Case: SWP No. 788/2011 CMP No. 1138/2011

c/w

Contempt (SWP) No. 242/2011

SWP No. 789/2011 CMP No. 1139/2011

Contempt (SWP) No. 243/2011.

In these petitions similar questions of law are involved and at the request of learned counsel for the parties, are taken up together for final disposal.

Petitioners are substantively holding the posts of Assistant Surgeon in the State Health Department and pursuant to the common entrance test conducted by the J&K Board of Professional Entrance Examination (for short BOPEE ) in the year 2011, were selected to undergo various post graduation medical courses in Government Medical College, Jammu. These petitions are filed with the prayer that the communication No. HD (Gaz) Gen-73/2011 dated 29.03.2011, which has emanated from respondent no. 1 and is addressed to respondent no. 2 be quashed to the extent it provides that the period of post graduation course to be undergone by the petitioners be treated as study leave, and to the extent the pay and allowances is denied to them. It is also prayed that respondents No. 1 to 3 be directed to pay salary and other allowances during the aforementioned training period to the petitioners.

On notice issued, respondents 4 and 5 have filed objections/reply affidavit.

Mr. Abhinav Sharma, learned counsel for the petitioners submitted that petitioners, who are undergoing the post Graduation course, are entitled to receive salary for period of three years, viz. the training period. Learned counsel in order to bring home his point submitted that though the petitioners are governed by the J&K Civil Services (Leave) Rules, 1979 (for short Rules of 1979 ), but the provision contained in Chapter-III and Article 111-A to 166-C of the J&K Civil Service Regulations (Volume I) (for short Regulations ) are also applicable to the Government servants/petitioners, who are appointed after 1st January 1979, as same are not in-consistent with the Rules of 1979. Learned counsel invited the attention of the court to Article 44-A which falls in Chapter III of the Regulations and submitted that in terms of the said Article, petitioners are undergoing training course and are entitled to receive the pay/presumptive pay which they were drawing prior to their selection for undergoing the same. Learned counsel submitted that Chapter VI which refers to study leave of Rules of 1979, is not applicable to this case, inasmuch as, petitioners have not applied for grant of study leave and that study leave can be granted for a maximum period of 24 months, whereas petitioner training course is of 36 months duration. Learned also invited attention of the court to notification No. MCI-18(1)/90-Med. dated 22nd August 2000 issued by the Medical Council of India, New Delhi, wherein and whereunder, with the previous sanction of the Central Government, regulations called The Postgraduate Medical Education Regulations, 2000 (for short Regulations of 2000 ) have been notified and submitted that the post graduation course is a training course which has to be undergone in a college and thus Article 44-A of Regulations is attracted and petitioners would be entitled to receive pay/presumptive pay which they were drawing before they were selected to undergo the said training course. Learned counsel also referred to communication dated 11.04.2012 issued by the Principal, Government Medical College, Jammu addressed to the Commissioner Secretary to the Government, Health and Medical Education Department, Civil Secretariat, Jammu wherein the said authority was informed that since the inception of P. G. courses in the said college, salary/perks to in-service post graduate students, who had undergone P. G. course, prior to petitioners selection to undergo the said course, were being paid as per LPC received from the relieving department. This communication, produced at hearing was ordered to be taken on record. Learned counsel, accordingly, prayed for allowing of the writ petition.

Mrs. Neeru Goswami, Learned Dy. Advocate Ge

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