Case: RAMA NAND Vs. CHIEF SEC.GOVT.OF NCT OF DELHI

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 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 (2008) 9 SCC 242 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. 244h- 245h) 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 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. 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 T elephone 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 re- description 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.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 Commissioners 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 T elephone 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 T elephone Operator as even set out in the writ petition filed before the High Court.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 T elephone 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 re- description 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 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.