Delhi High Court

Kendriya Vidyalaya Sangathan vs Edunuri Moundenar Reddy on 2 November, 2016

$~34.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                WRIT PETITION(CIVIL) NO. 10208/2016


                                     Date of decision: 2nd November, 2016


        KENDRIYA VIDYALAYA SANGATHAN                       ..... Petitioner
                          Through Mr. S. Rajappa, Advocate.

                          versus

        EDUNURI MOUNDENAR REDDY                           ..... Respondent

Through Nemo.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MS. JUSTICE SUNITA GUPTA

SANJIV KHANNA, J. (ORAL):

Having heard learned counsel for the petitioner-Kendriya Vidyalaya

Sangathan, we do not find any reason to interfere with the impugned order

dated 17th May, 2016 passed by the Principal Bench of the Central

Administrative Tribunal (Tribunal, for short) in OA No. 2363/2008.

2. The respondent- Edunuri Moundenar Reddy was appointed as a

Post-Graduate Teacher in Kendriya Vidyalaya Sangthan in 1986. From

July 1997 to July 2001, he was sent on deputation as Principal, Navodaya

Vidyalaya. Subsequently, he was promoted to the post of Principal in

Kendriya Vidyalaya Sangthan by transfer on deputation vide letter/order

dated 12th/13th June, 2001. This promotion by way of transfer on

deputation was found to be contrary to the Recruitment Rules and

consequently vide order dated 24th/26th June, 2003, the respondent was

reverted to the post of Post-Graduate Teacher.

3. This reversion, when challenged by the respondent in OA No.

163/2003, was rejected by the Gauhati Bench of the Central Administrative

Tribunal vide order dated 2nd December, 2004. The order records that the

respondent's claim that he was promoted to the post of Principal on regular

basis was incorrect, for the said promotion was de hors and contrary to the

Recruitment Rules. Further, the appointment by way of transfer on

deputation would not confer any right to claim regularisation. Lastly, the

reversion order dated 24th/26th June, 2003 being non-stigmatic, was not an

adverse order.

4. The respondent had filed Writ Petition (C) No. 2007/2005 before the

Gauhati High Court, which was dismissed vide order dated 20 th February,

2007. The dismissal order refers to the Recruitment Rule position and the

irregularities committed. The promotions were without ensuring adequate

and mandated reservation. Appointment as Principal on deputation basis

was for a period of one year, extendable for a maximum period of five

years. The period of deputation could be curtailed at the sole discretion of

the Commissioner, Kendriya Vidyalaya Sangthan. On such termination,

the respondent would be reverted to his parent department or to the feeder

post. The respondent having joined as Principal on deputation basis was

fully aware and bound by the said terms.

5. Apparently, other teachers/Vice Principals, who had been promoted

to the post of Principals by way of deputation on transfer, had succeeded

before the Tribunal. Thus, there were conflicting judgments. The

reversions had led to wide spread resentment and dissatisfaction. The

Chairman of Kendriya Vidyalaya Sangthan, upon consideration, as an

ameliorative issued circular dated 19th September, 2007, which records the

reason and history for the earlier promotions to the post of the Principal on

deputation basis, and introduced a new policy for regularisation. As the

entire circular is relevant, we would reproduce the same:-

"A decision was taken by the Chairman, KVS in November, 2004 that the appointments of 322 PGTs/Vice Principals as Principals on deputation basis made by the then Commissioner, KVS were illegal because, the then Commissioner had not followed Article 14 & 16 of the Constitution of India in so far as filling up of the post of Principals meant for SCs, STs, OBCs and unreserved categories both by way of direct recruitment and also through promotion. The then Commissioner had also regularised the services of such deputationist Principals against the posts meant for direct recruits. To set this position right, Chairman, KVS had taken the decision as stated above. Accordingly, a number of Principals who were appointed as such were reverted to their substantive posts namely as PGTs/Vice Principals and also repatriated to their parent organisations.

