Delhi High Court
Ajmer Singh vs Govt. Of Nct Of Delhi & Ors on 27 September, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: August 11, 2017
Judgment delivered on: September 27, 2017
+ W.P.(C) 7517/2015
AJMER SINGH
..... Petitioner
Through: Ms. Madhavi Divan, Adv. with Mr. Manan
Verma, Mr. R.K. Gupta & Ms. Nidhi
Khanna, Advs.
versus
GOVT. OF NCT OF DELHI & ORS
..... Respondent
Through: Mr. Anuj Aggarwal, ASC with Ms. Niti
Jain, Adv. for R-1, 2 & 3
Mr. Himanshu Pathak, Adv. for R-4 & 5
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner with the following prayers:-
"It is, therefore, most respectfully prayed that this Hon‟ble Court may
kindly be pleased to:-
I) Quash the order dated 24.06.2014 and direct the respondents to give
2nd ACP to the petitioner and pay back the recovered amount of 2 nd ACP
with 18% interest from the date it has been illegally recovered.
II) Direct the respondents to grant MACP to the petitioner w.e.f
01.09.2008 since he has completed 30 years of service and is eligible for
the same as per law, with 18% interest from the date of his eligibility.
III) direct the respondents to grant Selection Scale to the petitioner w.e.f
01.08.1994 as the petitioner became entitled for the same after the expiry
of 12 years from the date of grant of Selection Grade.
IV) Direct the respondents to place on record the official file pertaining
to the grant of 2nd ACP to the petitioner with its noting sheets and also
dispatch register containing the period 01.04.2011 to 30.05.2011 of Zone
28, District Central/New Delhi.
V) Issue an appropriate writ, order or direction as deem fit by this
Hon‟ble Court and
VI) The cost of the petition may be awarded to the petitioner."
2. The facts as noted from the writ petition are, the petitioner was initially appointed
as a Group D employee in Khalsa Girls Senior Secondary School, Chuna Mandi, Pahar
Ganj, New Delhi on June 19, 1978 in the pay scale of Rs.196-232. The said School is a
Government aided School being funded by the Govt. of NCT of Delhi. He was
promoted as Laboratory Assistant with effect from December 08, 1981 in the pay scale
of Rs.290-500, as per the Third Pay Commission. He was given selection grade in the
scale of Rs.530-610, with effect from August 01, 1982, which was later revised as
Rs.1350-2200; and as Rs.4500-7000 with effect from January 01, 1996, as per the Fifth
Pay Commission.
3. On August 09, 1999, the Government of India introduced ACP Scheme with a
further clarification on June 29, 2004. The same was made applicable to Group B, C
and D employees. It is the case of the petitioner that the respondents on his completion
of 24 years of service, granted Second ACP with effect from June 19, 2002 in the pay
scale of Rs.5000-8000 vide DPC minutes of November 22, 2008. The pay fixation
order was also issued on November 27, 2009. It is averred that vide letters dated April
04, 2011 and April 05, 2011, the second ACP granted to the petitioner with effect from
June 19, 2002 was withdrawn after lapse of many years without granting an opportunity
of being heard to the petitioner and also above said letters were issued without the
approval of the Director of Education. The petitioner challenged the above action of the
respondents by filing W.P.(C) No. 3408/2011. This Court vide order dated July 09,
2013 disposed of the writ petition directing the Director of Education to hear the
petitioner and thereafter pass a speaking order. The Director of Education passed an
order dated December 02, 2013 remanding the matter to the Deputy Director of
Education to re-examine the letter dated April 04, 2011 and withdrawal of benefits
granted to the petitioner regarding ACP-II. It appears that the petitioner had filed
W.P.(C) No. 2853/2014 seeking grant of MACP to him as directed by the Director of
Education in his order dated December 02, 2013. The petitioner also filed W.P.(C) No.
4775/2014 praying for grant of Second ACP and pointing out the illegality in
withdrawing the Second ACP. The writ petition was allowed to be withdrawn with
liberty to file a fresh petition on April 10, 2015.
