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Supreme Court of India
Dr. Rohit Kumar vs Secretary Office Of Lt. Governor … on 15 July, 2021Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, V. Ramasubramanian
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2739 OF 2021
(ARISING OUT OF SLP (C) NO. 3824 OF 2021)
DR. ROHIT KUMAR ……Appellant
versus
SECRETARY OFFICE OF LT. GOVERNOR
OF DELHI & ORS. .…Respondents
JUDGMENT
Indira Banerjee, J.
Leave granted.
2. This appeal has been filed by the Appellant against a final
judgment and order dated 12-02-2021 passed by a Division Bench of
the Delhi High Court dismissing the appeal, being L.P.A. No.52/2021,
of the Appellant against an order dated 02-02-2021 passed by the
Single Bench dismissing the writ petition being WP(C) No.499 of 2021
filed by the Appellant.
3. The Appellant, a doctor, who joined service of the Government
Signature Not Verified
Digitally signed by
SUNIL KUMAR
Date: 2021.07.18
12:29:09 IST
of National Capital Territory (NCT) of Delhi, on 5th August 2014, is
Reason:
presently posted as Medical Officer of the Emergency and Accidents
Department at the Deen Dayal Upadhyay Hospital, New Delhi.
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4. The Appellant has duly completed five years of regular and
continuous service with the Government of NCT of Delhi and is thus
eligible to avail Study Leave to pursue the post graduate course, in
accordance with the Directives and Guidelines of the Ministry of
Health and Family Welfare, Government of India issued vide
O.M.A.12034/0312012-CHS-V dated 2nd November, 2012, the
relevant portion whereof, is extracted hereinbelow:
“1.CHS officer who has satisfactory completed period of
probation and has rendered not less than five years regular
service including the period of probation under the
Government and is not due to reach the age of
superannuation from Government service within five years
from the date on which he is expected to return to duty after
the expiry of the leave, is entitled to avail study leave under
Rule 50 of CCS (leave) Rule 1072.”
5. On or about 14th October 2020, the Appellant was duly granted
permission to apply for and appear at the INICET-2020, a highly
competitive examination for admission to the MD/MS courses in some
of the premier medical institutions of the country, such as All India
Institute of Medical Sciences (AIIMS), New Delhi, the Post Graduate
Institute of Medical Education and Research (PGI), Chandigarh, etc.
6. The results of the INICET-2020 were declared on 28th
November, 2020. The Appellant successfully cleared the Examination
and was, accordingly called by PGI Chandigarh for counselling for
admission to the MD/MS course, by a notice dated 24 th December,
2020. The Appellant duly participated in the off-line counselling for
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the MD/MS course at PGI, Chandigarh on 29 th December, 2020, and
was allotted a seat in the MD course in Paediatrics.
7. The authorities of Deen Dayal Upadhyay Hospital duly issued
the required ‘No Objection Certificate’ to the Appellant to enable the
Appellant to pursue the post graduate course in Paediatrics at PGI,
Chandigarh. After completing all the requisite formalities, the
Appellant applied to the Respondent No.1 for Study Leave as per the
Rules, to enable him to join the MD course in Paediatrics at the PGI,
Chandigarh. In the meanwhile, on or about 20th October 2020, a
policy decision was taken, not to grant any further Study Leave to the
doctors working in the hospitals of the Government of NCT of Delhi, in
view of the COVID-19 pandemic.
8. Another Office Order dated 22-10-2020 was issued by the
Government of NCT of Delhi, Health and Family Welfare Department
(Medical Branch), which is extracted herein below for convenience: –
“In view of the prevailing situation of COVID-19 in NCT of
Delhi and the projections made by Experts about the
expected increase in cases of COVID-19 during the period
November-December, 2020, it is not feasible, in public
interest to spare the services of GDMOs, to pursue Post
Graduation courses. GDMOs cannot be acceded to at this
juncture.”
9. By an order dated 22nd January 2021, the Respondent No.1
rejected the application of the Appellant for Study Leave, having
regard to the policy decision taken by the Government on 20th
October, 2020 and the subsequent order dated 22nd October, 2020.
