Mahipal Singh vs Government Of NCT Delhi And Ors

Praveen Mahajan, Member (A)

The OA has been filed against the impugned order dated 05.12.2016 by which the request of the applicant for consideration for re-employment has been rejected by the respondents.

Briefly stated the facts of the case are that the applicant was a Physical Education Teacher in Directorate of Education under the Government of Delhi. He retired on attaining the age of superannuation on 30.11.2016 from SBV Bijwasan-Bharthal, New Delhi. The applicant states that as per the scheme of the Government of NCT of Delhi vide notification dated 29.01.2007, the Lieutenant Governor allowed automatic re-employment of all retiring teachers upto PGT level of the Directorate of Education, Govt. of NCT of Delhi till they attain the age of 62 years, subject to their fitness and vigilance clearance.

A false complaint was lodged by some students alleging that the applicant was awarding corporal punishments to the students,hence a FIR No.3/13 dated 04.01.2013 was lodged against the applicant. The applicant suffered trial before the Trial Court but was finally acquitted by Hon"ble Court of Addl. Chief Metropolitan Magistrate, South West District, Dwarka Courts New Delhi vide judgment dated 09.05.2016. Simultaneously a Departmental enquiry was conducted against the applicant and Major Penalty Charge Sheet was issued to him on 27.02.2013. The Inquiry Officer held the charge levelled against the applicant as not proved. However the disciplinary authority issued a disagreement note dated 08.10.2015, and imposed a penalty of reduction to one stage lower in the time scale of pay for one year upon the applicant, with the direction that he shall not earn any increment of pay during the aforesaid period.

The applicant filed an appeal dated 16.11.2015 against the order of disciplinary authority. The Appellate Authority, by an order dated 17.10.2016 reduced the order of penalty imposed upon the applicant to „Censure". The applicant states that the effect of Censure remains for a period of six months only hence on the date of application for re-employment, the applicant was free from any vigilance angle. The applicant applied for consideration of his case for re-employment w.e.f.01.12.2016 since he was due to superannuate on 30.11.2016.

It is contended that even the Principal of the School found the work and conduct of the applicant satisfactory. The applicant has drawn attention to a certificate dated 11.11.2016, given by HOS, in this regard. There was no case pending against the applicant, departmentally or elsewhere, at the time of retirement. Despite this, the request of the applicant for re-employment has been rejected arbitrarily stating that he is not professionally fit. Against the impugned order dated 05.12.2016, the applicant preferred an appeal dated 28.12.2016 which was rejected on 16.03.2017.

The applicant further states that the impugned order is issued based on the un-communicated adverse ACR, entries in service documents of the applicant which were never communicated to him and hence cannot be used against him.

Aggrieved by the same, the applicant has sought the following relief :-

"(a) Quash and set aside the Impugned Order dated 05.12.2016 and 16.03.2017 declaring as illegal, unjust, arbitrary, non-speaking and malafide.

(b) Direct the respondents to re-consider the claim of the applicant for his Re-employment afresh by ignoring the un-communicated adverse ACR and re-considering that the applicant was free from all vigilance clearance at the time of retirement and if the applicant is found fit, he may be considered for Re-employment with all consequential benefits accruing therefrom.

(c) Call for the complete records of the case.

(d) Any other relief which this Hon"ble Tribunal may deem fit and proper in the facts and circumstances of the case.

(e) Award Cost."

In the counter, the respondents state that re-employment case of the applicant was considered and rejected by the competent authority, as per rules. The applicant had been issued a major penalty charge-sheet hence he was not clear from vigilance angle. The respondents have relied upon the judgment of the Hon"ble High Court of Delhi passed in WP (C) No.4330/2010 in the case of ShashiKohli Vs. Directorate of Education holding that re-employment is not a matter of right of a petitioner.

During the course of hearing, the learned counsel for the applicant ShriA.K.Trivedi drew attention of the bench to the notification dated 29.01.2007 issued in the name of the Lt. Governor of the National Capital Territory of Delhi. As per the said notification there is an automatic re-employment of all retiring teachers upto PGT level, subject to fitness and vigilance clearance till they attain the age of 62 years. He submitted that the respondents did not follow this order either in letter or in spirit, while issuing the impugned order dated 05.12.2016.The learned counsel stated that the Head of the School where the applicant was employed,vide order dated 11.11.2016 has certified that there is nothing adverse against the applicant. He also drew attention of the bench to the school result which showed that due to efforts and diligence of the applicant, the students of the applicant had secured almost 100% results for the years 2010-2011, 2011-2012, 2012-2013, 2013-2014 and 2014-2015.

Shri Trivedi vehemently argued that the so called adverse ACRs cannot be used as an excuse to deny the re-employment to the applicant since these were never communicated to him. He also contended that the applicant was never found guilty by the inquiry officer, hence the penalty imposed upon him by the Disciplinary authority was illegal and arbitrary. Due to this non-application of mind (of the disciplinary authority), the appeal of the applicant was allowed by the appellate authority and the penalty was reduced to censure videorder dated 17.10.2016. He also relied upon the judgment dated 12.01.2011 in OA No.2816/2009, where a similarly placed teacher  was  granted  employment  after  his  case  was  considered  by  the respondents, on directions of the Tribunal.

