Central Administrative Tribunal - Delhi
Smt. Anjali Atri vs Union Of India Through on 23 February, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3534/2013
Reserved on : 19.02.2015.
Pronounced on : 23.02.2015.
Honble Mr. A.K. Bhardwaj, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Smt. Anjali Atri,
Post Graduate Teacher (Commcerce)
Kendriya Vidyalaya Pitampura,Delhi
R/o 73-A, MIG Flats, Rajouri Garden,
New Delhi-27. . Applicant
(through Sh. Aasim Ali, Advocate)
Versus
1. Union of India through
Its Secretary,
Dept. of School Education & Literacy,
Ministry of HRD, New Delhi.
2. The Commissioner,
Kendriya Vidyalaya Sanghathan(HQ)
18, Institutional Area, SJS Marg,
New Delhi-16.
3. The Assistant Commissioner (Admn)(Estt.)
Kendriya Vidyalaya Sanghatahn(HQ),
18, Institutional Area, SJS Marg,
New Delhi-16. . Respondents
(through Sh. K.M. Singh, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant was working as a Post Graduate Teacher (PGT) in KVS, Gole Market, New Delhi. She appeared for an interview for the post of Principal as a direct recruit on 19.09.2012. On 01.10.2012, the respondents issued a list of 122 candidates who had been selected for the post of Principal. The applicant stood second in rank in SC category and was offered appointment to the post of Principal at Kendriya Vidyalaya, Dhanbad, Jharkhand. The offer of appointment stated that the applicant was to join by 30.10.2012 failing which the offer would automatically stand cancelled. On 12.10.2012, she made a representation to respondent No. 2 requesting for modification of her posting from Dhanbad to New Delhi. On 18.102.2012, she got relieved from the post of PGT, Gole Market, New Delhi. However, instead of joining at her place of posting, on 30.10.2012 she sought extension of time for joining at Dhanbad on medical grounds. She sought second extension on 10.11.2012. On 15.11.2012, the respondent No.3 accepted her extension application and allowed her to join by 26.11.2012. On 20.11.2012, the applicant made a second representation to the respondent No.3 requesting for modification of posting from Dhanbad to New Delhi. Thereafter, she made repeated representations on 26.11.2012, 18.02.2013, 07.03.2013, 13.05.2013, 09.07.2013 and 14.08.2013. However, none of her representations were decided. Meanwhile, on 08.02.2013, the respondent No.3 cancelled her offer of appointment for the post of Principal. She then reported to Principal, Kendriya Vidyalaya, Gole Market for rejoining as PGT (Commerce). However, she was not allowed to join. On 22.04.2013 Principal, Kendriya Vidyalaya, Gole Market, directed the applicant to report to Kendriya Vidyalaya, Pirtampura, New Delhi. She was allowed to join there and had been working there since then. She has preferred this O.A. before us seeking the following relief:-
(a) quash and set aside the impugned order dated 08.02.2013 passed by Respondent No.3 and consequently direct the Respondents to revoke unconditionally the withdrawal of offer of appointment for the post of Principal made to applicant with all consequential reliefs;
(b) direct Respondent No.2 and 3 to consider the representations made by applicant for modification in posting on spouse ground, current family circumstances and to revoke the withdrawal of offer made to applicant. Furthermore, to post the applicant in Dendriya Vidyalaya as Principal at or near Delhi;
(c) to direct the respondents to depose before this Honble Court in particular that on what basis the modification request of more than 12 candidates has been acceded with and why the Article 71 of the Education code was relaxed for 3 candidates who were retained in the original place of working;
(d) grant any other order or direction which this Honble court may deem fit to pass in the present matter to meet the ends of justice.
2. The contention of the applicant is that the impugned order dated 08.02.2013 withdrawing the offer of appointment as Principal was bad in law and has been passed unilaterally and arbitrarily by the respondents without any show cause notice to her. None of the representations made by her on the grounds of posting of her spouse as well as unavoidable family responsibilities has been decided by the respondents. The applicant was kept in dark since her representations were still pending. The respondents cancelled the offer of appointment for the post of Principal without issuing a show cause notice to her. Thus, they have violated the principles of natural justice. The applicant on her part was serious to join the post of Principal offered by respondent No.2. She also got herself relieved from Kendriya Vidyalaya, Gole Market, New Delhi to join the post of Principal, Dhanbad. However, she was not able to join original place of posting due to her family circumstances. The respondents have accepted modification request of many selected candidates but have discriminated against the applicant. Thus, the action of the respondents suffers from lack of transparency. The respondents have even relaxed the rules of compulsory posting outside the domicile or place of working for so many selected candidates. Yet, in her case no such consideration was accorded. The action of the respondents in not accommodating the applicants request was in violation of Doctrine of Legitimate Expectation. The withdrawal of offer of appointment has caused harassment to an honest and hard working employee. Therefore, there is a strong case that this order may be judicially reviewed as it is against basic service jurisprudence.
