Central Administrative Tribunal - Delhi
Shri Kamal Kishore vs Govt. Of Nct Of Delhi on 21 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
R.A. No. 44/2013 and
MA 630/2013
IN
O.A. NO.2168/2011
With
OA No.3538/2012
OA No. 3542/2012
Reserved On:12.02.2014
Pronounced On:21.02.2014
HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
RA No.44/2013 In OA No.2168/2011
1. Shri Kamal Kishore
S/o Shri Yad Ram
R/o WZ-1002, Gali No.16,
Sadh Nagar, Palam,
New Delhi.
2. Ms. Sarita Devi
W/o Shri Kamal Kishore
R/o WZ-1002, Gali No.16,
Sadh Nagar, Palam,
New Delhi.
3. Shri Bhim Singh
S/o Shri Daulat Singh
R/o 11/106, Najafgarh Road,
Bahadurgarh, Haryana.
4. Shri Raj Kumar
S/o Shri Sunder Lal Yadav
R/o B-2/58, 2nd Floor,
Sector-16,
Rohini,
Delgi-110089. ..Review Applicants
By Advocate: Shri Ranjit Sharma
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary
At New Secretariat
I.T.O., New Delhi.
2. The Commissioner,
Municipal Corporation of Delhi,
Town Hall, Chandani Chowk,
Delhi.
3. The Director,
Education Department,
Municipal Corporation of Delhi,
Nigam Bhawan,
Kashmere Gate,
Delhi.
4. The Director,
Directorate of Education,
Old Secretariat
Delhi. Respondents
By Advocate: Shri Vijay Pandita & Shri Duli Chand.
OA No. 3538/2012
1. Yogesh
TGT Hindi, Govt. Boys Secondary
School, Phase-I, Nagloi
Delhi-41.
2. Nirma Rani, TGT, Math
B.N.N.G. Sarvodya
Kanya Vidyalaya
Khera Kalan, Delhi
..Applicants
By Advocate: Shri Ranjit Sharma.
Versus
1. Govt. of NCT, Delhi
Through the Chief Secretary
At New Secretariat
I.T.O., New Delhi.
2. Director of Education
Govt. of NCT of Delhi
Establishment-III
Branch, at Old Secretariat
Delhi.
3. North Delhi Municipal
Corporation through the Commissioner
at Civic Centre, S.P. Marg, New Delhi
4. South Delhi Municipal
Corporation through the
Commissioner at Civic
Centre, S.P. Marg, New Delhi
Respondents
By Advocate: Shri Vijay Pandita
OA No. 3542/2012
Rajiv Tanwar
TGT Eng. S.B.V
Naraina, Ist Shift
New Delhi.
..Applicant
By Advocate: Shri Ranjit Sharma.
Versus
1. Govt. of NCT, Delhi
Through the Chief Secretary
At New Secretariat
I.T.O., New Delhi.
2. Director of Education
Govt. of NCT of Delhi
Establishment-III
Branch, at Old Secretariat
Delhi.
3. Deputy Director of Education
Govt. of N.C.T. of Delhi
Establishment-III
Branch at Old Secretariat Delhi.
4. North Delhi Municipal
Corporation through the Commissioner
at Civic Centre, S.P. Marg, New Delhi
4. South Delhi Municipal
Corporation through the
Commissioner at Civic
Centre, S.P. Marg, New Delhi
Respondents
By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat.
