Commissioner Kendriya Vidyalaya Sangathan and Anr v Kendriya Vidyalaya Non-Teaching Staff Association and Ors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938 **WP(C).No. 8495 of 2009 (Z) ---------------------------** (AGAINST THE ORDER IN OA 60/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 31.10.2008 PETITIONER(S): ------------- 1. THE COMMISSIONER KENDRIYA VIDYALAYA SANGATHAN,, 18,INSTITUTIONAL AREA,, SHAHEED JEET SINGH MARG,, NEW DELHI-110 016. 2. ASSISTANT COMMISSIONER, KENDRIYA VIDYALAYA SANGATHAN,, REGIONAL OFFICE,COCHIN REGIONAL,, IIT CAMPUS,CHENNAI-600 036. BY ADV. SRI.V.V.ASOKAN (SR.) RESPONDENT(S): -------------- 1. KENDRIYA VIDYALAYA NON-TEACHING STAFF ASSOCIATION,REP.BY ITS GENERAL SECRETARY-C.S.PREM,, S/O.LATE C.G.STEPHEN,CHIRAMEL HOUSE,, THOPPUMPADY, KOCHI-682 005. 2. K.SUNDARESAN,S/O.P.KESAVAN, GROUP "D" STAFF,KENDRIYA VIDYALAYA,, PANGODE,THIRUVANANTHAPURAM DISTRICT,, RESIDING IN VAKOIYAKONOTH MOOZHIYIL PUTHEN VEEDU,, MOONGODE,PEYAD P.O.,THIRUVANANTHAPURAM. 3. N.T.CHANDRAN,S/O.N.T.GOVINDAN, (RETIRED GROUP "D" STAFF,, KENDRIYA VIDYALAYA NO.I,CALICUT),, RESIDING AT REVATHY HOUSE,, MELEKUZHAMBARATH,VENGERI P.O.,, CALICUT-673 010. 4. THE SECRETARY TO THE GOVERNMENT OF INDIA,MINISTRY OF PERSONNEL,, PUBLIC GRIEVANCES AND PENSIONS,, DEPARTMENT OF PERSONNEL AND TRAINING,, NORTH BLOCK,NEW DELHI-110 001. R,R1-3 BY ADV. SRI.T.C.GOVINDA SWAMY R,R1-3 BY ADV. SRI.G.SHYAM RAJ R4 BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2405-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.8495 of 2009 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |EXT.P1|:|TRUE COPY OF THE O.A.No.60/2008| |---|---|---| |||FILED BY RESPONDENTS 1 TO 3 BEFORE THE| |||CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM\| |||ALONG WITH ANNEXURES.| |EXT.P2|:|TRUE COPY OF THE REPLY STATEMENT FILED BY| |||THE PETITIONERS BEFORE THE CENTRAL| |||ADMINISTRATIVE TRIBUNAL IN O.A.No. 60/2008| |EXT.P3|:|TRUE COPY OF THE ORDER OF THE CENTRAL| |||ADMINISTRATIVE TRIBUNAL, ERNAKULAM IN O.A.NO.| |||60 OF 2008| /true copy/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ. ----------------------------------------------------------------W.P.(C)No.8495 OF 2009** **-----------------------------------------------------------** ## **Dated this the 24[th] day of May, 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** This writ petition filed under Article 226 and 227 of the Constitution of India, by the Commissioner of Kendriya Vidyalaya Sangathan and another, is against Ext.P3 order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.60 of 2008. The first respondent herein is Kendriya Vidyalaya Non-Teaching Staff Association represented by its General Secretary. The second and third respondents herein are the members of that association. At the time of filing of the O.A., the second respondent herein was working as Group 'D' staff in the Kendriya Vidyalaya, Pangodu, Thiruvananthapuram, and the third respondent is a retired Group 'D' staff of the Kendriya Vidyalaya No.1, Calicut. 2. The said O.A. was filed by respondents 1 to 3 herein, seeking an order to quash Annexure A7 and for a declaration that Group D employees of the Kendriya Vidyalaya Sangathan, **2** ## **W.P.(C)No.8495 OF 2009** irrespective of the fact that they have the qualification of 8[th] standard or not are entitled to be granted the first financial upgradation in the scale of pay 2610-4000 and to the second financial upgradation in the scale of pay of 2750-4400 if they do not posses the qualification of matriculation and to the scale of pay of 3050-4590, if they possess the qualification of matriculation. They have also sought for an order directing the petitioners herein to grant the second and third respondents and also to the members of the first respondent Association all consequential benefits from such date from which they are entitled for such benefits in terms of Annexure A3 OM, read with Annexure A4 OM. 3. The petitioners herein filed Ext.P2 reply statement opposing the reliefs sought for in the O.A. After considering the rival contentions, the Tribunal by Ext.P3 order dated 31.10.2008 allowed the O.A. to the extent that all the Group D employees with qualifications less than 8[th] Standard are entitled for two financial upgradations (a) in the scale of pay of 2610-4000 (first financial upgradation) and (b) 2750-4400 (second financial **3** ## **W.P.