Radhey Shyam Srivastava vs The Commissioner, Kendriya Vidhyalay Sangathan & Ors.

O R D E R

“ (I) That this Hon’ble Tribunal may be pleased to quash the impugned termination order dated 3.12.2008 passed by respondent no. 5 as well as appellate order dated 11.01.2010 passed by the respondent no. 4 (Annexure-1&2 to the compilation No. 1 of the O.A.).

(II)

That this Hon’ble Tribunal may be pleased to direct the competent authority to regularize the applicant on the post of Socially Useful Productive (now known as work experience teacher) pursuant to the final judgment dated 13.05.1993 passed in writ petition no. 15612 of 1993 (Radhey Shyam Srivastava vs. Union of India and others).

(III)

To issue any other suitable order/direction which may be deemed fit and proper in the circumstances of the case.”

“1.

Shri/Smt./Km. Radhey Shyam has been selected as SUPN (Boys) teacher purely on Ad-hoc Basis in this Vidyalay in the Scale of Rs.1900-2600 allowance to admissible under the rules.

2.

His service as SUPN (Boys) is purely on Ad-hoc Basis terminated at any time without assigning any reason/on joining of regular incumbent.”

“Ref. No. F. 2-14/KVRh/2008-09 Date: 03.12.2008

Office Order

The Services of Sh. R.S. Srivastava, Adhoc-WET are hereby terminated in the Afternoon of 03.12.2008 consequent upon joining of fresh appointee. Sh. Som Dutt vide 16-1(DR)/TGT/2008-KVS(PR)/28421-23 dated 18/19.11.08. He is also instructed to hand over the charge of Audio Visual Lab. And WET room to Sh. Som Dutt, WET by today i.e. on 03.12.08. Sd./-(Dr. S. Siddiqui) Principal”

“4.

Having heard parties counsel, we hereby direct the applicant to prefer a fresh appeal before the Appellate Authority making all his grievance within a period of three weeks from the date of receipt of copy of this order. If such an appeal is made by the applicant within stipulated period of time, the Appellate Authority shall consider and decide the same by reasoned and speaking order taking into account the grievance of the applicant within a period of Three Months from the receipt of copy of this order.”

“F. 10-84/08-KVS (PR) Dated: 11/12-0-2010

O R D E R

WHEREAS Shri Radhey Shyam Srivastava S/o Late Shri Bajrangi Lal Srivastava, Ex-Adhoc Work Experience Teacher, Kendriya Vidyalaya, Rihandnagar filed OA No. 1306 of 2008 before Hon’ble CAT, Allahabad Bench, Allahabad against his termination order dated 03-12-2008 passed by the Principal, KV, Rihandnagar.

WHEREAS vide judgment dated 28-10-2009, the Hon’ble CAT Allahabad disposed of the case with following directions: -

“Having heard parties counsel, we hereby direct the applicant to prefer a fresh appeal before the Appellate Authority making all his grievance within a period of three weeks from the date of receipt of copy of this order. If such an appeal is made by the applicant within stipulated period of time, the Appellate Authority shall consider and decide the same by reasoned and speaking order taking into account the grievance of the applicant within a period of Three Months from the receipt of copy of this order.”

WHEREAS applicant claimed that he was sponsored by the Employment Exchange to participate in the interview for the post of

“Socially Useful Productive Teacher” re-designated as Work Experience Teacher and was selected on Adhoc basis in the pay scale of 1200-2600-2900. In this respect, the fact is that the name of applicant was not sponsored by the Employment Exchange. He applied in response to the advertisement in daily newspaper “Aaj” dated 04-09-1992.

WHEREAS the averment made by the applicant in his appeal is totally denied. KVS has never disobeyed the order passed by the Hon’ble High Court in Writ Petition No. 39119 of 1993 (TA 9/2003). The applicant was provided ample opportunity to apply for the post of SUPW Teacher and was permitted to participate in the interview at KV, Kankarbagh, Patna during the year 1995. Further, the applicant was telegraphically informed on 22-04-1995 to appear for interview on 29-04-2005 at KV, Kankarbagh, Patna. Subsequently the applicant attended the interview but he was not selected for the post of SUPW Teacher. Hence, he was not given offer of appointment to the regular post.

WHEREAS in compliance with the judgment order dated 13-05-1993 in CMWP No. 15612 of 1993 passed by Hon’ble High Court, Allahabad the applicant was replaced on 03-12-2008 by freshly empanelled recruitee namely Shri Som Dutt selected on direct recruitment basis from the select panel. He was not disturbed earlier because none of the freshly empanelled recruit reported for duty at KV, Rihandnagar in spite of several appointment orders issued to them by the Kendriya Vidyalaya Sangathan. He was never treated as a regular employee of Kendriya Vidyalaya Sangathan.

