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Judgment
Sanjay Yadav, J.—Kendriya Vidyalaya Sangathan and its functionaries being aggrieved by order dated 17.4.2009 passed by the Central Administrative Tribunal Jabalpur, Bench Jabalpur have filed this petition under Article 227 of the Constitution of India. By impugned order the Tribunal allowed the application filed by respondent against the order dated 27.3.2006 and consequential order dated 31.8.2006.
By order dated 27.3.2006 the respondent, a Trained graduate Teacher (Sanskrit) posted at Kendriya Vidyalaya No. 2 was redeployed in same capacity to Kendriya Vidyalaya, Itarsi. The respondent was shown as surplus at Kendriya Vidyalaya No. 2 Bhopal, therefore redeployed in exercise of powers under Clause 7.1 of the Transfer Policy.
Whereas, by order dated 31.8.2006 the services of the respondent was terminated in exercise of powers under Article-81(D) of the Education Code.
Relevant provisions where under action is taken are:
Clause 7.1 of the Transfer Policy:
7.1: In the Kendriya Vidyalayas where teachers are in surplus action will be taken to reduce such surplus to zero in the following manner:
(i) All teacher of relevant category working in Kendriya Vidyalayas having a surplus in that category will be notified that teacher of that category in requisite numbers need to be transferred out to eliminate the surplus and it will be ascertained, whether any of them are willing to be transferred out to other Kvs within the region having vacancies in relevant category. To the extent possible surplus will be eliminated by transferring willing teachers who respond to the above notice, to vacant posts within the Region.
(ii) Since some surplus may remain after (i) above person (s) in requisite numbers will also be identified at the station where each school having a surplus is located for effecting administrative transfer to the extent of such remaining surplus is located for effecting administrative transfer to the extent of such remaining surplus. This will be done on the basis of highest station seniority of teachers not belonging to the CDA category.
Preference of such teachers from among available vacancies in Kvs of the Region will also be ascertained. Persons responding to the notice under (i) above and those identified under (ii) above will be called for a round of counselling before Regional Transfer Committee by 10th January and transfers will be effected in that order with due regard to their choice from amongst available vacancies and as per the guidelines in paras 13 and 14 below by 15th January.
Article 81 (D) of the Education Code.
(D) Voluntary Abandonment of Service.--(1) If an employee has been absent/remains without sanctioned leave or beyond the period of leave originally granted or subsequently extended he shall provisionally lose his lien on his post unless:--
(a) he returns within fifteen calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended/as the case may; and
(b) satisfies the Appointing Authority that his absence or his inability to return on the expiry of the leave as the case may be was for reasons beyond his control. The employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid shall be deemed to have voluntarily abandoned his service and would thereby provisionally lose Hen on his post.
The case has its chequered history.
In 2001, the respondent while working at Kendriya Vidyalaya No. 2 Bhopal by order dated 13.7.2001 was placed under suspension in contemplation of a departmental enquiry by fixing his head quarter during suspension at Kendriya Vidyalaya Bairagarh. Charge Sheet was issued on 16.10.2001.
On an appeal against suspension, the appellate authority by order dated 6/8-7-2002 revoked the suspension with a condition precedent that he should report joining at Kendriya Vidyalaya Karimganj, Assam.
The order dated 6/8.7.2002 came to be challenged before Tribunal vide O.A. No. 487/2002, which was disposed of on 6.8.2002 with a direction to consider the representation and till decision the posting order to Karimganj, Assam was stayed.
By order dated 6.9.2002 the representation filed by the respondent was rejected. The order was challenged in O.A. No. 648/2002.
The Tribunal by order dated 6.5.2003 allowed the application holding that the order of transfer clubbed with the order of revocation of suspension was not in consonance with Rule 10 of Central Civil Services (Classification Control and Appeal) Rules, 1965. The original application was allowed in its entirety with consequential relief.
Order passed by Tribunal was challenged before this Court vide W.P. No. 4384/2003.
That during pendency of said writ petition a modified order came to be passed on 7.11.2003 whereby, while cancelling the order of posting to Karimganj, the respondent was directed to be posted at Kendriya Vidyalaya, Mandsor. This order was passed on the pretext that during course of hearing at one date it was observed by the Bench hearing the matter to post the respondent at a place nearby Bhopal. However, it was observed that no such order was passed. Be that at it may, the respondent did not respond to the order.
