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PETITIONER: RASESH C. CHOKSI

       Vs.

RESPONDENT: THE STATE OF GUJARAT & OTHERS

DATE OF JUDGMENT04/11/1977

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH, JASWANT

CITATION:  1978 AIR  270            1978 SCR  (1) 809  1977 SCC  (4) 545

ACT: Rules  governing the appointment of Registrars and  Housemen at  the  Government Medical Colleges and  attached  teaching hospitals framed by the Government of Gujarat in  Resolution No. MCG-1074-5100(N) Panchayat and Health Deptt. dt. 7-8-75- Interpretation  of Rule 23-Whether the word "leave" in  Rule 23  a  "noun"  or a "verb" and whether acts  as  a  bar  for consideration for appointment.

HEADNOTE: The  appellant who had a special interest in Obstetrics  and Gynaecology for want of a vacancy in that department  joined initially   as  a  Registrar  of  Anesthesia  and  gave   an undertaking  to serve in that capacity for a period  of  one year  as per the rules then existing.  Though the tenure  of the post was extended to two years instead of one, later on, the  department  did  not  take  any  undertaking  from  the appellant to serve the entire period.  Rule 23 of the "Rules governing the appointment of Registrars and, Housemen in the Government Medical Colleges and attached Teaching Hospitals" lays  down that "the candidates who are appointed on any  of the  resident posts and leave without completing the  tenure of  their appointment shall not be considered in future  for the post of Registrar".  When the appellant,applied for  the post  of  the  Registrar (Obstetrics  and  Gynaecology)  his application on a wrong interpretation of rule 23 and on  the ground  that the appellant had not completed his two  years’ tenure  as Registrar of Anesthesia, was not  considered  and respondent  No.  4 was appointed.  The  Gujarat  High  Court summarily  dismissed the writ petition challenging the  said appointment  of respondent No. 4 and the view taken  by  the department..  A Letters Patent Appeal preferred against  the said dismissal also failed. Allowing the appeal by special leave, the Court HELD  :  (1)  In order to understand the  real  purport  and import  of the word "leave" it is difficult to lay down  any proposition   of  universal  application.  in  the   English language  there are a number of words which can be  used  as Noun  and  also as Verb and more often  their  meanings  are different  when  they are used as Noun from those  when  the words  are  used as Verb.  The court has  to  determine  the meaning  having regard, first to context and the setting  in

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which the word has been used; and secondly the court has  to consider whether the word "leave" his been used as a noun or a verb. [812 D-E] (2)  The word "leave" used in Rule 23 has been used not is a noun  but as a verb.  If used ,is a verb the  word  "leave" postulates  that the candidates must have left  or  forsaken the  job for ever and ceased to remain in service  in  which case alone he would not be considered for promotion. [813 E- F] (3)  What  Rule 23 contemplated was not that a person  while in  service  should be debarred from applying for  a  higher post so long as he did not complete the tenure for which  he was  appointed.   Rule  23 does not appear  to  require  any causal  connection between the promotion to higher  job  and the  tenure of the service of the candidate concerned.   It, merely  signifies  that  those  candidates  who  choose   to relinquish the service once for all and cease to be in  tile department  would  not be considered for  higher  promotion. The rule Making. authority intended to impose a penalty on a person, who in the midst of it job chooses to quit the  same for ever by refusing to consider his case for promotion to a higher job which appear to have been confined only to  those candidates who are serving the department and not those  who had left the service. In the instant case the mere fact that the appellant applied for the job of registrar of Obstetrics and Gynaecology would not  amount  to his leaving the post which  he  was  holding though with the permission of the department 810 so as to fall within the mischief of Rule 23.  Rule 23  does not  act  as a bar to the appointment of  the  appellant  as Registrar of Gynaecology. [813 F-H,814 A] [The court directed the respondents Nos. 1 and 2 to consider the  case  of the appellant and if he is  appointed,  revert respondent No. 4.[814 A]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1040  of 1977. Appeal  by Special Leave from the Judgment and  Order  dated 19-1-177 of the Gujarat High Court in L.P.A. No. 11/77. S.   K. Dholakia and R. Ramachandran for the Appellant. D.   V. Patel Girish Chandra for Respondent No. 1. P.   H. Parekh and Miss Manju Jetley for Respondent No. 4. The Judgment of the Court was delivered by FAZAL  ALI,  J.  This appeal by special  leave  is  directed against  the judgement of the Division Bench of the  Gujarat High  Court dated 19th January, 1977 dismissing the  Letters Patent  appeal filed by the appellant against the  judgement of a Single Judge of the, Gujarat High Court which summarily dismissed the petition-filed by the appellant under, Article 226  of  the Constitution.  The High Court appears  to  have non.-suited  the appellant on the interpretation of Rule  23 of the Rules Governing the Appointment of Registrars, which, according  to the High Court, made the appellant  ineligible for being considered for the post of Registrar obstetrics  & Gynaecology. The facts of the case lie within a narrow compass and may be briefly stated thus :- The  appellant after a brilliant academic career passed  the S.S.C.  examination  in  1967 standing  9th  in  the  entire Province  of  Gujarat.   He thereafter  joined  the  Medical College  at Surat and passed the final M.B.B.S.  examination

