Ajmer Singh vs.govt. Of Nct of Delhi & Ors - Court Judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7517/2015 AJMER SINGH Judgment reserved on: August 11, 2017 Judgment delivered on: September 27, 2017 ........ 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 Through: Mr. Anuj Aggarwal, ASC with Ms. Niti Jain, Adv. for R-1, 2 & 3 Mr. Himanshu Pathak, Adv. for R-4 & 5 ..... Respondent CORAM: HON'BLE MR JUSTICE V. KAMESWAR RAO JUDGMENT

V. KAMESWAR RAO, J1 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 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. W.P.(C) No.7517/2015 Page 1 of 15 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 W.P.(C) No.7517/2015 Page 2 of 15 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 W.P.(C) No.7517/2015 Page 3 of 15 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 SCC334State 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 W.P.(C) No.7517/2015 Page 4 of 15 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.7517/2015 Page 5 of 15 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 W.P.(C) No.7517/2015 Page 6 of 15 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.2. Point of doubt Clarification 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 W.P.(C) No.7517/2015 Page 7 of 15 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 W.P.(C) No.7517/2015 Page 8 of 15 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 W.P.(C) No.7517/2015 Page 9 of 15 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:-

"W.P.(C) No.7517/2015 Page 10 of 15 “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 W.P.(C) No.7517/2015 Page 11 of 15 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 3rd 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. W.P.(C) No.7517/2015 Page 12 of 15 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 W.P.(C) No.7517/2015 Page 13 of 15 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.” W.P.(C) No.7517/2015 Page 14 of 15 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 3rd ACP shall be released to the petitioner within two months, with interest @ 9% per annum. Petition is disposed of. No costs. SEPTEMBER27 2017 ak V. KAMESWAR RAO, J W.P.(C) No.7517/2015 Page 15 of 15