ORDER
By Shri G. George Paracken:
RA No.44/2013 in OA 2168/2011This Review Application has been filed by the Applicants under Section 22(3)(f) of the Administrative Tribunals Act, 1985 seeking review of the order of this Tribunal dated 12.12.2011 dismissing OA No. 2168/2011 relying upon its earlier order in OA No.1657/2006 Ram Kumar Tyagi and Others Vs. GNCTD decided on 18.04.2007. The relevant part of the said order reads as under:-
The Applicants are Assistant Teachers in the schools run by Municipal Corporation of Delhi (MCD, for short). They have been recruited directly through the Delhi Subordinate Services Selection Board (DSSSB for short) in the year 2001. As per the recruitment rules of the Directorate of Education of Govt. of NCT of Delhi, they have been promoted as Trained Graduate Teacher (TGT for short) and appeared under the Govt. of NCT of Delhi, vide Annexure A-2 order dated 19.05.2010. According to the Applicants, they were made to understand at the time of their promotion that even after the appointment as TGT in Govt. of NCT of Delhi their channel of promotion in their own department, namely, MCD will be kept open for a period of one year from the date of their joining but when they came to know on 11.11.2010 that their lien was not maintained in MCD, they made representation to revert them back to their own parent cadre so that they may explore the promotional avenues there. As the Respondents Government of NCT of Delhi have not accepted the aforesaid request they have earlier approached this Tribunal vide OA No.367/2011 but the same was disposed of vide order dated 27.01.2011 with the direction to the Respondents to decide their request within a period of one month. By the impugned order dated 3.3.2011, the Respondents rejected their request relying upon an earlier order of this Tribunal in OA 1657/206 Ram Kumar Tyagi and Others Vs. GNCTD and Others. The relevant part of the order reads as under:-
4. It is not disputed that for recruitment of TGT in GNCTD, one of the feeder categories are the Assistant Teachers in MCD with requisite regular service and while working in MCD their particulars on requisition are being sought by the GNCTD. As per the seniority on holding the DPC, the incumbents are promoted and thereafter on relieving from the department, they are reappointed to the promoted post as TGT.
5. In the past, as per the relieving order conditions as to the person having right to hold a lien for a year in MCD and opportunity to come back, the respondents have allowed several persons to repatriate to MCD despite their promotion.
6. Of late a decision taken by the respondents on 10.3.2006 with an underlined object that by accepting promotion at the outset and then on repatriation as per the relieving order, GNCTD and particularly the Department of Education has been suffering for paucity of teachers, it is impossible to impart education to the children, which ultimately frustrates the goal and object under the Constitution of India. It has been made clear that normally the teachers would not be allowed to revert back on having accepted the promotion in Directorate of Education. This fact was communicated to the MCD on notification of vacancies.
7. With the above factual matrix, applicant has assailed an order passed by the respondents on 12.5.2006 whereby his request for repatriation to MCD has been turned down.
8. Learned counsel for applicant would contend that earlier similarly circumstanced employees, namely, S/Shri Amrish Kumar Gautam, Pushpendra Kumar and Mehi Lal, who had been promoted as TGT as a feeder category of Assistant Teacher from MCD, have been allowed to be repatriated. Non-accord of similar treatment to the applicant would constitute invidious discrimination and is violative of Articles 14 & 16 of the Constitution.
9. Learned counsel would also contend that what is paramount is the conditions of relieving wherein the MCD has clearly ruled that a person, who has been promoted from the post of Assistant Teacher to TGT in Delhi Administration, has a right to come back on certain conditions within one year.
10. Accordingly, in the above backdrop, learned counsel would further contend that as the applicant had made his request within one year of his promotion, i.e., on 21.4.2005 for repatriation, he still holds a lien with the MCD and his lien is yet to be terminated. Accordingly, he seeks quashing of orders on the ground that the same is dehors the rules.
11. On the other hand, learned counsel for respondents vehemently opposed the contentions and stated that as after so many intricacies and a long procedure on the consent of Assistant Teachers in order of their seniority, they once considered for promotion within the cadre as an avenue for promotion under the GNCTD having accepted the promotion, are restrained from resiling from the aforesaid in the guise of conditions in relieving order, which would not attract FR 13.
