Central Administrative Tribunal - Delhi
Surender Kumar Mittal vs Govt. Of Nct Of Delhi on 31 October, 2012
Central Administrative Tribunal Principal Bench O.A.No.661/2012 New Delhi, this the 31st day of October, 2012 Honble Shri George Paracken, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Surender Kumar Mittal r/o N-194, RS Block, Bhola Nath Nagar New Delhi. Applicant (By Advocate: Shri Yogesh Sharma) Versus Govt. of NCT of Delhi Through the Chief Secretary New Sectt., I.P.Estate New Delhi. The Director of Education Directorate of Education Govt. of NCT of Delhi, Old Sectt. New Delhi. Dy. Director of Education (East) Directorate of Education Govt. of NCT of Delhi, Old Sectt. D Block Anand Vihar Delhi. The Principal Sarvodaya Bal Vidyalaya No.1 Bhola Nath Nagar Delhi. Respondents (By Advocate: Shri Vijay Pandita) (Order reserved on 15.10.2012) O R D E R By George Paracken, Member (J):
The applicant is a retired Teacher working in the Directorate of Education, Govt. of NCT of Delhi. The respondents have issued a Notification dated 28.01.2007 allowing automatic re-employment to all the retired Teachers upto PGT level subject to fitness and Vigilance clearance till they attain the age of 62 years. However, in the case of the applicant the said facility has been denied. Therefore, he had earlier approached this Tribunal vide OA No.978/2011 and the same was disposed of vide order dated 12.10.2011, and the same is reproduced hereunder:
The applicants case is that because of the malafide and biased action of the Respondent No. 4, namely, the Vice Principal, Sarvodaya Bal Vidyalaya No.1, where he was teaching, he was denied the automatic re-employment up to the age of 62 years. According to the Applicant, he was due for retirement on superannuation on 31.10.2010 and in terms of the Annexure-A4 Notification dated 29.01.2007, he was entitled for re-employment, till he attains the age of 62 years subject to fitness and vigilance clearance. The said notification reads as under:-
In pursuance of Cabinet Decision No.113 dated 4.9.2006 conveyed vide letter No.F.3/3/2004-GAD/CN/20491-502 dated 8.9.2006, the Lieutenant Governor, Govt. of National Capital Territory of Delhi is pleased to allow automatic re-employment of all retiring teachers upto PGT level, subject to fitness and vigilance clearance, till they attain the age of 62 years or till clearance from Government of India for extending retirement age is received, whichever is earlier. The terms and conditions of re-employment are being notified separately.
2. According to the Applicant, on the basis of some anonymous false complaint against him, the Respondents had issued a major penalty charge sheet on 13.08.2003 which culminated in his punishment of Censure imposed upon him by the disciplinary authority. The Applicant had filed an appeal against the aforesaid order of punishment and the same was pending. Meanwhile, the Respondents vide their order dated 19.11.2010, rejected his case for automatic re-employment on the basis of the work, conduct and performance certificate issued by the Vice Principal and the penalty of censure imposed upon him. The Applicant challenged the aforesaid order on the ground that his work, conduct and performance has always been Good/Very Good and in support of his aforesaid contention he has furnished the gradings in his ACRs for the last 6 years as under:-
1.4.2008 to 31.3.2009 Grading: GOOD 1.4.2007 to 31.3.2008:
Grading GOOD 1.4.2006 to 31.3.2007:
Grading: GOOD 1.5.2005 to 31.3.2006 Grading: GOOD 1.4.2004 to 31.3.2005:
Grading: V. Good 1.4.2003 to 31.3.2004 Grading: Good
3. As regards the censure imposed upon him, he has sated that the same was quashed and set aside by the appellate authority itself, vide its order dated 31.03.2011.
4. He has, therefore, sought quashing of the aforesaid order of the Respondents dated 19.11.2010 rejecting his request for the automatic re-employment and to direct them to reinstate him in service with all consequential benefits including treating the intervening period from the date of retirement to the date of reinstatement as on duty for all purposes including pay and allowances with interest.
5. The Respondents in their reply has also confirmed that the penalty of censure was imposed upon by the Applicant on 19.10.2010 by the order of Director Education and the same was set aside by the appellate authority vide its order dated 31.03.2011 but the work, conduct and integrity report, submitted by the Head of his School was unsatisfactory.