Rebutting these arguments, the learned counsel for the respondents Shri K.M.Singh stated that the Notification No.F-30-3(28)/Co-ord./2006/689-703 dated 29.01.2007 can only be given effect to after ascertaining medical fitness as well vigilance clearance in respect of the applicant. He argued that on these parameters the applicant is not fit for re-employment. He drew our attention to the impugned order which reads as under :-

"And whereas, ShriMahipal Singh, PET, was charge-sheeted for major penalty under Rule 14 of CCS (CCA) Rules, 1965, vide memorandum No.DE.54.6(2-81)/DDE/SWB/Vig./2012/293 dated 27.02.2013 "CHARGESHEETED under Rule 14 of CCS (CCA) Rule 1965 on the charges that Sh. Mahipal Singh, PET working in G.Co-ed SSS, Bamnoli-Dulsiras, Delhi has given corporal punishment to students of Class X-B. Doing the, he has violated the directions of Directorate of Education vide circular No.DE.23(216) Sch. Br./6232-40 dated 20.07.2010. Thus by doing the said acts, he has committed a gross negligence and acted in manner of unbecoming of a Govt. servant in violation of provision of Rule 3 of CCS (Conduct) Rules, 1946. Thereby rendering him liable to action under Rule 14 of CCS(CCA) Rules, 1965. The Competent Authority imposed the penalty of reduction to one stage lower in the time scale of pay for one year vide order No.DE.7/158/DP/PET/VIG/HQ/14/4569-74 dated 08.10.2015. But now the penalty is reduced to "Censure" vide order No.DE/7/158/PD/PET/VIG/HQ/14/5529 dated 17.10.2016 by Secretary Education" being Appellate Authority.

And whereas, a per the Vigilance Clearance Report given by Vigilance Branch, District (SW-B), ShriMahipal Singh Vijayrun-19810676, P.E.T., is not clear from Vigilance angle.

And whereas, it has been observed by the Hon"ble High Court of Delhi vide order dated 29.04.2011 passed in WP (C) No.4330/2010 (copy enclosed) title ShashiKohli V/s Directorate of Education referring to judgments passed by the Division Bench of the High Court in the matter of Prof. P.S. Verma V/s JamiaMiliaIslamia University &Ors. And Dr.V.K.Aggarwal V/s University of Delhi &Ors. Had held that re-employment is not a matter of right and has observed as under :-

"At the cost of repetition, it may be stated that the petitioner has no right to re-employment. She only has a right to be considered and the school has a right to deny her re-employment, if after considering her over-all performance as a teacher, it finds that she is not fit for re-employment. For the reasons delineated above, I find myself one with respondent No.2 and hold that the action taken by it in not granting re-employment to the petitioner suffers from no illegality."

In view of these categorical findings, Shri Singh submitted that the request of the applicant is totally devoid of merit and needs to be dismissed.

After giving our careful consideration to rival contentions of both sides, we are in agreement with the contention of the respondents that the terms and conditions of re-employment, approved by the Lt. Governor come with a rider. The Notification dated 29.01.2007 (Annexure A-5) stipulates that :-

"Government Of National Capital Territory of Delhi Directorate of Education, Old Secretariat, Delhi.

No.F.30-3(28)/Co-ord./2006/689-703 Dated: 29th January,2007

NOTIFICATION

In pursuance of Cabinet Decision No.1113 dated 4.9.2006 conveyed vide letter No.F.3/3/2004-GAD/CN/20491-502 dated 8.9.2006, the Lieutenant Governor, Government of National Capital Territory of Delhi is pleased to allow automatic re-employment of all retiring teachers upto PGT level, subject to fitness and vigilance clearance, till they attain the age of 62 years or till clearance from Government of India for extending retirement age is received, whichever is earlier. The terms and conditions of re-employment are being notified separately.

By order and in the name of

The Lt. Governor of the

National Capital Territory of Delhi

(MadhupVyas)

Joint Secretary (Education)"

In the instant case, Shri Mahipal Singh was charge-sheeted for imposing corporal punishment on students of class X-B. On account of this, the disciplinary authority found him guilty and imposed a penalty of reduction to one stage lower in the time scale of pay for one year on the applicant. Though the punishment was reduced by the appellate authority to "censure"on 17.10.2016,it did leave a question mark about the conduct of the applicant and his suitability to avail the benefit of re-employment. The ACR grading of the applicant, (available on record) starting from 2010-2011 to 2014-2015 also show that all along his performance never went beyond good or average.

It was the duty of the respondents to ensure that concessions, as stipulated in the aforementioned notification, are given to deserving candidates who come within the parameters specified therein. This is exactly what they have done and cannot be faulted for having done so.

Keeping in view these facts, we feel that action of the respondents does not suffer from any infirmity or illegality. The OA lacks merit and is accordingly dismissed. No costs.