REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5829-5830 OF 2012
RAMA NAND AND ORS. ….APPELLANTS
VERSUS
CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ANR. ….RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. The appellants were all working as Telephone Operators with the Delhi
Fire Service (“DFS”). On account of reorganisation of the wireless
communication system, ninety-six posts of Radio Telephone Operators were
sought to be created in terms of a letter dated 29.8.1983. Six Radio
Operators were already operating as such, while twenty-seven Telephone
Operators, in the pay scale of Rs. 260-400 were sought to be deployed as
Radio Telephone Operators (“RTOs”) in a higher pay scale. The
reorganisation scheme was approved on 10.10.1983 by the Municipal
Corporation of Delhi.
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2. The Telephone Operators had to go through a training and to be
deployed as RTOs, a further condition was imposed of 5 years regular
service, though it is alleged by the appellants that the same was not part of
the letter dated 29.8.1983. An important development took place on
9.8.1999 whereby the Department of Personnel and Training, Government of
India issued an Office Memorandum introducing an Assured Career
Progression (“ACP”) Scheme, by which a decision was taken to grant two
financial upgradations after completion of 12 and 24 years of regular service
respectively. It is the case of the appellants that they were entitled to get
their first financial upgradation as on 9.8.1999 or on completion of 12 years
of service in the DFS as Telephone Operators/RTOs, but that the same were
denied to the appellants since the respondents treated their conversion of
the aforesaid posts as a promotion. The limited controversy which arises for
adjudication in the present case is whether the deployment of the appellants
as RTOs would amount to a promotion or whether it was a mere
reorganisation and the appellants were entitled to the ACP separately in
terms of the ACP Scheme.
3. The appellants filed OA No. 983/1995 before the Central Administrative
Tribunal (“CAT”), Principal Bench, New Delhi and succeeded in terms of the
judgment dated 6.10.1999 granting them the pay scale of RTOs, i.e., Rs.380-
560 on the principle of “equal pay for equal work”.
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4. One of the RTOs made a representation on 31.5.2001 on the non-grant
of the benefits of the ACP Scheme. Thereafter, the respondents sought a
clarification from the Government of India, Department of Personnel and
Training as to whether placement/appointment in higher pay scales is a
promotion/financial upgradation and is to be offset against the financial
upgradations per the ACP Scheme. It is a case of the appellants that the
clarification issued in this behalf, through an Office Memorandum dated
18.7.2001, would have no application to the appellants in view of the
statutory recruitment rules (though stated to be not notified as per the
appellants and thus inapplicable) and on account of the
restructuring/reorganisation which had come to prevail.
5. OA No. 1224/2003 was filed in May 2003 before the CAT, Principal
Bench, New Delhi seeking relief for the first financial upgradation in terms of
the ACP Scheme, which was opposed by the respondents. The Tribunal
decided the issue vide judgment dated 29.10.2003 opining that promotion
and merger of cadres operated in different spheres and the requirement to
be categorised as ‘promotion’ is that it must specify certain basic
qualifications. On the other hand, conversion of the posts was in exercise of
the powers of the Government in the given exigencies. Hence, what was
granted to the appellants was not a promotion and the Tribunal consequently
opined that the appellants were entitled to the benefits of the ACP Scheme.
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6. The aforesaid order was assailed by the respondents before the Delhi
High Court by filing writ petition being WP (C) No. 8406-07 of 2004. The High
Court called for the records and, on the pleadings being completed, passed
the impugned judgment dated 8.5.2009 allowing the writ petition filed by the
respondents. The gravamen of the reasoning of the High Court is that the
conversion of posts of Telephone Operators to RTOs was with a condition of
completion of 5 years of regular service, with the benefit of the higher pay
scale from Rs. 260-400 to Rs. 380-560 and consequently, was liable to be
treated as promotion, thus disentitling the appellants to the benefits of the
ACP Scheme.
7. We have considered respective submissions of learned counsel for the
parties.
8. On an examination of the Office Memorandum dated 9.8.1999 bringing
forth the ACP Scheme, it is apparent that the same was a consequence of the
Fifth Central Pay Commission Report recommending such a Scheme for
civilian employees, and was to be viewed as a safety net to deal with the
problem of genuine stagnation and hardship faced by the employees due to
lack of adequate promotional avenues. The moot point, thus, which arises
for consideration is whether the benefits accruing to the appellants as a
consequence of the reorganisation scheme of wireless and communication
systems could be said to give them the benefit of a promotion and whether
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they were still entitled to a financial upgradation on account of the ACP
Scheme.
