Central Administrative Tribunal - Delhi
Urmila Vijay Verma vs Kendriya Vidyalaya Sanghthan on 1 November, 2022
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Item No. 8 (C-3) OA No. 316/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 316/2017
This the 1st day of November, 2022
Hon'ble Mr. Ashish Kalia, Member (J)
Mrs. Urmila Vijay Verma, Aged - 32 years,
W/o. Sh Vijay Verma,
Working as PRT, in
K.V. No. 1, Harni Road, Baroda,
R/o. A2/13, Shreeji Villa-3,
Near Shreeji High View,
New VIP Road, Vadodara - 390 019. ...Applicant
(By Advocate : Mr. Yogesh Sharma)
Versus
1. Kendriya Vidyalaya Sangathan
Through its Commissioner,
18, Institutional Area,
Shahid Jeet Singh Marg,
New Delhi.
2. The Deputy Commissioner,
Kendriya Vidyalaya Sangathan
Ahmedabad Region, Sector 30,
Gandhinagar (Guj.) ...Respondents
(By Advocate : Mr. U. N. Singh)
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Item No. 8 (C-3) OA No. 316/2017
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The present OA has been filed by the applicant seeking the following reliefs :-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned Article 67(1) of Education Code and Article 137 (1) of Accounts Code of Kendriya Vidyalaya Sangathan and audit objection dt.
7.11.2016 in respect of applicant only, declaring to the effect that the same are illegal, arbitrary, against the law of the land and consequently pass an order directing the respondents to withdraw the audit objections dated 7.11.2016 in respect of the applicant.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondent No. 1 i.e. Commissioner, KVS to delete Article 67(1) of Education Code from Education Code and Article 137 (1) of Accounts Code from Accounts Code of Kendriya Vidyalaya Sangathan or at least to modify the same to the extent that the Child Care Leave period should be counted while calculating the five months mandatory period for granting vacation pay and allowances with all the consequential benefits to the applicant along with refund of any recovered amount if any with interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant in the facts and circumstances stated in the facts of the case, along with the cost of litigation."
2. The applicant is working as a Primary Teacher in Kendriya Vidyalaya Sangathan (KVS) and presently posted 3 Item No. 8 (C-3) OA No. 316/2017 in K.V. No. I, Baroda. Her claim is based upon Article 48 of the Education Code of KVS whereby leave would be admissible to the employee in accordance with the provisions of CCS (Leave) Rules, 1972 as amended from time to time and extended to KVS employees.
3. It is stated by learned counsel for the applicant that CCS (Leave) Rules are applicable to the employees of KVS, where the applicant is working. It is further stated that the applicant has got sanctioned Child Care Leave under the CCS CCA (Leave) Rules, 1972 during the years 2015- 16 and availed three periods of total 260 days from 23.6.2015 to 30.03.2016 in three spells. During the year 2016, there was a summer vacation of 50 days with effect from 03.05.2016 to 21.06.2016 and the teachers including the applicant was not called for duties during long vacations and they were entitled for pay and allowances as per rules and that is why the applicant was correctly granted the pay and allowances during the period as per CCS (CCA) Rules.
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Item No. 8 (C-3) OA No. 316/2017
4. Thereafter, the audit department has raised objection regarding pay and allowances of the applicant and some other staff of KVS and ordered recovery against the applicant to the tune of Rs.77,887/- on the ground that the applicant actually did not work for minimum period of five months during the period of last twelve months immediately before the start of summer vacation by applying the Article 67(1) of Education Code and Article 137 (1) of Accounts Code of KVS. The same is reproduced as under:-
"(i) The teachers and other staff of Vidyalaya who have been classified as vocational and who are not called for duty during the long vacation (summer/winter/monsoon) shall be entitled to vacation pay only when they have actually worked for a minimum period of five months during the period of twelve months immediately before the start of vacation (summer/winter/Monsoon).
Note : a) No leave other than maternity leave shall be taken into account for calculating the aforesaid period of five months."
5. It is further emphasized that there is no provision that if an employee takes long leave he/she is not entitled for pay and allowances during the vacation period but in fact there is a specific provision under Rule 28 of CCS CCA 5 Item No. 8 (C-3) OA No. 316/2017 (Leave) Rules vide which the teachers are not entitled for the same Earned Leave as entitled by other government servants. It is further submitted that as per the Rule 28 (1) of CCS CCA Rules, leave account of the Teacher, Principal, Headmaster, Librarian, Laboratory Assistant or a Waterman working in School shall be credited in advance with EL in two installments of five days on the first day of January and July of every calendar year. Meaning thereby for grant of pay and allowances to the teachers and other vacation staff during vacation period, their earned leave are less than the earned leave of other government servants, and the same are required to be credited in advance and that is why there is no such conditions in the leave rules to grant pay and allowances during the vacation period to the effect that concerned employees are required to work for minimum period of five months during the period of twelve months immediately before the start of vacation but, KVS incorporated the provisions in totally arbitrary manner.
He further added that Articles 64 and 65 of CCS CCA (Leave) Rules clearly states that for any relaxation, the 6 Item No. 8 (C-3) OA No. 316/2017 Ministry of Personnel Public Grievance and Pension is the only competent authority for KVS and once the CCS (Leave) Rules are adopted by the KVS they are bound with the said rules.