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from  the South Gujarat University in October, 1973  in  all the subjects in the first attempt securing as high marks  as 133 in Obstetrics and Gynaecology.  Thereafter the appellant completed the period of Internship in 1974 and was appointed as  a  Houseman  in Obstetrics  ’and  Gynaecology  from  1st January,  1975 to 15th January, 1976.  The appellant  claims that he had a special interest in Obstetrics and Gynaecology and  pursued the postgraduate studies in the  subjects.   It was  in connection- with the pursuit of these  studies  that the appellant wanted to serve as a Registrar in the  Depart- ment  of  Obstetrics and Gynaecology whenever  such  vacancy fell. When   the appellant  was  appointed  as   Registrar   of Anaesthesra he accepted the same in the hope that this  will be a stepping stone in his further promotion as Registrar in the Department of Obstetrics and Gynaecology which post  had not fallen vacant till that time. On joining the post of the Registrar of Anaesthesia he gave an undertaking to serve  in that  capacity for a period of one year.  Later on the  15th March, 1976 the appellant received a communication that  the term of his tenure was extended to another year, that is  to say. that the tenure in the post was extended to two,  years instead of one. 811 Even  though the tenure in post was extended for  two  years the  Department  did  not  take  any  undertaking  from  the appellant to serve for the entire period. In response to an advertisement for the post of Registrar of Obstetrics  and  Gynaecology which fell vacant  with  effect from  1st  January,  1977 the appellant  along  with  others applied  for  the aforesaid job.  The  applications  of  the appellant  and  others were forwarded by the  De-an  to  the Director  of  Medical  Education  and  Research.   But   the Director was of the opinion that none of the applicants were eligible  for  the  post  of  Registrar  of  Obstetrics  and Gynaecology, because they had not completed the full  tenure in  the  present  post of Registrar.  As a  result  of  this decision  of the Director, the application of the  appellant was  not  considered  nor was he called  for  an  interview. Subsequently, respondent No. 4 was appointed as Registrar of Obstetrics and Gynaecology.  The appellant contended  before the High Court that he fulfilled all the conditions required for   the  appointment  of  Registrar  of   Obstetrics   and Gynaecology  and  the  Director on  a  wrong  and  erroneous interpretation  of Rule 23 appears to have been of the  view that  the appellant was not eligible.  The appellant  having failed  to get any redress from the Department filed a  writ petition  challenging the order of the Director  of  Medical Education  dated 14th December, 1976 and prayed for  a  writ for  directing the Director of Medical Education to  appoint the  appellant  to the post of Registrar of  Obstetrics  and Gynaecology. The High Court of Gujarat was of the opinion that in view of rule 23 since the appellant had not completed the period  of two years as Registrar of Anaesthesia and had applied before the  expiry  of the period, he could not be  considered  for appointment  to  the  post of Registrar  of  Obstetrics  and Gynaecology in view of the bar contained in rule 23. Thus,  the entire fate of this case depends on the true  and proper  interpretation of rule 23 and particularly the  word "leave" mentioned therein.  After having failed in the  High Court,  the  appellant applied for leave to appeal  to  this Court  which being refused, the appellant moved  this  Court for special leave which was granted and hence this appeal. It  was common ground that the appellant had  fulfilled  all

