Central Administrative Tribunal - Delhi
Kanwal Jeet vs Government Of Nct Of Delhi on 11 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.657/2010 New Delhi, this the 11th day of August, 2010 CORAM: Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Kanwal Jeet, Aged about 60 years, D/o Shri I.S. Sehti, R/o House No.49, First Floor, Block No.19, Old Rajender Nagar, New Delhi 60 Applicant (By Advocate: Shri S.K. Gupta) Versus
1. Government of NCT of Delhi Through Chief Secretary, Delhi Secretariat, Players Buildings, I.P. Estate, New Delhi
2. Director, Directorate of Education, Old Secretariat, New Delhi
3. Deputy Director of Education (Central), Plot No.1, Old Bharati Mahila College Building, Jhandewalan, Link Road, New Delhi Respondents (By Advocate: Ms. Renu George) The applicant, a superannuated PGT under the GNCTD, is aggrieved at the inaction on the part of the respondents in not providing reemployment to her under the special scheme of automatic reemployment to the teachers upto the age of 62 years. The OA seeks by way of relief a direction for allowing the applicant automatic reemployment w.e.f. 1.7.2009 along with payment of salary and allowances from that date. Para 8 (ii) of the relief clause also prays for a direction of payment of interest @ 10% on delayed pensionary benefits including GPF as well as arrears of pay on the non-grant of automatic re-employment as prayed in para 8 (i).
2. On behalf of the applicant, the learned counsel Shri S.K. Gupta and for the respondents, the learned counsel Ms. Renu George would defend their respective cases. As the respondents have contended about the payment of all retiral benefits within one month of submission of papers and enclosed an order dated 12.3.2010 (Annexure R/4), the same not being disputed by the learned counsel for the applicant, the adjudication in the present OA is confined only to the re-employment issue.
3. The brief facts are as below:
3.1 The respondent-Government vide its Notification dated 29th January, 2007 had decided to allow automatic reemployment of all retiring teachers upto PGT level. This was made subject to fitness and vigilance clearance, till they attain the age of 62 years or till clearance from the Government of India for extending retirement age was received, whichever was earlier (Annexure A/1).
3.2 The detailed modalities were prescribed vide the subsequent order dated 28.2.2007 (Annexure A/2). Vide this order, the reemployment was made subject to (i) availability of a clear vacancy (ii) & (iii) fitness and vigilance clearance of the retiring teacher. For physical fitness, a Certificate from the authorized medical practitioner was required to be submitted by the retiring teacher to the Head of School where the teacher had last served. The professional fitness was required to be assessed by DDE of the concerned District after considering work and conduct report, vigilance clearance and medical certificate submitted by the pensioner. The relevant extracts from Paras 1 and 2 which are found to have a special bearing on the issues before us are extracted below:
1. xxxxxxx. The DDE concerned will ensure that the teachers, who are free from vigilance angle, are only re-employed and individual teacher should not be made to run around to get the vigilance clearance.
2. The DDE of the concerned District/Branch will be authorized and responsible for issuing the re-employment orders of all teachers after checking vigilance clearance and fitness one month in advance of retirement of the pensioner. (emphasis supplied) Further, as per Para-4 the reemployed Pensioner was required to execute an agreement in the prescribed form, which by a subsequent order of 22.3.2007 was stated to be in a non-judicial stamp paper of certain denomination.
4.1 The applicant, who superannuated on attaining the age of 60 years w.e.f. 30.6.2009, has not been reemployed under the aforesaid Scheme; which has occasioned the filing of the present OA. By way of fulfilling the pre-conditions for such reemployment i.e. fitness and vigilance clearance; it is contended in the OA that the medical certificates of physical and mental fitness have been submitted by the applicant to the concerned Principal vide her application dated 19.5.2009 (Annexure A/5). A copy of the concerned medical certificate dated 18.5.2009 has been annexed as Annexure A/6. Further, it is stated that the vigilance clearance in this case had been received in the School in April, 2009 (Annexure A/4).
4.2 As per the Scheme of reemployment, the professional fitness is to be assessed by the Deputy Director Education on consideration of the work and conduct report, vigilance clearance and the medical certificate submitted by the pensioner. This exercise never got done in the present case. While the applicant reiterates about having done the needful on her part well within the time and also approaching the authorities at all hierarchal levels persistently with her representations on this score; the respondents have struck to their gun and enclosed written communications from the Principal as well as Deputy Director Education to reinforce their stand (Annexure R/1, R/1A and R/2 with the Counter Affidavit). This is the contentious point in the OA.
5.1 The OA avers that the applicant had submitted the application for reemployment well in advance of her due date of superannuation, she had approached the Principal of the School requesting completion of due formalities. A copy of the application dated 19.5.2009 has been annexed as Annexure A/4, which mentions about her earlier applications of March as well as dated 30.4.2009 about her reemployment after her superannuation on 30.6.2009 enclosing a copy of the medical fitness certificate. The Principal had been requested to complete the requisite formalities at her end and seek approval from the department. It had also stated about the vigilance clearance already having been received in the School in April, 2009. A copy of the agreement executed by the applicant has been annexed as A/7.
