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Judgment
Aradhana Johri, Member (A)
The applicants who are four in number were transferred from DDA to MCD on different dates vide various orders. The
applicants were appointed as Mali in DDA and were transferred as such to MCD but, subsequently, they were promoted as
Garden Supervisors (Chaudhary). As per the terms and conditions of the transfer, they were to have the same terms and conditions of service as they
would have held, had they been continued in DDA. Accordingly, they were granted the same pay scale at the time of transfer and also given 1stÂ
and 2nd ACPs and MACP. This was the outcome of various rounds of litigation which started from this Tribunal, went to the Hon’ble High
Court of Delhi by various Writ Petitions and finally also to the Apex Court.
Respondent no.2, North Delhi Municipal Corporation vide office order dated 19.02.2016 found the applicants along with several others ineligible for
the ACPs on the ground that they were not meeting the educational qualification. The Dy. Director (Horticulture) North Delhi Municipal Corporation
was directed to take corrective action to fix/re-fix the pay in respect of the employees who had been granted benefit in terms of various office order
as mentioned in para (1) of the said office order and make recovery from them, in case any excess payment has been made.
It is the contention of the applicants that vide clause 6 of the terms and conditions of transfer, they were to have the same terms and conditions that
they would have hold had they been continued to be in DDA and that these conditions not to be altered to their disadvantage. The exact condition in
clause 6 of transfer are reproduced below :-
“6. Every employee shall on and from the date of his transfer to the Corporation shall become an employee of the Corporation with such
designation as the Commissioner may determine and shall held office by the same tenure, remuneration and on the same terms and conditions of
service as he would have held if he had continues of service in the DDA unless and until such tenure, remuneration and terms and conditions are duly
altered by the Corporation. However, the same shall not be to his disadvantage/without the previous sanction of the Corporation.â€
They have further stated that no doubt as per recruitment rules, certain educational qualifications are provided, but the competent authority had the
power to relax them and in the case of employees of DDA, the LG relaxed the educational qualification criteria for purposes of grant of ACP benefits
only and not for shouldering higher responsibilities.They have filed note sheets containing LG’s order dated 12.08.2004 which are at
Annexure A/4. They have claimed that since their service conditions guarantee the same terms and conditions had they continued in DDA, this
relaxation given to the DDA employees would have been given to them also. Therefore, they are eligible for the said pay scales which have been
granted to them through 1st and 2nd ACPs and MACP. They have accordingly sought setting aside of orders dated 19.02.2016 by which their
services are to be re-fixed and recovery to be ordered.
Respondents have denied the claim of the applicants. They have stated that they do not ful fil the criteria prescribed in the recruitment rules. Grant
of ACPs/MACP can only be done to employees who are eligible for promotion. Therefore, since the applicants did not meet the educational criteria
laid down, they are not eligible for enhanced pay scales given as a result of ACPs/MACP. They have cited various rules regarding pay parity related
to nature and volume of work, quality of work etc., they have also pointed out that no orders have been issued by DDA for relaxation of educational
qualification for grant of ACPs/MACP to employees in the category of the employees. They have stated that in W.P. (C) No. 2621/2010, titled as
MCD Vs. Ram Avtar & Ors. and WP (C) 2671/2010 titled as MCD Vs. Virender Singh & Others, wherein the Hon’ble High Court of Delhi has
directed that they shall continue on the same terms and conditions of service as they would have held if they had continued to be in DDA which also
included future benefits, the Hon’ble High Court did not make any relaxation regarding educational or other qualification. It is therefore, their
contention that applicants are not eligible for the said benefits.
Respondents have also averred that several letters were sent to DDA where educational qualifications of next hierarchical post were ignored while
granting 1st and 2 nd ACPs on the pattern of DDA but instead of answering this query, DDA simply sent a copy of RRs of different posts and cadres
of DDA.
Heard Mr. Pranav Chadha, learned counsel for applicants and Mr. Manjeet Singh Reen, learned counsel for respondents no. 1 & 2 and Mr. R. K.
Jain for respondents no. 3 & 4. It is necessary first of all to examine the terms and conditions of transfer of service of the applicants. These are given
at Annexure A/2 which reads as under :-
“Terms and Conditions of transfer to staff of Delhi Development Authority to Municipal Corporation of Delhi.
General:-
The staff, transferred from Delhi Development Authority to the MCD shall be termed as Transferred Cadre.
The transferred cadre will be diminishing cadre and all future recruitment will be made on the General cadre for the maintenance of services in the
colonies.
All higher posts created on or after such transfer, directly due to this cadre will be filled up for promotion/ as per rules from amongst the staff borne
on this transferred cadre.
All the vacancies arising out of the normal incidence of retirement, promotion, etc. In the transferred cadre will transferred to the General Cadre.
The number of posts in the higher grades released as a result of retirement, promotion etc. In the transferred cadre minus those transferred to the
General cadre will be utilized for promotion in the transferred cadre.
