Central Administrative Tribunal - Delhi
Dr. Nurul Absar vs Union Of India Through on 23 March, 2009
Central Administrative Tribunal Principal Bench OA No.1464/2008 New Delhi this the 23rd day of March, 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Dr. Nurul Absar, Scientific Officer-D, Atomic Minerals Directorate For Exploration and Research, Department of Atomic Energy, West Block-VII, R.K. Puram, New Delhi. -Applicant (By Advocate Shri Anand Dey Chandra Bhuishan) -Versus- Union of India through Atomic Minerals Directorate For Exploration and Research, Department of Atomic Energy, 1-10-153/156, AMD Complex, Begumpet, Hyderabad-500016 Through Director. -Respondent (By Advocate Shri H.K. Gangwani) O R D E R Mr. Shanker Raju, Honble Member (J):
Applicant, a Scientific Officer D working in Atomic Minerals Directorate, Exploration and Research, Department of Atomic Energy, by virtue of this OA impugns respondents orders dated 30.8.2006, 22.6.2007, 28.9.2007, 14.11.2007 and 28.2.2008. He challenges the conditions of bond executed by him for advance post graduate diploma in minerals exploration as well as the act of the respondents in nominating him to pursue M. Tech course from university of Hyderabad on execution of bond, which binds him to serve Government of India for five years after completion of the training. Applicant has also assailed an act of the respondents whereby his application for passport has not been forwarded and repeated non-forwarding of his application for appointment outside the department of Atomic Energy. Applicant seeks quashing of the impugned orders and bond dated 30.8.2006.
2. Applicant, who has done his Doctorate in identification of basement structure and basement configuration in the western margin of Gwalior basin using aeromagnetic data, was appointed on 9.7.1999 in the department of Atomic Energy. He was posted, as per the appointment letter, in the Northern Region (AMD) with all India service liability. One of the conditions was that the applicant shall not apply for any post elsewhere without prior permission to be obtained from the competent authority in writing. All other rules of the Government cover other conditions of service of applicant. On 11.8.2006 pursuant to the recommendations of the apex committee consisting of Professor Dr. Subba Rao, Incharge of University of Hyderabad, 10 scientific officers of Atomic Minerals Directorate (AMD), including applicant, were sponsored for advance PG diploma for the academic year 2006-2007 with a stipulation that all expenditure would be borne by the department and the period has to be reckoned as the period of study on duty. Applicant was asked to execute a bond, according to which applicant has to serve the department for a period of four years after completion of the course, failing which to refund Rs.20,000/- in addition to the pay and allowances drawn during the said course with interest. Applicant executed the bond on 30.8.2006 without any force, fear or coercion on his own volition. On 29.11.2006 Administrative Officer-III, AMD conveyed approval of the competent authority for payment of TA/DA for the field-training programme conducted by the University of Hyderabad. Applicant, vide his letter dated 21.2.2007, sought clarification of his status at Hyderabad, which was reiterated on 7.3.2007. A clarification by Administrative Officer on 26.4.2007 decided that the officers are entitled to only single to and fro rail fare in eligible class without D.A. and reimbursement of medical examination fees, admission fees, tuition fees, examination fees and purchase of books, which will remain the property of Government. Applicant on 31.5.2007 vide his communication to the Incharge Planning and Management Services Group conveyed his non-acceptance to pursue four semester M-Tech course but agreed to complete two semester Advance PG Diploma in Mineral Exploration Course, which he was pursuing. On 22.6.2007, the Chief Administrative and Accounts Officer of the AMD for Exploration and Research of the department of Atomic Energy ruled that the project is in public interest and expression of unwillingness by applicant is not accepted by the competent authority. On 31.8.2007 Assistant Personnel Officer directed the applicant along with other officers to report to their respective Regional Directors/Incharge immediately for further assignment. The Chief Administrative and Accounts Officer on 28.9.2007 informed the applicant to execute a bond to serve the department for a period of five years after completion of the M-Tech Training course, failing which to reimburse the Government an amount of not less than Rs.8 lakhs. The applicant has not executed the aforesaid bond despite the option with cut off date sent to him on 14.11.2007. He was also reminded in this regard on 16.1.2008. Applicant preferred a representation on 22.2.2008 for his relieving from pursuing the course and declaring it null and void. Hence the present OA.
