WP(C) 2593/2003 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA Challenge in this writ petition is made against the impugned communication dated 11.12.2002 issued vide No. HLB.20/90/123 by the Deputy Secretary to the Governm ent of Assam, Health and Family Welfare(B) Department, whereby and whereunder t he prayer made by the petitioner for grant of deputation/study leave with pay an d allowances during the period of his higher studies i.e. from 25.7.1996 to 25.2 .1999 has been turned down directing the petitioner once again to apply for leav e as admissible followed by Extra Ordinary Leave (in prescribed format) to regul arize the training period. 2. The facts of the petitioner’s case are not disputed. On 19.4.199 6 when the petitioner was holding the post of Vice-Principal of the Institute of Pharmacy, Assam Medical College, Dibrugarh, he had submitted an application for the post of Research Scholar in the Project Development of Herbal Medicine with special reference to Hepatic Disorder at the Institute of Advance Study in Scie nce and Technology, Khanapara, Guwahati (Institute for short), through the respo ndent No.1 i.e. the Secretary to the Government of Assam, Health and Family Wel fare (B) Department, Dispur who then forwarded the same on 29.5.1996 to the S ecretary of the Institute. In response to his application the petitioner was sel ected for doing research work leading to Ph.D in the said Institute. The respondent No.1 vide order No HLB 20/90/88 dated 18.7.1996 issued under memo No. 96//AMC/7096 dated 22.7.1996 released the petitioner to enable him to join in the 3 year research work for Ph.D degree in the Institute. By the said order it was made clear that the terms and conditions of leave as may be fixed by t he Government, Finance Department shall be binding on the petitioner. After re ceipt of the aforesaid order dated 18.7.1996 the petitioner immediately joined i n the Institute for prosecuting research work. For not granting him leave on dep utation with pay and allowances, the petitioner submitted several representation s before the Respondent authorities with a prayer to grant him leave on deputati on with pay and allowances for the period of 3(three) years with effect from 10. 7.1996 to June,1999. However, the applications for study leave submitted by the petitioner evoked no response from the authority and the petitioner had to compl ete the course with severe financial difficulties. 3. In the meanwhile after completion of the said course the petitio ner had joined in his original post of Vice-Principal of the Institute pursuant to the Order No.HLV.20/19/102 dated 22.2.1999. The petitioner had been persisten tly requesting the authority for grant of deputation with pay and allowance duri ng the study period as he had completed more then 8‰ years regular service befor e proceeding for higher studies which he is entitled as per existing rules and r egulations or norms of the health department which is being followed in case of other officials serving in the health department and medical colleges, even in c ases where the candidate left for higher study after completion of 5 years of re gular service. Inspite of submitting several representations before the authorit y since 1998 no reply was forthcoming and ultimately the petitioner had received the impugned communication dated 11.12.2002 whereby the authority informed him with regret its inability to consider the prayer so made. 4. Being aggrieved by the aforesaid impugned communication dated 1 1.12.2002, the instant writ petition has been filed by the petitioner praying fo r quashing/setting aside the same, with further prayer for a direction to the re spondent authorities to grant deputation/study leave with full pay and allowance s during the period of higher studies i.e. from 25.7.1996 to 25.2.1999. 5. Heard Mr. P.K. Roychoudhury, learned counsel appearing for the p etitioner and Ms. A.Verma, learned Standing Counsel appearing on behalf of the r espondents. 6. Ms Verma, leaned standing counsel at the very outset invited my attention of Rule 3( 4 )of the Assam Study Leave Rules, 1963 (for short 1963 Rul es) applicable in the present case. She also does not dispute the contention of the petitioner about his 8‰ years continuous service prior to his deputation fo r undergoing higher studies i.e. research work. Rule 3(4)of the 1963 Rules is quoted hereunder: Rule 3(4) Study leave shall not ordinarily be granted to the Government servan ts: (i) Who has rendered less than 5 years service under the State Government. 8. Having Considered the submission made by learned counsel appeari ng for the parties and the provision laid down in the 1963 Rules, in the fact s and circumstances of the case I am of the considered view that the impugned l etter No.HLB.20/90/123 dated 11.12.2002 issued by respondent No.3 i.e. the Depu ty Secretary to the Government of Assam, Health and Family Welfare (B) Departmen t is not sustainable in law in view of the fact that the same has been passed in the complete disregard to the provision of law laid down in Rule3( 4 )of 1963 Rules and also bad for non-application of mind. The impugned order dated 11.12 .02 is therefore set aside and quashed. Consequently the respondent authorities , more particularly the respondent Nos.1 & 2 are directed to issue necessary ord er granting deputation/Study leave to the petitioner with full pay and allowance s during the period of higher studies i.e. from 25.7.1996 to 25.2.1999. 9. It is also made clear that the whole exercise has to be complete d within a period of 3 months from the date of receipt of a certified copy of th is order. 10. Writ petition is accordingly allowed as indicated herein above. However, considering the facts and circumstances of the case there shall be no o rder as to costs.