Central Administrative Tribunal - Delhi
Sh. Jai Prakash Sharma vs Govt. Of Nct Of Delhi on 15 February, 2009
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2816/2009
MA-2383/2009
New Delhi this the 15th day of February, 2010.
Honble Mrs. Meera Chhibber, Member(J)
Honble Mr. N.D. Dayal, Member(A)
Sh. Jai Prakash Sharma,
S/o Sh. Ram Kishan,
R/o V&PO-Surehra,
Delhi. Applicant
(through Sh. M.K. Bhardwaj, Advocate)
Versus
1. Govt. of NCT of Delhi
through the Chief Secretary,
New Secretariat, I.P. Estate,
New Delhi.
2. The Director,
Directorate of Education,
Old Secretariat,
Govt. of NCT of Delhi,
New Delhi.
3. The Dy. Director of Education,
South-West-B, Najafgarh,
Delhi.
4. Sh. Devender Singh,
the then Principal, Presently posted at
Rajkiya Pratibha Vikas Sr. Sec. School,
Sector-10, Dwarka.
5. Sh. K.C. Meena,
Vice-Principal,
Govt. Boys Sr. Secondary School No.2,
Najafgarh, New Delhi-43. Respondents
(through Sh. Vijay Pandita, Advocate)
O R D E R
Mr. N.D. Dayal, Member(A) The applicant, who was promoted to the post of TGT (English) in 1989 had the experience of working in different schools under Govt. of NCT of Delhi stretching over a period of nearly 39 years and his last posting was to Government Boys Senior Secondary School (GBSSS) No.2, Najafgarh, New Delhi where he joined in December, 2007.
2. It is submitted that as per the Govt. of NCT of Delhi Notification dated 29.1.2007 (Annexure A-2) allowing automatic re-employment till 62 years of age of all retiring teachers upto PGT level subject to fitness and vigilance clearance or till clearance from Govt. of India extending retirement age is received, whichever is earlier, the applicant submitted a written request to the Director, Directorate of Education, who is Respondent No.2. The then Principal who is respondent No.4, ignored the directions of Respondent No.2 on the request made, which is stated to be available in the concerned file of the Deputy Director of Education, Najafgarh, Delhi. The Principal had been directed by the Education Officer also to allow the applicant to join duty but he did not permit signing of the attendance register and pressurized the Vice-Principal, Respondent No.5 to reiterate the adverse comments already made by him in ACR.
3. According to the applicant the Principal asked him to agree for mutual transfer so that one Sh. Raghubir Singh who was close to the Principal could be brought back to the school but the applicant declined as it was his last posting before retirement. As such it is alleged that the Principal decided not to let the applicant succeed in getting employment after retirement till the age of 62 years. It is further alleged that Sh. Raghubir Singh tried to disturb his class in collusion with the Principal but the applicant did not allow him to do so. Upon his approaching the Staff Secretary, the latter submitted a report in favour of the applicant, but nothing happened thereafter. The applicant claims that his services were outstanding and therefore there was no reason to deny re-employment to him while giving it to others automatically for a period of two years.
4. The applicant protests that the Vice-Principal had no occasion to see his performance and conduct due to short tenure of 15 days and therefore the DDE, respondent No.3, could not have sought his comment upon the work and conduct of the applicant from December 2007. The gradings in the ACRs are good and the result of Xth class of CBSE Board Examination 2008-2009 is 80% with one distinction in English. The Principal had spoiled the applicants ACR for the year 2008-2009 which was not communicated but later the new Principal told that the grading was average. Such un-communicated ACR could not have been taken into account. The very good grading which he got from the Principal of another school in his ACR for the period 2007-2008 could not have been ignored and got cancelled by the Principal on the ground of incompetence of the Reporting Officer. The applicant says he did not send the ACR to the wrong school but does not say where he sent it after self assessment. He contends that the DDE should have called for the service record and applied his mind to it before rejecting his case on the basis of a biased work and conduct report, since the vigilance and medical reports as per the instructions/guidelines of re-employment dated 15.02.2008 at (Annexure A-3) were clear.
