Surender Singh Hooda v. Union of India and Ors.

1. The petitioner claims to have joined services of Border Security Force (BSF) in the rank of Assistant Commandant on 10.12.1991. He was serving as Second in Command as on 16.09.2006, with Department of Personnel and Training (DoPT), Ministry of Personnel, Public Grievances and Pensions, 2022:DHC:2756-DB sought nominations from Government department‟s Class-I Officers, having minimum 07 years of service and below 50 years of age for the post of fourth Post Graduate Diploma in Public Policy and Management (PGDPPM) at MDI, Gurgaon for the academic year 2009-11. In pursuance to the aforesaid, BSF called for nominations from its establishments and; petitioner claims to have applied for it through proper channel; was selected for PGDPPM to be conducted at Management Development Institute (MDI), Gurgaon w.e.f. 07.12.2009, furnished requisite bond and the PGDPPM commenced on 16.12.2009.

2. According to petitioner, subsequent upon joining the PGDPPM, he and other participants were informed that the venue of international module was shifted from George Mason University, USA to Sciences PO University, Paris by MDI, Gurgaon with the approval of DoPT, which was objected to by the petitioner vide protest letter dated 19.10.2010, as in the advertisement as well as the bond, it was specifically mentioned that the international module will be held at George Mason University, USA. The petitioner further claims to have completed his training at MDI, Gurgaon and international module of six weeks duration at Science PO University, Paris; and he reported back to his work on 01.01.2011. Petitioner claims to have been supposedly granted nine months at his work place for completing his dissertation, however, he got posted in the extremely hard area of Gurez Sector in Bindapur district of Jammu and Kashmir. Petitioner further claims that his telephonic request for his posting at BSF, Headquarters, Delhi or some other establishment of BSF for nine months to enable him to complete his dissertation to successfully complete his PGDPPM, was declined by IG, Training. Thereafter, petitioner claims to have applied for voluntary retirement due to domestic reasons.

3. Petitioner claims to have made a representation dated 19.12.2011 to the then Hon‟ble Home Minister for waiving off his liabilities of bond furnished at the time of joining PGDPPM, as he was not granted time for writing his dissertation due to hard posting and also because the conditions to complete the course were changed due to change in venue of international module without any prior intimation. However, he was telephonically informed by the Commandant (Pers) that his case for voluntary retirement will be processed only if he furnishes undertaking for deducting the dues arising out of bond from his terminal benefits and so, he furnished undertaking dated 23.07.2012 in the requisite format. Thereafter, an office Order dated 07.09.2012 was issued by the Ministry of Home Affairs accepting petitioner‟s request for voluntary retirement w.e.f. 31.07.2012, however, it was directed that the whole expenditure incurred on him for undergoing PGDPPM with interest, barring the period he was not offered opportunity for completing his dissertation, be recovered from his due entitlements.

4. Petitioner also claims to have written a letter dated 20.10.2012 to the Director General, BSF for release of his admissible benefits. However, in terms of impugned order dated 07.09.2012, his pensionary benefits have been withheld for recovery of expenditure incurred on petitioner for undergoing PGDPPM at Management Development Institute, Gurgaon.

5. In the aforesaid background of facts asserted by the petitioner, the present petition has been filed seeking a direction to respondent No.3 in the nature of mandamus to release his retiral benefits without any deduction in terms of impugned order/letter dated 07.09.2012. In addition, quashing of impugned order/letter dated 22/25/2012/Pers/BSF/57976-58022 dated 07.09.2012 itself is also sought.

6. During the course of arguments, leaned senior counsel for petitioner submitted that the petitioner had joined the course primarily for the reasons that the international module of the course was to be held at George Mason University, USA, however, the same was shifted to Sciences PO University, Paris, whereas as per the advertisement as well as the bond, it had to be George Mason University, USA only. He submitted that PGDPPM was a twenty one month programme, which included one year institutional training at MDI, Gurgaon and the remaining nine months was for completion of dissertation, whereas, the petitioner completed international module of six weeks duration at Science PO University, Paris and thereafter, he had to report back to his work place on 01.01.2011 having been deployed in extremely hard area of Gurez Sector in Bandipur District of Jammu and Kashmir. It is pleaded on behalf of petitioner that respondent No.3 was supposed to provide period of nine months to petitioner for completing the dissertation, however, he was given charge of Commandant in an extremely hard area and even his request for posting at BSF headquarters to enable him to complete his dissertation was declined by the IG Training. It was empathetically submitted by learned senior counsel that instead of posting the petitioner at a suitable place to enable him to complete his dissertation, he was posted in extremely hard area, requiring round the clock duty with utmost responsibility. Even his requests to the IG, Training and the then Hon‟ble Home Minister of India were not considered and therefore, the, respondents are solely responsible for not allowing the petitioner to complete his dissertation and diploma; and wastage of precious one year of petitioner‟s career. Learned senior counsel submitted that besides petitioner, other officer from BSF, namely, Shri Y.D. Vashisht, Commandant, was also not able to complete the dissertation and diploma due to non-availability of time.

