- (1.) By means of present writ petition, the Petitioners have challenged the judgment and order dated 17.3.2009 passed by the learned Central Administrative Tribunal, Lucknow Bench (hereinafter referred to as the "Tribunal") by means of which the original application preferred by the opposite party No. 1 was partly allowed and the directions are issued to reinstate opposite party No. 1 forthwith.
(2.) As per the pleadings of the writ petition, the brief facts of the case are as under: The opposite party No. 1 was appointed as Trained Graduate Teacher (Sanskrit) vide order dated 23.1.1992 and joined on 10.2.1992 at Kendriya Vidyalaya KRIBHCO Town and as per the provisions of para 5(1) of transfer guidelines, the Principal and Chairman Kendriya Vidyalaya, KRIBHCO Surat recommended the transfer of opposite party No. 1 vide letter dated 10.4.2000 and the opposite party No. 1 was transferred from Kendriya Vidyalaya, KRIBHCO, Surat to Kendriya Vidyalaya, National Thermal Power Corporation, Jhanor by means of order dated 13.12.2000. The opposite party No. 1 was relieved from Kendriya Vidyalaya, KRIBHCO, Surat on 22.12.2000. The Principal, Kendriya Vidyalaya, National Thermal Power Corporation, Jhanor intimated by means of letter dated 18.1.2001 that opposite party No. 1 has neither joined her duties in Kendriya Vidyalaya, National Thermal Power Corporation, Jhanor nor sent any communication. The Kendriya Vidyalaya Sangathan, in exercise of the powers conferred by Regulation 22 of the Memorandum of Rules of the Kendriya Vidyalaya Sangathan, Board of Governors has in its meeting held on 17th July, 2000 framed and inserted Article 81(d)-'Voluntary Abandonment of Service' in the Education Code. It is also clarified that in cases where a teacher/employee has been transferred but has not joined at such place, the powers and functions of an appointing authority shall continue to be exercised by the appointing authority from where a teacher/employee has been transferred till such teacher/employee joins at his new place of posting. Since opposite party No. 1 has not reported her duties at transferred place i.e. Kendriya Vidyalaya Jhanor, therefore, show cause notice was issued under Article 81(d) (3) of the Education Code for provisional loss of lien on the post held by her as she remained absent w.e.f. 23 December, 2000 without sanctioned leave, vide order dated 08.02.2001 through registered post and she was called upon to submit written representation to the Assistant Commissioner within ten days.
(3.) The Deputy Commissioner (Administration) Kendriya Vidyalaya Sanghthan, New Delhi asked vide letter dated 13.3.2001 that in case Smt. B.R. Pandey (opposite party No. 1) has submitted any application for leave, the same may be forwarded to the Headquarter and in reply to the same, the Assistant Commissioner, Kendriya Vidalaya Sangathan, Ahmedabad Region informed to the Deputy Commissioner (Admn.) by means of letter dated 16.3.2001 that opposite party No. 1 has sent letter dated 15.2.2001 along with a copy of out door patient ticket No. 28430 from Balrampur Hospital, Lucknow and she did not apply for any kind of leave. The memorandum dated 31.5.2001 was issued by the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Ahmedabad to opposite party No. 1 and opposite party No. 1 was given another opportunity to submit her representation or present herself before the competent authority for personal hearing on 22.6.2001. The opposite party No. 1 neither submitted her representation in pursuance of memorandum dated 31.5.2001 nor she appeared on the date fixed for personal hearing and, therefore, order dated 28.8.2001 was passed and issued to her through registered post confirming the order of voluntary abandonment of service w.e.f. 23.12.2000, according to which she is deemed to have been removed from service w.e.f. 23.12.2000 from the post of TGT (Sanskrit). The order dated 28.8.2001 returned back unserved, hence the same was served personally to the opposite party No. 1 through responsible employee of Kendriya Vidalaya Sanghthan, Lucknow region at her Lucknow address in presence of two witnesses. The opposite party No. 1 submitted an appeal dated 24.9.2001 to the appellate authority against the order dated 28.8.2001, which was considered and the same was disposed of vide order dated 17.6.2002.;