Central Administrative Tribunal - Chandigarh
Shikha Kundra vs Kendriya Vidyalaya Sanghthan on 12 February, 2021
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(order reserved on 2.2.2021)
O.A.No.063/1328/2018
Chandigarh, this the -2-2021.
CORAM: HON'BLE MRS. AJANTA DAYALAN, MEMBER (A)
Shikha Kundra d/o Sh. Krishan Chander Sareen w/o Sh. Bharat
Kundra, Librarian, Kendriya Vidyalya Saloh, Himachal Pradesh.
Pin 177209.
Applicant
(BY ADVOCATE: Mr. Arvind Galav)
Versus
1. Kendriya Vidyalya Sangathan through its Commissioner, 18,
Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110
016.
2. Deputy Commissioner, Kendriya Vidyalya Sangathan,
Regional Office, Gurugram-122 001.
3. The Principal, Kendriya Vidyalya, Saloh, Una, Himachal
Pradesh.
...Respondents.
4. Deputy Commissioner, Kendriya Vidyalya Sangathan,
Regional Office, SCO NO.72-73A, Sector 31-A, Chandigarh.
...Proforma Respondent.
(BY ADVOCATE: Mr. R.K.Sharma)
.. Respondents
ORDER
HON'BLE Mrs. Ajanta Dayalan, MEMBER(A)
1. This OA has been filed by the applicant Shikha Kundra seeking quashing of orders dated 22.12.2017 (Annexure A-1), 28.3.2018/2.4.2018 (Annexure A-2) and order 2 dated 4.10.2018 (Annexure A-3) rejecting her request for treating the period from 25.4.2017 to 22.8.2017 as compulsory waiting period instead of treating the same as EOL on private affairs. She has also sought direction to the respondents to treat this period as compulsory waiting period for all intents and purposes including full pay and allowances.
2. The facts of the case relevant to the OA are largely undisputed. The applicant joined KVS on 25.9.2003 and after serving at KVS, Jhalwar in Rajasthan and Bhisiana in Punjab, she was transferred to Chandimandir in 2011. She has been working there since then. The applicant proceeded on extra ordinary leave without pay from 25.7.2016 to 19.1.2017. This leave was sanctioned to her vide order dated 23.7.2016(Annexure A-8). Vide order dated 26.7.2016 (Annexure A-9), she was transferred from KV2 Chndimandir to KV Saloh in Himachal Pradesh. She represented on 27.7.2016 (Annexure A-10) stating that she was working as Librarian since 2011 and she did not apply for request transfer. The choice of stations given by her were as follows :-
1) ZIET Chandigarh;
2) RO Chandigarh;
3) Chandimandir No.1;
4) Chandigarh Sector 47;
5) Chandigarh 3 BRD.3
KV Saloh was not her choice station. She has a three year baby. Further, a post of Librarian is vacant at Dappar and she could be accommodated there. This application was forwarded by the Principal vide letter dated 27.7.2016 (Annexure A-11). However, she was relieved on the same day in her absence (Annexure A-12).
3. The applicant has further submitted that after expiry of sanctioned extra ordinary leave, she was supposed to join on 20.1.2017, but she suffered a slip in the bathroom causing acute spinal spasm with unbearable pain and as such, she sought extension of leave for one more month vide e.mail dated 16.1.2017. Further leave of two months was applied on medical grounds by her on 16.2.2017. Ultimately, she submitted her joining report on 25.4.2017 (Annexure A-14). However, she was not given posting. Rather, she was served with a show cause notice on 2.5.2017 for voluntary abandonment of service (Annexure A-15). She submitted her reply on 16.5.2017 (Annexure A-16). She made request for posting in KV Zirakpur where a post was lying vacant and also sought personal hearing.
4. Meanwhile, in 2017, Regional office was shifted from Chandigarh to Gurugram. So, entire case of the applicant was forwarded to RO Gurugram. The applicant, therefore, submitted representation to RO Gurugram on 11.7.2017. She also submitted a representation to RO Chandigarh on 25.7.2017(Annexure A-17 colly). RO Chandigarh informed 4 her that the documents have been sent to RO Gurugram. RO Gurugram also sent an e.mail directing her to attend personal hearing. She attended personal hearing on 21.8.2017, wherein she gave an undertaking that she will not leave Vidyalaya and station without prior permission of the Principal. A copy of the undertaking is at Annexure A/20. Thereafter, she was allowed to resume duty at KV Saloh vide order dated 21.8.2017 (Annexure A-21) subject to the condition that she will not take leave without prior permission in future. Period of her absence was to be decided later as per KVS norms. She submitted her joining report on 23.8.2017 in KV Saloh.
