Central Administrative Tribunal - Patna
Pawan Kumar vs Kendriya Vidyalaya Sanghthan on 29 September, 2021
-1- OA/050/00458/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00458/2020
Reserved on: 26.08.2021
Pronounced on: 29.09.2021
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Pawan Kumar aged about 34 years, Son of Shri Rajendra Prasad Singh,
permanent resident of Dakhin Darwaja, near Vishnupad Thana Sudh Clinic Gali,
PO: Chand Chaura, PS
PS- Vishnupad Thana, District Gaya, Bihar, presently posted
as SSA, K.V, Ambikapur.
....... Applicant.
By Advocate: - Mr. S.K. Raj
-Versus
Versus-
1. Union of India through the Secretary, Ministry of Human Resources and
Development, Department of School Education and Literacy, 124-C 124 C
Shastri Bhawan, New Delhi-110001.
2. The Commissioner, Kendriya Vidyalaya Sangathan, 18 Institutional Area,
ShaheeJeet Singh Marg, New Delhi-110016.
110016.
3. The Assistant Commissioner (Estt. II & III), Kendriya Vidyalaya Sangathan,
18 Institutional Area, Jeet Singh Marg, New Delhi-110016.
Delhi
4. The Deputy Commissioner, Kendriya Vidyalaya Sangathan, n, Regional
Office, Ranchi, K.V Namkum, Ranchi, Jharkhand.
5. The Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Raiput at Dindayal Upadhyay Nagar, Raipur, Chattishgarh.
Chattis
6. Principal, Kendriya Vidyalaya, Chatra, Jharkhand.
.....Respondents.
By Advocate(s): - Mr. G.K. Agarwal
ORDER
Per S.K. Sinha, A.M:- Instant OA has been filed against the applicant's transfer from KV, Chatra to KV Ambikapur on promotion from the post of Junior Secretariat Assistant to Senior Secretariat Assistant vide Kendriya Vidyalaya Sangathan (KVS) order dated
-2- OA/050/00458/2020 31.08.2019 (Annexure/1) and the Memorandum of speaking order dated 16.10.2020 rejecting the representation of the ap applicant plicant for modification in the transfer order (Annexure A/10) A/10). The applicant has as prayed for following reliefs in the OA OA:--
" 1) Applicant's posting at KV Ambikapur on promotion as SSA as shown at serial no. 40 of memorandum dated 31.08.2019 (Annexure 1), bee quashed, and the Respondents be directed to modify its memorandum dated 31.08.2019 31.08.2019 so far its concerns to the applicant in view of its own resolution contained in Annexure
2.
2) Quashing office memorandum dated 16.10.2020 under which the respondents rejectedcted applicant's representation dated 03.09.2019 holding that KV Bokaro Thermal and categorizing Bokaro Thermal to be filled up on liquidation of spouse ground or for other right contender if otherwise found eligible.
3) The respondents be directed to relocate relocate place of posting of the applicant considering his representation filed on health ground as also the recommendation of the Regional Office, Ranchi communicating one clear vacancy at KV Bokaro Thermal.
4) Any other relief or reliefs as may deem fit and proper for the ends of justice in the facts and circumstances stated above."
