THE HONOURABLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.4019 of 2008 Dated 14th July, 2014 Between:
Dr.P.S.Vimala Devi, W/o Sri P.Mohan Rao, aged 50 years, Occ: Principal Scientist, Directorate of Oil Seeds Research, Rajendranagar, Hyderabad.
…Petitioner and Union of India, represented by its Principal Secretary, Agricultural Department, Sansad Building, New Delhi and others.
… Respondents THE HONOURABLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.4019 of 2008
O R D E R:
This writ petition, filed under Article 226 of the Constitution of India, challenges the proceedings dated 02.02.2008 in File No.TIO/13/1-1/06 issued by the Second respondent/the Directorate of Oil Seeds Research, Hyderabad as being mala fide, without jurisdiction, contrary to the guidelines framed by the fifth respondent/the Indian Council for Agricultural Research, New Delhi and violative of principles of natural justice.
2. The pleaded case of the petitioner is as under:
2.1. The fifth respondent is the Indian Council for Agricultural Research, New Delhi (hereinafter called ‘ICAR’), which is directly under the control of the Ministry of Agriculture, Union of India. Petitioner is working as a Member Scientist in the second respondent/Directorate of Oil Seeds Research, Hyderabad and the petitioner embarked upon the project pertaining to low cost commercial production of “Bacillus Thuringiensis” for the management of “Castor Semilooper” which the petitioner developed solely with the external funding of Biotechnology Unit, Institute of Public Enterprise, which has been part of the Andhra Pradesh Netherlands Biotechnology Programme and the project was approved by the proceedings dated 20.12.2001 for the second phase.
2.2. Pursuant to the said funding, petitioner invented and developed the above project in two phases on her own and the relevant period being 18.12.1997 to 17.12.2001 and 18.12.2001 to 30.06.2005. The project was approved by the ICAR/the fifth respondent herein as a grant-in-aid project vide ICAR letter No.8(1)/97-O&P dated 15.12.1997 and the petitioner herein alone was the technical incharge of the entire project along with the non-technical staff who have been aiding her in the finalization of the entire project.
2.3. The ICAR/fifth respondent herein prescribed guidelines for sharing of revenue with regard to inventions made by the scientists of the respective organisations called “Guidelines for Intellectual Property Management and Technology Transfer/Commercialisation. As per the said guidelines, the ICAR/fifth respondent herein will share the income resulting from commercialization of an IP with individual responsible for the innovation and the process was submitted for patenting in the year 2002 which is pending consideration.
2.4. Consent for commercialisation was approved vide proceedings dated 19.01.2004 and the second respondent herein, the Directorate of Oil Seeds Research issued proceedings dated 27.06.2007 in File No.TIO/13/1-1/07, calling upon the petitioner to furnish the information in the prescribed format with regard to the inventions and the petitioner submitted the same. The third respondent Institute of Technical Management Committee (hereinafter called ‘ITMC’) and the second respondent Directorate of Oil Seeds Research, Hyderabad is the competent authority under the Rules framed by the fifth respondent ICAR for deciding the issues with regard to the revenue sharing. Meetings pertaining to the revenue sharing were held with the ITMC, the third respondent herein on 03.03.2007, 27.04.2007, 31.05.2007 and 15.06.2007, but the final decision was delayed by the ITMC/third respondent for the reasons best known.
2.5. Due to the humiliating and derogatory remarks in the proceedings of the ITMC/third respondent and the fourth respondent, the petitioner who was also a Member Secretary of the ITMC, was forced to resign. Petitioner submitted a representation dated 10.12.2007 to the Director General of ICAR, bringing to his notice the harassment meted out to her by the fourth respondent who is the ex-officio Chairman of ITMC/the third respondent committee and also the Project Director of the second respondent/the Directorate of Oil Seeds Research in the sharing of the revenues of IP product. Then the third respondent ITMC and the second respondent Directorate of Oil Seeds Research, Hyderabad took a decision to share the revenue on 29..01.2008 and by virtue of proceedings dated 02.02.2008 petitioner was intimated of the same.