9. Our attention has been drawn to the circular dated 24.2.1984 that
provided for a training to be conducted at the headquarters of DFS for a
period of two months. Such training had to be carried in two batches under
the supervision of the Wireless Officer. In fact, the reference of the
reorganisation of the wireless and communication system in the DFS as per
item no. 137 contained in the Commissioner’s letter dated 29.8.1983, sets
out the reasons for the same as an endeavour to increase the efficiency of
the original wireless communication system introduced in 1961 and the
requirement of reorganisation in view of the change in the technology itself.
It is clearly stated that the existing twenty-seven Telephone Operators would
be in the higher pay scale as set out aforesaid “after necessary training of
short duration”. There was also a requirement of the fulfilment of the
essential condition of 5 years of experience in the post of Telephone Operator
as even set out in the writ petition filed before the High Court.
10. Mr. Balbir Singh Gupta, learned counsel for the appellant as well as Ms.
Madhavi Divan, learned ASG have both relied in support of their respective
submissions on the judgment of this Court in Bharat Sanchar Nigam Limited
v. R. Santhakumari Velusamy and Others.
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1 (2011) 9 SCC 510
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11. Learned counsel for the appellant sought to refer us to para 29 which
sets out the principles as under:
“29. On a careful analysis of the principles relating to
promotion and upgradation in the light of the aforesaid
decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade or
both and is a step towards advancement to a higher
position, grade or honour and dignity. Though in the
traditional sense promotion refers to advancement to a
higher post, in its wider sense, promotion may include an
advancement to a higher pay scale without moving to a
different post. But the mere fact that both—that is,
advancement to a higher position and advancement to a
higher pay scale—are described by the common term
“promotion”, does not mean that they are the same. The
two types of promotion are distinct and have different
connotations and consequences.
(ii) Upgradation merely confers a financial benefit by
raising the scale of pay of the post without there being
movement from a lower position to a higher position. In an
upgradation, the candidate continues to hold the same
post without any change in the duties and responsibilities
but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a
higher pay scale without change of post, it may be referred
to as upgradation or promotion to a higher pay scale. But
there is still difference between the two. Where the
advancement to a higher pay scale without change of post
is available to everyone who satisfies the eligibility
conditions, without undergoing any process of selection, it
will be upgradation. But if the advancement to a higher
pay scale without change of post is as a result of some
process which has elements of selection, then it will be a
promotion to a higher pay scale. In other words,
upgradation by application of a process of selection, as
contrasted from an upgradation simpliciter can be said to
be a promotion in its wider sense, that is, advancement to
a higher pay scale.
(iv) Generally, upgradation relates to and applies to all
positions in a category, who have completed a minimum
period of service. Upgradation can also be restricted to a
percentage of posts in a cadre with reference to seniority
(instead of being made available to all employees in the
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category) and it will still be an upgradation simpliciter. But
if there is a process of selection or consideration of
comparative merit or suitability for granting the
upgradation or benefit of advancement to a higher pay
scale, it will be a promotion. A mere screening to eliminate
such employees whose service records may contain
adverse entries or who might have suffered punishment,
may not amount to a process of selection leading to
promotion and the elimination may still be a part of the
process of upgradation simpliciter. Where the upgradation
involves a process of selection criteria similar to those
applicable to promotion, then it will, in effect, be a
promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter,
there is no need to apply the rules of reservation. But
where the upgradation involves a selection process and is
therefore a promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres
resulting in creation of additional posts and filling of those
vacancies by those who satisfy the conditions of eligibility
which includes a minimum period of service, will attract the
rules of reservation. On the other hand, where the
restructuring of posts does not involve creation of
additional posts but merely results in some of the existing
posts being placed in a higher grade to provide relief
against stagnation, the said process does not invite
reservation.”
He submitted that in terms of sub-para (iii) and (iv), when there is an
advancement to a higher pay scale without change of post, it may be
referred to as upgradation or promotion to a higher pay scale. But there is a
difference between the two. In case such change of post is available to
everyone who satisfies the eligibility condition without undergoing any
process of selection, it will be upgradation. While, if it is a result of some
process which has element of selection, then it will be a promotion to the
higher pay scale. Sub-para (iv) is stated to further clarify this aspect that if
there is process of selection or consideration of comparative merit or
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suitability for granting the upgradation or benefit of advancement to a higher
pay scale, it will be a promotion.