2. The applicant's case is that he joined KVS as LDC/JSA in 2009 2009 and after serving at KV KV, Khamman (Hyderabad Division), KV, Bhind (Agra Agra Division Division) and KV, Bokaro( Ranchi Division) Division he was posted to KV,, Chatra Chatra( Ranchi Division) on 08.08.2018. Serving at KV, Chatra he was found fit for promotion to the post of SSA and was posted to KV,, Ambikapur (Raipur Division) on promotion vide the impugned posting order. The respondents pondents did not take preference from the affected officials before finalizing their posting on promotion though the Joint Consultative Machinery (JCM) of KVS had decided earlier on 03.05.2018 that option should be taken before deciding the pos posting of non-teaching teaching staff on promotion(Annexure promotion A/2).The The
-3- OA/050/00458/2020 applicant, on the ground of old age and health issues of his parents, parents, submitted a representation on 03.09.2019 requesting to post him to any the four KVs namely KV, Koderma, KV, KV Bokaro Thermal, KV,, NPDCL NPDCL, Navi Nagar and KV, Hajipur. His application was forwarded by the acting Dy. Commissioner, Ranchi to the KVS headquarters for consideration. Meanwhile, the applicant joined KV, Ambikapur and getting no response from the respondents submitted reminder er on 21.07.2020 and another representation on 21.07.2020 in which he highlighted that KV KV, Bokaro Thermal had one clear vacancy. The applicant also filed OA No. 298/2020 before this Tribunal which was disposed of at admission stage by directing the respond respondents ents to consider the pending representation of the applicant and pass a reasoned and speaking order within six weeks. TThe he Tribunal also directed not to fill the post of SSA at KV, Bokaro Thermal till a decision was taken taken. The applicant has mentioned that in i an identical case of Niraj Kumar the KVS had, while complying with a similar direction of Jabalpur Bench of the Tribunal, Tribunal modified the place of posting posting. In the case of applicant, KVS rejected the request of applicant applicantfor for modification in posting despite clear vacancy arbitrarily giving unreasonable grounds. Hence, the OA.
3. Respondents contested the OA and filed Written Statement in which they have pleaded that there are 1242 Kendriya Vidyalayas (KVs) all over the coun country and the he employees appointed under KVS
-4- OA/050/00458/2020 have all India transfer liability. The transfer and postings in KVS are decided in accordance with transfer guidelines for teaching/non teaching/non--
teaching post duly approved by Board of Governors. The transfer guidelines aut authorize horize the KVS to decide the transfer/posting of the staff keeping in view the best interest of students and due regard to principles of equity and transparency. The respondents have stated that option for posting of the officials getting promoted from the post of JSA to SSA was not taken before issuing the impugned order. TThe applicant had joined KV,, Ambikapur on 07.09.2019 in compliance of the transfer order. The KVS has complied with the order of Tribunal in OA no. 298/2020 and passed a speaking order on 16.10.2020 (Annexure A/10). The applicant's request for Koderma or Bokaro Thermal was considered sympathetically but his request could not be acceded to. The respondents have argued that the facts and circumstances of the cas casee of Niraj Kumar was was different from the applicant, hence there was no discrimination.
4. At the notice stage hearing on 18.12.2020, the Tribunal directed the respondents not to fill-up up the post of SSA at KV, KV Bokaro Thermal till further order or without per permission of this Tribunal.
5. On the date of final hearing, learned counsel for applicant mentioned that the applicant wanted to withdraw the OA and on enquiry quiry about the reasons ffor or such request he submitted that he cannot assign the reason but that may be seen from the record itself.
-5- OA/050/00458/2020 He further added that there may be circumstances which cannot be disclosed but compel the applicant to withdraw the case. Taking note of the vague insinuations in the learned counsel's submissions, submissions, we did not think it proper tto o allow withdrawal of theOA and decided to hear the case proper.
6. Heard the parties and considered the rival submissions and material on record.
7. The applicant's 's main ground in assailing the posting order dated 31.08.2019( Annexure A/1) is that the respondents did not take the preference of affected officials before deciding ding their posting on promotion which was not in accordance with the decision of the Joint Consultative Machinery (JCM) of KVS taken in a meeting on 03.05.2018. The applicant has annexed the minutes of the meeting circulated vide memorandum date 16.07.2018 (Annexure A/2). R Relevant elevant part of the minutes of the JCM meeting is reproduced for the sake of brevity below:-
"Decision taken on 03.05.2018 ...
(c). Preference for place of posting to be taken before posting of non-
non-
teaching staff on promotion/LDE. Action by : AC(E-II/III)"
In the pleadings, respondents have averred that the transfer and postings in KVS are decided in accordance with transfer guidelines for teaching/non teaching/non-teaching teaching posts post duly approved by Board
-6- OA/050/00458/2020 of Governors Governors. In pleadings or submissions, respondents have not denied the above decision of JCM or its applicability in the present case. Respondents have admitted that the preference from affected employees was not taken before deciding their posting on promotion (Annexure Annexure A/1 A/1).