2.6. Challenging the said proceedings dated 02.02.2008 issued by the Project Director of Oil Seeds Research, Hyderabad, the third respondent herein vide F.No.TIO/13/1-1/06 as being mala fide, without jurisdiction, contrary to the guidelines framed by the ICAR and violative of principles of natural justice, the present writ petition has been instituted.
3. This Court, on 16.02.2008 issued Rule Nisi. Counter affidavits have been filed by the respondents 2, 3, 5 and 6, denying the averments and allegations made in the affidavit filed in support of the writ petition and in the direction of justifying the impugned action.
4. Heard Sri A.P.Venugopal, learned counsel for the petitioner, Smt.Vani Reddy, learned counsel for the respondents 2, 3 and 5 and Sri Ramesh Babu, learned counsel for the sixth respondent and Sri P.Vishnuvardhan Reddy, learned Assistant Solicitor General for the first respondent apart from perusing the material available on record.
5. Contentions of Sri A.P.Venugopal, learned counsel for the petitioner:
5.1. The action impugned is highly illegal, arbitrary, unreasonable, mala fide, without jurisdiction, contrary to the guidelines framed by the ICAR/the fifth respondent herein and violative of principles of natural justice.
5.2. The impugned action is in contravention and violation of the Guidelines for Intellectual Property Management and Technology Transfer/Commercialisation.
5.3. The revenue sharing has to be done as per the guideline 11.4.1 and as per the guideline 11.4.3 the net revenue has to be made available to the inventors and other team members to the extent of 60% of the revenue.
5.4. Petitioner is the only person entitled for the amount since the petitioner alone is instrumental for development of the technology.
5.5. The second respondent, Directorate of Oil Seeds Research issued the impugned proceedings contrary to the guidelines and the Agri-Biotech Foundation, the sixth respondent herein is a non-entity and not entered into any MoU with the Directorate of Oil Seeds Research/the second respondent herein, as such, it is not entitled for any share.
6. To bolster his submissions and contentions, the learned counsel for the petitioner places reliance on the judgments of the Hon’ble Supreme Court in the case of M. SRINIVASA PRASAD AND OTHERS v. THE COMPTROLLER AND AUDITOR GENERAL OF
[1]
INDIA AND OTHERS , S.R. TEWARI V. UNION OF INDIA (UOI)
[2]
AND ANOTHER , STATE OF ORISSA AND ORS. V. MESCO
[3]
STEELS LTD. AND ANR , AYAAUBKHAN NOORKHAN
[4]
PATHAN V.THE STATE OF MAHARASHTRA AND ORS. and the judgment of the Hon’ble Delhi High Court in NARENDRA BATRA v.
[5]
UNION OF INDIA (W.P (C) No.7868/2005 dated 02.03.2009) .
7. Contentions of Smt.C.Vani Reddy, learned counsel for the respondents 2, 3 and 5:
7.1. The writ petition is not maintainable for enforcement of the guidelines and the petitioner herein has neither a constitutional nor statutory right.
7.2. Petitioner herein has no locus standi to question the impugned action since the petitioner is not a party in the agreement dated 18.12.1997 and the petitioner herein is only an employee of the second respondent entrusted with the job.
7.3. Respondents 6 to 8 are also entitled for the benefit of sharing due to commercialisation of the project.
7.4. Only after taking into consideration the guidelines the ITMC/the third respondent herein took a decision on 24.01.2008 with regard to benefit sharing and basing on the said decision the Directorate of Oil Seeds and Research/the second respondent herein issued the impugned proceedings dated 02.02.2008, indicating the benefit share.
7.5. The Bio-Technology Unit (BTU) of Institute of Public Enterprise (IPE), Hyderabad, transferred all the past, present and future liabilities of the programmes to Agri-Biotech Foundation (ABF), Hyderabad, the sixth respondent herein as per the approval of Cultural Cooperation, Education and Research and Communication Division, Government of Netherlands vide letter dated 04.04.2007.
7.6. Petitioner along with the Agri-Biotech Foundation declared that they are the true inventors of the technology in the patent application submitted to the ICAR.
