Central Administrative Tribunal - Delhi
R P Yadav vs Govt. Of Nctd on 5 December, 2017
Central Administrative Tribunal
Principal Bench, New Delhi.
TA-10/2015
Reserved on : 28.11.2017.
Pronounced on : 05.12.2017.
Hon'ble Mr. Raj Vir Sharma, Member (J)
Hon'ble Ms. Praveen Mahajan, Member (A)
Sh. R.P. Yadav,
S/o Late Sh. Moti Chand Yadav,
R/o D-2, Delhi Administration Flats,
Timarpur, Delhi-110054. .... Applicant
(through Sh. Sunny Choudhary, Advocate)
Versus
1. State of GNCT of Delhi & Ors.
Through its Chief Secretary,
I.P. Estate, New Secretariat,
New Delhi.
2. Principal Secretary,
Social Welfare Department,
Government of NCT of Delhi,
GLNS Complex, Delhi Gate, Delhi.
3. Director,
Social Welfare Department,
Government of NCT of Delhi,
GLNS Complex, Delhi Gate, Delhi. .... Respondents
(through Sh. Vijay Pandita, Advocate)
ORDER
Ms. Praveen Mahajan, Member (A) The current O.A. has been filed by the applicant Sh. R.P. Yadav against the inaction of the respondents in considering his case for 2 TA-10/2015 automatic re-employment for two years after attaining the age of superannuation on 31.05.2014 in terms of orders/notifications dt. 25.06.2009 and 23.07.2009 of the State Government.
2. The applicant himself a disabled person, was officiating as Principal/PGT (English) in the GSSSBB, Sewa Kutir, Kasturba Nagar, New Delhi (school for blind and deaf children). The applicant had approached the respondent No.1 on 03.05.2014, for extending to him the benefit of re-employment on contract basis for two years, or till fresh appointment is made. The respondents vide letter dated 03.09.2014, informed him, that his request for re-employment/re- appointment on contract basis to the post of PGT (English) has been rejected by the competent authority.
3. After his retirement, the applicant sent various representations to the respondents on the same issue. When the applicant was not given the desired re-employment, he raised his grievance under Section-61 of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 on 18.09.2014 before the Ld. Commissioner.
4. The respondents, in their reply dated 07.10.2014, before the Ld. Commissioner, stated that instead of giving re-employment to the applicant in terms of orders/Notifications dated 25.06.2009 and 23.07.2009, the department will make appointments on regular basis.
3 TA-10/2015 After examining the case of the applicant, the Ld. Court of Commissioner for persons with Disabilities, vide order dt. 22.10.2014 denied the benefit of re-employment Scheme/Notifications dated 25.06.2009 and 23.07.2009, to the applicant. The applicant states that this was an erroneous decision issued on the pretext that the Social Welfare Department , Government of NCT of Delhi/Respondent No.1 will be making regular appointments even though the other teachers of these special schools were given re- employment for two years after superannuation by the respondent No.1 and no regular appointment has been made till date.
5. Thereafter, the applicant filed Writ Petition (C) No. 9040/2014 before the Hon'ble High Court of Delhi assailing the order dated 22.10.2014 passed by the Ld. Court of Commissioner and seeking a direction to the respondents to consider him for re-employment. Hon'ble High Court of Delhi vide its order dated 09.02.2015 transferred the matter to Central Administrative Tribunal, for decision.
6. In their counter, the respondents state that similar and identical matters had been dismissed by the Hon'ble High Court of Delhi in the cases of C.K.P. Naidu Vs. Govt. of NCT of Delhi, Writ Petition Nos. 822/2014 and 756/2014, Shashi Kohli Vs. Director of Education, WP(C)-4330/2010. Even the Tribunal has passed similar orders in the 4 TA-10/2015 cases of S.K. Mittal vs. Govt. of NCT of Delhi, OA-661/2012 and Jai Prakash Vs. Govt. of NCT of Delhi, OA-509/2013.
7. The respondents state that the matter for re-employment of the applicant Sh. R.P. Yadav, PGT (English) retired was placed before the Principal Secretary (Department of Social Welfare/Women and Child Development) being the Competent Authority who after due consideration rejected the request of the applicant with the following comments:-
"The Department of Social Welfare runs schools meant for Deaf, Dumb, Blind and Mentally Retarded children for the purpose of imparting education to them in a specialized manner. It will be in the interest of such children that teachers with special qualifications and experience as per recruitment rules must be appointed on regular basis. The position being so, the request of all the teachers for re-employment has been rejected. Matter for appointment of such teacher on regular basis be taken up with DSSSB urgently."
It is also submitted that the Services Department of the Government of NCT has expressed a view that service conditions of employees of this Government are governed by the rules in vogue in the Central Government. Therefore, any change in these conditions, including that of re-employment, would require the approval of the Government of India and that as per FR-56(d), no government servant shall be granted extension in service, beyond the age of retirement of sixty years. Further, the Department of Personnel and Training, Government of India vide its OM dated 09.12.2002 lays down that:-
5 TA-10/2015 "No proposal for employing a Government Servant beyond the age of superannuation of 60 years shall be considered. It is also clarified that no person can be appointed/re-appointed to Central Government service after the age of 60 years through contract."
