F. Court Case/OA-60/Illetrate-GrD ACP/2017-18/ To The Commissioner Kendriya Vidyalaya Sangathan Headquarter. New Delhi -110016.

Date: 06.11.2017 e-mail only

Sub.: Request to issue speaking order to dispose all the cases where illiterate Group Ds has been denied grant of ACP-I/II due to qualification. Ref.: Decision on Writ Petition filed at Kerala High Court on WP(C).No. 8495 of 2009 (Z) filed by KVS against the decision on Hon CAT decision of OA 60/2008. Sir,

On the above subject I would like to draw your kind attention towards the decision arrived on the Writ Petition filed by KVS against the decision of OA 60/2008 vide WP(C).No. 8495 of 2009 (Z) Dated 24TH DAY OF MAY 2016. The same matter has been raised to your notice on several occasions but at every occasion the silence is the only action received from KVS. “To sin by silence, when we should protest, Makes cowards out of men.” Silence can never be the solution to any issue. KVS has to accept that their action has failed and the extend guidance to the competent authority to pronounce decision on the issue in form of clear order. It was humbly prayed and again requested to go through the cases in detail so that no case of ACP in KVS towards the length and breadth of our country be denied due to lack of qualification. Similar instance has occurred in KVS two cases are hereby referred 1. Recently at KVS RO Bhopal where the case of Shri S.P Pandey has been denied ACP –I due to insufficient education qualification (copy attached). 2. Shri RamJatan, Ex-Sub-Staff, Kendriya Vidyalaya Khetri Nagar was an illiterate sub-staff retired from KVS RO Jaipur Region. While disposing OA No. 60/2008 filed by KEVINTSA at CAT Ernakullam bench on 31 st day of October 2008 clearly stated that “Thus, the OA is allowed to

the extent that all the Group D employees with qualifications less than VIII standard are entitled to the two financial upgradations, (a) in the scale of Rs 2610 - 4000 (first Financial upgradation) and (b)

Rs 2750 - 4400 (second financial upgradation). If the applicants and other members of the Applicant No. 1 have been paid the above said ACP benefits, they are entitled to retain the same and Annexure A-7 shall not be applicable to them. Instead, if for any reason, any of them who do not possess the requisite qualification as VIII Standard have been granted any higher pay scale under the ACP, the same shall 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 a recovery cannot be made as per the law laid down by the Apex Court in the following cases: Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 and Bihar SEB v. Bijay Bhadur, (2000) 10 SCC 99.”

Shri Ramjatan, retired Sub-staff (erstwhile Gr. D) has been granted 1st and 2nd ACP way back by KVS and not on the basis of his representation but due to the misinterpretation ( as told by Hon. CAT) of rule by the then Deputy Commissioner/ Assistant Commissioner, KVS RO Jaipur who had fixed the pay at higher stage. But in spite of clear direction delivered by Hon’ble CAT Ernakulum, Hon’ble Supreme Court of India, the recovery of Rs.1,65,138/- has been made from the Retirement Gratuity of the employee. It is clear case of contempt of CAT order, ibid. Kindly take a note on both the cases where the denial in the first instances to grant ACP due to lack of educational qualification and superfluous recovery of Rs.1,65,138/- done. Both the cases can be decided on the same verdict WP(C).No. 8495 of 2009 (Z) Dated 24TH DAY OF MAY 2016. It is requested to issue necessary instruction failing which KEVINTSA would be constrained to file contempt for not deciding action on court decision. This is perhaps the fifth occasion when the same letter is being sent to your esteemed office and reply of silence received at every occasion. Yours faithfully

[SANDEEP KANTA BISWAS] GENERAL SECRETARY

F. Court Case (OA-60/2008)/WP- WP(C) 8495/2009/Date: 28.11.2016 To

The Commissioner Kendriya Vidyalaya Sangathan Headquarter. New Delhi-110016.