5. The applicant argues that he had got automatic re-employment on 01.08.2009 after his retirement on 31.07.2009 and was continued at work but till 31.08.2009 only. No termination order was passed yet re-employment was put to end without recourse to law contrary to judgment of the Apex Court in State of UP Vs. Yamuna Shankar Mishra & Anr., 1997(4) SCC 7. The impugned order dated 11.09.2009 has been issued to the applicant stating that his re-employment cannot be considered as the work and conduct report issued by the Principal is not satisfactory and therefore his request stands rejected by the DDE (SW-B).
6. In this background the applicant is before the Tribunal seeking setting aside of the impugned order dated 11.09.2009 with all consequential benefits and grant of re-employment to him as well as direction upon the respondents to reinstate him in service with all consequential benefits including arrears of pay. The applicant further seeks directions to treat him in re-employment from 01.08.2009 and release the consequential benefits.
7. The respondents have opposed the applicants claim by their counter-affidavit informing that the applicants record is not without blemish as a show cause notice was issued to him by the Additional D.E. on 22.10.2007 (Annexure R-1) regarding the poor result of Class-10th in the session of 2006-07 which was only 16%, and a recordable warning was issued to him on 07.12.2007 (Annexure R-2). In the meantime the applicant was transferred to the present school on administrative grounds on 01.12.2007.
8. It is denied that the Principal had asked the applicant to take mutual transfer nor was he competent to do so. The applicant did not report any thing about the unauthorized visit to his classes etc. at that time nor did he even bring to notice the so called harassment. The Staff Secretary cannot make any assessment of the classes by inspection and provide a report. In fact this shows violation of the code of conduct by the applicant.
9. While the case of the applicant for re-employment was under consideration for decision by the DDE, he was allowed to attend the school and perform duties pending final out come of the same. In fact the Principal, Respondent No.4, was transferred to another school on 01.07.2009 and Respondent No. 5 had joined only after that, which is why the views of Respondent No. 4 who was the previous Head of School were conveyed along with documentary evidence. It is pointed out that most of the averments of the applicant are not substantiated by any proof.
10. The respondents have stated that the Principal had verbally reprimanded the applicant to be punctual in reaching his class and to maintain discipline but he failed to comply. During inspection on 09.07.2009 of Class IX-B the teaching of the applicant was not found upto the mark and he was asked to improve the same. A note recorded on that occasion was signed by the applicant on 10.07.2009 as would be evident from Annexure R-5. When the applicant was found absent from his designated classes on 10.07.2009 a report of the class monitors was obtained which has been enclosed at Annexure R-6. In fact the applicant was not found in the school itself. This showed that he was not only in the habit of leaving the class but also the school premises during school hours without prior permission. It is clarified that the Principal, RTR Govt. S.V. Surhera was not competent to give very good grading for 2007-2008 to a teacher who did not work under him during that time and such grading was given due to over sight. Attention has been drawn to Annexure R-8 where the Respondent No. 4 appears to have recorded on 09.07.2009, in a list of ACR gradings of different years against the year 2007-2008 where the entry is very good, that this ACR of the applicant was submitted only for four months from 01.12.2007 to 31.03.2008 to GSV Surhera where he has never been posted in the last five years and hence the grading very good is not agreed. Therefore the respondents contend that the relief sought in this OA is not justified.
11. In his rejoinder the applicant has drawn attention to Annexure R-3 submitted by the respondents which indicates, inter alia, the results of the academic year 2007-2008 as 98% (VII B), 75.4% (VIIIB), 100% (VI A), 65.7% (VIIID) and 46.80% (IXA) along with one distinction in the Board exam in Class-X. It is argued that such result was better than that of Ram Kishan (TGT). It is stated that he had improved his performance after the recorded warning given in December 2007. The Staff Secretary, it is clarified, is elected to put grievances of the employees to the authorities. Therefore he did not violate any code of conduct. The applicant points out that his application for re-employment was forwarded by Respondent No.4 on 09.07.2009 whereas inspection was done on 09.07.2009 and 10.07.2009. Earlier no inspection was done through out the tenure of the applicant which reveals the bias against him. He draws attention to Annexure at page-40 of the paperbook to show that his application for re-employment was sent without giving reasons in clear terms because of which the same was received back and then resubmitted. It was not recommended for re-employment but it was made clear that if he was re-employed he could be posted in some other school. Thus it is contended that re-employment was not denied and it was only suggested that he should be in some other school. Therefore on such recommendation of his case it could not have been rejected. The applicant has reiterated the grounds taken in the OA and argued against the stand of the respondents. But no further material has been added to the record in support of averments.
