Kendriya Vidyalaya Sangathan (KVS) and others v. Janaki Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **OP (CAT).No.293 OF 2019** ## **AGAINST THE ORDER IN OA 641/2015 DATED 26-03-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 COMMISSIONER KENDRIYA VIDYALAYA SANGATHAN(KVS), HEAD QUARTERS, 18, INSTITUTIONAL AREA, SHAHEED JEET JINGH MARG, NEW DELHI-110067, REPRESENTED BY DEPUTY COMMISSIONER, ERNAKULAM REGION** - **2 DEPUTY COMMISSIONER KENDRIYA VIDYALAYA SANGATHAN, HEAD QUARTERS, 18, INSTITUTIONAL AREA, SHAHEED JEET JINGH MAR, NEW DELHI-110067, REPRESENTED BY DEPUTY COMMISSIONER, ERNAKULAM REGION** - **3 THE DEPUTY COMMISSIONER KENDRIYA VIDYALAYA SANGATHAN, REGIONAL OFFICE, ERNAKULAM** **BY ADV. SRI.K.I.MAYANKUTTY MATHER, SC, KENDRIYA VIDYALAYA SANGATHAN** ## **RESPONDENT/S:** **JANAKI MENON W/O.C.K.MENON, LIBRARIAN(RETIRED) KENDRIYA VIDYALAYA, PURANATTUKARA.P.O., THRISSUR, RESIDING AT VRINDAVAN, ODATH LIN,E THIRUVAMBADY.P.O., THRISSUR-680022** **R1 BY ADV. P.V.MOHANAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) No. 293 of 2019 -2- ## **JUDGMENT** Dated this the 26[th] day of November 2019 ## **K.VINOD CHANDRAN, J.** The question of benefit under Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Act of 1995' for short) again arise in this case. On facts, it has to be noticed that the applicant joined as a Trained Graduate Teacher (TGT) in the Kendriya Vidyalaya Sangathan on 9.9.1985. She was granted senior scale on completion of 12 years on 1.9.1997. She claims further grant of selection scale on 9.9.2009, when she completed another 12 years in the post of TGT with senior scale. 2. The qualifications required for promotion to senior scale and selection scale is available at Annexure R3(a). A O.P.(CAT) No. 293 of 2019 -3- TGT, who is included as Category (b) in Annexure R3(a), is entitled to senior scale after completion of 12 years in the post of TGT. A senior scale TGT is entitled to be posted as a selection scale TGT on completion of further 12 years in the senior scale and attainment of qualifications laid down for Post Graduate Teachers (PGT). PGT's should possess post graduate qualification, which the applicant has. However, the promotions are also regulated by Clause (iv) which we extract hereunder:- _“(iv) Every teacher would be required to participate in and inservice training programme of at least three weeks duration before he/she crosses an EB or is promoted to senior scale or selection scale, i.e, once in every six years, provided that where arrangements for such training cannot be made, the appointing authority may exempt a category of teachers for a specific period of time.”_ 3. The Tribunal directed the applicant to be granted the selection scale by virtue of Rule 20 of the Rights of Persons with Disabilities Act, 2016. In fact the said Act had O.P.(CAT) No. 293 of 2019 -4- not come into force at the relevant time. But, Section 47(2) of the Act of 1995 provides for the same relief. As per the above provision, no promotion shall be denied to a person merely on the ground of his disability. The Honourable Supreme Court has, in _**Union of India and another v. Devendra Kumar Pant [(2009) 14 SCC 546]**_ held that if the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion, merely on the ground of his disability. Hence, on promotion, person with disability should be able to discharge the duties in the promoted post. The Honourable Supreme Court also noticed a promotion from LDC to the post of UDC which has similar duties, where a disability of a person continuing in the post of LDC cannot O.P.(CAT) No. 293 of 2019 -5- stand against him for a promotion to the post of UDC. 4. Dilating further on the facts arising in the present case, a misfortune struck the applicant on 29.8.2003 by way of a debilitating illness. She was on leave for almost two years from 29.8.2003 to 1.4.2005, within which period, she was subjected to two surgeries. She joined duty on 1.4.2005 and continued up to 7.8.2006 when again the illness forced her to take leave. She was on leave from 7.8.2006 to 8.12.2009. Considering her incapacities brought about by the illness which is a disability as per the Act of 1995, the applicant, by Annexure A5, created a supernumerary post of Librarian on 23.11.2009, in which she joined on 9.12.2009, after completing her leave. In such circumstances, on 9.9.2009, when she was entitled to a selection scale, she was on leave and even if she had been posted in the supernumerary post, there is no question of her discharging O.P.