3. Learned counsel of applicant stated that the action of the respondents is arbitrary and violative of Articles 14 and 16 of the Constitution of India, as he was not offered the extended option to join or otherwise and was forced to execute the bond.
4. Learned counsel would contend that as the applicant was treated as on duty no DA has been paid and in view of the CCS (Leave) Rules, 1972 and FR whereby the maximum term to which a person would be bound on completion of training is three years, yet it has been 5 years in the forced execution of the bond. Learned counsel states that applicant has never accepted to pursue the four semester course, as he has already possessed a Doctorate degree in a subject in which he is asked to undergo P.G. degree, and having possessed higher degree, there is no useful purpose or object sought to be achieved, which will enhance the ability of applicant with newer techniques in mineral exploration. It is stated that if this is the object, applicant should have been nominated for postdoctoral programmes in reputed institute instead of M-Tech or PGDME course.
5. Learned counsel at this stage would also contend that when the applicant had applied for the passport, the same was not forwarded and he also applied through proper channel for the post of Reader in Geology, Aligarh Muslim University, Aligarh, which too was not forwarded by the respondents on the pretext that as per the earlier bond he has an obligation to serve the department at present.
6. On the other hand, learned counsel of respondents Shri H.K. Gangwani vehemently opposed the contentions and stated that AMD for Exploration and Research is a constituent Research and Development Unit of Department of Atomic Energy, which is entrusted with the task of survey and prospecting of strategic and rare minerals like Uranium, Thorium etc. and thus contributes to and supports the Nuclear Power Programme of the country. Though this Directorate has its Headquarters at Hyderabad, for the sake of administrative convenience, seven Regional Offices have been established all over the country, where field establishment have been further established with a view to execute nuclear power programme. Certain guidelines have been formulated which includes research and development with broad based R&D in Nuclear Sciences and Technologies involving Scientific Groups within department of Atomic Energy and outside including universities. The current thrust of AMD is now on locating concealed deposits like unconformity-related and iron oxide breccias complex type, which are large tonnage/high grade similar to the deposits located in Canada and Australia. The respondents Directorate sponsored the applicant along with nine other scientific officers of respondents Directorate initially for two semesters for the advance P.G. Diploma in mineral exploration conducted by the University of Hyderabad. The main objective of this study was to equip the scientific officers (Geology) with latest techniques in the field of mineral exploration. The course would acquaint the officers/students with various aspects of mineral exploration with special emphasis on Geophysics, Geostatistics, Mathematical Modeling and Quantitative methods, Computing Techniques for Geosciences, Nuclear Geology, Isotope Geochemistry, Geochemical exploration and instrumentation techniques in geochemical exploration, remote sensing and spatial data management, well logging, geothermic, nuclear science and engineering etc. The University of Hyderabad has entered into a memorandum of understanding with National Geophysical Research Institute, Atomic Minerals Directorate for Exploration and Research and National Remote Sensing Agency for taking up the challenging task of drawing an integrated innovative M. Tech and Advance Post Graduate Diploma in Mineral Exploration. A uniform standard orientation on knowledge base to execute exploration programme had to be imparted to the newly joined and young scientific officers/Engineers.
7. It is further stated that the applicant with his educational profile was initially appointed as Scientific Officer C (Geology) on 26.7.1999 and further promoted to Scientific Officer D w.e.f. 1.8.2004 and serving in Northern Region, New Delhi since his initial appointment.
8. Learned counsel also stated that the applicant along with others was sponsored in public interest. The Government is spending on an average Rs.4.00 lakhs on each officer in enriching their knowledge so as to serve the Department efficiently and effectively and utilize the knowledge to augment the Atomic Minerals resource base. In order to realize this object, there should be some mechanism to ensure that the trained intellectuals remain with the Department and also to ensure that securing the services of trained personnel is kept at the minimum, the FR provide provision to take bond from such Government servants to serve the Department for a minimum period of three years. Since the Government is incurring an expenditure to the tune of Rs.4.00 lakhs per person a bond was obtained from the officers who were sponsored for the advance PG Diploma in Mineral Exploration for a period of four years, failing which they are required to pay to the Government Rs.4.00 lakhs plus interest thereon.
