ORDER
1. The first respondent was working as a Trained Graduate Teacher (Sanskrit) at Kendriya Vidyalaya No. 2, Bhopal. He was placed under suspension pending enquiry by the third petitioner, by order dated 13-7-2001, with a stipulation that his headquarter during the suspension will be Kendriya Vidyalaya, Bairagarh, Bhopal. Subsequently, a charge-sheet dated 16-10-2001 was issued alleging misbehaviour with the Principal Shri A.K. Katiyar.
2. The first respondent appealed against the order of suspension on 5-11-2001 to the second petitioner. The second petitioner after considering the appeal, passed an order dated 6/8-7-2002, under Rule 10(5)(c) of the CCS (CCA) Rules, 1965, revoking the suspension of the first respondent and posting him to K.V., Karimganj, Assam, with effect from the date he joins duty at K.V., Karimganj, without prejudice to the disciplinary proceedings pending against him.
3. The said order of the Appellate Authority, was followed by a memo dated 9/12-8-2002 issued by Education Officer (Vigilance) attached to the first petitioner, calling upon the first respondent to get himself relieved from K. V., Bairagarh immediately and join at K. V., Karimganj within 15 days and that failing compliance, the suspension will continue. Feeling aggrieved, the first respondent approached the Central Administrative Tribunal, Jabalpur in O.A. No. 487/2002 for quashing that part of the order dated 6/8-7-2002 by which he was transferred to K.V., Karimganj in Assam and the condition that his suspension will be revoked on joining at K.V., Karimganj. The Tribunal by order dated 6-8-2002 disposed of the matter with a direction to consider representation dated 10-7-2002 submitted by the first respondent in respect of his transfer to K.V., Karimganj, within four weeks by a speaking order. The Tribunal also directed that till disposal of the representation, the order dated 6/8-7-2002 to the extent it posted first respondent to K.V., Karimganj shall remain stayed. In compliance with the said order, the first petitioner passed a speaking order dated 6-9-2002 reiterating that the revocation of suspension and posting first respondent at K.V., Karimganj was neither malafide nor colourable exercise of power and was done in administrative exigencies. It was also observed that the services of employees of the Kendriya Vidyalayas are transferable all over the country in administrative exigencies. Consequently, the representation dated 10-7-2002 was rejected. In pursuance of it, the first respondent was relieved on 11-9-2002 from K.V., Bairagarh with a direction to report to duty to Principal K.V., Karimganj.
4. The first respondent thereafter again approached the Tribunal in O.A. No. 648/2002 for quashing the order dated 6/8-7-2002 to the extent it made the revocation of suspension subject to his reporting to duty at K.V., Karimganj and also praying for quashing of the consequential orders dated 9/12-8-2002, 6-9-2002 and 11-9-2002. He also sought a direction to petitioners to treat him as having being reinstated at Bhopal and to continue him at Bhopal without subjecting him to any harassment or victimization by shifting or transfer.
5. The Tribunal by order dated 6-5-2003 allowed the said application. The Tribunal held that an order of transfer can not be clubbed with an order revoking suspension. It also held that Rule 10 read with the format of order of revocation of suspension did not contemplate revocation being linked or coupled with any transfer. The Tribunal held that when a person is suspended, his lien is maintained on the post from which he was suspended and after revocation of suspension, he automatically stands reinstated on that post from which he was suspended and only thereafter any question of transfer will have to be considered, if required, in administrative exigencies. The Tribunal, therefore, allowed the petition and quashed the order dated 6/8-7-2002 in so far as it posted first respondent to K.V., Karimganj and also quashed consequential orders dated 9/12-8-2002, 6-9-2002 and 11-9-2002. The Tribunal declared the suspension was deemed to have been revoked on 6/8-7-2002 and consequently the first respondent is entitled to all consequential benefits.
6. The said order of the Tribunal is challenged in this petition filed on 15-7-2003. This Court on 25-8-2003 stayed the operation of the order of the Tribunal dated 6-5-2003.
7. It is stated by the petitioners that when the matter came-up on 3-11-2003, the Bench made an observation that the petitioners may consider posting the first respondent to any nearer place within the State to put an end to the litigation. The order sheet does not however record any such observation. Purportedly in compliance with the said observation, the first petitioner passed the following order dated 7-11-2003 :–
“WHEREAS the suspension of Shri R.K. Shahstri, Ex-TGT (Sans) Kendriya Vidyalaya No. 2, Bhopal was revoked vide order dated 8-7-2002 by posting him at Kendriya Vidyalaya, Karimganj.
WHEREAS learned Counsel for KVS vide his letter dated 4-11-2003 has stated that during the course of hearing on 3-11-2003 on W.P. No. 4384/2003 the Hon’ble High Court has opined to post Shri R.K. Shahstri in the nearer Regions to the M.P. State within a week.
NOW THEREFORE, in compliance with the above directions of Hon’ble High Court the Competent Authority has decided to modify his place of posting from the Kendriya Vidyalaya, Karimganj to Kendriya Vidyalaya, Mandsor without prejudice to the Disciplinary Proceedings initiated against him. Accordingly the said Shri R.K. Shahstri is directed to report for duty immediately.”
