Ajmer Singh vs Govt. Of Nct Of Delhi & Ors

,,

V. Kameswar Rao, J",,

The present petition has been filed by the petitioner with the following prayers:-,,

“It is, therefore, most respectfully prayed that this Honâ€​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,,

2nd 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 Honâ€​ble Court and",,

VI) The cost of the petition may be awarded to the petitioner.â€​,,

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.",,

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.",,

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.,,

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.",,

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",,

S.No.,Point of doubt,Clarification

2.,"Some employees have been allowed

selection grade/insitu promotions though

these grades are not a part of the defined

hierarchy. Whether this is to be

considered as promotion for the purpose

of ACPS? Also, what will be the situatio

if selection grade has been allowed in

lieu of higher pay-scale/","Mobility under ACPs to be allowed in the “existing

hierarchyâ€. As such, if any selection grade/in-situ

promotion has been allowed to employees which are not a

part of the hierarchy, it shall not be counted as promotion

for the purpose of ACPs. For illustration sake, junio

nengineers of CPWD appointed in the grade Rs.5000-

8000/- are allowed the scale of Rs.5500- 9000/- on

completion of five years of regular service and the 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.

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.",,

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.â€​,,

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 Honâ€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 Honâ€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.â€​,,

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.,,

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.",,

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.,,

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 3rd MACP w.e.f.",,

September 1, 2008, the date of implementation of MACP Scheme.",,

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.,,

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.",,

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.â€​",,

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.",,

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.",,

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 3rd ACP shall be released to the petitioner within two months, with interest @ 9% per annum. Petition is disposed of. No costs.",,