4. It is the submission of the learned counsel for the petitioner that the respondents
have failed to appreciate that the petitioner was promoted from the post of Group D to
the Laboratory Assistant with effect from December 08, 1981 and therefore got only
one promotion in his career till, he was given Second ACP. The Selection Grade, which
he got with effect from August 01, 1982 is not a promotion. The second ACP was
granted to the petitioner by a duly constituted DPC as per law and he was eligible in
every respect to get the same. He got the Second ACP with effect from June 19, 2002
and the arrears thereof were also paid vide order dated January 27, 2009. It is her
submission that the Director of Education's order dated December 02, 2013 has
supported the grant of second ACP and the third MACP to the petitioner but the
respondents 3, 4 and 5 have miserably failed to implement the above said
order/direction of respondent No.2. She would state, that the clarification dated
February 10, 2000 issued by the Government of India is very clear in that regard. She
would draw my attention to page 66 of the paper book in support of her contention. That
apart, it is her submission that pursuant to the orders passed on April 04, 2011 and April
05, 2011, the respondents have recovered an amount of Rs.1,50,000/- and an amount of
Rs.2,34,876/- is still to be recovered. The Authorities have not processed the case of the
petitioner for the third MACP with effect from September 01, 2008 as recovery has to
be effected. She would also state, that withdrawal of benefit granted in the year 2008
with effect from 2002 in the year 2011 after nine years is illegal and contrary to the
judgment of the Supreme Court in the case reported as (2015) 4 SCC 334 State of
Punjab and Ors v. Rafiq Masih (White Washer) and Ors. She would rely upon the
judgment of the Division Bench of this Court in the case of General Manager and Ors
v. Prem Pal Singh and Ors in support of her contention. In the end, she would also
contend that the post of Laboratory Assistant having no promotion channel, is an
isolated post and the benefit of ACP could not have been denied in terms of the
clarification dated February 10, 2000.
5. Mr. Anuj Aggarwal, learned counsel appearing for the respondent No.1 would
support the impugned action of the respondent Director of Education. He stated, that
the grant of benefits of second ACP with effect from June 19, 2002 was bad in law as
second financial upgradation was already granted to the petitioner when he was granted
Selection Grade with effect from August 01, 1982. Selection Grade awarded to any
Teacher is counted as a financial upgradation vide circular dated April 29, 2010 issued
by the Director of Education. He submitted that the petitioner, without challenging the
legality and vires of the circular is estopped from controverting the stand of the
respondent No.1. He has also stated, that the petitioner otherwise, is also not entitled to
the benefit under the ACP Scheme, which postulates an employee to be eligible in all
respects including possessing educational qualification, to be considered for such
benefit. In other words, only those persons/employees, who fulfill all promotional
norms are eligible to be considered for the benefit under the ACP Scheme. He qualifies
his submission by stating that the petitioner was not eligible to be promoted to the post
of TGT. He lacked essential qualifications mandated for the post of TGT, which are
"Bachelor degree in relevant subject with 50% marks or above in aggregate as well as
in the concerned subject during all the years of study and B.Ed." According to him, this
aspect has been dealt with in the impugned order dated June 24, 2014. Finally, he
states, recovery in the present case is justified as any mistake and amount paid thereof
need to be corrected and recovered. He would rely upon the judgment of the Apex
Court in the case of U.T. Chandigarh and Ors v. Gurcharan Singh and Ors Civil
Appeal No. 9873/2013 dated November 01, 2013 in support of his contention.
6. Having heard the learned counsel for the parties and perused the written
arguments submitted by the learned counsel for the respondent No.1, before I deal with
their submissions, it is important to refer to the order dated December 02, 2013 passed
by the Director of Education pursuant to the order of this Court dated July 09, 2013 in
W.P.(C) NO. 3408/2011. In the said order, the Director of Education has in para 3
onwards has held as under:-
"3. AND WHEREAS, in compliance of the Hon‟ble High Court
order dated 09.07.2013, Sh. Ajmer Singh was accorded a personal
hearing on 09.10.2013. During the personal hearing held on
09.10.2013 in the chamber of Director (Education), Sh. Ajmer Singh
referred to the representation given by him on 22.07.13 He
reiterated that recovery of ACP II is illegal as no re-pay fixation has
been done by the Directorate of Education. He requested for the
release of all financial benefits of ACP II. He also requested for
grant of Selection Scale to him which he claimed to have become
entitled for w.e.f 1994.
4. AND WHEREAS, it is observed that the ACP Scheme was
introduced by the Govt. of India vide OM No. 35034/4/97/Estt. D
dated 09.08.1999. Further vide clarifications issued through DOPT
OM No. 3501/1/2003-East(D) dt. 29.06.04 the same was made
applicable to group B, C and D services/posts and isolated posts
w.e.f the date of issue of memorandum. The main conditions for
grant of benefits under the ACP Scheme are detailed as under:-
- The first financial upgradation under the ACP Scheme shall be
allowed after 12 years of regular service and the second
upgradation after 24 years of regular service subject to fulfillment of
prescribed conditions.
