R.S. Misra vs Uoi & Ors. Through The ...
2014 Latest Caselaw 3569 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELH
%                                       DECIDED ON: 06.08.2014
+     W.P.(C) 7869/2007
      R.S. MISRA                                      ..... Petitioner

                         Through:      Ms Deepali Gupta, Adv for the
                         petitioner.
                         versus

      UOI & ORS THROUGH THE COMMISSIONER KENDRIYA
      VADYALAYA SANGTHAN              ..... Respondent

Through: Mr S. Rajappa and Dr. Puran Chand, Advs for respondents.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. The petitioner is aggrieved by an order of the Central Administrative Tribunal (CAT) dated 29th August, 2006 in OA No. 2531/2005. He had claimed a direction to set aside the determination of the Review DPC of 14.03.2005 which resulted in the denial of his claim for promotion to the post of Vice-Principal.

2. The petitioner had joined the respondent (hereinafter referred to as "KVS") as a Trained Graduate Teacher (TGT) on 26.07.1972; he was appointed as Post Graduate Teacher (PGT) on 02.07.1976. He was terminated from the service from KVS on 11.02.1988; that order

W.P.(C) No.7869/2007 Page 1 was questioned before this Court which led to his reinstatement on 30.10.2000 with all consequential benefits. He was also granted senior scale on 02.07.1988. He complained that during the period he had been terminated, one Mrs Swaran Bakshi was promoted (junior in the cadre of PGT) as Principal in 1996. He approached the CAT on that score by way of OA No. 2520 of 2003, which was allowed on 18.05.2004; the CAT directed consideration of the matter having regard to the ACRs on record. This order was appealed but dismissed as withdrawn, by this Court. Subsequently, after contempt proceedings were initiated, KVS granted the petitioner senior scale but did not promote him to Vice-Principal by its order dated 14.03.2005. In these circumstances, the petitioner approached the CAT once again which led to the impugned order. His efforts to seek the review of the order was unsuccessful; the review application was dismissed.

3. It is urged that the impugned order has failed to take note of the previous proceedings and has merely gone by the minutes of the meeting of Review DPC. Learned counsel highlighted that consideration of the service in respect of five years between 1984 and 1988 was allegedly taken into consideration. According to the learned counsel for two years, 1984 and 1985, the petitioner had scored "Good" and "Very Good" rating and for the year 1986 too, he scored "Very Good" rating from his borrowing foreign employer, since he had gone on deputation. It was submitted that "Average" rating in 1987 and 1988 was never communicated to him.

W.P.(C) No.7869/2007 Page 2

4. Learned counsel relied upon the pleadings in the Review Petition to urge that the submission with respect to the representation, against such adverse remarks not being disposed of was not taken note of. Learned counsel for the respondent-KVS urged that the Review DPC strictly went as per the record as it existed which it was directed to go into in view of CAT's previous order of 18.05.2004. Counsel urged that reconsideration of adverse remarks in ACRs, which recorded a drop in the performance should not arise in this case since the judgments of the Supreme Court in Dev Dutt v. Union of India 2008 (8) SCC 725 and Abhijit Ghosh Dastidar v. Union of India 2009 (16) SCC 146were rendered after 2004.

5. This Court has carefully considered the submission and the records. The basic grievance of the petitioner was that in 1996 a teacher junior to him in the cadre of PGT was promoted as Vice- Principal and he ought to have been given the same benefit. Quite naturally, the KVS did not have the benefit of ascertaining his performance for the 12 year period that he was out of service between 1988-2000. Before this, the relevant period for assessing his suitability was 1984 to 1988. While, it cannot be disputed that the previous order of the CAT did not expressly direct the re-consideration of ACRs based upon the representation by the petitioner, it is equally a matter of fact that the adverse remarks indicating drop in the performance for 1987 and 1988 were never communicated. The Review DPC which undertook the exercise in this case, therefore, naturally looked into the same record and perhaps reached the same result. In the Review

W.P.(C) No.7869/2007 Page 3 Petition, there are clear pleadings to the effect that the writ petitioner represented against the adverse ACRs for the period 1987 and 1988. Although the decision in Dev Dutt (supra) and Abhijit Ghosh Dastidar (supra) were rendered after 2004, we cannot accept KVS's submissions that the law declared applies prospectively. That is neither the purport nor the intent of those two judgments andnothing in the declaration of Supreme Court leads us to that conclusion. Consequently, the impugned order is hereby set aside. The respondent KVS is directed to deal with the representations of petitioner and communicate its decision as to whether they, or either of them, is accepted, and, based upon their outcome, carry out the Review DPC. In case, the petitioner is found eligible, the promotion would be on the basis of the next below rule. The entire exercise shall be carried out within eight weeks.

The writ petition is allowed.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) AUGUST 06, 2014 BG

W.P.(C) No.7869/2007 Page 4