Shivnandan Singh vs State

B.A. Khan, J.—The petitioner is a classIV employee and was working as an orderly in the office of the Divisional Youth Services and

Sports Office in Jammu. He graduated while in service and then worked his way for being deputed to undergo B.P.Ed course at the Physical

Education College, Gandergal. His case was first recommended by the Divisional Sports Officer to the Director of Youth Services and Sports vide

communication dated 30.1.1993 and then to the Commissioner/Secretary, Education Deptt. by his letter dated 30.3.1993. This recommendation

seems to have been accepted culminating in Govt. Order No. 1184Edu of 1993 dated 30.4.1993 under which study leave was granted to him for

undergoing B.P.Ed. Course. He joined at the college pursuant thereto, paid the fee and was granted provisional admission. While he was still trying

to find his feet, his study leave was cancelled by Govt. Order No. 1330Edu of 1993 dated 31.5.1991, consequently cancelling his deputation to

the course also. He feels aggrieved and has challenged this order primarily on the ground that it has been passed at his back without any notice to

him and in violation of the principles of natural justice. It is submitted that he is eligible to undergo the course and there is no provision in the rules to

cancel the study leave once it is granted.

Objections have been filed by the respondents supported by an affidavit sworn by the Principal of the training college. No affidavit has been

filed by any functionary of the Govt to justify the order impugned. The stand taken is that since the petitioner is a ClassIV employee. He was

neither entitled to grant of study leave or eligible to undergo the course. He was also not selected by the Director of Youth Services, who alone

was competent to select and dispute in service candidates for training course. It is submitted that the study leave could be granted to him only by

the General Deptt (Ari) on the recommendation of the administrative department and with the sanction of the Finance Deptt in terms of Rule 73 of

the Study Leave Rules of 1979. It is also pointed out that the candidates for B.P.Ed. training course are selected by the direct selection for which

notification was issued on 24. 12. 1992 inviting applications from the candidates. In addition, in service candidates are selected by the Director,

Youth Services and Sports and deputed for the course keeping in view their qualifications and length of service. The select list of these candidates

is prepared on the recommendation of the respective Distt/Divisional Youth Services & Sports Officers. Since the petitioner does not figure in the

select list of Director wherein only physical teachers have been deputed for training course, he has no right to be admitted to the course on the

basis of Govt Order No. 1185 of 1993.

I have heard learned counsel for the parties.

Admittedly, there are no rules prescribing any procedure/guidelines, criteria and eligibility for selection of in service candidates. In case of

candidates applying for direct selection the eligibility prescribed is that they should be graduates and should have minimum sports career of having

represented the University/State in Junior/Senior nationals In any recognised sports discipline and should also be under 32 years of age and so on.

Therefore, it is not possible to hold that the petitioner is not eligible for the course being an orderly when no rule, order or notification requires that

the inservice candidate for the B.P.Ed course must be a physical education teacher first. It is not denied that he is a graduate. He has also

participated in some national sports events. That why he fits the bill as an in service candidate unless respondents show some rule or order under

which he was required to be a physical education teacher first. Since they have not shown anything on this count, petitioner's eligibility cannot be

questioned.

Whether an orderly is not entitled to study leave, may not be of such relevance but all the same perusal of the 1979 rules shows that he is not

disentitled to seek the study leave. Rule 61 makes the position clear in this regard and provides that the study leave may be granted to a Govt.

servant, which must be interpreted to include an orderly also. Similarly subrule (4) of this rule does not insist on a service of 5 years having been

rendered by an employee in all events. It only says that the study leave shall not ordinarily be granted to an employee if he has not completed 5

years service. As regard the authority who is competent to sanction study leave, rule 73 does lay down that the General Department (Trainings

Branch) may grant leave under these rules for the purposes of study in India. But, that by itself does not authorises the respondents to challenge

their own order. Admittedly, there is no provision for cancellation of the study leave once granted under these rules.

All this has been brought out only to meet the contentions raised by Mr. Chauhan that the petitioner was not entitled to grant of study leave

which has been granted to him by a incompetent authority and was not thus liable to be admitted to the course. The matter, however, does not rest

at that. The moot question that falls for consideration is whether the Govt. Order No. 11985 of 1993 sanctioning the study leave to the petitioner

for undergoing B.P.Ed. course could be rescinded at his back and whether the bypassing of the Director would disentitle him from pursuing the

course.

There can be no denial to the fact that a right accrued to the petitioner to proceed on study leave for undergoing B.P.Ed. course on passing of

Govt. Order No. 1185 of 1993. It is also a matter of record that he joined at the college and was granted provisional admission pursuant thereto.

He could be divested of his right to pursue the course only in accordance with the procedure established by law and in conformity with the

principles of natural justice. It is not the case of the respondents that there are any rules of regulations in force on the basis of which he was

ineligible to pursue the course or which envisaged that he could be deputed for the course only by the particular authority and in accordance with

some kind of a selection procedure. All that is made out is that the in service candidates are picked up by the Director, Youth Services and Sports

and since the petitioner has not been selected by him. He was not entitled to be granted admission. It is not known what authorised the Director to

select the in service candidates and from whom and what mode of selection he was required to follow in the matter. That being so, the petitioner

cannot be faulted for not having routed his case through Director. It would indeed be a different matter if in service candidates had to go through

the selection procedure and the petitioner was found to have bypassed that procedure. That is not the case here. The petitioner has undoubtedly

been cleared for study leave by the Government and the Director being a subordinate authority to the Govt. could not prevent him from pursuing

the course as the same would tentamount to superseding the orders of the Govt. Similarly the impugned order (Govt. Order No. 1338 of 1993)

could not be passed at the back of the petitioner and without notice of show cause to him. As already noticed, a right had accrued to the petitioner

to pursue the course and he could be deprived of the same only by adhering to the principles of natural justice.

It is immaterial if the order passed against him is an administrative order so long as it causes prejudice to his interest. The compliance with the

rules of natural justice becomes necessary to prevent miscarriage of justice and to secure fair and impartial order besides to check arbitrariness.

Respondents have nowhere indicated that a show cause notice was issued to him or he was heard in the matter at any stage. The impugned order

is consequently vitiated, and requires to be quashed. Mr. Chauhan, learned counsel for the respondents has cited 1993 AIR SC 2695 which is

distinguishable and not relevant on the point.

For the reasons stated above I allow this petition and quash Govt. Order No. 1338 of 1993 dated 31.5.1993 and command the respondents to

allow the petitioner to pursue the B.P.Ed. course at the Physical Education College, Ganderbal.

C.M.P. No. 389 of 1993 shall stand disposed of accordingly.