12. Learned counsel would contend that once a decision has been taken by way of promotion not to allow repatriation, the earlier repatriation of similarly circumstanced employees if not in accordance with rules, would not extend the applicant a right to contend equality under Article 14 of the Constitution, which does not approve of the concept of negative equality. As repatriation of a promotee in the cadre would not be on deputation., as the promotion was on the basis of a regularly held DPC and as the applicant has been promoted on a substantive post accordingly, lien in the erstwhile department of MCD is terminated.
13. On careful consideration of the rival contentions of the parties and perusing the material on record, it is trite that rules override the orders of the Government as well as the instructions issued on the subject. Statutory rules in vogue, i.e., FR 13 envisage certain situations where a government servant acquires and retains a lien on the post, which are; while performing the duties of the post on foreign service, joining another post on transfer, during joining time, while on leave and under suspension. As an exception or as a proviso, no lien of the government servant has to be retained where the government servant has proceeded on immediate absorption to a post or service outside his cadre, etc. In the above light, the Apex Court in S.K. Kacker v. All India Institute of Medical Sciences, (1996) 10 SCC 734 ruled that a government servant cannot have lien simultaneously on two posts and appointment to a permanent post entails termination of lien held in the previous post.
14. Further, it is an established law that unless one is confirmed in new service, he still holds a lien in the former post. However, government employee once promoted and confirmed looses lien on the post, as held by the High Court of Himachal Pradesh Satya Devi Chauhan v. H.P. Vidhan Sabha & another, 2004 (2) ATJ 85.
15. In the light of clear position of law, we have to examine whether the appointment of the applicant was on a substantive post or it required confirmation after an order of promotion was made. From the records, what we find is that the regularly constituted DPC where the recruitment rules for the post of TGT in GNCTD envisage one of the feeder categories as Assistant Teachers working in MCD considered their cases on the basis of seniority-cum-suitability and having found them fit, recommended their promotion and the promotion order issued in the present case clearly shows that the applicant was promoted on a substantive post. However, the promotion has been made subject to the final decision in CWP (supra), to which learned counsel for applicant contended that if the promotion is subjected to the final decision of CWP (supra), it would not be a final promotion and it still subjected to the decision to be arrived at in CWP. The aforesaid contention is misconceived. A decision as to promotion was subjected to final decision in CWP only because there had been a complaint in PIL as to non-filling of the posts in MCD as well as in GNCTD and while monitoring the case of promotion, one of the contentions raised by the erstwhile Assistant Teachers in MCD is that their promotion is by way of deputation, which as per the recruitment rules of 1997 belies on the face of it. Once the feeder category is Assistant Teacher in MCD, then the GNCTD is within its right to consider their cases and their promotion in such an event would not be to an ex cadre post. Otherwise on outcome of CWP, law shall take its own course.
16. Having been appointed on a permanent post, which does not entail a specific order of confirmation, the lien of the applicant stood terminated as soon as he has joined the post. The letter of relieving by the MCD where the lien is maintained for one year would not be of any help to the applicant, as this letter is contrary to FR 13 as well as the decision of the Apex Court. In such view of the matter, a request of the applicant for repatriation has been rightly rejected by the GNCTD.
17. Another aspect of the matter is whether the policy decision taken by the respondents on 10.3.2006 would have prospectively or retrospectivity in its enforcement? Once we have found that the basic object of policy decision was to prevent GNCTD to part with teachers, who volunteered earlier to be promoted, would cause void and would ultimately affect the administrative exigencies and smooth functioning of the Directorate of Education, which is responsible for imparting education to the children. For want of teachers, it would be difficult for the GNCTD to allow repatriation of teachers to again go back, as recruitment would take time and during this interregnum it would certainly entail a prejudice to the children whose studies are being affected.
18. With such an underlined object, a policy decision, though to be effective from 10.3.2006, would also extend to a request, which is yet to be decided by the Administration for repatriation of Assistant Teacher in MCD. An application of this policy guideline to a pending case is correct and admissible in law.