NOW, THEREFORE, in the light of the judgment order dated 28-10-2009 of the Hon’ble CAT, Allahabad, the undersigned being Appellate Authority has hereby considered the appeal preferred by Shri Radhey Shyam Srivastava, Ex-Adhoc WET, KV, Rihandnagar, with the observation that the termination order passed by the Principal, KV, Rihandnagar on 03-12-2008 is as per law & according to the rules. Hence, the termination order passed by the Principal KV, Rihandnagar on dated 03-12-2008 is hereby confirmed.

Thus the appeal preferred by Shri Radhey Shyam Srivastava, Ex-Adhoc WET, KV, Rihandnagar finally stands disposed of in compliance with the direction of Hon’ble CAT, Allahabad Bench, Allahabad. Sd./-( ISAMPAL) ASSISTANT COMMISSIONER”

“ BY THE COURT

This petition is by an ad hoc teacher in a Kendriya Vidyalaya. The complaint of the petitioner is that the management of the Kendriya Vidyalaya is giving an artificial gap in the petitioner’s service and the petitioner is being continued as an ad hoc teacher by intermittent appointment, with gaps in between.

This Court has, in a similar matter, given a judgment by holding that the ad hoc teachers will continue until replaced by freshly recruited candidates. The judgment has been delivered today in Writ Petition No. 41730 of 1992: Km. Manish Verma vs. The Assistant Commissioner, Kendriya Vidyalaya Sangathan, New Delhi and another. The aforesaid judgment will be applicable to this case also.

In the matter of ‘Km. Manish Verma (supra), the following directions have been formulated by the Court: -

(1)

The ad hoc teachers at the Kendriya Vidyalaya will only be replaced by freshly empanelled recruits selected by direct recruitment from the select panel.

(2)

The ad hoc teachers will not be replaced by –(blur) transferred teachers.

(3)

The ad hoc teachers will be entitled to - - asis paid to regular teachers from the session 1992-93, i.e. 1 April, 1992. They will continue to receive this salary during the course of their employment.

(4)

Such of those ad hoc teachers who have worked as such for three years, as of date, including the breaks, shall not be terminated and they shall be absorbed as and when the regular vacancies arise.

(5)

If regular selections have been made, the management of the Kendriya Vidyalayas or the Government of India, as the case may be shall create additional post to accommodate such selected candidates.

(6)

The ad hoc teachers shall be continued in service even during vacations.

These directions will apply in this case also.

The above directions are issued to the respondents, in terms, as indicated.

The petition succeeds and is allowed with costs. Dt/- 13/5/93 Sd./- R.S.D.”

“In this case, we are of the opinion, that it is not necessary to go into various other points involved in the connected writ petition, as this appeal deserved to be allowed on the short ground that the respondent had no right to the post to which she was appointed. Once a regularly selected candidate was available the management had a right to terminate the services of the ad hoc appointee particularly when she had worked for less than one year. The appointment letter of Km. Manish Verma clearly shows that her service was purely temporary and ad hoc and could be terminated at any time. It is settled law that a temporary employee has no right to the post – hence Km. Manish Verma could not claim to be continued in service since she was not a regularly selected candidate.”

“9.

Unless the initial recruitment is regularised through a prescribed agency, there is no scope for a demand for regularization. It is true that an ad-hoc appointee cannot be replaced by another ad-hoc appointee : only a legally selected candidate can replace the ad-hoc or temporary appointee. In this case it was clearly stipulated in the initial order of appointment that the appellant was required to make room once a candidate selected by the Service Commission is available.

10.

In fact, a candidate selected by the Service Commission was to replace the appellant, even if it is accepted as contended by the learned counsel for the appellant that the selected candidate did not join. That is really of no assistance to the appellant. The fact remains that person has been selected and the Service Commission has drawn up a list of selected candidates. If the person, who was to replace the appellant, did not join for some reason, obviously another selected person can be posted. Non-joining of the selected candidates does not confer any right on the appellant. As the initial order dated 27.11.1974 shows what is required is the availability of candidate selected by the Service Commission, and not the joining of the selected candidate.”

“24.

On the facts of the delineated above, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any and with what authority created such impression. No waiver which would be against requisite compliance can be countenanced. Whether an expectation exists is, self-evidently, a question of fact. Clear statutory words override any expectation, however, founded. (See Regina v. Director of Public Prosecution Ex parte Kebilenae and ors., (1993) 3 WLR 972 (H.L.)”