3 Supreme Court Cases 398, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “3. It is not necessary for us to go into a historical analysis of the case law relating to promissory estoppel against the Government. Suffice it to say that the principle of promissory estoppel is applicable against the Government but in case there is a supervening public equity, the CWP No. 14449 of 2010 -11- ***** Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. However, the Court must satisfy itself that such a public interest exists. The law on this aspect has been emphatically laid down in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. The portion relevant for our purpose is extracted below :- "It is only if the Court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enforce the promise against the Government. The Court would not act on the mere ipse dixit of the Government, for it is the Court, which has to decide and not the Government whether the Government should be held exempt from liability. This is the essence of the rule of law. The burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the Court would insist on a highly rigorous standard of proof in the CWP No. 14449 of 2010 -12- ***** discharge of this burden. But even where there is no such overriding public interest, it may still be competent to the Government to resile from the promise 'on giving reasonable notice which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position' provided of course it is possible for the promisee to restore status quo ante. If however, the promisee cannot resume his position, the promise would become final and irrevocable. Vide Emmanuel Ayodeji Ajayi v. Briscoe,." 4. Two propositions follow from the above analysis : (1) The determination of applicability of promissory estoppel against public authority/Government hinges upon balance of equity or “public interest”. (2) It is the Court which has to determine whether the Government should be held exempt from the liability of the "promise" or "representation". This judgment again does not advance, the case of the respondents. No reasons which may be germane to the object have been disclosed, to claim that it was in public interest to deny study leave. As already observed, reasons mentioned in impugned order were known to the respondents, when the decision was taken by the department, that it was in public interest, to allow the petitioner to take PG course. It is not understood as to how public interest CWP No. 14449 of 2010 -13- ***** changed after passing of admission test by the petitioner. The impugned decision, therefore, is totally arbitrary, thus, hit by Article 14 of the Constitution of India, besides being hit by principle of promissory estoppel, as it would not be in public interest to deny study leave to the petitioner at this stage. Consequently, this writ petition is allowed, the impugned order is quashed. The respondents are directed to grant study leave to the petitioner, within 15 days from the date of receipt of copy of this order. No costs. 30.08.2010 (VINOD K. SHARMA) 'sp' JUDGE