High Court
Facts
{1} WP 10599.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10599 OF 2024Dr. Deepak s/o. Laxmanrao AnaldasAge 44 years, Occ. Service as Medical Officer, R/o. Unani Dispensary, Ardhapur,Tq. Ardhapur, District Nanded... PetitionerVersus1.The State of Maharashtrathrough its Desk Officer,Public Health Department,having office at G.T. Hospital,Complex Building, 10th Floor,New Mantralayla, Mumbai -32.2.Director of Health Service,Arogya Sent Georges Hospital,Campus P Dimelo Road, Mumbai.3.Deputy Director of Health Services,Latur, District Latur.4.District Health Officer,Nanded, District Nanded. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE : 25th OCTOBER, 2024. JUDGMENT [ PER S.G. CHAPALGAONKAR, J] :-
Legal Reasoning
{7} WP 10599.24.odtenure to the public benefit.”11.In the light of aforesaid observations, Clause 4.5 of the G.R.dated 19.3.2019 held to be ineffective in case of the in servicecandidates aspiring admission to P.G. Course. Pertinently, the petitioneris facing criminal prosecution for offence punishable under Sections 498-A, 494, 34 of IPC read with Section 3(1)(r)(s) of the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, on the basis of thereport made by his wife. Apparently, this is a case of matrimonial i.e.personal dispute between the petitioner and his wife. It is difficult tohold that such offence can be termed as offence relating to moralturpitude, which may have an impact on the entitlement of the petitionerto pursue his educational upliftment through in-service Post GraduateCourse.12.Although Mr. Phule, learned AGP, placed reliance on thejudgment of this Court in W.P. No. 4045 of 2022 dated 7.4.2022, tocontend that NOC obtained by the petitioner by exercising fraud orsuppression of material fact would be non-est, we find that suchcontention is not consistent with the reasons mentioned in the impugnedcommunication. The withdrawal of NOC granted in favour of thepetitioner is only for the reason that a criminal case is pending againsthim. There is no stipulation in the impugned order that the petitionerhad obtained NOC by suppression of fact about pendency of criminalcase.Pertinently, in W.P. No. 4045 of 2022, this Court has not dealtwith validity of clause No.4.5 of the Government Resolution of 2019which was in vogue at relevant time. Further, the Supreme Court whileconfirming said order, specifically observed that observations made inthat judgment should be restricted only for deciding that case and not {8} WP 10599.24.odtotherwise.13.In that view of the matter, we are of the considered view thatcase of the petitioner would be governed by the law laid down by thisCourt in W.P. No. 4415 of 2024 vide order dated 26.3.2024 by which it isheld that Clause 4.5 of the Government Resolution dated 19.7.2023,which is similar to Government Resolution dated 19.3.2019 would notapply so as to refuse NOC to pursue Post Graduate Course. Further, thefacts and circumstances in W.P. No. 4415 of 2024 are similar to the factsand circumstances of the present case. Therefore, we are persuaded tofollow the same course in this case as well.14.Consequently, we proceed to pass the following order :-O R D E R[i]The impugned decision dated 24.09.2024 issued byrespondent No.3 thereby withdrawing the NOC granted in favour of thepetitioner to pursue AIAPGET 2024 Entrance Test, is hereby quashed andset aside;[ii]Respondents are directed to restore the NOC granted to thepetitioner within a period of one week from the date of this order;[iii]Petitioner shall be treated as eligible and qualified for theAIAPGET Entrance Test 2024. Consequently, he shall be granted allconsequential benefits. {9} WP 10599.24.odt[iv]Since as per the interim protection dated 26.9.2024,respondents were directed to keep one seat vacant, the petitioner shall beaccommodated on such vacancy although the admission process iscompleted by now.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-
Arguments
