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The Indian Penal Code, 1860
Article 311(2) in The Constitution Of India 1949
Delhi Development Authority vs Ashok Kumar Behal And Ors. on 20 August, 2002
Sohan Lal vs The Union Of India on 7 March, 1957
S. G. Jaisinghani vs Union Of India And Ors.(With ... on 22 February, 1967

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Central Administrative Tribunal - Patna
Hemant Kumar Nirmal And Anr. vs Union Of India (Uoi) And Ors. on 17 February, 2006
Equivalent citations: 2007 (1) SLJ 7 CAT
Bench: S Srivastava, B A A.R.

ORDER

A.R. Basu, Member (A)

1. This O.A. has been filed by the applicants against the order of the respondents dated 16.2.2005 (Annexurc-13) whereby they were reverted back to the post of PGT.

2. The brief facts of the case is that the applicants had been duly appointed as Principal on the recommendation of the Selection Committee and the Competent Authority had approved the appointment of the applicants as Principal. The applicants were initially appointed in the Kendriya Vidyalaya Sangathan (in short KVS) as Post Graduate Teachers. As per the recruitment notice which was published in the Employment News by the KVS by which applications were invited for various posts including the post of Principal. Apart from mentioning essential qualification, the employment notice also stated that the KVS may hold a written test and thereafter call the candidates for interview on the basis of merit test for academic, professional and other qualification. It was also stated that the selected candidates are liable to be posted anywhere in India and their services are transferable. It was indicated that the selected candidates would be placed on probation for two years which is extendable by one year, if necessary. The petitioners applied for the post of Principal and thereafter were selected by the Section Committee. Prior to their application for appointment on the post of Principal, the petitioners were working in KVS as Post Graduate Teachers. After selection the petitioners were appointed by similar orders of appointment on the basis of recommendation of the Selection Committee as Principal in KVS on deputation basis. Such appointment was essentially for a period of one year on deputation and was liable to be extended subsequently.

3. The recruitment rules for post of Principal, as stated in Appendix-III, Schedule I of Education Code speaks that for the post of Principal, one can be promoted on the post of Principal as per merit with due regard to seniority among the Vice-Principals who have rendered minimum of 5 years service in Kendriya Vidyalaya of which at 3 years should be in the grade of Vice-Principal and this rule is being followed for regular promotion and another mode for appointment of Principal as stated in Appendix-III Schedule 1 is that if suitable candidates are not available, then the Commissioner may fill the vacancies, on deputation basis, from amongst the employees of the Government of India/State Government Autonomous Organisations including KVS/CBSE affiliated +2 schools provided the candidates fulfill all the qualification prescribed for direct recruit and admittedly, the applicants were appointed by this method i.e. by way of direct recruitment after going through the screening test through All India Open advertisement in Employment News and after facing the interview. This screening test was held on 20.2.2002 and the interview was conducted on 18.4.2002 and appointment of the applicants to the post of Principal has been made through second method on the recommendation of the Selection Committee and Competent Authority has approved the appointment of the applicant to the post of Principal in KVS on deputation basis w.e.f. 14th August, 2002 (Annexure-4)/l8.6.2002 (Annexure-7) whereafter applicants joined their duties.

4. The applicants were greatly shocked when they came to know that by order No. F 7-7/2002/K VS (Estt. 1) dated 18.11.2004 issued under the signature of the Commissioner, the appointment of the petitioners as Principals have been terminated with immediate effect and they have all been reverted to the post last held prior to appointment as Principal. The petitioners received the aforesaid letter on 18.11.2004 by post (Annexure-11). The petitioners have contended that the action of the respondents are arbitrary and mala fide as they possessed the requisite qualifications and requisite criteria for the post of Principal in KVS and having been found successful and apparently after completion of the selection process, the applicants were selected and appointed to the post of Principal. They filed an O.A. 308-311/2004 before the C.A.T., Ranchi Bench. The impugned order was quashed on 24.1.2005 following the decision of the Principal Bench in O.A. 2801/2004 in Mrs. Radha G. Krishnan and Ors. v. Kendriya Vidyalaya Sangathan and Ors. dated 21.12.2004.

