Central Administrative Tribunal - Delhi
Shri Aakash Deep Chakravarti vs Union Of India on 1 June, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2460/2008 New Delhi, this the 1st day of June, 2009 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Shri Aakash Deep Chakravarti, S/o Shri A.L. Chakravarti, Deputy Director, Lal Bahadur Shastri National Academy Administration (LBSNAA), Mussoorie, At present in : Occupation of Room No.150, National Institute of Financial Management, Sector-48, Faridabad Applicant (By Advocate: Shri K. Venkatraman) Versus 1. Union of India, Through Secretary, Ministry of Communication & IT, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi-110016 2. Union of India, Through Secretary, Ministry of Finance, North Block, New Delhi 3. National Institute of Financial Management, Through Director, Sector-48, Pali Road, Near Badhkal Lake, Faridabad-121001 4. Lal Bahadur Shastri National Academy Administration (LBSNAA), Govt. of India, Through Director, Mussoorie-248179 Uttaranchal Respondents (By Advocate: Shri Sanjeev Sahay and Shri Parinay D. Shah) ORDER
Mr. L.K.Joshi, Vice Chairman (A) In this OA argued with considerable vehemence and hints of acrimony, the question we are called upon to adjudicate is first, whether training is a condition of service and second, whether the Tribunal can interfere in the matter of disqualification of a candidate from training on the grounds of not meeting the requirement of prescribed attendance during the course of the training. The relevant facts have been mentioned hereinafter.
2. The Applicant is an officer of the 1994 batch of Indian Postal Service. He has been on deputation to the Lal Bahadur Shastri National Academy of Administration (LBSNAA), Mussoorie since April, 2007. The Applicant was sponsored for Post Graduate Diploma in Business Management (PGDBM) Course by his parent department for the year 2008-09 at the National Institute of Financial Management (NIFM), the third Respondent herein. The course is of two years duration beginning January, 2008 and ending December, 2009. The Applicant joined the programme on 21.01.2008. The prescribed attendance during each segment of the training course was 75 per cent. The third Respondent provides training to officers recruited by the Union Public Service Commission (UPSC) through the Civil Services Examination and allocated to the various offices responsible for manning senior and top management posts, dealing with the accounts and finance under the Government of India. The brochure, inter alia, further makes the following statement about the objective of the programme:
The programme aims at providing the participants with a thorough understanding of fiscal administration, public finance, including aspects of both revenue as well as expenditure, and also in select areas of corporate finance that are increasingly becoming necessary for officers serving in government departments. Cadre controlling authorities are well aware of the great importance that is attached to professional competence by the Prime Minister. The role of continuing education and up-gradation of knowledge and skills is an area which has been particularly highlighted as a key instrument in improving the quality of governance throughout the country. It is, therefore, essential that full advantage is taken of such tailor-made programmes and combine the academic rigor expected in the best academic institutions in the country, with the wealth of experience available in the Government. The fee for the course is borne by the Ministry of Finance, Government of India under the Scheme Development of Finance Professionals for States.
3. The training course is a residential training course and the Applicant was allotted a hostel room to be able to stay in the premises. It is seen that from the outset of the training, the Applicant had a falling out with the faculty and administration of the third Respondent on the ground that, according to the Applicant, there were no proper seating arrangements, faculty was not competent, the library was not fully equipped and the Applicant had not been given the laptop computer, as stated in the brochure etc. The participants of the course made complaints about these alleged inadequacies to the Director of the Institution. As early as 14th March, 2008, a notice was served on the Applicant (Annex A-6) that the Applicant had only 49 per cent attendance in the course and was falling short of 75 per cent attendance, which was the minimum attendance required to appearing in the examination. Later on 31.03.2008, he was further intimated that his attendance was 58 per cent. The Applicant contested the calculation of attendance and asked for a meeting with the Director of the third Respondent. The Applicant was, however, allowed to take the exams on 28.04.2008. He was allowed to take second term mid term and second term end term examinations, of which the results were declared on 4.11.2008 but the result of the Applicant was withheld. The Applicant was informed that his result had been withheld because he had not made any application for condonation of shortage in attendance to the Director of the third Respondent. During this time, the Applicant was also served an eviction order to vacate the hostel, against which the Applicant moved the Civil Court in Faridabad, where the Institution is located. In October 2008, the controversy about the shortage of attendance again erupted. The Applicant applied for four days leave during the third term because of fracture he had sustained in the toe. On 10.10.2008, he was informed that the Director of the Respondent Institution had condoned the shortfall of attendance and that he had been declared to be eligible to take the third term examination. He was also, however, informed that four days leave was insufficient to make up the shortfall and was requested to put up the appropriate leave application. He was also informed that his result would be withheld if he did not make such a leave application (Annex A-11). Thereafter on the same date i.e. 10.10.2008, the Programme Coordinator of the PGDBM programme, namely Dr. A.K. Sharan wrote to the Deputy Director General (Personnel) of the Department of Posts, to which cadre the Applicant belongs, informing him about shortfall in the attendance of the Applicant leading to withholding of result and also about the conduct of the Applicant in the class room. Paragraphs 7 and 8 of the aforesaid letter placed at pages 118-120 of the paper book read thus:
7. It may be appreciated that being a government paid participating officer of the PGDBM (FM) Program Shri Chakravarti should remain available during the timings of classroom sessions irrespective of whether classroom sessions are held or not. Moreover, Shri Chakravartis conduct in the classroom as verbally reported by a number of NIFM faculty as well as visitng / guest faculty has been found unbecoming of a participating officer. It has been continuously observed that the approach of Shri Chakravarti towards the program has not been constructive and encouraging and it is understood that given the sincerity and general conduct of Shri Chakravarti may not enable him to cope with the academic requirements and other related conditions of the Program.