7.7. The ITMC also considered sharing the benefit amount to Dr.Y.G.Prasad and Dr.V.Dinesh Kumar, who are the respondents 7 and 8 herein since they have contributed to the DOR Bt-1 technology development as associates.
8. Contentions of Sri Ramesh Babu, learned counsel for the sixth respondent.
8.1. The present writ petition filed under Article 226 of the Constitution of India is not maintainable since the petitioner herein failed to demonstrate any violation of her constitutional or statutory right. The sixth respondent is a recognized body to receive the share. The guidelines in the instant case are only for the purpose of guidance and they cannot form any basis for the maintainability of the writ petition in view of the following disclaimer:
“Disclaimer These ICAR Guidelines are for Internal Use Only and should not substitute any Administrative Orders issued by the Indian Council of Agricultural Research/Department of Agricultural Research and Education, Government of India or any Acts or Statutes concerning various IPR and related Laws. In case of any conflict of interpretation or interest, the administrative interpretation of related, the approvals of Competent Authority and the legal provisions of the related legislations ((Acts and Rules) and statutes, as the case may be, would prevail.”
9. In support of his contentions the learned counsel for the sixth respondent relies upon the judgements in the case of POONAM
[6]
VERMA AND ORS. V. DELHI DEVELOPMENT AUTHORITY , AIR FOAM INDUSTRIES (P) LIMITED NEW v. UNION OF INDIA AND
[7]
OTHERS and S.UMAPATHY AND ANOTHER v. THE
[8]
KARNATAKA POWER TRANSMISSION .
10. In view of the tremendous opposition with regard to the maintainability of the writ petition, this Court is required to answer the said aspect first.
11. Admittedly, in the present case, the dispute is with regard to adherence to and the enforcement of the guidelines issued by the ICAR/fifth respondent herein. The said aspect is required to be examined in the light of the judgments rendered by the Courts. As per the disclaimer, the said guidelines are for internal use only and should not substitute any administrative orders issued by the ICAR or any Acts or statutes covering various IPR and related laws.
12. In the case of POONAM VERMA AND ORS. (supra 6), the Hon’ble Supreme Court at paragraphs 27 and 28 categorically held as follows:
“27. Guidelines per se do not partake to the character of statute. Such guidelines in absence of the statutory backdrop are advisory in nature. Mr. Ram Prakash himself has relied upon a decision of this Court in Narendra Kumar Maheshwari v. Union of India and Ors. : [1989]3SCR43 wherein it has been laid down:
107... This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.
[See also Narendra Kumar Maheshwari v. Union of India and Ors. 1990 (Supp) SCC 440 at 508; Maharao Sahib Shir Bhim Singhji v. Union of India and Ors. AIR1981SC234 ;
J.R. Raghupathy and Ors. v. State of A.P. and Ors.: 1988(38)ELT225(SC) (paragraph 31); Uttam Parkash Bansal and Ors. v. L.I.C. of India (2002) 100 DLT 487 28. Guidelines being advisory in character per se do not confer any legal right.”
In the case of STATE OF ASSAM AND ANR. V. AJIT KUMAR
[9]
SHARMA AND ORS. , the Hon’ble apex Court at paragraph 13,
held as follows:
“13. We may in this connection refer to Messrs. Raman and Raman v. The State of Madras : [1959] Supp. 2 S.C.R. 227 where this Court had to consider certain orders and directions issued under s. 43A of the Motor Vehicles (Madras Amendment) Act, 1948. The question arose whether the orders issued under s. 43A had the status of law or not. This Court held that such orders did not have the status of law regulating the rights of parties and must partake of the character of administrative orders. It was further held that there could be no right arising out of mere executive instructions, much less a vested right, and if such instructions were changed pending any appeal, there would be no change in the law pending the appeal so as to effect any vested right of a party. That decision in our opinion governs the present case also, for it has been found by the High Court, and it is not disputed before us, that the Rules are mere administrative instructions and have not the force of law as statutory rules. They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under Art. 226 for the enforcement or non-enforcement of any provision of the Rules. The Rules being mere administrative instructions are matters between private colleges and the Government in the matter of grant-in-aid to such colleges, and no teacher of a college has any right under the Rules to ask either for their enforcement or for their non-enforcement. We are therefore of opinion that the High Court was in error when it granted a writ against the State through the Director, by which the Director was asked not to give effect to its letter dated March 20, 1962, against the Governing Body of the College.”