6. However, in this OA the applicant has challenged the vires of the aforementioned rule on the ground that there is no provision in the CCS CCA Rules. To support of his case he has relied upon various judgments which are enlisted below :-
"1. State of Punjab Vs. Rafiq Masih ;
2. Babu Lal Jain Vs. State of M.P & Ors. (2006) 6 SCC ;
3. S. Leikh Abdul Rashid & Ors. Vs. State of J & K, JT 2008 (1) SC 127 ;
4. Union of India Vs. Narendra Singh, 2008 (1) SCC (L&S) 547 ;
5. Duryodhan Lal Jatav Vs. State of UP Anr.
Order, 2005 (3) ATJ 56 ;
6. Shyam Babu Verma Vs. Union of India & Ors., 1994 (2) SCC 521) ;
7. State of Orissa Vs. Advail Charan Mohanty, 1995 Supp.(1) SCC 470 ;
8. Union of India Vs. Sita Ram Dheer, 1994 SCC (L & S) 1445 ;
9. Nand Kishore Sharma Vs. State of Bihar, 1995 Supp.(3) SCC 722 and 7 Item No. 8 (C-3) OA No. 316/2017
10. State of Karnataka Vs. Mangalore University Non Teaching Employees Assn. 2002(3) SCC 302.
7. Notices were issued to the respondents who put their appearance through Mr. U.N. Singh, learned counsel. He filed a detailed reply to the OA. During the course of arguments, learned counsel for the respondents though not stated in his reply has raised verbal objection regarding the territorial jurisdiction of this Tribunal as according to him, the cause of action for the applicant arose at Baroda which is in Gujarat. Further, vide para nos. 4, 4.6 and 5 of the reply, he has referred to Articles 67(1) (b) and 137 (i) wherein it is stated that Vocational staff of KVS who are not called for duty during the long vacations are entitled for vacation pay only when they have actually worked for a minimum five months during the period of 12 months immediately before start of vacation and it is further stated that the KVS has got their own rules apart from CCS CCA (Leave) Rules. It is further stated that through audit objection it came to the knowledge of the respondents that excess payment in the form of vacation salary was wrongly paid to the applicant. 8
Item No. 8 (C-3) OA No. 316/2017
8. Thus, the respondents started recovering the amount of Rs. 77,887/- after receiving an undertaking from the applicant regarding deducting the amount in installments of Rs.10,000/- per month. Hence, it amounts to admission on the part of the applicant and now, she cannot challenge this as doctrine of estoppel comes into play.
9. Heard learned counsel for the parties at length, perused the records and appreciated the legal position. Rejoinder has also been filed by the applicant reiterating the facts of the OA.
10. The short issue raised in the OA is whether the applicant is entitled for leave salary during the vacation period on account of availing the CCL ?
11. In order to decide this issue, learned counsel for the respondents has drawn my attention to page nos. 22 & 23 of the OA wherein Article 67 has been mentioned. For the sake of clarity, the same reads as under :-
"Article 67. Admissibility of Vacation Pay to Teachers and Other Staff Categorised as "Vacational"9
Item No. 8 (C-3) OA No. 316/2017 (1) The teachers and other staff of Vidyalaya who have been classified as vacational and who are not called for duty during the long vacation (Summer/Winter/Monsoon) shall be entitled to Vacation Pay only when they have actually worked for a minimum period of five months during the period of twelve months immediately before the start of vacation (Summer/Winter/Monsoon)."
He further submitted that the applicant since has not been working for five months, she shall not be entitled for salary for that period. The main concern of the learned counsel for the applicant is that once the CCS CCA Rules have been made applicable, then it has to be applied in entirety and not in isolation and once they are given the benefit, there is no such provision in the Rules that employee has to work for five months. This is only vacation salary which he or she would be entitled to.
12. The applicant has challenged vires of the Article 67. On the contrary, learned counsel for the respondents has stated that this is a legislation made by the Legislators and certain provisions were enacted in order to give facility to a particular set of employees such as teachers who have been given extra holidays during summer vacations/winter vacations. But, in the present case, the 10 Item No. 8 (C-3) OA No. 316/2017 applicant who is a teacher, is getting two months' vacation and other vacations (winter vacation and monsoon vacation), which is not given to other Central Government employees to whom the applicant is comparing with by citing CCS CCA (Leave) Rules.
13. In view of the foregoing discussion, once the applicant wants to take the said benefit that Article 67 has to be followed in toto. Article 67 envisages that at least five months work period should have been there because, the teachers are already given leave more than the Civil Services to whom the applicant is comparing. Thus, comparison with Central Government employees is not equitable. The other contention raised by the respondents' counsel that the doctrine of estoppel will apply once the applicant has given her consent for recovery, in the present circumstances, the employee concern has to give consent for the recovery being a disciplined employee but if he wants to question it before a Court of Law, he/she cannot be prevented from approaching the same being his/her legal right. 11
Item No. 8 (C-3) OA No. 316/2017
14. After taking into consideration the entire facts and circumstances of the case, this Tribunal is of the view that the applicant will prefer a representation to the respondents who may forward the same to the concerned Ministry to get the clarification whether CCL can be considered just like Maternity Leave for grant of vacation pay to the teachers who are employed in schools. The legislation in regard to the Maternity Leave is quite clear. The applicant's counsel has submitted that CCL is akin to Maternity Leave because both are given for the welfare of children. Thus, the Ministry concern may take decision in this regard within a period of six months from the date of receipt of a certified copy of this order. In the meantime, till any decision is arrived at by the concerned Ministry and communicated to the applicant, the recovery shall not be affected from the applicant.
The OA stands disposed of in the aforesaid terms. There shall be no order as to costs.
(Ashish Kalia) Member (J) /Mbt/