8. In view of above it is requested that the Department may consider withdrawing the candidature of Shri Akash Deep Chakravarti from the PGDBM (FM) 2008-09 Program at its earliest. (emphasis supplied)
4. Following this, the Department of Posts, the parent cadre of the Applicant withdrew the candidature of the Applicant from the programme by order dated 7.11.2008 (Annex A-1) and reverted him back to LBSNAA, Mussoorie with immediate effect for his posting until further orders, in view of the fact that he had not completed his period of deputation under the Central Staffing Scheme to the aforesaid Academy. This order has been challenged in the present OA.
5. The ground for challenge is mainly that the impugned order passed by the first Respondent is illegal and in violation of the principles of the natural justice, equity and fair play coupled with the fact that the said order amounted to stigma on the Applicant against which notice is required to be served. It is further contended that the aforesaid order is a counter blast to the grievance of the Applicant regarding quality of teaching, facilities etc. provided by the third Respondent. It is contended that the Applicant was singled out for action because he was perceived to be the person who was behind the complaints made by all the participants in the training course. It is contended that there were other participants in the training and eleven of those participants had less attendance than the Applicant and yet they had been allowed to take the examinations. The Applicant had said so in his reply to the notice dated 14.03.2008, adverted to above and in his representation made to the Chairman of the Board of Governors of the third Respondent, who is also the Secretary, Department of Expenditure in the Ministry of Finance, Government of India, the second Respondent herein. The learned counsel would vehemently contend that the order of reversion was stigmatic and was not only based on shortage of attendance but was also based on his alleged misconduct in the class room, as is evident by the letter dated 10.10.2008 from the Programme Coordinator addressed to the Department of Posts, paragraphs 7 and 8 of which have been extracted above. It is strenuously urged that the order is bad in law as the Applicant was not put to notice because it is a stigmatic order and he should have been heard before coming to any conclusion about his alleged misconduct in the class room. The Applicant has also challenged the statement of the Respondents that he had consistently been short of attendance in various classes by contending that there was lot of fudging of record and by obtaining the record of the attendance under the Right to Information Act, 2005 and pointing out several cuttings in the attendance register and showing that initially the Applicant had been shown present and later it was cut out and shown as absent. In short, the Applicant is contesting that he was short of attendance and also that he misbehaved.
6 The Respondents have contested the cause of the Applicant with equal vehemence and raised the preliminary objection that training is not a condition of service and hence the Tribunal does not have jurisdiction in the matter. It is contended that the Administrative Tribunals Act, 1985 provides for adjudication by the Tribunal all disputes and complaints with respect to the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation or Society owned or controlled by the Government and for matters connected therewith or incidental thereto. It is urged that training, as imparted by the third Respondent in the PGDBM Course, is not a condition of service. It is argued that the programme, which the Applicant is attending, has not been designed to be in partial fulfillment of promotion scheme of any of the Government organizations. This is not an essential or desirable component for the promotion of officers in their departments or organizations. The programme is purely voluntary and there is no element of compulsion in attending the programme and no civil consequences follow for the Applicant or any Government servant for not attending the programme. The attendance in the programme also does not give the Applicant any qualification, which may be recognized by the UPSC or by the Government as to be necessary for promotion or of any reward to the Applicant.
7. On 22.04.2009, the Tribunal directed the Respondents thus:
To determine this issue, it will be necessary to know as to whether the passing of the examination mentioned above may have some better prospects in service career of the applicant. Nothing is stated in this regard in pleadings. Counsel for the respondents stated that passing of examination by the applicant will be of no use in his service, whereas counsel for the applicant stated the same is essentially required for posting in any of the places concerning finance. Since the pleadings on this issue are not there, we, therefore, direct both the parties to file separate affidavits taking their respective stand.