19. As regards invidious discrimination, if a wrong is done in the past, it would not be allowed to be perpetuated, if it is contrary to law. As there is no estoppel against law, the repatriation on substantive appointment when entails termination of earlier lien, one is not allowed to go back to the parent department, as this is not a case of deputation but a promotion. Negative equality has no concept in law and would not be applied to uphold Article 14 of the Constitution.
20. As regards non-speaking order, once the reasons are well explained in the reply, though as per rule it would not be substituted but by sending the case back to the respondents to record reasons, which now being meticulously examined by us, would be a useless formality, which shall not be congenial in the interest of justice.
21. For the foregoing reasons, in the interest of education and in accordance with law, the rejection of request of repatriation of the applicant to the MCD is apt in law. As we find no infirmity in the impugned order, OA is dismissed as bereft of merit.
No costs.
2. Respondents have filed their reply stating that the Applicants were not entitled to retain their lien in MCD. They have also relied upon the order of the Coordinate Bench of this Tribunal in Ram Kumar Tyagis case (supra). Further, they have submitted that in terms of FR 13(i), the lien of a Government servant is not retained where he proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption. They have also relied upon the circular dated 24.01.2008 issued by the Govt. of MCT of Delhi according to which, on having been appointed on a permanent post which does not entail a specific order of confirmation, the lien of the Applicant stands terminated as soon as the promotee joined the higher post. The said circular is reproduced here as under:-
GOVERNMENT OF NATIONAL CAPITAL TERRIOTRY OF DELHI, DIRECTORATE OF EDUCATION: ESTABLISHMENT III BRANCH ROOM NO.222B, OLD SECRETARIAT, DELHI-110054.
No.DE-1(230)/E-000/07 Dated24/1/08 2025-2029 It has been noticed that requests for repatriation to MCD are being forwarded by DDEs in respect of Assistant Teachers of MCD who have been promoted to the post of TGT/TGT (MIL) in the Dte. Of Education. A decision in this regard was taken by the Director of Education in the meeting held on 7th March, 2006 with seniors officers of MCD that, non availability or eligible teachers refusal of promotion by promoted teachers before joining and repatriation of promoted teachers after joining GNCT of Delhi back to MCD, leads to a situation where hundreds of posts remain vacant.
The promotion-cum-appointment of Asstt. Teachers of MCD is done in Dte. of Education as per the provisions of RRs and promotion is made against a regular post without any condition of period of probation. The provision of Para (e) of FR-13, states that no lien of a Govt. servant shall be retained where a Govt. servant has proceeded on immediate absorption basis to a post or service outside her service/cadre/post in the Government from the date of absorption.
The Honble CAT in its order dated 28th April, 2007 in OA No.1657/2006 in case of Ram Kumar Tyagi & Others Vs. GNCTD and Others, while dismissing the petition of the applicant for repatriation to MCD, has ordered that it an established law that unless one is confirmed in new service, he/she still holds a lien in the former post. However, government employee once promoted and confirmed, looses lien on the earlier post, as is held by the High Court of Himachal Pradesh in case of Satya Devi Chauhan Vs. H.P. Vidhan Sabha & Another.
Thus, having been appointed on permanent post, which does not entail a specific order of confirmation, the lien of the Applicant stands terminated as soon as the promotes join the higher post. The letter of relieving by the MCD where, lien for one year is provided does not hold good, as this letter is contrary to FR 13 as well as the decision of the Court.
In view of the above all the DDEs are directed to reject such type of requests at their own level and in no case such matter should be forwarded to the Head Quarter.
This issues with the prior approval of Competent Authority.
(ANKITA MISHRA) ADDL.DIR. OF EDN (ADMN.).
3. We have heard the learned counsel for the parties. In our considered opinion, this case is fully covered by the order of the Tribunal in Ram Kumar Tyagis case (supra). Applicants have joined the Government of NCT of Delhi as TGT on promotion. They are all confirmed employees of MCD. There was also no period of probation for the TGTs in the Govt. of NCT of Delhi. Therefore, there was no reason for the MCD to retain their lien. We, therefore, do not find any merit in this Original Application and accordingly, the same is dismissed. There shall be no order as to costs.