5. We have heard the earned Counsel of both the parties. Without going into further details of the case, it is worthwhile to mention that similar original applications had been filed in different Benches of the Tribunal including the Principal Bench and several writ petitions have also been filed in various High Courts. In all these O.As., the petitioners have assailed the respondents' orders whereby their deputation as Principal has been terminated and they have been repatriated to their substantive post of POT. Orders passed by the respondents terminating the services of the applicants, who had been regularised, have also been assailed.

6. In view of above, it is felt necessary to give a brief background of the cases to have a full understanding of the dispute.

7. Applicants, who are undisputedly PGTs working in different streams, in the wake of the Recruitment Notice published by the KVS inviting applications on all India basis to fill up the posts of Principal by deputation and also by direct recruitment to clear the backlog vacancies of SCs/STs, applied for the same. The notification inter alia included, as a condition precedent in the matter of selection, written examination and viva voce with a stipulation that selected candidates would be placed on probation for two years, which is extendable by one year. After the recommendations of Selection Committee, applicants were appointed on deputation basis initially for a period of one year with maximum period extendable to five years. A few of the PGTs were also appointed, working on deputation basis, against temporary posts in Kendriya Vidyalaya on probation for two years all over India. Out of 340 deputationists, PGTs, who were appointed on the post of Principal, about 140 of them had been regularized by appointment against temporary vacancies on probation. Some Principals, few of them on regular basis, assailed the decision of the Chairman whereby the appointment made by the Commissioner has been purportedly cancelled and termination has taken effect vide order dated 18.11.2004. In O.A. No. 2801/2004 in Mrs. Radha G. Krishnan and Ors. v. Union of India and Ors. by an order dated 21.12.2004 the Principal Bench of the CAT made an observation that applicants appointment was on deputation. However, the fact that the termination had been given effect to at the dictate of Chairman whereas Commissioner is the Appointing Authority which has failed to apply its independent mind, the impugned orders were set aside with liberty to the respondents to take appropriate action. On show cause notice issued to the applicants by the respondents and in pursuant to their replies resulted in dispensation of their services as a Principal and reversion to the substantive grave of PGTs. The order in the above O.A. was challenged before the High Court of Delhi by the applicants in C.W.P. No. 29-32 of 2005 in S.K. Sharma and Ors. v. Union of India and Ors. By an order dated 21.5.2005, taking cognizance of the fact that in one of the Miscellaneous Applications the grounds are not being adverted to by the Tribunal, the case was remanded back to the Tribunal for a reasoned finding on the grounds alleged in the M.As. as well as in the O.A. and to determine the status of the applicants whether they were appointed on deputation or were direct appointees. As a result thereof, the interim order had been continued as to the status of the applicants as Principal, giving rise to these O.As.

8. With these background, it would be worthwhile to summarise the findings of the various Benches of the CAT as well as the High Courts. The High Court of Calcutta in W.P.(C) No. 63/2005 in Ram Singh and Ors. v. Union of India and Ors. on a decision of the Calcutta Bench of the Tribunal which followed the decision of the Principal Bench in Mrs. Radha G. Krishnan (supra) granting liberty to the respondents to pass fresh order, was subject matter before the High Court and the High Court of Calcutta has recorded specific finding to the effect that there is no scope for promotion on the basis of deputation in KVS and appointment of petitioners therein as a Principal being PGTs is a direct recruitment. The W.P. was disposed of on 11.8.2005 setting aside termination and entitling the petitioners therein to continue in their appointment unless they were removed/dismissed in accordance with a valid proceeding as per law. Following the aforesaid decision, the Bombay Bench of the CAT in O.A. No. 67/2005 George Thadathil v. Union of India and Anr., reiterated the aforesaid view. However, in a finding given in several O.As. by Jabalpur Bench of the Tribunal, the Tribunal remanded back the matter to the respondents KVS which resulted to filing of various writ petitions before the High Court of Madhya Pradesh at Jabalpur. The High Court of Madhya Pradesh at Jabalpur by an order dated 30.7.2005 rejected the above W.Ps. with liberty to the respondents therein to take all the contentions available in the replies of the show cause notices. In Para 9 of the judgment, it was held that "On a careful consideration, we are of the view that it may not be necessary to remit the matters to the Tribunal. On account of the quashing of the orders of termination of deputation dated 18.11.2004, the petitioners are continuing as

"Principal-on-deputation". They will be entitled to continue as Principal unless their deputation comes to end or put to an end, in a manner known to law." Para 10 of the said judgment reads that "We are informed by the petitioners that the Sangathan is taking a fresh look into the entire matter as a large number of PGTs(340) were appointed as Principal on deputation and their termination will upset the functioning of the Institutions. If so, it is hoped that the Sangathan will consider all aspects before taking any further decision of action in the matter". It was also held that "for the reasons mentioned above, we find no reason to interfere with the order of the Tribunal in the cases of petitioners. Reserving liberty to raise all contentions if and when the Sangathan decides to re-initiate action for terminating the deputation and revert the petitioners, these petitions are disposed of."