- Two financial upgradations under the ACP Scheme shall be
available only if no regular promotion during the prescribed period
(12 years & 24 years) has been availed by an employee. If an
employee has already got one regular promotion, he shall qualify
for the second financial upgradation only on completion of 24 years
of regular service under the ACP Scheme. In case, two prior
promotions on regular basis have already been received by an
employee no benefit under the ACP Scheme shall accrue to him.
- Only those employees who fulfill all promotional norms are
eligible are to be considered for benefit under ACP Scheme.
5. AND WHEREAS, after due examination of the matter, the
following points are observed:-
(a) The original file in which the second upgradation under ACP
scheme was granted to Ajmer Singh is stated to be not traceable in
the district. Therefore, it cannot be verified from the said file how
the second ACP was granted to him.
(b) The implementation of ACP scheme to Lab Assistant of
Directorate of Education was granted vide Directorate of Education
Order No. DE.4(1)(83)/E-IV/2005/C.Case/13009-13034 dated
02.06.2006. Vide point No.8 of the said order it is mentioned that
clarification of DoPT dated 10.02.2000 and 18.07.2001 should be
referred to in case of any doubt for implementation of ACP scheme.
(c) A perusal of the DoPT OM No. 35034/1/97-Estt(D)(Vol.IV)
dated 10.02.2000 reveals that the matter of granting ACP to
employees granted Selection Grade/in-situ promotions have been
discussed and clarified at Point No.2 which is detailed below:-
S.No. Point of doubt Clarification
2. Some employees have Mobility under ACPs to be
been allowed allowed in the „existing
selection grade/in- hierarchy‟. As such, if any
situ promotions selection grade/in-situ
though these grades promotion has been allowed to
are not a part of the employees which are not a part
defined hierarchy. of the hierarchy, it shall not be
Whether this is to be counted as promotion for the
considered as purpose of ACPs. For
promotion for the illustration sake, junior
purpose of ACPS? engineers of CPWD appointed
Also, what will be the in the grade Rs.5000-8000/- are
situation if selection allowed the scale of Rs.5500-
grade has been 9000/- on completion of five
allowed in lieu of years of regular service and the
higher pay-scale/ scale of Rs.6500-10500/- on
completion of fifteen years of
regular service. The scale of
Rs.5500-9000/- Is not a part of
the defined hierarchy for them.
In such cases, the pay scale
which is not a part of the
hierarchy may be treated to
have been withdrawn. However,
fall in pay resulting out of this
shall be protected by granting
personal pay in the aforesaid
direct entry grade to be adjusted
against future increments.
Moreover, as per Condition No.
13 of ACPs, such existing
(previous) schemes would be
discontinued with the adoption
of ACPs. However, in the case
of common category of posts,
the existing hierarchy in relation
to a cadre would mean the
restructured grades
recommended by the fifth
Central Pay Commission.
In the case of Lab Assistant it is observed that the initial scale of
appointment was Rs.330-530 (as per 3rd Pay Commission) and
Rs.1200-2040 (as per the 4th Pay Commission). Subsequent to grant
of Selection Grade the Lab Assistants were placed in the pay scale
of Rs.530-610 (3rd Pay Commission)/Rs.1350-2200 (4th Pay
Commission). In the normal course Lab Assistants are entitled for
promotion to the post of TGTs in the pay scale of Rs.1400-2600 (4th
Pay Commission). Therefore, it appears that the case of Lab
Assistants is covered under the provisions of the aforesaid
clarification given by DoPT OM dated 10.02.2000 and benefit
granted to Sh. Ajmer Singh appears to be justified.
(d) As the MACP Scheme was introduced by Govt. of India w.e.f
01.09.2008, so Sh. Ajmer Singh would be entitled for 3rd MACP w.e.f
the date he has completed 30 years of regular service counted from
the date of joining as Class-IV/Grade-D post or w.e.f 01.09.2008 i.e
the date of implementation of MACP Scheme, whichever is later,
subject to fulfillment of other required conditions of MACP Scheme.
