Central Administrative Tribunal - Delhi
Gaurav Agrawal vs Delhi Metro Rail Corporation on 14 July, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA No.121/2014
With
OA No.550/2014
OA No.551/2014
Reserved On:01.07.2015
Pronounced on: 14.07.2015
Honble Shri G. George Paracken, Member (J)
Honble Shri P.K. Basu, Member (A)
OA No.221/2014
Gaurav Agrawal,
Assistant Manager (S&T),
Delhi Metro Rail Corporation,
New Delhi. ..Applicant
OA No.550/2014
Siddharth Kumar,
Assistant Manager (S&T),
Delhi Metro Rail Corporation,
New Delhi. ..Applicant
OA No.551/2014
Pankaj Kumar Bhagat,
Assistant Manager (S&T),
Delhi Metro Rail Corporation,
New Delhi. ..Applicant
By Advocate: Ms. Priya Darshi Manish for Applicants in all the
cases.
Versus
Delhi Metro Rail Corporation,
Metro Bhawan,
Fire Brigade Lane,
Barakhamba Road,
New Delhi-110001. Respondents
By Advocate: Shri V.S.R. Krishna in all the cases.
ORDER
G.George Paracken, Member (J) These Original Applications are identical in nature and, therefore, they are disposed of by this order. For the sake of convenience, the facts stated in OA No.121/2014 are delineated as under:
2. Applicant is an Engineering graduate. Pursuant to the Notification issued by the Union Public Service Commission for holding the Indian Engineering Services Examination on all India basis, he had applied for the same in the month of March, 2012. Thereafter, on the basis of the advertisement issued by the Respondent-Delhi Metro Rail Corporation Ltd. (DMRC for short), he was offered the post of Executive Trainee (S&T) and sent for the Post Graduate Diploma in Metro Technology and Management at IIT, Delhi. After having declared successful in the aforesaid training, he was included as an Executive Trainee (S&T) in the DMRC. According to the offer of appointment issued to him, vide letter No.DMRC/PERS/22/IIT/D/2012 dated 13.07.2012, he was informed that during the Post Graduate Diploma Course at IIT, Delhi, he would be entitled to a stipend of Rs.25,000/- per month. Further he was informed that he will be given a formal letter of appointment as Assistant Manager (S&T) only on successful completion of the course. However, if he was not able to secure the minimum percentage of passing marks as fixed by the IIT, Delhi, he will not be offered the aforesaid post but he will have to reimburse the bond amount of Rs.5 lakhs to DMRC. On his offer of appointment also he was required to execute a bond of Rs.5 Lakhs to serve the DMRC for the period of 5 years from the date of joining of the course. Accordingly, he executed a bond of Rs.5 Lakhs in favour of the DMRC on 19.07.2012. Thereafter, he was given the offer of appointment to the post of Assistant Manager (S&T), vide their letter dated 05.08.2013. While he was working with the DMPC in the aforesaid post, pursuant to the result of Engineering Services Examination, 2012, the Ministry of Railways offered him appointment as Probationer in the Indian Railway Service of Signal Engineers, vide their letter No.2013/E(GR)I/9/I dated 14.11.2013. Applicant has formally notified the aforesaid fact of selection in the Indian Engineering Services Examination, 2012 to the DMRC and served three months notice from 20.02.2014 so that he could be relieved from them on expiry of the said period. DMRC accepted the same in principle subject to clearance of all his dues. Thereafter, he, vide his letter dated 05.12.2013, requested the DMRC to transfer his service bond to Indian Railways as allowed in DPE guidelines issued, vide OM No.15(2)/2003-DPE(GM)/GL-57 dated 29.07.2004. However, the Respondents, vide their impugned Note dated 12.12.2013, informed him that as per clause No.5 of the Office Order No.PP/1306/2013 dated 09.09.2011, no bond transfer is allowed for the Executive Trainees trained at IIT, Delhi for UPSC jobs also. Hence his request was not accepted. The aforesaid Office Order dated 09.09.2011 (supra) is reproduced below:-
DELHI METRO RAIL CORPORATION LTD.
No.DMRC/PERS/12/2011 Dated 09/09/2011 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 some time. 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 been prior intimation regarding appearing for UPSC exanimation.
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.
(Karan Singh) Executive Director (HR).
3. In this Original Application, the Applicant has challenged the aforesaid Office Order and sought the following reliefs and interim relief:-
Reliefs (i) Set aside the order dated 12.12.2013 passed by the Respondent rejecting the Applicants prayer to transfer the bond;
(ii) Direct the Respondent to transfer the bond of Rs.5 lakhs to Ministry of Railways (Railway Board).
