Central Administrative Tribunal - Cuttack
A Priya vs Kendriya Vidyalaya Sanghthan on 11 August, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00034 of 2020
CORAM:
THE HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Aastha Priya, aged about 24 years, D/o Mritunjay
Kumar Jha, at present residing at Tulsi Mishra Lane,
Champanagar, Police Station - Nathnagar, Bhagalpur,
BIHAR.
......Applicant
VERSUS
1. Union of India, represented through its
Commissioner, Kendriya Vidyalaya Sangathan, 18,
Institutional Area, Shaheed. Jeet Singh Marg, NEW
DELHI-110016.
2 Assistant Commissioner (ACad & RPS), KVS (HQ),
NEW DELHI-110016.
3. Deputy Commissioner, KVS, Regional Office,
Bhubaneswar, Pragati Vihar Colony, Mancheswar,
Bhubaneswar- 751017, Dist.-KHORDHA, ODISHA.
4. Principal, Kendriya Vidyalaya No.6, Pokhariput,
Bhubaneswar - 751020, District-KHORDHA,ODISHA.
......Respondents
For the Applicant : Ms. S.Mohapatra, Counsel
For the Respondents : Mr. H.K.Tripathy, Counsel
Reserved on 02.08.2022 Pronounced on 11.08.2022
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ORDER
Swarup Kumar Mishra, Member (J):
As it reveals from the record, the Headquarters of the Kendriya Vidyalaya Sangathan, New Delhi invited applications, among other posts, for the post of TGT (English, Hindi, Social Studies, Science, Sanskrit and Maths) vide Annexure A/1. This matter is concerned relating to selection and appointment for the post of TGD (Social Studies) in KV Baripada. The essential qualifications for the post of TGTs provided in the advertisement are as under :
"(a) Four years integrated degree course of Regional College of Education of NCERT in the concerned subject with at least 50% marks in aggregate.
OR Bachelor's Degree with atleast 50% marks in the concerned subject/combination subject and in aggregate. The elective subjects and languages in the combination of subjects are as under:
SI. Post Subject(s)
No. (Subject)
1 TGT xxx
(English)
2 TGT xxx
(Hindi)
3 TGT(S.St) Any two of the following:
History, Geography,
Economics and Pol. Science of
which one must be either
History or Geography.
4 xxx xxx
5 xxx xxx
6 xxx xxx
i) B. Ed or equivalent degree from a recognized University. 3
ii) Pass in the Central Teacher Eligibility Test (CTET) Paper-II, conducted by CBSE in accordance with the Guidelines framed by the NCTE for the purpose
iii) Proficiency in teaching in Hindi and English medium.
Desirable: Knowledge of Computer Applications."
2. Applicant applied for the post of TGT (Social Studies), appeared at the selection, got selected and, accordingly, she was issued offer of appointment to the post of TGT (Social Studies) in KV No.1, Baripada vide Annexure A/8 dated 22.8.2019 with specific stipulation that she will be on probation for a period of two years which may be extended and upon successful completion of probation she will be confirmed as per rules of KVS. It was further stated therein that until she is confirmed her services can be terminated at any point of time during the probation period without assigning any reason thereof. The applicant accepted the offer of appointment and joined in KV No.1 at Baripada on 5.9.2019.
3. While continuing as such, her services were terminated, with immediate effect, vide office order under Annexure A/9 dated 17/18.12.2019 and consequently she was relieved by the Principal, KV No.1 Baripada vide order under Annexure A/10 dated 31.12.2019. The applicant, assailing and challenging the order of termination under Annexure A/9 dated 17.12.2019, has filed this Original Application with prayer to quash the impugned order and to direct the respondents to reinstate her to service with all consequential and monetary benefits.
