Central Administrative Tribunal - Delhi
Sh. Abhinav Singh vs Delhi Metro Rail Corporation on 30 May, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4205/2011
Reserved on : 30.05.2013.
Pronounced on : 31.05.2013.
Honble Dr. Dharam Paul, Member (J)
Honble Sh. Shekhar Agarwal, Member (A)
Sh. Abhinav Singh,
Asstt. Manager (S&T),
Delhi Metro Rail Corporation,
New Delhi. . Applicant
(through Ms. Anjali J. Manish, Advocate)
Versus
Delhi Metro Rail Corporation,
Metro Bhawan,
Fire Brigade Lane,
Barakhamba Road,
New Delhi-1. . Respondents
(through Sh. VSR Krishna, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant seeks following relief:-
(a) Set-aside the order dated 24.10.2011 passed by the Respondent rejecting the Applicants prayer to transfer the bond;
Direct the Respondent to transfer the bond of Rs.5,00,000/- to UPSC;
Pass such other order or further order or orders as this Honble Court may deem fit and proper under the circumstances of the case.
2. Facts of the case are that the applicant had appeared for Indian Engineering Services Exam conducted by UPSC on 26-28 June, 2010. Separately, the applicant had also applied for the post of Executive Trainee in the Delhi Metro Rail Corporation (DMRC). Those selected for this post were required to under go a course for Post Graduate diploma at IIT Delhi. The applicant was selected for the same and was offered appointment on 16.07.2010 as per Annexure-C-3. As per the terms and conditions laid down in the offer of appointment the applicant was required to execute a bond of Rs. 5 lacs for serving DMRC for a minimum period of 5 years inclusive of Post Graduate Diploma course period from the date of joining of the course. The aforesaid offer letter was accepted by the applicant on 19.07.2010 and in accordance with the same the applicant also executed the bond required. The applicant successfully completed Post Graduate diploma course at IIT Delhi during the academic session 2010-2011 and was appointed as Assistant Manager on 16.08.2011. In the meanwhile, the result of the Indian Engineering Services exam was declared and the applicant was successful in the same. The applicant thereafter vide his letter dated 29.08.2011 addressed to Executive Director, DMRC stated that he had applied for the Indian Engineering Services exam through UPSC before getting appointed in DMRC. He stated that he was likely to get an appointment through this exam in the near future and therefore as per terms of appointment letter he was submitting three months notice to DMRC w.e.f. 01.09.2011. The applicant also requested DMRC to kindly transfer the bond of Rs.5 lacs executed by him at the time of his joining DMRC to his new employer in view of the Government instructions contained in O.M. No. 70/10/60-Estt.(A) dated 09.09.1960. DMRC vide their letter dated 07.09.2011 informed him that his resignation from the services of DMRC has been accepted in principle subject to his clearing all dues and that he would be relieved on 30.11.2011. DMRC further stated that his request for transfer of bond had not been agreed to by the management. Aggrieved by the same, the applicant once again appealed to the respondents to transfer the bond vide his letter dated 19.09.2011. Again on 28.09.2011 the applicant made the same request quoting cases of Sh. Pravin Kumar Alok and Sh. Sanjay Yadav in whose cases relaxation of bond condition was allowed. However, DMRC informed the applicant on 29.09.2011 that his request cannot be acceded to. They also quoted the case of Sh. Kaushal Kumar Sharma who had also been a candidate of the same Post Graduate diploma Course as the applicant and in whose case the DMRC has refused to forego the bond amount. Once again the applicant wrote to DMRC on 07.10.2011 making the same request which was rejected by the respondents on 24.10.2011. Aggrieved by the same, the applicant has preferred this O.A. before us.