9. It is further submitted that possessing of higher degree is not related to the present course sponsored by the respondent as the nomination was a part of Human Resource Development with a view to enhance the abilities with newer techniques in mineral exploration as reiterated. The identified project being in public interest, the question of applying study leave does not arise. It is, therefore, mandatory for the applicant to execute Bond.
10. Shri Gangwani would contend that though the initial appointment of a government servant is a contract but its further conditions of service are regulated by rules and as a policy decision, which is not proved to be arbitrary or malafide and rather in furtherance of the object sought to be achieved in public interest for the benefit of the country, the bond is neither unconscionable nor unreasonable.
11. Rejoinder reiterates the pleas taken in the OA.
12. We have carefully considered the rival contentions of the parties and perused the material on record. While the applicant was appointed as a Scientist C on 26.7.1999 he has accepted and agreed to all the rules framed by the Central Government from time to time. The oath of allegiance was also taken with an oath of secrecy. There is an impediment for joining another post without prior permission in writing of the competent authority. Execution of bond on a specific training imparted at the cost of the Government with a stipulation not to join for a reasonable period any other post or leave the department is a reasonable piece of stipulation, which has reasonable nexus with the object sought to be achieved, which is in furtherance to development of this country, where due to global warming and a threat to water resources in the country nuclear power has emerged as the only cost effective substitute for energy. Minerals Power Exploration when is associated with Atomic Energy its basic object is to explore through advanced training research exploration the material by which the nuclear power is generated, namely Uranium and Thorium. A P.G. Course to which applicant has agreed to for the academic year 2006-2007 on the basis of an apex committees decision under the chairmanship of Professor Dr. Subba Rao to extend the training course, including M. Tech course in minerals exploration and an alteration and modification in the terms and conditions of bond whereby the applicant has been bound on completion of the training to serve the department for a period of five years after completion of the training and in case of quit within five years on completion of training to return Rs.8 lakhs is the bone of contention being assailed as unconscionable and arbitrary by the applicants counsel, which cannot be countenanced in law. No doubt, public interest is not to be defined precisely but it depends upon the individual circumstances of each case. Applicant, though may be a Ph. D in identification of basement structure and basement configuration in the western margin of Gwalior basin using aeromagnetic data, yet the PG diploma course which he is asked to pursue is an advanced course to its continuation and once a decision has been arrived at by the apex committee consisted of a well reputed Scientist in atomic field, we cannot substitute our own opinion being non-expert. What is best interest in the field of atomic energy and its development in the country is best known to the experts. In a Constitution Bench decision of the Apex Court in Delhi Transport Corporation v. DTC Mazdoor Congress, 1991 91) SCC (L&S) 1213 though it is held that in the field of service there can be myriad situation which results in unfair and unreasonable bargains between the parties could not be enumerated nor fully illustrated. In the above backdrop, the employment under State and Right to life includes right to livelihood could not hang in the fancies of the individual authority. However, to examine in the context of the facts and circumstances of the case, in Bannari Amman Sugars Ltd. v. Commercial Tax Officer and others, (2005) 1 SCC 625 on administrative law and arbitrariness as to the policy decision the following observations have been made:
9. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning" and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
10. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.