2. According to the Review Applicants, the question to be considered was whether teachers of MCD after having been promoted as TGT in Department of Education under the Government of NCT of Delhi could seek reversion within one year of such promotions. According to them, while dismissing their cases, this Tribunal has wrongly placed reliance on its earlier order in Ram Kumar Tyagis case (supra) which in turn was dismissed wrongly relying on proviso to FR 13 whereunder no lien of the Government servant could be retained where the Government servant has proceeded on immediate absorption to a post or service outside his cadre. Based on the said order, this Tribunal has erroneously held that Assistant Teachers on his promotion as TGTs in the Directorate of Education, Government of NCTD get absorbed on permanent basis in the cadre, whereafter there was no requirement of confirmation. They have also stated that this Tribunal at the same time relied upon Circular dated 24.02.2008 issued by the Director of Education, Government NCT of Delhi wherein it has been held as under:-
Thus, having been appointed on a permanent post, which does not entail a specific order of confirmation, the lien of the Applicant stands terminated as soon as the promotees join the higher post..
3. The Review Applicants have also submitted that according to the Recruitment Rules, there is a provision for probation of 2 years and the relevant part of the said rules reads as under:-
Educational and other qualifications:
Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotees?
Age No Qualification Yes Period of probation Two Years.
4. Pursuant to the aforesaid Recruitment Rules, the Respondents have been confirming teachers on promotion after completion of the probation period which is evident from Respondents own Annexure- A-1 (colly) and Annexure A-2 (colly) letters dated 08.02.2012, 24.04.2007 and 30.09.2011. Vide Office Order dated 08.02.2012, the Vice Principals of the Schools concerned under the Government of NCT of Delhi confirmed the TGTs who have joined them on promotion. Again, vide Office Order dated 24.04.2007 issued by the Principal, Government Boys Sr. Secondary School, BL Block, Shalimar Bagh, Delhi-110088, on the recommendations of the Departmental Promotion Committee and in pursuance of the approval of the Dy. Director of Education, District North West A Delhi vide No.860/DNWA dated 28.02.2007, one Shri Dharam Singh, TGT (English) was confirmed with effect from 14.08.1998. Similarly, another teacher of the same School Shri Satish Kumar, TGT (Maths) was declared confirmed with effect from 02.04.2010. Yet another teacher of the same school, Shri Paramir Singh, TGT (Natural Science) was declared confirmed with effect from 01.04.2010. Therefore, according to the learned counsel for the Review Applicants, till such time Applicants are confirmed as TGTs under the Government of NCT of Delhi, they have the lien with MCD and, therefore, they have to be repatriated on their request to MCD.
MA No.630/2013 in OA 2168/2011
5. This MA has been filed by the Review Applicants seeking condonation of delay in filing the aforesaid Review Application. According to the them, they came to know about some of the documents appended with the Review Application only in the month of February, 2013. They have also submitted that they came to know about the pendency of the OA No.3538/2012 Yogesh Kumar and Another Vs. Government of NCT of Delhi and Others and OA No.3542/2012 Rajiv Tanwar Vs. Government of NCT of Delhi and Others on the same issue. They have, therefore, prayed that their MA seeking condonation of delay in filing the RA be allowed.
6. The Respondents in their reply have submitted that this RA is not maintainable as the Applicants cannot re-argue this case in view of judgment of the Apex Court in Smt. Meera Bhanja Vs.Smt. Nirmala Kumari Choudhury 1995(1) SCC 170 wherein it has been held that Review Application must be confined to error apparent on the face of record and the court cannot go again on merits of the case. They have also submitted that there is no error apparent on the face of record or discovery of new material.