5. The period of her absence from 25.4.2017 to 22.8.2017 has been decided to be EOL on private affairs. Various impugned orders in this connection have been challenged by the applicant in the OA.
6. The case of the applicant is that she had already given her joining report on 25.4.2017, but finally she joined at Saloh only on 23.8.2017. As such, the intervening period needs to be treated as compulsory waiting period and not as EOL on private affairs. She has also pleaded that the order dated 28.3.2018/2.4.2018 (Annexure A-2) is non- speaking. In response, she submitted representation dated 26.4.2018 ( Annexure A-2/A). She has also stated that due to change of region from Chandigarh to Gurugram in July 2017, she submitted her joining report to RO 5 Chandigarh at the initial stage, but the matter was decided by RO Gurugram. This could be the reason for some delay for which she is not responsible and as such, the period of absence needs to be changed to compulsory waiting period instead of EOL. The applicant has also relied upon number of judicial pronouncements in support of her claim.
7. The respondents have contested the claim of the applicant.
They have stated that there over 1200 KVs situated all over India including three abroad. Governance of these Vidyalayas is based on Education Code. As per Article 71 of this Code, services of Sangathan employees are liable to be transferred to any KV at any time on short notice for organization reasons and administrative exigencies. Even the Hon'ble Apex Court has held that an individual's personal inconveniences have got little importance over administrative exigencies and public interest particularly in the matter of transfer/posting.
8. The respondents have further stated that the applicant reported to Regional Office, Chandigarh, on 25.4.2017 after a period of about nine months. She submitted two applications at that time - one for allowing her to join duties with reasons of medical emergency along with medical certificate obtained from the private clinic for grant of leave from 20.1.2017 for three months; and another for any kind of leave for further two years from 6 26.4.2017 due to domestic reasons. Copies of these applications are annexed as Annexures R-1 & R-2.
9. The respondents have further averred that the applicant was issued Show Cause Notice on 2.5.2017 for voluntary abandonment of her service thereby provisionally losing her lien on her post. The applicant replied vide letter dated 16.5.2017. On 9.6.2017, she also requested for allowing her to join duty and to reject her application for grant of leave for further two years.
10. The respondents have further stated that on re-
organization of KVs, her file was sent to RO Gurugram vide letter dated 27.6.2017. She visited the office of RO Gurugram on 11.7.2017 and was given an opportunity of personal hearing on 21.8.2017. Thereafter, on the basis of undertaking given by her, she was allowed to join at KV Saloh.
11. The respondents have also stated that the applicant made a representation dated 12.9.2017 requesting for deciding the intervening period of absence. Considering her representation, the period has been regularized as EOL on private affairs vide order dated 22.12.2017 (Annexure A-
1). Again, she submitted representation dated 22.1.2018.
However, since she remained absent unauthorizedly and her intervening period from 20.1.2017 to 23.8.2017 had already been regularized as EOL on private affairs, the representation was rejected vide order dated 7 28.3.2018/2.4.2018 (Annexure A-2). Thus, there is no illegality in the action of the respondents as period of her unauthorized absence already stands regularized.
12. In conclusion, the respondents have stated that the applicant is not entitled to any relief and the OA deserves to be dismissed.
13. I have heard the counsel of the opposing parties and have also gone through the pleadings in the case. I have given my thoughtful consideration to the matter.
14. The limited issue in the present OA is treatment of period from 25.4.2017 to 22.8.2017. The respondent department has treated the period as EOL on private affairs. The applicant is, however, seeking the same to be treated as compulsory waiting period.