On 31st January, 2020, admission to the post graduate courses in PGI,
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Chandigarh, for the 2020 session was closed, and the allotment of the
Post Graduate seat to the Appellant was cancelled.
10. The Appellant had filed a writ petition in the Delhi High Court
challenging the action of the Respondent No. 1 in not granting Study
Leave to the Appellant to enable him to join the post graduate course
at PGI, Chandigarh. The said writ petition was dismissed by a Single
Bench of the High Court, and an appeal therefrom, filed by the
Appellant, has been dismissed by the Division Bench of the High
Court, by the judgment and order impugned in this appeal.
11. As observed above, even though the Appellant cleared INICET-
2020 and was selected for the post graduate course in PGI, a premier
medical institution, he was declined Study Leave by the Respondent
No.1 in view of the COVID-19 pandemic and the consequential policy
decision adopted on 20th October 2020, not to grant Study Leave to
doctors working in Government hospitals in Delhi.
12. Ms. Geeta Luthra appearing on behalf of the Appellant argued
that the Appellant had arbitrarily been declined Study Leave whereas
many other doctors, similarly circumstanced as the Appellant, had
been granted Study Leave to pursue post graduate courses, even
after the onset of the COVID-19 pandemic. The Respondent Nos. 1
and 2 have thereby discriminated against the petitioner.
13. Ms. Luthra cited the instances of Dr. Dharmendra Kumar, Dr.
Vipul Pandey, Dr. Brijesh Patel, Dr. Avneesh Tripathi, Dr. Punit Mishra
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who had admittedly been granted Study Leave in
July/August/September, when there were a large number of COVID-19
cases in Delhi.
14. Ms. Luthra argued that on 14th October 2020, when the
Appellant was granted permission to apply for and appear at the
INICET-2020, the number of new COVID-19 cases reported in the
preceding 24 hours was 3324. However, in December/January
/February, the daily figure of new cases had declined substantially.
There could, therefore, be no justification in refusing Study Leave to
the Appellant and depriving him of the opportunity to pursue post
graduate studies in a premier institution.
15. While it is true that admittedly numerous doctors named in the
SLP have been granted Study Leave during the COVID-19 pandemic,
when COVID-19 cases were on the rise, those doctors were granted
Study Leave before the policy decision of 20th October, 2020 and the
order dated 22nd October, 2020 referred to above. Our attention has
not been drawn to a single case of grant of Study Leave to a doctor of
a hospital under the Government of NCT, after the said policy
decision.
16. Ms. Aishwarya Bhati, learned Additional Solicitor General,
appearing on behalf of the Respondent No.1 argued that the
Respondent No.1 had neither acted arbitrarily, nor discriminated
against the Appellant, in turning down the request of the Appellant for
Study Leave. The order of the Respondent No.1 in refusing Study
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Leave to the Appellant had to be taken in view of the Pandemic, with
predictions of exponential rise in the number of COVID-19 CASES and
the consequential policy decision taken on 20th October, 2020.
17. Ms. Bhati argued that even though there may have been a
decline in the number of fresh COVID-19 cases in
December/January/February, the policy adopted on 20th October,
2020 and the subsequent order dated 22nd October, 2020 had not
been annulled, in view of predictions of the likelihood of a possible
second wave and spurt in COVID-19 cases. The doctors of hospitals
run by the Government of NCT, Delhi, could not, therefore, be spared
for higher studies.
18. Ms. Bhati also argued that Study Leave could not be claimed as
a matter of right and it was open to the Government to refuse any
application for Study Leave, if the service of the concerned doctor was
required in public interest. She submitted that the Respondent No.1
has acted within the parameters of law and has not committed any
wrong in not allowing Study Leave to the Appellant.
19. It may be true, as argued by Ms. Bhati, that no leave can be
claimed as a matter of right. The concerned Respondents have
apparently acted within the parameters of law in declining Study
Leave to the Appellant in the teeth of COVID-19 pandemic, when
doctors were urgently required in Government hospitals, to treat
COVID-19 patients. The fact that some doctors may have been
granted Study Leave after the spread of COVID-19 cases in Delhi, did
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not debar the Government from taking a policy decision not to grant
Study Leave to doctors any further, when exigencies necessitated
such a decision.