7. Further, they have also stated that this RA is not maintainable in view of the judgments of the Apex Court in K. Ajit Babu and Others Vs. U.O.I. & Others JT 1997(7) SC 24 wherein it has been held as under:-
In the present case, the view taken by the Tribunal that the only remedy available to the affected persons is to file a review of the judgment which affects them and not to file a fresh application under S. 19 of the Act. Section 22(3)(f) of the Act empowers the Tribunal to review its decisions. Rule 17 of the Central Administrative Tribunal (Procedure and Rules) (hereinafter referred to as "the Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of the copy of the order sought to be reviewed. Ordinarily, right of review is available only to those who are party to a case. However, even if we give wider meaning to the expression "a person feeling aggrieved" occurring in S. 22 of the Act whether such person aggrieved can seek review by opening the whole case decided by the Tribunal. The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking the O. 47 of the Code of Civil Procedure may not be applicable to the Tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of party feeling adversely affected by the said decision....
8. We have heard the learned counsel for the Review Applicants Shri Ranjit Sharma and the learned counsel for the Respondents Shri Vijay Pandita and Shri Duli Chand. As regards MA No.630/2013 (supra) for condonation of delay of this RA is concerned, it is allowed for the reasons stated therein.
9. As regards this RA is concerned, it is seen that the Rules regarding retention of lien for appointment in another central government office/ state government have undergone change by the latest order of the DOP&T vide O.M. No. 18011/3/88-Estt(D) dated 24.09.1992 Confirmation will be made only once in the service of an official which will be in the entry grade. Confirmation is delinked from the availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the probation may be considered for confirmation. The Government of India, Department of Posts, Letter No.68-3/88-SPB II, dated the 5th January, 1989, issued in consultation with Department of Personnel and Training further held as under:-
Officials confirmed in the lower post need not be confirmed in the higher officiating post even though confirmation due before 01.04.1988 Since confirmation is to be done only at the entry grade and there will be no confirmation on promotion, the officials confirmed in the lower grade are not required to be confirmed in the higher grade even in the cases where permanent vacancies are available from a date prior to 01.04.1988 and confirmation was also due on a date prior to 01.04.1988.
10. However, Government of India, Department of Personnel and Training, OM No.20011/5/90-Estt.(D), dated the 4th November, 1992 decided as under:-
On Promotion. (i) If the Recruitment Rules do not prescribe any probation, an officer promoted on regular basis (after following the prescribed DPC, etc., procedure) will have all the benefits that a person confirmed in that grade would have.
(ii) Where probation is prescribed, the appointing authority will on completion of the prescribed period of probation assess the work and conduct of the officer himself and in case the conclusion is that the officer is fit to hold the higher grade, he will pass an order declaring that the person concerned has successfully completed the probation. If the appointing authority considers that the work of the officer has not been satisfactory or needs to be watched for some more time, he may revert him to the post or grade from which he was promoted, or extend the period of probation, as the case may be.
Since there will be no confirmation on promotion before an official is declared to have completed the probation satisfactory, a rigorous screening of his performance should be made and there should be no hesitation to revert a person to the post or grade from which he was promoted if the work of the officer during probation has not been satisfactory.
11. As submitted by the learned counsel for the Review Applicants, the Recruitment Rule for the post of Trained Graduate Teacher notified on 11.12.1991, there is a clear provision for probation for two years. The Review Applicants have also produced some of the orders issued by the Respondent-Govt. of NCT of Delhi confirming those similarly placed teachers in their post of TGT.
12. In view of the above position, the Review Application is allowed and the OA is restored to its original position. Accordingly, list the OA No.2168/2011 for further hearing on 03.03.2014. The OA Nos. 3538/2012 and 3542/2012 heard along with this Review Application may also be listed for rehearing on the same date along with OA No.2168/2011.
(Shekhar Agarwal) ( G. George Paracken ) Member (A) Member (J) Rakesh