George Paracken:
1. The Applicant has filed this Original Application against the Memorandum dated 03.09.2003 issued to him by the respondent No.4 i.e. the then Director of Education, Sh. Rajendra Kumar directing him to appear before the Medical Board, L.N.J.P. Hospital, New Delhi for his medical examination as he was reported to be a patient of Heart Disease, Old Pulmonary T.B. and Chronic Bronchitis. He is further aggrieved by the letter dated 30.10.2003 of the Deputy Director (Sectt. Edn.) to the Regional Director (South) stating that the Principal of Government Co.Ed.S.S.S., Paprawat, New Delhi where he was earlier working as Vice-Principal failed to serve the aforesaid letter dated 03.09.2003 upon him and, therefore, it shall be served upon him, if considered necessary, through Police Protection as he has since been transferred and posted with Vasant Vihar, New Delhi. A copy of the aforesaid letter dated 03.09.2003 was also endorsed to the Medical Superintendent, L.N.J.P. Hospital, New Delhi with the following request:-
”Shri R.P. Chaurasia, Vice-Principal, may please be got examined medically by a Medical Board essentially comprising a psychiatrist as one of its constituent members as the officer concerned is reported not to be mentally sound and this Department is thinking of considering him as a case of incapacitated for service. Accordingly, it is requested that the officer concerned may be got examined by the Medical Board and result thereof be communicated to this office immediately.”
Again, vide Memorandum dated 15.09.2004 issued in continuation of the aforesaid Memorandum dated 3.9.2003, the Dy. Director of Edn. directed the applicant to appear before the same Medical Board on 16.09.2004. As he failed to appear before the Medical Board as directed vide notice dated 7.12.2004, he was asked to show cause as to how would account for his conduct in not receiving the official memo dated 15.09.2004 referred to above meant for his medical examination by the Medical Board and as to why he should not be reverted from the post of Vice-Principal to the post of PGT/Lecturer and not to initiate disciplinary proceedings against him for exhibiting a character unbecoming of a Govt. servant. His further grievance is that, vide order dated 16.02.2005, the ad hoc promotion granted to him as Vice-Principal vide order dated 26.11.2002 was cancelled with immediate effect and reverted him back to the post of PGT. The last order by which he is aggrieved is the order dated 12.04.2005 by which many of his juniors have been promoted as Principals in the pay scale of Rs. 7500-250-12000/- but he has been denied the promotion.
2. The brief facts which are necessarily to be considered for the adjudication of the issues raised in this Original Application are delineated hereunder. Applicant was initially appointed as a Trained Graduate Teacher (TGT for short) (General) on 16.7.1981. Thereafter, he was appointed as a TGT (Hindi) and then as a Post Graduate Teacher (PGT for short) (Hindi).
3. His turn for promotion as Vice Principal came in the year 2001. But, according to the applicant, the respondent No.4, delayed his vigilance clearance and thereby denied him promotion in time. The applicant, has therefore, submitted several representations dated 27.9.2002, 7.10.2002 and 16.10.2002. Finally, the Dy. Director of Education (District South West-B) gave the vigilance clearance certificate only on 30.10.2002. Thereafter, the DPC held on 11.11.2002 recommended his name for promotion and vide Annexure A-6 order dated 26.11.2002, he was promoted as Vice Principal on purely ad hoc and emergent basis for a period of six months or till regular appointments are made, whichever is earlier.
4. According to the applicant, while he was serving as PGT in GB SSS No.1, Najafgarh, he filed an FIR on 7.9.1999 against his neighbor who was a policeman but he had to withdraw the same on 25.2.2000 under threat of his life by the said policeman and his associates. Apprehending danger to his life, he requested for transfer to any other school in the Najafgarh area but the respondent did not accede to the same. However, on his promotion as as Vice Principal vide order dated 26.11.2002, he was posted to G. Co. Ed. SSS, Paprawat vide order dated 27.12.2002 for the purpose of pay only but he continued to work at GBSSSS No.1 Najafgarh. He again requested for transfer to any one of the school in Najafgarh area but the Dy. Director of Education (District South West-B) confirmed his promotion in the aforesaid school at Paprawat itself. Thereafter, he made representations on 1.4.2003 and 3.7.2003 repeatedly requesting for his immediate transfer. However, according to the applicant, the respondent No.4, in connivance with the Principal of the Govt. Co. Ed. School, Paprawat got the following remarks made in his personal file on 26.07.2003 and 12.8.2003.
