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SCA/4063/2010 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4063 of 2010
=========================================
SUBBIAH
RAMASAMY S/O RAMASAMY REDDIAR - Petitioner(s)
Versus
KENDRIYA
VIDYALAYA SANGATHAN & 2 - Respondent(s)
=========================================
Appearance :
MR
MS RAO for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 29/04/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The
petitioner has invoked Articles 226 and 227 of the Constitution to
challenge order dated 16.02.2010 of the Central Administrative
Tribunal, whereby the petitioner’s application was dismissed in
limine. The facts, which formed the basis of the impugned order
and which are not in dispute, are that the petitioner was placed in
the selection list of direct selectees for the post of Administrative
Officer, while he was serving as a Section Officer in the Kendriya
Vidyalaya Sangathan. Even as the petitioner was due and eligible for
appointment on the basis of his selection, he was facing a
charge-sheet within three months of the selection, before he could be
appointed on the basis of the selection. Under the circumstances, the
Tribunal took the view that petitioner’s participation in the
selection process was on the condition of vigilance clearance and
that condition continued to hold the field during the entire process
till appointment was made. Besides that, by the time petitioner
approached the Tribunal, the selection list had expired and no
ulterior motive could be attributed to the respondent in not making
appointment of the petitioner, before charge-sheet was issued to
the petitioner.
2. By
now, admittedly, the selection list has expired since August,2009,
whereas the petitioner had approached the Tribunal in February,2010,
and hence, name of the petitioner being on the selection list loses
the remainder of its importance. Learned counsel could not point out
any legal provision or precedent in support of the submission that
inspite of the petitioner being charge-sheeted, he was entitled to be
appointed on account of being on the panel of selected candidates.
Learned counsel, however, relied upon judgement of the Apex Court in
Union of India Vs. K.V.Janakiraman [AIR 1991 SC 2010]
emphasizing the observations as under made therein:
6 :
On the first question, viz., as to when for the purposes of the
sealed cover procedure the disciplinary/criminal proceedings can be
said to have commenced, the Full Bench of the Tribunal has held that
it is only when a charge-memo in a disciplinary proceedings or a
charge-sheet in a criminal prosecution is issued to the employee that
it can be said that the departmental proceedings/criminal prosecution
is initiated against the employee. The sealed cover procedure is to
be resorted to only after the charge-memo/charge-sheet is issued. The
pendency of preliminary investigation prior to that stage will not be
sufficient to enable the authorities to adopt the sealed cover
procedure. We are in agreement with the Tribunal on this point. The
contention advanced by the learned counsel for the
appellant-authorities that when there are serious allegations and it
takes time to collect necessary evidence to prepare and issue
charge-memo/charge-sheet, it would not be in the interest of the
purity of administration to reward the employee with a promotion,
increment etc., does not impress us. … … …
The
above observations made in the facts and context of that case, in our
opinion, do not apply in the facts of the present case. Therefore,
the petition is summarily dismissed.
[D.H.WAGHELA,
J.]
[M.D.SHAH,
J.]
Jyoti
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