3. In their reply, the respondents have stated that at present there were as many as 1094 Kendriya Vidyalayas situated all over India including 03 situated abroad. The KVS employees are liable for transfer any where in India under Article 71 of the Education Code for Kendriya Vidyalayas. The applicant while working as PGT, Gole Market, New Delhi was offered appointment as Principal on 01.10.2012 and posted at Dhanbad. She was required to join her duty by 30.10.2012. She accepted the offer of appointment and herself requested her Principal to relieve her on 18.10.2012. She got relieved on the same day but she did not join duty by the prescribed date. She requested for extension of time twice on medical grounds. She was granted extension upto 26.11.2012 with a direction to join duty by that date, failing which the offer of appointment made to her was to be treated as withdrawn. When she failed to join duty by 26.11.2012, even though she had been relieved from Kendriya Vidyalaya, Gole Market, New Delhi on 18.10.2012, her offer of appointment as Principal was withdrawn on 08.02.2013.
4. We have heard both sides and have perused the material placed on record.
4.1 Learned counsel for the applicant relied on the judgment of Honble Supreme Court in the case of Bank of India Vs. Jagjit Singh Mehta, AIR 1992 SC 519, in para-5 of which the following has been held:-
5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India, Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.
Learned counsel argued that considering that the spouse of the applicant was posted in Delhi the respondents should have taken steps to post the applicant accordingly. In our opinion, this contention of the applicants counsel cannot be accepted. The guidelines only require the two spouses to be posted at one place as far as practicable. The applicant could not have demanded posting in Delhi as a matter of right.
4.2 Learned counsel for the applicant further relied upon the judgment of this Tribunal in OA-1760/2013 (Smt. Chitra Mukundan Vs. UOI & Ors.) pronounced on 08.01.2014. Learned counsel for the respondents, however, stated that the aforesaid order has been set aside by the Honble High Court of Delhi in Writ Petition (C)-2571/2014 by their order dated 04.12.2014. The said order being a short one is reproduced hereunder:-
On 14.11.2014, this Court had ? after hearing counsel for the parties, made an order which set out the relevant facts, and issued a direction to the petitioner-KVS. The order is extracted below:-
?The petitioner is aggrieved by the order of the Central Administrative Tribunal (CAT/ Tribunal) dated 08.01.2014, which has interfered with two orders dated 15.11.2012 and 31.12.2012 made in respect of the respondent/applicant.
The respondent was selected in a direct recruitment process and offered appointment. The appointment letter specifically stated that the candidate after acceptance of offer would not seek any change of posting. The respondent was initially posted to Kendra Vidyalaya, Churchandpur as Principal. She represented against this on 19.10.2012 seeking modification with regard to the posting, which was granted on the same day. The fresh place of posting was Silchar, Assam. The respondent again sought for modification on 19.12.2012 claiming that she ought to be accommodated in a specific place that was more convenient to her, and also that her husband a Senior Indian Railway Personnel Service Officer was likely to be posted in Chennai. This was rejected on 31.12.2012, which had the effect of withdrawing the offer of appointment.
The respondent?s grievance was accepted by the CAT, which quashed the two orders questioned reasoning that in other instances candidates request had been duly considered and they were given accommodation in terms of fresh posting.
During the course of hearing, it was suggested that having regard to the respondents merit position ? which was rank no.2 in the select list ? the Kendriya Vidyalaya should consider appropriately granting her appointment in the direct recruitment quota to the extent possible amongst the existing vacancy in the direct vacancy, and that a fresh offer in that regard may be made.
Learned counsel seeks some time to obtain instructions.
List on 27.11.2014.
Counsel for the KVS submits that all vacancies (involved in the selection process to which the respondent-applicant was a party i.e. about 22 in number) have been filled. It was further stated that a fresh recruitment process for 2012-2013 and 2013-2014 vacancies have been undertaken, and the selection process is at an advanced stage where candidates are likely to be interviewed. It was, therefore, suggested that this Court may keep these facts in mind, while making the final order.
We have considered the submissions of the parties. We are of the view that the CAT was not justified in quashing or setting aside the Memorandum dated 31.12.2012 withdrawing the offer of appointment made to the applicant. The applicant had offered her candidature for a transferable post. She had no vested right to be posted at a particular place(s) of her choice. The petitioner had, in consideration of the respondents representation, changed her posting. She should have joined her posting ? even if she had a grievance, and should have represented later. Her failure to do so left one post of Principal vacant and the petitioner was justified in withdrawing the offer made to her since she did not join for a very long time. Mr. Rungta has submitted that the respondent was highly meritorious and is prepared to accept a fresh offer of appointment even now, without staking any claim on the basis of the earlier offer of appointment.
In view of the above, a direction is issued to the KVS to appoint the petitioner against any one vacancy which might exist with it, in the cadre of Principal. The offer of fresh appointment would be made on its own terms, without reference to the appointment offered to the respondent earlier. The fixation of seniority, pay etc. would be in terms of the administrative and other parameters applicable to the KVS on the basis of the fresh offer to be made. Counsel for KVS had stated that the applicant should not insist on a place of posting of her choice; on the other hand, the counsel for the applicant submitted that in case of a request of a place of her choice, the application be considered as in the case of others without discrimination.
