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CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH
V.K. Majotra, Shanker Raju, JJ.
S.K. Sharma and Ors. and Mrs. Radha G. Krishnan and Ors. – Appellants.
Vs.
Kendriya Vidhyalaya Sangathan through the Commissioner and Ors. – Respondent
O.A. Nos. 2801 of 2004 and 299 of 2005
Decided On : 28.10.2005
The Tribunal held that the appointment of PGTs as Principals on deputation was de hors the rules and that the applicants were entitled to continue in their appointments unless they were removed/dismissed in accordance with a valid proceeding according to law. The Tribunal also held that the decision of the Calcutta High Court was binding on it and that the decision of the Jaipur Bench of the Tribunal was per incuriam.
Fact of the Case:
The applicants, who were PGTs working in different streams in Kendriya Vidyalaya Sangathan (KVS), had challenged the respondents' orders whereby their deputation as Principal had been terminated and they had been repatriated to their substantive post of PGT. The applicants had been appointed on deputation basis initially for a period of one year with maximum period extendable to five years. A few of PGTs were also appointed, working on deputation basis, against temporary posts in Kendriya Vidyalaya on probation for two years.
Finding of the Court:
The Tribunal held that the appointment of PGTs as Principals on deputation was de hors the rules and that the applicants were entitled to continue in their appointments unless they were removed/dismissed in accordance with a valid proceeding according to law. The Tribunal also held that the decision of the Calcutta High Court was binding on it and that the decision of the Jaipur Bench of the Tribunal was per incuriam.
Issues: Whether the appointment of PGTs as Principals on deputation was de hors the rules? Whether the applicants were entitled to continue in their appointments unless they were removed/dismissed in accordance with a valid proceeding according to law? Whether the decision of the Calcutta High Court was binding on the Tribunal? Whether the decision of the Jaipur Bench of the Tribunal was per incuriam?
Ratio Decidendi: The Tribunal held that the appointment of PGTs as Principals on deputation was de hors the rules because there was no provision for deputation of PGTs to the post of Principal in the relevant rules. The Tribunal also held that the applicants were entitled to continue in their appointments unless they were removed/dismissed in accordance with a valid proceeding according to law because they had been appointed on deputation for a fixed period of time and their services could not be terminated before the expiry of that period without following the proper procedure. The Tribunal further held that the decision of the Calcutta High Court was binding on it because it was a decision of a higher court and that the decision of the Jaipur Bench of the Tribunal was per incuriam because it had failed to consider the relevant rules and case law.
Final Decision: The Tribunal allowed the applications and set aside the impugned orders. The respondents were 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 the order.
Shanker Raju, Member (J).
1. Having founded on similar facts involving an identical question of law, both these Original Applications are being disposed of by this common order.
2. In these Original Applications, Post Graduate Teachers (for short, PGTs) of Kendriya Vidyalaya Sangthan (for short KVS) have assailed respondents' orders whereby their deputation as Principal has been terminated and they have been repatriated to their substantive post of PGT. Orders passed by respondents terminating the services of the applicants, who had been regularized, have also been assailed.
BACKGROUND FACTS
3. 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 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, PGTSs, who were appointed on the post of Principal, about 140 of them had been regularized by appointment against temporary vacancies on probation.
4. About 20 Principles, few of them on regular basis assailed the decision of the Chairman whereby the appointment of 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 21.2.2004 by making 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.
5. On show cause notice issued to the applicants and pursuant to their replies resulted in dispensation of their services as a Principal and reversion to the substantive grade of PGTs, the order in the above OA 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 had not been adverted to by the Tribunal, the case was remanded back to the Tribunal for a reasoned finding on the grounds alleged in the MAs as well as in the OA 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 OAs.
6. At the outset, learned Senior Counsel of the applicant Shri G.D. Gupta contended that when deputation cannot be a mode of recruitment or advancement of PGTs, the appointment of the applicants though with a nomenclature of promotion is nothing but direct recruitment after qualifying the process in the wake of an advertisement issued, applicants' services cannot be dispensed with the repatriation cannot take place. Learned Counsel states that out of 13, 8 PGTs have been regularized and as regards general category candidates, it is stated that by an order dated 29.05.2001, due to emergence of vacancies in general category, around 84 PGTs have been appointed on temporary posts of Principal in KVS on probation for two years. It is stated that out of
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