20. The policy decision is stated to have been prompted by
predictions of rise in the number of COVID-19 cases in Delhi. The
exponential rise of COVID-19 cases in Delhi in April/May, 2021 with
about 25,000 new cases per day and the consequential pressure on
hospitals, nursing homes, clinics and other medical establishments
justify the apprehension which led to the policy decision of 20 th
October, 2020. In any case the prudence of and/or justification for
the policy decision cannot be examined by the Court in exercise of its
extraordinary power of judicial review under Article 226 of the
Constitution of India.
21. The policy decision not to grant Study Leave to doctors for a
certain length of time, in apprehension of a rise in COVID-19 cases, to
ensure the availability of as many doctors, as possible for duty, is
neither arbitrary, nor discriminatory, nor violative of Article 14 of the
Constitution of India.
22. At the same time, this Court cannot be oblivious to the
legitimate expectation of COVID-19 warriors like the Appellant to fair
treatment, in conformity with the Service Rules by which they are
governed, to enable them to pursue higher education and enhance
their educational qualifications. Needless to mention that doctors
with higher qualifications and special knowledge in specific areas
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would be an asset to the medical fraternity, as also to the society.
23. The guidelines and directions of the Ministry of Health and
Family Welfare, as contained in the Order being O.M.A.
12034/0312012-CHS-V dated 2nd November, 2012 entitles a Central
Health Service Officer who has satisfactorily completed probation and
rendered not less than five years of regular service, to avail Study
Leave under the CCS (Leave) Rules 1972, provided he is not due to
attain the age of retirement within 5 years from the date on which the
officer is expected to return to duty, and/or in other words, within five
years from the date on which his Study Leave ends.
24. The policy decision taken on 20th October, 2020, not to grant
further Study Leave to doctors working in hospitals under the
Government of NCT of Delhi in apprehension of rise in COVID cases, is
obviously a temporary one. The policy cannot continue indefinitely
irrespective of changes in circumstances. The policy has necessarily
to be reviewed from time to time and relaxed and/or modified once
there is decrease in the number of COVID-19 cases in the NCT of
Delhi.
25. Thankfully, the COVID-19 situation in Delhi is now under control.
As on 14th July, 2021, that is, yesterday, there were total number of
688 active COVID-19 cases, of whom about 250 were in home
isolation, as per news reports based on bulletins issued by the Health
Department of the Government. The number of new cases per day
has dropped to less than 100. It is reported that in most hospitals
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COVID-19 beds are now lying vacant. The application of the Appellant
for Study Leave should, therefore, be reconsidered.
26. At the cost of repetition, it is reiterated that the Appellant could
not join the Post Graduate Course for no fault of his own, as his
services were required in public interest, for the cause of humanity, to
save lives. The admission to the Post Graduate Course was closed on
31st January, 2021 and classes commenced soon thereafter. The
Appellant continued to render service to the Government of NCT of
Delhi, treating patients at the Deen Dayal Upadhyay Hospital. Now
that the COVID-19 situation in Delhi is under control, the Government
of NCT of Delhi should, as a model employer, make an endeavour to
see that the Appellant is not deprived of the fruits of his success in
the INICET 2020 and is able to pursue post graduate studies.
27. Mr. Sudarshan Rajan, appearing for PGI Chandigarh, submitted
on instructions that candidates who had cleared the INICET 2020 and
selected to a post graduate course in PGI joined the January, 2021
session. The students who joined the January 2021 session, which
commenced in January, 2021, have completed one semester and are
now in the second semester. The admission to the next session,
which is due to commence in July, 2021 will be made by conducting
the INICET 2021.
28. Mr. Rajan submits that INICET 2021, which was originally
scheduled to be held on 16th June, 2021, has been postponed to 22nd
July, 2021 on account of the COVID-19 pandemic. One unfilled seat of
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the MD course in Paediatrics, of the sponsored category, for the
January 2021 session, at PGI Chandigarh, which had not been filled up
because of the inability of the Appellant to join, has been re-
advertised for the July 2021 session and is to be filled up through
INICET 2021.