(1) “It is a fit case for suspension and DE. Let it be done after taking approval of competent authority. Sd/- 26/7/2003”
(2) “I feel that he should be compulsorily retired. He is more than 50 years of age.” (sd/- 12.08.2003).
Thereafter, the respondent No.2, namely, the Principal Secretary (Education) made the following remarks in his personal file on 12.08.2003:-
“He must be on adhoc promotion. Why can’t we withdraw his promotion? We can also direct him to appear before a Medical Board which will have a psychiatrist as member. On their recommendations, we can give him compulsory retirement on medical grounds.” (sd/- 12.08.2003)
According to the applicant, the aforesaid remarks of the respondents No.4 and 2 respectively were to ease him out as he has come in the way of their corrupt practices. They, therefore, got complaints made against him from the Principal and the Education Officer, (Zone-22) and get the Dy. Director of Education (District South West-B) to prepare a note against him on 29.08.2003 proposing to remove him from service and submitted the same to the Respondent No.4 for his immediate suspension from service after obtaining the approval of the Chief Secretary. However, the Chief Secretary, instead of approving the aforesaid proposal, asked the respondent No.4 to ‘call him over and get his explanation first. The Chief Secretary has also observed that the applicant ‘can be withdrawn from the VP’s post and ask him to report to RD or DEO till the explanation is seen.’ Thereafter, the Director of Education has issued the Memo dated 03.09.2003 to him to appear before the Medical Board for his medical examination but the said Memo could not be served upon him. Meanwhile, , the applicant made the Annexure A-7 representation dated 5.9.2003 to the Chief Minister and the Chief Secretary and other concerned against the malafide action and ill motive of respondent No.4. However, the DDE (SW-B) put up a draft of major penalty charges against the applicant to the Chief Secretary but and the Chief Secretary in his note dated 25.9.2003 made the following remarks:
“1. Shri R.P.Chourasiya met me today and alleged that the Principal Shri Kaushik had amassed funds which belonged to school and because he had taken up cudgels against that he was being harassed.
2. By now, the Education Deptt. ought to have called over the Vice-Principal, got his explanation and put up the case as called for. It should not take so many weeks to attend to something which has been projected to be a case of major misconduct.