SUBMISSION-4

URGENT PLEASE e-mail & Speed Post

Sub.: Dismissal of WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. Sir, In continuation to this office letter of even no. dated 28.05.2016, 09.08.2016 and 30.08.2016 this is to draw your kind attention towards the decision pronounced by Hon’ble High Court of Kerala while disposing Writ Petition filed against the decision given on OA 60/2008 by Hon’ble CAT Ernakulam. In line to the same Hon’ble High Court of Kerala has dismissed the WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008- regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. The OA 60/2008 which was disposed of by Hon’ble CAT, the decision therein, has been upheld by Hon’ble High Court of Kerala by dismissing the Writ Petition WP(c ) 8495/2009 filed by KVS under Article 226.

It is also humbly submitted to reassess all the court cases between KEVINTSA Vs KVS and your kind self would appreciate that the

decisions of all the cases are coming in favour of KEVINTSA. But on the other hand the way Government fund is misused in form of delivering wrong decisions which in turn leads to Court Cases, may also need to be retrieved more meticulously. It is hoped that KEVINTSA would not be forced to go after any further on legal litigation to the issue which has been adjudged genuine but intentionally delayed from KVS side for no reasons. Kind action from your esteemed self is once again prayed on the issue and in the event of non-receipt of any communication within another week time it would be presumed that KVS is not interested to take any action on the decision pronounced by Hon’ble Kerala High Court. With heavy heart this is to state that this may please be treated as final communication after which KEVINTSA is constrained to file another contempt petition before Kerala High Court. Yours faithfully

[S.K.BISWAS] General Secretary Copy to: 1. Regional Secretary – KEVINTSA (All 25 Regions) – with a request to chalk out all the cases of erstwhile Gr. Ds who have been denied 1st or 2nd ACP on account of their not having requisite qualification of the post.

General Secretary

F. Court Case (OA-60/2008)/WP- WP(C) 8495/2009/ To The Commissioner Kendriya Vidyalaya Sangathan Headquarter. New Delhi.

Date: 30.08.2016 SUBMISSION-3

URGENT PLEASE e-mail & Speed Post

Sub.: Dismissal of WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. Sir, In continuation to this office letter of even no. dated 28.05.2016 and 09.08.2016 the decision pronounced by Hon’ble High Court of Kerala while disposing Writ Petition filed against the decision given on OA 60/2008 by Hon’ble CAT Ernakulam. In line to the same Hon’ble High Court of Kerala has dismissed the WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. The OA 60/2008 which was disposed of by Hon’ble CAT, the decision therein, has been upheld by Hon’ble High Court of Kerala by dismissing the Writ Petition WP(c ) 8495/2009 filed by KVS under article Article 226. It is also humbly submitted to reassess all the court cases between KEVINTSA Vs KVS and your kind self would appreciate that the decisions of all the cases are coming in favour of KEVINTSA. But on the other hand the way Government fund is misused in form of delivering

wrong decisions which in turn leads to Court Cases, may also need to be retrieved more meticulously. It is hoped that KEVINTSA would not be forced to go after any further on legal litigation to the issue which has been adjudged genuine but intentionally delayed from KVS side for no reasons. Kind guidance from your esteemed self is prayed on the issue then only we can move further to seek for legal opinion to this issue as well. Yours faithfully

[S.K.BISWAS] General Secretary Copy to: 1. Regional Secretary – KEVINTSA (All 25 Regions) – with a request to chalk out all the cases of erstwhile Gr. Ds who have been denied 1st or 2nd ACP on account of their not having requisite qualification of the post.

General Secretary

F. Court Case (OA-60/2008)/WP- WP(C) 8495/2009/ To The Commissioner Kendriya Vidyalaya Sangathan Headquarter. New Delhi.

Date: 09.08.2016 SUBMISSION-2

URGENT PLEASE e-mail & Speed Post

Sub.: Dismissal of WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. Sir, In continuation to this office letter of even no. dated 28.05.2016 the decision pronounced by Hon’ble High Court of Kerala while disposing Writ Petition filed against the decision given on OA 60/2008 by Hon’ble CAT Ernakulam. In line to the same Hon’ble High Court of Kerala has dismissed the WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008- regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. The OA 60/2008 which was disposed of by Hon’ble CAT, the decision therein, has been upheld by Hon’ble High Court of Kerala by dismissing the Writ Petition WP(c ) 8495/2009 filed by KVS under article Article 226.