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the  necessary qualifications for the post of  Registrar  of Obstetrics and Gynaecology and if the bar of rule 23 was not applicable then there was absolutely no hurdle in the way of the  appellant  for  being appointed to  the  said  post  of Registrar.  The main bone of contention between the  parties has  been the interpretation of rule 23.  According  to  the appellant, on a proper interpretation of rule 23 it did  not debar him from seeking the post of Registrar, Obstetrics and Gynaecology.   The stand taken by the  respondent,  however, was  that  rule 23 completely debarred  the  appellant  from applying  or  for  being  considered for  the  post  of  the aforesaid Reg istrar. In order to appreciate the arguments we may extract rule  23 in extenso : 812               "The  candidates who are appointed on  any  of               the   Resident   posts   and   leave   without               completing  the  tenure of  their  appointment               shall not be considered in future for the post               of Registrar." The  interpretation of rule 23 would depend on  the  meaning and import of the word ’leave’ appearing therein.  The stand taken  by the respondent is that the, action on the part  of the  appellant  in  applying for the post  of  Registrar  of obstetrics  and  Gynaecology  would amount  to  leaving  the tenure  of his appointment as Registrar of Anaesthesia  even before  the  period  was over, and, therefore,  he  was  not entitled  to  be  considered for the post  of  Registrar  of Obstetrics  and Gynaecology.  Learned counsel  appearing  in support  of  the appellant submitted that the  word  "leave" should  be construed in its ordinary grammatical  sense  and would not indicate that a mere application by the  appellant for  a higher job would amount to forsaking or  leaving  the job  held  by him altogether.  Counsel for  the  respondent, however,  submitted that the word "leave"  includes  leaving the job with the permission of the department even with  the intention of securing a higher promotion, and does not  only imply  quitting  or  giving  up the job  for  ever.   It  is manifest  that in order to understand the real  purport  and import  of  the word "leave" it is difficult to lay  down  a proposition  of  universal application.  The  Court  has  to determine the meaning having regard first to the context and the  setting in which the word has been used, secondly,  the Court has to consider whether the word "leave" has been used as  a noun or as a verb.  In the English language there  are number  of words which can be used as noun and also as  verb and  more often than not their meanings are  different  when they are used as noun from those when the words are used  as verb. In  the instant case. having regard to the language of  rule 23  doubtless the word "leave" has been used as a verb,  and not as a noun.  Taking the word in its ordinary parlance  if used as a verb it clearly connotes that the candidate should have given up the job or quitted the service or severed  all connections with the post that he was holding.  If the  word "leave"  would  have  been used as a noun in  the  sense  of obtaining  leave or furlough then the concept of  permission would undoubtedly have to be considered. In Black’s Law Dictionary, Revised Fourth Edition at p. 1036 the  author referring to the case of Landreth v.  Casey  340 111.519; 173 NE. 8485 observes as follows               "Wilful departure with intent to remain  away,               and  not temporary absence with  intention  of               returning." To  the  same effect is the definition of the  word  "leave"