(C)No.8495 OF 2009** upgradation). If respondents 2 and 3 and other members of the 1[st] respondent Association have been paid the above said ACP benefits, they are entitled to retain the same and Annexure A7 shall not be applicable to them. Instead, if for any reason, any of them, who do not possess the requisite qualification of 8[th] Standard have been granted any higher pay scale under the ACP, the same have to be reviewed and reduced to the above level, though no recovery on account of erroneous fixation of pay shall be made, in view of the fact that such recovery cannot be made as per the law laid down by the Apex Court in **Sahib Ram v. State of Haryana (1995 Supp.(1) SCC18)** , **Bihar SEB v. Bijay Bhadur (2000 (10) SCC 99)** and **Col.B.J.Akkara (Retd.) v. Govt. of India (2006 (11) SCC 709)** . 4. Feeling aggrieved by Ext.P3 order passed by the Tribunal, the petitioners are before this Court in this writ petition. 5. Heard the learned Standing Counsel for the Kendriya Vidyalaya Sangathan representing the petitioners, the learned counsel for respondents 1 to 3 and also the learned Asst. Solicitor General of India representing the 4[th] respondent. **4** ## **W.P.(C)No.8495 OF 2009** 6. The pleadings and materials on record would show that, at the time of initial appointment of the second and third respondents, there was no educational qualification prescribed for appointment to Group D post in Kendriya Vidyalaya Sangathan. There was also no promotional avenues for Group D employees. However, as per Annexure A1 Recruitment Rules for the post of Lower Division Clerk, 10% of the posts in the cadre of Lower Division Clerks are being filled up by promotion from existing Group D employees, subject to fulfilment of educational qualification prescribed for the post, i.e., matriculation with a typing speed of at least 30 words per minute in English for Typist (English) and 25 words per minute in Hindi for Typist (Hindi) with working knowledge of Hindi. Similarly, as per Annexure A2 Recruitment Rules for the post of Lab Attendant, the posts in the cadre of Lab Attendant are being filled up by promotion, failing which, by direct recruitment from among Group D employees of Kendriya Vidyalaya in the Region, having educational qualification prescribed for direct recruitment with two years' regular service. The educational qualification prescribed for direct recruitment is **5** ## **W.P.(C)No.8495 OF 2009** middle pass with General Science. 7. Accepting the recommendations of the Fifth Central Pay Commission, Assured Career Progression Scheme for the Central Government Civilian Employees was introduced vide Annexure A3 OM dated 9.8.1999 of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions. The Assured Career Progression Scheme (ACP Scheme) formulated under Annexure A3 OM was adopted and implemented in Kendriya Vidyalaya Sangathan for non-teaching staff, vide Annexure A4 OM dated 21.3.2001. As per Annexure A4 OM, the ACP Scheme in Annexure A3 OM was made applicable to the nonteaching staff of the Kendriya Vidyalaya Sangathan with effect from 12.10.2000, in suppression of the Scheme of Career Advancement of Group C and Group D employees circulated vide OM dated 18.8.1999. It was also made clear that the guidelines issued by the Department of Personnel and Training vide Annexure A3 OM dated 9.8.1999 shall apply mutatis mutandis to the non-teaching staff of Kendriya Vidyalaya Sangathan. 8. Annexure I to Annexure 3 OM contains the conditions **6** ## **W.P.(C)No.8495 OF 2009** for grant of benefits under the ACP Scheme and Annexure II contains the Standard/Common Pay Scales. In terms of Clause 7 of Annexure I to Annexure A3 OM, financial upgradation under the ACP Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category. In the case of isolated posts, in the absence of defined hierarchical grades, financial upgradation shall be given in the immediately next higher Standard/Common Pay Scale as specified in Annexure II to Annexure A3 OM. 9. The respondents contended that, there is no Group D or Group C posts in Kendriya Vidyalaya Sangathan carrying the scale of pay of 2750-4400 and that, in terms of Annexure A3 OM and the clarifications issued thereunder, the first level financial upgradation for Group D employees having no defined hierarchical grades should be in the scale of pay of 2610-4000 and the second financial upgradation should be either in the scale of pay of 2750-4400 or in the scale of pay of 3050-4590, subject to the educational qualification of SSLC or not, as the case may be. **7** ## **W.P.