3. I hope action to remove him from Vice Principal's duties has been taken as indicated on 2.9.2003.”
5. Thereafter, on 26.9.2003, he was transferred to the office of Regional Director (South) which was 30-40 km away from his residence at Najafgarh. Further, according to the applicant, after the proposal of respondent No.2 to place him under suspension was turned down, he got infuriated and issued Annexure A-1 memo dated 3.10.2003 to the Regional Director (South) directing him to arrange to serve the memo dated 3.9.2003 upon he applicant so that he might comply with directions contained therein for entering appearance before the Medical Board for his medical examination, if considered necessary through police protection. On receipt of the aforesaid letter, the applicant appeared before the Medical Superintendent, LNJP Hospital, New Delhi on 14.11.2003. However, he was not entertained by the Medical Superintendent, LNJP Hospital vide his Annexure A-9 letter dated 31.12.2003 stating that the Education Department does not come under his jurisdiction but it comes under the jurisdiction of Deen Dayal Upadhyay Hospital. Thereafter, the applicant made Annexure-10 detailed representation dated 16.8.2004 to the Chief Minister of Delhi, Congress President, Lt. Governor, Education Minister of Delhi, Chief Secretary of the Govt. of NCT of Delhi and to the various officers of the Directorate of Education of Govt. of NCT of Delhi, the Director of CBI and Commissioner of Central Vigilance Commission seeking their intervention for his immediate transfer to GBSSSS, Najafgarh on extreme medical and compassionate grounds and in public interest. Later, the Director of Education, on 31.8.2004, called for his complete ACR dossiers to place it before the DPC for its consideration for his promotion to the post of Vice Principal. On 4.9.2003 while he was working in Govt. Girls Sr. Sec. School, Najafgarh, he was attacked by the Principal Mrs. Asha Monga and her husband. He submitted a detailed complaint on 9.9.2004 to the Chief Vigilance Commissioner. Again, the Dy. Director of Education vide Annexure A-2 memorandum dated 15.9.2004 directed him to appear before the Medical Board of LNJP Hospital for medical examination on 16.9.2004. He did not appear before the Medical Board on that date as he fell ill and he submitted the medical certificate to the respondents seeking leave. Thereafter, he was served with the Annexure A-3 memo dated 07.12.2004 alleging that he did not report to LNJP Hospital for medical examination on 15.9.2004 and asked him to explain as to why he should not be reverted from the post of Vice Principal to PGT/Lecturer besides initiating disciplinary proceedings against him. The applicant submitted a detailed explanation vide Annexure A-13 letter dated 15.12.2004. However, he was reverted to the post of PGT, vide the impugned Annexure A-4 order dated 16.2.2005. Later, the DPC met on 28.3.2005 for consideration of the eligible candidates for promotion to the post of Vice Principal on regular basis and recommended the applicant for promotion and included his name in the select panel of 2002-03 at Sl. No.73 issued vide Annexure A-15 minutes. However, in the Annexure A-5 promotion order dated 12.4.2005 issued by the respondents, his name was not included. According to the applicant, there was no reason for denial of promotion as Vice Principal as no chargesheet was issued to him and no disciplinary proceedings were pending against him. He was not even placed under suspension by the respondents. He was also not involved in any criminal case.
6. The applicant has, therefore, submitted that the respondent’s action in denying him the promotion as Vice Principal is in violation of respondent’s own Office Memorandum No.22011/4/91-Estt.(A) dated 14.9.1992 and its relevant part reads as under:-
“11.1 At the time of considering of the case of Govt. servants for promotion, details of Govt. servants in the consideration zone for promotion failing under the following categories should be specifically brought to the notice of the DPC:-
Government servants under suspension;
Govt. servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
Government servant in respect of whom prosecution for a criminal charge is pending.”
He has also relied upon the judgment of the Apex Court in the case of Union of India and others vs. K.V.Jankiraman, AIR 1991 SC 2010 saying that there was no reason for denying him promotion to the post of Vice Principal as no charge sheet has been issued against him. The applicant, has therefore, submitted the Annexure A-16 representation dated 12.5.2005 to the Lt. Governor for the immediate restoration of the post of Vice Principal to him.
7. The applicant has initially assailed the reversion order dated 16.2.2005 before the Hon’ble High Court of Delhi in WP (C) No.10037 of 2005 and the notice in the said case was issued on 31.5.2005. However, later the High Court vide its Order dated 19.4.2006 observed that since the jurisdiction of the matter lies with this Tribunal, the applicant should approach this Tribunal. However, the applicant sought an interim order against any departmental proceedings to be taken against him. But the respondents informed the Court that no departmental proceedings were taken against him and the applicant was only asked to report to the school.