8. Pursuant to the above order, the parties filed their respective affidavits. The contention of the Applicant is that the PGDBM (FM) program conducted by the third Respondent is treated as equivalent to Masters Program in Management by the Association of Indian Universities (commonly known as MBA (Finance) programme). It is stated that the programme brochure also states that the above mentioned programme is an exclusive programme catering in a customized way to the professional requirements of middle and senior level Government Officers. It is further stated that passing of the same would entitle the Applicant to get the Post Graduate Diploma in Business Management (Finance) and once the Applicant adds this qualification to his bio-data, he would be eligible for not only the finance related postings in his own department but also to other postings in Government of India where qualification in Finance is one of the essential requirements. The posting of the officers are dependent upon qualification and experience. It is pointed out that with this qualification, the Applicant can apply for the post of General Manager (Finance) in NHAI, Contract Management Specialist/ Financial Specialist in NHAI, Advisor in Afghanistan under United Nations Development Programme etc. He would state that it will make him eligible for appointment to the post of Member, Telecom Regulatory Authority of India where special knowledge and professional experience in Finance is required and for appointment to the post of Chairman and Managing Director, Housing and Urban Development Corporation Limited.
9. The Respondents have repelled the contention by stating that it is not the intention of the programme to provide any qualification to the civil servants for improving their prospects of promotion. The programme is only intended to improve their skills. It has been reiterated that the passing of the programme is not a condition precedent for advancement in the career. The Respondents have relied on the judgement of the Honourable High Court of Karnataka in K.S. Sunitha and another Vs. The State of Karnataka and others, 2005 (6) Kar LJ 410.
10. In so far as the challenge of the Applicant to the shortage of attendance is concerned, the Respondents have vehemently contended that the Tribunal/Courts cannot interfere in academic matters and in the matters relating to attendance because the academic institutions are the best judge of the fact whether the student or the person undertaking a programme of study has acquired sufficient knowledge in that particular programme. Several judicial precedents including Preetham Bhargav K.S. Vs. S.B.R.R. Mahajan First Grade College and another, ILR 2008 Kar 5127 (Single Bench) and Sri B.K. Raghu since minor rep. by father Sri Kesav S. Naik Vs. The Karnataka Secondary Education Board and the Principal, K.L.E. Societys M.R. Sakhare English Meidum School, Writ Appeal No.1458/2007 in the High Court of Karnataka (Division Bench) have been cited by the Respondents.
11. We have given our serious consideration to the rival contentions and perused the record placed before us with the assistance of the counsel for both the parties.
12. We shall first consider the preliminary objection raised by the Respondents whether the OA is maintainable before this Tribunal in view of the fact that it could not categorized as service matter because training and participation in a voluntary training programme cannot be a condition of service.
13. The relevant portions of Section 14 of the Administrative Tribunals Act, 1985 have been extracted below:
14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts [except the Supreme Court ( ) in relation to-
(a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning-
(i) a member of any All India Service; or
(ii) a person [not being a member of an All India Service or a person referred to in Clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All India Service or a person referred to in Clause (c)] appointed to any defence services or a post connected with defence;
and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or Society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any Corporation [or Society] or other body, at the disposal of the Central Government for such appointment.
[Explanation.-For the removal of doubts, it is hereby declared that references to "Union" in this sub-section shall be construed as including references also to a Union Territory.] .. .. ..
(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or Corporation [or Societies], all the jurisdiction, powers and authority exercisable immediately before that date by all Courts [except the Supreme Court ( ) ] in relation to-
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or Corporation [or Society]; and
(b) all service matters concerning a person [other than a person referred to in Clause (a) or Clause (b) of sub-section (1)] appointed to any service or post in connection with the affairs of such local or other authority or Corporation [or Society] and pertaining to the service of such person in connection with such affairs.
14. Article 309 of the Constitution of India is regarding recruitment and conditions of service of persons serving the Union or a State. Article 309 is reproduced below:
309. Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
15. The issue regarding conditions of service has come up before the Honourable Supreme Court in several cases. As summarized in the Shorter Constitution of India by Durga Das Basu, the following matters, inter alia, constitute the conditions of service of a Government employee:
Salary or wages, including subsistence allowance during suspension, periodical increments.
Leave, Provident Fund, gratuity.
Promotion, seniority.
Tenure or termination of service.
Superannuation, pension.
Transfer, deputation.
Disciplinary proceedings. On the other hand, the following have been held not to constitute conditions of service:
Conditions relating to recruitment and appointment, because they operate prior to the commencement of the service itself.