In the case of BIHAR EASTERN GANGETIC FISHERMEN CO-
[10]
OPERATIVE SOCIETY LTD. V.SIPAHI SINGH AND ORS.
Hon’ble apex Court at paragraph 15 held as follows:
“15. Re: Contention No. 3: This contention is also we'll founded and must prevail. There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a. failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (See Lekhraj Satramdas, Lalvani v. Deputy Custodian-cum-managing Officer and Ors. [1966]1SCR120 . Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962] Supp. 2 : (1972)IILLJ580SC S.C.R. 144 and Dr. Umakant Saran v. State of Bihar and Ors. . In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable, Accordingly, we are clearly of the opinion that respondent No. I was not entitled to apply for grant of a writ of mandamus under Article226 of the Constitution and the High Court was not competent to issue the same.”
, the In the case of AIR FOAM INDUSTRIES (P) LTD., NEW (supra 7), the Hon’ble Delhi High Court at paragraphs 17 and 18 held as under:
“(17) The Supreme Court of India has also repeatedly laid down the principles governing the issue of a writ of mandamus and orders, directions or writs in the nature of a mandamus. As was laid down in Dr. Rai Shivendra Bahadur v . Governing Body of the Nalanda College, Bihar Skarif and others, MANU/SC/0098/1961 : (1962)ILLJ247SC : "In order that mandamus may issue to compel the respondents to do something it must be shown that the statutes impose a legal duty and the appellant has a legal right under the statutes to enforce its performance." Again in Lehrai Sathramdas Lalvani v. N. M. Shah. Deputy Custodian cum Managing Officer, Bombay', it was laid down that "a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by the statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. "The judgment of a bench of this court to which one of us was a party (judgment delivered by Prakash Narain, J.) in Civil Writ Petition No. 27 of 1972), National Seeds Corporation Employees Union (Reg. & Recognised) and another v. National Seeds Corporation dated February 8, 1972, clearly set out after noticing the principles laid down by the Supreme Court, the circumstances in which a mandamus is issued. As was observed therein ; "Mandamus is issued on certain principles, which are, where a person, corporation or tribunal is required to perform any public duty or where it is required to perform any statutory duty imposed upon the respondent. A mandamus is in the nature of a command issuing from the High Court directing any person, Corporation or inferior court or Tribunal or authority to do a particular act or thing which that person or authority etc. is under a legal duty to perform or do. It is a coercive writ and not a corrective writ." A mandamus lies to secure the performance of a public or statutory duty, as was laid down by the Supreme Court in Praga Tools Corporation v.
C. V. Imanual. In short, Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. It is not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. It is, however, necessary that the command in the nature of mandamus is issued to compel performance of a constitutional or other statutory or public duty.
(18) Another salient feature which must be kept in mind is that a mandamus or a writ, order or direction in the nature of mandamus may be issued as a consequential relief when a particular order or act of public or statutory authority is struck down but is ordinarily not issued solely directing the State or any other authority or Corporation or person to refund money (See Suganmal v. State of Madhya Pradesh). Where an aggrieved party comes to Court for a declaration of the existence of a right in him the High Court can to give a complete relief after decelerating the existence of the right claimed or a declaration that a right has been infringed, issue a mandamus . as a consequential relief. The High Courts have power for the purposes of enforcement of fundamental rights and statutory rights in these circumstances to give consequential relief by ordering repayment or payment of money, as was laid down by the Supreme Court in State of Madhya Pradesh and another v. BhaVal Bhai. A writ of mandamus cannot issue for enforcement of any claim or right. Rules in the nature of administrative instructions without any statutory force cannot be subject-matter for the issue of a mandamus and enforcement or non-enforcement of such rules through a writ petition is not possible. (See State of Assam and another v. Ajit Kumar Sarma). We find, Therefore, a mandamus can issue only for the enforcement of a fundamental or statutory right.“ In the case of S. UMAPATHY AND ANR. VS.THE KARNATAKA POWER TRANSMISSION CORPORATION LIMITED/KARNATAKA
[11]
ELECTRICITY BOARD AND ORS. , the Karnataka High Court at paragraph 14, held as under:
“14. Even otherwise, it is seen that a Division Bench of this Court in the case of K. Narayana v. State of Karnataka and Anr. has ruled that advance increments granted by way of incentive is not a legal right or a vested right. The Division Bench has ruled that it is not a part of the service condition. This Court has also ruled in para 7 reading as under:
"7. After hearing both sides and going through the records, we are of the opinion that none of the contentions raised by Sri Subba Rao, learned Counsel for the appellant, deserves any consideration for the simple reason that the appellant's assertion that he is entitled to get incentive even in future also on the basis of the earlier Government Order is untenable as awarding incentive cannot be equated to one of a legal right. Further incentive given earlier has not created any vested right. Because, incentive is nothing but a payment made by the Government out of its own free will unconnected to service conditions. It is given with a view to encourage efficiency and standard of work to be turned out by an official by acquiring higher qualification. It is true that the Government have no power to alter or modify the conditions of Government service with retrospective effect to the prejudice to the Government servant. But, in the instant case, in fact, the learned Single Judge clearly stated that the action of the respondents in making the demand to refund the amount the appellant received upto a particular date as incorrect. Whereas, subsequent to that date, he has held that the employees of the Municipal Board cannot claim as a matter of right, as after all extending the benefit in the form of incentive or otherwise is purely a discretion and not a part of the service conditions. The authority relied upon by Sri Subba Rao is not applicable to the facts of the case. In our view, there are no merits in any one of the contentions raised by the appellant so as to interfere with the order of the learned Single Judge".
Since grant of increments is held to be a discretionary one, I do not think that such discretion can be struck down at this length of time at the instance of the petitioner.”
13. It is a settled and well established proposition of law that a Writ in the nature of Mandamus under Article 226 of the Constitution of India cannot be asked for without a legal right. The condition precedent which enables a party to ask for such relief is the existence of judicially enforceable and protected right in the person asking for and the existence of legal duty on the person from whom it is sought for.
14. In the instant case, the petitioner before this Court is asking for redressal of her grievance in the light of the guidelines issued by the ICAR/fifth respondent herein. As rightly contended by the learned counsel for the respondents, the claim for the benefit sharing is not guided by any statutory right under law, as such, the remedy provided under Article 226 of the Constitution of India is not available to the petitioner herein. In the considered opinion of this Court, in view of the law laid down in the above referred judgments, the present writ petition filed seeking the relief in terms of the guidelines issued by the ICAR/fifth respondent herein is not maintainable in the absence of violation of any constitutional or statutory right.
15. In view of the law laid down in the above referred judgments, this Court is of the view that the present writ petition is not maintainable.
The Judgments cited on behalf of the petitioner herein in support her contentions would not render any assistance to the petitioner in view of the factual and circumstantial variation. Since this Court is of the opinion that the very writ petition filed by the writ petitioner is not maintainable under Article 226 of the Constitution of India, this Court does not propose to delve into other aspects in the matter.
16. For the aforesaid reasons and having regard to the nature of controversy, this writ petition is dismissed keeping it open to the petitioner herein to avail other remedies available, if she chooses to do so. As a sequel, miscellaneous petitions, if any shall stand closed. No order as to costs.
A.V.SESHA SAI,J Date:14-07-2014 grk THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION No.4019 of 2008
Dated14th July, 2014 Grk
[1] (2007) 10 SCC 246
[2] (2013) 6 SCC 602
[3] (2013) 4 SCC 340
[4] (2013) 4 SCC 465
[5] (2009) LLR 4 DELHI 280
[6] (2007) 13 SCC 154
[7] 10 (1974) DLT 120
[8] ILR 2002 KAR 2205 = 2003 (2) Kar LJ 472
[9] AIR 1965 SC 1196
[10] AIR 1977 SC 2149
[11] ILR 2002 KAR 2205= 2003 (2) Kar L J 472