Landmark Judgment on whether upgradation of pay scale is a promotion (analysis with factual matrix) Amaresh Patel LANDMARK JUDGMENT Sat, Nov 28, 2020, at ,10:21 AM Landmark Judgment on whether upgradation of pay scale is a promotion (analysis with factual matrix) Case: Rama Nand and ors. Vs. Chief Secretary, Govt. of NCT of Delhi & anr., C.A. Nos. 5829-5830 of 2012 Date: August 06, 2020 Court: Supreme Court of India Judges: Justice Sanjay Kishan Kaul, Justice Ajay Rastogi and Justice Aniruddha Bose Issue: Whether their deployment as RTOs would amount to a promotion? Whether it was a mere reorganization and they were entitled to the ACP separately in terms of the ACP Scheme? Fact of the Case: The appellant were all working as Telephone Operators with the Delhi Fire Service. 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, through it is alleged by the appellants that the same was not part of the agreement. It is the case of appellant is 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 the same were denied to the appellants since the respondents treated their conversion of the aforesaid posts as a promotion. Ratio: Promotion may include an advancement to a higher pay scale without moving to a different post. Principle enshrined in Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy & ors., (2011) 9 SCC 510 (para 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 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.” Judgment: The three-judge bench of Supreme Court while dismissing the appeal observed that on applying the test in BSNL case, 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 specialized training. It is not a case as covered under BSNL 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 of process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself. Thus, it was held that 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. Join Our WhatsApp Group for Free Updates and Sample Papers: https://chat.whatsapp.com/JL5FHRrISRE1Rr4WukHwzZ