(C)No.8495 OF 2009** 10. The respondents contended further that, there was no minimum educational qualification prescribed for Group D post earlier, when the second and third respondents were appointed. Considering the anomalous situation, the Department of Personnel and Training issued Annexure A5 OM dated 1.6.2001, which was followed by Annexure A6 clarification dated 18.10.2001 issued from the office of the Comptroller and Auditor General of India. In Annexure A6, it has been clarified that Group D employees who do not possess the educational qualification of 8[th] standard shall also be allowed second financial upgradation in the pay scale of 2750-4400 in relaxation of Clause 6 of the ACP Scheme. 11. Relying on Annexure A6 circular, the respondents contended that, the second respondent became entitled for grant of first financial upgradation with effect from 12.10.2000 and for second financial upgradation with effect from 16.2.2003. Similarly, the third respondent became entitled for the first and second financial upgradations with effect from such dates. However, they were not granted the said benefits and the matter **8** ## **W.P.(C)No.8495 OF 2009** was under correspondence with various authorities. 12. While so, vide Annexure A7 clarification issued by the Assistant Commissioner (Administration and Finance) addressed to various Assistant Commissioners of the different regions of Kendriya Vidyalaya Sangathan it has been clarified that only those employees who fulfil the promotional norms are eligible to be considered for grant of ACP. It has also been clarified in Annexure A7 that, as regards the ineligible Group D employees and Lab Attendants, who are still in service or retired/superannuated and granted the benefit of ACP, steps should be taken to recall the said benefit and to recover the difference as over payment. Steps in this regard was directed to be taken even against the retired/superannuated employees. 13. Aggrieved by Annexure A7, the first respondent Association submitted Annexure A8 representation dated 5.12.2007 before the first petitioner. As there was no response to Annexure A8, the respondents have approached the Tribunal in O.A.No.60/2008, seeking an order to quash Annexure A7 and for a declaration that Group D employees of the Kendriya Vidyalaya **9** ## **W.P.(C)No.8495 OF 2009** Sangathan, irrespective of the fact that they have the qualification of 8[th] standard or not are entitled to be granted the first financial upgradation in the scale of pay 2610-4000 and to the second financial upgradation in the scale of pay of 2750-4400 if they do not posses the qualification of matriculation and to the scale of pay of 3050-4590, if they possess the qualification of matriculation. The respondents have also sought for other consequential reliefs. 14. The petitioners herein filed ExtP2 reply statement before the Tribunal contending, inter alia, that in view of the conditions stipulated in Annexure A3 OM issued by the Department of Personnel and Training and Annexure A4 OM issued by the Kendriya Vidyalaya Sangathan and also the relevant recruitment rules, only those employees who fulfil all promotional norms are eligible for grant of the benefits under the ACP Scheme. 15. Before the Tribunal, the respondents contended that holding requisite qualification for the promotion post is not a precondition for granting the benefit of ACP Scheme under Annexure ## **W.P.