(CAT) No. 293 of 2019 -6- duties in the post of a TGT selection scale, in which case, she would be disabled from the grant of selection scale in a higher scale of pay. 5. The learned Counsel appearing for the applicant urged us to refer the matter as this is similar to the case in O.P.(KAT) No.260 of 2019 where we had referred the decision in _**Union of India and another v. N. Chandralal and another [2017 (1) KHC 898]**_ , to a larger Bench. We would have normally referred this case too, but for another compelling circumstance arising in this case. 6. The extracted portion of Annexure R3(a) indicates that every teacher would be required to participate in an inservice training programme of at least three weeks duration before he or she crosses the efficiency bar or is promoted to senior scale or selection scale; that too within the block period of each 6 years coming within the 12 year periods. It O.P.(CAT) No. 293 of 2019 -7- is admitted that in the 12 years, when she was continuing in the post of senior scale, she had not attended any in-service training programme. 7. The learned Counsel for the applicant, however, submits that she had undergone six weeks training prior to her promotion to the post of senior scale on 1.9.1997. It is submitted that the requirement as per Annexure R3(a) is only that a person should have completed at least three weeks training in her service at any point of time which would enable promotion to the post of senior scale as also selection scale. 8. We are unable to agree with the above contention especially, since Clause (iv) of Annexure R3(a) specifies that the training should be of three weeks duration and should be before promotion to senior scale or selection scale once in every six years. Hence, in the intervening period of O.P.(CAT) No. 293 of 2019 -8- promotion from TGT to senior scale TGT, there should be six weeks of training; one each of three weeks in the six year block periods, totalling 12 which only would enable her promotion to the post of senior scale. The six weeks training the applicant undertook prior to 1.9.1997 would only enable her promotion to the post of senior scale. She cannot claim that a six weeks in-service training in 24 years, would enable her further promotion to the post of selection scale. She ought to have attended in-service training in each of the six year periods, each of duration of three weeks. It is also to be specifically noticed that the applicant was fit to carry on the duties of a TGT in the first six years after the promotion to the post of senior scale and during which period also she had not undertaken the training of three weeks. In such circumstances, we do not speak on the merits O.P.(CAT) No. 293 of 2019 -9- on the question of prohibition under Section 47(2) of the Act of 1995. We find the applicant ineligible for selection scale promotion for reason of her not having undergone the three weeks in-service training in each of the six years after posting as senior scale TGT. We hence allow the original petition, setting aside the order of the Tribunal. No order on costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/26.11x -10- O.P.(CAT) No. 293 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A NO.641/2015 ALONG WITH ANNEXURES FILED BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 TO 3 (PETITIONERS HEREIN) IN OA 641/2015 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL EXHIBIT P3 TRUE COPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT ADDITIONAL DOCUMENTS EXHIBIT P4 TRUE COPY OF THE MISCELLANEOUS APPLICATION TO ACCEPT ADDITIONAL DOCUMENTS EXHIBIT P5 TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL IN OA 641/2015 EXHIBIT P1(A1) TRUE COPY OF THE ORDER FILE NO.(56) PENSION/2012-13/KVS(EKMR)/ 6160 SANCTIONING PENSION AND DEATH GRATUITY EXHIBIT P1(A2) TRUE COPY OF THE PROCEEDINGS EXHIBIT P1(A3) TRUE COPY OF THE REPRESENTATION EXHIBIT P1(A4) TRUE COPY O THE MEDICAL CERTIFICATE ALONG WITH COVERING LETTER NO.C3.10810/09/DMOH EXHIBIT P1(A5) TRUE COPY OF THE PROCEEDINGS NO.F 172/2007/KVS(HQ) 9ESST-II) EXHIBIT P3(A6) TRUE COPY OF THE ORDER IN OA** O.P.(CAT) No. 293 of 2019 -11- **NO.824/2011 EXHIBIT P3(A7) TRUE COPY OF THE JUDGMENT IN OP (CAT)NO.3708/2013 EXHIBIT P4(A8) TRUE COPY OF THE MEDICAL REPORT AND CERTIFICATE ISSUED IN FORM -III UNDER RULE 4 OF THE PERSON WITH DISABILITIES(EQUAL OPPORTUNITIES, PROTECTION OF RIGHT AND FULL PARTICIPATION) RULES, 1996**