Two issues came to be settled by W.P. No. 4384/2003 decided on 19.7.2005:
(i) that the authority hearing an appeal under Rule 27(1) of the CCS (CCA) Rules, 1965 against an order of suspension does not exercise the discretionary power in subjecting the revocation of suspension to a condition that revocation will come into effect only on the employee reporting to duty at a far away place of transfer, and
(ii) That when an employee is kept under suspension pending enquiry he retains his lien over the post from which he is suspended. That any vacancy caused on account of suspension pending enquiry, is to be filled by a reservist and where a reservist is not available by officiating appointment.
The said petition preferred by the petitioner was dismissed holding that respondent herein will be deemed to be on duty at KV. No. 1, Bhopal from 8.7.2002 with all monetary benefits. Observation was however, made that "the order will not come in the way of the petitioners passing a regular order of transfer in regard to first respondent in exigencies of service or in public interest prospectively."
Taking cue from the liberty granted, the petitioner ignoring the fact it was the incumbent posted in place of the respondent, held to be reservist, and undermining the decision in W.P. No. 4348/2003, treated the respondent as surplus and by invoking Clause 7.1 of Transfer Policy, redeployed him to KV Itarsi, by order dated 27.3.2006.
Respondent challenged the order before the Tribunal. Before challenging the same he gave a representation on 15.4.2006 thereafter filed O.A. No. 272/2006 on 24.4.2006. The Tribunal issued notices on 26.4.2006 observing that the prayer for interim relief shall be considered later. The matter was fixed for 4.5.2006. However, since the respondent did not join the same was treated as Voluntary Abandonment of service under Article 81(D) of the Education Code. A show-cause notice was issued on 11/14.8.2006, which was replied on 23.8.2006. The petitioner undermining the fact that the respondent employee was agitating his redeployment, treated his absence as voluntary Abandonment of service and accordingly by order dated 31.8.2006 terminated him from service by terminating the lien.
These facts which are borne out from the record reflects sordid State of affair. The petitioners who are at the helm of school administration are expected to be fair in their disposition. Fairness in action is said to be a sine qua non of good administration. Being a model employer it becomes all the more imperative for the petitioners and its functionaries to be fair to the hilt in administrative action. They cannot permit themselves to see their peers with a coloured glass.
In the case at hand there being a declaration of law by this Court regarding the nature of vacancy which accrues on account of suspension. And, there being only one sanctioned post of Sanskrit TGT at KV No. 2 Bhopal, over which the respondent was having the lien, the petitioners were not justified in treating the respondents, rather than the incumbent who occupied his post, as surplus. This reflects an arbitrary exercise of power by the petitioners. The liberty granted to the petitioner vide W.P. No. 4384/2003 was that in exigencies of service or in public interest they may pass a regular order of transfer. Instead, a redeployment order was passed by misconstruing the facts.
As per Transfer guidelines effective from 1.4.2006, recourse whereof has been taken to by the petitioners, clause 7 (whereunder the action is taken) deals with Administrative Transfer to Eliminate Staff surplus. Whereas clause 8 deals with Administrative Transfers on other grounds.
Clause 8 stipulates:
ADMINISTRATIVE TRANSFERS ON OTHER GROUNDS
Besides transfers to eliminate surplus, as indicated in para 7 above, other administrative grounds on which staff may be transferred are as follows:
(i) Due to completion of maximum tenure prescribed for certain posts as specified below:
while there would be no maximum prescribed tenure for Principals, cases of such of them as have completed five years in the same school will be examined and transfer effected to the extent necessary in pursuance to the objective spelt out in para 13.
(ii) To fill up vacancies in Priority Areas.
(iii) To accommodate requests of teachers belonging to PCGR category for a place where no vacancy is available.
(iv) On grounds of misconduct or unsatisfactory performance as evidenced by issue of a charge sheet under Rule 14 of the CCS (CC&A) Rules, 1965 or imposition of a minor penalty under Rule 16 of the CCS (CC&A) Rules, 1965.
(v) Closure of a Kendriya Vidyalaya
(vi) other administrative exigencies.
Instead taking recourse to clause 8 the petitioners treated the respondent as surplus and as per clause 7.1 redeployed him to KV Itarsi. This action by the petitioners is not in commensurate with the facts nor with the decision in W.P. No. 4384/2003.
In view of above, the Tribunal in our considered opinion is quite justified in quashing the orders dated 27.3.2006 and 31.8.2006.
In the result petition fails and is accordingly dismissed. This order however will not restrain the petitioners from passing a regular order of transfer in exigencies of service or in public interest. No. costs.