9. As such, it is evidence that in the said judgment it was not decided as to whether the recruitment of PGTs as Principals were by direct recruitment or by deputation or by promotion.

10. The Jaipur Bench of the CAT in O.A. No. 27/2005 in Dr. Amita Chandra and Ors. v. Union of India and Ors. took a contrary view in their order dated 18.4.2005. It was held that the appointment on deputation on promotion being de hors the rules, the O. As. were rejected and the termination order of the PGTs as Principal was upheld. It was held that the applicants are highly educated persons and are aware of the recruitment rules, the language of the advertisement envisaged in all their appointment letter. They are expected to understand the terms and conditions of the appointment before joining on deputation. They also know pretty well that no appointment by deputation could made to the post of Principal. It was held that the law on this point is well settled as once a particular mode of doing a thing is provided, other modes of doing it are necessarily forbidden and that thing is required to be done through the mode provided or not at all. Therefore, the termination of the appointment by the respondents were held valid. The Allahabad Bench in O.A. No. 1606/04 stayed the impugned order.

11. In view of the conflicting decisions of the various Benches, it is worthwhile to deliberate on two points, first is the doctrine of precedence and the second is whether the appointment made was by direct recruitment or by deputation or promotion. It has been argued by the earned Counsel for the petitioners that there is no conflicting decision which is diametrically opposite to the ratio laid down by the High Court of Calcutta by the Delhi High Court, which issue is no more res integra and the ratio decidendi of Calcutta High Court would mutatis mutandis extend to the present case. The issue is whether the decision of the Calcutta High Court is binding or it is rendered per incurium of the decision of Madhya Pradesh High Court and non-consideration of the reasoning of the other Benches.

12. So far as the doctrine of precedence is concerned, it has been elaborately discussed by the Apex Court in Delhi Development Authority v. Ashok Kumar Behal . The law laid down by the High Court is binding on all Courts within its jurisdiction. The Full Bench of the Tribunal in Dr. A.K. Dawar v. Union of India and Ors. (O.A. No. 555/2001) by an order dated 16.4.2004 has clarified the decision to be followed in the issue of conflicting decision of different High Courts which can be summarised as under:

(a) That if there is a judgment of the High Court on the point having territorial jurisdiction over the Tribunal, it would be binding.

(b) That if there is no decision of the High Court having territorial jurisdiction on the point involved but there is a decision of the High Court anywhere in India, the Tribunal would be bound by the decision of that High Court;

(c) That if there are conflicting decisions of the High Courts including the High Court having the territorial jurisdiction, the decision of the Larger Bench would be binding; and

(d) That if there are conflicting decisions of the High Courts including the one having territorial jurisdiction then following the ratio of the judgment in the case of Indian Petrochemicals Corporation Limited (supra), the Tribunal would be free to take its own view to accept the ruling of either of the High Courts rather than expressing third point of view.

From the ratio of above points it is obvious that a decision of High Court having no territorial jurisdiction shall be a precedent over any Bench of the Tribunal, if there is no conflicting decision of the High Court under whose jurisdiction the Bench concerned is functioning.

13. The earned Counsel for the respondents have not brought to our notice any of the judgment passed by the Jharkhand High Court. As such, the decision of the High Court of Calcutta in this matter would be binding on us.