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4. The respondents filed preliminary objection in so far as maintainability of this Original Application before this Tribunal taking the clue of the condition stipulated at Sl.No.10 of the offer of appointment providing therein that in case of any dispute or claim against the KVS in respect of service or any contract arising out of or flowing from this offer of appointment, the Courts of Delhi alone shall have jurisdiction. This Tribunal vide order dated 13.5.2020, after hearing the respective parties at length, taking into consideration the provision of Rule 6 of the CAT (Procedure) Rules, 1987 have held that this Tribunal has the jurisdiction to entertain the OA. Accordingly admitted this OA and issued notice to the respondents. In compliance of the notice, the respondents have filed their counter disclosing that on re-verification it was found that the applicant had done integrated BA B.Ed. in Bachelor of Arts and Bachelor of Education in the year 2018 from the Central University of South Bihar and secured 8.47 CGPA as per her Provisional Certificated dated 9.7.2018 instead of Regional institute of Education of NCERT as the essential qualification one has to acquire for being eligible for the post, in question. Hence, since the applicant was lacking the educational qualification, her services were rightly terminated during the probation in terms of the conditions provided in the offer of appointment. It has further been stated that since the order of termination is a simplicitor, without attaching any stigma or in any manner by way of punishment, providing opportunity or following due course of inquiry was not warranted. Therefore, there being no illegality in the decision making process of 5 the matter this original application is liable to be dismissed. To buttress their stand they have placed reliance on the following decisions :
(i) AIR 2007 SC 192-KVS Vs. Arun Kumar Madhurao Sindhaye & Anr.
(ii) High Court of Orissa order in OJC No. 1882/2000, Soumitra Mandal Vs KVS,
(iii) 2006 (7) Supreme 391- Vidyavardhaka Sangha & Anr. Vs. Y.d.Deshpande & Ors.
(iv) AIR 2007 SC 519, Muir Mills Unit of N.T.C. (U.P.) Ltd. Vs. Swayam Prakash Srivastava& Anr.
(v) 2010 (8) Supreme 611, Paramjit Singh Vs. Director, Public nstructions & Ors.
(vi) 1996 SCC (L&S) 49, Hukum Chand Khundia Vs. Chandigarh Administration and Anr.
(vii) (1991) 1 SCC 691, State of Uttar Pradesh Vs. Kaushal Kishore.
5. Rejoinder and reply to rejoinder have been filed by the respective parties and the points raised therein will be discussed infra.
6. Learned counsel for the applicant at the first instance has taken us through the conditions stipulated in the advertisement under Annexure A/1 and the educational certificates enclosed under Annexure A/2, A/3 and A/4 to substantiate that the applicant has acquired the essential qualifications provided in the advertisement but she has acquired the said qualification through a recognized institution, namely Central University of South Bihar, and not from Regional Institute of Education of NCERT. She has thereafter taken this Tribunal to the order under Annexure A/11 issued by National Council for Teacher Education, Eastern Regional Committee, Bhubaneswar to focus that the competent authority in exercising power under Section 14(1) of the NCT Act Central University of Bihar had granted a recognition to the Institution for conducting 4 years integrated B.A. B.Ed. and B.Sc. B.Ed. 6 program from the academic session 2015-16 wherefrom the applicant had acquired the educational qualification. She has also drawn the attention of this Tribunal of the amendment carried out vide Annexure A/13 providing therein that in course or training in Teacher Education offered on or after the appointed day till the academic year 2017-18 by the above institution shall be deemed to have been granted permission by the regional committee. Learned counsel for the applicant next drew our attention to the provision under Annexure A/14 to substantiate that National Council for Teacher Education (Determination of Minimum Qualification for Persons to be recruited at Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate School or Colleges Regulations, 2014 and that four years degree of BA. B.Ed., B.Sc. B.Ed. from any National Council for Teacher Education recognized institution. Therefore, according to the learned counsel for the applicant the essential qualification acquired by the applicant cannot make her ineligible merely because the applicant does not have acquired the said qualification from the Regional Institute of Education of NCERT. Learned counsel for the applicant has also taken this Tribunal through the Gazette of India notification dated 18.12.2014 to state that the Central University of South Bihar having been inserted of the First Schedule of the concerned Act, the qualification acquired by the applicant from the said University ought not to have been disqualified her leading to termination without following due procedure of rules and after complying with principle of natural justice. Learned counsel for the applicant has submitted that the competent authority 7 of Central University of South Bihar vide letter dated 17.1.2017 and 5/6.10.2017 (Annexure A/16) has requested the Commissioner KVS, New Delhi to consider and include the CIS's Four Year Integrated BA B.Ed/B.Sc. B.Ed program as eligibility for various teachings posts in the KVS. Therefore, after her appointment through a positive act of selection, termination on the ground that she did not have the essential qualification acquired through the Regional Institute of Education of NCERT is bad in law. Learned counsel for the applicant also submitted that since the termination is by way of not acquiring educational qualification which itself is a stigma and ought not to have been issued without giving her an opportunity of being heard and on this count the order can be treated as a punitive one. Accordingly learned counsel for the applicant has prayed for the relief claimed in the OA.