(iii) Pass such other order or further order or orders as this Honble Court may deem fit and proper under the circumstances of the case Interim Relief That it is prayed that till the pendency of this Application the operation of the order dated 12.12.2013 be stayed and the Applicants resignation be accepted without insisting for the payment of Rs.5 lakhs in terms of the bond executed by him on 19.07.2012
4. Considering the aforesaid facts and circumstances of the case, this Tribunal, vide order dated 30.01.2014, stayed the impugned order dated 12.12.2013 as an interim measure. As regards the main reliefs sought by the Applicant are concerned, he has submitted that his case is squarely covered by an earlier order of this Tribunal passed in OA No.4205/2011 Shri Abhinav Singh Vs. Delhi Metro Rail Corporation decided on 31.05.2013. The relevant part of the said order reads as under:-
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.
5. The learned counsel for the Applicant has also stated that another two Original Application Nos.4292/2014 and 4297/2014 were filed by similarly placed persons, namely, Pinku & Vishal Pandey. The Tribunal had disposed of both the OAs vide order dated 04.12.2014 relying upon the aforesaid order of this Tribunal in Abhinav Singh (supra) with the following directions:-
4. In view of the above position, we dispose of these OAs at the admission stage itself with direction to the respondents to examine the cases of the applicants in the light of the aforesaid Order of this Tribunal and if their cases are covered by the same, the relief sought by the applicants in these cases shall be granted to them. Since the applicants have to report to their offices by 15.12.2014 and 22.12.2014 respectively, it is directed that decision be taken before 15.12.2014 so that they will be able to join their respective places of positing on time. There shall be no order as to costs.
5. Let a copy of this Order be placed in another connected case.
6. The Respondents-DMRC have filed their reply stating that the impugned order dated 12.12.2013 has been issued with due application of mind keeping in view the facts and circumstances of the case. In the present case the Applicant has entered into an agreement/bond with the DMRC at the time of joining as Executive Trainee on his own volition and, therefore, he was bound by the terms and conditions of the same. As a matter of fact, the training programme has been developed in cooperation of the prestigious Indian Institute of Technology with limited number of seats. It is for this reason extra care was taken to ensure that only serious and interested persons join DMRC to have a long term relationship with the organization so that the organization in turn benefit from the expertise obtained from such training. They have submitted that they have incurred expenses and reimbursed the amount to IIT.
7. Further according to them, the Applicant was fully aware of the contents of bond he had entered into with the Respondents and now he is estopped from saying otherwise merely on the ground that he has been selected for appointment elsewhere. They have also stated that they have taken a policy decision, vide office order dated 09.09.2011 wherein it has been stated that no bond transfer will be allowed for trainees even for UPSC jobs. They have also stated that the Applicant has caused heavy loss to them both in respect of fees paid to the IIT and also in respect of losing training manpower which would now be available to them only after the concerned incumbents undergo the one year training programme.
7. They have also stated that the reliance of the Applicant on DPE OM dated 13.06.1977 is totally misplaced as the said OM is only applicable to scientific and technical training departments only.
8. The only difference in the other two Original Applications bearing No.550/2014 and 551/2014 (supra) is that while the Applicant in OA No.550/2014 and OA No.551/2014 had qualified the Indian Telecommunication Service (ITS-Group A) on the basis of the Engineering Services Examination held by the UPSC in the year 2012 and they have been offered appointments to the post of Assistant Divisional Engineer Telecom (ADET) whereas the Applicant in OA No.221/2014 Applicant has been selected in the Indian Railways as Assistant Manager (S&T).
9. We have heard the learned counsel for the Applicants Ms. Priya Darshi Manish in all these three OAs and the learned counsel for the Respondents Shri V.S.R. Krishna. In our considered view, these OAs are similar to OA No.4250/2013 Abhiav Singh Vs. Delhi Metro Corporation decided on 31.05.2013. The applicability of the OM dated 70/10/60-Estt.(A) dated 09.05.1960 cannot be different on the basis of the institution from which Applicants had undergone the training. In view of the above position, we allow these OAs and direct the Respondents to transfer the bond to the respective Ministries/Departments under which the Applicants have now been appointed on the basis of Engineering Services Examination, 2012. In compliance of the aforesaid directions, the Respondents shall pass appropriate orders within a period of one month from the date of receipt of a copy of this order.
10. There shall be no order as to costs.
(P.K. BASU) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh