JUDGMENT
Sachchidanand Jha, J.
1. Young doctors, seeking to improve their qualification by doing Post-graduation in the different disciplines of Medical Science, have knocked the doors of this Court complaining of the recalcitrant attitude on the part of the authorities in not granting study leave for the said purpose. Many of them had. died writ petitions being C.W.J.C. Nos. 3784, 3640, 3743 and 3479 of 1991, which were disposed of by a Bench of this Court on 23-5-1991, inter alia, with a direction to the authority concerned, namely, the Coin-missioner-cum-Principal Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, to dispose of the applications for study leave by 30th June 1991. The said authority, pursuant to the aforesaid direction has rejected all such leave applications by his order dated 23-6-1991. Accordingly, the petitioner have also prayed for quashing of the said order, besides seeking mandamus directing the authority to grant study leave for the said purpose.
2. There are 42 petitioners in these two applications. The facts being similar and the points arising for consideration being the same, these two applications are being disposed of by a common judgment at the stage of admission itself, having regard to the urgency and with consent of the parties. During course of hearing it was stated at the Bar that there are some writ applications filed in this court on behalf of similarly situate persons, which have not been listed along with these two cases despite order to that effect. It was also said that there are some more persons similarly situate as these writ petitioners, who have not as yet filed any writ petition, many of whom having already resigned their jobs in the Bihar Health service to enable them to prosecute post graduate studies, out of desperation. The order that I propose to make in these two cases shall govern all such cases of similarly situate persons whether they have filed writ petitions or not.
3. The petitioners were selected for appointments in the Bihar Health service on the basis of a competitive examination, which is said to be second of its kind in the State of Bihar and held after gap of many years, by the Bihar Public Service Commission. Appointment letters are said to have been issued in their (as well as others) favour on 22nd September and 23rd November, 1990. A competitive examination is held every year for the purpose of selection of candidates for admission in various disciplines at the post graduate level with respect to clinical, para-clinical and non-clinical subjects. The said competitive examination is known as Post-Graduate Medical Admission Test (in short “PGMAT”). It is said that only 15 candidates were initially declared successful in the first list at the aforesaid admission test held in 1990. A second list of successful candidates was published sometime in April, 1991. Similarly, in respect of admission test held in 1991 the result of successful candidates was published on 2nd May, 1991. The petitioners and others belong to all these three groups.
4. According to petitioners, although in terms of the provisions of the Bihar Service Code having statutory force, leave cannot be claimed as a matter of right and that the grant of leave has been circumscribed by different conditions as mentioned therein, study leave, particularly for the purpose of prosecuting post graduate study in the medical science has been liberally granted to the members of the Bihar Health Service and, as a matter of fact, the Government, it was said, has always been granting such study leave upto 1989 irrespective of the fact as to whether subject(s) is clinical or para-clinical or non-clinical, the underlying idea being to encourage the doctors to attain higher and better professional qualifications. It would not be out of place to mention here that in the notifications dated 22-9-1990 and 23-11-1990, appointing the petitioners and others in the basic grade (Civil Assistant Surgeon) in the Bihar Health service, it was specifically mentioned that such doctors, who were either doing post graduation in clinical subjects or horsemanship, would also apply for study leave, which would be considered as per rules. It is said that even with respect to the appointees of 1990 the State Government initially took a decision to grant study leave to all such newly appointed doctors to prosecute post graduate studies in clinical subjects or to complete their horsemanship, as would be evident from the letter of the Health Department dated 10-10-1990, a copy whereof has been marked as Annexure 9 in C.W.J.C. 4658 of 1991. However, a public notice was published in the newspapers dated 4-1-1991 informing all such newly appointed doctors, including the petitioners and similarly situate others, that their leave including study leave had been cancelled by the Government and, accordingly, they were directed to join the respective places of posting by 15-1-1991, failing which disciplinary proceeding would be initiated against the concerned persons. The order as contained in the aforesaid notice was challenged in this court in C.W.J.C. Nos. 107 and 170 of 1991, On 11-1-1991 this Court passed an interim order directing that no disciplinary action shall be taken against the petitioners of these two cases and other similarly situate persons pursuant to the notice. The State Government, thereafter issued different orders as contained in letter No. 276(2) dated 14-3-1991,358 (I dated 10-4-1991 and 456(3) dated 29-5-1991 on the subject. The ultimate position that emerges from the aforesaid Government orders is that whereas all such newly appointed doctors, who have been selected for admission in the post graduate courses in non-clinical, para-clinical and some clinical subjects, have been granted study leave for that purpose and directed to be relieved while such doctors, who have been selected for the post graduate study in other clinical subjects would be entitled to such study leave only after they complete one year of service. Many of the petitioners being aggrieved by the aforesaid orders of the State Government moved this court in the aforementioned writ petition being C.W.J.C. No. 3784 of 1991 and other cases, which were disposed of on 25-3-1991 in the manner stated above. The applications for leave having been rejected by order dated 28-6-1991, the petitioners have come to this court. It would appear from the perusal of the aforesaid order of the Commissioner-cum-Principal Secretary, Health Department, dated 28-6-1991 (Annexure 1 in C.W.J.C. No. 4658 of 1991) that the request for study leave has been rejected on the ground that it was not in public interest and that the persons concerned had not completed one year of service.
5. Learned Counsel for the petitioners in both these cases have submitted that the impugned order rejecting the grant of study leave is both arbitrary and discriminatory in nature and, therefore, violates the mandate of Article 14 of the Constitution. They have also submitted that the grounds assigned by the authorities are irrelevant and reasonable. Learned Counsel for the State, on the other hand, defended the impugned order with reference to the relevant rules as mentioned in the said order.
6. In C.W.J.C. No. 4658 of 1991 the petitioners have furnished a chart (Annexure 2) indicating the various disciplines-both Degree and Diploma-in various non-clinical para-clinical and clinical subjects, numbering in all 34. It has been stated that the Government has given extra facility to such doctors, who have been selected for studies in non-clinical subjects as well as para-clinical subjects, such as, Anatomy, Physiology. Bio-Chemistry, Pathology, Pharmacology etc. (total 9) and has posted them in different Medical Colleges against posts, which are known as ‘trainee reserve posts’ where they will not only be doing their post graduation but would also be getting full salary. It is further said that in respect of some of the clinical subjects, such as, Anesthesiology, Skin & V.D. Psychiatry, Plastic Surgery and Neuro Surgery etc. (total 11 subjects) also, study leave has been granted; but in the case of the petitioners and other similarly situate person, who have been selected for doing post graduation in more prestigious subjects, such as, General Surgery, Orthopedic Surgery, General Medicines, Obstetrics and Gynaecology, Eye ENT etc. (total 14 subjects), they have been denied the said facility. It was submitted, and rightly so, that the post graduation not only gives higher qualification and professional attainment to the persons concerned but it is also a necessary qualification and, in fact, a condition of eligibility, for the purpose of appointment against teaching posts. It has been pointed out that the candidates are selected for admission on the basis of the admission test (PGMAT) and the merit list is prepared on merit-cum-choice basis. The subjects, such as, Surgery, Medicines, Obst. & Gynae, being the cynosure amongst ail medical subjects, naturally most of the candidates desire and opt for those subjects. It would, therefore, be irrational to deprive such candidates, who opted and succeeded in getting the subjects of their choice on the basis of their placement in the merit list of the opportunity of doing post graduation and allowing candidates of inferior merit i.e. those placed lower in the merit list to get admission against the resultant vacancies in those prestigious subjects like surgery, medicines etc. The submission aforesaid, in my opinion, is well founded.
7. Before I examine the other issues arising for consideration, it would be appropriate first to examine correctness of otherwise of the grounds assigned by the Health Commissioner in his impugned order. The observation of the Health Commissioner that as a result of the doctors proceeding on study leave several posts of Medical Officer in the different Health Centres and State Dispensaries have fallen vacant does not appear to carry much substance. It has been averred in the writ petitions that about 800-1000 doctors are available for being posted on such posts, while the number of such persons, who have been denied study leave, including the petitioners herein is about 100 only. The ground that the grant of study leave would cause unnecessary financial burden on the State exchequer is also unintelligible to me. It is not in dispute that in the event of grant of study leave the persons concerned, while doing Post-graduation, are only entitled to a fixed stipend of Rs. 2,000/-. per month. As a matter of fact, as stated above, the financial burden, if any, would be caused by permitting such doctors to be posted in different Medical Colleges while doing post graduation in non-clinical and para-clinical subjects on payment of full salary during the said period. Therefore, the question of financial burden, in my, opinion, would not arise, and if at all,’ it would not be of any such magnitude as to disentitled the petitioners and other similarly situate persons to get study leave.