It is also humbly submitted to reassess all the court cases between KEVINTSA Vs KVS and your kind self would appreciate that the decisions of all the cases are coming in favour of KEVINTSA. But on the other hand the way Government fund is misused in form of delivering

wrong decisions which in turn leads to Court Cases, may also need to be retrieved more meticulously. It is hoped that KEVINTSA would not be forced to go after any further on legal litigation to the issue which has been adjudged genuine but intentionally delayed from KVS side for no reasons. Kind guidance from your esteemed self is prayed on the issue then only we can move further to ask for legal opinion to this issue as well. Yours faithfully

[S.K.BISWAS] General Secretary Copy to: 1. Regional Secretary – KEVINTSA (All 25 Regions) – with a request to chalk out all the cases of erstwhile Gr. Ds who have been denied 1st or 2nd ACP on account of their not having requisite qualification of the post.

General Secretary

F. Court Case (OA-60/2008)/WP- WP(C) 8495/2009/

Date: 28.05.2016

To The Commissioner Kendriya Vidyalaya Sangathan Headquarter. New Delhi.

URGENT PLEASE e-mail & Speed Post

Sub.: Dismissal of WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. Sir, The JCM dated 27.05.2016, wherein, Hon’ble Chairperson and your kind self has assured for quick and speedy disposals of the pending litigations at court. In line to the same Hon’ble High Court of Kerala has dismissed the WP(C)8495/2009 filed by KVS before the Hon’ble High Court of Kerala against the decision on OA 60/2008- regarding granting of 1st and 2nd ACP to illiterate erstwhile Group Ds – Request for issue of orders. The OA 60/2008 which was disposed of by Hon’ble CAT, the decision therein, has been upheld by Hon’ble High Court of Kerala by dismissing the Writ Petition WP(c ) 8495/2009 filed by KVS under article Article 226.

Now, since the matter has been delayed unneeded too long and seek your kind intervention for an order from your kind self allowing all the erstwhile Group Ds who all has been denied 1 st or 2nd ACP on account of not processing minimum VIII Pass, all those erstwhile Gr. D employee are entitled for the 1st & 2nd ACP, as directed in OA 60/2008. The entire

OA-60/2008 must be readily available in the L&C Section. However, the operative part of the OA, ibid, at para 13 states “ Thus, the OA is allowed to the extent that all the Group D employees with qualifications less than VIII standard are entitled to the two financial upgradations, (a) in the scale of Rs 2610 - 4000 (first Financial upgradation) and (b) Rs 2750 - 4400 (second financial upgradation).” Now, at any stage, when the order will be issued, separate direction to all the Deputy Commissioner may please be issued to earmark the number of cases of erstwhile Group Ds are there in each Regions whom ACP has been denied. Similarly, non-disposal of OA-1028/2012, the legal notice which has been left unattended or unrequited, has been assured to be looked into for disposal. We thus have no other way but to wait for another fortnight (from the date of JCM) before filing contempt, which would also be very painful decision but constrained to be taken from our side. It is also humbly submitted to reassess all the court cases between KEVINTSA Vs KVS and your kind self would appreciate that the decisions of all the cases are coming to our favour. But on the other hand the way Government fund is misused in form of delivering wrong decisions which in turn leads to Court Cases, may also need to be retrieved more meticulously. Yours faithfully

[S.K.BISWAS] General Secretary Copy to: 1. Regional Secretary – KEVINTSA (All 25 Regions) – with a request to chalk out all the cases of erstwhile Gr. Ds who have been denied 1st or 2nd ACP on account of their not having requisite qualification of the post.

General Secretary

CENTRAL ADMINISTRATIVE TRIBUNAL

ERNAKULAM BENCH

O.A.No.60/2008

Friday, this the 31 st day of October 2008

C O R A M : HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER

1.

