1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1. A.T. Mishra & Ors. Vs. Union of India & Anr. D.B. CIVIL WRIT PETITION NO.3002/2005 2. R.C. Rastogi & Ors. Vs. Union of India & Ors. D.B. CIVIL WRIT PETITION NO.3345/2005 Date of order : 02nd May, 2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr. M. Mridul, Senior Advocate assisted by Mr. Ashok Choudhary ) for the petitioners. Mr. M.R. Singhvi for the ) Mr. P.S. Bhati for the respondents. ________ BY THE COURT:- (PER HON'BLE RAJESH BALIA, J.) Heard learned counsel for the parties. These two petitions had arisen in like circumstances at the instance of the respective petitioners, placed in the like position under the Kendriya Vidhyaliya Sangthan (Appointment, Promotion, Seniority, etc.) Rules, 1971. 2 WRIT PETITION NO.3002/2005 In this case, the petitioners, in all six in numbers, had been selected and appointed in pursuance of a notice issued in the employment news to the existing posts of Principals in 2001 and in the course of time the petitioners were fixed in the regular pay scale. However, the employment order used the expression “deputation” for such appointment. During the course of serving as Principals, the petitioners had also undergone the programme of induction course successfully. They were also issued certificate for having cleared training with regard to the disciplinary proceedings and account procedures, so also in basic course for Commissioners in order to Scout and Guide Programmes. Abruptly by the impugned order the services of petitioners amongst various other persons were terminated by treating their employment to be on deputation and considering it a policy decision not to continue the employment on deputation. This petition had directly been filed before this Court on 18th May, 2005 stating therein that some of the persons similarly situated approached the Central Administrative Tribunal at Jaipur within the jurisdiction of Rajasthan High Court, who rejected the original application and therefore, to suffer the same order and come before 3 this Court could have been a futile exercise. Taking note of the aforesaid facts, the petition was entertained on 23rd May, 2005 and interim order was passed for maintaining status quo as it existed on the date of admitting the writ petition which was subsequently modified on applications moved in that regard which are presently not concerned. While interim relief had been continued from time to time, it was informed to the Court on 5.4.2006 that the writ petition with respect to the same controversy is pending before different High Courts and also before the Supreme Court and, therefore, the matter was adjourned and ultimately vide order dated 25.1.2007 the Court directed that the case may be listed after the matter is decided by the Supreme Court. WRIT PETITION NO.3345/2005 The D.B. Civil Writ Petition No.3345/2005 is by two petitioners. The facts in their writ petition are on identical lines and need not be repeated. The said writ petition was admitted on 1.6.2005 and was connected with D.B. Civil Writ Petition No.3002/2005. 4 In the aforesaid circumstances, these two petitions have been listed on making a mention by the petitioners that the matter which was pending before the Supreme Court has since been decided, which had arisen from the interim orders passed by of the Bombay High Court. The following order has been passed by the Supreme Court allowing the interim order passed by the Bombay High Court to continue with the direction to dispose of the writ petition itself by the High Court as expeditiously as possible:- “Mr. Gopal Subramanium, learned Additional Solicitor General of India, appearing for the respondents, submits that when the interim order, as mentioned herein above, has been continuing for a considerable period of time, this Court may dispose of the special leave petition by requesting the High Court at Bombay to dispose of the writ petition as expeditiously as possible, preferably within a period of three months from the date of communication of the order by this Court. Such being the stand taken by the respondents, we extend the interim order granted by this Court on 7th March, 2006 till the disposal of the writ petition now pending before the High Court at Bombay. We also request the High Court to dispose of the writ application, as expeditiously as possible, preferably within a period of three months from the date of communication of this order. Registry of this Court is directed to communicate this order to the 5 High Court forthwith. It is in the aforesaid backdrop, when the matter was being heard, other cases pending at different stages arising out of the same episode by which services of the Principals appointed after due selection in pursuance of the very same notice, had been terminated, perhaps to create some vacancies for making way to fresh recruitments. The services of the Principals, who had been selected and appointed after due advertisement, had been brought to an end by treating them to be on deputation only and not as appointed against the regular posts. We shall presently notice that the controversy appears to be no more res integra and stands decided finally. The O.A. No.299/2005 and OA No.2801/2004 raising the same controversy had been filed before the Central Administrative Tribunal, Principal Bench, Delhi. The background in which the controversy arising can best be narrated in terms noticed by the order of the Principal Bench dated 28th October, 2005 disposing of the two applications by common order. 6 “In these Original Applications, Post Graduate Teachers (for short, PGTs) of Kendriya Vidhyalaya 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. The orders passed by respondents terminating the services of the applicants, who had been regularised, have also been assailed. The applicants, who are indisputably PGTs working on 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 extended 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 deputationsists, PGTSs, who were appointed on the post of Principal, about 140 of them had been regularised by appointment against temporary vacancies on probation. 