Case: Rasesh C. Choksi Vs. State of Gujarat and Others

The facts of the case lie within a narrow compass and may be briefly stated thus:-The appellant after a brilliant academic career passed the S.S.C. examination in 1967 standing 9th in the entire Province of Gujarat. He thereafter joined the Medical College at Surat and passed the final M.B.B.S. examination from the South Gujarat University in October, 1973 in all the subjects in the first at tempt securing as high marks as 133 in Obstetrics and Gynaecology. Thereafter the appellant completed the period of Internship in 1974 and was appointed as a Houseman in Obstetrics and Gynaecology from 1st January, 1975 to 15th January, 1976. T he appellant claims that he had a special interest in Obstetrics and Gynaecology and pursued the postgraduate studies in the subjects. It was in connection- with the pursuit of these studies that the appellant wanted to serve as a Registrar in the Department of Obstetrics and Gynaecology whenever such vacancy fellWhen the appellant was appointed as Registrar of Anaesthesia he accepted the same in the hope that this will be a stepping stone in his further promotion as Registrar in the Department of Obstetrics and Gynaecology which post had not fallen vacant till that time. On joining the post of the Registrar of Anaesthesia he gave an undertaking to serve in that capacity for a period of one year. Later on the 15th March, 1976 the appellant received a communication that the term of his tenure was extended to another year, that is to say. that the tenure in the post was extended to two, years instead of one.Even though the tenure in post was extended for two years the Department did not take any undertaking from the appellant to serve for the entire periodIn response to an advertisement for the post of Registrar of Obstetrics and Gynaecology which fell vacant with effect from 1st January, 1977 the appellant along with others applied for the aforesaid job. The applications of the appellant and others were forwarded by the De-an to the Director of Medical Education and Research. But the Director was of the opinion that none of the applicants were eligible for the post of Registrar of Obstetrics and Gynaecology, because they had not completed the full tenure in the present post of Registrar. As a result of this decision of the Director, the application of the appellant was not considered nor was he called for an interview. Subsequently, respondent No. 4 was appointed as Registrar of Obstetrics and Gynaecology. The appellant contended before the High Court that he fulfilled all the conditions required for the appointment of Registrar of Obstetrics and Gynaecology and the Director on a wrong and erroneous interpretation of Rule 23 appears to have been of the view that the appellant was not eligible. The appellant having failed to get any redress from the Department filed a writ petition challenging the order of the Director of Medical Education dated 14th December, 1976 and prayed for a writ for directing the Director of Medical Education to appoint the appellant to the post of Registrar of Obstetrics and GynaecologyThe High Court of Gujarat was of the opinion that in view of rule 23 since the appellant had not completed the period of two years as Registrar of Anaesthesia and had applied before the expiry of the period, he could not be considered for appointment to the post of Registrar of Obstetrics and Gynaecology in view of the bar contained in rule 23.Thus, the entire fate of this case depends on the true and proper interpretation of rule 23 and particularly the word "leave" mentioned therein. After having failed in the High Court, the appellant applied for leave to appeal to this Court which being refused, the appellant moved this Court for special leave which was granted and hence this appeal.

Reasoning:
It is manifest that in order to understand the real purport and import of the word "leave" it is difficult t o lay down a proposition of universal application. The Court has to determine the meaning having regard first to the context and the setting in which the word has been used, secondly, the Court has to consider whether the word "leave" has been us ed as a noun or as a verb. In the English language there are number of words which can be used as noun and also as verb and more often than not their meanings are different when they are used as noun from those when the words are used as verb.In the instant case. having regard to the language of rule 23 doubtless the word "leave" has been used as a verb, and not as a noun. Taking the word in its ordinary parlance if used as a verb it clearly connotes that the candidate should have given up t he job or quitted the service or severed all connections with the post that he was holding. If the word "leave" would have been used as a noun in the sense of obtaining leave or furlough then the concept of permission would undoubtedly have to b e consideredHaving regard to the definition of the word "leave" when used as a verb in the aforesaid authentic legal dictionaries w e have no doubt that the word "leave" used in rule 23 has been used not as noun but as a verb. If used as a verb the word "leave" postulates that the candidate must have left or forsaken the job for ever and ceased to remain in service, in which case alone he would not be considered for promotion to the post of Registrar of Obstetrics and Gynaecoloay. It seems to us that the rule making authority must have intended to impose a penalty on a person, who in the midst of a job which he is doing chooses to quit the same for ever, by refusing to consider his case for promotion to a higher job which appears to have been confined only to those candidates who were serving the department and not those who had left the service. In other words, what the rule contemplated was not that a person while, in service should be debarred from applying for a higher post so long as he did not complete the tenure of the period for which he was appointed. Rule 23 does not appear to require any causal connection between the promotion to higher job and the tenure of the service of the candidate concerned. It merely signifies that those candidates who choose to relinquish the service once for all and cease to be in the department would not be considered for higher promotion. It is nobodys case that the appellant at any time expressed hi-, desire to give up or relinquish the service or had resigned the same in order to apply for the job of Registrar of Obstetrics and Gynaecology. On the other hand. the appellant was very much serving as Registrar of Anaesthesia when he applied for the job of Registrar of Gynaecology. Once he was in actual service the question of leaving the service as contemplated by rule 23 did not arise at all. Our attention has not been drawn to any provision in rule 23 or any other rule which provides that unless the candidate concerned has completed the period of two years he would be completely debarred from applying for the post of Registrar of Gynaecology. We do not agree with counsel for the respondent that the combined effect of rule 16; and rule 23 contains such a bar. This argument is really based on an erroneous interpretation of rule 23 which has no nexus with 16 at all. For these reasons, we are unable to agree with counsel for the respondent that the mere fact that the appellant applied for the job of Registrar of Obstetrics and Gynaecology would amount to his leaving the post which he was holding although with the permission of the department so as to fall within the mischief of rule 23.The, undisputed facts are that the appellant obtained the highest marks in M.B.B.S. examination in Gujarat and had passed in all the subjects . It is also not disputed that the appellants name was mentioned in the merit list. The only ground on which the appellant was not considered for promotion was the opinion of the Director of Medical Education based on a wrong interpretation of Rule 23 and particularly of the word "leave." It is, therefore, clear that the appellant though fully qualified for the post of Registrar of Obstetrics and Gynaecology was not considered, because of an error of law committed by the Director of Medical Education. As the appellant was not considered for promotion, respondent No. 4 was appointed. It is obvious that if the appellants case was duly considered he was bound to be appointed as respondent No. 4 was undoubtedly inferior in merit to the appellant. The rules placed before us lay down that the appointment to the post of Registrar of Obstetrics and Gynaecology must be made on merit and merit alone. It is true that if this appeal was to succeed, respondent No . 4 would have to be dislodged causing some hardship to her, but as she secured an appointment under a mistaken impression of law by the authorities, her reversion cannot be helped. The fact however remains that she has already done more than It years as Registrar of Gynaecology and it will not be unjust for her to make way for the appellant who is definitely a more suitable and more meritorious candidate for the post of Registrar of Gynaecology.