Jai Prakash Singh Tomar vs Govt. Of Nct Of Delhi & Ors
2019 Latest Caselaw 3280 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                        Date of Decision: 18.7.2019

%      W.P.(C.) No. 6339/2019

JAI PRAKASH SINGH TOMAR                          ..... Petitioner
                   Through:           Mr. M. A.Niyazi, Ms. Anamika Ghai
                                      Niyazi and Mr. Manish Kumar,
                                      Advocates.
                          Versus

GOVT. OF NCT OF DELHI & ORS.             .....Respondents
                   Through: Ms. Avnish Ahlawat and Ms. Palak
                             Rohmetra, Advocates.
                             Mr. Shashi Pal Singh (OSD) and
                             Mr.Santosh Kr. Sahni (VP) from
                             Department.
    CORAM:
    HON'BLE MR. JUSTICE VIPIN SANGHI
    HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

VIPIN SANGHI, J. (ORAL)

CM No.26996/2019

Exemption allowed subject to just exceptions.

The application stands disposed of.

W.P.(C.) No. 6339/2019

1. The petitioner assails the order dated 5.4.2019 passed by the Tribunal in OA No. 1091/2019. The Tribunal has rejected the said Original Application preferred by the petitioner. At the same time, the Tribunal has observed that the non-extension of the term of re-employment of the

petitioner shall not be treated as a stigma upon him.

2. The petitioner while serving as a Principal in the respondent's school superannuated at the age of 60 years on 31.7.2017. He was granted re- employment for one year w.e.f 26.8.2017. He completed his first year of extension of re-employment. Before expiry of the said extension period, he further applied for re-employment for second consecutive year. On 19.9.2018, the respondent issued the circular with regard to the methodology for assessing the suitability of retiring principals and vice-principals for re- employment after superannuation. The petitioner's application for re- employment was rejected, vide order dated 16.1.2019. It was stated in this letter that on the basis of the enquiry report submitted by the committee, the Competent Authority is of the view that the integrity of Sh. Jai Prakash Tomar, Principal (Retired) is not only in doubt, but the integrity of whole department is at stake. A reference was made to incident which happened during conduct of DSSSB Examination. The petitioner preferred an appeal against the said decision which too was rejected by the respondents on 11.3.2019. Consequently, he preferred the Original Application which has been dismissed by the Tribunal. The reasoning found in the order of the Tribunal is as follows:-

"4. Once the applicant has retired from service, he has no right to be reemployed. It is only on satisfaction of the respondents, and the requirement in the Department that the feasibility of reemploying a retired person would be considered. The applicant, no doubt, was reemployed. The extension thereof is once again, in the discretion of the Department.

5. To be objective in the context of extension of term, the

respondents verified various events that have taken place after reemployment of the applicant. It was observed that the material available would indicate that the integrity of the applicant is doubtful. This appears to have been stated to ensure that the refusal to extend the term is not treated as without basis or without any reason.

6. On O.A No. 595/2016, the term of reemployed Principal was not extended. Inquiry was also conducted into the allegations against her. The respondents therein relied upon the judgment of Hon'ble Supreme Court in Rajendra Singh Verma V. Lt. Governor of NCT of Delhi (2011) 10 SCC 1 and the judgment dated 11.3.2016 of this Tribunal in O.A No. 4153/2014. In both the cases, it was categorically held that a retired employee does not have a right to be reemployed and the question of claiming extension as of right does not arise. However, those two judgments were ignored by stating that the facts are different. We do not find any general principle from the order dated 24.05.2016. On the other hand, the law laid down in Rajendra Singh Verma's case and in O.A.No. 4153/2014 is directly on the point."

3. The appellate order dated 11.03.2019 - wherein the earlier order dated 16.01.2019 merged, inter alia, reads as follows:

"Whereas, Sh. Jai Prakash Singh Tomar, Principal (Retd.) had filed an appeal dated 31.01.2019 before the Director of Education for extension of re-employment. Sh. J.P.S. Tomar, Principal was retired from the Government service on attaining the age of superannuation on 31.07.2017. Thereafter, he was granted re-employment for one year w.e.f. 10.08.2017 to 31.07.2018. On expiry of first term of re-employment, the officer applied for extension for his re-employment.

Whereas, district authorities has that the result of class

X (for 2017-18) declined by 20% from the previous year i.e. 2016-17. So keeping parity with the Department, earlier decision i.e. not considering the cases of re- employment/ extension of re-employment having more than 10% decline in results (Class XII and X) from the previous year, the file was forwarded to the Director of Education for seeking advice in the matter.