14. The next point to be discussed is regarding the mode of appointment. KVS is a registered society under the Societies Registration Act and the Sangathan Administers the scheme of Kendriya Vidyalaya formulated by Govt. of India, Ministry of Hirnan Resources and Development. The Board of Governors of KVS is the executive body through which KVS discharges its responsibilities to fulfill the objectives set forth in the memorandum of association. The Board of Governors is headed by the Chairman. Then there are Deputy Chairman, and Vice-Chairman. Then comes the Commissioner. After the Commissioner is Joint Commissioner followed by Deputy Commissioner, Education Officer etc. After the Education Officer comes the Principal who is the administrative head of the Vidyalaya and acts as Drawing and Disbursing Officer of the staff employed in the Vidyalaya. After the Principal comes the Vice-Principal followed by PGTs etc. Article-11 of the code describes the powers and functions of the Board of Governors. Sub-Article (III) Clauses (b) and (c) of Article-11 provide for procedure for appointment of officers and staff of the Sangathan, the schools and other institutions managed by the Sangathan. Sub-clause (c) provides for the tenure of appointment, emoluments, allowances, rules of discipline and other conditions of service of the officers and stiff of the Sangathan. For appointment to the post of Principal these rules are applicable. In exerciste of the powers vested on the Board of Governors under Rule 22 of the Rules of the Sangathan, the Board of Governors framed the rules which are known as Kendriya Vidyalaya Sangathan (Appointment, Promotion,.Seniority etc.) Rules, 1971. There is no dispute regarding the applicability of these rules in case of appointment to the post of Principal. Under the said Rules, there is a schedule and under the said schedule Recruitment Rules for the post of Principal have been framed, wherein it is clearly provided that the post of Principal is a selection post and it was also been provided that the appointment to that post can be made by direct recruitment and also by way of promotion. 66.2/3% of the posts of Principal may be filled up by direct recruitment on the basis of all India advertisement and 33.1/3% of the vacancy may be filled by promotion. It has also been indicated that if suitable candidates are not available through a selection procedure, the vacancies may be filled up by deputation from employees of autonomous organisation provided such candidate fulfills the prescribed qualifications for direct recruit.

15. In the instant case, the petitioners have been recruited to the post of Principal on the basis of all India advertisement after following a prescribed procedure already referred to earlier. They have been, impliedly, put on probation also. Thus the petitioners have been recruited in accordance with valid recruitment process. Apart from that, Article 37 of the Code also provides that appointment to the post of Principal and all teaching and non-teaching staff except the post of Group-D for the Vidyalayas shall be made centrally and on the basis of all India advertisement.

16. The word 'deputation' has different connotation in service laws as compared with the dictionary meaning of the same. Normally, deputation means service of the employee outside the parent department and after the expiry of the period of deputation, the dcputationist normally conies back to the parent department. There cannot be any deputation within the same department. The word 'deputation' is not a concept which is akin to recruitment or appointment on promotion on the basis of selection. On being newly recruited to a post a person may be placed on probation. Normally when a person is sent on deputation there is no severance of ties with the parent department. On the other hand, he maintains a lien in his parent department unless he is absorbed in the new department where he has gone on deputation. There is no provision of probation in case of deputation.

17. Rule 10 of the Rules of KVS deals with probation which reads as under:

10. Probation

(1) Every direct recruit shall initially be appointed on probation. The period of probation shall be two years from the date of appointment, which may be extended by another two years by the Competent Authority for reasons to be recorded in writing.

(2) Deleted.

In the appointment letter it has been clearly indicated that if persons are selected us principal they would be on probation for a particular time. In Sham Sher Singh v. State of Punjab , it has been held that if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper inquiry and without giving a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to removal of service within the meaning Article 311(2) of the Constitution. The respondents have not brought any allegation or inefficiency on the part of the applicants.

18. The concept of deputation has been explained in great detail in Sohan Lall v. Union of India 1978 Labour and Industrial Cases 1198. In that case it was held that the concept of deputation in consensual and involves a voluntary decision of the employer to lend the services of his employee and the corresponding acceptance of such services the borrowing employer. It may also involve the consent of the employee who is to go on deputation. There can hardly be any direct recruitment by way of deputation. In all cases of deputation there must be a borrowing department and a lending department, otherwise the concept of deputation cannot be worked out. It is worthwhile also to refer to the Judgment of the Supreme Court on the question of deputation in the case of State of Punjab and Ors. v. Inder Singh and Ors. where the concept of deputation has been explained at length. The Supreme Court has also clarified the decision in the case of Umapati Choudhary v. State of Bihar and Anr. .

19. In view of the decision of the Apex Court it is obvious that it may not be said that the appointments of the PGTs as Principals has been made on deputation.

