Mahesh Kumar And Ors. vs South Delhi Municipal ...
2017 Latest Caselaw 2241 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                      Decided on: 05.05.2017

+      W.P.(C) 3874/2017

       MAHESH KUMAR AND ORS.                                 ..... Petitioners
                          Through: Mr Ranjit Sharma, Adv.
                          versus
       SOUTH DELHI MUNICIPAL CORPORATION AND ORS.
                                                     ..... Respondents

Through: Mr G.D. Mishra, Standing Counsel for respondent Nos. 1&2/SDMC CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE DEEPA SHARMA HON'BLE MS. JUSTICE DEEPA SHARMA (ORAL) CM No. 17082/2017

Exemption allowed, subject to just all exceptions.

The application stands disposed of.

W.P.(C) 3874/2017

1. The petitioners vide present writ petition have impugned the order of

the Central Administrative Tribunal, Principal Bench, New Delhi (the

Tribunal) dated 02.06.2016, whereby their Original Application was

dismissed.

WP(C) No.3874/2017 Page 1

2. Admitted facts are that the applicants (petitioners herein) were

appointed as Physical Education Teachers (PETs) and for them the next

promotional post is School Inspectors.

3. The contention of the petitioners before Tribunal was that after the

introduction of Assured Career Progression (ACP) scheme, they had become

entitled for the first upgradation of their pay scale, i.e. the pay scale of the

next promotional post on completion of 12 years of regular service. It was

submitted that the petitioners possessed the necessary educational

qualifications and had also fulfilled the eligibility criteria required for

promotion to the post of School Inspectors, yet while giving the benefit of

first ACP, the petitioners were given the pay scale of Head Masters (Rs5500-

175-9000). The pay scale of School Inspector was given to them only on

grant of second ACP i.e. on completion of 24 years of the service.

4. While adopting the ACP Scheme, the respondents had issued a Circular

dated 01.09.2005 whereby PET along with Assistant Teacher, Nursery

Teacher, Music Teacher and Drawing Teacher and all other categories of

teachers were given the scale of Rs 5500-175-9000 on first upgradation.

Petitioners challenged the said Circular and sought its quashing on the ground

WP(C) No.3874/2017 Page 2 that it is contrary to the ACP Scheme which speaks of grant of next

promotional grade on completion of 12 years of service.

5. In the counter-affidavit before the Tribunal, the respondents had taken

the stand that it is a statutory body, and all the Resolutions passed by it are

binding on the employees. In order to implement the ACP Scheme, Municipal

Corporation of Delhi (MCD) vide Resolution No.102 dated 01.09.2005 had

given the financial upgradation to all categories of Assistant Teachers,

including the petitioners (PETs) such that the first upgradation was in the

scale of Rs.5500-175-9000/- (scale of Head Master), and the second

upgradation in the scale of Rs.6500-200-10,500/- (School Inspectors). It was

contended that the corporation had followed the same policies which were

followed by Government of NCT in its Education Department and

Directorate of Education, Government of NCT while implementing ACP

Scheme for its teachers. It is further contended that the recruitment process of

Assistant Teachers (General) and Assistant Teachers (Physical) is the same

and both the posts are equivalent in pay scales and they belong to the same

category of teachers at the time of initial appointment. It was submitted that

the next promotional post of Teacher [Primary] - other than PETs, is Head

Master/Head Mistress in the scale of Rs.5500-175-9000/- and the essential

WP(C) No.3874/2017 Page 3 qualification for promotion is seven years service in the grade on regular

basis. Physical Education Teachers are not part of the feeder cadre for the

post of Head Master/Head Mistress as they do not have any teaching

experience in the classes and experience of academic teaching.

6. It was further contended that if the applicants were awarded the pay

scale of School Inspectors as per first upgradation, it would have lead to

discrimination to thousands of primary teachers. In order to avoid this

anomaly, the respondents had decided to give first upgradation to all teachers

whether general or PET in the scale of Head Master/Head Mistress and by

adopting this course, the respondents had treated all the teachers equally. The

next promotional post of PETs, as well as Head Master/Head Mistress, is

School Inspectors Rs.6500-200-10,500/-. Thus, both PET & Assistant

Teachers (General) were placed at par. It was submitted that if the applicants

were granted pay scale of the post of School Inspectors as the first ACP, that

would have had the effect of breaking down the normal hierarchy of pay

scales in the same cadre, because it would have resulted in the situations

where junior PETs would have been derived higher pay scale than their senior

Assistant Teachers (General). To avoid this anomaly and discrepancy, MCD

WP(C) No.3874/2017 Page 4 vide impugned Circular dated 01.09.2005 had adopted the aforesaid scheme

for upgradation.

7. The Tribunal has, after considering the arguments of the parties,

reached to the conclusion that the applicants (petitioners herein) have no case

in their favour and, therefore, dismissed their Original Application.

8. The petitioners aggrieved by the impugned order have challenged the

said order on the ground that since, as per ACP Scheme, they were entitled to

grant of first ACP (i.e. the pay scale of next promotional post - which is that

of School Inspectors (having pay sale of Rs.6500-200-10,500/-), denial of that

scale is contrary to the ACP Scheme and, therefore, the Circular dated

01.09.2005 is violative of ACP Scheme and needs to be quashed. It is further

submitted that the learned Tribunal has not interpreted para 9.1 of the said

Circular correctly. It is submitted that para 9.1 of the said Circular only talks

of normal promotional norms, including educational qualifications, as per

Recruitment Rules. On these contentions, it is prayed that the impugned order

be set aside and petitioners be given the scale of School Inspectors while

giving the benefits of first ACP.