In these circumstances, the offer to be made by the KVS offering appointment to the respondent/applicant to the post of Principal, shall be as against an existing vacancy. The applicant would not be entitled to seniority or any arrears of salary, etc. on the basis of the earlier offer which stands withdrawn. The right to represent to the KVS regarding posting would be at par with other candidates. The consequential order in terms of the above direction shall be made by the KVS within three months from today.
The Tribunals order is set aside and substituted as above.
The Writ Petition stands disposed of. 4.3 On going through this order, we find that while quashing the order of the Tribunal the Honble High Court of Delhi had directed KVS to appoint the petitioner against any existing vacancy by making a fresh offer of appointment. Honble High Court further directed that in case the petitioner accepts the aforesaid offer she would not be entitled to benefits of seniority and pay fixation and would be treated as a fresh appointment. The aforesaid order of the Tribunal has since been implemented by the respondents inasmuch as the petitioner Smt. Chitra Mukundan has been offered appointment as Principal in Kendriya Vidyalaya, WELLINGTON vide Memorandum dated 06.02.2015, a copy of which was produced by the applicants counsel during the hearing of this case.
4.4 Learned counsel for the applicant further argued that in the meeting of the JCM of KVS held on 11.12.2012 the staff side had raised the issue about spouses not getting desired place of posting leading lot of discontentment in the transfer of teachers. This issue was deliberated upon and it was decided that staff side shall produce all Government of India orders to KVS for further examination and consideration of such request. Learned counsel has made available a copy of the minutes of the aforesaid meeting which is taken on record. Relying on the judgment of Honble Supreme Court in the case of Sethi Auto Service Station and Anr. Vs. Delhi Development Authority and Ors., AIR 2009 SC 904, learned counsel for the applicant stated that the applicant had legitimate expectation that in view of the aforesaid discussions in the JCM her case would be favorably considered. However, the respondents withdrew the offer of appointment without deciding her representation or giving her an opportunity of being heard. The respondents counsel, however, rebutted this argument by saying that the discussions in JCM were about transfers of serving teachers whereas the present case was of appointment as Principal as a direct recruit. He stated that KVS employees could be posted anywhere in India.
4.5 Learned counsel for the respondents further argued that the applicant had been dithering and could not make up her mind whether to join at Dhanbad as Principal or not. Thus, first she made a representation on 12.10.2012 requesting for modification of her posting. However, without waiting for any decision on this she accepted the offer of appointment given to her as Principal on 15.11.2012 and also got her relieved from Kendriya Vidyalaya, Gole Market on 18.10.2012 for joining her new place of posting. However, instead of joining at Dhanbad she repeatedly sought extensions which were granted to her and her joining date was extended till 26.11.2012. Even then she did not join and the respondents were then left with no choice but to cancel her offer of appointment. Thereafter, she has only been repeatedly making representations.
5. We have heard both sides and have perused the material on record. In our opinion, there is some merit in the contention of the respondents that the applicant could not make up her mind whether to join at KVS Dhanbad or not. Nevertheless, it cannot be denied that when her offer of appointment was cancelled on 08.02.2013, her representations dated 12.10.2012, 20.11.2012 and 26.11.2012 for modification of her posting were still pending with the respondents. Thereafter, she made several other representations on 18.12.2013, 07.03.2013, 13.05.2013, 09.07.2013 and 14.08.2013. None of them has been decided by the respondents till date.
6. During the course of the arguments, learned counsel for the applicant on instructions from the applicant stated that applicants case was similar to that of Smt. Chitra Mukundan (supra) and that she would be satisfied if the same benefits were extended to her as were extended to Smt. Chitra Mukundan by Honble High Court of Delhi. On going through the facts of the two cases, we find that both cases are similar. In fact, the applicant stood on a stronger footing inasmuch as her offer of appointment was cancelled without decision on her representations whereas in the case of Smt. Chitra Mukundan the respondents had once modified her posting from Kendriya Vidyalaya, Churchandpur, Manipur to Silchar, Assam and when she made another request for further modification, the same was rejected. Her candidature for the post of Principal was cancelled only when she did not join even at Silchar and made another representation for posting her to any of the KVS mentioned in her representation. The order of Honble High Court of Delhi has since been implemented by the respondents in the case of Smt. Chitra Mukundan.
7. Under these circumstances, following the orders of Honble High Court of Delhi in Smt. Chitra Mukundans case, we dispose of this O.A. and direct the respondents to give the applicant a fresh offer of appointment as Principal against any existing or next available vacancy, treating her as a fresh candidate without any claim for seniority or pay. The applicant on her part would not insist on any choice as regards the place of posting and shall join the new place of posting within the time prescribed by the respondents. Such an offer may be made to the applicant within a period of six weeks from the date of receipt of a copy of this order. No costs.
(Shekhar Agarwal) (A.K. Bhardwaj) Member (A) Member (J) /Vinita/