12. We have heard the learned counsel for both sides and perused the pleadings. The applicant has relied on and produced copy of Tribunal order dated 19.11.2009 in OA-2589/2009 and also produced certain additional papers consisting of the result of Ram Kishan TGT (English)s classes and copies of pages from the original file of the applicants re-employment case. The original file has been produced by the respondents. Since some of the grounds taken by the parties are unsupported, we mainly rely on the averments and submissions made which have basis in the material on record.
13. The Tribunals order in OA-2589/2009, relied upon by the applicant, was in a matter in which the applicant therein, a teacher with KVS, had been punished for misconduct because pass percentage of the students taught by him had been noticed to be falling over the years. It was noted that an earlier OA-21/2009 (Urmil Gupta Vs. KVS) decided on 13.05.2009 was on an identical issue where it had been held that no misconduct is made out and the punishment imposed is illegal. It had been stated at the Bar that the order in Urmil Guptas case had become final as it had been upheld by the Honble High Court of Delhi. Proceeding on similar l ines the Tribunal, inter alia, observed to the effect that pass percentage could not remain constant and no criteria has been evolved. The teachers cannot pick and choose the good students and there is no mechanism to find out the reason for the result of students with any certainty. The results could not be solely attributed to a teachers performance. The OA was allowed in favour of the applicant. We see no reason to disagree. It is felt that there are many imponderables in such a situation. The academic achievement or lack of it of students could be a function of various factors and would not be the sole basis to assess teacher capabilities. The results of the students taught by Sh. Ram Kishan, TGT (English) also vary in the different classes which he taught and from year to year.
14. The Notification which was issued by the Lt. Governor, NCT of Delhi on 29.01.2007 to allow automatic re-employment of all retiring teachers upto PGT level subject to fitness and vigilance clearance till the age of 62 years or till clearance from Government of India for extending retirement age is received, whichever is earlier, also said that the terms and conditions would be separately notified. These appear to have followed by orders dated 15.02.2008 enclosed at Annexure A-3. As per these Instructions/Guidelines the applicant was eligible because he retired on 31.07.2009 i.e. after 31.01.2007. Evidently, the medical fitness certificate and vigilance clearance required to be taken into account did not come in his way but it was the work and conduct report issued by the Principal which was not satisfactory as mentioned in the impugned order dated 11.09.2009 and therefore his request for re-employment was rejected by the competent authority i.e. the DDE (SW-B). It is not disputed that the work and conduct report was also required to be considered to assess professional fitness as per the terms and conditions spelt out in the Instructions/Guidelines dated 15.02.2008. The provision for automatic re-employment was subject to the conditions specified in the notification and elaborated by the order of 15.02.2008, which have not been challenged. Therefore, if the applicant was allowed to continue as teacher for sometime after retirement till decision in that regard was received he could claim no prejudice.
15. The representation dated 01.08.2009 sent by the applicant mentioned that he had applied for re-employment on 28.06.2009 in terms of Notification dated 29.01.2007. A perusal of this application at p 15/c of the original file shows that he had enclosed various documents including five years ACRs but there is no comment regarding the content of ACRs or reference to case of Yamuna Shankar Mishra & Anr. (supra). The applicant has stated therein that the Principal told him that he will not allow him re-employment which was done intentionally to harass. This was a bald allegation that is also not borne out by the letters of Staff Secretary dated 19.02.2009 and 03.07.2009 at Annexures A-6 and A-7. The letter of 19.02.2009 stated that on 19.02.2008 the Staff Secretary along with experienced teachers went to the classes of the applicant and saw his teaching method as well as enquired about his teaching from the students. No details or names of such teachers have been mentioned nor any signatures in addition to that of the Staff Secretary endorsed to confirm such claim. The statement attributed to the students about Sh. Raghubir Singh, TGT (English) having come to the school and instigated them to shout and write a complaint under pressure etc. is also not supported by any material. The letter of 03.07.2009 says that a complaint had been received from the applicant but no copy of such complaint is enclosed. As such, the statements purportedly based on the complaint cannot be appreciated. Of course, this letter exhorts the Principal to recommend re-employment on the basis of the applicants satisfactory work and result of two years in the school.