8. The moot issue in this OA is the ground on which the respondents have rejected the applicant's representation while complying with the direction of the Tri Tribunal in OA 298/2020. The operative portion of the Tribunal's order reads as under.
"5. Taking note of entirety and without entering into the merits & other details, it deems appropriate to dispose of the OA at this admission stage with some directions. Respondents are directed to consider the pending representation of the applicant by passing a reasoned and speaking order within six weeks. Till no such decision is taken, the post of SSA at Bokaro, if at present is lying vacant, be not be filled-up.
filled "
9. The speaking order passed by the respondents issued vide Memorandum dated 16.10.2010 (Annexure A A-10) reads as under.
"Whreas, Whreas, Shri Pawan Kumar, JSA has been promoted from the post of JSA to SSA and transferred from KV Chatra to K.V. Ambikapur on promotion ion from JSA to SSA vide KVS Memorandum No. F.11-E- F.11 - 3056(8)/1/2019-Estt-III III dated 31.08.2019.
Whereas, Shri Pawan Kumar joined at KV Ambikapur on promotion as SSA and requested for modification through his representation dated 03.09.2019 to KV Kuderma (Ranchi Region) or KV Bokaro Thermal (Ranchi Region) but his request could not be acceded to, due to prevailing circumstances at that time.
Aggrieved with this, he filed OA No. 050/00298/2020 before the Hon'ble Tribunal Patna Bench, Patna passed an order dated dated 19.08.2020 in the said OA, the operative part of which reproduced below.
" Taking note of entirety and without entering into the merits & other details, it deems appropriate to dispose of the OA at this admission stage with some directions. Respondents Respondents are directed to consider the pending representation of the applicant by passing a reasoned and speaking order within six weeks. Till
-7- OA/050/00458/2020 no such decision is taken, the post of SSA at Bokaro, if at present is lying vacant, be not be filled-up.
filled The OA is disposed sposed of accordingly with no order as to costs".
Keeping in view the facts and circumstances as mentioned in his representation dated 03.09.2019, the case of Shri Pawan Kumar has been considered but could not be acceded to the following reasons:-
reasons:
The vacant ant post available at KV Bokaro Thermal (KVS Ranchi Region) is to be filled up by liquidation of surplus situation all over India or for the modification in place of posting on spouse ground or for any other right contender if otherwise found eligible, as per transfer policy/guidelines. Hence, the request of the applicant for modification of his place of posting as SSA from KV Ambikapur at KV Bokaro Thermal is regretted.
Thus, the representation dated 03.09.2019 is disposed of in compliance of the order dated 19.08.2020 passed by the Hon'ble Tribunal Patna Bench, Patna in OA No. 050/00298/2020 filed by him.
This issues with the approval of competent authority."
10. As seen from above, respondents espondents rejected the applicant's representation for posting against nst the vacant post at KV, KV Bokaro Thermal on the ground that this post was to be filled up by any of the three categories of officials namely (a) surplus staff all over India on liquidation ; (b) the officials requesting for modification of posting on spouse pouse ground; and (c) any other right contender if otherwise found eligible. The speaking order does not mention if any staff falling under any of the three categories elsewhere was under consideration for posting there at the moment.
moment There re is no mention as to why the applicant was not eligible or a right contender for posting against the vacancy at KV Bokaro Thermal despite his request. The respondents have decided to keep the post at KV, KV, Bokaro Thermal vacant to meet future requirement b but ut have not
-8- OA/050/00458/2020 mentioned when such requirement may arise. Declining the immediate request of applicant for posting and keeping the vacancy for an uncertain future requirement is arbitrary and unreasonable.
11. Also, the decision of KVS to reject the request of applicant stands in stark contrast to their own order in an almost identical case in which they acceded to the request of one Niraj Kumar who had approached the Jabalpur Bench of Tribunal and the Tribunal had directed the KVS to consider his representat representation ion and pass a speaking order. The Memorandum of KVS dated 18.03.2020 1 (Annexure-5)
5) issued in compliance of the direction of the Jabalpur Bench of the Tribunal reads as under.
