Central Administrative Tribunal - Jaipur
Badri Lal Teli vs Kvs on 3 November, 2023
1
OA No. 163/2023 & OA No. 164/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 163/2023
&
ORIGINAL APPLICATION NO. 164/2023
Order Reserved on: 25.10.2023
DATE OF ORDER: 03.11.2023
CORAM
HON'BLE MS. RANJANA SHAHI, JUDICIAL MEMBER
HON'BLE MR. LOK RANJAN, ADMINISTRATIVE MEMBER
(1) OA No. 163/2023
Anil Kumar Sharma S/o Sh. L.R. Sharma, aged about
44 years, R/o 16, C-Block, Mahesh Colony, Kayad
Road, Ajmer - 355023 (Rajasthan). Presently posted
as PGT (Maths) in K.V. No. 1, CRPF, GC-1, Ajmer
(Raj.). Group-B (M) 9460553436. Email id -
[email protected].
Subject: Transfer with Revocation of suspension.
....Applicant
Shri Vipul Diwakar, counsel for applicant.
VERSUS
1. Kendriya Vidyalaya Sangathan (HQ), 18-
Institutiional Area, Shaheed Jeet Singh Marg, New
Delhi-110016 - through its Commissioner.
2. Joint Commissioner (Admn-1), Kendriya Vidyalaya
Sangathan (HQ), 18-Institutiional Area Shaheed
Jeet Singh Marg, New Delhi-110016
3. B.L. Morodia, Deputy Commissioner, Kendriya
Vidyalaya Sangathan (RO), 15, Gandhi Nagar
Marg, Bajaj Nagar, Jaipur-302015 (Rajasthan).
.... Respondents
Shri Hawa Singh, counsel for respondents.
2
OA No. 163/2023 & OA No. 164/2023
(2). OA No. 164/2023
Badri Lal Teli S/o Sh. Nakshtramal, aged about 42
years, R/o V/117, C-Block, Valmiki Yojna, Behind J P
Nagar Police Chowki Madar, Ajmer - 305024.
Presently posted as PGT (History) in K.V. No. 1, CRPF,
GC-1 Ajmer (Raj.). Group-B (M) 9509994001. Email
id - [email protected]
Subject: Transfer with Revocation of suspension.
....Applicant
Shri Vipul Diwakar, counsel for applicant.
VERSUS
1. Kendriya Vidyalaya Sangathan (HQ), 18-
Institutiional Area, Shaheed Jeet Singh Marg,
New Delhi-110016 - through its Commissioner.
2. Joint Commissioner (Admn-1), Kendriya
Vidyalaya Sangathan (HQ), 18-Institutiional Area
Shaheed Jeet Singh Marg, New Delhi-110016
3. B.L. Morodia, Deputy Commissioner, Kendriya
Vidyalaya Sangathan (RO), 15, Gandhi Nagar
Marg, Bajaj Nagar, Jaipur-302015 (Rajasthan).
.... Respondents
Shri Hawa Singh, counsel for respondents.
ORDER
Per: RANJANA SHAHI, JUDICIAL MEMBER At the request of learned counsels for the parties, OA No. 163/2023 and OA No. 164/2023 are taken up together for disposal as common question of law and facts is involved in both the aforesaid cases. 3 OA No. 163/2023 & OA No. 164/2023
2. For the sake of convenience, brief facts of OA No. 164/2023 (Badri Lal Teli vs. KVS & Ors.) are taken up. The present OA No. 164/2023 has been filed by the applicant feeling aggrieved by the orders dated 29.03.2023 (Annexure A/1) and 30.03.2023 (Annexure A/2). Vide order dated 29.03.2023, the suspension order dated 04.07.2022 of the applicant has been revoked with immediate effect and on revocation, he has been posted to Kendriya Vidyalaya, Banswara with the stipulation that the revocation of suspension order will be effective from the date of his joining at the place of posting i.e. K.V., Banswara. Thereafter, vide order dated 30.03.2023, the applicant has been relieved from K.V., Nasirabad w.e.f. 30.03.2023 (A/N). The first ground taken by the applicant for challenging the same is that the authority i.e. Deputy Commissioner cum Disciplinary Authority passing the said orders is not competent to pass the transfer order. However, in the same breath, the applicant insisted that the same authority is competent to revoke the suspension. The second ground taken by the applicant is that the revocation of suspension cannot be conditional upon the applicant's joining at the new place of posting.