29. Ms. Luthra’s submission that the Appellant be admitted in the
January 2021 session cannot be accepted, since the classes
commenced over six months ago and the students who were
admitted to that session, have completed their first semester and
entered the second semester. There can be no question of any
direction of this Court, to admit the Appellant to the second semester
directly, as suggested by Ms. Luthra, when he has not been able to
attend a single class of the first semester. The question is, whether
the Appellant can be accommodated in the next academic session
scheduled to commence in July, 2021. Since one unfilled seat in the
Post Graduate Course in Paediatrics at the PGI Chandigarh, has been
carried over and re-advertised for the July, 2021 course, no prejudice
will be caused to any one, if that vacant seat is re-allotted to the
appellant once again. Unless the seat is re-allotted to the Appellant,
and the Appellant is granted Study Leave by the Respondent Nos. 1
and 2, he will be irreparably prejudiced.
30. The question of whether a meritorious candidate, denied
admission to a medical course, can be accommodated in that course
in the following academic year, was considered by a three Judge
Bench of this Court in S. Krishna Sradha vs. The State of Andhra
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Pradesh and Others1. The Court held: –
“29. However, the question is with respect to a
student, a meritorious candidate for no fault of his/her
has been denied admission illegally and who has
pursued his/her legal rights expeditiously and without
delay is entitled to any relief of admission more
particularly in the courses like MBBS ….
30. The aforesaid question is required to be
considered only to the cases where (i) no fault in
attributable to the candidate;(ii) the candidate has
pursued her rights and legal remedies expeditiously
and without delay; (iii) where there is fault on the part
of the authorities and apparent breach of rules and
regulations; and (iv) candidate is found to be more
meritorious then the last candidate who has been
given admission.”
31. In S. Krishna Sradha (supra) this Court directed as follows :-
“33. In light of the discussion/observations made
hereinabove, a meritorious candidate/student who has been
denied an admission in MBBS Course illegally or irrationally
by the authorities for no fault of his/her and who has
approached the Court in time and so as to see that such a
meritorious candidate may not have to suffer for no fault of
his/her, we answer the reference as under: (i) That in a case
where candidate/student has approached the court at the
earliest and without any 25 delay and that the question is
with respect to the admission in medical course all the
efforts shall be made by the concerned court to dispose of
the proceedings by giving priority and at the earliest. (ii)
Under exceptional circumstances, if the court finds that
there is no fault attributable to the candidate and the
candidate has pursued his/her legal right expeditiously
without any delay and there is fault only on the part of the
authorities and/or there is apparent breach of rules and
regulations as well as related principles in the process of
grant of admission which would violate the right of equality
and equal treatment to the competing candidates and if the
time schedule prescribed–30th September, is over, to do the
complete justice, the Court under exceptional
circumstances and in rarest of rare cases direct the
admission in the same year by directing to increase the
seats, however, it should not be more than one or two seats
and such admissions can be ordered within reasonable time,
i.e., within one month from 30th September, i.e., cut off
date and 26 under no circumstances, the Court shall order
any Admission in the same year beyond 30th October.
However, it is observed that such relief can be granted only
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in exceptional circumstances and in the rarest of rare cases.
In case of such an eventuality, the Court may also pass an
order cancelling the admission given to a candidate who is
at the bottom of the merit list of the category who, if the
admission would have been given to a more meritorious
candidate who has been denied admission illegally, would
not have got the admission, if the Court deems it fit and
proper, however, after giving an opportunity of hearing to a
student whose admission is sought to be cancelled. (iii) In
case the Court is of the opinion that no relief of admission
can be granted to such a candidate in the very academic
year and wherever it finds that the action of the authorities
has been arbitrary and in breach of the rules and
regulations or the prospectus affecting the rights of the
students and that a candidate is found to be meritorious
and such 27 candidate/student has approached the court at
the earliest and without any delay,the court can mould the
relief and direct the admission to be granted to such a
candidate in the next academic year by issuing appropriate
directions by directing to increase in the number of seats as
may be considered appropriate in the case and in case of
such an eventuality and if it is found that the management
was at fault and wrongly denied the admission to the
meritorious candidate, in that case, the Court may direct to
reduce the number of seats in the management quota of
that year, meaning thereby the student/students who
was/were denied admission illegally to be accommodated in
the next academic year out of the seats allotted in the
management quota. (iv) Grant
of the compensation could be an additional remedy but not
a substitute for restitutional remedies. Therefore, in an
appropriate case the Court may award the compensation to
such a meritorious candidate who for no fault of his/her has
28 to lose one full academic year and who could not be
granted any relief of admission in the same academic year.