15. In this connection, I observe that while working at K.V.Chandimandir, the applicant was sanctioned extra ordinary leave without pay from 25.7.2016 to 19.1.2017. She was transferred from Chandimandir to Saloh vide order dated 26.7.2016 - that is immediately after proceeding on long leave. I also observe that as per Article 71 of the Education Code, the services of KVS employees are liable to be transferred to any KV on short notice. In the instant case, as the applicant had already proceeded on long leave, she even had adequate notice. I also observe from the transfer order (Annexure A-9) that the transfer has been effected in public interest. Also, it is 8 not an order for applicant alone. In Library wing itself, seven other employees have also been transferred. Also, as per her own admission, she had been in Chandimandir right from 2011 and as such, she had been posted there for almost six years prior to her transfer outside. In any case, the applicant has not alleged any mala fide and there is no impleadment by name of any respondents.
16. Further I observe that the applicant had given five choice stations as detailed in paragraph 2 of this order. However, if one goes through these choice stations, these all are at Chandigarh/Chandimandir. Thus, effectively she has not given much choice for her transfer outside Chandigarh. Hence, her claim that Saloh was not her choice station does not stand to much ground.
17. I also observe that the applicant is in the habit of not joining duties after expiry of sanctioned leave. After sanctioned EOL from 25.7.2016 upto 19.1.2017, she was due to join on 20.1.2017. However, just before that on 16.1.2017, she asked for extension of leave by one more month. Again on 16.2.2017, she asked for extension of leave for two more months on medical grounds. Thus, she was clearly in the habit of applying for extension of leave at the last moment. Hence, Show Cause Notice was issued on 2.5.2017 which I consider fully justified as her behaviour was highly irresponsible and would have adversely affected the library facilities to the students in 9 the Vidyalaya she was transferred to. Even otherwise, such behaviour cannot be accepted.
18. I also note that applicant by her own admission had made a mistake in working out correct displacement counts which the employees have to fill up themselves and upload. She filled up the counts as 10 whereas it should have been 4. She made a representation on 23.6.2016 (Annexure A-5) for carrying necessary correction. But by her own admission, this was much after the last date of submission of representations which was 5.6.2016. Obviously, the mistake was made by her and cannot be used to her advantage.
19. Besides, I note that the transfer order transferring her to Saloh was issued way back in July 2016. But, still she chose to report for joining duty at RO Chandigarh. Thereafter, she continuously went on pleading for her adjustment in Chandigarh or near-about at Zirakpur etc. Accordingly, she was issued a Show Cause Notice and was finally given personal hearing on 21.8.2017. At that time, she also gave an undertaking not to leave Vidyalaya or Station without prior permission of the Principal in future. Only thereafter, she was allowed to join at Saloh - that is the place where she was transferred way back in July 2016.
20. It is clear from the chronology that the applicant never reported at Saloh earlier to 22.8.2017. As such, 10 there is no case for treatment of period from 25.4.2017 to 22.8.2017 as compulsory waiting period. Compulsory waiting period is attracted only when the employee joins at station immediately after sanctioned leave or on appointment etc. and the administration does not decide his/her posting immediately. In the instant case, the applicant was already posted at Saloh, but of her own choice, she did not join there. Rather, she wanted to join at Chandigarh. To this purpose, she repeatedly went on making representations, rather than joining duty at the place she was posted. For this delay, the applicant is responsible and not the administrative authorities. As such, she has no claim for treatment of period as compulsory waiting period.
21. I also observe that the applicant is trying to mis-lead this Tribunal. She has hidden the material fact of her having applied on 25.4.2017 i.e. the very date from which she is wanting the period to be taken as compulsory waiting period - for leave "from 26/4/2017 to next two years (ANY TYPE OF LEAVE)". This application is attached by the respondents as Annexure R-2. In this application, she has given various reasons for her difficulty in joining duty. This application was withdrawn by her only on 9.6.2017. In the face of this application, it is highly inappropriate for the applicant to now seek treatment of this period as compulsory waiting period. Further as she has not disclosed this material fact in the OA, she is clearly 11 making an effort to mis-lead this Tribunal and hence even on this ground, she does not deserve any relief.
22. In view of the above facts and circumstances of this case, I find that the judgments relied upon by the applicant are quite distinguishable and are not applicable to the instant case.
23. Therefore, I do not find any merit in the case and the applicant does not deserve any relief.
24. The OA is accordingly dismissed.
25. There shall be no order as to costs.
(Ajanta Dayalan) Member (A) Place: Chandigarh Dated: -2-2021.
KKS