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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, AJAY RASTOGI, ANIRUDDHA BOSE, JJ.
Rama Nand And Others – Appellant
Versus
Chief Secretary, Govt. of NCT of Delhi And Another – Respondent
Civil Appeal Nos. 5829-5830 of 2012
Decided On : 06-08-2020
Service Law – Promotion – Reorganisation of cadre – 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 – Consequence of reorganisation of cadre resulted in not only a mere re-description of post but also a much higher pay scale being granted to appellants based on an element of selection criteria – There is a requirement of a minimum 5 years of service – All Telephone Operators would not automatically be eligible for new post – Financial emoluments are much higher – Third important aspect is that appellants had to go through rigorous of a specialised training – All these cannot be stated to be only an exercise of merely re-description or reorganisation of cadre – In present case, there is a re-description of post based on higher pay scale and a specialised training – Complete factual contours of difference between two posts would have to be examined in given factual situation and triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments – What was done has to be considered as a promotion disentitling appellants to benefits of ACP Scheme – Very objective of ACP Scheme is to deal with problem of genuine stagnation and hardship faced by employees due to lack of adequate promotional avenues – Appeals dismissed. (Paras 14, 17, 18 and 19)
Facts of the case:
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. 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.
Findings of Court:
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.
Result : Appeals dismissed
JUDGMENT :
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.
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.
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 o
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