1. Dr. K. K. Sharma, Assistant Surgeon (Veterinary) with the 20th Battalion, Sashtra Seema Bal (SSB), Ministry of Home Affairs, the applicant herein, while serving on the post aforesaid, successfully competed for the post of Veterinary Assistant Surgeon in the Development Department of the Government of NCT of Delhi. He is not being permitted to join his new assignment on the only ground that while serving SSB he had obtained study leave which was granted to him on his executing a bond that he would serve the department for a period of three years after he resumes his duties after availing the study leave, and that the period of three years has not gone by, and that being so, he has to pay an amount of Rs. 7 lakhs as an alternative for serving the department for three years, if he was to be relieved. The only question that thus needs adjudication by this Tribunal is as to whether the applicant can be relieved without compelling on the conditions laid down in the bond furnished by him. Whereas, it is the case of the applicant that the conditions stipulated in the bond are applicable only if an employee may resign or join private service, the respondents would join issues with him and would endeavour this Tribunal to hold that the stipulations in the bond as mentioned above, had to be adhered to irrespective of the applicant joining a department of the Government or a private organisation.
2. The facts for determining the only issue as above would need a necessary mention. The applicant joined duties with SSB as Civil Assistant Surgeon Grade-I (Vet.) at Group Center SSB, Government of India, Jaiselmer (Rajasthan) on 2.5.1998. He was thereafter transferred to Balrampur in the Office of Area Organiser SSB and joined there on 13.1.2003. The applicant completed all required formalities and was relieved for proceeding on study leave vide order dated 8.4.2005 issued by the office of the Area Organiser SSB, Balrampur. While on study leave, the applicant was recalled on the ground that his leave had not been regularised. Constrained under the circumstances mentioned above, the applicant filed OA No.159/2005 in Jodhopur Bench of this Tribunal.
The same was disposed of vide order dated 1.8.2005. There was no opposition to the cause of the applicant and the counsel representing the respondents stated at the Bar that he had instructions to submit that the respondents had taken a positive decision whereby the applicant had been granted the study leave and, therefore, the Application had become infructuous. In view of the statement made by the counsel representing the respondents, the Tribunal recorded order dated 1.8.2005 relevant part whereof reads as follows: 4. In view of the statement of the learned Counsel for the respondents at the Bar, we have no difficulty in arriving at a conclusion that this Original Application has become infructuous since due relief has been granted to the applicant. The Annexures A/1 to A/4 stand quashed accordingly. The Original Application stands disposed of accordingly with no orders as to costs. The interim order already passed stands merged with this order.
Union Public Service Commission published advertisement in Employment News dated 26th November' 2nd December, 2005 inviting applications for the post of Veterinary Assistant Surgeon (VAS) for the Development Department of Government of NCT of Delhi, with instructions that all candidates, whether in Government service or in Government owned industrial or other similar organisations or in private employment should submit their applications direct to the Commission. The Commission, however, required the candidates to submit a declaration that they had informed in writing to their head of the office/department that they had applied for the selection. The applicant informed the Director General, SSB, New Delhi "through proper channel" that he was applying for selection against the aforesaid advertisement. He also applied "through proper channel" to Secretary, UPSC for consideration of his candidature. It is the case of the applicant that after proper process was gone into, UPSC had recommended his candidature for the aforesaid post to the Development Commissioner, Government of NCT of Delhi for appointment on 26.11.2007, and the applicant had also informed the head of office/department through proper channel regarding recommendation of his candidature for the post of VAS on 7.12.2007. On the basis of aforesaid selection and recommendation, office of the Development Commissioner, Government of NCT of Delhi issued offer of appointment to the applicant on 20.12.2007. The applicant conveyed his acceptance to the offer of appointment to the office of Development Commissioner on 27.12.2007. He also informed about the receipt and acceptance of the offer of appointment to the head of office/department through proper channel on 7.1.2008. In response to the said information, Assistant Director (Pers), Force Headquarters (Directorate) SSB, New Delhi, issued a letter on 4.3.2008 stating therein that the applicant while submitting his application for study leave had submitted a bond amounting to Rs. 7 lakhs wherein he had declared that in the event