{2} WP 10599.24.odt1.The petitioner impugns the order dated 24.9.2024, passed byrespondent No.3, thereby withdrawing No Objection Certificate (NOC)granted in favour of the petitioner for admission to AIAPGET 2024 on theground that Crime No. 689 of 2017 has been registered against thepetitioner at Pulgaon Police Station, for offences punishable underSections 498A, 494 r/w. 34 of IPC as well as Section 3(1)(r)(s) of theScheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.2.Mr. G.J. Karne, learned Advocate appearing for the petitionersubmits that on 18.7.2019, the petitioner has been appointed as MedicalOfficer – Group B and posted at Primary Health Center at Tamloor, Dist.Nanded. On 16.4.2024, a public notice was issued inviting on-lineapplications for All India Ayush Post Graduate Entrance Test (AIAPGET)-2024. Since the petitioner was holding necessary qualification, he hadsubmitted an application for grant of NOC to participate in the process.Consequently, respondent No.3 had issued NOC vide order dated28.6.2024. The petitioner appeared for the said examination. Hesecured 184 marks out of 400. However, respondent No.3 cancelled theNOC vide impugned order dated 24.9.2024, giving the reason thatcriminal proceeding is pending against the petitioner and in view ofClause No.4.5 in the Govt. Resolution dated 19.7.2023, his NOC is liableto be cancelled.3.Mr. Karne further submits that merely because criminal caseis pending against the petitioner, respondent No.3 could not havewithdrawn the NOC which is granted in his favour. Mr. Karne wouldsubmit that right to education is plenary right of a citizen flowing fromArticle 21 of the Constitution of India . Such right needs to be {3} WP 10599.24.odtrecognized even for in-service candidates and cannot be circumvented byputting arbitrary condition. Mr. Karne would further submit that onaccount of trifle dispute of the petitioner and his wife, she has filed afalse report against the petitoiner. Consequently, criminal case has beenregistered against him. It is matrimonial dispute. Pendency of suchcriminal case cannot be treated as impediment to the right of thepetitioner to pursue educatoin or acquire higher qualification. Tobuttress his contentions, he relied upon the judgment delivered by theDivision Bench of this Court in W.P. No. 4415 of 2024 in the matter ofKailas Pawar vs. State of Maharashtra dated 26.3.2024 (Coram : G.S.Kulkarni and Firdos Pooniwala, JJ)4.Per contra, Mr. A.M. Phule, learned AGP appearing forrespondent Nos. 1 to 3 and Mrs. Yogita Thorat, learned advocateappearing for respondent No.4 supports the impugned order. Mr. Phulereliying upon the affidavit in reply filed on behalf of the respondent No.3submit that the policy of the Government to grant permission forpursuing Post-Graduate education by in-service Medical Officers has beenregulated by Govt. Resolution dated 19.7.2023. Clause 4.5 thereofprescribes that Medical Officer, against whom a deparemental inquiry orcriminal case is pending or proposed, shall be treated as ineligible forNEET-PG entrance test. The Deputy Directors shall not issue NOC infavour of such medical officers for participating in NEET-PG entrance test.5.Mr. Phule, therefore, submits that the petitoiner wasineligible for grant of NOC to pursue NEET-PG entrance test. However, hehad obtained NOC by suppression of the fact regarding pendency of thecriminal case. The District Health Officer, Nanded has apprised such {4} WP 10599.24.odtfact to the office of Deputy Director. Consequently, NOC granted infavour of the petitioner vide order dated 28.6.2024 has been withdrawnunder the impugned order.6.Mr. Phule would further submit that since the petitoinerobtained NOC by supression of material fact, such NOC is non-est andrightly withdrawn under the impugned order. To buttress his contentin,he relies upon the judgment delivered by the Division Bench of this Courtin the case of Kedar Pawar vs. State of Maharashtra ( Writ petition NO.4045 of 2022 dated 7.4.2022 (Coram S.B. Shukre and G.A. Sanap, JJ.).He would further point out that said judgment is confirmed by theSupreme Court in SLP (C) No. 900 of 2022 vide order dated 13.5.2024.7.Having considered the submissions advanced by learnedadvocate appearing for respective parties, it can be observed that thepetitioner is working as Medical Officer Group-D under the establishmentof Zilla Parishad, Nanded. In pursuance of the public notice