6. We have heard the learned counsel for the Applicant, Sh. Yogesh Sharma and the learned counsel for the Respondents, Ms. Alka Sharma. It is an undisputed fact that the Applicant was also entitled for the automatic re-employment up to the age of 62 years on his superannuation. The Applicants request for the aforesaid benefit has been rejected on the basis of the work, conduct report and the performance certificate issued by the Vice Principal who was the Head of the School in which he has been working. The other reason for denying him the benefit was the imposition of the penalty of censure upon him by the Director of Education. However, the Applicants contention is that his work, conduct and performance have already been assessed and the gradings in his Confidential Reports are the proof of the same as he has been given Good/Very Good grading in the last atleast six years prior to his retirement. Therefore, the report of the Vice Principal of the School was un-founded and biased. The other reason for denying him the re-employment was due to the punishment of censure imposed upon him. The Applicants contention was that the aforesaid punishment was imposed upon him on an anonymous complaint which was ultimately quashed and set aside by the appellate authority vide order dated 31.03.2011.
7. In view of the above facts and circumstances of the case, we find merit in the contention of the Applicant. Accordingly, we dispose of this OA with the direction to the Respondent to review the case of the Applicant for re-employment and take a fresh decision in the matter in accordance with the rules. As the two year period of re-employment for the Applicant is to expire on 31.10.2012 and only little over one year is left for him, the decision in the matter shall be taken within a period of one month from the date of receipt of a copy of this order, under intimation to him. There shall be no order as to costs.
2. Thereafter, the respondents have considered the case of the applicant but found that it could not be acceded to and the said decision was conveyed to him vide impugned order dated 22.12.2011. According to the said order, the applicant was chargesheeted under Rule 14 of the CCS (CCA) Rules, 1965 vide No.1173 dated 13.08.2003 and the competent authority, i.e., Director of Education, after careful consideration, had issued an order of `Censure upon him on 19.10.2010. In another case of disobedience, the Deputy Directorof Education (E) had also issued `warning on him vide order dated 16.08.2010. According to the respondents, as per the Notification dated 29.01.2007 of the Directorate of Education, re-employment upto PGT level will be allowed subject to fitness and vigilance clearance. Further, vide order dated 28.02.2007 it was clarified that professional fitness is required to be assessed by the Deputy Director of Education of the concerned district after considering the work and conduct report, vigilance clearance and medical certificate submitted by the pensioner. In the case of the applicant, the Deputy Director of Education considered his work and conduct report and found it unsatisfactory as he was imposed with `Censure vide order dated 19.10.2010. The decision of the Deputy Director of Education has also been ratified by the then Director of Education vide its order dated 15.12.2010. Further, according to the respondents, the applicant had approached the Principal Secretary (Education) against the order of `Censure issued to him and the Principal Secretary in his capacity as appellate authority, vide its order dated 31.03.2011 has over ruled the order of Censure with the following observations:
I find merit in the appeal particularly because there was no charge made out for non intimation of the transactions. In fact the allegations were such more severe that of the transactions being entered into for amounts exceeding unknown sources of income. Since the charge stands `non proven the normal course should have been followed and if there was a case made out for non intimation a fresh investigation should have been ordered providing opportunity to the appellant to defend himself.
3. The respondents have further submitted in the impugned order that even though the applicant is free from vigilance angle but the matter regarding work and conduct report provided by the then Head of the School (HOS) assessed his performance prior to his retirement was found `unsatisfactory and the Deputy Director of Education who issued the warning dated 16.08.2010 for disobedience conforms the unsatisfactory report of HOS was reviewed. The present HOS has also provided the results of the students of the last five years in respect of the applicant and on review it was observed that the last two years 2008-2009 and 2009-2010, the result of the classes taught by him was on the lower side and in some classes it was very poor. The HOS also intimated that during the annual day celebration on 10.02.2009, he left the school unauthorizedly when the programme was still going on. He also did not sign the order book vide which he was assigned the duty of preparing students to welcome the chief guest and other dignitaries. The said act was also considered as blatant disobedience of the order of the higher authority which tantamounts to misconduct. Again DDE (East) on a surprise visit to the School on 10.12.2009 found the applicant absent from the class ignoring the prime duty of a teacher to impart education to the students in the class. Again, he was found absent from the class by HOS on 06.08.2009, 10.08.2009, 11.08.2009, 06.02.2010 and 10.02.2010. Thus, he was found to be a habitual offender deserting his classes off and on and, therefore, committing misconduct and indiscipline. The applicant was being asked since 2009 by the HOS to handover the charge of vocational items/store room of Sh. SK.V.Vishwas Nagar but even prior to his retirement, he did not handover the charge and not even the key of the store room for which he was issued a warning by the then DDE (East) vide order dated 16.08.2010. After his retirement also the DDE (East) asked him to hand over the stock register and keys of the vocational items store room vide Memo. Dated 15.2.2011 but he did not turn up. Therefore, the DDE has compelled to depute some officers to break open the store room and after stock taking many items were found unavailable. Thus, the applicant was found to be careless and callous attitude towards the store assigned to him putting impediment in smooth functioning of the School.
