Central Administrative Tribunal - Delhi
Rajpal Singh Kundu vs Government Of Nct Delhi : Through on 8 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.4508/2011 New Delhi, this the 8th day of August, 2012 CORAM: Honble Dr. Veena Chhotray, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Rajpal Singh Kundu, S/o Shri Zile Singh Kundu, R/o M-15, Phase IV, Prem Nagar, Najafgarh, New Delhi 43 Applicant (By Advocate: Shri U. Srivastava) Versus Government of NCT Delhi : Through 1. The Chief Secretary, Govt. of NCT Delhi, New Delhi 2. The Director of Education, Directorate of Education, Govt of NCT Delhi, Old Secretariat, Delhi 3. The Dy. Director of Education, Distt: South West (B), Najafgarh, New Delhi 43 4. The HOS Pochanpur, G(Co-Ed) SSS-1821037 New Delhi Respondents (By Advocate Ms Alka Sharma) O R D E R
By Dr. Veena Chhotray:
The Applicant, superannuated as a TGT under the GNCTD w.e.f. 30.11.2011, is agitating claims for re-employment under the Automatic Re-employment Scheme. The impugned order dated 3.12.2011 rejecting his application on the ground of non-availability of vigilance clearance due to pendency of a Court case is under challenge. Besides, the OA also seeks to challenge the relevant condition of vigilance clearance in the Notification dated 29.1.2007 and the guidelines dated 28.2.2007 on the subject of Automatic Re-employment Scheme (Annex A/1 and A/2 respectively).
By way of relief, the OA seeks quashing the aforesaid two impugned orders along with directions for allowing the applicant to continue in service on re-employment basis with all consequential benefits and costs of the litigation.
No interim directions were issued in this case.
2. The learned counsels, Shri U. Srivastava and Ms Alka Sharma would argue the case respectively for the applicant and the respondents.
3.1 The brief factual matrix, as relevant in the present context, is that the applicant initially appointed as an Assistant Teacher in the MCD in the year 1977, had been promoted as TGT (English) in the year 1992 and had joined the Directorate of Education. The applicant superannuated from service w.e.f. 30.11.2011. Despite representations, the applicant was not given the benefit of re-employment after his superannuation. This is the cause of his grievance.
3.2 In reference to his application regarding re-employment, the applicant was informed by the Respondents letter dated 3.12.2011 that his case for re-employment had been considered and rejected on the basis of non-availability of vigilance clearance report. The mention of a criminal case pending in the Court of M.M. Shri Rakesh Pandit, District Court-Saket, Delhi had also been made.
3.3 The OA lists the chronological sequence of events in this regard. An FIR No.386/94 had been lodged pm 20.8.1994 against the applicant with some co-accused under Section 420, read with Section 34 of IPC on 28.8.1994. From 10.9.1994 to 15.11.1994 the applicant remained in judicial custody for which he had also been suspended. Subsequently, the Applicant had been reinstated in service, but the period of suspension was treated as non-duty. The criminal case was still pending before the trial court.
4. The basic contention of the Applicant is that it was a false criminal case which has still been lingering. Shri U. Srivastava, the learned counsel for the applicant would also submit that the applicant had moved a Criminal M.C. No.1774/2009 before the Delhi High Court for expediting the finalization of the aforesaid criminal case since he was being denied promotion on that account. A copy of the relevant order dated 28.5.2009 would be produced before us which recording the submissions of the Petitioners counsel states that the charge sheet in this case had been filed in the year 1997 and the charge framed against the Petitioner and the 8 co-accused in March 2005. The proceedings had not been subject to any stay by the Court.
The aforesaid miscellaneous petition had been disposed by a Ld. Single Judge with the direction to the Court concerned to make efforts for expediting the trial of the case. Thus, the endeavour of the learned counsel would be to establish that if the said case had been pending, it was for no fault of the petitioner.
4.1 It is averred in the OA that mere start of a criminal case does not make a person with doubtful integrity. In support, Shri Srivastava would cite the decision of a Coordinate Bench in the OA No. 4305/2010 (V.B. Bansal vs Union of India & Ors) decided on 16.8.2011. Further, it is averred that the said Criminal Case has nothing to do with the service of the applicant. The contention of the applicants learned counsel would be that the applicant who had been allowed to be continued in service for several years thereafter and had had a satisfactory service record, had been unjustly deprived of the benefit of the Scheme of Automatic Re-employment.
4.2 The OA also challenges the Scheme of re-employment on the ground of stipulating the condition of vigilance clearance. Ground 5.7 mentions such a condition to be arbitrary and violtive of Articles 14, 16 and 21 of the Constitution. As per the applicant stipulation of such a condition has no nexus with the very object of the notification.