Further, as per OM dated 13.05.1998 of the Department of Personnel and Training, Government of India, there is a complete ban on extension in service beyond the age of superannuation except in the case of medical and scientific specialists who can be granted extension in service on a case to the case basis up to the age of 62 years. The cases cited by the applicant wherein the teachers have been re-employed by the department pertain to an earlier period. It is only recently that the answering respondents, after due consideration, have taken a policy decision that it will be in the interest of such children that teachers with special qualifications and experience, as per recruitment rules, must be appointed on regular basis. The request of all the teachers for re-employment has been rejected, and the applicant has not been singled out, or discriminated against, vis-à-vis the other teachers.
8. During the course of hearing, the learned counsel for the applicant took the Bench through the three Notifications dated 29.01.2007, 25.06.2009 and 23.07.2009, which are reproduced hereunder:-
"29.01.2007 GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION, OLD SECRETARIAT, DELHI 6 TA-10/2015 No.F.30(28)/Co-ord/2006/689/703 Dated: the 29th January, 2007 NOTIFICATION In pursuance of Cabinet Decision No.1113 dated 4.9.2006 conveyed vide letter No. ____/2004-GND/CN/20491-502 dated 8.9.2006, the Lieutenant Governor, Government of National Capital Territory of Delhi is placed 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.
By order and in the name of The Lt. Governor of the National Capital Territory of Delhi Sd/-
(MADHU P. VYAS) Joint Secretary (Education) 25.06.2009 GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DEPARTMENT OF SOCIAL WELFARE: DELHI GATE: DELHI:-
110002 No.F.56(1)/2004/DSW/Estt./5189-5202 Dated: the 25/06/2009 NOTIFICATION In pursuance of Cabinet Decision No.1522 dated 08.05.2009 conveyed vide letter No. F.3/2/2009-GAD/CN-1792-1803 dated 11-5- 2009, the Lieutenant Governor, Government of National Capital Territory of Delhi is pleased to allow the contract engagement of teachers upto PGT level in the Department of Social Welfare after retirement, till they attain 62 years or till regular appointments are made, whichever is earlier, and appointment on contract basis of those Principals and Vice Principals in Schools under the Deptt. of Social Welfare, Govt. of NCT of Delhi who have attained the age of 60 years and are retiring/have retired, for a period of one year and extendable for another one year based on performance and subject to fitness and vigilance clearance. The pay of such Teachers and Principals and Vice Principals appointed on contract shall be fixed in accordance with the provisions of the CCS (Fixation of pay of Re-employed Pensioners) Orders, 1986; i.e. the initial pay as equivalent to re-employment plus the gross amount of pension shall not exceed the pay they had drawn before retirement vide O.M. No.8 (34)-Estt.III/57 dated 25.11.1958, as modified from time to time.
7 TA-10/2015 By order and in the name of The Lt. Governor of the National Capital Territory of Delhi (DEBASHREE MUKHERJEE) Secretary (Social Welfare & WCD) 23.07.2009 GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DEPARTMENT OF SOCIAL WELFARE: DELHI GATE: DELHI:-
110002 No.F.56(1)/2004/DSW/Estt./6955-74 Dated: the 23/July/2009 ORDER In pursuance of Cabinet Decision No.1522 dated 08.05.2009 conveyed vide letter No. F.3/2/2009-GAD/CN-1792-1803 dated 11-5- 2009 and in continuation of its office notification No.56(1)/2004/DSW/Estt./5189-5202 Dated: 25.06.2009 contractual engagement of teachers upto PGT level after retirement, till they attain 62 years or till regular appointments are made, whichever is earlier, and appointment on contract basis of those Principal and Vice Principals in Schools who have attained the age of 60 years and are retiring/have retired, for a period of one year and extendable for another one year based on performance and subject to fitness and vigilance clearance. I am directed to convey the instruction/guidelines of re- employment as under:-
1. The contract engagement of teachers upto PGT level in the Department of Social Welfare after retirement subject to health and vigilance clearance, till they attain 62 years or till regular appointments are made, whichever is earlier.
2. The appointment on contract basis of those Principals and Vice Principals in Schools under the Deptt. of Social Welfare, Govt. of NCT of Delhi who have attained the age of 60 years and are retiring/have retired, for a period of one year and extendable for another year based on performance and subject to fitness and vigilance clearance.
3. The pay of such Teachers and Principals and Vice Principals appointed on contract shall be fixed in accordance with the provisions of the CCS (Fixation of pay of Re-employed Pensioners) Orders, 1986, i.e. the initial pay as equivalent to re-employment plus the gross amount of pension shall not exceed the pay they had drawn before retirement vide O.M. No. 8(34)-Estt. III/57 dated 25.11.1958, as modified from time to time.