(v) It is clarified that the aforesaid directions pertain for
Admission in MBBS Course only and we have not dealt with
Post Graduate Medical Course.”
32. The judgment in S. Krishna Sradha (supra) was rendered in
the context of admission to the MBBS Course and not to a post
graduate course. However, in National Medical Commission vs.
Mothukuru Sriyah Koumudi and Others2, this Court held:-
“11. As the dispute in S. Krishna Sradha (supra) pertained
to admission to the undergraduate MBBS Course, this Court
held that they have not dealt with the Post Graduate
Medical Courses. Mr. Parameshwar argued that there is no
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reason why the logic behind the judgment in S. Krishna
Sradha (supra) should not be made applicable to Post
Graduate Courses. We find force in the said argument of
Mr. Parameshwar. This Court was only dealing with the
admission to the MBBS Course for which reason directions
given in the said judgment were restricted to the MBBS
Course. Directions issued in S. Krishna Sradha (supra) can
be made applicable to admission to Post Graduate Courses
as well.”
33. The proposition of law which emerges from the judgments of
this Court in S. Krishna Sradha (supra) and in National Medical
Commission v. Mothukuru Sriyah Koumudi and Others (supra)
is that in rare and exceptional cases, a meritorious candidate, who
has suffered injustice by reason of his/her inability to secure
admission in a medical course, whether under-graduate or post-
graduate, due to no fault of his/her own, who has taken recourse to
law promptly, without delay, might be granted relief of being
accommodated in the same post in the next session.
34. Of course, the judgments in S. Krishna Sradha (supra) and in
National Medical Commission vs. Mothukuru Sriyah Koumudi
and Others (supra) are clearly distinguishable, in that the concerned
petitioners had wrongfully and illegally been denied admission by
disqualifying them. The Appellant on the other hand, cleared INICET-
2020 and was allotted a seat in the post-graduate course in
Paediatrics. PGI, Chandigarh had also acceded to the request of the
Appellant to extend the last date of admission. Unfortunately the
Appellant was refused Study Leave.
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35. It is well settled that a judgment is an authority for the issue of
law which is raised and decided. What is binding on the courts is
what the Supreme Court decides under Article 141 and not what the
Supreme Court does under Article 142, in exercise of its power to do
complete justice in any cause or matter pending before it.
36. To quote V. Sudhish Pai from Constitutional Supremacy A Revisit:
“Judgments and observations in judgments are not to be
read as Euclid’s theorems or as provisions of statute.
Judicial utterances/pronouncements are in the setting of
the facts of a particular case. To interpret words and
provisions of a statute it may become necessary for
judges to embark upon lengthy discussions, but such
discussion is meant to explain not define. Judges
interpret statutes, their words are not to be interpreted as
statutes. “
37. All the conditions set forth in paragraph 30 of the judgment in
S. Krishna Sradha (supra) quoted above, would not therefore, be
verbatim applicable in the distinguishable facts and circumstances of
this case, for grant of the rare and extra-ordinary relief of admission
to the same course in the next academic year. The broad principles
laid down by this Court for admission to the same course in the
following session, would have to be followed, to the extent feasible, to
advance the cause of justice, but not with pedantic rigidity.
38. In this case, the Appellant has not been able to take admission
to the MD Course in Paediatrics, which commenced in January, 2021,
in circumstances entirely beyond his control, in spite of being selected
for admission after successfully clearing the highly competitive INICET
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2020. Unfortunately, the Appellant was not granted Study Leave from
the concerned Respondents, for reasons not attributable to him. The
Appellant was not at fault. But then PGI, Chandigarh was also not at
fault. The Appellant also approached the High Court promptly, well
before the admission was closed.
