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  IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C)  No. 32 OF 2020 (Diary No. 15498 OF 2017)

MANGILAL KAJODIA     ...PETITIONER(S)

VERSUS

UNION OF INDIA & ORS.               ...RESPONDENT(S)

O R D E R  

1. The present petitioner has approached this Court directly under Article 32

of  the  Constitution,  seeking  diverse  reliefs.  Essentially,  his  grievance  is  with

respect to the order of removal issued by his employer, the respondent Kendriya

Vidayalaya Sangathan (hereafter referred to as “KVS”), terminating him from its

services with effect from 21.07.2008.

2. Barring essential facts, an elaborate discussion is unnecessary in view of the

judgment and relief that the Court would be granting. Briefly, the petitioner joined

KVS on 05.11.1981. Whilst working with the KVS in its school, the petitioner

was apparently elected as an office bearer of the employees’ association, i.e. as

Assistant General Secretary (of the Hqs).  Inter se  disputes with respect to who

held the position of General Secretary arose which became the subject matter of

proceedings, in the Civil Court at Tis Hazari, Delhi. The KVS apparently took the

position  that  it  would  act  in  accordance  with  the  order  of  the  court  dated

03.07.2004.   The petitioner  alleges  that  he was again elected  as  the  Assistant

General Secretary HQ.   He alleges that in this capacity as an office bearer of the

Association, he was instrumental in exposing irregularities involving defalcation

with school funds, including, but not limited to purchase of books and equipment

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such as computer and other electronic items. Some minor disciplinary proceedings

appear to have been initiated against him on 12.04.2007 and a show-cause notice

was issued, to which he replied.  

3. The petitioner claims that his endeavors showed results inasmuch as the

Assistant  Commissioner  of  the KVS at  Bhopal  received an audit  report  dated

27.02.2008 stating that the purchase of books and computers were irregular. The

petitioner  then  mentions   some  RTI  queries  made  and  copies  of  documents

elicited by him which the KVS refused altogether.  Eventually, in compliance with

the  order  of  the  Central  Information  Commissioner,  some  information  was

provided.

4. On 05.05.2008, the KVS HQs issued an order transferring the petitioner

from Kendriya Vidyalaya, Devas, M.P. to Kendriya Vidyalaya, Kargil (J&K). He

was  relieved  from  his  post  almost  forthwith,  i.e.  06.05.2008.  The  petitioner

addressed representations to the Commissioner, KVS on 21.05.2008 asking him

for cancellation of the transfer orders. Since the petitioner did not join the place of

his  posting,  a  communication  was  addressed  to  him  by  the  Assistant

Commissioner, Bhopal on 09.06.2008, citing provisional loss of lien under Article

81(d)(iii) of the KVS Educational Code. He protested this but the representation

was later  rejected on 18.06.2008.  Apparently,  on the next date,  he initiated a

satyagraha and  later  proposed  a  hunger  strike.  The  Assistant  Commissioner,

Bhopal, on 03.07.2008 issued a show- cause notice as to why disciplinary action

and penalty ought not to be resorted to for omitting to join the place where he was

transferred i.e. Kargil. The petitioner was asked to show cause within ten days.  

5. On 21.07.2008, the petitioner was removed from the services of the KVS.

The order of removal reads as follows:

“Kendriya Vidyalaya Sangathan Bhopal Region

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Opp.Maida Mills Bhopal 462011

F.2-4(MLK)/81(d)/2008/KVS(BPL)4709 Dated:   21/07/2008

Registered A.D./ ORDER

Speed post

Whereas,  Shri  M.L.  Kajodia,  PRT was transferred under  Para 8(iv)of  transfer guidelines effective from 14.03.2006 and amended from time to time,from K V Dewas  to  KV  Kargil  on  administrative  ground  vide  Order  No.F.11046/1/ (AG)/2008/KVSHQ/(Estt.II)dated 05.05.2008 by KVS,  Hqrs,  New Delhi  and he was  relieved  in  the  afternoon  of  06.05.2008  from  KV Dewas  but  he  had  not reported to KV Kargil till date.

Whereas, Shri M.L. Kajodia has not reported to Kendriya Vidyalaya Kargil and remained on un-authorized absent for a period of more than one month. He was issued a  show cause  notice  under  article  81(d)(3)of  Education  Code vide  this office  Memorandum|no.2-4/2008/KVS/BPL/3592  dated  09.06.2008, communicating him that he is deemed to have voluntary abandonment his service and provisionally lost the lien on the post of Primary Teacher.

Whereas,  Shri  M.L.  Kajodia  had  submitted  a  representation  date  12.06.2008 which has been considered sympathetically by the undersigned and replied point- wise Memorandum No.F.2-4/(MLK)/2008-KVS/(BPL)/3845 date 18.06.2008.