8. Thereafter, the applicant has filed OA No.1643/2006 before the Tribunal on 24.7.2005 seeking the following reliefs:
“(a) set aside the order of reversion dated 16.02.2005 of the petitioner from the post of Vice Principal to the post of PGT; with
(b) Quash the chargesheet/Memorandum dated 30.5.2005 issued vide order no. DE-7/(4E)/(9)/98/Vig./Pt. file/2818;
(c) quash the inquiry order no. DE-7/(47)/WB/03/VIG/1311 dated 9.3.2006
(d) quash the inquiry order no. DE-7/(47)/WB/03/VIG/1310 dated 9.3.2006
(e) issue necessary direction in respect of the promotion of the petitioner to the post of Vice Principal w.e.f. 12.4.2005 alongwith all consequential benefits
(f) Order to release the salary of petitioner for 18 days w.e.f. 1.9.2004 to 18.9.2004.”
9. On 3.10.2006 this Tribunal considered the aforesaid OA but on raising the objection that the applicant was seeking multiple reliefs in it, the applicant restricted his prayer to clause (b), (c) and (d) above. Therefore, this Tribunal disposed of the aforesaid OA vide order dated 4.10.2006 directing the respondents to supply him the required documents within a weeks time to enable the applicant to file his statement of defence. The disciplinary authority had to take further steps in the enquiry. According to the applicant, respondents did not supply him with the necessary documents along with the charge memo dated 30.05.2005 but the enquiry still continued. In the meantime, many of his counterparts, namely, S/Sh. Babu Singh, Dilbagh Singh Gulia, Narad Rai, Bir singh, Keshav Pal Singh, Dwijendra Kumar Shashtri, Samar Bhanu, Dharam Vrat Shashtri, Jagroshan Jaijan, Sudama Prasad Chaturvedi and many others have been promoted to the post of Principal, vide Annexure A-20 order dated 29.6.2010.
10. He has, therefore, filed the Original Application seeking a direction to quash and set aside the impugned memoranda dated 3.9.2003, 30.10.2003 and 15.9.2004, show cause notice dated 7.12.2004, order of reversion dated 16.2.2005 and promotion order 12.4.2005. He has also sought a direction to the respondents to restore his ad hoc promotion to the post of Vice Principal w.e.f. 24.2.2005 and regular promotion to the post of Vice Principal from the date his junior has been promoted, with all consequential benefits. His submission is that he is due to retire on 31.12.2011 and he will lose his chance of restoration to the post of Vice Principal. He further contended that his reversion as Vice Principal and denial of promotion as Principal were illegal as the respective DPCs have already found him fit and his conduct was not under cloud on the date of promotion of his juniors from 12.4.2005. Applicant made representation/appeal dated 3.5.2011 against the aforesaid action of the respondents reverting him as Vice Principal and denying him promotion as Vice Principal but the respondents have not considered the same.
11. The applicant has also filed MA-1984/2011 under Section 21 (3) of the Administrative Tribunals Act, 1985 for condonation of delay in filing this Original Application. According to him, he had no information that he was found fit for the post of Vice Principal by the duly constituted DPC and no approval of the Chief Secretary who is the competent authority was taken before directing him for the medical examination. Since the impugned orders are contrary to the provisions of statutory rules, no limitation would apply in view of the judgment of the Apex Court in State of M.P. Vs. Syed Qamar Ali, AIR 1967 SLR SC 228 wherein it was held as under:-
“20. We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under Section 7 could be exercised, is totally invalid. The order of dismissal had therefore no legal existence and it was not necessary for the respondent to have the order set aside by a court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected."
12. As grounds for challenging the aforesaid orders, the applicant has submitted that since he was promoted under the orders of the Chief Secretary, no other officer below the rank of Chief Secretary could have reverted him. Again, none other than the Chief Secretary had the power to direct him to undergo the medical examination while he was in service but the impugned order dated 3.9.2003 and 15.9.2004 were not approved by Chief Secretary. In this regard, he has relied upon the following provision of the Central Civil Services (Medical Examination) Rules, 1957:-
“2 (1) Where the competent authority has reason to believe that a Government servant to whom these rules apply is suffering from -
a contagious disease, or
(b) a physical or mental disability which in its opinion interferes with the efficient discharge of his duties.
that authority may direct the Government servant to undergo a medical examination within such period not exceeding one month as may be specified by it and may, if it considers it essential to do so, also direct the Government servant to proceed on leave forthwith pending medical examination. Such leave shall not be debited to the leave account of the Government servant, if the examining medical authority subsequently expressed the opinion that it was unnecessary for the Government servant to have been required to proceed on leave.
