ORDER

Paul, J:- 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed to set aside the order dated 6.12.2021, (Ann. P-20) and dated 27.1.2022, (Ann. P-24), whereby the respondents have disallowed his request to grant ‘Study Leave’.

2. Shorn of unnecessary details, the relevant facts necessary for adjudication of this matter are that the petitioner after completing his MBBS Course, applied for the post of Demonstrator. By order dated 30.5.2013, (Ann. P-3), the petitioner was appointed on temporary basis and on probation on the post of Demonstrator. The petitioner was placed under suspension by order dated 26.9.2014, (Ann. P-4). The petitioner was arrested and remained in custody for quite some time. His suspension was revoked only in the month of November 2021.

3. Shri Upadhyay, learned counsel for the petitioner by taking this Court to the appointment order dated 30.5.2013 (Ann. P-3) submits that the petitioner was appointed against a substantive post. Thus, despite the fact that petitioner was a probationer, he was entitled to get leave as per rule 32 of M.P. Civil Services (Leave) Rules of 1977, (in short ‘Leave Rules’). Next reliance was on rule 50 of the Leave Rules, wherein it is mentioned that if study leave or extension of such leave is granted to a servant not in permanent employment, the bond shall be executed as per prescribed form. It is argued that this provision makes it clear that leave can very well be granted to a Government servant, who is not in permanent employment.

4. Lastly, reliance is placed on document dated 7.1.2022, (Ann. P-23) filed with the rejoinder to contend that pursuant to the interim order passed by this Court, the petitioner was permitted to participate in the selection and he is already selected.

5. In nutshell, Shri H.K. Upadhyay submits that petitioner remained in employment since 2013. The criminal case pending against him will consume time. The petitioner is ready to forego the salary arising out of Study Leave. He may only be permitted to obtain the benefit of study leave minus salary being an ‘in service candidate’.

6. Per contra, Shri Bramhadatt Singh, learned Government Advocate by placing reliance on rule 42 of the Leave rules submits that the petitioner is not entitled to get the study leave. He has not rendered 5 years of service. He is not holding the post on substantive basis and hence, respondents have rightly rejected his claim for study leave.

7. Parties confined their arguments to the extent indicated above. We have heard the parties at length and perused the record.

8. Rule 32(1) and rule 50 (relevant portion) of Leave Rules on which counsel for petitioner placed reliance read as under:-

"Rule 32. Leave to probationer, a person on probation and an apprentice. - (1) (a) A probationer shall be entitled to leave under these rules if he has held his post substantively otherwise than on probation.

Rule 50. Execution of bond. - Every Government servant in permanent employ who has been granted study leave or extension of such leave shall be required to execute a bond as given in Form 6 or Form 7, as the case may be, before the study leave or extension of such leave granted to him, commences. If study leave or extension of such leave is granted to a Government servant not in permanent employ, the bond shall be executed as given in Form 8 or Form 9 as the case may be." (Emphasis supplied)

9. A careful reading of sub-rule (1) of rule 32 makes it clear that one must hold the post in substantive capacity. The nature of post is not relevant, indeed what is relevant is as to in which capacity the employee is holding the said post. Admittedly, petitioner was a probationer and was not holding the post on substantive basis. Hence, he is not entitled to get ‘Study Leave’.

10. Rule 50 of the Leave Rules on which reliance is placed by Shri Upadhyay shows that it is only an enabling provision. This does not create any enforceable right in favour of