Every employee shall on and from the date of his transfer to the Corporation shall become an employee of the Corporation with such designation as
the Commissioner may determine and shall held office by the same tenure, remuneration and on the same terms and conditions of service as he would
have held if he had continues of service in the DDA unless and until such tenure, remuneration and terms and conditions are duly altered by the
Corporation. However, the same shall not be to his disadvantage/without the previous sanction of the Corporation.
Any service rendered by any such employee/before his transfer to the Corporation shall be deemed to be service rendered under the Corporation.
The Commissioner may employ an employee, transferred to the Corporation as he may think proper and every such employee shall discharge those
functions accordingly.
All rules and service conditions applicable to the General Cadre will be applicable to the transferred cadre.
The DDA shall finalize all disciplinary proceedings against officials of the transferred cadre before the transfer actually takes place.
The employees of the transferred cadre who have not been regularised and are holding posts on Muster Roll would have no claim for
regularisation automatically as a result of transfer of their services.
The employees of the transferred cadre who are confirmed prior to their transfer, shall be deemed to have been confirmed in the cadre on transfer
to the MCD.
Pension & Contributory PF :
The DDA shall make payment of pension contributory etc, to the MCD in lumpsum so as to leave no room for ambiguity in future.
The terms and conditions of CPF/GPF schemes and other pensionary schemes existing in the Corporation on the analogy of the Govt., of India and
made applicable to the employees of the MCD shall apply mutatis mutandis to the transferred cadre from the date of their transfer including the
amendments, if any, made from time to time by the Govt., of India and made applicable to the employees of the General Cadre.â€
(emphasis added)
While dealing with similar matters in W.P. (C) 2621/2010 titled as MCD Vs. Ram Avtar & Others and WP (C) 2671/2010, titled as MCD Vs.
Virender Singh & Others, the Hon’ble High Court of Delhi passed the following orders. SLP No.CC 10458-10459/2013) against the same was
dismissed by the Hon’ble Apex Court.
“2. The private respondents are pump operators, Malis and Chowkidars, who were hitherto employed in the Delhi Development Authority (DDA).
By an order dated 02.12.1994, certain colonies had been transferred from the Delhi Development Authority to the Municipal Corporation of Delhi, as
a result of which, the private respondents, who were DDA employees also stood transferred to MCD. The terms and conditions of their transfer, inter
alia, included clause 6, which is as follows :-
“Every employee shall on and from the date of his transfer to the Corporation, shall become an employee of the Corporation with such designation
as the Commissioner may determine and shall hold office by the same tenure, remuneration and on the same terms and conditions of service as he
would have held, if he had continues of service in the DDA unless and until such tenure, remuneration and terms and conditions are duly altered by the
Corporation. However, the same shall not be to his disadvantage/without the previous sanction of the Corporation.â€
........
On careful consideration of the rival contentions of the parties, in our considered view, on transfer of applicants from DDA to MCD what has been
protected and safeguard is not the terms and conditions, as existed but also on the premise that the same would be admissible if they had continued to
be in DDA. This clearly establishes that even the future benefits are also protected in DDA. They only exception to deny is when the terms and
conditions are altered by the Corporation, which have not been altered. As we find that in DDA the higher pay scale has been given to these
categories as ACP pay scale, the same having been lowered down, without any alteration of service conditions, the conditions are disadvantageous to
the applicants and they are altered to their detriment without any opportunity, which cannot be countenanced in law.
(7) Accordingly, the TAs stand disposed of with a direction to the respondents to consider the claim of the applicants for enhancing the pay scale in
ACP, within a period of three months from the date of receipt of a copy of this order.â€
From the terms and conditions given above, as well as the orders of the Hon’ble High Court, it is clear that not only the existing terms and
conditions of the applicants while they were in DDA, but also future benefits in DDA were also protected.
Now, the question comes whether DDA employees of the same category as the applicants were, in fact given exemption from the relaxation of
educational qualification and therefore, given the benefits of ACPs and MACP. The photocopy of some note sheets have been supplied by the
applicants but the respondents have denied that any office orders were issued on the same. The absence of a response from DDA comes in the way
of a clear finding on the issue of relaxation / exemption from educational qualification for grant of ACPs and MACP to employees of DDA who are
similarly placed with the applicants.
However it clearly emerges that as per the terms and conditions and the various Court orders from time to time, the applicants are entitled to the
terms and conditions of services that they would have held, if they continued to be in the service of DDA, and any alteration in these could not be to
their disadvantage without the previous sanction of the corporation.
In light of the above, it is directed that the benefits of ACPs and MACP given to employees of DDA who are similarly placed to the applicants
shall also be given to the applicants. The respondents are directed to seek a clarification from DDA regarding exemption from educational
qualifications to its employees for the purpose of ACP and MACP, and pass a reasoned and speaking order within a period of three months from the
date of receipt of a certified copy of this order. Till then, the orders dated 19.02.2016 will not be acted upon.
With the above directions, the O.A is disposed of. There shall be no order as to costs.