6. AND WHEREAS, the issue of grant of Selection Scale to Sh.
Ajmer Singh, Lab Assistant was also examined and it is seen that the
provision for grant of Selection Grade was made vide Govt. of India,
Ministry of Education & Social Welfare, OM No. F.48-27/71-UT.1,
dated 26.11.1971 wherein the list of beneficiaries includes
Laboratory Assistants. Further, vide Government of India, Ministry
of HRD, Department of Education OM No. F.5-180/86-UT.1 dated
12.08.1987 the scheme of grant of Senior Scale and Selection Scale
was introduced. It is worthwhile to note that vide the said OM the
benefits for grant of Selection Scale have not been granted to
Laboratory Assistants. Even if the Laboratory Assistant are
considered to be analogous to miscellaneous posts then also an
important condition for grant of Selection Scale is the requirement
to obtain higher qualification. In the case of Sh. Ajmer Singh, it is
observed that he does not have the requisite higher qualifications.
Therefore, his request for grant of Selection Scale cannot be
considered.
7. NOW, THEREFORE, in view of the above facts and rule
position, the admissibility of the clarification No.2 of Government of
India, DoPT OM No. 35034/1/97-Estt(D)(Vol.IV) dated 10.02.2000
in the case of Sh. Ajmer; Singh needs to be examined. Deputy
Director of Education (C/ND) is accordingly directed to re-examine
the order of withdrawal of benefits granted to Sh. Ajmer Singh, Bal
Assistant, Khalsa Girls Sr. Sec. School, Chuna Mandi, Pahar Ganj,
New Delhi (Govt. Aided School) in consultation with the Accounts
functionaries of the Headquarters and pass an order within four
weeks. The DDE (C/ND) is also directed to inquire into the matter of
the missing files of the case of Sh. Ajmer Singh and take requisite
action including filing of FIR, if required, within two weeks.
Further, the Manager of the School is hereby directed to constitute
the DPC to consider the case of 3rd MACP in respect of Sh. Ajmer
Singh, Lab. Assistant w.e.f. the date he has completed 30 years of
regular service counted from the date of joining as Class-IV/Grade-
D post or w.e.f 01.09.2008 i.e the date of implementation of MACP
Scheme, whichever is later, subject to fulfillment of other required
conditions of MACP Scheme, without any delay."
7. Pursuant thereto, the Dy. Director of Education reexamined the matter and was of
the following view:-
"And the direction to the undersigned by the competent
authority in his order No.DE.15(Misc)/Act-II/2013/2599 dated
02/12/2013 contained therein in corroboration with the order
passed by Hon‟ble High Court dated 06/05/2014. The case of
grant of MACP to Sh. Ajmer Singh was considered through
DPC members under the lime light of order No.
DE.15(Misc)/Act-II/2013/2599 dated 02/12/2013 and in
consultation/with the advise there upon by Account
functionaries of Directorate of Education. The DPC
reconsidered the MACP case of Sh. Ajmer Singh Lab. Asstt.,
Khalsa Girls SSS, Chuna Mandi, Pahar Ganj, New Delhi, the
RDE of District Central/New Delhi accorded the approval to
grant MACP w.e.f 01/09/2008 i.e the date of implementation of
MACP Scheme.
This order disposes off the directions issued by the Hon‟ble
High Court of Delhi vide order dated 06/05/2014 as WP(Civil)
No. 2583/2014 in the matter of Sh. Ajmer Singh V/s GNCT of
Delhi and Ors and directions issued by the Director
(Education) Directorate of Education vide No.
DE.15(Misc)/Act-II/2013/2599 dated 02/12/2013."
8. On a perusal of the orders, it is seen that the Authorities have considered the
aspect of grant of selection scale w.e.f. 1994 as well as the second ACP and eligibility
of the petitioner for third MACP.
9. Insofar as the selection scale w.e.f. 1994 is concerned, Director of Education
referred to the OM dated November 26, 1971 of the Government of India, Ministry of
Education, Social Welfare and concluded that the grant of selection scale had an
important condition of qualification of higher post. He held that the petitioner did not
have the requisite qualification, therefore rejected the grant of selection scale w.e.f.
1994.
10. Insofar as the second ACP is concerned, the Director of Education concluded, it
is only those employees, who fulfill all promotional norms, are eligible to be considered
for the benefit under the ACP Scheme. I may state here the Director of Education has
justified the grant of scale of Rs.1350-2200, w.e.f 1982. That apart, the grant of
Selection Grade, in the scale of Rs.1350-2200 cannot be counted as part of promotion
for the purpose of ACPs.
