RAMA NAND AND ORS. versus CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ANR.
[2020] 6 S.C.R. 19, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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RAMA NAND AND ORS.
v.
CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ANR.
(Civil Appeal Nos. 5829-5830 of 2012)
AUGUST 06, 2020
[SANJAY KISHAN KAUL, AJAY RASTOGI AND
ANIRUDDHA BOSE, JJ.]
Service Law:
Assured Career Progression (ACP) Scheme – Entitlement –
To Telephone Operators who were sought to be deployed as Radio
Telephone Operators (RTOs) in the higher pay as per re-organisation
Scheme – Held: The consequence of re-organisation Scheme was
re-description of post based on higher pay-scale and specialized
training – This would amount to promotion – Hence not entitled to
ACP.
Dismissing the appeals, the Court
HELD: 1. 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. There was 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, are much higher. The appellants had also
to go through the rigours of a specialised training. All these cannot
be stated to be only an exercise of merely re-description or
reorganisation of the cadre. 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, 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. [Para 17][27-B-E-]
[2020] 6 S.C.R. 19
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2. 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
no 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 is “to deal with the problem
of genuine stagnation and hardship faced by the employees due
to lack of adequate promotional avenues.” [Para 18][27-F]
3. 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 Central Administrative Tribunal.
[Para 16][26-H]
Bharat Sanchar Nigam Limited v. R. Santhakumari
Velusamy and Others (2011) 9 SCC 510 : [2011] 14
SCR 502; Union of India v. Pushpa Rani (2008) 9 SCC
242 : [2008] 11 SCR 440 – relied on.
Case Law Reference
[2011] 14 SCR 502
relied on
Para 10
[2008] 11 SCR 440
relied on
Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5829-
5830 of 2012.
From the Judgment and Order dated 08.05.2009 of the High Court
of Delhi at New Delhi in Writ Petition (Civil) Nos. 8406-8407 of 2004.
Surinder Kumar Gupta, Adv. for the Appellants.
Ms. Madhvi Divan, ASG, Ms. Kiran Suri, Ms. Rashmi Malhotra
(for B.V. Balaram Das), Advs. for the Respondents.
The Judgment of the Court was delivered
by
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.
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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.
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”.
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.
RAMA NAND AND ORS. v. CHIEF SECRETARY, GOVT. OF
NCT OF DELHI & ANR. [SANJAY KISHAN KAUL, J.]
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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 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 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
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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.1
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
1 (2011) 9 SCC 510
RAMA NAND AND ORS. v. CHIEF SECRETARY, GOVT. OF
NCT OF DELHI & ANR. [SANJAY KISHAN KAUL, J.]
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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 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
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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
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 Rani2 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
2 (2008) 9 SCC 242
RAMA NAND AND ORS. v. CHIEF SECRETARY, GOVT. OF
NCT OF DELHI & ANR. [SANJAY KISHAN KAUL, J.]
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‘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.
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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 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.”
19. Appeals are, accordingly, dismissed leaving the parties to bear
their own costs.
Kalpana K. Tripathy
Appeals dismissed.
RAMA NAND AND ORS. v. CHIEF SECRETARY, GOVT. OF
NCT OF DELHI & ANR. [SANJAY KISHAN KAUL, J.]