4. The applicant has challenged the aforesaid decision of the respondents on the ground that the Notification dated 28.01.2007 envisaged automatic reemployment. It is subject to only fitness and vigilance clearance. In the present case, the applicant is fit in all respects, and it is clear from the facts in his case. He was also performing his duties without any problem. Regarding vigilance clearance, as on the date of retirement there was no charge sheet issued to him, no criminal case is pending against him and no vigilance case was pending against him and, therefore, not granting the automatic re-employment to him is illegal and arbitrary in the eyes of law.
5. Again the learned counsel for the applicant has submitted that as per the terms and conditions prescribed in the order dated 28.02.2007, the professional fitness is required to be assessed by the DDE of the concerned district after considering the work and conduct. The said condition is actually not laid down in the Cabinet decision dated 31.07.2010 and, therefore, according to the learned counsel for the applicant, the Cabinet decision cannot be changed by way of passing an administrative order. The other contention of the applicants counsel is that the work and conduct of a teacher is assessed from the ACRs but in the present case, the DDE considered the case of the applicant only on the basis of work and conduct report submitted by the Principal, who had already been biased against him. The DDE did not apply his mind while considering the case of the applicant. He has also stated that after considering his ACRs, work reports and conduct report, the competent authority found him fit for granting the benefit of MACP benefit and he has been granted the benefit of ACP Scheme vide order dated 23.01.2012.
6. The learned counsel for the respondents Shri Vijay Pandita has also relied upon the recent order of the Honble High Court of Delhi in WP(C) No.4330/2010, decided on 29.04.2011 [in Shahi Kohli v. Director of Education and Anr.]. In the said case, the petitioner was a Chemistry teacher in Delhi Public School. She attained the age of 60 years on 31.07.2010. Her grievance was that a Notification dated 29.01.2007 was issued by the Government of National Capital Territory of Delhi, Directorate of Education allowing re-employment to all retiring teachers upto PGT level till then they attain the age of 62 years and that despite the Notification, she has not been granted the benefit of re-employment without any cogent reason. The Honble High Court dismissed the aforesaid Writ Petition, the operative part of which reads as under:
It is well settled that every adverse entry in a confidential report of an employee has to be communicated to him, for it is likely to mar his chances of promotion or other benefits. Here, in the present case, it is the petitioner?s own case that inspite of adverse entries which were not communicated to her, she was given the benefit of financial upgradation under the ACP Scheme and was not put to any disadvantage while she was in service. The question is, whether once she has ceased to be in the service of the respondent on attaining the age of 60 years, those ACRs even though not communicated to her could be looked into for determining, whether she deserved to be re-employed up to the age of 62 years. I feel that for the purpose of re-employment, the Committee was required to take an over-all view of conduct of the petitioner as a teacher in terms of fitness and, therefore, the ACRs, whether adverse or favourable, could be looked into. In any case, the Committee not only examined the ACRs of the last 5 years of the petitioner, but also her other record which, as noticed above, was far from commendatory. It is true that the school did not take any disciplinary action against the petitioner on the basis of the adverse ACRs while she was in service, but if the school overlooked and ignored her such record and yet granted her financial upgradation and other benefits, must it also grant her re-employment? I feel, the answer is in the negative. At the cost of repetition, it may be stated that the petitioner has no right to re-employment. She only has a right to be considered and the school has a right to deny her re-employment, if after considering her over-all performance as a teacher, it finds that she is not fit for re-employment.
For the reasons delineated above, I find myself one with respondent No.2, and hold, that the action taken by it in not granting re-employment to the petitioner suffers from no illegality.
The writ-petition has no merit. The same is dismissed.
7. We have heard the learned counsel for the applicant Shri Yogesh Sharma and the learned counsel for the respondents Shri Vijay Pandita and have perused the pleadings on record. It is seen that the so called automatic re-employment of the retired teacher is not fully automatic. It is subject to fitness and vigilance clearance. The overall performance of the teacher before his retirement is assessed on the basis of various factors and if he is found fit then only his name would be recommended by the concerned Deputy Director of Education. Since the Head of the School is in direct charge of the teacher concerned, his report is very important. In the present case, the applicant was not found fit to be given the automatic extension by the Head of the School. The Deputy Director of Education, in-charge of the District in which the applicants School is situated has also not found the applicant fit and, therefore, not recommended for automatic re-employment.
8. In our considered view, the assessment of the work and conduct of the applicant as made by the Head of the School as well as the Deputy Director of Education cannot be interfered by this Tribunal unless there is a case of proved bias against him. In this case, even though the applicant has stated that the HOS is biased against him, he has not given any supporting documents to substantiate the same. Simply saying that the Head of the School was biased against the applicant and that was the reason that he did not recommend his name for automatic re-employment is not sufficient.
9. In view of the aforesaid discussion, we do not find any merit in this OA and accordingly the same is dismissed. There shall be no order as to costs.
(Mrs. Manjulika Gautam) (George Paracken) Member (A) Member (J) /nsnrgp/