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when  used  it.,,  a verb  in  Webster’s  New  International Dictionary  at p. 1287 where it has been defined as  meaning "desert, abandon, forsake, to give up the practice,, to quit service and the alike." In Websters New World Dictionary at P. 834 the word  "leave" when ,used as a verb has been defined thus 813 "To  go  away from, to give up, abandon,  forsake,  to  stop working for, depart or set out." In  the Concise Oxford Dictionary the word "leave" has  been defined as "Quit, go away from, depart." Similarly  in Shorter Oxford English Dictionary, Vol.  1  at p. 1122 the word "leave has been defined when used as a verb as  ’to  depart  from, quit, relinquish,  to  go  away  from permanently,  to  abandon, forsake, to cease,  desist  from, stop". In The Random House Dictionary of the English Language at p. 816 the word "leave" has been defined when used as a noun as "permission  to do something, to beg leave to go  elsewhere, permission  to be absent as from duty," when used as a  verb it means "a parting, departure, farewell." In Stroud’s Judicial Dictionary, Third Edition, p. 1606 when used  as  a  verb ’leave" means "going  away  from,  depart, sail". Aiyar in Law Lexicon of British India at p. 71 5 observes as follows:               "Leave,  as  a noun, permission.  As  a  verb,               according  to the context or the  intent  with               which  it  is employed the word  may  mean  to               abscond; to deliver, to depart, to get off; to               give to go away from, to quit." Having  regard  to the definition of the word  "leave"  when used as a verb in the aforesaid authentic legal dictionaries we  have no doubt that the word "leave" used in rule 23  has been used not as noun but as a verb.  If used as a verb the word "leave" postulates that the candidate must have left or forsaken  the job for ever and ceased to remain in  service, in which case alone he would not be considered for promotion to the post of Registrar of Obstetrics and Gynaecoloay.   It seems  to  us  that  the rule  making  authority  must  have intended  to impose a penalty on a person, who in the  midst of  a  job which he is doing chooses to quit  the  same  for ever,  by refusing to consider his case for promotion  to  a higher job which appears to have been confined only to those candidates who were serving the department and not those who had  left  the  service.   In other  words,  what  the  rule contemplated  was not that a person while,in service  should be  debarred from applying for a higher post so long  as  he did  not complete the tenure of the period for which he  was appointed.   Rule 23 does not appear to require  any  causal connection between the promotion to     higher  job and  the tenure of the service of the candidate concerned.      It merely  signifies  that  those  candidates  who  choose   to relinquish the service  once for all and cease to be in  the department would not be considered for higher promotion.  It is  nobody’s case that the appellant at any  time  expressed hi-,  desire  to give up or relinquish the  service  or  had resigned the same in order to apply for the job of Registrar of  Obstetrics  and  Gynaecology.  On the  other  hand.  the appellant was very much serving as Registrar of  Anaesthesia when  he  applied for the job of Registrar  of  Gynaecology. Once  he was in actual service the question of  leaving  the service  as  contemplated by rule 23 did not arise  at  all. Our attention has not been drawn to any provision in rule 23 814

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or  any other rule which provides that unless the  candidate concerned has completed the period of two years he would  be completely debarred from applying for the post of  Registrar of  Gynaecology.   We  do not agree  with  counsel  for  the respondent that the combined effect of rule 16; and rule 23 contains  such a bar.  This argument is really based  on  an erroneous interpretation of rule 23 which has no nexus  with 16  at all.  For these reasons, we are unable to agree  with counsel  for  the  respondent that the mere  fact  that  the appellant applied for the job of Registrar of Obstetrics and Gynaecology  would amount to his leaving the post  which  he was  holding although with the permission of the  department so as to fall within the mischief of rule 23. The,  undisputed facts are that the appellant  obtained  the highest  marks  in M.B.B.S. examination in Gujarat  and  had passed  in all the subjects.  It is also not  disputed  that the  appellant’s name was mentioned in the merit list.   The only  ground on which the appellant was not  considered  for promotion was the opinion of the Director of Medical  Educa- tion  based  on  a  wrong  interpretation  of  Rule  23  and particularly  of the word "leave." It is,  therefore,  clear that  the appellant though fully qualified for the  post  of Registrar of Obstetrics and Gynaecology was not  considered, because  of  an error of law committed by  the  Director  of Medical Education.  As the appellant was not considered  for promotion,  respondent No. 4 was appointed.  It  is  obvious that  if  the appellant’s case was duly  considered  he  was bound  to be appointed as respondent No. 4  was  undoubtedly inferior in merit to the appellant.  The rules placed before us lay down that the appointment to the post of Registrar of Obstetrics  and Gynaecology must be made on merit and  merit alone.   It  is  true that if this appeal  was  to  succeed, respondent  No.  4 would have to be dislodged  causing  some hardship  to her, but as she secured an appointment under  a mistaken impression of law by the authorities, her reversion cannot  be  helped.  The fact however remains that  she  has already done more than It years as Registrar of  Gynaecology and  it  will  not be unjust for her to  make  way  for  the appellant  who  is  definitely  a  more  suitable  and  more meritorious  candidate  for  the  post  of  Registrar   of Gynaecology. For  these reasons, therefore, we are unable to  agree  with the view taken by the High Court that rule 23 acts as a  bar to  the  appointment  of  the  appellant  as  Registrar   of Gynaecology.   We,  therefore,  allow  the  appeal  of   the appellant and set aside the _judgment of the High Court  and direct  respondents No. 1 and 2 to consider the case of  the appellant  without  being guided by the  consideration  that rule  23  in  any way bars his appointment.   In  case,  the appellant  is  appointed respondent No. 4 will  have  to  be reverted.   In the peculiar.circumstances of this  case  we, make no order as to costs. S.R.                       Appeal allowed. 951 SCI/77-2,500-6-4-78 GIPF. 1