By TIOL News Service

NEW DELHI, SEPT 11, 2017: THE issue before the Bench is - Whether an officer gets a vested right for partial funding of his foreign education merely because his leave was sanctioned and he meets the eligibility criteria. NO is the answer from the High Court.

Facts of the Case:

The respondent belongs to the 1999 batch of Indian Revenue Service. The respondent had upon procurement of admission in the University of Leicester (UK) to study LLB (Senior Status) Course, submitted an application seeking the 'Partial Funding of Foreign Study' under the Plan Scheme of DFFT, framed by the DoPT's OM dated 17.03.2008. A hard copy of his application was send to the Cadre Controlling Authority, namely, the Central Board of Direct Taxes (CBDT), Department of Revenue which remained pending for almost 2 years. Accordingly, when the CBDT forwarded the same to the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training (DoP&T), the study leave was granted to the respondent for 668 days. Consequently, the respondent proceeded to the University of Leicester but, on 25.10.2012, the respondent was informed that his application had not been recommended by the Central Establishment Board (CEB) since the University of Leicester does not fall in the top 100 university criteria as per the rankings, and was also not one of the 5 additional programmes or universities recommended by the Cadre Controlling Authority.

The respondent then approached the Tribunal where the original application was allowed on the premise that the crucial date of eligibility is the date of filing the application and the eligibility should be determined on the date of the application. Therefore, the Tribunal held that the respondent's eligibility should be determined in terms of circular dated 17.03.2008, by which DoP&T circulated the scheme for 'Partial Funding of Foreign Study' under which the respondent applied, and not by the subsequent scheme contained in the DoP& T circular dated 06.05.2011.The Tribunal also directed the Cadre Controlling Authority to sanction the financial assistance to the respondent under the 'Partial Funding of Foreign Study Scheme' within a period of 3 months from the date of receipt of certified copy of the order.

In a writ, the High Court held that,

++ under the amended scheme, it was essential for officers seeking financial support to secure admission for a study programme in the foreign university/institutions, which figures in the list of top 100 universities/institutions as per the (Times High Education World University) Ranking published each year;

++ the relevant para III(i) of the scheme for partial funding of foreign study under the DoPT's OM in itself makes it clear that no employee has a right to insist that merely because he fulfils the eligibility criteria, he must be granted financial support for the course which he proposes to undertake. It is for the Government to decide upon consideration of all relevant factors, as to whether financial support may, or may not be granted to any employee. No doubt, the said decision had to be based on consideration of all relevant criteria and cannot be taken at the ipse dixit of the Government;

++ the issue in the present case, however, does not rest here as the facts show that much before the Respondent's application for consideration under the Scheme was taken up, a modified Scheme dated 06.05.2011 had come into force. The Respondent, admittedly, did not fulfil the eligibility criteria laid down in the OM dated 06.05.2011 as the University of Leicester (UK) - where he had secured admission, neither figured in the list of top 100 universities as per THE (Times Higher Education World University) ranking, nor his course was recommended as one of the five additional programmes/Universities recommended by his Cadre Controlling Authority;

++ the Respondent was granted study leave from 03.10.2011 to 31.07.2013, there was no assurance of any kind given to him that his request for financial support under the erstwhile 'Partial Funding Foreign Study Scheme, had been accepted, or would be accepted. It clearly emerges that despite the Respondent, having no reason to believe, that he would most certainly get financial support, he chose to proceed abroad for undertaking the LLB (Senior Status) Course, in the University of Leicester, immediately upon sanction of his study leave. Obviously, the Respondent did so with open eyes, and while remaining fully conscious that in case his application is rejected, he would have to foot the bill on his own;

++ when the Respondent's application for grant of financial support was considered by the Petitioner, the modified Scheme introduced vide OM dated 06.05.2011 was already enforced, and the Respondent's case was not covered by the said Scheme. Therefore, we find force in the arguments raised by Mr. Narula, that on the crucial date when the Respondent's application was considered, his case was admittedly not covered by the then prevalent Scheme. The Petitioner was, therefore, fully justified in not granting financial support to the Respondent, as by the said date, the guidelines which had come into force clearly stated that to be eligible for financial support, the Officer had to secure admission for a study programme in foreign university/institution which figures in the list of top 100 universities. That being the position, the Respondent cannot claim that his case ought to have been considered in terms of the earlier policy dated 17.03.2008, merely because he had submitted an application before 06.05.2011 i.e. before the new policy came into force;

++ much after having already left for undertaking the course in October, 2011, had, vide his letter dated 30.08.2012, asked for information regarding the status of his application for partial funding of his course made in 2011. This letter clearly shows that as late as in August 2012, there was nothing to assure the Respondent that his case for financial support/partial funding had been considered, or was being considered favourably. We are of the view that the Tribunal has clearly erred in coming to a conclusion that upon sanction of a study leave, the Respondent had reason to believe that his application for Partial Funding assistance was being considered favourably. We are unable to find any basis for this presumption by the Tribunal.

++ in our view, the reliance by the Tribunal on the judgments of the Supreme Court in the case of Diptimayee Parida and Alka Ojha is wholly misplaced, and the tribunal has failed to see the distinction between the cases relating to date of eligibility for public employment, and cases relating to consideration of applications for grant of some benefit. We agree that there was no vested right in the Respondent to get partial funding for studying abroad. Thus, the crucial date was not when the application for grant of partial funding was submitted, but the date on which it was considered;

++ we find that the judgment of the Tribunal is liable to be set aside, as the Tribunal has considered the date of application as a material date, whereas the material date, in fact, would be the date on which the Respondent's application for financial assistance was being considered and which, admittedly, was after 06.05.2011. In our view, the Petitioner was fully justified in rejecting the case of the Respondent, as he was admittedly not fulfilling the eligibility criteria prescribed in the OM dated 06.05.2011. The writ petition is allowed with no order as to cost.

(See 2017-TIOL-1825-HC-DEL-MISC)