" Whereas Shri Niraj Kumar JSA has been promoted from the post of JSA to SSA and ....... from KV No. GCF, Jabalpur to KV Lakhnadaun on promotion from JSA to SSA .......... Memorandum No. F-11-E-3056/(8)/1-
F -
2019 Estt-III dated 31.08.2019.
Whereas Shri Niraj Kumar has joined at KV Lekhnadaun on 6-9- 6 -
2019 as SSA and requested to modification modification through his representation dated 3-9-2019 2019 to KV COD Jabalpur or KV No. 1 Sagar but his request could not be acceded to.
Aggrieved with this he filed OA No. 200/1158/2019 before the Hon'ble CAT, Jabalpur Bench, Jabalpur. The Hon'ble Tribunal had passed order dated 6-1-2020 2020 in the said OA, the operative part of which is reproduced below:-
" Accordingly, this OA is disposed of, at admission stage, without going into merits of the case, by directing the competent authority of the respondents to decide applicant's cant's representation (Annexure A-4), A 4), if not already decided with a reasoned and speaking order, as per law, within a period of 60 days from the date of receipt of a certified copy of this order and decision so taken may be communicated to the applicant."
Accordingly, Shri Niraj Kumar has requested for modification vide his representation dated 3-9-2019 2019 for his modification from KV Lekhnadaun to KV COD Jabalpur or KV No. 1 Sagar on the following grounds.
I. My mother is 52 years old and lives with me as may father passed away.
-9- OA/050/00458/2020
II. She has been suffering from the chronic pain in her brain
and the treatment for which is also going on. III. He has also mentioned in his representation that he has been under treatment for the hole in his tympanic membrane (eardrum).
IV. As per his request Mr. Niraj Kumar has requested for modification in KV Lekhnadaun to KV COD, Jabalpur or KV No. 1 Sagar on medical ground of his prayer as well as self.
Keeping in view the facts and circumstances as mentioned in his representation dated 03-09-2019019 the case of Shri Niraj Kumar has been considered and acceded for modification at his place of posting from KV Lakhnadaun to KV No. 1 Sagar against the clear vacancy of SSA into request. The order will be effected from 1-4-2020. 1
Thus, the representation dated 3-9-2019 3 2019 is disposed of in compliance of the order dated 06-01/2020 01/2020 passed by the Hon'ble CAT, Jabalpur Bench, Jabalpur in OA No. 200/1158/2019 filed by him.
'This issues with the approval of competent authority."
12. As seen from above,, the respondents respon agreed to modify the posting of Niraj Kumar in view of clear vacancy. In the case of applicant of the instant OA OA, KVS rejected his request despite a clear vacancy as already discussed above. Thus, the respondents, for the reasons best known to them them, have adopted differential approach in dealing with identical matters. The he decision of respondents to reject the request of applicant appears arbitrary, discriminatory, discriminatory arbitrary and unreasonable unreasonable.
13. The applicant joined KV, Ambikapur on 07.09.2019 in pursuance of the order of posting on promotion (Annexure A/1). At this stage we do not want to quash and set aside the posting order dated 31.08.2019 and want to give opportunity to the respondents to examine the case afresh. We think it would serve the purpose of justice if the speaking order of respondents dated 16.10.2020
-10- OA/050/00458/2020 (Annexure A/10) be quashed and set aside at this stage and the respondents be given another opportunity to re-examine examine the options given by the applicant for his posting vide his representations dated 03.09.2019 (Annexure A/3) and 19.08.2020 (Annexure A/9) , in the light of our observation as has been given in former part of this order and to take decision about relocation of posting of the applicant as per outcome of th this reconsideration. Ordered accordingly. A reasoned and speaking order shall be passed by the respondents within two months from the date of this order. Till the time a decision is taken on the applicant's representations, the vacant post for non non-teaching staff at KV, KV Bokaro Thermal will not be filled up.
14. The OA is allowed to the extent of above directions. No cost.
[ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.