of his failing to resume duty, or resigning or retiring from service or otherwise quitting service without returning to duty after expiry or termination of the study leave or failing to complete the course of study or any time within a period of three years after his return to duty, he would pay the sum together with interest thereon from the date of demand at government rates from time to time being in force. It was further mentioned that the applicant was on study leave w.e.f. 14.4.2005 to 31.3.2007, and, therefore, he had to serve the SSB up to 31.3.2010, and that his study leave case had not yet been regularised, and DIG Ranikhet had been appointed to conduct an enquiry as to how the applicant had been relieved for study leave without prior approval of the competent authority, and that in the circumstances, the applicant could not be relieved from SSB. Assistant Director (Pers), Force Headquarters, detailed the applicant for duty to Chhattisgarh without stating the period of stay thereat, through a fax message dated 5.3.2008, against which the applicant represented and requested the Director General for considering his matter in the light of rules and facts. It is the case of the applicant that the terms of bond cannot be enforced in 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, and that 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. Insofar as, the relieving of the applicant for study leave is concerned, it is his case that he was properly relieved vide order dated 8.4.2005, and that the order was issued consequent upon "no objection certificate" from the Director General, SSB and "permission to relieve" was give given by Deputy Inspector General, Sector Headquarters SSB, Gorakhpur. It is further the case of the applicant that insofar as the matter with regard to regularizing the period of study leave or his going on study leave is concerned, the same was given a quietus by an inter partes judgment in OA No.159/2005 (Jodhpur Bench) decided on 1.8.2005.
3. When the applicant was not being relieved so as to join his new assignment, he submitted an application to the Director General, SSB on 6.5.2008 seeking a personal interview in connection with his relieving at the earliest possible, as he was not only losing in terms of financial aspects but also his further career prospects. He also informed the office of the Development Commissioner regarding the progress and status about his relieving from SSB. However, the applicant was relieved by Commandant 40th Bn SSB Camp at Kanker Chhattisgarh to report to the Commandant 30th Bn Camp at Akashnagar Chhattisgarh for further duties. He did not receive any communication up to 12.5.2008 regarding relieving, and, therefore, he once again applied through proper channel for relieving at the earliest to join his new assignment with the Government of NCT of Delhi. He also did not receive any communication up to 13.5.2008 regarding personal interview with the Director General, SSB, and he once again applied for personal interview. When the entreaties made by the applicant, as detailed above, brought no tangible results and were not even responded to, he filed the present Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a writ in the nature of mandamus directing the respondents to relieve him from SSB to join his new assignment.
4. In response to notice issued by this Tribunal, the respondents have entered appearance and by filing their reply contested the cause of the applicant. While giving brief facts of the case, it has inter alia been pleaded that the SSB had issued 'NOC' to the applicant to appear in entrance test for PG Course vide Force Headquarters fax message dated 29.3.2005. He was relieved by his controlling officer, i.e., Area Organiser, Balrampur to join the PG Course at College of Veterinary Sciences and Animal Science, Bikaner. He joined there and applied for 24 months study leave w.e.f. 11.4.2005 to 31.3.2007. The respondents though have made a mention of the OA filed by the applicant at Jodhpur, they have, however, further gone on to plead that on issue of 'NOC' the applicant applied for two years' study leave and after having been erroneously relieved by the office of A.O. Balrampur, he joined the PG Course on 30.4.2005. It is then pleaded that it is only because of the stay granted by the Jodhpur Bench of the Tribunal on 10.6.2005 restraining the respondents from calling the applicant back from the course and in the light of the administrative order of Director General, SSB dated 14.6.2005 not to insist on withdrawal of the applicant from undergoing PG course and seek permission of the Ministry of Home Affairs for sanction of study leave, that the applicant was allowed to continue the course. The respondents would further go on to plead that despite the orders that were passed by the Tribunal, an enquiry was conducted to fix responsibility into the matter of relieving of the applicant on two years study leave without prior approval of the competent authority, and the DIG, SHQ, Gorakhpur who asked the AO Balrampur to relieve the applicant on study leave has since retired and hence no responsibility may be fixed at this stage.