3. The applicants counsel argued that the case of the applicant was squarely covered by the Ministry of Home Affairs O.M. No. 70/10/60-Estt.(A) dated 09.05.1960. According to this O.M. the bond executed by such of the Government servants for serving the Government for a specified number of years after completion of the scientific and technical training for which they are deputed at Government expense, should be enforced only when they leave Government service in order to secure private employment. The applicants counsel argued that since the applicant was leaving DMRC to join another Government service, in terms of this O.M. the bond should be transferred to his new employer. The applicant has also relied on the instructions of Bureau of Public Enterprises, Ministry of Finance O.M. No. BPE/GL/017/77/MAN/2(11) 75 BPE(GM-1) dated 13.06.1977.
4. Learned counsel for the applicant argued that DMRC had issued a Circular on 09.09.2011 by which they have laid down a policy regarding transfer of bond in resignation case, which reads as under:-
DELHI METRO RAIL CORPORATION LTD.
No.DMRC/PERS/14/2011 Dated: 09/09/11 OFFICE ORDER NO.PP/1306/2011 Sub: Transfer of bond in resignation cases.
The issue regarding transfer of bond in respect of such regular employees who intimate about their application to UPSC to join other Govt. Organizations was under consideration of Management for sometime. The Management has now decided to transfer the bond in such cases subject to the following conditions-
1. Only employees selected through UPSC may be considered for bond transfer to the new Govt. Organization.
2. The employee must have given prior intimation regarding appearing for UPSC examination.
3. The organization in which the employee has been selected should agree for transfer of bond.
4. An undertaking from the new organization that if he resigns prior to the completion of balance bond period prescribed by DMRC, the entire bond amount will be realized and remitted to DMRC.
5. No Bond transfer will be allowed for Executive Trainees trained at IIT, Delhi even for UPSC jobs.
This issues with the approval of Managing Director/DMRC.
Sd/ (Karan Singh) Executive Director (HR) In the said Circular in clause-5 it is provided that no bond transfer will be allowed for Executive Trainees trained at IIT, Delhi even for UPSC jobs. However, according to learned counsel this policy came subsequent to the date on which the applicant had requested for transfer of bond i.e. 07.09.2011. Therefore, this policy cannot be applied retrospectively to the applicant. Learned counsel argued that Trainees under going Post Graduate Diploma course at IIT Delhi were no different from other similarly situated persons and as such DMRC was not justified in discriminating against them by creating a separate class.
5. The respondents in their counter have stated that the applicant had joined DMRC and had executed the bond on his own volition and therefore was bound by its terms and conditions. They have stated that the Post Graduate Diploma course in IIT Delhi is a very prestigious programme having very limited number of seats. DMRC takes special care to ensure that only serious and interested persons join them and under go this course so as to have a long term relationship with them and get benefit of expertise obtained by them from such training. Further, they have stated that DMRC incurs considerable expenses on this training. They have also stated that DMRC have taken a policy decision vide Office Order dated 09.09.2011 (quoted above) with regard to the transfer of bond. As per the said policy bond transfer was not to be allowed for executive trainees in IIT, Delhi even for UPSC jobs.
6. We have heard the parties and perused the material placed on record.
7. The first ground taken by the applicant is that in terms of MHA O.M. No. 70/10/60-Estt.(A) dated 09.05.1960 the respondents are bound to transfer the bond to his new employer since he has only changed job from one Government organization to another. We have perused the aforesaid O.M. Para-1 of the said O.M. reads as under:-
It was laid down in the M.H.A., O.M. No. 70/10/60-Estt.(A), dated the 9th May, 1960 (Item I below), that the terms of the bond (which the Government servants receiving scientific and technical training at Government expense have to execute, undertaking to repay the money in the event of their failure to serve the Government for a specified number of years after completion of their training) should be enforced against those Government servants only, who leave Government service in order to secure private employment. It was further clarified in M.H.A., O.M. No. F. 5/10/66-Estt. (C), dated the 15th April, 1966 (Item II below), that the terms of the bond may not be enforced in the case of Government servants, who leave Government service to secure employment, under a State Government, a Public Sector Undertaking, owned wholly or partly by the Central Government or by a State Government, or a Quasi-Government Organization. In such cases, a fresh bond is to be taken from such Government servants to ensure that they serve the new employer for the remaining period of the bond. A bare reading of the O.M. makes it clear that for candidates changing job from one government organization to another, this O.M. lays down that the bond is not to be enforced.