inviting on-line application for All India Ayush Post Graduate Entrance Test, 2024,the petitioner had applied for grant of NOC. The respondent No.4District Health Officer forwarded the proposal to the office of respondentNo.3 vide communication dated 12.6.2024. The said proposal wasfavourably considered, subject to conditions stipulated in Govt.Resolution dated 19.7.2023. The petitioner was granted NOC forcandidature to AIPGET 2024 vide order dated 28.6.2024. In deferenceto the aforesaid NOC, the petitioner appeared for the entrance test andsecured place in the merit list. However, on 24.9.2024, takingcognizance of the communication dated 18.9.2024 submitted by DistrictHealth Officer, Nanded (respondent No.4 ), the respondent No.3 {5} WP 10599.24.odtcancelled the NOC and declared the petitioner disqualified for AIPGET2024.8.Respondent No.4 justified the aforesaid order by filingaffidavit in reply, mainly, relying upon clause 4.5 of the GovernmentResolution dated 19.7.2023, which stipulates that Medical Officer,against whom criminal case is pending would not be eligible for in-service NEET P.G. Entrance Test. Although it is sought to be contendedthat the petitioner had obtained NOC by suppression of fact aboutcriminal case is pending against him, the reasons mentioned in theimpugned order do not stipulate that withdrawal of the NOC was for saidreason. Only reason employed is that, petitioner incurred ineligibilityowing to clause No.4.5 of the Government Resolution dated 19.7.2023.9.In aforesaid background, the limited question that arises forour consideration is :-“Whether in facts of the case, respondents could havedeclared the petitioner ineligible for AIAPGET -Entrance Test, onlybecause a criminal case is pending against him.10.The issue is no more res-integra. The Division Bench of thisCourt in W.P. No. 4415 of 2024 dealt with self-same clause ofGovernment Resolution dated 19.3.2019 and observed in para. Nos. 22and 23 as under :-“22.It is thus clear, that right to education is implicit in theright to life and personal liberty guaranteed and flowingfrom Article 21 of the Constitution. Such right of an in-service candidate, who intends to pursue education, needs to {6} WP 10599.24.odtbe recognized, however, certainly, such pursuit to highereducation would be governed by the terms and conditions ofthe employment, when it comes to the exigencies of service.This would certainly not mean, that such right can be deniedor taken away, merely in view of the pendency of anydepartmental proceedings or criminal proceedings againstthe employee. In this context, it may also be observed thatissuance of an NOC is with an object and reason that acandidate is required to be available to discharge the dutiesof public employment or for any justifiable reason, it isappropriate to not permit an employee to pursue furthereducation as an in-service candidate which can only be forsome genuine reason touching the employment. In sucheventuality, the State Government as an employer wouldhave an authority not to permit the in-service candidate toundertake the P.G. Course, unless the employee fulfills thenecessary criteria which may be prescribed under theGovernment policy. However, any criteria which is arbitraryor illegal which would per se take away the rights of highereducation as recognized by the Supreme Court cannot befoisted on an in-service candidate. Moreover in fixing suchnorms, the State Government is required to be alive to thefact, that such employees were not privileged to completetheir education in the present case, hence, there is nothingwrong to pursue further education as an in-servicecandidate.23.It also cannot be overlooked that the Statecannot have a policy, rule or regulation which wouldadversely affect the citizen’s pursuit to education which heintends to achieve, much less of those who are inemployment, as right to education is now recognized to be afacet of the right to liberty under Article 21 of theConstitution of India. Further, Article 41 of the Constitutionmandates the State to secure the right to education, as oneof the directive principles of State Policy. Also in-servicecandidate achieving higher education would ultimately