5.2 It is submitted by the applicant that on the last date before her superannuation she was not allowed to sign the School Teachers Attendance Register. This fact was reported to the Zonal Education Officer on 30.6.2009 itself and communicated vide speed post (Annexure A/9). It is stated therein that the reasons for the same is attributed to the Principal.
On the contrary, a different version, however, came forth from the Principal, who vide her letter dated 19.5.2010 (Annexure R/1 with the CA) reported to the Education Officer about no papers for reemployment or pension having been submitted by the applicant. Further it was stated that despite being asked to do so, the applicant had not signed the Attendance Register and had, in fact, left the School without any intimation.
5.3 Continuing the stand of the applicant and further reinforcing it, the OA contends that even on 1.7.2009, despite her reporting to the School, she was not allowed to sign the Teachers Attendance Register (Annexure A/10). This was followed by several representations including the one to the D.E. (Education) (Annexure A/12) reporting the entire matter and requesting him to look into the matter. The communication states about the applicant needing the employment urgently being a single lady and also having lost her father. The fact of the applicant having been shattered by the treatment being meted out to her has also been submitted in the application addressed to the D.E (Education).
6.1 While objecting to the claims in the OA, the only averment from the respondents is about non-submission of relevant documents for reemployment by the applicant. This is stated to be the sole ground for not considering her case for reemployment as per the Scheme. Further to prove their point, it has been argued that no such communications, pertaining to reemployment as have been claimed in the OA, had been received either in the School or by the higher authorities.
In course of the hearing, the learned counsel for the applicant, Shri S.K. Gupta would seek to prove with the help of documentary proofs (diary no.1044) addressed to the D.D.E(C) (Annexure R/1 with the Rejoinder). Besides, the postal receipts of several communications sent by speed post would also be produced by the learned counsel. These would be sought to be rebutted by the learned counsel for the respondent, Ms. Renu George by producing relevant records and also by striving to raise several objections, more in the nature of nit-picking to the rival averments.
7. We are not inclined to assume as an investigative mantle to probe into the whole contentious issue. However, applying the test of a common reasonable person acting reasonably, we see no reason to counter the applicants submissions or to view them with cynicism adopting a negative and hyper-technical view. The fact remains that the Scheme in question envisages automatic reemployment promulgated in public interest. The applicant, who contends that she is not only willing but also desperately in need of the reemployment; the denial of the same and turning it into a legalistic turf does not seem to make sense. We, therefore, find it a fit case where the entire issue needs to be reconsidered by the respondents and in a positive way.
8. In Man Singh vs. State of Haryana & Ors {(2008) 7 SCALE 750} laying down the principles of law about fair play and reasonableness being the touchstone of any administrative action observed as under:
xxxx Any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have had it. Again in Prakash Ratan Sinha vs State of Bihar & Ors {(2010) 1 SCC (L&S) 443}, it was reiterated that Any administrative action within the realm of public law subject to judicial review for being tested on the anvil of principle of natural justice.
While defining the principles of natural justice as a broad proposition of law in their observations in BIECCO Lawrie Ltd & Anr vs State of West Bengal & Anr. {(2009) 2 SCC (L&S) 729}, the Apex Court had observed In other words principle of natural justice is attracted where there is some right which is likely to be affected by any act of the administration including a legitimate expectation. The present one evidently falls in this category where the applicant, who ex-facie fulfills the pre-conditions for the Scheme of automatic reemployment had a reasonable basis for a legitimate expectation for reemployment. The same having been denied to her, the principles of natural justice and the touchstone of fair play and reasonableness would come into play, bringing the impugned in-action of the respondents within the purview of judicial review.
9.1 Resultantly, the OA is disposed with a direction to the Respondent No.2 The Director (Education), the highest authority in the hierarchy directly dealing with the subject - to get the assessment of professional fitness done in this case, as per the methodology prescribed under the Scheme within a time bound period. For this purpose the applicant is to submit the required papers before the Respondent No.2 within a weeks time. On completion of formalities and the applicant being found fit, the issuance of the order of reemployment is to be done within a month of the submission of the requisite documents by the applicant. The stipulated time would be counted from the date of receipt of a copy of this order both by the applicant and the respondents.
9.2 The reemployment in this case was due in continuation of the date of superannuation and accordingly should have started from 1.7.2009, which as per the contentions in the OA , the applicant was prevented from performing her duties. In this context, we find it apt to respectfully quote the following observations of the Apex Court in The Commissioner, Karnataka Housing Board vs C. Muddaiah {(2207) (10) SCALE 625}:
We are conscious and mindful that even in absence of statutory provision, normal rule is no work, no pay. In appropriate cases, however, a court of law may nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court in a given case may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances direct the authority to grant him all the benefits considering as if he had worked .
Consequently it is directed that in the event of the applicant being found fit she would be entitled to the payment of due salary from 1.7.2009 by way of arrears. Given the facts of the case, the prayers for allowing interest and imposition of costs are not entertained.
The order is to be finally complied within a period of two months from the date of receipt of a copy of this order.
(Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
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