It is further pleaded that the case for grant of study leave has again been submitted to the Ministry of Home Affairs vide UO dated 28.5.2008 and approval of the competent authority is still awaited. It is further the case of the respondents that the applicant was on study leave w.e.f. 14.4.2005 to 31.3.2007 and as such he is under an obligation to serve SSB up to 31.3.2010 as per the bond executed by him prior to proceeding on study leave. Be it in the pleadings made by the respondents or during the course of arguments, the cause of the applicant is opposed on twin grounds, namely, that the leave of the applicant has not been regularized and that the applicant cannot wriggle out of the terms of the bond executed by him. It is pleaded that the pre-conditions of study leave are binding upon the applicant and, therefore, if he is to quit, he has to pay an amount of Rs. 7 lakhs with interest.
5. Shri M. K. Bhardwaj, learned Counsel representing the applicant, vehemently contends that insofar as the first defence projected by the respondents with regard to study leave of the applicant having not been regularised, is concerned, the same cannot be even permitted to be raised in view of the decision of the Jodhpur Bench in OA No.159/2005 dated 1.8.2005, as despite the fact that the respondents had only sought to render the Application infructuous by making a statement that they had taken a positive decision whereby the applicant had been granted study leave, the Tribunal even though, while holding that the Application had become infructuous, had yet quashed orders Annexure A/1 to A/4 challenged in the said OA. He contends that insofar as the issue with regard to erroneous sanction of study leave to the applicant is concerned, the same cannot be even permitted to be raised. Insofar as, the controversy on the core issue, as mentioned above, pertaining to conditions of bond is concerned, the learned Counsel would contend that the matter has necessarily to be dealt with in the light of instructions issued by the Government from time to time. Ministry of Home Affairs, in this connection, issued OM No.70/10/60 - Estt.(A) dated 9.5.1960, which was clarified in MHA OM No. F.5/10/66-Estt.(C) dated 15.4.1966. Bureau of Public Enterprises, Ministry of Finance, had also issued OM No. BPE/GL/017/77/MAN/2(11)75BPE(GM-1) dated 13.6.1977, according to which the terms of bond should not be enforced against an employee who leaves service of the Government/enterprise/autonomous body to secure, with proper permission, employment under the Central Government, a public enterprise wholly or partly owned by the Central Government, or a State Government, or an autonomous body wholly or substantially owned/financed/controlled by the Central Government. In such a case only, a fresh bond should be taken from the person concerned to ensure that he serves the new employer for the balance of the original bond period.
6. Shri R.V. Sinha, learned Counsel representing the respondents is unable to oppose the cause of the applicant or for that matter defend the stand of the respondents taken in their counter reply, insofar as the erroneous sanction of study leave to the applicant is concerned, and in our view rightly so, as that issue has received a quietus on an inter partes judgment dated 1.8.2005 in OA No. 159/2005 (Jodhpur Bench) referred to above, and has attained finality. In fact, persistence of the respondents with an issue which no more survives is rather obdurate attitude of the respondents in trying to defend a defenceless cause.
