WP/26896/2008 of The Commissioner Vs Smt. L.D. Sharada on 26 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

FRIDAY, THE TWENTY SIXTH DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENTTHE HON'BLE MR JUSTICE GHULAM MOHAMMEDand THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY

WRIT PETITION Nos.26896, 27641 & 27661 of 2008

W.P.No.26896/2008

Between:

1 The Commissioner Kendriya Vidyalaya Sangthan 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110602. 2 The Deputy Commissioner (Academics) Kendriya VidyalayaSangthan 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110

602. 3 The Assistant Commissioner Kendriya Vidyalaya Sangthan Regional Office: Picket, Secunderabad - 500 009.

4 The Educational Officer Kendriya Vidyalaya Sangathan 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110602. 5 The Education Officer (Cenerning to CRPF., Barkas) KendriyaVidyalaya Sangthan Regional Office: Picket, Secunderabad.

AND

1 Smt. L.D. Sharada W/o. B. Suresh O/o. Kendriya Vidyalaya,C.R.P.F., Barkas, Hyderabad. (Under the orders of transfer to Kendriya Vidyalaya, O.F., Dehu Road, Maharashtra). R/o.H.No.10-1-693,J.B.R.

Enclave, West Marredpally, Secunderabad.

2 Sri. M.M. Joshi The Deputy Commissioner (Academics) Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110 602. (R.2 is not necessary party of the present Writ Petition)

.....RESPONDENTS

Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtwill be pleased to issue an order or direction, more particularly in thenature of WRIT OF CERTIORARI to call for the records pertaining toOA.No. 578/2008 dt. 28-11-2008 to the extent of setting aside the orderswent against the petitioners herein is contrary to law and set aside thesame.

Counsel for the Petitioners: MR.B.NARASIMHA SARMACounsel for the Respondents: MR.K.R.K.PRASAD

WRIT PETITION NO : 27641 of 2008

1 The Commissioner, Kendriya vidyalaya Sangthan 18, Institutional Area, Shaheed Jeet Singh Marg, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110 602

2 The Educational Officer, Kendriya vidyalaya Sangthan 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110 602 Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110 602

3 The Principal, Kendriya vidyalaya, Barkas Hyderabad.

4 The Assistant Commissioner, Kendriya vidyalaya Sangthan, Hyderabad Region, Picket, Hyderabad Hyderabad Region, Picket, Hyderabad 5 The Education Officer and Disciplinary Authority, KVS Hyderabad Region, Picket, Hyderabad. Hyderabad Region, Picket, Hyderabad.

AND

Ashok Kumar Gour, S/o. A.N Gour Kendriya Vidyalaya, Barkas, Hyderabad, R/o. H.No.100B, MIGH, Santhosh Nagar, Old City, Hyderabad.

.....RESPONDENT

Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtwill be pleased to issue an order or direction, more particularly in thenature of WRIT OF CERTIORARI to call for the records in O.A.No.583 of2008 dated 5-12-2008 on the file of the Central Administrative TribunalHyderabad Bench, Hyderabad and to set aside the order declaring it asarbitrary, illegal and unjust and pass Counsel for the Petitioners: MR.B.NARASIMHA SARMA

Counsel for the Respondent: Mr. K. Sudhakar Reddy WRIT PETITION NO : 27661 of 2008

1 The Commissioner Kendriya Vidyalaya Sangthan, 18, InstitutionalAreaArea Shaheed Jeet Singh Marg, New Delhi.

2 The Educational Officer, Kendriya Vidyalaya Sangthan, 18, Institutional Area Shaheed Jeet Singh Marg, New Delhi.

3 The Principal, Kendriya Vidyalaya , Barkas Hyderabad.

4 The Assistant Commissioner, Kendriya Vidyalaya Sangthan,HyderabadHyderabad Region, Picket, Hyderabad.

5 The Education Officer and Disciplinary Authority, KVS Hyderabad Region, Picket, Hyderabad. Region, Picket, Hyderabad.

AND

Sushma Chaturvedi D/o. M.M. Chaturvedi

Kendriya Vidyalaya, Barkas, Hyderabad R/o. H.No. 16-11-759/5

Moosarambagh, Hyderabad.

.....RESPONDENT

Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtwill be pleased to issue an order or direction more particularly in thenature of writ of Certiorari to call for the records in O.A.No.666 of 2008dt.5.12.2008 on the file of the Central Administrative Tribunal,Hyderabad Bench, Hyderabad and to set aside the Order declaring it asarbitrary, illegal and unjust and pass such other order or orders Counsel for the Petitioners: MR.B.NARASIMHA SARMA

Counsel for the Respondent: S. Suryaprakash Rao The Court made the following :

ORDER: (per Hon’ble Sri Justice Ghulam Mohammed)

These writ petitions are filed for issuance of writ of certiorari to callfor records pertaining to O.A.No.578 of 2008 dated 28.11.2008,O.A.No.583 of 2008 dated 5.12.2008 and O.A.No.666 of 2008 dated5.12.2008 on the file of the Central Administrative Tribunal, Hyderabad,which went against the petitioners herein, and set aside the samedeclaring as arbitrary and illegal.