We are informed that the first respondent has not however report to duty even at K.V., Mandsor. Be that as it may.
8. The first question that arise for consideration is whether the Appellate Authority was justified in subjecting the revocation of suspension to a condition that revocation will come into effect only on the employee reporting to duty at a far away place of transfer. The answer can be found in the CCS (CCA) Rules.
9. Rule 10 of the CCS (CCA) Rules which has been adopted by the Kendriya Vidyalaya Sangthan, empowers the specified Authorities to place an employee under suspension pending disciplinary proceedings. Rule 10(5)(a) also provided that the order of suspension shall continue in force until it is modified or revoked by the authority competent to do so. Clause (c) of Sub-rule (5) of Rule 10 provides that an order of suspension made, may at any time be modified or revoked by the Authority which made it or by any authority to which that authority is subordinate.
9.1. Rule 23 provides for an appeal against several types of orders. Clause (i) provides for an appeal against an order of suspension. Rule 27 deals with consideration of appeal. Sub-rule (1) of Rule 27 provides as follows : “In the case of an appeal against an order of suspension, the Appellate Authority shall consider whether in the light of the provisions of Rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order of suspension accordingly.”
9.2. Rule 27 relating to consideration of appeals contains three distinct provisions. Sub-rule (1) deals with appeals against suspension. Sub-rule (2) deals with appeals against imposition of penalty. Sub-rule (3) deals with appeals against other orders specified in Rule 23. While Sub-rule (2) enables the Appellate Authority to issue such directions as it may deem fit in the circumstances of the case and Sub-rule (3) enables the Appellate Authority to make such orders as it may deem just and reasonable, significantly Sub-rule (1) does not vest any such wide or discretionary power on the Appellate Authority while dealing with appeals against orders of suspension. Sub-rule (1) merely enables the Appellate Authority to either confirm the suspension or revoke the suspension. Rule 27(1) controls the manner of consideration and disposal of an appeal against suspension. Having regard to Sub-rule (1) of Rule 27, the Appellate Authority has no power, while considering an appeal against an order of suspension or while revoking the suspension, to direct transfer of an employee or making the revocation or suspension subject to the employee reporting at the place of transfer.
9.3. The reason behind Sub-rule (1) of Rule 27 not giving the wide latitude or discretion to the Appellate Authority, as done under Sub-rule (2) or (3) of Rule 27, is obvious. Suspension pending enquiry is not a punishment. But it causes prejudice and hardship to the employee as it prevents him from performing his legitimate duties and earning his salary and subjects him to a payment of a subsistence allowance far below his salary and further subjects him loss of reputation. An appeal is provided only to consider whether the suspension should be confirmed or not. Therefore, the question of Appellate Authority transferring the suspended employee as a condition of revocation, or making the revocation subject to the employee reporting at the place of transfer, does not arise.
10. The order dated 6/8-7-2002 is not passed by the authority who passed the order of suspension, but by the Appellate Authority in exercise of appellate power, while dealing with an appeal filed by the employee. While exercising the appellate power under Rule 23 read with Rule 27(1), the Appellate Authority can either confirm the suspension or revoke the suspension. Therefore the second respondent, while passing the order dated 6/8-7-2002, could not have transferred the employee or make the revocation of suspension subject to the employee reporting at the place of transfer. The order of the Appellate Authority to the extent it subjects the revocation of suspension conditional to reporting to duty at K.V., Karimganj is therefore illegal and inoperative.
11. It is well settled that when an employee is kept under suspension pending enquiry, he retains his lien over the post from which he is suspended. It is also a settled position that the station of posting immediately before suspension would be the headquarter vis-a-vis the suspended employee, unless the Competent Authority changes the headquarter of the suspended employee in public interest. It is also well settled that any vacancy caused on account of suspension pending enquiry, is to be filled by a reservist and where a reservist is not available by officiating appointment. Therefore on revocation of suspension, the employee becomes entitled to report back to his place of posting from where he was suspended. Once he reports back to duty, the employer may, in exercise of power of transfer, transfer him. Therefore, we agree with the finding of the Tribunal that the order of the Appellate Authority dated 6/8-7- 2002 to the extent it posts the first respondent to Karimganj and makes the revocation of suspension effective from the date of reporting at K.V., Karimganj, is invalid and liable to be quashed.
12. It follows therefore that the suspension stood revoked with effect from 8-7-2002 and the petitioners could not have been relieved him from Bhopal. As a consequence of revocation of suspension and as a consequence of the action of the petitioners in not permitting him to report back to duty at Kendriya Vidyalaya No. 2 Bhopal, the first respondent will be entitled to all consequential benefits. He will be deemed to be on duty at K.V. No. 2, Bhopal from 8-7-2002 will all monetary benefits. In so far as order dated 7-11-2003 passed during the pendency of this petition, it has no legal sanctity. As a consequence of upholding of the order of the Tribunal, the said order becomes ineffective.
13. The petition is, therefore, dismissed. This will not, however, come in the way of the petitioners passing a regular order of transfer in regard to first respondent in exigencies of service or in public interest prospectively.