That various persons had challenged this decision of the Chairman, KVS in various courts/ CATs. Some of the courts have rendered judgment in favour of the aggrieved persons to the effect that they ought to be treated as regularly recruited Principals from the date they were initially appointed as Principals on deputation basis. However, many of the courts including certain high courts have yet to decide on the issue as the matters are still pending consideration.

That in order to give a quietus to the entire issue the Chairman, KVS has now taken a decision to comply with the decision of the courts/CATs which have rendered judgments in favour of the aggrieved Principals and also to withdraw those cases filed by KVS which are pending before High Courts.

It is further stated that the decision of the Chairman, KVS which affected 322 Principals in effect means that all those persons who were appointed as Principals in various KVs and who were reverted to their substantive posts would be considered as regularly appointed Principals with effect from the date they were initially appointed as such.

Accordingly, it is hereby notified by issuing this circular that in order to give effect to the decision of the Chairman, KVS, the undersigned, being the Appointing Authority for Principals in KVS, grants approval for regularising the services of 306 Principals (i) Repatriated to substantive posts 32+4=36; (ii) Promoted to the post of Principal 1+4=5; (iii) Regularised deputationists =119; (iv) Yet to be regularised 145+1=146)} who were initially appointed on deputation basis and who continued to work as such or as PGTs/Vice Principals on their reversion. It is further approved that those Principals who were regularised to the post of Principal by the then Commissioner, KVS and who were reverted to their substantive posts and who have either got judgments in their favour from courts or not would be accorded the same treatment

of being recognized as regularly appointed Principals. It is further stated that wherever court cases filed by KVS are pending on the issue of regularisation of Principals, they will be allowed to be withdrawn paving way for the regularisation of party respondents in those cases. It is further clarified that all those persons referred to in this circular would be eligible for all consequential benefits upon regularisation in KVS from the date of joining on initial appointment on deputation basis and a separate communication to this effect would be issued to the individuals concerned. It is also stated that the undersigned is competent to give further instructions to give effect to this circular. "

The circular records that the earlier Chairman in November, 2004

had made appointments of 322 PGTs/Vice-Principals/Principals on

deputation basis. The appointments were made contrary to Articles 14 and

16 of the Constitution as the posts meant for reserved category and direct

recruitment category were filled up by promotion and by candidates

belonging to general category. Ergo, it was decided that the teachers,

promoted as Principals on deputation, would be reverted to their

substantive post as Post-Graduate Teachers or Vice-Principals. They were

to be repatriated to their parent organisations. However, a number of

courts had rendered judgments in favour of the said persons to the effect

that they ought to be treated as regularly appointed Principals, from the

date they were initially appointed as Principals on deputation basis.

Paragraph 2 of the circular notes that many courts, including certain High

Courts, were yet to decide the matters, which were pending consideration.

The last but one paragraph thereafter records the decision taken by the

Chairman being the appointing authority of the Principals. It was decided

to grant approval for regularisation of services of 306 Principals, who were

initially appointed on deputation basis and thereafter were reverted to the

post of PGT and Vice-Principals. Their appointments as Principals would

be regularised. Importantly, it was stipulated that the decision would be

effective whether or not the said employee had got a judgment in their

favour from the court or not. In other words, it was decided to universally

and equally apply the said circular to all teachers/ vice principals, who

were appointed as Principal on deputation basis, whether or not they had

succeeded in the litigation. All were treated alike. Least there be any

confusion, we would like to reproduce the relevant sentence used in the

said circular once again:-

"It is further approved that those Principals who were regularised to the post of Principal by the then Commissioner, KVS and who were reverted to their substantive posts and who have either got judgments in their favour from courts or not would be accorded the same treatment of being recognized as regularly appointed Principals."