KENDRIYA VIDYALAYA NON-TEACHING STAFF ASSOCIATION represented by its General Secretary C.S.Prem, S/o.late C.G.Stephen, Residing at Chiramel House, Thoppumpady, Kochi

2.

682 005.

K.SUNDARESAN, S/o.Kesavan, Group 'D' Staff, Kendriya Vidyalaya, Pangode, Trivandrum District. Residing at Vakiyakonoth Moozhiyil Puthen Veedu, Moongode, Peyad P.O., Trivandrum District.

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.

(By Advocate Mr.T.C.Govindaswamy)

..Applicants

Versus

1.

The Commissioner, Kendriya Vidyalaya Sangathan, 18

Institutional Area, Shahid Jeet Singh Marg,

NEW DELHi

2.

110 016.

The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, I.I.T.Campus, CHENNAI

3.

600 006.

The Secretary to the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, NEW DELHI 110 001.

.. Respondents

(By Advocate Mr.Thomas Mathew Nellimoottil)

This application having been heard on 16.10.2008 the Tribunal on 31.10.2008 delivered the following :-

O R D E R HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The Kendriya Vidyalaya Nonteaching Staff Association, and two others are the applicants in this O.A. Their grievance is that the Group D employees are not extended the benefit of A.C.P. Scheme on the ground that they do not possess the requisite qualification for promotion to the next higher post of LDC/ Lab Attendants. The second applicant is a serving employee while the third is retired one. 2. Briefly the case of the applicants is that all the Group D employees have educational qualifications of less than VIII

Standard. Appointment to the post of Lab attendant is by way of promotion failing which by Direct Recruitment and the educational qualification prescribed is Middle pass with General Science. And, appointment to the post of LDC is by way of Direct recruitment to the extent of 90% and by way of promotion in respect of the balance 10% and the qualification for promotion to the post of L.D.C. is matriculation. 3. A scheme called the ACP Scheme has been introduced w.e.f. 981999 in respect of Government employees vide Annexure A-3 and condition No. 6 thereof reads as under: "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 purpose and restriction of the ACP scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodation, advances etc.) only without conferringany privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts etc.) shall be ensured for grant of benefits under the ACP Scheme;." The above scheme with all the attendant conditions had been extended to the employees of KVS, vide Annexure A-4. 4. Vide Annexure A-5 Office Memorandum fated 01-06-2001, certain clarifications have been given by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) which stipulate as under: No.35034/2//2001-Estt(D) Government of India Ministry of Personnel, Public Grievances and Pensions. (Department of Personnel and Training) New Delhi-110001 June 1, 2001. OFFICE MEMORANDUM Subject:- Grant of financial upgradations under the Assured Career Progression Scheme to Group 'D' civilian employees of the Central Government clarification regarding. The undersigned is directed to say that the clarification issued by the Department of Personnel and Training (DoP&T) in reply to the Point of Doubt No.9 vide Office Memorandum (O.M.)No.35034/1/97Estt(D)(Vol.IV) dated February 10, 2000 regarding financial upgradations admissible under the Assured Career Progression (ACP) Scheme to the Group'D' civilian employees of the Central Government has been reviewed in the light of the Ministry of Finance (Department of Expenditure) O.M.No.6/1/98IC-I dated February 12, 2001 (Copy enclosed), whereby an elongated pay-scale of Rs.2610-602910-65-3300-70-4000 (S-2A) has been introduced with effect from 1.1.1996 in replacement of the pre- revised elongated pay-scale of