Insofar as, however, the contention of the learned Counsel representing the applicant pertaining to the second issue regarding conditions of the bond, is concerned, Shri R.V. Sinha, learned Counsel representing the respondents would only refer to Rules 50 to 63 of CCS (Leave) Rules, 1972, and on the basis thereof would contend that if the Government servant after availing study leave resigns from service or otherwise quits service without returning to duty, or fails to complete the course of study or resigns/otherwise quits service within three years after return to duty from study leave, he will be required to refund the actual amount of the leave salary, study allowances, cost of fees, TA and other expenses, if any, incurred by the Government, and the actual amount, if any, of the cost incurred by other agencies, such as Foreign Governments, Foundations, Trusts in connection with the course of study, together with interest thereon at the prescribed rates before his resignation is accepted or permission to retire is granted or his quitting service otherwise, and it is only in exceptional cases, the President may waive such recoveries, and that in the present case, no exceptional circumstances can be pressed into service by the applicant.
7. We have given our anxious thoughts to the contentions raised by the learned Counsel representing the parties as noted above, and are of the view that the applicant has made a fool proof case for seeking an order of relieving from SSB and to join his new posting as Veterinary Assistant Surgeon with the Development Department, Government of NCT of Delhi. The issue indeed seems to have been dealt with by the Government itself while issuing OM dated 9.5.1960, clarified vide OM dated 15.4.1966 by Ministry of Home Affairs, and OM dated 13.6.1977 issued by the Bureau of Public Enterprises, which govern the field. We need not refer to the language employed in each of the OMs referred to above.
However, we may make a mention of the compilation of the same and the contents thereof as extracted in the book titled "Swamy's Complete Manual on Establishment and Administration for Central Government Offices" (11th edition' 2008), the relevant part whereof reads as follows: 1. It was laid down in the M.H.A., O.M. No. 70/10/60-Estt.(A), dated the 9th May, 1960 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 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.
2. It has also been laid down in the Bureau of Public enterprises, Ministry of Finance, O.M. No. BPE/GL/017/77/MAN/2(11)75BPE(GM-1), dated the 13th June, 1977 that the terms of bond executed by an employee of a Public Enterprise, who has received scientific/technical training at the cost of the Enterprise, should not be enforced in case he joins the Central Government, a State Government, a Quasi-Government Organization or another Public Enterprise, subject to the condition, that a fresh bond is taken to ensure that the employee serves the new employer for the balance of the original bond period.
3. Instances have come to the notice of this Department, that the terms of the bond were enforced in the case of those employees also, who left service to secure employment other than private employment, and they were asked to refund proportionate service bond money, even though such a refund was not warranted in terms of the existing instructions, and all that was required was execution of a fresh bond by the individual concerned with the new employer, to the effect that he would serve them for the balance of the original bond period. It may be clarified that for the purpose of these instructions, any employment other than the employment under the Central Government, a State Government, a Public Enterprise wholly or partly owned by the Central Government or a State Government, or an Autonomous Body wholly or substantially owned/financed/controlled by the Central Government or a State Government, will be treated a private employment.
4. While the instructions referred to in paras 1 and 2 above cover the employees of the Central Government and those of Central Public Enterprises, they do not automatically apply to the employees of Autonomous Bodies, wholly or substantially owned/finances/controlled by the Central Government. It has, however, come to the notice of this Department, that though such Autonomous Bodies generally follow the instructions of the Government of India in regard to service conditions of their employees, these employees are sometimes put to undue hardship in the absence of instructions specifically applicable to them, regarding exemption from enforcement of bond as referred to in paras 1 and 2 above. The matter has been examined in this Department, and it has been decided that the facility of exemption from the enforcement of bond, as it is available to the employees of the Central Government and those of Central Public Enterprises, may also be extended to the employees of Autonomous Bodies, wholly or substantially owned/financed/controlled by the Central Government, in case they leave the service of the Autonomous Body in order to secure employment other than private employment as defined in para 3 above.
