CIVIL WRIT PETITION NO.15226 OF 2009 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 23, 2009 Suresh Kumar Yadav .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms.Munisha Gandhi, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, an employee of Civil Services in the State of Haryana, was granted study leave from 29.7.2002 to 10.6.2003 for doing International Tax Program 2002-03 at Harvard Law College, Harvard University, Cambridge, USA. The petitioner had made a request for grant of study leave allowance and payment of tuition fee, for which a provision is contained in the Rules. This decision could not be comminuted to him in time, so he had to seek deferment of his admission to the next year i.e. 2003-04, which was granted. The CIVIL WRIT PETITION NO.15226 OF 2009 : 2 : petitioner accordingly was admitted to this programme. While sanctioning the study leave, however, a condition was imposed, requiring the petitioner to give an undertaking that he will not claim study leave allowance. The petitioner indeed furnished this undertaking that he would not claim study leave allowance but would now term this to be a forced undertaking obtained from him. By making reference to the rule position, the counsel would contend that once the study leave is granted, then allowances as permissible are to follow and can not be denied. Counsel would further contend that the respondents may have a right to refuse the leave but once the leave is granted, the respondents can not refuse study leave allowance, it being mandatorily permissible under Rule 8 of the Study Leave Rules, 1963 (for short “the Rules”). To explain the undertaking given by the petitioner, the counsel would submit that it was given on being forced by the circumstances and was not voluntarily and hence, would be invalid for being enforced against him. In support, reference is made to the case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and others, (1998) 5 Supreme Court Cases 87. This was a case, where, while promoting the person as a Junior Engineer as stop-gap arrangement, he was asked to give an undertaking that he would not claim promotion as of a right nor would he claim any benefit pertaining to the post. This condition was termed as unconscionable and such, which could not be enforced. The ratio of law laid down would not apply to the facts of the present case. A person has a right of consideration and then promotion. Leave certainly is a privilege and can not be claimed as a right. This can not CIVIL WRIT PETITION NO.15226 OF 2009 : 3 : be strictly said about a promotion. A privilege could be allowed on certain conditions, whereas promotion generally has to be without condition or at least with such conditions, which could legally be imposed. The petitioner was going on a study leave. He was going to enrich his education. He was granted salary for the period he remained on study leave. He prayed for grant of study leave on payment of study allowance. Obviously, this was not acceptable and that is how he was asked to give an undertaking that he will not claim study allowance. The petitioner readily agreed to give this undertaking. He now is terming this to be a forced condition. If he had not given this undertaking, the petitioner could have been denied the study leave, it being a privilege. He could not have then sought this leave as a matter of right. He can not, thus, claim this allowance as a right. Even a perusal of Rules 8 and 9 of the Rules, relied upon by counsel for the petitioner, would not make study allowance payable mandatorily, once the leave is granted. Rule 9 clearly provides that study allowance may be granted for a period of study leave but it shall not exceed twenty four months in all. The use of word “shall” in Rule 8 while providing that study allowance shall be granted for the period spent in prosecuting definite course of study at a recognized institution or in any definite tour of inspection of any special class of work, as well as for the period covered by any examination at the end of the course of study, in my view, would still not make the payment mandatory whenever study leave is granted. Once a leave or study leave is held to be a privilege, the grant thereof could not be with any mandate of paying allowance. The CIVIL WRIT PETITION NO.15226 OF 2009 : 4 : study leave granted to the petitioner was a conditional one and if he had not given this undertaking, the leave would not have followed. I am, thus, not inclined to accept this interpretation put by counsel for the petitioner on the construction of the Study Rules. The combined reading of Rules 8 and 9 of the Rules would apparently negate this view. The prayer made in the writ petition accordingly is declined. The writ petition is, therefore, dismissed. October 23, 2009 ( RANJIT SINGH ) khurmi JUDGE