4OA No. 163/2023 & OA No. 164/2023
3. As to the first ground that the order dated 29.03.2023 was not issued by the competent authority as it is the Commissioner or the authority to whom the Commissioner has delegated the power is competent to have passed the transfer order, the respondents have pointed out to Annexure A/3 order dated 24th January, 2012 wherein the Commissioner, KVS had delegated the powers of transfer to the Deputy Commissioner of the Regional Offices in respect of employees of KVS serving under their region on the following grounds:
1. Posting of staff on joining after long leave / deputation.
2. Transfer of staff on administrative grounds under para 7 (e)
3. Posting of staff after revocation of suspension.
Bare reading of the above shows that at Sl. No. 3, the power of posting of staff after revocation of suspension is one of the powers of transfer delegated to the Deputy Commissioners of the concerned region. The applicant has not been able to show any order by which this delegation by the Commissioner, KVS to the Deputy Commissioner of the Regional Offices has been revoked or withdrawn. The only plea given by the counsel for the applicant is that post the KVS transfer guidelines on 06.09.2021, the delegation of 5 OA No. 163/2023 & OA No. 164/2023 powers of transfer vide letter dated 24.01.2012 automatically stands revoked but we do not agree with this contention as the KVS transfer guidelines dated 06.09.2021 only provide that it is the Commissioner or the authority to whom the Commissioner delegates the powers. The competent authority, to transfer the employees of KVS serving under his region, has already been specified vide order of such delegation dated 24.01.2012 and the same has since not been revoked, as such this ground is not available to the applicant.
4. As to the second ground that the respondents could not pass an order of revocation of suspension which will be effective from the date of joining of the applicant at the place of posting i.e. K.V. Banswara, reliance has been placed by learned counsel for the applicant upon the order/judgment of the Hon'ble Madhya Pradesh High Court in the case of Kendriya Vidyalaya Sangathan and Ors. vs. Dr. R.K. Shahstri and Anr., reported in 2005 (4) MPHT 352, wherein the composite order revoking the suspension order and transferring the employee was struck down. Learned counsel for the respondents have controverted the same by putting reliance upon the 6 OA No. 163/2023 & OA No. 164/2023 judgment / order of Full Bench of the Hon'ble Madhya Pradesh High Court in the case of Asif Mohd. Khan vs. State of M.P. and Ors., reported in (2015) AIR (MP) 203, wherein the learned Single Judge referred the matter to constitute Full Bench/Larger Bench and the questions before the Full Bench in this case was that:
"(1) Whether it is necessary to post an employee on the same place after revocation of order of suspension from where he was suspended?
(2) Whether the law laid down by the Division Bench of this court in Kendriya Vidyalaya Sangthan and Others Vs. Dr. R.K. Shahstri and Another, is correct or not?"
The Hon'ble Full Bench of the Hon'ble Madhya Pradesh High Court while considering all these aspects and distinguishing the judgment passed by the Hon'ble Madhya Pradesh High Court in the case of Kendriya Vidyalaya Sangathan and Ors. vs. Dr. R.K. Shahstri and Anr., (supra), has held that:
"35. A priori, the mere fact that the transfer has been ordered simultaneously with revocation of suspension, by passing a composite order, that per se cannot be the basis to question the authority of the competent authority. What needs to be established in such a case, is, whether the authority who passed the composite order, had limited power and could not have passed such a composite order on both the matters of revocation of suspension as also transfer, to successfully challenge the order.
41. Taking overall view of the matter, therefore, we answer the two questions referred to us for 7 OA No. 163/2023 & OA No. 164/2023 consideration. We hold that the question as to whether it is necessary to post an employee at the same place after revocation of order of suspension from where he was suspended, may have to be answered on case to case basis in the context of existence or non-existence of the authority/power in the authority passing the order in question. If the authority is competent to revoke suspension as also to transfer the employee, it is open to such authority to pass a composite order, if the situation so warrants. Whether the transfer can stand the test of judicial scrutiny, will be an independent issue to be decided on the settled legal principles. There is nothing in the Rules of 1966 or the Madhya Pradesh Fundamental Rules which prohibits the competent authority from passing a composite order of revocation of the suspension and transfer at a different place."