5. To sum up, the terms of the bond (which a Central Government servant, an employee of a Central Public Enterprise or an employee of an Autonomous Body wholly or substantially owned/financed/controlled by the Central Government, receiving scientific and technical training at the expense of the Government/Enterprise/Autonomous Body has to execute, undertaking to repay the money in the event of his failure to serve the Government/Enterprise/Autonomous Body for a stipulated period after completion of his training) should not be enforced against an employee, who leaves service of the Government/Enterprises/Autonomous Body to secure, with proper permission, employment under the Central Government, a Public Enterprise wholly or partly owned by the Central government, or a State government, or an Autonomous Body wholly or substantially owned/financed/controlled by the Central Government. In such a case, a fresh bond should be taken from the person concerned to ensure that he serves the new employer for the balance of the original bond period.
Surely, we would have gone into each OM and reproduced the contents thereof, but inasmuch as, the comments made in the book "Swamy's Complete Manual on Establishment and Administration for Central Government Offices", are not in dispute nor the conclusions arrived therein have been questioned, it would be unnecessarily burdening this judgment by making a mention of all the OMs and to arrive at our own interpretation of the same. The applicant indeed sought employment with the Development Department of Government of NCT of Delhi by routing his papers through proper channel. It may be recalled that the applicant forwarded his application through his department and competed for the post on which he has been selected. Insofar as, Rules 50 to 63 of the CCS (Leave) Rules are concerned on the basis of which alone the cause of the applicant is being opposed, the same indeed deal with the conditions for grant of study leave. The relevant rules which may have bearing upon the issue appear to be Sub-rule (4)(a) and Rule 63. Other rules in Chapter VI deal with conditions for grant of study leave (Rule 50); maximum amount of study leave (Rule 51); applications for study leave (Rule 52); accounting of study leave and combination with leave of other kinds (Rule 54); regulation of study leave extending beyond course of study (Rule 55); leave salary during study leave (Rule 56); conditions for grant of study allowance (Rule 57); rates of study allowance (Rule 58); procedure for payment of study allowance (Rule 59); admissibility of allowances in addition to study allowance (Rule 60); travelling allowance during study leave (Rule 61); and cost of fee for study (Rule 62). Insofar as Sub-rule (4)(a) of Rule 53 is concerned, the same reads as follows: (4)(a) Every Government servant in permanent employ who has been granted study leave or extension of such study leave shall be required to execute a Bond in Form 7 or Form 8, as the case may be, before the study leave or extension of such study leave granted to him commences.
Insofar as Rule 63 is concerned, the same deals with resignation or retirement after study leave or non-completion of the course of study, but it is significant to mention that it does not deal with bond, mention whereof has been made in Sub-rule (4)(a) of Rule 53. Rule 63 reads as follows: 63. Resignation or retirement after study leave or non-completion of the course of study (1) If a Government servant resigns or retires from service or otherwise quits service without returning to duty after a period of study leave or within a period of three years after such return to duty or fails to complete the course of study and is thus unable to furnish the certificates as required under Sub-rule (5) of Rule 53, he shall be required to refund- (i) the actual amount of leave salary, study Allowance, cost of fees, travelling and other expenses, if any, incurred by the Government of India; and (ii) the actual amount, if any, of the cost incurred by other agencies such as foreign Governments, foundations and Trusts in connection with the course of study, together with interest thereon at rates for the time being in force on Government loans, from the date of demand, before his resignation is accepted or permission to retire is granted or his quitting service otherwise: Provided that except in the case of employees who fail to complete the course of study nothing in this rule shall apply (a) to a Government servant who, after return to duty from study leave, is permitted to retire from service on medical grounds; or (b) to a government servant who, after return to duty from study leave, is deputed to serve in any Statutory or Autonomous Body or Institution under the control of the Government and is subsequently permitted to resign from service under the Government with a view to his permanent absorption in the said statutory or Autonomous body or Institution in the public interest, (2)(a) The study leave availed of by such Government servant shall be converted into regular leave standing at his credit on the date on which the study leave commenced, any regular leave taken in continuation of study leave being suitably adjusted for the purpose and the balance of the period of leave, if any, which cannot be so converted, treated as extraordinary leave.