Rs.775-12-871-14-955-15-1030-20- 1150, which was applicable to all Group 'D' employees, other than those in the industrial and workshop categories and in the Railways. It has accordingly been decided that financial upgradations under the ACP Scheme introduced vide DoP&T O.M.No.35034/1/97-Estt(D) dated August 9, 1999, shall be allowed to Group 'D' civilian employees of the Central Government in the revised hierarchical grades/pay-scales after taking into account the revised elongated scale S-2A, wherever applicable, provided that all the conditions specified in the ACP Scheme, including fulfillment of all promotional norms are met. This is, however, subject to the following: First financial upgradation on completion of 12 years of regular service shall be at least to the pay-scale of Rs.2610-60- 2910-653300-70-4000 (S.2A). The second financial upgradation on completion of 24 years of regular service shall be allowed at least to the pay scale of Rs.2750-70-3800-75-4400 (S-4). However, where Group 'D' civilian employees of the Central Government are Matriculates and are eligible for promotion to the post of Lower Division Clerk (LDC), the second financial upgradation in their case shall be allowed at least to the pay-scale of Rs.3050-75-3950-80-4590 (S-5). The above decisions shall be effective from August 9, 1999 which is the date of introduction of the ACP Scheme. The financial upgradations under the ACP Scheme already granted to Group 'D' employees should, as such, be reviewed and revised in the light of the above decisions. In certain Ministries/Departments/Organisations, Group 'D' employees initially recruited at S-2/S-3 level have been allowed financial upgradation under the ACP Scheme in the LDC Grade (S-5) even without possession of prescribed educational qualification viz. Matriculation. Such upgradation has been allowed erroneously, as in terms of the Condition No.6 of the ACP Scheme notified on August 9, 1999, fulfillment of all promotional norms (including educational qualification, i any, specified in the relevant Recruitment Rules/Service Rules), prescribed for grant of regular promotion is an essential requirement for grant of financial upgradations in the hierarchical grades. Such cases should, therefore, be reviewed and excess payments already made be recovered forthwith. All Ministries/Departments may give wide circulation to these decisions for general guidance and appropriate action in the matter. Sd/ (K.K.JHA ) DIRECTOR (Establishment) All Ministries/Departments of the Government of India

5. Vide Annexure A-6, the office of the C & A.G. made further clarification in this regard, which states as under: A.G.(Audit) H.Sectt. AG Pt.No.607 dt.22.10.01 Office of General of India New Delhi 110 002.

the

Comptroller

and

Auditor

Circular No.41/NGE/2001 No.1140 NGE(App.)/34-2001 Vol.II Dated 18th October, 2001. To All Heads of Department in IA&AD (as per mailing list). Subject:- Grant of financial upgradation under the ACP Scheme to Group 'D' Civilian employees of the Central Govt. Sir/Madam, I am directed to refer to DoP&T O.M. No.35034/2/2001-Estt (D) dated 1.6.2001wherein it has been clarified that the persons recruited to the pay scale of Rs. 25503200 shall be allowed Ist and 2 nd financial upgradations at last to the pay scales of Rs.2610-4000 and Rs/2750-4400 respectively. Some field Offices have sought clarification whether the Group'D' employees who do not possess the educational qualification for promotion to the post of Record Keeper shall also be allowed 2 nd financial upgradation to the pay scale of Rs. 2750-4400 (S-4). The department of P&T to whom the matter was referred have since clarified that the Group'D' employees who do not possess the educational qualification of 8 th standard shall also be allowed 2 nd financial upgradation to the pay scale of Rs. 2750-4400 (S-4) in relaxation of condition No.6 of ACP Scheme notified on 9.8.99. ........... Yours faithfully Sd/ (A.K.SINHA) SR.ADMINISTRATIVE OFFICER (APP) 6. The Group D employees have been the beneficiaries of the aforesaid scheme but by Annexure A-7 order dated 31-10-2007, the same was sought to be withdrawn, with a further direction to recover the amount paid to the employees. 7. The First applicant took up the case with the authorities vide Annexure A-8 representation dated 05-12-2007. It was stated therein that since the Group D employees do not have qualifications required for further promotion, they must be deemed to be holding the isolated posts and on the same basis of Annexure A-6 order of the C & A.G., the Group D employees should be allowed to continue to enjoy the ACP. And in any event, recovery cannot be affected as the same is not on any mis-statement of the employees. Reliance was placed upon the decision of the Apex Court in the case of Shyam Babu Verma.