8. It is true that the leave cannot be claimed as a matter of right but, according to policy of the State Government, as incorporated in the Notes appended to Rule 204 of the Bihar Service Code, such study leave has to be granted liberally. It is true that in terms of Clause (b) of Rule 204 such leave may be granted if the State Government is of the opinion that it is in public interest. I, for one, inspite of best persuasion, have not been able to agree with the logic that the grant of study leave would not be in public interest. It is too late in the day to contend that the attainment of higher qualification or specialisation in a particular subject would not be in public interest. We are living in an age of specialisation and the Medical Science is one branch, which has made tremendous strides abroad mainly on account of better facilities for getting specialised training. In this background, it is difficult to countenance this stounding proposition that grant of study leave for attaining speciality in a particular subject would not be in public interest. In this connection I can do no better than to quote a passage from the decision of the Supreme Court in Dr. Jagdish Saran v. Union of India :
If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation’s human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines, of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. – To devalue merit at the summit is to temporise with the county’s development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily of easily in regard to extracting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation’s talent lying latent can produce. If the best potential in these fields is cold shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best map not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless.
9. Adverting to Proviso to Rule 243 of Service Code, which has been referred to by the Health Commissioner in his impugned order and relied upon by the learned Counsel for the State, it would appear that the said provision occurs in a different Sub-Chapter dealing with extraordinary leave, The provision in regard to grant of leave in the Bihar Service Code his been divided into several Sub-Chapters of Chapter VI. The provisions regarding grant of study leave are contained in Sub-Chapter V of Chapter VI. It is true that the Proviso to Rule 243 does mention grant of extraordinary leave to enable the Government servant to undergo an approved course of study or training only if he has put in one year of service. It is settled principle of law that where specific provisions are made on a particular subject the general provision or residuary provisions arc not applicable. Ganeralla speciatious not derogant. In my opinion, the Proviso cannot be read as an independent provision. It has to be read along with main section or rule as the case may be. A plain reading of the said Rule would show that it contains a provision for grant of extraordinary leave upto certain period and in the First Proviso it is mentioned that extraordinary leave for a longer period can be granted if a ten porary Government servant is undergoing treatment for the diseases mentioned therein. Likewise, the Second Proviso also contemplates grant of extraordinary leave upto certain period for certain purpose as mentioned therein. In the instant case, we are not considering the question of grant of extraordinary leave and, therefore, reliance on the said Proviso to Rule 243, in my opinion, is entirely misplaced.
10. Even if it is accepted for the sake of argument, without holding the same to be correct, that one year’s rule applies in the case of grant of study leave also, in my opinion, nothing prevents the Government from relaxing the said rule in appropriate cases to undo hardship and in the ends of justice and fair play. In this connection, I would like to refer to a statutory rule framed by the State Government in exercise of power under the Proviso to Article 309 of the Contitution, which empowers the State Government to relax the requirements of a particular rule. I would better quote the aforesaid rule in extensor:–
No. III/RI-2O1O/55A-11505 the 23th November, 1956. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and in supersession of previous order on this subject the Governor of Bihar hereby makes the following Rules.
Where the State Government are satisfied that the operation of any rule regulating the conditions of service of State Government servants, or any class of such Government servant, causes undue hardship in any particular cage, they may by order, dispense with or relax the requirement of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner.
The Government has obviously acted unmindfully of its power as contained in the aforesaid rule while rejecting the request for grant of study leave. The question, therefore, that next arises for consideration is whether this Court in exercise of its writ jurisdiction should issue appropriate order or direction directing the concerned authority to grant study leave or not. Learned Counsel for the State has argued that the grant of leave being discretionary in nature, this Court has no jurisdiction to issue any mandamus in the matter. I regret my inability to agree to this contention. The Supreme Court in The Comptroller & Auditor General v. K.S. Jagannathan , after referring to the celebrated observations of Justice Subha Rao AIR 1966 S.C. 81 (sic) that Article 226 is designed “to reach injustice wherever it is found” and “to mould the reliefs to meet the peculiar and complicated requirements of this country, “had this to say while laying down the scope of power of this Court under Article 226 of the Constitution in such matters:–
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised to discretion conferred upon it by a Statute or a rule or policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, .in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised the discretion.
The submission, therefore, of the learned Counsel for the State that a mandamus of the nature suggested by the petitioners cannot be issued, has no merit.