39. Having regard to the circumstances in which the Appellant has
been declined Study Leave, it cannot also be said that the Respon-
dent Nos. 1 and 2 have acted beyond the parameters of law. Never-
theless, the Appellant has suffered injustice, because of the denial of
Study Leave, in that he has been deprived of the opportunity to pur-
sue higher studies, which many other doctors have availed. It would
be unfair to deny the Appellant the opportunity to enjoy the fruits of
his efforts even now, when the COVID-19 situation has improved and
is in control, only because the Respondents have not committed “ap-
parent breach of rules and regulations” in refusing the Appellant
Study Leave. This Court cannot fold its arms and remain a mute
spectator to the plight of the Appellant. After all, “nothing rankles the
heart more than a brooding sense of injustice”.
40. In S. Krishna Sradha (supra), the condition of “fault on the
part of the authorities and apparent breach of rules and regulations”
for grant of the relief of admission to the next session to a candidate
wrongly denied admission in an earlier session, is a sequel to and
flows from the condition that there should be no fault on the part of
that candidate. The Court has elaborated on the condition of “no fault
of the candidate” to ensure that relief is not claimed as a matter of
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right for any lapse or infraction of rules on the part of the candidate
by recourse to the plea of the candidate not being at fault. To cite an
example, an individual candidate cannot as a matter of right claim re-
lief when for inability to fulfil a condition of admission for reasons
such as computer crash at his end, inability to raise funds within time
for payment of admission fees, inability to adhere to time schedules
by reason of vehicular breakdown, illness, bereavement etc. which
may not be within the control of the candidate, as otherwise it would
be impossible for educational institutions to complete the admission
process, in time, when there are a large number of applicants.
41. In this case, there has not been any lapse on the part of the Ap-
pellant. The Appellant could not joint the post graduate course in PGI
Chandigarh for the January 2021 session for reasons attributable to
the Respondent Nos. 1 and 2 though technically, the said Respon-
dents cannot be said to have acted illegally or in breach of rules and
regulations, in denying the Appellant Study Leave, in apprehension of
rise in COVID-19 cases and the exigency of availability of doctors in
full strength, as far as possible.
42. The Appellant, who could not join the post graduate course, due
to the denial of Study Leave by the Government pursuant to a legiti-
mate policy decision and in response to the call of duty, cannot now
be denied relief on the hyper technical ground that the Respondent
Nos. 1 and 2 had not breached any rules or regulations. It would be a
travesty of justice to deny relief to the Appellant, when the Appellant
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had to make a personal sacrifice in the larger public interest, to serve
the cause of humanity.
43. Since the seat in the Post Graduate Course in PGI Chandigarh
which remained unfilled due to the inability of the Appellant to join
has been carried over to the July 2021 session which is yet to
commence, and re-advertised, this Court deems it appropriate to
direct the PGI, Chandigarh, being the Respondent No. 3 to admit the
Appellant to the post graduate course scheduled to commence in July
2021, on the basis of INICET 2020, which he has successfully cleared.
The Respondent No. 1 shall re-consider the application of the
Appellant for Study Leave, taking into consideration the decline in
COVID-19 cases in NCT of Delhi, and take a reasonable decision in
favour of the Appellant. Unless there is a substantial rise in COVID-19
cases, the leave application of the Appellant shall not be declined.
44. These directions are being passed in exercise of the power of
this Court under Article 142 of the Constitution of India, in the facts
and circumstances of this case, having regard to the fact that the
Appellant had cleared INICET 2020 held in November 2020 and had
been offered admission to PGI, Chandigarh, but could not join as he
was not released on Study Leave in view of the serious COVID-19
situation prevailing in NCT of Delhi at the material time, and this order
will not be treated as a precedent.
45. The appeal is, disposed of, accordingly. The impugned
judgment and order of the Division Bench of the High Court, and
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judgment and order of the Single Bench of the High Court dated
02.02.2021 are set aside.
….……………………………………. J.
[INDIRA BANERJEE]
………..……………………………… J.
[V. RAMASUBRAMANIAN]
New Delhi;
July 15, 2021
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