(b) In addition to the amount to be refunded by the Government servant under Sub-rule (1), he shall be required to refund any excess of leave salary actually drawn over the leave salary admissible on conversion of the study leave.
(3) Notwithstanding anything contained in this rule, the President may, if it is necessary or expedient to do so, either in public interest or having regard to the peculiar circumstances of the case or class of cases, by order, waive or reduce the amount required to be refunded under Sub-rule (1) by the Government servant concerned or class of Government servants.
A bare perusal of Rule 63 would clearly manifest that the same provides that in the event a Government servant resigns or retires from service or otherwise quits service without returning to duty after a period of study leave or within a period of three years after such return to duty or fails to complete the course of study, he is required to refund the actual amount of leave salary, study allowance, cost of fees, travelling and other expenses, if any, incurred by the Government of India, and the actual amount, if any, of the cost incurred by other agencies as mentioned in Sub-rule (1)(i) and (ii) of Rule 62. As mentioned above, it does not deal with refund of the amount in the bond that an employee might have executed. The same would only be covered by OMs referred to above. Surely, the applicant is to join on the post of Veterinary Assistant Surgeon with the Development Department of Government of NCT of Delhi, and, therefore, SSB cannot insist upon the applicant refunding the amount of Rs. 7 lakhs with interest etc. as pre-condition for relieving him. Once, the instructions issued by the Government which are binding upon it clearly deal with the issue in the manner aforesaid, we need not comment further. However, we may hasten to add that there is meaningful and wholesome purpose for issuing various OMs dealing with the issue referred to above. Whereas, an employee may not be permitted to go on study leave or obtain training at the cost of the Government which may in certain circumstances run into lakhs of rupees, so as simply to serve a private organisation, but if he may serve a Central Government or a State Government or such organisations which are even though autonomous but controlled by the Government of India or the State Government, the money spent by the employer is not wasted, as surely the services of the concerned employee are utilized by the Government only. We may mention that the applicant has already furnished a bond to serve with the Government for the remaining period for which he should have necessarily served, after he was to rejoin the department on availing study leave and, therefore, he, in any case, is adhering to the terms of the bond executed by him.
The only difference is that whereas he is serving a department of the Central Government, he would be now serving the State Government.
8. Before we may part with this order, we may mention that faintly and half-heartedly the learned Counsel representing the respondents also argued that the applicant has not challenged order dated 4.3.2008 vide which the respondents had held that the applicant could not be relieved from SSB, and that for want of such a relief, this Application has to be dismissed. We find no merit whatsoever in the aforesaid contention of the learned Counsel. Order dated 4.3.2008 even though, might not have been challenged specifically, but the applicant has prayed for a writ in the nature of mandamus directing the respondents to relieve him to join his new assignment in the Development Department of the Government of NCT of Delhi, and for any other relief that this Tribunal may deem fit, just and proper in the facts and circumstances of the case. The relief sought for by the applicant inherently involves challenge to all such orders that may have resulted into non-relieving of the applicant. In any case, the applicant is also asking for any other relief that may be just and proper in the facts and circumstances of the case. Be that as it may, it is settled proposition of law that the court can mould the relief depending upon the facts and circumstances of each case. It is even permissible to mould the relief in such a manner so as to take into consideration the events that might have happened subsequent to filing of the original lis. The State being a model employer need not indulge into raising of technical objections which may not at all touch upon the merits of the case. There has to be a difference between a private litigant and the Government, particularly when it comes to raising hyper technical objections.
9. For the reasons recorded above, we allow this Application and direct the respondents to relieve the applicant forthwith to join his new assignment which will not only benefit him financially but in his career progression as well. Such is indeed the desire and ambition of every citizen and that cannot be thwarted in the manner the respondents have endeavoured to do. The costs of the litigation are, however, made easy.