Central Administrative Tribunal - Delhi
Mool Chand Dabas vs Govt. Of Nct Of Delhi on 13 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1719/2013 New Delhi this the 13th day of January, 2014 Honble Mr. V. Ajay Kumar, Member (J) Honble Mr. P.K.Basu, Member (A) Mool Chand Dabas S/o Shri Hukam Chand Dabas R/o H.No.79, Sewak Park G.S., Uttam Nagar, New Delhi-110059 Applicant (Through Shri Jai Prakash, Advocate) Versus 1. Govt. of NCT of Delhi Through its Chief Secretary, Delhi Sachivalaya, Delhi 2. The Director of Education Directorate of Education Old Secretariat, Delhi 3. The Dy. Director of Education, West-A, Karampura, Moti Nagar, New Delhi-110015 Respondents (Through Shri Vijay Pandita, Advocate) ORDER
Mr. P.K. Basu, Member (A) The applicant joined the office of respondent as Trained Graduate Teacher (TGT) on 1.04.1982 after promotion from MCD and retired on 31.01.2013 on attaining the age of superannuation. According to a Scheme of the Government of National Capital Territory of Delhi (GNCTD), such teachers are entitled for re-employment for two years. According to the applicant, he is eligible for re-employment and applied so on 28.12.2012, which should have been decided by 31.12.2012. The decision was taken on his request for re-employment on 2.03.2013 and copy thereof was handed over to him on 4.03.2013. The applicant gave representation on 6.03.2013 and legal notice on 30.03.2013 but no decision has been taken so far by the respondents. This OA has, therefore, been filed seeking relief that order dated 2.03.2013 by which his request for re-employment has been rejected, be quashed and set aside and he be re-employed from 1.02.2013 for two years, with pay and allowances along with interest from the salary of respondent no.1.
2. In their counter, the respondents have mentioned that re-employment is not a matter of right but it is subject to fitness and vigilance clearance. Fitness includes professional fitness as well as medical fitness. It is alleged that there were complaints against the official as he was creating disturbance by not cooperating with the HOS and his teaching work was also not satisfactory. Thus, he was not recommended as fit for extension. In fact he had an `average grading for the year 2010-11. The respondents have also stated that similar and identical matter has been dismissed by the Honble High Court of Delhi in WP ) 4330/2010, Shashi Kohli vs. Director of Education. The Honble High Court clarified that as per notification dated 28.09.2007, fitness does not mean physical fitness alone but it also includes professional fitness, which is required to be assessed by the DDE of the concerned district after considering work and conduct report and the Honble High Court has ultimately held that the petitioner has no right to re-employment. The petitioner has a right to be considered and the school has a right to deny him/ her re-employment after taking into account the overall performance as a teacher. Further in S.K. Mittal Vs. Govt. of NCT of Delhi, OA no.661/2012, in an identical matter, the Tribunal vide order dated 31.10.2012 dismissed the prayer of the applicant therein relying on judgment in Shashi Kohli (supra).
3. In OA 3663/2010, Bachan Singh Vs. GNCT of Delhi & ors., the Tribunal dismissed the OA based, inter alia, on the order of this Tribunal in OA 2601/2009, Shri Krishan Kumar Kaira Vs. Secretary (Education) and ors., holding as follows:
In our considered view, re-employment is a concession given by the Government with an object to be achieved. The only pensioners are utilized after retirement, who had clean service record and have proved their utility for such re-employment. The issue whether he has been communicated adverse remarks or not does not relate to evaluation of his performance and on challenge thereof, law will take its own course. Deputy Director of Education on the basis of records of the applicant having come to the conclusion that his performance was not apt and he was not found fit to be considered for re-employment, we do not find any infirmity in the order passed by the respondents. In view of the above judgments, the learned counsel for the respondents argued that there is no merit in the OA and, therefore, the same should be dismissed.
4. We have heard the counsel for both sides.
5. It is a fact that re-employment is not automatic and it will depend on the fitness and vigilance clearance of the person concerned. In this case, clearly the applicant has not been found fit because of `average ACR and complaints of misbehavior. The respondents are well within their rights, in the light of the judgments cited above, not to grant extension finding him unfit.
