Administrative denial of study leave to CMOs solely by cadre distinction is arbitrary.

The applicants, Dr. Gurpreet Singh (45) and Dr. Narinder Sharma (40), were appointed as Casualty Medical Officers (CMO) in Government Medical College (GMC), Kathua, in 2019, following selection by the JKPSC.

After completing several years of service and possessing postgraduate medical qualifications, they applied for No Objection Certificates (NOC) to pursue higher studies (Registrarship).

Aggrieved by inaction, they filed O.A. No. 1454/2023, which was disposed of on 07.11.2023, directing the respondents to decide their representation.

In compliance, the respondents communicated via letter dated 04.03.2024 that the applicants were ineligible for the benefit of Circular No. 09-JK(HME) of 2023, which pertains to in-service doctors of the Jammu and Kashmir Health and Family Welfare (Gazetted) Service, as the applicants belonged to the Medical Education Department cadre.

The respondents also stated that out of a sanctioned strength of 12 CMOs, only 3 were in position at GMC Kathua, making it difficult to spare the applicants.

Additionally, the applicants claimed three advance increments for their postgraduate qualifications under Government Order No. 494-HME of 2009, which was also denied on the grounds that it applied to Medical Officers or lecturers, not CMOs.

1. Whether the denial of No Objection Certificate (NOC) for higher studies to Casualty Medical Officers (CMOs) solely on the ground that they belong to the Medical Education Department cadre and not the Health and Family Welfare (Gazetted) Service, and are thus excluded from Circular No. 09-JK(HME) of 2023, is sustainable in law?

2. Whether the applicants (CMOs) are entitled to be treated at par with Medical Officers for the purpose of granting NOC/study leave/higher studies?

3. Whether the applicants are entitled to three advance increments for possessing postgraduate qualifications under Government Order No. 494-HME of 2009?

The court referred to Section 19 of the Administrative Tribunals Act, 1985, for the application's legal basis.

It relied on the principles of administrative law, specifically the concept that administrative instructions cannot create a complete exclusion where parent rules do not impose such an exclusion.

It also invoked Articles 14 and 16 of the Constitution of India, pertaining to equality before law and equal opportunity in matters of public employment, stating that discriminatory exercise of administrative power offends these articles.

The judgment further considered the J&K Civil Service Rules governing study leave, which contemplate grant of leave for higher education, subject to administrative exigency.

The Tribunal found that the rejection of the applicants' claim for NOC for higher studies, based purely on the cadre distinction (Medical Education Department vs. Health and Family Welfare Service), was too narrow and unsustainable.

It reasoned that while administrative instructions like Circular No. 09-JK(HME) of 2023 are meant for a specific cadre, the fundamental question is whether the applicants could be granted similar benefits under general service rules, especially if no express prohibition exists.

The Tribunal emphasized that a "policy gap" for CMOs in medical colleges should be examined and similar treatment, with safeguards, considered, as professional advancement of qualified doctors in the medical field is generally in public interest.

The objection regarding staff shortage at GMC Kathua, while relevant for regulating the timing or conditions of leave, was held not to justify outright rejection of the claim itself or the entitlement to consideration.

On the plea of parity, the Tribunal stated that direct judicial declaration of exact parity is not feasible due to potentially differing cadre structures, but the Government is obligated to examine extending similar or equivalent benefits when there's no express prohibition and the professional advancement sought is similar.

Regarding advance increments, the Tribunal declined a positive mandamus, directing reconsideration by the competent authority given the specific dispute over the applicability of Government Order No. 494-HME of 2009.

The court concluded that denying benefits solely based on cadre nomenclature where no specific statutory rule prohibits it amounts to arbitrary and discriminatory power, violating Articles 14 and 16 of the Constitution.

It held that the impugned communication dated 04.03.2024, which denied NOC/study leave to the applicants, is set aside.

The respondents are directed to grant NOC/permission to the applicants for pursuing higher studies/Registrarship/tenure posts in accordance with study leave rules, within 12 weeks.

The applicants shall be treated at par with similarly placed in-service doctors for the purpose of consideration for higher studies and study leave, and their cases shall not be rejected merely on cadre nomenclature.

While administrative exigency may regulate the timing or phase of permission, the benefit is not to be denied altogether.

The respondents are also directed to release admissible financial benefits, including advance increments for postgraduate qualifications, if found eligible under applicable Government Orders, within 12 weeks, completing the entire exercise by passing formal orders and communicating them to the applicants.