IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.12082 of 2008 Date of Decision: July 28, 2009 Sunila Sharma .....PETITIONER(S) VERSUS The State of Punjab & Another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. R.K. Chopra, Senior Advocate, with Ms. Maninder, Advocate, for the petitioner. Ms. Charu Tuli, Senior Deputy Advocate General, Punjab, for the respondents. . . . AJAI LAMBA, J (Oral) This judgment shall dispose of two petitions viz. Civil Writ Petition No.12082 of 2008 titled `Sunila Sharma vs. The State of Punjab & Another’ and Civil Writ Petition No.11200 of 2008 titled `Dr. Khushpal Sandhu vs. The State of Punjab & Another’ as they involve similar questions of law and facts. For exact reference, file of CWP No.12082 of 2008 is taken up. This civil writ petition has been CWP No.12082 of 2008 [2] filed under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of mandamus directing the respondents to grant special leave to the petitioner for the purpose of self employment as provided in Instructions issued by the State of Punjab on 8.5.2002 (Annexure P-1). It has been brought out that the petitioner, while working as lecturer in Hindi subject in Government College for Women, Amritsar, applied for leave for going abroad to meet her husband. The leave was sanctioned from 1.7.2007 to 31.5.2011, vide Orders Annexure P-4 and P-5. However, on account of certain circumstances, the petitioner could not avail of leave. Instructions, Annexure P-1, provide for grant of five years’ special leave to Government employees for the purpose of self employment. Certain conditions have been laid in Instructions and a person fulfilling the same could apply. Be that as it may, the petitioner applied for five years special leave for the purpose of self employment under Instructions, Annexure P-1. The application was forwarded by the Office of Principal, S.R. Government College CWP No.12082 of 2008 [3] for Women, Amritsar to the Director, Education Department, Punjab, vide Communication dated 28.6.2008 (Annexure P-6). Leave has not been sanctioned hence the petition. Learned counsel for the petitioner states that once instructions have been issued after a conscious decision had been taken at the level of Council of Ministers, the same could not have been denied at the Secretary level. Learned counsel states that the instructions are required to be applied uniformly and the petitioner is entitled to sanction of leave. Learned counsel for the respondents has drawn the attention of the Court towards Order passed by the Hon’ble Supreme Court of India in Civil Appeal No.4532 of 2009 arising out of SLP(C) No.29265 of 2008, titled `State of Punjab & Others vs. Dr. Sanjay Kumar Bansal’ to contend that the issue has been addressed by the Hon’ble Supreme Court of India. It has been held that such a policy adopted by the State does not confer any right on an employee. I have considered the issue. Exact reference is required to be made to judgment dated 16.7.2009 rendered by the Hon’ble Supreme Court of India in Civil Appeal No.4532 of 2009 arising out of SLP(C) No.29265 of 2008, titled CWP No.12082 of 2008 [4] `State of Punjab & Others vs. Dr. Sanjay Kumar Bansal’. Relevant portion reads as under:- “Leave granted. The short question which arises for determination in this case is whether the High Court was right in directing the Administration to grant special leave of five years for self employment to the respondent on the ground of alleged discrimination in grant of such special leave to others and not to the respondent. Special leave is not a matter of right vested in the employee. It depends on the administrative exigencies. In the present case the respondent is working as a Medical Officer. He had applied for special leave for three years under the Scheme which is Annexure P-3 collectively in the Special Leave Petition Paper Book. We have gone through Annexure P-3. It merely categorizes employees who are entitled to apply for special leave and those who cannot apply for special leave. Such policy does not confer any right on the applicant to obtain special leave. On facts, the question of striking down the Order of Administration does not arise for the simple reason that in the counter the Administration has stated that shortage of doctors is one of reasons for not granting special leave. In our view these are matters which fall in the category of "administrative exigencies" and this Court cannot sit in Appeal thereon. In the circumstances, the High Court had erred in coming to the conclusion that the Management had erred in refusing the application for want of reasons. Even on the case of discrimination it is for the Administration/Management to take into account the contingencies which may arise in the course of administration. The services of an employee may be required in a given case on more emergent basis vis- a-vis other employees. In such cases the services rendered by an employee, his seniority, the nature of work which he is required to do, his responsibilities etc. are required to be taken into account while taking decision on such applications. Lastly, it may be stated that in the Original Writ Petition, factual malafides have not been pleaded by the respondent. In the circumstances, we set aside the impugned judgment of the High Court. The Civil Appeal stands allowed with no order as to costs.” Considering the issue raised in this petition, I find that earlier the petitioner had applied for leave (not under the policy adopted by the State). The leave was granted to CWP No.12082 of 2008 [5] the petitioner, however, she did not avail of the leave. The petitioner after a lapse 11 months, applied for leave under Instructions (Annexure P-1) for five years for the purpose of self employment. The same has not been sanctioned. Taking a cue from the judgment of Hon’ble Supreme Court of India, I am of the considered opinion that no direction can be issued to the respondents to sanction leave to the petitioner in terms of the policy, decision being in the domain of administrative functions. It is for the respondents to consider administrative exigency to grant leave or reject the application. Court in writ jurisdiction cannot sit in appeal over a decision taken in administrative exigency. It is for the respondent employer to consider the feasibility of granting leave for a long period. Various aspects such as total number of employees working in the cadre, whether an employee can be spared for long period, the post an employee is holding, and other related facts are required to be considered. The decision being within the domain of the respondents, the Court would not ordinarily substitute its own opinion. No such circumstances have been shown on behalf of the petitioner which would call for judicial review CWP No.12082 of 2008 [6] of the decision taken by the respondents. In view of the above, I find no merit in the petitions. The writ petitions are dismissed. (AJAI LAMBA) July 28, 2009 JUDGE Avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?