ORDER :

Sanjay K. Agrawal, J.

1. The petitioner herein seeks to challenge the constitutional validity of clause (i) of sub-rule (5) of Rule 42 of the Chhattisgarh Civil Services (Leave) Rules, 2010 (for short, ‘the Rules of 2010’), which provides entitlement for availing Study leave to a regular Government servant.

2. The aforesaid challenge has been made on the following factual backdrop: -

3. The petitioner was appointed as Teacher Agriculture by order dated 17-8-2021 by the Divisional Joint Director, Education Division, Raipur. Immediately thereafter, he applied for Study leave under Rule 42(5)(i) of the Rules of 2010, as prior to his appointment on the said post he was undergoing Ph.D. course, which was not decided by the competent authority leading to filing of W.P.(S)No.992/2022 in which this Court directed the competent authority to consider and dispose of his application and ultimately, by order dated 7-3-2022, the competent authority rejected his application relying upon sub-rule (5)(i) of Rule 42 of the Rules of 2010 holding that the petitioner is still undergoing probation and not completed five years of service as a regular Government servant against which, again, he filed W.P.(S) No.1750/2022 which was dismissed by order dated 15-3-2022 relying upon sub-rule (5)(i) of Rule 42 of the Rules of 2010. The writ appeal filed against order dated 15-3-2022 suffered same fate and the petitioner remained unsuccessful. Finding no way to avail study leave, he decided to file this writ petition questioning the constitutional validity of sub-rule (5)(i) of Rule 42 of the Rules of 2010 on the ground that the said rule is arbitrary and discriminatory as well as violative of Articles 14, 16 & 21-A of the Constitution of India.

4. Return has been filed on behalf of the State/respondents No.1 to 4 stating that sub-rule (5)(i) of Rule 42 of the Rules of 2010 framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India is strictly in accordance with law, it is neither violative of any fundamental right guaranteed under Articles 14, 16 & 21 of the Constitution of India nor any provisions of the Constitution and does not suffer from manifest arbitrariness. More particularly, the petitioner has availed the remedy and this Court twice examined the case of the petitioner and in view of Rule 42(5)(i) of the Rules of 2010, study leave has been declined by the competent authority and as such, the writ petition deserves to be dismissed.

5. Mr. Rajesh Kumar Kesharwani, learned counsel appearing for the petitioner, would submit that apparently, sub-rule (5)(i) of Rule 42 of the Rules of 2010 not only suffers from manifest arbitrariness, but it is discriminatory as well and is liable to be struck down as it is also violative of right to education enshrined in Article 21-A of the Constitution of India and as such, Rule 42(5)(i) of the Rules of 2010 deserves to be struck down. He relied upon the decision of the Supreme Court in the matter of Sant Longowal Institute of Engineering and Technology and another v. Suresh Chandra Verma, (2013) 10 SCC 411 in support of his contention.

6. Mr. Ashish Tiwari, learned State counsel appearing for the State/respondents No.1 to 4, would submit that leave cannot be claimed as a matter of right and it can be refused assigning valid reasons, and the Government being the employer, is entitled to regulate the study leave. He would further submit that since the petitioner is still undergoing probation and he has not completed five years of service, which is the condition precedent for grant of study leave, he cannot be granted study leave and it is the prerogative of the employer to regulate the study leave and in its wisdom, the employer has conditioned the study leave subject to confirmation of regular Government servant and subject to completion of five years of Government service including the period of probation which is well within the jurisdiction and competence of the State Go