11. Insofar as MACP is concerned, the petitioner was held entitled to the same with
effect from September 01, 2008. Suffice to state, the Dy. Director of Education has, in
his order has directed constitution of DPC to consider the case of 3rd MACP in respect
of the petitioner with effect from September 1, 2008. The Dy. Director also in his order
dated June 24, 2014, concluded, that the petitioner shall be entitled to 3 rd MACP w.e.f.
September 1, 2008, the date of implementation of MACP Scheme.
12. Having noted the orders, passed by the Director of Education and the Dy.
Director of Education, insofar as the claim of the petitioner in the present petition for
selection scale with effect from 1994 is concerned, the learned counsel for the petitioner
could not able to point out any instruction to controvert the conclusion of the Director of
Education that for grant of selection scale, on completion of 12 years of service, the
petitioner is required to possess the qualification of the next higher post. That apart the
claim in the year 2015 w.e.f. 1994, is hit by delay and latches. Hence, this claim of the
petitioner need to be rejected.
13. Insofar as the claim of the petitioner for second ACP is concerned, I agree with
the submission made by Mr. Anuj Aggarwal that for grant of second ACP, which is in
the grade of TGT i.e Rs.5000-8000, the petitioner was required to possess the
qualification of Graduation and B.Ed to be eligible for the same as they are the required
qualifications for the post of TGT, the promotion post of Laboratory Assistant. In view
of a promotional channel, the post of Laboratory Assistant is not an isolated post. This
position has also not been controverted by the learned counsel for the petitioner. Hence,
the claim of the petitioner in that regard, is also without any merit.
14. Insofar as the claim of the petitioner for grant of third MACP is concerned, the
petitioner is entitled for same and that has been accorded approval by the respondent
No.1 with effect from September 01, 2008. It appears that the benefits thereof have not
been given to the petitioner for the reason noted at running page 78 of the paper book
that an amount of Rs.2,34,876/- is yet to be recovered. It is also noted from running
page 90 of the paper book that the petitioner has been imposed a penalty of compulsory
retirement under Rule 117(b) of the Delhi School Education Rules, 1973 and the same
is under challenge before the Delhi School Tribunal. The question would be whether
the respondents can recover the balance amount of Rs.2,34,876/-. The reliance has been
placed on the judgment of the Supreme Court in the case of State of Punjab v. Rafiq
Masih (supra). The facts as noted are that the petitioner was granted the benefit of
second ACP in the year 2008 with effect from June 19, 2002. The withdrawal was
effected even though after three years in the year 2011 but relating back to nine years,
the Supreme Court has, in State of Punjab v. Rafiq Masih (supra) in para 18 culled out
certain situations which are held to be cases of hardship and recovery held to be
impermissible. The same are reproduced as under:-
"18. It is not possible to postulate all situations of hardship,
which would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in excess
of their entitlement. Be that as it may, based on the decisions
referred to herein above, we may, as a ready reference,
summarise the following few situations, wherein recoveries by
the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due
to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has
been made for a period in excess of five years, before the order
of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been
required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous or
harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover."
15. There is no dispute that the petitioner has since compulsory retired. That apart,
the excess payment, which has been made is for a period of at least nine years, which is
in excess of five years, the recovery is impermissible in terms of Para 18(3). It is held
the recovery of an amount of Rs.1,50,000/- approx, is illegal.
16. Insofar as the judgment of this court in the case of General Manager and Ors v.
Prem Pal Singh and Anr (supra) on which reliance was placed by Ms. Divan is
concerned, the same would not be applicable in view of my conclusion above, that grant
of Selection Grade shall not be treated as a grant of Second financial upgradation to
deny the benefit of 2nd ACP in terms of clarification dated February 10, 2000 of the
DoP&T.
17. In view of my discussion above, the petitioner is not entitled to the relief of
Senior Scale and 2nd ACP as prayed for in the petition. As the petitioner has not been
given the benefits arising from the third MACP, the amount of Rs.1,50,000/- recovered
shall be adjusted against the benefits to be given under the third MACP. The
respondents are further restrained from recovering/adjusting an amount of Rs.2,34,876/.
Any differential amount to be paid under 3 rd ACP shall be released to the petitioner
within two months, with interest @ 9% per annum. Petition is disposed of. No costs.
V. KAMESWAR RAO, J
SEPTEMBER 27, 2017
ak