9. We have heard the arguments of learned counsel for the parties and

have given our thoughtful consideration to the rival contentions.

WP(C) No.3874/2017 Page 5

10. The admitted facts are that at the time when the petitioners were

appointed in MCD, they were in the same pay scale as granted to the

Assistant Teacher, Music Teacher and all other categories of Teachers which

forms one cadre. It is also the admitted position that while the Teachers

(General) get the first promotion as Head Master/Head Mistress after seven

years of experience and on fulfillment of other criteria - which includes the

experience in teaching etc., the Physical Education Teachers are not eligible

for promotion to the post of Head Master/Head Mistress, as they do not teach

the students academically and have no teaching experience, and their first

promotion is to the post of School Inspectors. Head Master/Head Mistress on

fulfilling the criteria subsequently get promoted to the post of School

Inspectors. The hierarchy of promotion of Teachers (General and Primary)

and PETs are reproduced as under:-

Teachers (General and Primary) ---- Head Master ---- School Inspectors Head Mistress (Rs. 5500-175-9000/-)(Rs.6500-200-10,500/-)

PETs ---------------------------------------- School Inspectors (Rs.6500-200-10,500/-)

11. The only question that arises for consideration by this Court is, whether

the petitioners are entitled to the grade of School Inspectors on grant of

WP(C) No.3874/2017 Page 6 benefit of first ACP. The Scheme of ACP was formulated and became

effective with effect from 09.08.1999. It recommends the grant of

upgradation in the pay scale to the next promotional post on completion of 12

years and 24 years of service, if the person fulfils the conditions required for

the regular promotion. It, therefore, is clear that although the grant of ACP

does not amount to promotion of the person to the next promotional post, but

it requires that the person shall be eligible for promotion to the next

promotional post. The contention of the petitioners that on implementation of

ACP Scheme dated 09th August, 1999, they ought to have been given the

scale of next promotional post, i.e., of School Inspectors, although looks

attractive, but in view of the other facts and circumstances of the case, such

an adoption of ACP Scheme in the peculiar facts and circumstance of the

cadre to which the petitioners belong, would have created discrimination to

the similarly placed persons. It is undisputed fact that respondent-MCD is a

Statutory Body and has adopted the ACP Scheme by passing a Circular dated

01.09.2005.

12. Per se, the ACP scheme was not applicable to the employees of the

Municipal Corporation. It is for this reason that the MCD adopted the same

with modifications. The issue that requires consideration by this Court is

WP(C) No.3874/2017 Page 7 whether, while adopting the ACP Scheme dated 09.08.1999, did the

respondents violate any of the provisions of the said Scheme, i.e. whether the

Circular dated 01.09.2005 is in violation of the ACP Scheme. On perusal of

the ACP Scheme, it is apparent that the Ministries and Departments were

allowed to keep in mind the ground realities, i.e., the special necessities and

requirements of the Department/Cadres etc. while implementing the said

Scheme. This fact is clear from the instructions contained in Clause 12 of the

Office Memorandum No.35034/1/97-Estt(D) dated 09.08.1999 of the

Government of India, Ministry of Personnel, Public Grievance and Pensions

(Department of Personnel and Training):-

"12. All Ministries/Departments may give wide circulation to these instructions for guidance of all concerned and also take immediate steps to implement the Scheme keeping in view the ground situation obtaining in services/cadres/ posts within their administrative jurisdiction;"

(Emphasis Supplied)

13. This instruction envisages that the Departments or Ministries while

adopting the ACP Scheme and implementing it, have to keep in mind the

ground situation in their Departments relating to services/cadres and posts

within their administrative jurisdiction.

14. As discussed above the norms for appointment of Nursery Teacher,

PETs, Assistant Teacher, etc. are the same for all. They form a category of

WP(C) No.3874/2017 Page 8 posts together having the same pay scale. However, for the post of Head

Master/Head Mistress, PETs do not form the feeder cadre for the simple

reason that they do not fulfill the criteria of promotion to the post of Head

Master/Head Mistress. Candidates from other category of posts other than

PET's, form the feeder cadre for the post of Head Master/Head Mistress and

PETs are promoted to the post of School Inspectors. In order to avoid the

anomaly which would have arisen on implementation of ACP as it is - by

giving to the PETs the pay scale as that of School Inspectors on grant of first

ACP, i.e. after 12 years of service (which would have had the effect of

placing the PETs in a higher scale than the other teachers of the same

category of posts) the MCD in its wisdom has adopted the ACP scheme

subject to the modification by which the petitioners are aggrieved. In the

absence of the impugned Circular, the Teacher (General) would have got the

pay scale of Head Master/Head Mistress, because for Teacher (General) the

next promotional post is Head Master/Head Mistress. In order to avoid this

anomaly, the respondents have adopted the mode of granting the first ACP in

the scale of Head Masters/Head Mistress to all the teachers, irrespective of

the fact whether they were PETs, or otherwise, who could not get their first

promotion within 12 years of service. All the teachers, including PETs, who

WP(C) No.3874/2017 Page 9 could not be promoted within 24 years of their regular service as per Circular

would get the scale of School Inspectors.

15. This Circular, therefore, nullifies the anomaly in the pay scale of same

cadre of teachers which might have cropped up otherwise. The petitioners

have failed to point out that in any other Department of the Government of

NCT of Delhi, the Scheme of ACP has been adopted in any other way in

respect of the persons who are similarly situated as the petitioners.

16. We find no error in the impugned order. The writ petition is devoid of

any merit and the same is dismissed with no order as to costs.

DEEPA SHARMA (JUDGE)

VIPIN SANGHI (JUDGE)

MAY 05, 2017 BG

WP(C) No.3874/2017 Page 10