1 Smt. Neetu Choudhary Vs. State of Rajasthan & Ors. (S.B. CIVIL WRIT PETITION NO.4348/2006) Date of Order : 2.4.2009 HON'BLE MR. JUSTICE SANGEET LODHA Mr. R.S. Choudhary, for the petitioner. Mr. M.A. Siddiqui, Additional Government Counsel, for the State- respondents. 1. This writ petition is directed against order dated 25.4.2006 passed by the Deputy Director(Nursing), Medical and Health Services, Government of Rajasthan, whereby the application preferred by the petitioner employed as Nurse Gr.II in the Department of Medical Health Services, for grant of study leave, stands rejected. 2. The relevant facts in nutshell are that in the year 2000 due to strike by Nurses, Technicians and Radiographers, the working of the Government Hospital in the State was adversely affected. In this view of the matter, a decision was taken by the State Government to fill up 600 regular vacancies of the Nurses by available qualified trainees, to be treated as urgent temporary appointees for a period of six months. It was decided that after completion of six months if their services were satisfactory, they could be considered for regular appointment as per Rules. The 2 petitioner being eligible for the appointment applied for the post and after due selection, she was accorded urgent temporary appointment for a period of six months on consolidated salary Rs.4500/-, in terms of Rule 27 of the Rajasthan Medical & Health Subordinate Services Rules, 1965 (in short 'the Rules of 1965') vide order dated 21.1.2000. However, it was specifically mentioned in the order itself that on completion of six months satisfactory service, the petitioner shall be given preference in regular appointment under the Rules of 1965 as amended vide notification dated 3.6.82. The term of the appointment accorded to the petitioner was time to time extended and lastly vide order dated 2.4.2002 the services of all the temporary appointees accorded appointment as aforesaid was extended till further orders. Thus, the petitioner is continuing in service of the respondents for all these years without any interruption. 3. The respondent Department issued an advertisement inviting applications for Midwifery Training Course from the eligible candidates vide advertisement dated 19.7.05. The petitioner submitted an application in the prescribed form with all requisite documents as in service candidate and deposited the requisite fees . However, the petitioner was debarred from obtaining the training 3 as in service candidate. In these circumstances, the petitioner preferred a writ petition being No.6556/05 before this Court challenging the condition mentioned in the advertisement dated 19.7.05. By interim order dated 10.11.05 passed by this Court in the said writ petition, the petitioner was permitted to undergo the Midwifery Training Course. Accordingly, the petitioner was permitted to join Midwifery Training Course as a Government employee vide order dated 3.1.2006 issued by the Additional Director (Trainee) Medical & Health Services Rajasthan Jaipur vide order dated 3.1.06. On 18.2.2006, the petitioner made an application to the Superintendent, MGH Hospital, Jodhpur to sanction the study leave and release the salary thereof to the petitioner, which stands rejected by the order impugned in this writ petition on the ground that there is no provisions under the Rules which permits study leave for contractual/consolidated salaried appointees. Hence, this petition. 4. It is contended by the learned counsel for the petitioner that the petitioner was accorded appointment on urgent temporary basis against the regular substantive post of Nurse Gr.II after due process of selection under Rule 27 of the Rules of 1965, therefore, in terms of Rule 110 (2) of the Rajasthan Sevice Rules, 1951 (in 4 short 'RSR' hereinafter) the study leave is admissible to the petitioner even if she is treated to be a temporary Government servant. 5. Per contra, the learned counsel appearing on behalf of the respondents submitted that the appointment accorded to the petitioner on urgent temporary basis on consolidated salary has to be treated a contractual appointment and, therefore, she is not entitled for study leave in view of provisions of Rule 87 read with Rule 110 of the RSR. 6. I have considered the rival submission and perused the record. 7. The contentions raised on behalf of the parties revolves around Rule 87 and Rule 110 of the RSR, therefore, it will be beneficial to quote the same, which read as under : “87.Applicability.- The rules in this Chapter (other than those relating to procedure) relating to the nature and extent of the leave admissible to Government servants, apply only to Government servants holding permanent posts in a substantive capacity, except in so far as they are expressly stated to apply to temporary Government servants. X X X X X X X 5 110.Admissibility of study Leave.