7. On the other hand, learned counsel appearing for KVS/respondents has submitted that termination during the probation being simplicitor the applicant can have no right to claim any equity as the same was clearly in accordance with the conditions stipulated in the advertisement at point No. 13, 17, 18 and 21. In the advertisement at point No. 14, it was clearly stipulated that the essential qualification for the post of TGT is (a) four years integrated degree course of Regional College of Education of NCERT in the concerned subject with at least 50% marks in aggregate. OR Bachelor's Degree with at least 50% marks in the concerned subject/combination of subject and in aggregate. The applicant has passed Four Year's Degree Course from Central University, South Bihar, but as per Recruitment Rules of KVS, candidates 8 must have done "Four Years Integrated Degree Course from Regional College of Education of NCERT. The same fact was clearly mentioned in the Advertisement No. 14 at Para-5, Pint No. 198 (that, "Qualifications acquired by the candidates should be strictly in accordance with the Qualifications prescribed for the post by the KVS." Again in the same para, Point No. 21 it was clearly mentioned that "The candidates applying for the examination should ensure that they fulfill all eligibility conditions for admission to the examination. Thus there is no question of misconceiving the law by KVS. It has been stated that the Kendriya Vidyalaya Sangathan (KVS) is not a Central Government Institution but an Autonomous Body under Ministry of Education and has its own recruitment rules duly approved by Board of Governors. Qualifications other than recruitment rules of Kendriya Vidyalaya Sangathan are not valid for appointment. IKVS is only adhering to its recruitment rules. There are total five (05) Regional Colleges of Education under NCERT located at Ajmer, Bhopal, Bhubaneswar, Mysore and Shilling which are known as Regional Institute of Education (RIE). Out of these five Regional College of Education, Four Regional College of Education located at Ajmer, Bhopal, Bhubaneswar and Mysore offers four years Integrated Degree Course. It has further been submitted that the argument advanced by the learned counsel for the applicant by placing reliance on the gazette notification and letter written to the Commissioner, KVS, New Delhi are of no consequence till the Recruitment Rules providing qualification is amended. Since the qualification acquired by an candidate from Central University of South Bihar has not been inserted in 9 the KVS rules after due approval of the competent authority the qualification acquired by the applicant cannot make her eligible and this fact having come to the notice of the authority concerned on re-verification her services were rightly terminated. Further contention of the learned counsel for the respondents is that the order of termination during probation without following the due course of rules by way of giving opportunity to her is under question in this original application and as stated above since the termination is not by way of punishment or attaching any stigma, the argument advanced by the learned counsel for the applicant is of no vain and in view of the settled position of law and the facts stated above this original application having no legs to stand is liable to be dismissed.
8. After considering the rival submissions of the respective parties, perused the pleadings, documents filed in support thereof and citations relied on. It is seen that the impugned order of termination is a simplicitor without attaching any stigma or it is by way of punishment for any conduct unbecoming on the part of a Government servant/unsatisfactory service while discharging her duties. It is also seen that the applicant was made aware that she will be on probation for two years during which the authority concerned have every right to terminate her services without assigning any reason. Uncontrovertibly, the applicant has acquired the qualification from Central University of South Bihar and not from Regional Institute of Education of NCERT as notified in the advertisement. Even if it is taken that the University wherefrom the applicant has acquired the qualification is taken as a recognized one but did not mention 10 in the advertisement, the applicant should have taken up the matter before applying for the post in question which she did not do. The position of law emerging from the decisions of Hon'ble Apex Court in the cases of Radhasyam Gupta -vs- State of U.P. Agro Industries Corporation reported in AI 1999 SC 609 and Diptai Prakash Banerjee -vs- Satyendranath Bose, National Centre for Basic Science reported in AIR 1999 SC 983 are as under :
As to under what circumstances an order of termination of a probationer can be said to be punitive or not depend upon whether certain allegations which are the cause of termination form the motive or foundation. If the grounds form motive for the termination then the termination is simplicitor. If on the other hand the grounds form foundation for the order of termination, then termination is punitive in which case termination order cannot be passed without a departmental enquiry affording a reasonable opportunity to the employee to defend himself. It will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into the truth, but decides merely not to continue a dubious employee. The master does not want to decide or to direct a decision about the truth of the allegations, but if conducts an enquiry only for the purpose of proving the misconduct and the employee is not heard, it is a case where the enquiry is the foundation and a termination will be bad."