Whereas, Shri M.L. Kajodia again submitted a representation dated 24.06.208 and which  has  been  considered  sympathetically  and  replied  vide  letter  No.F.2-4/ (MLK)/2008-KVS/(BPL)/4229 date 03.07.2008 and he was directed to join K V Kargil  within 10 days failing which action would be taken against him as per rules.

Whereas, Shri M.L. Kajodia instead of reporting on duty at K.V.Kargil has been indulging  in  Dharana  and  hunger  strike  which  is  against  Rule  7(ii)of  CCS Conduct Rules 1964 as applicable to KVS employees. His representation including representation dated 08.07.2008 have been considered and undersigned has come to  the  conclusion  that  Shri  M.  L.  Kajodia  could  not  place  any  document  and convincing  reason  for  his  un-authorized  absence  from  duties  without  any application w.e.f. 07.05.2008, in spite of the fact that full opportunity provided to him.

Now, the undersigned is satisfied that Sh. M.L. Kajodia has voluntarily abandoned his services in terms of provisions of sub clause 6 of Article 81(d)of the Education Code.

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Therefore, the undersigned orders confirming the loss of lien on his post. Thus Shri M.L.Kajodia PRT is hereby removed from the services of Kendriya Vidyalaya Sangathan w.e.f. 07.05.2008.

Sd/- (V.K.Shrivastav)

Assistant Commissioner To, Shri M.L.Kajodia 43,Chamundapuri Dewas-455001”

6. The  petitioner  appealed  against  the  order  of  removal  to  the  concerned

appellate authority under Article 81(d) of the Educational Code applicable to the

KVS, on 30.08.2008. On 04.11.2008, the appellate authority rejected the petitioner’s

plea.  The  petitioner  avers  that  several  representations  were  made  to  various

authorities,  including  the  Secretary,  President’s  Secretariat  etc.  He  ultimately

challenged  his  removal  by  filing  OA 33/2011  before  the  Central  Administrative

Tribunal (CAT) at Jabalpur Bench and in its Indore Bench. In this, the CAT directed

the  Secretary,  Ministry  of  Human  Resource  Development  (hereafter  “HRD”,  in

short) to dispose of the petitioner’s appeal through the President.  This order was

apparently not complied with, leading to initiation of contempt proceedings. The

KVS approached the  Madhya Pradesh High Court  by filing  W.P.(C)10789/2002,

aggrieved by the order in contempt proceedings. The High Court dismissed this writ

petition on 07.07.2014 and imposed costs upon the KVS. In these circumstances, the

petitioner asked the Secretary (HRD) to comply with the CAT’s order.  

7. On 23.09.2015,  the Union Minister  of  HRD disposed of  the petitioner’s

appeal,  to  the  President  of  India.  It  is  alleged  that  the  petitioner  made  several

unsuccessful attempts to meet with various high-ranking officials and ministers to

seek redressal of his grievance but met with no success. In these circumstances, he

approached this court claiming the reliefs outlined at the beginning of this judgment.

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8. The petitioner is a self-represented litigant, the court heard him and after

issuing notice,  requested the learned Attorney General to inquire into the case and

examine if some relief could be granted. As a result, various subsequent hearings

were held in these proceedings on 06.05.2019, 05.07.2019, 08.09.2019, 25.10.2019

and 25.11.2019. The Attorney General placed on record, a sealed cover containing

the decisions of the Union Minister for HRD who had facilitated a fresh hearing, to

the petitioner by the incumbent Secretary (HRD) on 30.10.2019. The order of the

Minister, after reciting the background of facts and the proceedings before this Court

stated as follows:

“Whereas, it is clear that, KV, Kargil, where Shri Kajodia was transferred was not on vacation when the transfer orders were issued and after availing joining time, he should have joined the new place of posting on expiry of the joining  time.  It  is,  therefore,  clear  that  the  petitioner,  Shri  Kajodia  had wilfully violated the orders of transfer;

Notwithstanding the above, in the light of the observations of the Hon’ble Supreme Court in its orders dated 9.8.2019 mentioned above, I am inclined to take a lenient view in the matter and the representation dated 29.9.2008 submitted  by  Shri  Kajodia  has  been  considered  sympathetically  and consequently order that he may be reinstated in the service of KVS from the date of  his  removal  from service vide orders dated 21.7.2008 (i.e.  w.e.f. 7.5.2008). However, the period of absence from the duty w.e.f. 7.5.2008 till the date of his joining his duties on reinstatement will be treated as ‘dies non’ for all purposes.”

9. The Central  Government’s order, under cover of  the letter was taken on

record  and  copy  of  it  was  made  available  to  the  petitioner.  Subsequently,  on

17.09.2019, when the matter was listed, the petitioner expressed his reservation with

respect to the proposal to reinstate him but treat the entire period of absence as dies

non. The petitioner submitted that the action of the authorities, particularly, the order

of removal was actuated by  mala fides  and utterly unfair. It is submitted that the

removal order is void on the ground that it is unreasoned and contrary to the rules.

