Cannot Act As An Appellate Authority Over A Decision Taken At Highest Level In The Government: Delhi High Court

A single Bench of Justice V. Kameswar Rao made the observations while hearing the plea filed by the petitioner seeking a direction against respondent to issue the relieving order and grant study leave to him to enable him to pursue MD/MS Course in Paediatrics from Post Graduate Institute of Medical Education & Research, Chandigarh as he satisfied the criteria laid down for grant of study leave in the office memorandum dated November 02, 2012.

Facts

The petitioner after successfully attending the offline counselling for MD/MS course at PGI, was allotted a seat in MD Paediatrics course. The DDU hospital where the petitioner was working even issued the required certificate and NOC to the petitioner, which clearly stated that the hospital did not need a substitute for the petitioner. However, after completing due formalities, when the petitioner submitted his study leave as per the Rules, on December 31, 2020, the respondents including the Lt. Governor of Delhi deliberately delayed in granting the same to the petitioner. In the meantime, PGI Chandigarh extended the last date for accepting the seat allotment to the petitioner till January 18, 2021 with a condition that if the petitioner failed to get the study leave by then, his seat would be cancelled and allotted to some other candidate. When he visited the secretariat on January 08, 2021 he came to know that his application had not been forwarded, and he was orally informed that he had not been granted study leave on account of COVID-19.

Arguments on Behalf of Parties

Senior Counsel Geeta Luthra, appearing on behalf of the petitioner submitted that denying study leave to the petitioner on account of COVID-19 is untenable since the government's data reveals the situation of COVID-19 with regard to management of pandemic and recently 326 Doctors have been freshly recruited as Medical Officers by the Govt. of NCT of Delhi.

According to Luthra, the petitioner is a meritorious student and joining the MD/MS course at the most prestigious Institution of the Country, would be in public interest, for the betterment of the institution where he is working. She added that similarly placed Doctors were granted study leave at the time when the number of COVID cases were at the peak and maximum number of beds were assigned for COVID patients in the hospital. 

The Delhi Government, on the other hand contended that the petitioner is not entitled for study leave as a matter of right. According to the Central Civil Services (Leave) Rules, 1972 the study leave may be granted to a government servant with due regard to exigencies of public service. Even though a Medical officer may be granted study leave for prosecuting a course of post graduate study in Medical Science but, in the exigencies of services the Competent Authority may deny the same. The Office Memorandum issued by the Govt. of India for CHS cadre officers in 2013 also states that study leave can only be granted to a government servant with due regard to the exigencies of public service.

Ms.Avnish Ahlawat, on behalf of the government cited the top Court's judgement in the case of Punjab & Ors. Vs. Dr. Sanjay Kumar Bansal 2009 in support of her submission that the leave cannot be availed as a matter of right. In that case also, a Doctor was refused the leave on the ground that, there was shortage of Doctors and the Supreme Court held that the matters fell in the category of 'administrative exigencies' and Courts cannot sit in appeal thereon.

The Judgement

The Delhi High Court has in its judgement observed that the Courts, in exercise of its power of judicial review, cannot sit as an Appellate Authority over the decision taken by the administration or the management. The decision has been taken, giving due regard to the exigencies, which may arise in the course of administration. While its true that the petitioner being a meritorious candidate, has a legitimate expectation to acquire a higher qualification and advance in his career but at the same time, as an employee working in the Govt. of NCT of Delhi, he is bound by the Rules framed by the Government that clearly stipulates that the grant of study leave is not a matter of right, and the same will be granted to the government servant with due regard to the exigencies of public service.

The Court refused to interfere in the Government's decision stating that when the decision has been taken at the highest level in the Government, the High Court cannot sit as an Appellate Authority over such a decision.

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