(2) The procedure for a medical examination, grant of leave on retirement from service, or termination of service under this rule shall be such as the President may by order prescribe.
(3) For the purpose of this rule, competent authority in relation to a Government servant means the authority competent to dismiss him and includes such other authority as the President may by order specify in his behalf.”
Further, as per the Government of India's decisions under sub-rule (3) of Rule 2 of the aforesaid Rules:-
“2. (1) The authority directing the Government servant to undergo medical examination under sub-rule (1) of Rule 2 of the said rules shall communicate to the examining medical authority all such details concerning the medical history of the case as might be available in his office records of the case and shall include a directive and the standard of physical fitness to be adopted, should make due allowance for the age and length of service of the Government servant concerned.”
13. The applicant has also alleged malafide and ill motive against respondent No.4. According to him, the show cause notice dated 7.12.2004 was issued to him would show that his reversion from the post of Vice Principal was because he did not go to LNJP Hospital for medical examination whereas, under the rules, no employee can be reverted for non-appearance for medical examination. He submitted that his reversion was in gross violation of the principles of natural justice as he was not given any notice before order was passed. Again, after he was declared FIT by the DPC on 28.03.2005 and placed in the Select List for 2002-2003, the regular promotion to the post of Vice Principal ought to have been made by the respondents alongwith others as neither any charge sheet was issued to him nor any disciplinary proceeding were pending against him. He was also neither placed under suspension nor he was prosecuted in any Criminal case. The relevant portion of the rules is reiterated as under:-
“11.1 At the time of considering of the case of Govt. servants for promotion, details of Govt. servants in the consideration zone for promotion failing under the following categories should be specifically brought to the notice of the DPC:-
Government servants under suspension;
(ii) Govt. servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
(iii) Govt. servants in respect of whom prosecution for a criminal charge is pending.”
14. The respondents in their reply have submitted that the applicant has no right to seek vigilance clearance as the same is a confidential matter. They have further submitted that a complaint regarding the misconduct committed by the applicant was received and some of those misconducts are as under:-
(i) The applicant was not attending the school punctually.
(ii) The applicant was not signing the departure column and used to write only “Old Sectt”.
(iii) The applicant was not helping the Principal in Supervision and Administration work.
The Principal had complained about his abnormal behaviour as the applicant was reported disturbing not only the school atmosphere but also the Principal. The applicant visited the residence of Principal on 07/06/2003 at 10.30 PM in connection with issue of reference letter and left only at 11.30 PM in the night after much argument.
The DDE (SW-B) and RD (South) also informed that the applicant has been a constant source of disruption not only for his school but also for the offices of DDE (SE-B) and RD (South).
They have further submitted that the applicant had approached the respondent No.4 at his residence and he made the following observations:
“I have heard Shri Chaurasia on at least 3 occasions. Besides, very often he is found at my personal branch asking them to let him meet me. He even came to my house once.
I am clear that he is not performing his duties. However, I feel that he is mentally disturbed and is excessively emotional. I am afraid that if he is placed under suspension he might even attempt committing suicide. I have advised his wife to persuade him to take psychiatric treatment, but probably Sh. Chaurasia is not agreeing.
In such a situation, I feel that he should be compulsorily retired. He is more than 50 years of age.”
Subsequently, the Secretary, Education has also made the following observations in his case:
“He must be on ad-hoc Promotion. Why can’t we withdraw his promotion. We can also direct him to appear before a Medical Board which will have a psychiatrist as member. On their recommendations, we can give him compulsory retirement on medical grounds.”
