The Difference between Upgradation and Promotion with higher pay-scale

Isha Sawant | Government Law College | 15th August 2020

Rama Nand v. Chief Secretary, Govt. of NCT of Delhi (SC)

Facts:

The appellants- were working as Telephone Operators for Delhi Fire Service (DFS); a letter dated 29-08-1983 called for reorganisation of the wireless communication for which 96 posts of Radio Telephone Operators (RTO) were to be created, Municipal Corporation of Delhi approved the scheme on 10-10-1983. Six RTO’s were already operating, 27 telephone operators on a pay-scale of Rs. 260-400, on the condition of completion of 5 years of regular service were to be trained and deployed as RTO’s. The Department of Personnel and Training, Government of India, issued an Office Memorandum of 9-08-1999, introducing the Assured Career Progression Scheme by which two financial upgradations would be granted after completion of 12 and 24 years of service respectively. The appellants stated that they were entitled to the financial upgradation under ACP scheme on 9-08-1999 or on completion of 12 years of in DFS as telephone operators or RTO’s, however, it was denied as their conversion to the abovementioned posts was considered as a promotion. Aggrieved by this, the appellants filed a suit before the Central Administrative Tribunal (CAT), New Delhi, in its judgement dated 16-10-1999, based on the principle of ‘equal pay for equal work’ granted the appellants the same pay- scale as the RTO’s i.e. Rs. 380-560. On 31-05-2001, one RTO made a representation on the non-grant of the ACP scheme benefits. The respondents sought a clarification from Department of Personnel and Training, Government of India, if placements/ appointments in higher pay-scales is a promotion/ financial upgradation and it will counterbalance against financial upgradations as per the ACP scheme. The appellants stated that the clarification provided through an office memorandum dated 18-07-2001 will no apply to them on account of reorganisation of their posts and the statutory recruitment rules. An application seeking relief for financial upgradation in terms of ACP scheme was filed in May 2003 before the CAT, New Delhi, the respondents opposed this. The Tribunal in its judgement dated 29-10-2003, opined since promotion requires specification of certain basic qualifications and is thus different from merger of cadres, the conversion of posts was said to be in the exercise of Government powers; thus they held that the appellants were not granted a promotion and so were entitled to the benefits of the ACP scheme. The respondents appealed against this decision before the High Court, who reasoned that the conversion of posts to RTO’s on the condition of completion of 5 years of regular service with pay-scale rising from Rs. 260-400 to Rs. 380-560, was viable to be treated as promotion, in the judgement dated 8-05-2009 the appellants were denied of the benefits of the ACP scheme. The appellants have approached the Supreme Court against this judgement of the High Court.

Issues:

1. Whether the appellants deployment as RTO’s will qualify as mere reorganisation or as promotion.
2. Whether the appellants were entitled to the benefits of the ACP scheme.

The court observed that the Office Memorandum which introduced the ACP scheme in 1999 was consequent to the recommendations of the Fifth Central Pay Commission Report, as a safety net for dealing with the problems of civilian employees due to lack of adequate promotional avenues. The court addressed the situation and facts of the event of Delhi Fire Service’s reorganisation of wireless communication which set the conditions for deployment of telephone operators as RTO’s. Both the appellant and respondent relied on the case of Bharat Sanchar Nigam Limited v. R. Santhakumani Velusamy and others (2009) for their submissions.

Appellant’s Contention:

The appellant relied on Paragraph 29 sub-para (iii) and (iv), in which advancement to higher pay-scale without change in post is upgradation or promotion to higher pay-scale, the difference between the two is that when everyone who fulfils eligibility criteria without undergoing a selection process is upgradation, while element of selection is applied for promotion with higher pay-scale, when with process of selection or consideration or merit is applied for upgradation or the benefit of advancement to higher pay-scale it will be a promotion.

Respondent’s Contention:

The respondent contended that the principles set out in para 29 of the case were to be read in context of paras 27 and 28 which extracts the principles applied in Union of India v. Pushpa Rani (2008) which stated that promotion means advancement in honour, rank, grade and dignity, in the wider sense promotion involves advancement in grade and also implies advancement to a higher pay-scale. The respondent then referring to the facts of the case, the prequalification’s of minimum 5 years of regular service, higher pay-scale and specialised training for deployment as RTO’s, all prove it to be a promotion for the purpose of the ACP scheme.

Observations of the court:

The case was heard before the Supreme Court bench of Sanjay Kishan Kaul, Ajay Rastogi and Aniruddha Bose, JJ. The court observed the principles of the BSNL case and considering the facts and circumstances of the present case stated that the reorganisation did not result in a mere prescription of post but laid out certain conditions to be fulfilled for deployment to the post. The triple eligibility criteria clarify that the reorganisation of posts was not an upgradation rather it was a promotion with higher pay-scale. The court held that the benefits of the ACP scheme would not be applicable to the appellants and that the High Court was correct in interfering with the decision of the Central Administrative Tribunal.

Judgement:

The court held that the reorganisation was a promotion disentitling the appellants to the benefits of the ACP scheme. The appeal was dismissed leaving the parties to bear their own costs.