A reading of the quotation would show that a conscious decision was

taken to give benefit of regularisation to all employees, who were

promoted as Principal on deputation basis whether they had a decision in

their favour from the courts or not. This circular, according to us, gave a

fresh cause of action to the respondent. In terms of said circular, he could

seek regularization as a Principal in spite of the adverse decisions in the

OA No. 163/2003 decided by the Gauhati Bench of the Central

Administrative Tribunal on 2nd December, 2004 and when Writ Petition

2007. The effect of the circular was not examined in the said decisions,

which were earlier in point of time. These decisions, therefore, would not

curtail and deny the right of the respondent to rely upon the circular and

stake his claim for regularisation. It will be wrong and unjust not to grant

the benefit of the said circular, which expressly states that the same would

be applicable whether or not there is a court decision in favour of the said

employee. The circular itself is not under question or doubt. It has not

been withdrawn or recalled. Others similarly situated as the

respondent who were promoted as principals on deputation basis have got

the benefit.

6. After the said circular was issued, the respondent had filed the

second OA No. 2165/2007, which was disposed of by the Principal Bench

of the Central Administrative Tribunal vide order dated 30th April, 2008 to

the following effect:-

"This OA is disposed of with a direction to the respondents to treat the present OA as a representation of the applicant and to consider his claim by way of extending the benefit of Circular dated 19.09.2007, by passing a speaking order within a period of two months

from the date of receipt of a copy of this order."

7. It is noticeable that the Tribunal did not dismiss the OA on the

ground that it was barred by principle of res judicata. The direction was to

treat the OA as a representation and consider the claim of the respondent

for extending the benefit of circular dated 19 th September, 2007 by passing

a speaking order. This direction and order was not challenged by the

petitioner and has attained finality.

8. By order dated 10th June, 2008, the petitioner rejected the

respondent's representation and claim for regularisation as a Principal

holding that the respondent had already been repatriated to the feeder post,

i.e., Post-Graduate Teacher in 2003 and consequently the circular dated

19th September, 2007 was not applicable to him. The case of the

respondent, therefore, did not fall within the scope of the circular dated 19th

September, 2007. Rejection and dismissal of the OA No. 163/2003 and

W.P. (C) No.2007/2005, was not the reason and ground for rejecting the

representation. The exact reasoning and ground given in the order dated

10th June, 2008 passed by the petitioner reads as under:-

"Whereas the request of the applicant was considered by the undersigned but could not be acceded to as the benefits under circular dated 19.09.2007 are applicable to those candidates (323) who were affected by the decision of the Hon'ble Chairman, KVS in November, 2004 as quoted in the Para 1 of the said circular. As Shri E.M. Reddy was repatriated to his feeder post of PGT (Chem.) in 2003, the circular dated 19.09.2007 is

not applicable in his case. It is clarified that the case of Shrif E.M. Reddy does not fall within the scope of consideration of circular dated 19.09.2007 and, therefore, no benefit could be granted to him."

The aforesaid reasoning is contrary to the circular dated 19 th

September, 2007. The said circular specifically states that teachers, who

had been promoted as Principals on deputation basis and had been

subsequently repatriated, would be equally granted and given the same

benefit. We fail to understand how the order dated 10th June, 2008 had

interpreted the circular dated 19th September, 2007, contrary to the clear

and plain language.

9. The respondent in these circumstances was compelled to approach

the Tribunal by way of OA No. 2363/2008. This OA was initially disposed

of vide order dated 8th May, 2009 recording as under:-

"Heard the learned counsel for the parties.

2. We have been told by learned counsel for respondents that when a similar view was taken to extend the benefits of circular dated 19.9.2007 to the persons falling beyond the ambit of 322 Principals by this Tribunal and was further affirmed by the High Court of Delhi, SLP (K.V.S. v. Pramod Saxena) was filed by the respondents in which the Apex Court has stayed the operation and SLP is awaiting disposal.

3. In the light of above, we dispose of this OA with a direction to the respondents to extend the benefits of aforesaid circular upon the applicant on outcome of the sub judice SLP before the Apex Court. It is, however, observed that the applicant shall be at liberty to revive the present OA on non-compliance.