20. The relationship between employer and employee in Government service or in services under the 'State' or statutory corporation is not governed by the pure relationship of master and servant and the relationship is not purely contractual. Such relationship is governed by statues which confer on the employees a status under the relevant rules. This position has been calcified in the case of Roshan Lal Tandon . This position was again reiterated in another Constitution Bench Judgment rendered in the case of Delhi Transport Corporation v. DTC. Mazdoor Congress . Under the code or under 1971 Rules, there is no provision under which a person who is promoted to a selection post on the basis of a selection process and interview can be said to have been promoted on deputation.

21. It is clear from the discussions made above that the concept of promotion to a selection post on the basis of a selection process and the concept of deputation are contradictory in terms. So the fact that the petitioners, albeit highly literate, accepted promotion to the post of Principal on deputation without any objection does not matter. The agreement of the parties, if there was any, is not of much consequence here.

22. Moreover, unless an employee is threatened with disciplinary proceedings, denial of promotion or other prejudicial acts he does not question the strict legality of an offer of promotion given by the authorities. When a promotion is offered to them, they have either to accept it without questioning the legality of the terms on which it is offered or to refuse the same. However, any refusal on the part of the petitioners or any hesitation to accept the offer is very likely to doom their fate in the matters of promotion. Hence, just because the petitioners did not object the word 'deputation' in their promotion orders cannot be taken as a plea in the impugned order of termination.

23. As such, the petitioners who have been promoted to the post of Principal on the basis of a valid selection process and continued to work as principal for a couple of years without any allegations cannot be asked to go, merely on the basis of administrative decisions. This is fundamentally opposed to the principle of rule of law which is enshrined under Article-14 of the Constitution. This position has been pointed out by the Constitution bench of the Supreme Court in S.G. Jaisinghani v. Union of India .

24. The main contention of the applicants are that they had been appointed by a regular selection process though the contentions of the respondents are that the appointment on deputation is no mode for appointment and the Commissioner having exceeded his authority de hors the rules and without seeking the approval of the Chairman of the KVS and as he resorted to regular appointment cannot be deemed as regular appointment of the applicants on direct recruitment basis as he has not followed the proper procedure. The earned Counsel for the respondents have not been able to show that Calcutta High Court did not take in account the contentions made in the Jaipur bench of the Central Administrative Tribunal or the views of the respondents and that the decision of the Calcutta High Court is "per incuriam". This concept has been very well elaborated in Halsbury's Laws of England and has been explained by the Apex Court in the State of Bihar v. Kalika Kuer .

25. In view of the facts discussed above, it appears that the appointments were made on direct recruitment basis. A direct recruitment is inferred from the orders passed by the respondents when they were appointed by Screening Committee after conducting the tests and interviews and thereafter the candidates were placed on probation by the Commissioner who had jurisdiction to appoint Principals on direct recruitment basis. The view that the Board of Governors had reviewed the orders as there was no approval of the Chairman of the KVS is their internal matter and would not render the appointments as nullity orde hors the rules as the power to appoint vests with the Commissioner. The Calcutta High Court has held that the applicants are recruited by way of direct recruitment on all India advertisement and that Article 13 would not apply and under Rule 22 of the Rules of KVS, the appointments made are in accordance with the rules has to be treated as direct recruitment overruling the deputation on the ground that deputation cannot be intra KVS and cannot be a mode except 'failing which clause' under promotion. Once the appointments have been made their services cannot be dispensed with executive orders. The Apex Court in Ganesh Santa Ram v. SBI. 2005(2) SLJ 246 (SC) has held that even in an administrative action doctrine of justice is applicable.

26. In view of the facts mentioned above, we are in agreement with the decisions made by the Calcutta High Court in W.P. No. 63/05 with other relevant judgments by the Principal Bench of CAT in O.A. No. 299/2005 and O.A. No. 2801/2004 decided on 28.10.2005. As such, we do not subscribe to the decision taken by the respondents nor we accept their justification. We hold that the appointment of the applicants were on direct recruitment basis and their services cannot be dispensed with in a manner which is unknown to law. It is, therefore, directed that the petitioners are entitled for continuity of service. The O.A. is allowed. The impugned order is set aside. Respondents are also directed to restore back the applicants to the post of Principal, if reverted, with continuity of service and difference of wages, within a period of three months from the date of receipt of a copy of this order. No costs.