5. Learned counsel for the respondents has also placed reliance upon the subsequent judgments/ orders of the Hon'ble Chhattisgarh High Court passed in the case of Ashwani Kumar Mire S/o Shri Alath Ram Mire vs. State of Chhattisgarh and Ors. (WP No. 250 of 2022) decided on 18.01.2022 and in the case of L.P. Saket vs. Chhattisgarh State Civil Supplies Corporation Limited (WP No. 7269 of 2017) decided on 15.11.2018, wherein the Hon'ble High Court had considered the judgments / orders passed in the cases of Asif Mohd. Khan vs. State of Madhya Pradesh and Ors. as well as Kendriya Vidyalaya Sangathan and Ors. vs. Dr. R.K. Shastri and Another (supra). In the case of L.P. Saket (supra), 8 OA No. 163/2023 & OA No. 164/2023 the Hon'ble Chhattisgarh High Court has observed and held that:
"11. The Full Bench of the Madhya Pradesh High Court, while answering the question, had this to say:
xxxxx
36. A priori, the mere fact that the transfer has been ordered simultaneously with revocation of suspension, by passing a composite order, that per se cannot be the basis to question the authority of the Competent Authority. What needs to be established in such a case, is, whether the Authority who passed the composite order, had limited power and could not have passed such a composite order on both the matters - of revocation of suspension as also transfer, to successfully challenge the order.
12. Keeping in mind what the Full Bench of the Madhya Pradesh High Court has had to say in the case of Asif Mohd. Khan (supra) and even with regard to correctness or otherwise of the decision rendered in the case of Kendriya Vidyalaya Sangathan (supra), we are constrained to hold that the order passed by a coordinate Bench of the Single Judge in the cases of Khadanand Patanwar (supra) and Khelendra Kumar Singh (supra) are not good laws. There is no right of an employee to claim a place of posting on revocation of suspension as a matter of right and the competent authority can very well transfer an employee to yet another place after revocation of suspension even otherwise keeping the exigencies of service into consideration as also that posting such a person on the same post and place where a departmental enquiry was still going on against him, may not be in the interest of the administration since there could be every possibility of such an employee to tamper with the evidence and not allow a free and fair enquiry to be held. We may also notice that during period of suspension, the Head Quarter of an employee is always fixed away from the place of posting 9 OA No. 163/2023 & OA No. 164/2023 which has an object and reason. The same will be defeated if it is held that the employee has a lien on place also."
In the case of Ashwani Kumar Mire (supra), the Hon'ble Chhattisgarh High Court has observed that:
"7. Thereafter, the aforesaid question has been answered by the Court in paragraphs 12 and 14 of the judgment, which states as under:
'12. Keeping in mind what the Full Bench of the Madhya Pradesh High Court has had to say in the case of Asif Mohd. Khan v. State of Madhya Pradesh and Ors. 2015 (4) MPLJ 406 and even with regard to correctness or otherwise of the decision rendered in the case of Kendriya Vidyalaya Sangathan & Others. v. Dr. R.K. Shastri & Another 2005 (4) MPHT 352, we are constrained to hold that the order passed by a coordinate Bench of the Single Judge in the cases of Khadanand Patanwar & Others v. State of Chhattisgarh & Others WPS No. 3146/2015 and Khelendra Kumar Singh v. State of Chhattisgarh WPS No. 5039/2015 are not good laws. There is no right of an employee to claim a place of posting on revocation of suspension as a matter of right and the competent authority can very well transfer an employee to yet another place after revocation of suspension even otherwise keeping the exigencies of service into consideration as also that posting such a person on the same post and place where a departmental enquiry was still going on against him, may not be in the interest of the administration since there could be every possibility of such an employee to tamper with the evidence and not allow a free and fair enquiry to be held. We may also notice that during period of suspension, the Head Quarter of an employee is always fixed away from the place of posting which has an object and reason. The same will be 10 OA No. 163/2023 & OA No. 164/2023 defeated if it is held that the employee has a lien on place also.
14. The question of law for which the reference was made has been answered in the preceding paragraphs of this order. To sum, it cannot be a thumb rule that an employee whose suspension has been revoked has a right to be posted and continued in the same place of posting on revocation of suspension, as he only has a lien on the post and not on the place of posting."
6. After considering the arguments and going through the aforesaid judgments / orders as relied upon by both the sides what emerges is that the passing of the composite order of revocation of suspension and also the transfer order is not bad in itself provided it is issued by the competent authority. As such, the factum that the order is composite is not bad as to the issuance of the same by the competent authority in the light of our conclusions on this matter as above and the acceptance by the applicant himself that the Deputy Commissioner is the competent authority to pass the order of revocation of suspension. The condition of competence of the authority laid down in these judgments/orders as above is also fulfilled. Hence, there is no reason to interfere in the present matter.
11OA No. 163/2023 & OA No. 164/2023
7. In the light of the above, we do not find it a fit case for interference and, thus, the same deserves to be dismissed.
8. In view of the aforesaid observations, OA No. 163/2023 and OA No. 164/2023 are hereby dismissed. No order as to costs.
(LOK RANJAN) (RANJANA SHAHI) ADMINISTRATIVE MEMBER JUDICIAL MEMBER /nlk/