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

1. The appellants were all working as T elephone Operators with the Delhi Fire Service ( DFS). On account of reorganisation of the wireless communication system, ninety-six posts of Radio T elephone 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 T elephone Operators, in the pay scale of Rs. 260-400 were sought to be deployed as Radio T elephone Operators ( RTOs) in a higher pay scale. The reorganisation scheme was approved on 10.10.1983 by the Municipal Corporation of Delhi.2. The T elephone 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.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.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.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.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 T elephone 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.

Reasoning:
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.