- (1) Study leave will be admissible to a permanent Government servant to pursue course of study or investigation of a scientific or technical nature which in the opinion of the sanctioning authority is considered necessary in the public interest for the working of the department in which he is employed. It will ordinarily be not granted to a Government servant who has completed 20 years of service or more. (2) Notwithstanding the provisions contained in sub- rule(1) study leave will also be admissible to a temporary Government servant who has completed three years continuous service provided that the initial appointment has been made on the advice of the Rajasthan Public Service Commission in case the post falls within the purview of the Rajasthan Public Service Commission or the appointment has been made by the competent authority in accordance with the rules regulating recruitment and conditions of service framed under proviso to Article 309 of the Constitution or where such rules have not been framed the appointment has been made by the competent authority in accordance with the orders issued by the Government prescribing academic qualification, experience etc. (3) In case of a temporary Government servant who has completed three years continuous service and is not covered by provisions of sub-rule (2) above extra 6 ordinary leave may be granted for a period of two years for purpose of prosecuting higher studies certified to be in the public interest in relaxation of provision contained in rule 96(b) of Rajasthan Service Rules.” 8. Chapter IX of RSR inter alia deals with the leave for which a Government servant shall be entitled. As per Rule 87 of the provisions incorporated in Chapter IX relating to nature and extent of leave admissible to the Government servant shall apply only to Government servants holding permanent post in substantive capacity except in so far as they are expressly stated to apply to temporary Government servants. Rule 110(1) of RSR provides that study leave shall be admissible to permanent Government servant to persue course of study or investigation of a scientific or technical nature which is in the opinion of the sanctioning authority necessary for the public interest for working of the department in which he is employed. Rule 110(2) specifically provides that notwithstanding the provisions contained in sub-rule (1) study leave will also be admissible to a temporary Government servant, who has completed three years of continuous 7 service provided that initial appointment has been made on the advice of the Rajasthan Public Service Commission in case the post falls within the purview of Rajasthan Public Service Commission or the appointment has been made by the competent authority with the rules regulating the recruitment and condition of service under proviso to Article 309 of the Constitution of India. 9. It is not in dispute that the petitioner was initially appointed on urgent temporary basis after due selection under Rule 27 of Rules of 1965 for a period of six months with a clear stipulation that on satisfactory completion of service she will be given preference in regular appointment. This fact is even apparent from the official noting dated 20.1.2000 placed on record as Annexure- 1. The petitioner is continuing in the service of the respondent without interruption for all these years and the term of her temporary appointment stands extended till further order vide order dated 2.4.2002. Therefore, it is also not in dispute that at the time of making an application seeking study leave the petitioner had completed more than 3 years of continuous service. It is not even the case of the respondents that the appointment accorded to the petitioner was de hors the Rules of 1965. Merely, because while according appointment the respondents have chosen 8 to give consolidated salary to the petitioner instead of in the regular pay scale admissible to the post, it cannot be said that the appointment is pure and simple contractual and cannot be termed as the temporary appointment under the relevant recruitment rules framed under proviso to Article 309 of the Constitution of India. It is not disputed by the learned counsel appearing for the respondents before this Court that the training course pursued by the petitioner is necessary in the public interest for the working of the department wherein she is employed. In this view of the matter, in considered opinion of the Court, the petitioner is entitled for the study leave in terms of Rule 110(2) of RSR. 10. No other point has been pressed by the learned counsel for the parties. 11. In view of the discussion above, the writ petition succeeds, it is hereby allowed. The order impugned dated 25.5.2006 (Annexure-8) is quashed and set aside. The respondents are directed to grant study leave benefits to the petitioner as applicable to the temporary Government employees under Rule 110(2) of Rajasthan Service Rules, 1951. No order as to costs. [SANGEET LODHA],J. vijayant