Ranbir Singh & Ors. vs Ndmc & Anr.
2017 Latest Caselaw 289 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 9543-53/2004

%                                                          17th January, 2017

RANBIR SINGH & ORS.                                           ..... Petitioners
                  Through:               Mr. Pramod         Kumar Sharma,
                                         Advocate.
                           versus
NDMC & ANR.                                                  ..... Respondents

                           Through:      Mr. Vikas Mathur, A.O. and Mr. K.L.
                                         Miglani, A.A.O. of respondent no.
                                         2/NSES.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the 11 petitioners. Petitioners are

employees of a school which is run by respondent No.2/Navyug School

Education Society. Respondent No.2/Navyug School Society is managed by

respondent No.1/New Delhi Municipal Council. Petitioners by the writ

petition besides pleading their entitlement of ACP scheme also pray for

quashing of office order dated 10.12.2002 as per which out of the 11

petitioners 8 petitioners have already been granted the ACP benefits but at a

lower pay scale than as being prayed by the petitioners.

2. This impugned order dated 10.12.2002 reads as under:-

"NAVYUG SCHOOL, LAXMI BAI NAGAR OFFICER ORDER

No. 67/NS/LBN/2002 Dated: 10/12/2002

In pursuance of O.O. No. 641/NSES/M/SEC.Y/2002 dated 3/12/2002 the following group „D‟ employees are granted Pay scale of Rs. 2610-60-2910-65- 3300-70-4000 (S. 2A) under ACP Scheme w.e.f. 9/8/99.

     S.No.          Name                         Designation
     1.             Sh. Ranbir Singh             Peon
     2.             Smt. Prema Mehta             K.G. Attendant
     3.             Smt. Kamla                   K.G. Attendant
     4.             Smt. Kamlesh                 Kitchen Attendant
     5.             Sh. Harikrishan Kukreti      Bus Conductor
     6.             Sh. Balbir Singh             Bus Conductor
     7.             Sh. Bhagwan Pal              Chowkidar
     8.             Sh. Abhey Singh              Chowkidar

The above-mentioned employees are hereby directed to exercise their option under FR 22 for fixation of Pay within one month for the date of issue of these orders.

Sd/-

(Mrs. U.S. Tomar) Principal

Copy to :-

1. Individual concerned

2. Personal File

3. Accounts Clerk

4. O.O. Book"

3. Admittedly, there is an ACP Scheme and this is not disputed on

behalf of the respondents. Respondent no.2, however, pleads that the

petitioners have already been granted benefit of the ACP scheme w.e.f.

09.08.1999 as per the pay scale of Rs.2610-60-2910-65-3300-70-4000.

Respondent no.2, however pleads that so far as petitioners being petitioner

no.6/Smt. Kamla, petitioner no.8/Sh. Balbir, petitioner no.9/Smt. Vijay

Laxmi, petitioner no.10/Sh. Abhay Singh & petitioner no.11/Sh. Bagwan

Pal, these persons were wrongly granted ACP scheme benefits inasmuch as

these five petitioners Smt. Kamla, Sh. Balbir, Smt. Vijay Laxmi, Sh. Abhay

Singh and Sh. Bagwan Pal ought not to have been granted the ACP benefits

because for grant of ACP benefits, the employees must at least have

qualification of being 10th class pass, however, these five persons Smt.

Kalma, Sh. Balbir, Smt. Vijay Laxmi, Sh. Abhay Singh and Sh. Bagwan

Pal are only 8th class pass. Accordingly, respondent no.2 states that these

five petitioners have wrongly been granted the ACP benefits by the

impugned order dated 10.12.2002 and the same would be withdrawn.

4. Two issues arise in this writ petition. First issue is that whether

the 11 petitioners satisfy the eligibility criteria for being granted first ACP

benefit after 12 years of service, and the second issue is as to whether the

petitioners have to be granted which particular higher pay scale if not the

one of Rs.2610- Rs.4000/- as stated in the impugned order dated 10.12.2002

which has been reproduced above.