11. From the narration of the facts in the beginning of the judgment it would appear that the study leave has invariably been granted up to 1989 to enable the persons concerned to do Post graduation. From the aforementioned letter dated 10-10-1990 it would appear that an order was issued to the concerned Civil Surgeons to relieve all such Medical Officers for doing their post graduation in clinical subjects. In the two notifications dated 22-9-1990 and 23-11-1990 regarding appointments of the petitioners and others also, an assurance was given that their request for grant of study leave would be considered. It is difficult to approve the subsequent conduct of the Government in refusing to grant study leave. In a catena of judgments it has been held by the Supreme Court as well as by the various High Courts that the State is bound by its promises. In Union of India v. Indo-Afghan Agencies AIR 1968 Supreme Court, 718, it was stated:–
Under our jurisprudence, the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on come undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.
12. As early as in 1951 Justice Chandrasekhara Aiyar in Collector of Bombay v. Municipal Corporation , while considering the role of the Court where the authority fails to discharge its duty in such matters, said thus:–
Whether it is the equity recognised in Ransden’s case, 1966 LR 1 HL 129, or it is some other form of equity, is not of much importance courts must do justice by the promotion of honesty and good faith, as far as it lies in their power.
13. In my opinion, the petitioners have already been able to make out a case of discrimination inasmuch as no justification has been given for treating non-clinical, para-clinical and 11 clinical subjects (referred to above vide Annexure 2 in C.W.J.C. No. 4658 of 1991) as a separate class from the other 14 clinical subjects. I am not able to appreciate the rationale in granting study leave to persons coming in the former class and/or posting them in different Medical Colleges where they can do their post graduation with payment of full salary while refusing to grant the same to such persons, who have been selected for admission in 14 clinical subjects mentioned hereinabove, although such grant of leave would involve lesser burden on State exchequer inasmuch as they have to be paid only a fixed stipend, which is said to be Rs. 2,000 per month. In the absence of any proof or even a plea regarding any such reasonable classification, having any nexus with any such object, it has to be held that the authorities have treated two similarly situate class of persons in a dissimilar manner. I have already held above that the reasons assigned by the Health Commissioner in the impugned order are irrelevant and unreasonable. Further, having regard to the larger issues, such as, giving opportunity for specialisation so that they may serve the society better, the one and the only conclusion that emanates is that rejection of the request for study leave is not only irrational and arbitrary but also opposed to public policy. Any arbitrary action violates the mandate of Article 14.
14. It was stated at the Bar that many persons, having been forced to the wall, out of sheet desperation, resigned their jobs as Medical Officers (Civil Assistant Surgeons) rather than forgo the opportunity to do post graduation. Jobs are hard to get these days and if the authorities have created a situation in which persons per force regsigned their jobs, such an anti-careerist and callous attitude on their part can only be deprecated. In the words of Justice Chinnappa Reddy in Randhir Singh v. Union of India , “The Judges have a duty to redeem their constitutional oath and do justice no less to the pavement dwellers than to the quest of the Five_ Stars hotel.” If the Government has failed to discharge its duty and obligation, the court must extend its helping hand to undo the injustice. I would, therefore, be failed in my duty if I do not extend the benefit of this judgment and order to such persons, who, although not before us, are similarly situate as these petitioners or even to those who have resigned their jobs for doing post graduation. It is obvious that the alleged resignation has been made under coercive circumstances and cannot be said to be out of free volition.
15. In my considered opinion, therefore, the petitioners have made out a case for interference by this court. The impugned order of the Commissioner cum-Principal Secretary Department of Health, Medical Education and Family Welfare, which is part of his letter No. 272/H.C. dated 28-6-1991 rejecting the grant of the grant of leave to the petitioners is quashed. The State Government particularly, the Commissioner-cum-Principal Secretary of the said Department is directed to grant study leave to the petitioners for the purpose of doing post-graduation in different Clinical Subjects for which they have been selected at the admission test, namely, PGMAT 1990 and PGMAT 1991 as per rules. I further direct that this order will be applicable not only to 42 writ petitioners in these two cases but also such persons, who are similarly situate as the petitioners in these two cases, whether they have filed writ petition or not. I do direct that if the resignation said to have been submitted by similarly situate persons have not been accepted by the competent authority as yet, the same shall not be accepted and they too shall be allowed study leave I further direct that in the event of acceptance of their resignation, the order accepting the resignation will be recalled and they will be given the option to continue in the Bihar Health Service while doing their Post-graduation.
16. These two writ applications are, accordingly, allowed in terms of the directions mentioned above. No order as to costs.
Dharmpal Sinha, J.
17. I agree.