(C)No.8495 OF 2009** ## **10** A3 O.M. dated 9.8.1999. The Tribunal noticed that Annexure A6 clarification is specific that Group D employees who do not possess the educational qualification of 8[th] standard shall also be allowed the second financial upgradation to the pay scale of 2750-4400 in relaxation of Para.No.6 of Annexure I to Annexure A3 OM dated 9.8.1999, which is a clarification given by the Department of Personnel and Training, which has issued Annexure A5 OM. Thus, the Tribunal held that Annexures A5 OM and A6 clarification equally apply to employees of Kendriya Vidyalaya Sangathan and in view of the fact that for Group D employees who are not having the requisite qualification of 8[th] standard are to be given relaxation to the requirement of qualification for higher posts, such a relaxation is available to Group D employees Kendriya Vidyalaya Sangathan as well. Accordingly, the Tribunal by Ext.P3 order dated 31.10.2008 allowed the O.A. to the extent that all Group D employees with qualifications less than 8[th] Standard are entitled for two financial upgradations (i) in the scale of pay of 2610-4000 (first financial upgradation) and (ii) in the scale of pay of 2750-4400 (second **11** ## **W.P.(C)No.8495 OF 2009** financial upgradation). If respondents 2 and 3 and other members of the 1[st] respondent Association have been paid the above said ACP benefits, they are entitled to retain the same and Annexure A7 shall not be applicable to them. Instead, if for any reason, any of them, who do not possess the requisite qualification of 8[th] Standard have been granted any higher pay scale under the ACP, the same have to be reviewed and reduced to the above level, though no recovery on account of erroneous fixation of pay shall be made, in view of the fact that such recovery cannot be made as per the law laid down by the Apex Court in the decisions referred to hereinbefore at Para.3. 16. Relying on Para.6 of Annexure I to Annexure A3 OM dated 9.8.1999, the learned Standing Counsel for the petitioners would contend that, fulfilment of normal promotion norms, which includes the requisite educational qualification for the promotion post, is a pre-condition for grant of benefit under the ACP Scheme. Admittedly, the second and third respondents were not having the requisite qualification for the promotion post and as such, they are not legally entitled for the benefit under the ACP ## **W.P.(C)No.8495 OF 2009** **12** scheme. In order to substantiate the aforesaid contention, the learned Standing Counsel would rely on the decision of the Apex Court in **Bhakra Beas Management Board v. Krishnan Kumar Vij and another (2010 (8) SCC 701)** , the decision of a Division Bench of this Court in **Union of India v. V.E.Chandran and others (2010 (3) KLT 60)** , the decisions of the Delhi High Court in W.P.(C)Nos.1227-33/2006 and 191517/2006. 17. Annexure I to Annexure A3 OM deals with conditions for grant of benefits under the ACP Scheme. Para.6 of Annexure I reads thus: “6. Fulfilment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group 'D' employees etc.) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to the incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances, etc.) only without conferring any privileges related to higher status (e.g. invitation to **13** ## **W.P.(C)No.8495 OF 2009** ceremonial functions, deputation to higher posts, etc.) shall be ensured for grant of benefits under the ACP Scheme.” 18. After referring to Para.6 of Annexure I to Annexure A3 OM, a Division Bench of this Court in the judgment dated 29.1.2003 in O.P.No.18024 of 2002 held that, the requisite qualification for the promotion post is a pre-condition to avail the monetary benefits under the ACP Scheme. Para.13 of the judgment reads thus; “13. A perusal of the scheme shows that, in paragraph 6 it had been categorically provided that “fulfilment of normal promotion norms ....... for grant of financial upgradations ..... shall be ensured for grant of benefits under the ACP scheme.” Thus, it is clear that no person could have been granted the higher scale if he did not fulfil the norms for normal promotion. Since fulfilment of the 'norms' was a condition precedent, anyone who did not possess the prescribed qualifications was not entitled to be granted the higher scale. 'Norms' is a comprehensive expression. It takes every conceivable qualification that is prescribed for a post.” 19. In the judgment dated 29.1.2003 in O.P.No.18024 of 2002, the Division Bench of this Court, repelling the contention ## **W.P.