All the process for contractual engagement will be done at HQ level.
8 TA-10/2015 This issues with the prior approval of Secretary (Department of Social Welfare and Women and Child Development), Govt. of NCT of Delhi.
( B.R.SINGH ) JOINT DIRECTOR (ADMN.)"
The common refrain in the aforementioned Notifications is that subject to performance, fitness and vigilance clearance, the contractual engagement of teachers upto PGT level, till they attain the age of 62 years or till regular appointments, will be made for one year, extendable by another year.
9. The learned counsel emphasized that these orders were given effect to in case of other colleagues of the applicant, whose appointment orders have been annexed at P-8 i.e. re-employment of Miss Krishna Kumari, TGT (Gen.) who got an extension of two years on 27.09.2012, P-5 in respect of Sh. Daya Shankar Singh, PGT(Political Science), who got an extension of two years on 18.09.2009 and P-4 in respect of Smt. Raj Bala, Assistant Teacher (Deaf) who got an extension of two years on 03.08.2009.
10. At the outset, Sh. Vijay Pandita informed the Bench that vide order dated 30.06.2017 the applicant has been engaged to the post of Special Educator PGT (English) amongst retired teachers, on contractual basis. A copy of the same was provided to the Bench in open Court, which is taken on record. Countering the submissions 9 TA-10/2015 made by the Learned Counsel of the applicant, Sh. Pandita took the Bench through various citations on the subject, already available on record, as well the contentions of the respondents in their counter reply.
11. We have carefully considered the rival contentions of both sides as well as perused the record. We have not been able to convince ourselves of the merit in the submissions made by the applicant that in view of the Notifications dated 25.06.2009 and 23.07.2009, it was his right to be considered for re-employment/re-
appointment. In a catena of judgments cited by the respondents in their counter, it has been held, that the applicant has a right only to be considered, but equally, the employee or the employer has a right to deny him re-employment after taking into account his overall performance, or for any other administrative reason. In the case of Jai Prakash Vs. Got. Of NCT of Delhi (OA-509/2013) decided on 28.10.2013, it has been held that:-
"11. In Shashi Kohli v. Director of Education and Anr. [W.P.(C) No.4330/2010, decided on 29.04.2011], the Honble High Court of Delhi held that "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 overall performance as a Teacher, it finds that she is not fit for re-employment."
12. In Surender Kumar Mittal v. Govt. of NCT of Delhi & Others, [OA No.661/2012, decided on 31.10.2012 of the Principal Bench], this Tribunal held that it is seen that the so called automatic reemployment 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 10 TA-10/2015 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 (DDE). 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 reemployment." Similar view has been reaffirmed by many other judicial fora. The plea of the applicant that he has a right to automatic re- employment (subject to the stipulated conditions like vigilance clearance, medical fitness etc.) is not tenable. Rather, such a step would be totally contrary to the directions of Government of India, as already pointed out by the respondents in their counter reply. Without commenting on legality (or otherwise) of the two orders/notifications of the State Government, we proceed to decide the issue on the basis of policy decision taken by Department of Social Welfare. The DoP&T vide their O.M. dated 09.12.2002 has laid down that:-
"No proposal for employing a Govt. servant beyond the age of superannuation of 60 years shall be considered. It is also clarified that no person can be appointed/re-appointed to Central Govt. service after the age of 60 years through contract."
Similarly, Law Department of Govt. of NCT of Delhi has also viewed that as per Govt. of India, DoPT OM No. 25012/12/297-Estt(A) dated 13.05.1998, there is a complete ban on extension in service. Out of the cases cited by the applicant where re-employment has been provided to similarly situated persons, two pertain to the year 2009, 11 TA-10/2015 and one is of the 2012. The applicant's counsel could not show/cite any appointment where re-employment has been given to any similarly placed person after 2014 i.e. when the applicant retired. We also observe that the request of the present applicant (Sh. R.P. Yadav) was considered by the Principal Secretary (Department of Social Welfare/Women and Child Development) who decided the issue observing that:-
"The Department of Social Welfare runs schools meant for Deaf, Dumb, Blind and Mentally Retarded children for the purpose of imparting education to them in a specialized manner. It will be in the interest of such children that teachers with special qualifications and experience as per recruitment rules must be appointed on regular basis. The position being so, the request of all the teachers for re-employment has been rejected. Matter for appointment of such teacher on regular basis be taken up with DSSSB urgently."
12. It is, therefore, clear that the respondents have taken a policy decision to employ teachers with special experience and qualifications for teaching specially abled children. The same has been followed strictly and Uniformly. No deviation could be pointed out by the applicant. Hence, in view of the above facts and circumstances of the case and discussion made above, we find no merit in this case. Accordingly, the O.A. is dismissed. No costs.
(Praveen Mahajan) (Raj Vir Sharma) Member (A) Member (J) /Vinita/ 12 TA-10/2015