7. Learned senior counsel next submitted that petitioner‟s application for voluntary retirement was accepted and he was relieved from service on 13.09.2012 (afternoon), however, his retiral dues were not released despite his letter dated 20.12.2012. Even vide order dated 19.03.2013, this Court had directed the respondents to release the terminal benefits of petitioner within two weeks, however, in violation thereof, the respondents released Rs.20,66,214.00 on 06.06.2014 and other terminal benefits of Rs.63,012/- on 21.01.2014; Rs.36,796/- on 25.04.2013 and Rs.420/- on 06.05.2013, causing huge loss to the petitioner in respect of utilisation of said terminal benefits. It was submitted that though the pension of petitioner has also been restored in April, 2014, but the respondents had no right to recover the bond amount, especially when no such demand was raised by the respondents. Further submitted that the retiral dues to the tune of Rs.39,02,427/- were lying with the respondents which were released belatedly, still interest amount to the tune of Rs. 3,20,303/- has been charged. Thus, it was submitted by learned senior counsel for the petitioner that for the own lapse of respondents for not letting petitioner complete his PGDPPM, recovery of expenditure incurred on his undergoing PGDPPM at Management Development Institute, Gurgaon, is bad in law. Reliance was placed upon Supreme Court‟s decision in Gorakpur University Vs. Shitla Prasad Nagendra (2001) 6 SCC 591 has awarded 18% interest for withholding and delayed payment on terminal benefits.

8. To the contrary, the present petition was strongly opposed by learned Central Government Standing Counsel (CGSC) appearing on behalf of the respondent on the ground that the recoveries made from the petitioner are as per rules, which do not call for any interference by this Court.

9. Learned CGSC submitted that for the PGDPPM at MDI Gurgaon, the officers were nominated subject to certain terms and conditions, which specified that it was a residential programme; included international module of six weeks and in the second year, the officers would return to their departments but continue to work on dissertation in consultation with the assigned faculty. For the entire period of course, the officers were treated on duty and their pay and allowances as well as travelling expenses to Gurgaon and back were borne by the Department/Ministry/State Government for which they were deputed. Also, lodging expenses were borne by the sponsoring organization and that the DoPT bore all expenses for travel to USA and back. It was submitted by learned CGSC that in lieu of above, the officers were required to execute a bond that in the event of officers failing to resume duty, resigning or retiring, or quitting the service anytime within five years from return to the duties, the officers shall pay the entire amount with interest thereon to the authorities concerned. Learned CGSC submitted that petitioner had submitted his willingness and bond for the aforesaid course.

10. Learned CGSC submitted that the final choice of international institution was joint by DoPT and MDI, Gurgaon and shifting of venue of the course was an administrative decision and that the petitioner interfered by sending a direct mail to George Mason University, USA on his own for arranging a visit of participants without knowledge of MDI, Gurgaon, due to which he was issued a warning letter dated 19.06.2011. Further submitted that the petitioner had to complete his dissertation in 09 months while being at his work place, however, he failed to do so. It was urged that no request citing difficulty in completing the dissertation or extension of time was made by the petitioner to the respondent and in the terms and conditions, it was nowhere specified that suitable posting was necessarily to be provided by the respondents to enable the participants to complete their dissertation.

11. Learned CGSC also brought to the notice of this Court that prior to making a representation dated 19.12.2011 to the Hon‟ble Home Minister for waiving off his liabilities of bond furnished at the time of joining PGDPPM, the petitioner had made a representation dated 25.02.2011 before the Director General, BSF, which was examined and rejected being devoid of merit. The petitioner had thereafter filed an application dated 09.07.2012 seeking voluntary retirement on the ground that he had compelling circumstances at his home.

12. Thereafter, his representation dated 19.12.2011 to the Hon‟ble Home Minister was decided vide letter dated 07.09.2012 whereunder petitioner‟s request for voluntary retirement was accepted, however, it was directed that the whole expenditure incurred on him for undergoing diploma such as pay and allowances; leave salary; cost of fee, travelling and other expenses, cost of international travel and cost of training abroad met by the department; together with interest, barring the period for which he was not offered the opportunity for completing his dissertation, was directed to be recovered from his due entitlements. The petitioner stood relieved from service on 13.09.2012 (afternoon).

13. Learned CGSC for respondent also submitted that petitioner had filed representation for voluntary retirement on 10.12.2011 citing family reasons and prayed for acceptance of his voluntary retirement w.e.f. 31.07.2012. Petitioner also sent a reminder dated 27.06.2012 seeking expedition of his voluntary retirement and gave an undertaking that all dues arising out of liabilities furnished under the bond at the time of undergoing the subject course, be deducted from his retiral dues.

14. According to respondents, in terms of letter dated 07.09.2012, the whole expenditure incurred on petitioner for undergoing PGDPPM including pay and allowances, leave salary, travelling expenses both domestic and international etc., barring dissertation period, has to be recovered from his entitlements and so, from the proposed recoveries arising out of bond dated 27.11.2009, the period of dissertation was barred. Further submitted that the petitioner had made various representations only for the waiver of liability, however, no request for extension of time to submit dissertation or for his posting to any other place where he could devote his time on dissertation, was made. It is urged that the petitioner was infact never willing to complete his dissertation but was willing to take voluntary retirement to pursue the legal profession. Thus, dismissal of the present petition is sought by the respondents.

15. In rebuttal, learned senior counsel for petitioner submitted that petitioner was not allowed to complete his dissertation and for this reason he could not complete his diploma and for the fault of respondents, petitioner cannot be held liable and, therefore, impugned recoveries are bad in law. Further, submitted that the respondent in the impugned order has admitted that the petitioner was not offered opportunity to complete his dissertation. Accordingly, the respondent instead of exempting from the liabilities of the bond with regard to dissertation period, has issued order no. 16/civil/Trg/4th PGMDI/Il/BSF113491-94 dated 21.11.2012 for recovery of full amount. Also, the respondents have included the amount of Rs. 90,562l- as cost of accommodation at MDI Gurgaon; have not deducted the income tax paid by the petitioner on the salary drawn by him during the period of one year and also levied interest @ 10% p.a. in gross violation of terms and conditions of the bond, whereas the respondents could only recover the interest from the date of demand as per the terms and conditions of the bond. Hence, it is urged that the present petition be allowed and respondent No.3 be directed to release the complete retiral benefits along with interest, without making any deductions under the bond furnished by the petitioner.