13. In the Constitutional Bench decision of the Apex Court in Union of India v. Tulsi Ram Patel, 1985 SCC (L&S) 672 as to the doctrine of pleasure and public interest, the following observations have been made:
43. The position that the pleasure doctrine is not based upon any special prerogative of the Crown but upon public policy has been accepted by this Court in State of Uttar Pradesh v. Babu Ram Upadhya (1961) 2 SCR 679, 696 : (AIR 1961 SC 751 at P. 759) and Moti Ram Deka v. General Manager, N.E.F. Railways, Maligaon, Pandu, (1964) 5 SCR 683,734-5 : (AIR 1964 SC 600 at Pp. 620-21). This Court has also accepted the principle that society has an interest in the due discharge of their duties by government servants. In Roshan Lal Tandon v. Union of India (1968) 1 SCR 185 : (AIR 1967 SC 1889) Ramaswami, J., speaking for the Court, said (at page 195 of SCR) : (at P. 1894 of AIR) :
"It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of nights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned." (Emphasis supplied)
44. Ministers frame policies and legislatures enact laws and lay down the mode in which such policies are to be carried out and the object of the legislation achieved. In many cases, in a Welfare State such as ours, such policies and statutes are intended to bring about socio-economic reforms and the uplift of the poor and disadvantaged classes. From the nature of things the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The public is, therefore, vitally interested in the efficiency and integrity of such services. Government servants are after all paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. Those who are paid by the public and are charged with public administration for public good must, therefore, in their turn bring to the discharge of their duties a sense of responsibility. The efficiency of public administration does not depend only upon the top echelons of these services. It depends as much upon all the other members of such services, even on those in the most subordinate posts. For instance, railways do not run because of the members of the Railway Board or the General Mangers of different railways or the heads of different departments of the railway administration. They run also because of engine-drivers, firemen, signalmen, booking clerks and those holding hundred other similar posts. Similarly, it is not the administrative heads who alone can see to the proper functioning of the post and telegraph service. For a service to run efficiently there must, therefore, be a collective sense of responsibility. But for a government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution, this is provided for by the Acts and rules made under Article 309 as also by the safeguards in respect of the punishments of dismissal, removal or reduction in rank provided in clauses (1) and (2) of Article 311. It is, however, as much in public interest and for public good that government servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection afforded to them by the Acts and rules made under Article 309 and by Article 311 be not abused by them to the detriment of public interest and public good. When a situation as envisaged in one of the three clauses of the second proviso to clause (2) of Article 311 arises and the relevant clause is properly applied and the disciplinary inquiry dispensed with, the concerned government servant cannot be heard to complain that he is deprived of his livelihood. The livelihood of an individual is a matter of great concern to him and his family but his livelihood is a matter of his private interest and where such livelihood is provided by the public exchequer and the taking away of such livelihood is in the public interest and for public good, the former must yield to the latter. These consequences follow not because the pleasure doctrine is a special prerogative of the British Crown which has been inherited by India and transposed into our Constitution adapted to suit the Constitutional set up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine.
14. If one has regard to the above, under Article 51 (a) apart from citizen of India being a government servant it is his fundamental duty and obligatory upon him to discharge duties faithfully and conscientiously.
15. In Ekta Shakti Foundation v. Govt. of NCT of Delhi, 2006 (10) SCC 337 the Apex Court ruled that a different view when possible in examining correctness of reasons of an executive policy the only interference possible is in the decision-making process, but prerogative is of the Government to decide which policy should be adopted from all the points and from different angles. Unless there is an infringement of fundamental right, no court can interfere in policy matters.
16. In Sanjay Singh v. UP Public Service Commission, 2007 (3) SCC 720 a three-Judge Bench of the Apex Court ruled that in the matter of a policy decision of the executive requiring technical expertise only ground of interference is when there is a manifest arbitrariness and irrationality.
17. In Dhampur Sugar Mills Ltd. v. State of UP, 2007 (8) SCC 338 the Apex Court ruled that a Court cannot annul a change in government policy on the ground that the earlier policy which has been altered, was better. The public authority must have liberty and freedom in framing policy though the discretion is not absolute and unfettered. The decisions are to be taken by the government authorities keeping in view various factors.