5. The claims in the OA have been opposed by the respondents. The Counter Affidavit filed on their behalf states that claiming reemployment cannot be taken as a matter of right. The applicants contention of having an unblemished service record has been rebutted in the light of the facts of the case. The non-issuance of vigilance clearance, in view of the pendency of the criminal case, has also been justified even as per the law settled by the Honble Apex Court in K.V. Janakiramans case.
5.1 Ms Alka Sharma, the learned counsel for the respondents, would argue about the Notification regarding the Scheme of automatic reemployment for retiring teachers under the GNCTD being unambiguous and clear. Vigilance clearance in respect of the concerned employee had been stipulated as a mandatory pre-requisite. The learned counsel would advert to the subsequent guidelines issued on the subject. Ms. Alka Sharma would stoutly rebut the applicants protestations of claimed innocence and argue that the applicant had been facing criminal trial for a grave offence under criminal conspiracy and cheating, and the same could by no logic be considered in tune with the noble profession of a teacher who is supposed to be a role model for the students.
It would also be submitted by the learned counsel Ms. Sharma that the vigilance report in question was upto date (dt. 12.8.2011) and a recent one. Further, the case of the applicant had been duly considered by the respondents, but not found fit on the ground of want of vigilance clearance. The arguments on behalf of the applicants counsel about the long pendency of the case would be stated to be irrelevant to the issue at hand.
In support, the Counter Affidavit has cited the Delhi High Courts common decision dated 28.3.2012 in the LPA No.414/2011 (Shashi Kohli vs Director of Education & Ors) and LPA No.415/2011 (Chandar Prabhash Sood Vs Director of Education & Ors). In these cases the Division Bench of the Delhi High Court had upheld the SBs order dismissing the petitions of the concerned employees for reemployment. The learned counsel would draw our attention to Para 3 (i) of the Judgment where one of the grounds for dismissal of the Writ Petition by the Ld. Single Judge had been that though the notification dated 29th January, 2007 allowed automatic re-employment but the same was subject to ..fitness and vigilance clearance.
6. Having carefully considered the respective submissions both oral and written we do not find the claims in the OA as tenable. The main reasons for arriving at this view are as below:
6.1 The legal claim for various service entitlements of a Govt. employee spans the period till superannuation and receipt of retiral dues thereafter. Grant of reemployment after retirement perse would not come within the purview of such legal entitlement.
6.2 The scheme in question framed by the Govt. of NCTD for automatic reemployment of retiring teachers till the age of 62 years stipulates certain conditions, fulfillment of which is pre-requisite before giving the benefit of the scheme to an individual teacher. The notification dated 29.1.2007 clearly prescribes the reemployment being subject to fitness and vigilance clearance. These are further elaborated under the guidelines dated February 28, 2007. These inter alia reiterate, The DDE concerned will ensure that the teachers, who are free from vigilance angle, are only re-employed . The case sought to be built on behalf of the applicant challenging the legal sustainability of the condition of vigilance clearance has no legs to stand upon.
Even the Delhi High Courts DB decision dated 28.3.2012 cited by the respondents lends support to this view.
6.3 The limited aspect to be considered under judicial review in the present context would be to see that the case of an individual teacher has been dealt in accordance with the provisions of the Scheme without any arbitrariness. The impugned decision is not found to have been vitiated by such arbitrariness.
6.4 It is not the case of the applicant that the matter regarding his reemployment had not been considered or that there is no criminal case as reported in vigilance report subjudice against him. The arguments instead of the long pendency of the case and the applicant having continued in service all throughout would not help to either absolve the applicant of the fact of facing such a criminal case or lend support to his claim for having an unblemished service record.
The citation of the OA No.4305/2010 (V.B. Bansal vs UOI) decided by a Coordinate Bench of this Tribunal vide its order dated 16.8.2011 is not relevant in the present context because of distinguishable facts. Dealing with a case of CCS (Pension) Rules 1969, the applicant therein was challenging non-release of his final pension and other retiral dues on the ground of pendency of a judicial proceeding. However, though the FIR had been registered by the CBI in the year 2005, subsequently in 2007 after investigation the CBI had submitted a report for cancellation of the FIR. The same had been pending for a final decision at the level of the concerned Magistrate for 4 years. Considering the particular factual matrix of the case, this plea of the respondents was not found tenable by the Ld. Coordinate Bench.
7. For the reasons elaborated in para-6 above, the OA is found to be devoid of merit and dismissed hereby with no orders as to costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray)
Member (J) Member (A)
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