North Delhi Municipal Corporation v. Rekha Palli

dated 1.03.2012 of this Court in W.P. (C) No. 2621/10
(MCD vs. Ram Avatar & Ors.) & W.P. (C) No. 2671/10 (MCD vs. Virender
1.
2017:DHC:8148-DB Singh & Ors.)
The respondents were appointed in the Delhi Development Authority
(DDA) as Malis, Chowkidars, Pump Operators on different dates between
During the period 1988 to 2002, they were 2. the period 1976 to 1989. transferred to the Municipal Corporation of Delhi (MCD) on different dates vide various transfer orders. Their orders of transfer stated that the employees of the DDA after transfer to MCD would hold office by the same tenure, remuneration and on the same terms and conditions of service as they would have held, had they continued to be in the DDA unless and until such tenure, remuneration and terms and conditions are duly altered by the
Corporation. It also provided that the same shall not be to the disadvantage of the transferred employees without the previous sanction of the
Corporation.
The Assured Career Progressive (ACP) Scheme was introduced in the
MCD on 09.08.1999 and the MCD granted benefit of the ACP to the respondents vide order dated 23.08.2005. However, they were placed in the pay scales lower than the one granted to their counterparts who were working in the DDA. This was challenged by employees who were similarly placed as the applicants before this Court, which transferred the matter to the
Tribunal. The Tribunal allowed the transferred applications on 18.11.09 while relying upon the terms and conditions of the transfer order, directing the petitioners to consider the claim of the applicants therein for enhancing the pay scale in ACP. This order was further challenged by the petitioners before this Court in the aforesaid two writ petitions- W.P. (C) No. 2621/10
& W.P. (C) No. 2671/10 which stood dismissed vide a common order dated
3.
2017:DHC:8148-DB 1.03.2012. The SLP of the petitioners also stood dismissed on 02.07.2013.
Subsequent to the dismissal of the SLP, the applicants were granted the respective pay scale in the ACP at par with their counterparts in DDA.
However, on 19.02.2016 the petitioners passed the impugned order directing not only reduction of pay of the respondents by granting them ACP benefits in lower pay scale, but also ordering recovery of excess payments made to them. The apparent reason for grant of the lower pay scale to the transferred employees/respondents was that they did not have the qualifications prescribed for the next higher promotional posts as per the Recruitment
Rules ofthe DDA.
4.
In this background, after making a representation, the respondents preferred the original applications seeking the following reliefs:-
5.
“(A) Set aside the order dated 19.02.2016 (Impugned) passed by the Respondent No. 1;
(B) Direct the Respondents to grant ACP benefits to the
Applicants as per scales mentioned in Para 4.8 above;
(C) Pass any other appropriate order or relief which this
Hon ’ble Tribunal deemsfit andproper. ”
The applicants assailed the order dated 19.02.2016, firstly, on the ground of violation of principles of natural justice as they were not noticed before issuance of the said order reducing their pay and directing recovery.
The respondents also claimed that the Malis, Chowkidars and Pump
Operators have been granted relaxation in educational qualifications for grant of ACP benefits in the DDA by the Lieutenant Governor and, therefore, the applicants were also deserving of the same treatment.
6.
2017:DHC:8148-DB On the other hand, the petitioners contended that the decision taken by them as communicated vide order dated 19.02.2016 was in accordance with the instructions of the DOP & T, which prescribe that the norms for granting
ACP benefits would be the same as prescribed as per the Recruitment Rules.
Thus, only those employees, who met all promotional norms, such as, eligible service, higher educational qualifications etc. and were eligible for promotion to the next higher grade, could be considered for grant of the benefit under the ACP Scheme, since the ACP is given in lieu of promotion.
The petitioners relied upon the directions issued by the DOP & T that the employees who have been granted ACP benefits in violation of the said instructions be reviewed and recovery of excess amount be made from them.
7.
The Tribunal observed that the petitioners herein were right in saying that the educational qualifications prescribed in the Recruitment Rules ofthe
DDA were essential for grant of ACP benefits in the next promotional scale, unless relaxation is granted. The Tribunal placed reliance on the decision in
W.P.(C) No. 2621/2010 and 2671/2010, wherein, it had been held that the employees who have been transferred to MCD from DDA continue to get benefits on the same terms and service conditions as were applicable to their counterparts of the DDA, and they would continue to get the same treatment in conditions of service as they would have, had they continued to serve in the DDA, until and unless there is an alternation made by the MCD. The
Tribunal observed that, undisputedly, the MCD have not made any alternation in the Recruitment Rules. The respondents/applicants sought to place reliance on the relaxation in the educational qualification granted by the Lieutenant Governor in respect of the employees of the DDA for the
8.
2017:DHC:8148-DB purpose of grant of ACP benefits. In this respect, the Tribunal takes notice of the Office Note dated 12.08.2004 by which the Lieutenant Governor had granted relaxation. The said note in its entirety reads as follows:-
This is regarding relaxation in the laid down educational qualificationsfor the purpose ofgrant ofACP Scheme.
In the past, recruitments to various cadres in DDA was made without having structuredpersonnelpolicy or recruitment regulations. Recruitment in several categories were made specifying education qualification requisites in ad hoc manner.
Later on, when the RRs got framed, the educational qualifications specified were of higher level than the one’s specified in several recruitments made in the past.
In some other cases, appointments were made relaxing the education criterion. The above has resulted in a situation where many of the employees do not meet the education qualification criterion specified in the RRs and hence cannot get even a single promotion. ”
Further, ordinarily, the education qualification requisite for direct recruitment for a post are not made applicable in regard to filling up the post by promotion. This is done with a view to facilitate promotion to employees who have been recruited at the lower level and would ordinarily not possess the educational qualification for direct recruitment to higher level position. However, in DDA there exists several posts where RRs stipulate same educational qualification requisite for promotion also as has been providedfor direct recruitment.
Since this qualification requisite happens to be higher than the qualification requisite for thefeeder levelpost, a large number ofemployees have been deprived oftheir normalpromotion.
In the light ofthe above position, a proposal was earlier processedfor seeking relaxation in the education qualification for the purpose ofgrant ofACP benefit, which were considered and approved by L. G. (notings atpage 5-IO/N).
“7.
2.
3.
2017:DHC:8148-DB In the above proposal, it was indicated that vide this relaxation approximately 1200 employees were to be benefited.
It was also indicated that similar relaxation may be warranted in regard to Work-charge employees also as and when the ACP benefit in favour of Work-charge employees is extended by the
Ministry.