15. The respondent has, therefore, submitted that in view of the above misconduct of the applicant and his mental position it was decided to conduct his medical examination for the proper safety of students and staff and his other colleagues at the workplace as there was possibility of his psychiatric disorder which would cause harm and injuries to others. They have also submitted that he was chargesheeted under rule 14 of CCS (CCA) Rules, 1965 vide charge memo dated 30.5.2005 containing 12 allegations against him including allegation of misbehavior with Ms. Asha Monga, Principal, but he has not been cooperating in the enquiry. DPC has, therefore, placed his case under the sealed cover and he was not given the regular promotion.
16. We have heard the learned counsel for the parties. It is seen that the applicant has earlier on 28.05.2005 approached the Hon’ble High Court of Delhi in Writ Petition (C) No. 10037/2005 challenging the order of his reversion from the post of Vice-Principal issued to him on 16.02.2005. During the pendency of the said Writ Petition, the respondents have initiated departmental proceedings against him and the Article of Charges were drawn on 31.05.2005 and served upon him on 07.06.2005. The applicant contended before the High Court that the disciplinary proceedings ought to be stayed during the pendency of the writ proceedings. However, the submission of the respondents before the High Court was that no disciplinary proceedings have in fact been taken against the applicant and he has been merely asked to report to the school. The High Court, vide order dated 19.04.2006, held that the Writ Petition was not maintainable for want of jurisdiction and disposed it of with liberty granted to the petitioner to approach this Tribunal for appropriate reliefs. The applicant had, therefore, immediately approached this Tribunal vide OA-1643/2006 seeking three sets of reliefs, namely, (1) to quash and set aside charge sheet, inquiry order etc.; (2) to quash and set aside his reversion order dated 16.2.2005, non-promotion as Vice Principal on regular basis in terms of order dated 12.4.2005 and (3) to direct the respondents to release his salary for the period from 1.9.2004 to 18.9.2004. But this Tribunal did not permit him to seek all those multiple reliefs together in the said OA. He, therefore, confined the relief with regard to charge sheet etc. but the said OA was finally disposed of vide order dated 04.10.2006 granting him 10 days time to submit his statement of defence to the Charge Memorandum dated 30.05.2005. Thereafter, the applicant made several applications on 10.5.2007, 16.6.2008, 7.1.2011, 18.3.2011 and 24.3.2011 seeking various documents including file notings. The respondents supplied him some documents but not all and the disciplinary proceedings went on.
17. Thereafter, the applicant has filed the present O.A. on 26.11.2011 seeking a direction to quash and set aside the orders including the order dated 16.02.2005 cancelling the order of his ad hoc promotion as Vice-Principal dated 26.11.2002 and the order dated 12.04.2005 denying him promotion as Vice-Principal on regular basis. Even though the applicant has not explained the day to day delay from 4.10.2006 to 26.11.20011, he has given a nearly satisfactory explanation for the delay. During the aforesaid period, he was probably reconciled to the state of affairs of his having reverted to post of Vice Principal on ad hoc promotion and the denial of promotions to him as Vice Principal and Principal on regular basis. It was then that he came across the Annexure A-15 minutes of the DPC held on 28.3.2005 according to which he was recommended for regular promotion as Vice Principal and it gave him cause of action to file the present case. We, therefore, in the interest of justice, allow the Miscellaneous Application No.1984/2011 filed by the applicant for condonation of delay in filing this Original Application.