It is stated that the respondents were working as Trained GraduateTeachers at Kendriya Vidyalaya, CRPF, Barkas, Hyderabad. As therewas poor performance of students in the said school with decliningenrolment in secondary classes, the second petitioner visited the saidschool by convening a meeting of Teachers of classes 10 and 12 todiscuss the results of the said school and declining enrolment in thesenior classes, along with Principal of Kendriya Vidyalaya No.1Golconda and Principal of Kendriya Vidyalaya Bollaram. It was reportedthat during the said meeting, the respondents have used intemperatelanguage and disrupted the proceedings of the meeting withunwarranted behavior, in spite of all efforts by the visiting officials. As

their behavior being a prima facie case of misconduct violating theprovisions of Education Code for the Kendriya Vidyalaya teachers,memorandum of charge dated 21.08.2008 was issued by the competentauthority proposing to take action against the respondents under Rule16 of CCS (CCA) Rules 1965 calling for explanation and ultimately thecompetent authority vide proceedings dated 8.09.2008 imposed minorpunishment of stoppage of next increment for a period of two yearswithout cumulative effect. Aggrieved by the same, the respondents filedappeals, which are pending. In the meanwhile considering theadministrative interest of the institution, the competent authoritytransferred the respondents from Kendriya Vidyalaya, Barkas toKendriya Vidyalaya Ordinance Factory, Maharashtra by proceedingsdated 8.9.2008, and they were relieved through proceedings dated10.09.2008. The respondents submitted representations for theirretention at Hyderabad on 12.09.2008 and 13.09.2008, which are alsopending. Questioning the said transfer and relieving orders, the order ofminor penalty and also the validity of para 8(iv) of transfer guidelines, therespondents filed O.A.Nos.578, 583 and 666 of 2008 before the CentralAdministrative Tribunal, Hyderabad, which were allowed setting asidethe orders of minor penalty, transfer and relieving orders, but upheld thevalidity of para 8(iv) of the transfer guidelines rejecting the contention ofthe applicant against the same. Hence these writ petitions.

We have heard the learned counsel for the petitioners, and learnedcounsel for the respondents.

Sri B. Narasimha Sharma, learned counsel appearing for thepetitioners vehemently contended that the Tribunal ought not to haveentertained the O.As., inasmuch as the respondents filed appeals beforethe appellate authority questioning the imposition of minor punishmentand the transfer order consequent to the imposition of disciplinaryproceedings. It is further contended that when the higher officer camefrom Delhi to set right the things for smooth functioning of the meeting, the respondents have used unwarranted utterances and disrupted thewhole meeting. When once the higher officer comes from Delhi to setright the things, such indiscipline in the educational institutions isimpermissible and violative of Conduct Rules. Therefore, therespondents were imposed punishment of stoppage of two incrementswithout cumulative effect, which is a minor penalty, for which there is noobligation to conduct any detailed enquiry. However show cause noticewas issued on 21.08.2008 and the punishment was imposed on8.09.2008 under para 8(iv) of the New Transfer Guideline transferringthe respondents outside Hyderabad. Pursuant to the transfer order, theapplicants filed appeals on different dates and immediately on14.09.2008 without waiting for the result of appeals on merits, they haveapproached the Tribunal and filed O.As. The learned counsel contendedthat having availed the alternative remedy by the respondents, theTribunal ought not have entertained the O.As., and the applicants haveto wait for the verdict of the appellate authority.

Conclusion

On the other hand, learned counsel for the respondents contendedthat there was no unwarranted utterances and intemperate languageused by the respondents-teachers, and that they have just answered theDeputy Commissioner who visited the school for convening the meeting.Hence the Tribunal has rightly considered the O.As. in its properperspective.

It is relevant to have a look at para 8(iv) of the New TransferGuidelines, came into force with effect from 14.03.2006, which reads asunder.

8(iv) on grounds of misconduct orunsatisfactory performance, a evidenced byissue of a charge-sheet under Rule 14 of theCCS (CC&A) Rules, 1965 or imposition of aminor penalty under Rule 16 of the CCS(CC&A) Rules, 1965.

Having regard to the facts and circumstances of the case, and having perused the impugned judgments rendered by the Tribunal, weare of the opinion that when once the respondents have approached theappellate authority and availed the opportunity of filing of appeal, theTribunal ought not to have interdicted the departmental proceedings In view of the same, we set aside the orders passed by theTribunal only to the extent of setting aside the imposition of minorpunishment of stoppage of one increment without cumulative effect.However, we direct the appellate authority to dispose of the appealsfiled by the respondents within a period of four weeks from the date ofreceipt of a copy of this order. Till such time, the transfer order shall notbe given effect to. It is always open for the applicants to raise all thepleas including the plea of competence of the officer, who has initiatedthe disciplinary proceedings.

Accordingly, these three writ petitions are disposed of. No costs.

________________________

(GHULAM MOHAMMED, J.)

___________________________

(B.SESHASAYANA REDDY, J.)

26[th] December, 2008Js.