8. During the course of arguments, learned counsel for the respondents admitted that DMRC had equity from both Central and State Government and is owned and controlled by them. Thus, it has Public Sector character and is therefore within the ambit of this O.M. However, learned counsel for the respondents drew our attention to Para-2 of Clause-I of this O.M. which reads as follows:-
The expression scientific and technical personnel is interpreted to mean persons holding posts belonging to services which have been declared to be scientific or technical posts or scientific or technical services by the ad hoc Committee of Secretaries set up for the purpose.
9. According to the learned counsel for the respondents in terms of the above O.M. the post held by the applicant was not a scientific or technical post since his post was not declared so by the Committee of Secretaries. Moreover, he argued that the course for which the applicant had been deployed was not scientific or technical training since it was a course of academic nature specifically meant for those joining DMRC. He also argued that during the period of course the applicant was not an employee of DMRC at all. His status was that of a student who was getting stipend from DMRC.
10. However, we are not convinced by the arguments of the learned counsel. In our opinion, this O.M. covers all types of trainees of scientific and technical nature be it prior to induction in service or in service. A Post Graduate diploma being pursued in IIT, Delhi by no stretch of imagination could be said to be a non technical and non scientific course. Moreover, the O.M., as is clear from its language, applies to all Government servants and not necessarily those declared as scientific and technical personnel by a Committee of Secretaries. The purpose of this O.M. appears to be to permit free movement of personnel from one Government organization to another. Rationale is that even if one Government organization incurs the expense on the training, the advantage of the same would be taken by some other Government organization.
11. As far as the contention of the respondents that during the period of the course the applicant was not a Government employee at all is concerned, in our opinion even that is not acceptable. As is clear from the offer of appointment given to the applicant, his appointment was as Executive Trainee of DMRC. DMRC was also paying him a consolidated stipend of Rs.2500/- per month for the period of the course. The offer of appointment also stated that on successful completion of the said course he would be automatically appointed as Assistant Manager in DMRC provided he secures more than 75 marks in the diploma course. The applicant, in fact, had been so appointed w.e.f. 16.08.2011. Clause-6 of the said offer of appointment also lays down that the seniority in the grade of Assistant Manager will be notionally counted retrospectively from the date of start of Post Graduate Course at IIT, Delhi. On the basis of above, we come to the conclusion that employer and employee relationship between the applicant and DMRC had been established even during the period of the diploma course.
12. Thus, none of the grounds taken by the respondents to say that this case is not covered by MHA O.M. No. 70/10/60-Estt.(A) dated 09.05.1960 is tenable. In our opinion, the applicant is squarely covered by this O.M. and is entitled to its benefits.
13. The respondents have also stated in their counter that as per their policy dated 09.09.2011, they cannot allow bond transfer for those Executive Trainees who were under going training at IIT, Delhi even for UPSC jobs. Learned counsel for the applicant has, however, taken the ground in their O.A. that the aforesaid circular was issued on 09.09.2011 whereas the applicant had already requested for transfer of bond on 07.09.2011. Thus, this circular has come after the request made by the applicant for bond transfer and as such cannot be applied retrospectively in the case of the applicant.
14. We are inclined to agree with the applicant on this. At the time of execution of bond, this policy of the DMRC was not in existence and therefore cannot be binding on the applicant. Without commenting on the authority of the management of the DMRC in framing policy, which is contrary to existing Government instructions, we hold that this circular will not apply in the case of the applicant.
15. On the basis of above, we come to the conclusion that the respondents have erred in refusing bond transfer in the case of the applicant who is squarely covered by MHA O.M. No. 70/10/60-Estt.(A) dated 09.05.1960. Accordingly, this O.A. is allowed and the respondents are directed to transfer the bond executed by the applicant to UPSC in keeping with the aforesaid instructions of MHA. This will be done within a period of six weeks from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) (Dr. Dharam Paul Sharma)
Member (A) Member (J)
/Vinita/