7 About 20 Principals, 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 OA No.2801/2004 in Mrs. Radha G. Krishnan & Ors. Vs. Union of India & Ors., by an order dated 21.12.2004 by making an observation that applicants' appointments were 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 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 & Ors Vs. Union of India & Ors. By an order dated 21.5.2005, taking cognizance of the fact that in none 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 ground alleged in the Mas as well as in the OA and to determine the status of the applicants whether they were appointed on deputation 8 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 those OAs. At the outset, learned senior counsel of the applicant Shri G.D. Gupta contends that when deputation cannot be a mode of recruitment of advertisement 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 and repatriation cannot take place.” By detailed reasoned order, the Principal Bench of the Tribunal allowed the original applications in the following terms :- “In the result, for the foregoing reasons, we do not subscribe to the decision taken by the respondents and do not advert to their justification. We hold that appointments of the applicants were on direct recruitment basis and their services cannot be disposed with other than in accordance with laid down procedure under the rules with a valid proceedings. They are entitled for continuity of service. OAs are allowed. Impugned orders are set aside. Respondents are directed to restore back the applicants to the post of Principal, if reverted, with continuity of service and difference of wages, within a 9 period of three months from the date of receipt of a copy of this order. No costs.” There is no dispute about the fate of these two applications that the respondents have not challenged that order and the same has become final. Following the aforesaid decisions of the Principal Bench, Jharkhand Bench of the Central Administrative Tribunal allowed the similar original applications pending before it on 24th January, 2005 and quashed the impugned orders. The order of Jharkhand Bench of the Tribunal on being challenged before the Jharkhand High Court vide writ petitions No.1270/2005 and 2030/2003 was affirmed by the Court and dismissed the writ petition. The judgment of Jharkhand High Court has not been appealed and said judgment has also become final. Likewise the original applications moved before the Central Administrative Tribunal, Calcutta Bench by 14 applicants, who all were Principals of Kendriya Vidhyalaya Sangthan and one of whom has withdrawn the petition had challenged the order terminating their services by treating them to be on deputation was allowed and the Calcutta Bench of the Central Administrative 10 Tribunal by its order dated 18.1.2005 had quashed the order dated 18.11.2004 which is also challenged in two petitions before us. The Calcutta Bench of Tribunal vide its judgment dated 18.1.2005 quashed the order dated 18.11.2004 with liberty to the respondents namely KVS to take such action as may be deemed just and proper in accordance with law and Rules and hence, said part of the directions were challenged before the Division Bench of Calcutta High Court. The Division Bench of Calcutta High Court allowed the writ petition of such petitioners with the following directions :- “For the reasons discussed above, this writ petition succeeds. The authorities of KVS cannot treat the petitioners' promotion to the post of Principal of different schools as promotion by way of deputation. This is contrary to principles of deputation and also Kendriya Vidhyalaya Sangathan (Appointments, Promotion, Seniority etc.) Rules, 1971. Under those rules, the respondents could have placed the petitioners on probation for a period of two years but that has not been done by them. Period of two years has expired since the appointment of the petitioners. Therefore, the appointment of the petitioners cannot be terminated in a manner which is unknown to law. This Court declares that the petitioners are entitled to 11 continue in their appointment unless they are removed/ dismissed in accordance with a valid proceeding according to law.” The judgment of the Calcutta High Court upholding the contention of the petitioners that the petitioners are regularly appointed Principal and they could have been appointed on probation for a period of 2 years and since the period of 2 years has expired, the appointment of the petitioners cannot be terminated in the manner and they were allowed to continue. The said judgment of the Calcutta High Court dated 11.8.2005 has also become final, as no appeal has been filed against that judgment. Apparently, the respondents have accepted the position in respect of the petitions before the High Court of Calcutta and High Court of Jharkhand territories, as well as judgment of Principal Bench of the Tribunal, they cannot take a different stand in respect of the very same subject matter within the territorial jurisdiction of other High Court. The same results should follow in the matter of the persons similarly selected and appointed through the same selection process in the same manner when after due adjudication the respondents have accepted the adjudication by three different authorities. 12 In view thereof, these petitions must succeed. Accordingly, the petitions are allowed. The impugned orders dated 18.11.2004 are quashed. The appointment of petitioners in both the writ petitions are held to be regular appointment against the existing vacancies which after expiry of probation period had become substantive in character and cannot be dealt with otherwise than substantive appointment. All consequential benefits shall follow as a result of aforesaid declaration of the status of petitioners being of regularly appointed principals with effect from the date of their initial appointment. There shall be no order as to costs. [BHANWAROO KHAN], J. [ RAJESH BALIA ], J. babulal/