5. Firstly, it is seen that entitlement of being given a higher pay

scale under the ACP Scheme is on account of an employee satisfying the

eligibility criteria for being promoted/appointed to the higher post, and that

since there are lack of avenues of promotions to the higher posts on account

of sufficient vacant posts not existing or sufficient posts not existing,

accordingly ACP scheme was framed for granting a higher pay scale of the

higher post so as to avoid stagnation in services. As per the relevant

recruitment rule in question for the higher post of Junior Clerk-cum-Typist,

being a group "C" post higher than the group "D" post in which the

petitioners are working, it is seen that there is requirement of the candidates

inter alia having a senior secondary/intermediate school certificate from a

recognised board/university. Five petitioners petitioner no.6/Smt. Kamla,

petitioner no.8/Sh. Balbir, petitioner no.9/Smt. Vijay Laxmi, petitioner

no.10/Sh. Abhay Singh and petitioner no.11/Sh. Bagwan Pal as per the

counter affidavit filed by the respondents are only 8th class pass and nothing

has been filed by the petitioners to show that these five petitioners have the

secondary school qualifications, i.e are at least 10th pass, and therefore, these

five petitioners in any case cannot get benefit of ACP scheme.

6. Writ petition, accordingly, stands dismissed so far as these five

petitioners being petitioner no.6/Smt. Kamla, petitioner no.8/Sh. Balbir,

petitioner no.9/Smt. Vijay Laxmi, petitioner no.10/Sh. Abhay Singh and

petitioner no.11/Sh. Bagwan Pal are concerned inasmuch as these five

petitioners do not satisfy the eligibility criteria for the higher group "C"

post.

7. So far as the remaining six other petitioners, namely, petitioner

no.1/Ranbir Singh, petitioner no.2/Smt. Kamlesh Rana, petitioner no.3/Smt.

Prema Mehta, petitioner no.4/Sh. Hari Kishan, petitioner no.5/Sh. Ashok

Kumar and petitioner no.7/Sh. Chander Prakash are concerned, these persons

are having educational qualification of either 10th pass or 12th pass, and

therefore, these petitioners do satisfy the eligibility requirement of the ACP

scheme, however, the issue still remains as to what is the pay scale of the

higher post of Junior Clerk-cum-Typist and which pay scale is to be granted to

these petitioners. In the opinion of this Court, such petitioners would be

granted the pay scale of Rs.2610-Rs.4000/- as stated in the letter of the

respondent no.2 dated 10.12.2002 unless these petitioners would show that the

pay scale of group "C" post is not Rs.2610-Rs.4000/- and that then which

higher pay scale of the group "C" post. In this regard, it is seen that petitioners

have failed to file any documentary proof that what is the pay scale of a group

"C" post of Junior Clerk-cum-Typist as on 9.8.1999 when the ACP scheme

became effective and when these six petitioners had completed 12 years of

service. In view of such a situation this Court would therefore have to take the

first ACP scheme benefit for these six petitioners in the pay scale of Rs.2610-

Rs.4000/- as stated in the letter of the respondent no.2 dated 10.12.2002. I

cannot agree with the argument urged on behalf of the petitioner that pay scale

of Junior Clerk-cum-Typist is Rs.3050-75-3950-80-4590 as stated in the

counter affidavit of the respondent no.1/NDMC dated 13.12.2005 inasmuch as

the said higher pay scale is for the second ACP scheme benefit after

completion of 24 years and not the first ACP scheme benefit which is to be

given after 12 years as on 09.08.1999. As on 09.08.1999, therefore, we would

have to go by the pay scale as stated in the impugned order dated 10.12.2002.

These six petitioners are, therefore, granted ACP scheme benefits w.e.f.

09.08.1999 at the pay scale of Rs.2610-60-2910-65-3300-70-4000/-

8. In view of the above, this writ petition is dismissed so far as five

petitioners being petitioner no.6/Smt. Kamla, petitioner no.8/Sh. Balbir,

petitioner no.9/Smt. Vijay Laxmi, petitioner no.10/Sh. Abhay Singh and

petitioner no.11/Sh. Bagwan Pal are concerned, but, the writ petition is allowed

with respect to six other petitioners being petitioner no.1/Ranbir Singh,

petitioner no.2/Smt. Kamlesh Rana, petitioner no.3/Smt. Prema Mehta,

petitioner no.4/Sh. Hari Kishan, petitioner no.5/Sh. Ashok Kumar and

petitioner no.7/Sh. Chander Prakash with the observation that ACP scheme

benefit to be granted to these petitioners will be as per the pay scale of

Rs.2610-Rs.4000/- as stated in the impugned order dated 10.12.2002. Writ

petition is accordingly allowed to the extent of six petitioners but is dismissed

so far as five other petitioners as stated above. Parties are left to bear their own

costs.

JANUARY 17, 2017/ TR                                 VALMIKI J. MEHTA, J