And, as there has been no response, the applicants have moved this Tribunal with the following prayer:i) Call for the records leading to the issue of Annexure A7 and quash the same; ii) Declare that the Group 'D' employees of the KVs irrespective of the fact the they have the qualification of VIII Std. or not are entitled to be granted the Ist financial upgradation in the scale of pay of Rs.2750-4400 if they do not possess the qualification of matriculation and to the scale of pay of Rs.3050-4590 if they possess the qualification of matriculation; iii) Direct the respondents to grant the applicants and the members of the Ist applicant Association represented in this O.A. all consequential benefits from such day from which they are entitled to in terms of Annexure A3 read with Annexure A4 with all consequential arrears of pay and allowances arising therefrom; 8. At the time of admission hearing, stay of Annexure A-7 order has been ordered vide order dated 28-01-2008. 9. Respondents have contested the O.A. According to them, since the ACP can be granted only when the requisite conditions are fulfilled and condition No. 6 not being fulfilled in this case, the group D employees who do not possess VIII standard qualifications, are not entitled to any ACP and recovery is inevitable. 10. Counsel for the applicant emphasized upon Annexure A-5 and A-6 orders and contended that where provisions exist for induction into Group D grade with qualifications less than VIII standard, and where persons were so inducted into service, they should be treated as having been holding isolated posts. 11. Counsel for the respondents submitted that since Recruitment Rules provide for promotion to the post of Lab Attendant and LDCs, the posts held by the Group D employees cannot be treated to be isolated. 12. Arguments were heard and documents perused. Annexure A-6 is specific that group D employees who do not possess the educational qualifications of 8th standard shall also be allowed the 2nd financial upgradation to the pay scale of Rs 2750 - 4400 in relaxation of condition No. 6 of the ACP Scheme notified on 9th August, 1989. This is the clarification given by the DOPT which issued the Annexure A-5 order. Annexure A-5 and A-2 orders are in whole clarifications of the Annexure A-2 order dated 09-08-1999 which has been extended to the KVS, vide Annexure A-2 order. Thus, Annexure A-5 and A-6 orders equally apply to employees of KVS and in view of the fact that for group D employees who are not holders of the qualifications of VIII Standard, are to be given relaxation to

the requirement of qualifications for higher post, such a relaxation is available to group D employees of KVS as well. 13. Thus, the OA is allowed to the extent that all the Group D employees with qualifications less than VIII standard are entitled to the two financial upgradations, (a) in the scale of Rs 2610 4000 (first Financial upgradation) and (b) Rs 2750 - 4400 (second financial upgradation). If the applicants and other members of the Applicant No. 1 have been paid the above said ACP benefits, they are entitled to retain the same and Annexure A-7 shall not be applicable to them. Instead, if for any reason, any of them who do not possess the requisite qualification as VIII Standard have been granted any higher pay scale under the ACP, the same shall 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 a recovery cannot be made as per the law laid down by the Apex Court in the following cases: (a) Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18: ".it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant." (b) Bihar SEB v. Bijay Bhadur, (2000) 10 SCC 99: "We do record our concurrence with the observations of this Court in Sahib Ram case 1 and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time." (c ) Col. B.J. Akkara (Retd.) v. Govt. of India,(2006) 11 SCC 709: "27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-61999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana , Shyam Babu Verma v. Union of India , Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director ): ( a ) The excess payment was not made on account misrepresentation or fraud on the part of the employee.

of

any

( b ) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (d) Purshottam Lal Das v. State of Bihar,(2006) 11 SCC 492 : "We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. " 14. No cost. Dated the 31 st October, 2008. Ms.K.NOORJEHAN

Dr.K.B.S.RAJAN

ADMINISTRATIVE MEMBER

JUDICIAL MEMBER

Case Status : Disposed Status Of : WRIT PETITION (CIVIL 8495 Of 2009

Litigants :

THE COMMISSIONER,KVS AND ANOTHER Vs. KENDRIYA VIDYALAYA NONTEACHING STAFF

Pet's Adv : SRI.V.V.ASOKAN (SR.)

Res's Adv : SRI.T.C.GOVINDA SWAMY Last Date of Hearing : Tuesday, May 24, 2016 Next / Final Date of --Hearing : Case Updated On : Wednesday, May 25, 2016 Category : Central Civil Service Rules (CAT)