9. As stated above, the order of termination does not contain any word indicating it is stigmatic or punitive in nature. It is not stigmatic as it does not contain any word which would disqualify the applicant in seeking employment in future. It has been passed within the period of probation. It may be recorded that in Hukum Chand Khunida -vs- Chandigarh Administration reported in 1996 SCC (L&S) 49, the petitioner a probationer temporary Clerk while continuing in temporary service on probation was found not up to the mark by 11 the successive officers under whom he worked and accordingly his service was terminated. The Hon'ble Apex Court negativing the contention as to the piercing veil advanced by the learned counsel for the petitioner held that since the service of the petitioner was found unsatisfactory and since he was holding a temporary service and was on probation, an order of termination simplicitor was passed without attaching any stigma against him.
Again in the case of Principal, Institute of Post Graduate Medical Education and Research -vs- S.Andel reported in 1996 SCC (L&S) 208, the petitioner a Staff Nurse was appointed in a temporary capacity on a substantive post. On number of occasions she was warned that her work was unsatisfactory and she should show improvement, on one occasion the Principal served a notice on her stating that her services stand terminated w.e.f. the expiry of one month from the date of notice. However, on a representation made by her she was excused and the said order was withdrawn with a warning if her work is not found satisfactory her services will be terminated without any further notice. Still then thereafter the Principal issued a letter informing her that her work was not found to be satisfactory and in order to enable her to show improvement her services were extended for a period of three months. The order of termination passed thereafter was held to be an order simplicitor.
In the case of State of U.P. -vs- Ramakrishna reported in Judgment Today 1999 (6) SC 391, the respondents Ramakrishna was appointed on 12 temporary basis and he was found absent from duties without obtaining leave his services were terminated. The Hon'ble Apex Court held that the impugned order of termination was an order of termination simplicitor of a temporary Government servant and provision of Article 311 would not be attracted.
10. Prescription of qualification for any post is a matter of policy falls within the domain of the competent authority and Court/Tribunal is not competent to decide either what should be the qualification and relating to acquiring the qualification from any particular university. It is not the case of the applicant that the qualification provided in the advertisement is contrary to the rules. It is seen that the respondents have mentioned the qualification provided in the recruitment rules in the advertisement and the applicant has admittedly acquired the qualification from Central University of South Bihar and not from the Regional Institute of Education of NCERT. The ground on which the applicant has been terminated during probation cannot be treated as stigmatic/punitive one. The impugned order of termination under Annexure A/9 dated 17/18.12.2019 does not contain any such word indicating it is stigmatic or punitive in nature which would disqualify the applicant in seeking employment in future. The stand of the applicant that the qualification acquired is from a recognized university which ought not to have been ignored, is a matter for the appropriate authority concerned to consider and cannot weigh for deciding the impugned order of termination without any stigma. In view of the facts and law discussed above this Tribunal is not inclined to 13 interfere in the impugned order of termination under Annexure A/9 dated 17/18.12.2019.
10(a). At the same time, it is seen that although opportunity of appeal was available to the applicant against the order under Annexure A/9 dated 17/18.12.2019, she has approached this Tribunal without availing that opportunity and as stated above the ground based on which her services have been terminated can well be decided by the appropriate authority especially when the letter of the Central University of South Bihar requesting the Commissioner, KVS, New Delhi vide Annexure A/16 dated 5/6.10.2017 to consider inclusion of CUSB's Four Year Integrated BA B.Ed./B.Sc. B.Ed. programme as eligibility for various teaching posts in KVS is pending and that she was selected and appointed through a positive act of selection and discharged her duties without any stigma. In the circumstances, liberty is given to the applicant to ventilate her grievance, if so desired, before the competent authority and it is hoped that the authority concerned shall take a pragmatic view on the same and communicate the result to the applicant.
11. In the result the OA stands disposed of leaving the parties to bear their own costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) Member (Judicial) Member (Admn.) RK/PS