(ii) A provision placing an embargo on the prosecution of a government servant.
(Source : Shorter Constitution of India, Durga Das Basu, published by Wadhwa and Company, 13th Edition, 2001, page 1337)
16. In State of Madhya Pradesh and others Vs. Shardul Singh, (1970) 3 SCR 302, the Honourable Supreme Court, inte alia, observed thus:
The expression `conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc.
17. This was further elaborated by the Honourable Supreme Court in N. Subba Reddy Vs. Andhra University and others, AIR 1976 SC 2049 thus:
13. Clause (d) of Section 19 of the Act confers power on the syndicate to suspend or dismiss a teacher of the University (subject to such ordinances as may be made in this behalf) which obviously implies a power to take action for misconduct. Clause (c) (iii) of Section 19 of the Act empowers the Syndicate to fix the emoluments of the teachers of the University and to define their duties and conditions of service subject to such statutes as may be prescribed in this behalf under Section 39 (f). As explained by this Court in State of Madhya Pradesh Vs. Shardul Singh, (1970) 3 SCR 302, the expression `conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension etc..
18. In The State of Maharashtra and another Vs. Chandrakant Anant Kulkarni and others, AIR 1981 SC 1990, the Honourable Supreme Court, inter alia, held in paragraph 16 as follows:
16. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not.
19. In State of Punjab Vs. Kailash Nath, AIR 1989 SC 558, the Honourable Apex Court considered the meaning of conditions of service and observed that:
7. In the normal course what falls within the purview of the term "conditions of service" may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave provident fund, gratuity, confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, super-annuation, pension, changing the age of super-annuation, deputation and disciplinary proceedings.
20. The condition of service would be any condition the conformity or non-conformity with which would affect the pay, promotion, deputation, pension etc. of a civil servant. Training judged by such standards would be a condition of service or not would depend on the circumstances of each case. For example, the Government of India has in the year 2006 made it compulsory for the officers of the Indian Administrative Service to undergo compulsory training after completion of 12, 18 and 28 years of service thrice in their career. Non-attendance in the training course would make the officers ineligible for further promotion. Therefore, in our view, it would be a condition of service. Any denial to an officer of the IAS from attending the training course would affect his consideration for future promotion. Another example could be of the training imparted to the officers of various services in their respective training institutes such as LBSNAA, Mussoorie for the officers of the Indian Administrative Service and Sardar Vallabhbhai Patel Academy for the officers of the Indian Police Service etc., non-attendance in which would render the Applicant unfit for the service. In the instant case, the programme, which the Applicant is attending, is a voluntary programme in which the participation is at his own volition. There is no compulsion for the Applicant to participate in this programme. If he had not chosen to participate in this programme, no adverse consequences would follow. If he completes the programme and passes the examination, no consequence as far as his advancement in the service to which he belongs is concerned, would follow. The Applicants contention that by completing this programme and passing in it he would acquire a degree equivalent to MBA (Finance) and would become eligible for several posts in which MBA (Finance) is a qualification, is hypothetical. It only gives him a mere chance to apply for those posts. Passing of this examination does not mean that he would get those posts. Moreover, there would be many other posts on deputation in the Government or outside the Government, to which a government servant is eligible to apply and be appointed, for which different eligibility conditions and educational qualifications would have been prescribed. If the Applicants contention were to be accepted, it would by logical deduction lead to the conclusion that the Applicant would be at liberty to ask to be nominated for those training courses and in case such a nomination is declined, he could contend that it was violation of Service Rules. In K.S. Sunitha (supra), the judgement of the Honourable High Court of Karnataka cited by the Respondents, the High Court has held that the condition of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc. It has further been held that, however, any matter connected with service will not be a condition of service.
21. We are in respectful agreement with this principle enunciated by the Honourable High Court of Karnataka. The Applicant may apply and be nominated for a training course to improve his skills. However, not attending such training course would not result in any adverse action against him or attending the training course would not result in any benefit to him in normal course of advancement in service. It would not be a condition of service if it is only giving him merely a hypothetical chance for applying to some post where the course or study, which is he is pursuing is prescribed as educational qualification. It cannot be held to be a condition of service. We would like to reiterate that whether training is a condition of service or is not a condition of service would depend on the facts and circumstances of each case. In the present case, it is clear that it is not a condition of service.
22. Since training is not a condition of service in the instant case, as we have seen by the above analysis, this Tribunal has no jurisdiction to interfere in this matter. In these circumstances, we do not think it necessary to dilate upon the other issue as mentioned in this order at the outset. The OA is dismissed as not maintainable. There will be no order as to costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/