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.

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.
    1
  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”.
    2
  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.
    3
  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
    4
    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.
    1
    1 (2011) 9 SCC 510
    5
  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
    6
    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
    7
    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
    8
  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.
    9
  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
    10
    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]
    11
    NEW DELHI.
    AUGUST 06, 2020.
    12