18. A public interest on a rationale and logical interpretation is sine qua non of the interest of the country involved in a subject. If in Atomic Energy department when expertise of scientists employed on a apex committee decision is used by way of training programmes including PG diploma and M-Tech degree with an object of getting special expertise in mineral exploration, which would facilitate the underline object of extraction of Uranium to smoothen generation of nuclear power and would ultimately not only affect the development of the country but also in larger interest of the public. This policy decision of subjecting applicant as in-house mandatory training and joining of the PG Diploma of M. Tech course is an integral part of the policy laid down to achieve the laid down targets in the field of atomic energy. Applicant being part and parcel as an employee of Atomic Energy is bound by the executive decision, simply because training programme has been extended for M. Tech and there has been an alteration in the policy decision to execute a bond with at leave five years stipulation as to leaving the department is in fact to prevent brain drain and also to ensure that when such an important training has been imparted to the employees with huge expenditure it should be best utilized for the department in the development of this country being in public interest applicant has no option to refuse it being a necessary condition of service, which he has to fulfil. We do not find any arbitrariness or malafide in the act of the respondents. Moreover, right to employment not being a fundamental right under Articles 309 and 310 the legislature has to regulate conditions of service under Article 162 of the Constitution, the executive power of the State shall extend to the matters with respect to which the legislature of the State has power to make rules. We cannot, at the cost of personal interest, ignore on a large canvas of public interest involved applicant has no right or even a vested right to say no to the training.
19. No doubt, under Article 21 of the Constitution of India freedom to carry out profession/occupation is a guaranteed fundamental right and liberty of a person can be curtailed, yet we should not forget that under Article 19 (2) reasonable restriction can control and operate fundamental right of a person. Moreover, in service jurisprudence applicant as government servant has no fundamental right of livelihood or employment. It is at the pleasure of the President under Article 310 of the Constitution of India. No fundamental right of applicant has been infringed.
20. Insofar as modified condition of bond while joining training for M. Tech course is concerned, the above conditions in the light of importance of the M. Tech course of two semester with public interest involved on completion of the studies the five years embargo while leaving service either on resigning or retiring, refund of Rs.8 lakhs with interest is not an unconscionable term, as the expenditure incurred on both the training and other sundry expenses the sum total would come as calculated by the Government.
21. At one stage of argument on loud talking we put a query to the learned counsel of applicant as to applicants intention to quit service to refund the amount and the respondents would be directed to forward his candidature to some other posts, the counsel has not agreed to it and rather insisted that he has a right not to join the training and the embargo of five years in the new bond is arbitrary. We do not agree with this illogical and irrational submission. Applicant cannot approbate and reprobate simultaneously and rather by his act the doctrine of estoppel and waiver operates against him while agreeing to the terms and conditions of PG Diploma course he is not agreeing to the M. Tech Programme, which is an extension of the graduate diploma.
22. Academic and technical qualification possessed by a government servant or even if he is Ph. D would not connote on logical inference that he is not to be subjected to any further acquiring of special skills or knowledge. This adamancy is not fair and reasonable, as a wise man accepts the proposition that a man is always in learning stage. This special training of extraction of Uranium and Thorium in public interest, which is the need of the country to strengthen nuclear programme, applicant should be proud of being a part and parcel of this training programme. If he considers himself to be omni knowledgeable, his stubborn attitude and a prestige issue made out of this issue is misconceived and unfounded, which has not been justified on the touchstone of fairness.
23. Not only applicant but others who are highly acclaimed scientists with apt educational scientists are also sponsored for this programme and have executed the bond, no exception can be carved out in the case of applicant.
24. However, in the light of the decision of the Apex Court in Meneka Gandhi v. Union of India, AIR 1978 SC 597 non-issue of promotion to apply for passport by the respondents is certainly an infringement of personal liberty of applicant guaranteed as Fundamental Right under Article 21 of the Constitution of India. Accordingly, respondents as a model employer should act fairly to allow such request of the applicant.
25. Insofar as applying for some other post is concerned, when there is a given methodology under the bond if the applicant feels that he would be better serving in any other department on any other post as a condition precedent he has to fulfil the conditions of bond and in such an event his candidature shall by any means in the wake of fairness of procedure shall be forwarded on clearance by the respondents, but till that time he is bound to join the M. Tech training and execute a bond.
26. Resultantly, we do not find any legal infirmity in the orders passed by the respondents but reiterating our observations/directions in the preceding paragraphs regarding passport and NOC of joining of applicant elsewhere this OA stands disposed of. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.