16. No other material has been placed by the applicant with the OA or his rejoinder. On the other hand, it is seen from copy at page-49 of the paperbook that a note was put up to the EO on 09.07.2009 along with various documents including the application given by the applicant, medical certificate, vigilance clearance, result of last five years, ACRs of five years, work and conduct report, integrity certificate and photocopy of ACR 2007-2008 with the remark that the result of the official was not satisfactory and he even cannot control the class. This note appears to have been signed by the Principal who is Respondent No.4, because the signature is similar to that which appears above the name Devinder Singh and designation Principal/HOZ, G.B.S.S.S. No.2, Najafgarh, New Delhi-43 in the retirement order of the applicant dated 18.05.2009 enclosed by the applicant with the OA at Annexure A-5. The EO returned the note and asked the Principal to give his recommendation in clear terms and received a response signed by the Respondent No.4 on 16.07.2009 stating that the applicant was not recommended for re-employment in that school and if re-employed he may be posted to some other school. It is stated in the counter reply that Respondent No.4 had carried out inspection on 09.07.2009 with regard to the teaching of the applicant. It was also stated that Respondent No.5 joined the school as Vice-Principal after Respondent No.4 was transferred to another school on 01.07.2009.
17. Another note was made by Respondent No.4 as Principal on 09.07.2009 which is enclosed at Annexure R-5. This makes observations about the short comings noticed in the manner of teaching of Class IX B and lack of response from the students whereupon suggestions were recorded to be followed by the teacher. These observations have been noted and signed by the applicant on 10.07.2008. In rejoinder to the relevant para the applicant does not deny his signature. Although he now assails the observations made therein as false, there is no protest recorded by him while signing the document. At Annexure R-6 the students of different classes such as IVA and VIA seem to have recorded that the applicant was absent on 10.07.2009 but the Principal came later. The applicant says he had signed attendance Register on that date, both for arrival and departure, and was present. No follow up action was taken to seek his explanation. No copy of R6 is traceable in the original file.
18. The original file shows that the ACR for the period from 01.12.2007 to 31.03.2008 was cancelled because it had been wrongly submitted to the Principal, RTR Govt. S.V. Surhera where the applicant had never been posted. It was confirmed by the Principal of that school by his communication at page-23/c of the original file that the ACR was wrongly written. Accordingly, as per page 8/c the Respondent No.4, while listing the ACR gradings of the applicant for the years 2004-2005 to 2008-2009, recorded on 09.07.2009 that he did not agree with the Very Good grading. The period 01.04.2007 to 30.11.2007 was graded as Good by the Dy. Education Officer. The gradings from 01.03.2004 to 30.11.2007 were therefore Good for each year/period but that for 2008-2009 was Average.
19. We are of the considered opinion that the report of the applicants work and conduct came mainly from the Principal who initiated it in advance in view of Para-2 of Annexure A-3 and took into account various aspects such as ACRS, actual class room situation, discipline, the class results etc. The decision to decline reemployment was taken by the competent authority in accordance with the prescribed procedure. As observed by the Honble Supreme Court in Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, AIR 2006 SC 2609, the Court is not an appellate authority while exercising power of judicial review over administrative action. In assessing the propriety of the same the Court will not ordinarily interfere if a possible view is taken by the administration. As such, in the facts and circumstances of the case we do not find sufficient grounds to intervene on behalf of the applicant. The O.A. is dismissed. No costs.
(N.D. Dayal) (Mrs. Meera Chhibber) Member(A) Member(J) /vv/