Whereas, it has also come to notice in District Office, a number of complaints were received against Sh. J.P.S. Tomar, Principal (Retd.) on various allegations including of attending school unauthorized to act as Centre Superintendent in DSSSB duty after expiry of first year re-employment and without issue of 2nd year re- employment by the competent authority. The DDE (North) ordered an enquiry into the matter and a team of inquiry committee constituted consisting Mr. R.N. Giri, Principal, GSV No. 3, Shakti Nagar and Mr. Devender Kumar, Vice Principal, SBVM, GSV, Shankracharya Marg.

Whereas, the Enquiry Committee enquired into the matter and established the fact that Sh. J.P.S. Tomar, Principal (retire) performed the duties of Centre Superintendent in DSSSB Exam Duty and all other points of complaints were not established by the Enquiry Committee.

Whereas, while considering the said enquiry report, the RDE (Central/New Delhi) recorded that "there is lack of supervision in schools by DDE (Zone), surely a retired Principal cannot enter school premises which has come to her notice only through the complaint". Later on, a warning was issued to DDE (Zone-07) on 17.10.2018.

Whereas, the DDE (North) as well as RDE (Central & New Delhi) considered the matter of extension of re-

employment and the competent authority i.e. RDE (Central) rejected the claim of extension of re- employment of the officer and the same was conveyed to Sh. Jai Prakash Singh Tomar, Principal (retired) by the DDE (North) vide communication dated 16.01.2019 stating thereby that on the basis of the enquiry report submitted by the Committee, the competent authority is of the view that the integrity of Sh. Jai Prakahs Singh Tomar is not only in doubt but the integrity of whole department will be at stake in case of any mishappening during the conduct of DSSSB exam."

Whereas, the contentions of Sh. J.P.S. Tomar, Principal (retd.) made vide appeal under reference is untenable and unacceptable as he is still unable to appreciate the simple fact that on 05.08.2018 that is the date on which he performed his duties as Centre Superintendent in DSSSB Examination on behalf of school centre namely SBV Timarpur when his identity and status on said date was of a retired Principal and also he was no more on re-employment in the government and his term of re- employment of 1st year had already been expired on 31.07.2018.

Whereas, considering the above facts and records of the case, it is clear that there has been a grave misconduct on the part of Sh. J.P.S. Tomar, Principal (Retd.) as he performed the duties of Centre Superintendent in DSSSB Exam Duty on 05.08.2018 despite the fact that he is no more a Government Servant after completing the 1st year re-employment up to 31.07.2018 and in case of any mishappening, the department will have to owe the responsibility just because of lack of irresponsible behavior of Sh. J.P.S. Tomar, retired Principal, he performed the duties of Centre Superintendent on 05.08.2018 for the reasons and on what capacity, best known to him.

Keeping in view all facts and circumstances of the case, the appeal filed by Sh. J.P.S. Tomar, Principal (Retd.) is found devoid of any merit and hence, the same has been rejected by the Competent Authority."

(emphasis supplied)

4. Thus, it would be seen that apart from the incident involving the petitioner - wherein he performed duties of Center Superintendent in DSSSB Exam Duty on 05.08.2018, the appellate authority also took into account the results that the school - where he functioned as principal, produced in the Board examinations.

5. The submission of learned counsel for the petitioner is that when his result is viewed in the overall context, it is found that he has done better than others - in respect of whom he has sought to place on record the information that he has gathered under the Right to Information Act. Learned counsel for the petitioner has also argued that another person namely one Ms. Kiran Singh, Principal, whose result suffered drop of - 58.23%, has been granted extension. In our view, such statistical data is of no avail to the petitioner. Since, admittedly, in the school where he was functioning as the Principal on extension, there was a variation of -19.54% in the 10th Class Board Examination, he had no right for any further consideration for extension.

6. In our view, the petitioner is not entitled to seek negative equality. As observed by the Tribunal, there is no vested right in a superannuated employee to seek extension. His only right is to seek consideration of his case. In the present case, that consideration has taken place.

7. The order dated 16.1.2019 passed by the respondents makes an observation with regard to integrity of the petitioner being doubtful. In our

view, such an observation was not called for and could not be made without holding an enquiry against the petitioner with his participation under the discipline rules. We, therefore, expunge the said observation against the petitioner. However, considering the fact that, admittedly, there has been a drop of nearly 20% in the Class 10th result, in the school where the petitioner was functioning as a Principal during his extension period, the decision of the respondents to decline further extension to the petitioner cannot be said to be either arbitrary or illegal.

Dismissed.

VIPIN SANGHI, J.

RAJNISH BHATNAGAR, J.

JULY 18, 2019 ib/jitender