12. On the other hand, learned ASG submitted that the aforesaid principle
have to be read in the context of what has been set out before in paras 27
and 28. The law explaining the difference between upgradation and
promotion was set out in Union of India v. Pushpa Rani
2 and those principles
have been extracted in para 27, the relevant portion of para 27 reads as
under:
“27. In Union of India v. Pushpa Rani [(2008) 9 SCC
242 : (2008) 2 SCC (L&S) 851] this Court examined the entire
case law and explained the difference
between upgradation and promotion thus: (SCC pp. 244h245h)
“In legal parlance, upgradation of a post involves
transfer of a post from lower to higher grade and
placement of the incumbent of that post in the
higher grade. Ordinarily, such placement does not
involve selection but in some of the service rules
and/or policy framed by the employer for
upgradation of posts, provision has been made for
denial of higher grade to an employee whose service
record may contain adverse entries or who may have
suffered punishment. The word ‘promotion’ means
advancement or preferment in honour, dignity, rank,
grade. Promotion thus not only covers advancement
to higher position or rank but also implies
advancement to a higher grade. In service law, the
word ‘promotion’ has been understood in wider
sense and it has been held that promotion can be
either to a higher pay scale or to a higher post.”
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”
2 (2008) 9 SCC 242
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13. The posts in the case of Pushpa Rani (supra) was held to be promotion
for the reasons set out in para 28.
“28. In Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S)
851], this Court while considering a scheme contained in the
Letter dated 9-10-2003 held that it provided for a restructuring
exercise resulting in creation of additional posts in most of the
cadres and there was a conscious decision to fill up such posts
by promotion from all eligible and suitable employees and,
therefore, it was a case of promotion and, consequently, the
reservation rules were applicable.”
14. The submission of learned ASG was that the conclusions will have to be
read in the aforesaid context. Thus, a promotion is an advancement in rank
or grade or both and is a step towards advancement to a higher position,
grade or honour and dignity - “in its wider sense, promotion may include an
advancement to a higher pay scale without moving to a different post.”
15. Learned counsel in the aforesaid context, while turning to the factual
matrix of the present case, submitted that there are three aspects which are
material in the present case:
(i) prequalification of minimum of 5 years of service;
(ii) higher financial emoluments;
(iii) rigorous of a specialised training
These make a candidate eligible. It was, thus, a submission that if all these
three are considered together, there can be no doubt that the present case is
one which should be considered as the promotion for the purpose of ACP
Scheme.
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16. We have examined the aforesaid contention and we are of the view
that the benefits of ACP Scheme cannot be held applicable to the appellants
and consequently the High Court was right in interfering with the order of the
CAT.
17. The reasons for coming to this conclusion is based on the principles set
out in the BSNL case (supra). No doubt, sometimes there is a fine distinction
which arises in such cases, but, a holistic view has to be taken considering
the factual matrix of each case. The consequence of reorganisation of the
cadre resulted in not only a mere re-description of the post but also a much
higher pay scale being granted to the appellants based on an element of
selection criteria. We say so as, at the threshold itself, there is a
requirement of a minimum 5 years of service. Thus, all Telephone Operators
would not automatically be eligible for the new post. Undoubtedly, the
financial emoluments, as stated above, are much higher. The third important
aspect is that the appellants had to go through the rigorous of a specialised
training. All these cannot be stated to be only an exercise of merely redescription or reorganisation of the cadre. On applying the test in BSNL case
(supra), as per sub-para (i) of para 29, promotion may include an
advancement to a higher pay scale without moving to a different post. In the
present case, there is a re-description of the post based on higher pay scale
and a specialised training. It is not a case covered by sub-para (iii), as
canvassed by learned counsel for the appellants, where the higher pay scale
is available to everyone who satisfies the eligibility condition without
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undergoing any process of selection. The training and the benchmark of 5
years of service itself involve an element of selection process. Similarly, it is
not as if the requirement is only a minimum of 5 years of service by itself, so
as to cover it under sub-para (iv).
18. We have already observed that the complete factual contours of the
difference between the two posts would have to be examined in the given
factual situation and the triple criteria of minimum 5 years of service, a
specialised training and much higher financial emoluments leaves us in no
manner of doubt. What was done has to be considered as a promotion
disentitling the appellants to the benefits of the ACP Scheme. As the very
objective of the ACP Scheme, as set out, is “to deal with the problem of
genuine stagnation and hardship faced by the employees due to lack of
adequate promotional avenues.”
19. Appeals are, accordingly, dismissed leaving the parties to bear their
own costs.
……..……………………………….J.
[SANJAY KISHAN KAUL]
……..……………………………….J.
[AJAY RASTOGI]
……..……………………………….J.
[ANIRUDDHA BOSE]
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NEW DELHI.
AUGUST 06, 2020.
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