Just because the petitioner did not join KVS Kargil within the time prescribed, the

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same could not have been a justification for his removal or for that matter, to treat

his absence as one leading to abandonment of services. The petitioner relied on Rule

12(2) of the Joining Time Rules to say that Kargil had no summer vacations but

rather had winter vacations from 07.12.2008 to 15.02.2009 and on the other hand, in

Devas,  summer vacation had continued from 04.05.2008 to 22.06.2008. In these

circumstances, the transfer order was made during the summer vacation and that the

petitioner’s joining time would have commenced only after 22.06.2008.

10. The  petitioner  further  submitted  that  even  if  reinstatement  were  to  be

accepted,  the  condition of  dies  non  is  extremely  harsh  inasmuch as 12 years  of

service  would  stand  forfeited  and  he  would  be  deprived  of  all  benefits  of  pay,

increased DA, accrual of PF and pension benefits.

11. The facts discussed reveal petitioner has approached this Court and sought

substantive reliefs under Article 32 of the Constitution after almost 9 years of the

accrual of cause of action. He approached the CAT which disposed of an application

on  10.08.2011  with  a  direction  that  he  could  approach  it  afresh  after  the

application/fresh  petition  preferred  by  him  to  the  President  was  dealt  with  and

disposed of.  As a matter of fact, the petition - in the nature of a mercy plea, was not

disposed of;  the petitioner initiated contempt  proceedings which led to the KVS

approaching the Madhya Pradesh High Court. The High Court rebuked the KVS and

granted  time  to  it  to  comply  with  the  directions.  Eventually,  the  Minister,  on

23.09.2015 rejected the mercy petition.

12. Having regard to the fact that the petitioner himself did not seek redressal

substantively of his grievance, given that the petitioner did not approach the Court in

a timely manner – (the application made to CAT itself was after three years of the

removal order), and furthermore, has approached this court directly, it would not be

appropriate to examine the correctness of the decision of the order of removal by the

KVS. At the same time, the court had felt that the order of removal constituted a

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harsh disciplinary measure and that the petitioner could be meted a lighter penalty. It

was  with  this  in  mind  the  Attorney  General  was  asked  to  intervene  and  obtain

instructions from the Central Government. The order made by the Union Minister

now is clear that the petitioner would be taken back into the services in the post that

he held at the time of removal.   At the same time, the Central Government has

clarified that the entire period of absence, i.e. from the date of removal till the date

he rejoins would be treated as dies non for which no benefit would accrue to him.

13. This  court  is  of  the  opinion  that  the  position  taken  by  the  Central

Government not to grant substantive benefit for the duration of absence cannot be

per se termed harsh and arbitrary. The petitioner did not join the place KV Kargil,

nor  did  he  approach  the  court  at  the  relevant  time  or  even  after  his  removal

contemporaneously.  In  these  circumstances,  conceding  the  benefit  of  arrears  of

salary, seniority and continuity, arrears of salary and related benefits would not be

fair. However, placing the petitioner in the same position he was as on 07.05.2008

(the date of his removal) would be what could be extremely harsh, in the opinion of

the court, inasmuch as he would draw salary at the stage at which he was almost 12

years ago.  

14. In the peculiar circumstances, in the opinion of this Court, the interest of

justice lies in suitably modifying the order proposed by the Central Government.

Although the petitioner would not be entitled to the payment of arrears of salary for

the period he was out of service, the KVS should issue a separate order fixing his

salary having regard to notional increments effective from the date he would have

been entitled to the increment in the year 2009 after taking into consideration the

relevant increments which accrue thereafter. In other words, the petitioner should be

reinstated, and at the same time, the pay fixation order should ensure that the period

of absence which would otherwise be treated as dies non is ignored for the purpose

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of fixation and fitment of salary alone. The order can also expressly state that the

benefit of arrears of salary would not accrue to the petitioner.

15. In view of the foregoing discussion,  a  direction is  issued to the Central

Government to reinstate the petitioner by firstly issuing an order spelling out the

terms of his reinstatement and the place of his posting as well as granting him three

weeks’ time to join his post. Simultaneously, a pay fixation and fitment of salary

order in accordance with the directions of this court should be issued within four

weeks from today. It is made clear that this order as well as the order reinstating the

petitioner should not in any manner disturb the benefit which had accrued to him for

the  admitted  period  of  his  service,  i.e.  from the  date  of  initial  recruitment,  i.e.

05.11.1981 till 21.06.2008.

16. The writ petition is disposed of in the above terms without order on costs.

.…....................…….....................J.                                                  [R. F. NARIMAN]     

………….......................................J.                                              [S. RAVINDRA BHAT]

     New Delhi,       January 8, 2020.