6. We find no merit in the OA and it is, therefore, dismissed. No costs.
( P.K.Basu ) ( V. Ajay Kumar) Member (A) Member (J) /dkm/
The applicant Shri S.K. Jain is a Trained Graduate Teacher (TGT) (Maths). He was appointed on 23.08.1985 in Kendriya Vidyalaya Sangathan (KVS) and served as TGT till his retirement on 28.02.2010. While he was posted in Kendriya Vidyalaya, Bhatinda in Chandigarh Region, a major penalty charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued to him vide memorandum dated 9.06.1994. The following charges were leveled against him:
16 1 to 3 ARTICLE-I THAT the said Shri S.K. Jain, TGT (Maths), while functioning in Kendriya Vidyalaya, No.2, Chandimandir Cantt. during the Academic Year 1993-94, attempted to molest a girl student Km. Sarabjeet Kaur, Class IX-B on 5-10-1994, in Zero period between 1315 hours to 1410 hours. Thus, the said act on his part constitutes a mis-conduct, which is The applicant was put under suspension with effect from 18.10.1993. Several inquiry officers had to be changed as the applicant made representations and thereafter due to his transfers etc. Since there was long delay in completion of inquiry, the applicant filed OA 1858/2011 before this Tribunal and the Tribunal passed the following order:
4. Accordingly, the respondents are directed to ensure that the enquiry proceedings as initiated by them in the year 1994 is completed expeditiously and in any case not later than three months from the date of receipt of a copy of this order. In case the enquiry is not completed in the aforesaid period, this Tribunal will be compelled to pass order regarding fore-closure of enquiry proceedings and to release the gratuity amount with interest. Needless to add that the applicant shall render full assistance in the enquiry proceedings. Later, the Tribunal in its order dated 30.09.2011, gave the following directions:
It can be seen from the Para 4 of the order in OA that time bound directions were given to the respondents to complete the enquiry proceedings, which was initiated in the year 1994, expeditiously and in any case not later than three months from the date of receipt of a copy of the order. It was further observed that in case the enquiry is not completed in the aforesaid period, this Tribunal will be compelled to pass order regarding fore-closure of enquiry proceedings and to release the gratuity amount with interest. The Tribunal also observed that applicant shall render full assistance in the enquiry proceedings. In view of the order passed by this Tribunal, it was incumbent upon the respondents to proceed with the enquiry even if the applicant was not rendering full assistance in the enquiry proceedings. Instead of adjourning the matter, the respondents should have made efforts to complete the enquiry proceedings in terms of the direction given by the Tribunal rather than to allow the time to lapse and make application for extension of time to complete the enquiry proceedings. Accordingly, MA is rejected. Again in order dated 25.04.2012 in MA 2955/2011 in OA 1858/2011, the Court passed the following order:
We are conscious of the fact that in order dated 24.05.2011 this Tribunal had observed that in case of non conclusion of enquiry against the applicant within the time stipulated, Tribunal would be compelled to pass an order for closure of disciplinary proceeding. However, such observation, cannot be construed as a commitment or assurance to drop the enquiry at the outer time limit prescribed for the same. Reasonable construction of such observation would be that once the respondent did not avail an opportunity to conclude the enquiry within the time prescribed by the Tribunal, this Tribunal would examine the plea of delay raised by the applicant for quashing the impugned charge sheet and disciplinary proceeding in question. In the present MA, when the applicant has not raised the plea of delay for quashing the proceeding in question, respondents have filed detailed reply explaining the delay. However, in the absence of proper pleadings, we are not inclined to interfere with the disciplinary proceeding, while adjudicating the present MA. Accordingly giving liberty to the applicant to challenge the impugned proceeding, in original proceedings, we dismiss the present MA. Thereafter, the department completed the inquiry and the inquiry officer found Article I proved beyond doubt and Articles II and III as not proved. The applicant