18. Now let us come to the merits of the case. In our considered view, the applicant's case has been very badly managed by the respondents. The officials of the respondent department were under the dictates of their whims and fancies rather than the rules and regulations. As a result, they were totally confused as to how the applicant was to be dealt with. The main cause of irritation for the concerned officials in the respondent department was that the applicant has been continuously disturbing them by seeking his transfer to any other school in Najafgarh because of the alleged threat to his life following a complaint made by him against a police man in the locality. The respondent No. 4 was very much irritated with him as he had alleged by disturbed him in his privacy by visiting his residence and sat there till late hours pleading with him for his transfer. Then the officials of the respondent department, starting from the Principal to the Director started harassing him in many ways. Without addressing his problems in the proper way, the respondents first did not give him vigilance clearance when his turn for ad hoc promotion came in the year 2001 even though no vigilance case, criminal case or disciplinary proceedings were pending against him. Finally, he was given the vigilance clearance only on 30.10.2002. The DPC then rightly recommended him for promotion as Vice Principal on ad hoc basis along with similarly placed PGTs and accordingly he was promoted w.e.f. 26.11.2002. Then, the respondents transferred him to a School at Papravat and then in the office of the Regional Director in Vasant Vihar which is 40 km. away from his house. It is not understood what the applicant who is a PGT would do in the office of the Regional Director. The Principal later suggested to suspend him from service and also to hold Departmental inquiry against him. According to him, some of the misconduct alleged to have been committed by him were, namely, he was not attending the School puncutally, he was not helping the Principal in supervision and administrative works, he visited the Principal’s residence at 10.30 pm etc. Another proposal was to retire him compulsorily from service showing that he was suffering from various physical and mental problems. Before that to happen, the Principal Secretary suggested to withdraw his ad hoc promotion as Vice Principal and then to refer him to a Medical Board which includes a psychiatrist. But the Chief Secretary did not approve all those fanciful suggestions and asked the authority concerned to hear him first and to call his explanation. The Chief Secretary has also pointed out that the applicant’s complaint against the Principal Shri Kaushik who alleged to have misused the funds of the School and amassed money. But without seeking any explanation from the applicant or hearing him by calling his explanation, the other officials in the respondent department asked him to appear before the Medical Board of the LNJP Hospital. They refused to entertain their request on the ground that the respondent department was not under their jurisdiction but it was under the D.D.U. Hospital. The Administration did not even know as to which hospital he was to be referred to for his medical examination. Still, the respondents issued him Memo dated 07.12.2004 calling for his explanation as to why he should not be reverted whereas, according to the CSS (Medical Examination) Rules, the remedy available to the respondent was only to initiate disciplinary proceedings against him if it was found that he was not obeying their orders. Again, it is seen that the tone and tenor of the Memo dated 03.12.2003 advising the Regional Director to arrange his Medical examination of the applicant is quite revengeful as if he was criminal or one who has jumped the bail. The direction contained in the said Memo was to arrange his medical examination 'if considered necessary through police protection'. In fact the officials of the Respondent department had no authority to do so as he was neither his appointing authority nor the authority competent to dismiss him from service as prescribed by the aforesaid Medical Examination Rules. The applicant has, therefore, rightly alleged mala fide and ill motive against the Respondent No. 4 in this O.A. but the latter did not refute it by filing any reply.
19. Further, it is an admitted fact that a duly constituted DPC at its meeting held on 11.11.2002 had recommended him for promotion and other similarly placed PGTs to the post of Vice Principal in the pay scale of Rs.7500-250-12000 on ad hoc basis. Consequently, the respondents, vide their order dated 26.11.2002, promoted 196 officials to the post of Vice Principal on ad hoc basis, in the order of their seniority. Applicant was only one among them. Even though the said order says that the appointment was purely on ad hoc and emergent basis for a period of six months or till the regular appointments are made whichever is earlier, the promotion continued indefinitely as in all such cases promotion in the respondent department in respect of all those ad hoc promotees including the applicant. Even though the said order of promotion says that the officer so promoted will not have any entitlement for seniority/regular appointment and the promotion can be revoked at any time without notice or assigning any reason, all of them have been promoted on regular basis with retrospective effect, in some cases, from the dates even prior to their dates of ad hoc promotions. The applicant was at Sty. No.1126 in the list of the feeder cadre. His junior Sh. Om Prakash Dahiya was at Sty. No.1134. Both of them were promoted as Vice Principal on ad hoc basis w.e.f. 26.11.2002. Sh. Daihya was promoted on regular basis w.e.f. 12.4.2005 in continuation of his ad hoc promotion without any interruption. Therefore, the order of promotion of the applicant vide order dated 26.11.2002 was not just an order of ad hoc promotion. From the documents available on record, it is seen that reason for his reversion from the post of Vice Principal is not his general unsuitability but it was a punitive action based on the whims and fancies of some of officers of the Directorate of Education including respondent No.4. In fact the respondent No.4, formed an opinion in a whimsical manner that the applicant was ‘mentally disturbed and (he was) excessively emotional’. Therefore, he wanted to compulsorily retire him from service. But the respondents could not get his medical examination conducted for the last seven years. Initially, the respondent No.4 on his own directed the applicant to undergo the Medical Examination by the Medical Board of LNJP Hospital but they rejected the request vide their letter dated 31.12.2003 stating that the applicant should have been referred to Deen Dayal Upadhyay Hospital. Thereafter, the respondent did not take any action for nearly an year. However, again the respondent, vide Annexure A-1 Memorandum dated 3.9.2003, directed the applicant to appear before the same Medical Board of LNJP without specifying the date on which he shall appear. Again his medical examination could not be done and the respondents have also not taken any further action as prescribed under the CCS (Medical Examination) Rules, 1957. However, without any reason or giving any opportunity of being heard, the applicant was reverted from the post of Vice Principal after another one year, vide the impugned order dated 15.9.2004. Hence, the impugned order dated 16.2.2005 cancelling the ad hoc promotion as Vice Principal granted to the applicant vide order dated 26.11.2002 and reverting him back to the post of PGT is arbitrary and illegal.
20. Ironically, within six months thereafter, the DPC which met on 28.3.2005 recommended the applicant for promotion as Vice Principal on regular basis from the select panel for the year 2002-03. Immediately, thereafter, respondents vide impugned Annexure A-5 order dated 12.4.2005 promoted 319 PGTs/Vice Principals (ad hoc) as Vice Principals on regular basis but the applicant was denied for promotion. The immediate junior of the applicant Sh. Om Prakash Dahiya was promoted w.e.f. 12.4.2005. A number of his other juniors have also been promoted. Admittedly, neither on 28.03.2005 nor even on 12.04.2005, there was any disciplinary proceedings, criminal case or vigilance case pending against him. Hence, the denial of his promotion as Vice Principal on regular basis w.e.f. 12.04.2005 was also totally arbitrary, whimsical and, therefore, illegal.
21. The other impugned orders in this Original Application, namely, the orders dated 3.9.2003, 15.9.2004 and 7.12.2004 are with regard to the medical examination of the applicant for the purpose of his proposed compulsory retirement from service on medical grounds. Neither the respondents succeeded in getting him medically examined nor he was compulsorily retired from service. In fact the applicant’s date of superannuation from service was on 31.12.2011. Hence all those impugned orders are no more relevant and they have become infructuous.
22. In view of the above facts and circumstances, we allow this OA. Resultantly, (i) the order dated 16.2.2005 cancelling the ad hoc promotion of the applicant as Vice Principal granted to him vide order dated 26.11.2002 and reverting him back to the post of PGT and (ii) the order of promotion dated 12.04.2005 as Vice Principal on regular basis is also quashed and set aside to the extent that he was denied the promotion along with his colleagues and juniors ignoring the recommendation of the DPC that he was ‘fit’ to be promoted. Consequently, his promotion as Vice Principal (ad hoc) with retrospective effect from 26.11.2002 is restored with all consequential benefits. Further, we direct the respondents to promote the applicant as Vice Principal on regular basis from the due date or at least from 12.04.2005, the date on which his immediate junior has been promoted, whichever is earlier with all consequential benefits including the retirement benefits. As the applicant has already superannuated from service on 31.12.2011, his pensionary benefits shall be revised accordingly. The aforesaid directions shall be complied with as early as possible but in case within a period of one month from the date of receipt of a copy of this order.
21. There shall be no order as to costs.