(C)No.8495 OF 2009** ## **14** that academic qualification was not one of the norms, held that fulfilment of the norms was a necessary condition. Thus, it cannot be said that the authority was not entitled to take into consideration the academic qualifications while granting financial upgradation. 20. As pointed out by the learned counsel for respondents 1 to 3, the judgment of this Court in O.P.No.18024 of 2002 was under challenge before the Apex Court in Civil Appeal No.3562 of 2007 arising out of S.L.P.(C)No.652 of 2005. By order dated 13.4.2011 the Apex Court allowed the Civil Appeal, setting aside the judgment of this Court in O.P.No.18024 of 2002, granting the appellants therein, who have then retired, the benefit of ACP Scheme notionally with all consequential benefits. The relevant paragraphs of the order dated 13.4.2011 in **M.N. Raghunatha Kurup and others v. Union of India and others** (Civil Appeal No.3562 of 2007) read thus; “The appellants herein claimed the benefit of Assured Career Progression Scheme (for short 'ACP') as per the recommendation of the Vth Pay Commission. Admittedly, the appellants have cleared the departmental **15** ## **W.P.(C)No.8495 OF 2009** examination but they have been denied the benefit on the ground that they did not possess the qualification of promotional post. In the ACP Scheme, which is Annexure P1 to this appeal, nowhere it is mentioned that for getting the benefit of ACP, the applicant must possess the qualification of promotional post. Accordingly, this appeal is allowed, the impugned judgment of the High Court is set aside and a direction is given that the appellants herein, who have now retired, be given the benefit of ACP notionally with all consequential benefits. No costs.” 21. In view of the law declared by the Apex Court in Raghunatha Kurup's case (supra) an employee need not possess the qualification of promotional post for getting the benefit of ACP Scheme. Therefore, the finding of the Tribunal in Ext.P3 order that, all Group D employees with qualifications less than 8[th] Standard are entitled for two financial upgradations (i) in the scale of pay of 2610-4000 (first financial upgradation) and (ii) in the scale of pay of 2750-4400 (second financial upgradation) and that, if respondents 2 and 3 and other members of the 1[st] respondent Association have been paid the above said ACP ## **W.P.(C)No.8495 OF 2009** ## **16** benefits, they are entitled to retain the same and Annexure A7 shall not be applicable to them, warrant no interference in this writ petition. 22. In view of the law declared by the Apex Court on 13.4.2011 in the decision referred to supra, which is having binding force under Article 141 of the Constitution of India, no reliance can be placed on law declared by the Apex Court on 19.8.2010 in Bhakra Beas Management Board's case, the decision of a Division Bench of this Court in V.E.Chandran's case and also the decisions of the Delhi High Court referred to supra, cited by the learned Standing Counsel for the petitioners. 23. In Ext.P3 order, the Tribunal held further that, if for any reason, any members of the 1[st] respondent Association, who do not possess the requisite qualification of 8[th] Standard have been granted any higher pay scale under the ACP, the same have to be reviewed and reduced to the level referred to hereinbefore, though no recovery on account of erroneous fixation of pay shall be made, in view of the fact that such recovery cannot be made as per the law laid down by various decisions of the Apex Court. **17** ## **W.P.(C)No.8495 OF 2009** ## 24. In **State of Punjab v. Rafiq Masih (White Washer)** **(2015 (4) SCC 334)** the Apex Court summerised few situations wherein recoveries by the employers would be impermissible in law, which are as follows; (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 25. In view of the law laid down by the Apex Court in Rafiq Masih's case (supra) the Tribunal cannot be found fault with in holding that no recovery on account of erroneous fixation of **18** ## **W.P.(C)No.8495 OF 2009** pay shall be made from the employees concerned. In the result, we find absolutely no grounds to interfere with Ext.P3 order passed by the Tribunal in O.A.No.60/2008. The writ petition fails and the same is accordingly dismissed. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk