Department Of Social Welfare & ... vs Supervisors Welfare Association ...
2012 Latest Caselaw 1406 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on: 21.02.2012
                                  Judgment pronounced on: 29.02.2012

+       W.P.(C) 4907/2011


DEPARTMENT OF SOCIAL WELFARE
& WOMEN & CHILD DEVELOPMENT,
GNCTD AND ORS.                                                       ..... Petitioners


                     versus


SUPERVISOR'S WELFARE ASSN. & ORS.                                    ..... Respondent


Advocates who appeared in this case:
For the Petitioner            :   Ms Ruchi Sindhwani and Ms Bandana Shukla
For Respondent                :   Mr K.C. Mittal

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This writ petition is directed against the order dated 20.09.2010 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi, whereby OA No.

867/2010 was allowed by directing the petitioner to grant second Assured Career

Progression (ACP) to respondents 2 to 11 in the pay scale of Rs 10,000 to 15,200.

The facts giving rise to the filing of the OA can be summarized as under:-

There were 129 posts of Supervisor (Woman) in erstwhile Department of

Social Welfare, now known as Department of Female & Child Development of

Delhi Government. The Department also has posts of Welfare Officer (Grade-

II)/Probation Officer (Grade II) and Prison Welfare Officers. Pursuant to the

recommendations made by the 5 th Pay Commission, 52 out of 129 Posts of

Supervisor (Woman) as well as the posts of Welfare Officer (Grade-II)/Probation

Officer (Grade II) and Prison Welfare Officers were upgraded from the unrevised

pay scale of Rs 1400-2300 (revised pay scale 4500-7000) to the unrevised pay

scale of Rs 1640-2900 (revised pay scale of Rs 5500-9000) and these upgraded

posts were designated as Supervisor Grade I and the remaining posts of Supervisor

(Woman) were re-designated as Supervisor Grade-II. Since the next post in the

hierarchy, i.e., post of Deputy Superintendent/ACDPO/Welfare Officer also carried

the revised pay scale of Rs.5500-9000, those posts were merged with the post of

Supervisor Grade-I.

No financial upgradation under the Assured Career Progression Scheme

(ACP) on completion of 12 years of service was granted to those 52 women

Supervisors, who were posted against upgraded posts, redesignated as Supervisor

Grade-I. They were, however, granted financial upgradation in the pay scale of

Rs 6500-10500, on completing 24 years of service.

2. The respondents filed OA No. 867/2010, claiming benefit of second Assured

Career Progression Scheme (ACP) in the pay scale of Rs 10,000-15200 which was

allowed by the Tribunal. The Tribunal allowed the OA, relying upon clarification

52, issued by DOP&T with respect to grant of ACP and rejected the contention of

the petitioner to apply clarification 35 issued by the Government.

3. A modified Assured Progression Scheme (ACP) was notified by

Government of India vide OM dated 09.08.1999. Vide this Scheme, the

Government decided to grant two financial upgradation to its employees, one on

completion of 12 years and the other on 24 years of regular service.

Para 5.1 of the conditions for grant of benefit under the ACP Scheme reads

as under:-

"Two financial up-gradation under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast- track promotion through limited departmental competitive examination) availed from the grade in which an employee was appointed as a direct recruit. This shall mean that two financial up-

gradation under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial up-gradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an

employee, no benefit under the ACP Scheme shall accrue to him"

It would thus be seen that if an employee gets one promotion within 12 years

of regular service, he is not entitled to the first financial upgradation. He, however,

is entitled for second financial upgradation on completion of 24 years of regular

service. If he receives two promotions before completing 24 years of service, he is

not entitled to any benefit under the Assured Career Progression Scheme.

Clarification 35 issued by the Government of India with respect to the ACP

Scheme reads as under:-

                   Point of doubt                          Clarification

       Whether placement/ appointment          Where all the posts are placed in a
       in higher scales of pay based on        higher scale of pay, with or without a
       the recommendations of the Pay          change in the designation; without
       Commissions or Committees set           requirement of any new qualification

up to rationalize the cadres is to be for holding the post in the higher reckoned as promotion/financial grade, not specified in the upgradation and offset against the Recruitment Rules for the existing two financial upgradation post, and without involving any applicable under the ACP change in responsibilities and duties, Scheme? then placement of all the incumbents against such upgraded posts is not be treated as promotion/upgradation.

Where, however, rationalization/ restructuring involves creation of a number of new hierarchical grades in the rationalised set up and some of the incumbents in the pre-rationalised set up are placed in the hierarchy of the restructured set up in a grade

higher than the normal corresponding level taking into consideration their length of service in existing pre-

structured/pre-rationalised grade, then this will be taken as promotion/upgradation (emphasis supplied)

If the rationalised/restructured grades require possession of a specific nature of qualification and experience, not specified for the existing posts in pre-rationlised set up, and existing incumbents in pre-

rationalised scales/pre-structured grades, who are in possession of the required qualification/ experience are placed directly in the rationalised upgraded post, such placement will also not be viewed as promotion/upgradation. However, if existing incumbents in the pre-

rationalised grades who do not possess the said qualification/ experience are considered for placement in the corresponding rationalised grade only after completion of specified length of service in the existing grade, then such a placement will be taken as promotion/upgradation.

Where placement in a higher grade involves assumption of higher responsibilities and duties, then such upgradation will be viewed as promotion/upgradation.

Where only a part of the posts are

placed in a higher scale and rest are retained in the existing grade, thereby involving redistribution of posts, then it involves creation of another grade in the hierarchy requiring framing of separate recruitment rules for the upgraded posts. Placement of existing incumbents to the extent of upgradations involved, in the upgraded post will also be treated as promotion/upgradation and offset against entitlements under the ACPS.

For any doubts in this regard, matter should be referred to the Department of Personnel and Training (Establishment „D‟ Section) giving all relevant details.

4. It is not in dispute that out of 129 posts of Supervisor, only 52 posts were

upgraded from the pre-revised pay scale of Rs 1400-2300 to pre-revised pay scale

of Rs 1640-2900 and were re-designated as Supervisor Grade-I. The remaining

posts of Supervisor (Woman), which were not upgraded, were re-designated as

Supervisor Grade-II. Thus, only a part of the posts were placed in a higher scale

and the remaining posts were retained in the existing grade. This restructuring thus

resulted in creation of another grade in the hierarchy. The highlighted parts of

clarification 35, issued by the Government of India, therefore, becomes directly

applicable to the case of the respondents and placement of 52 Supervisor (Woman)

in the pre-revised pay scale of Rs 1640-2900 on re-designating those 52 posts as

Supervisor Grade-I is deemed to be promotion/upgradation of these 52 persons in

terms of clarification 35, which has to be offset against their entitlement under the

ACP.

5. It was contended by the learned counsel for the respondent that no separate

Recruitment Rules for the post of Supervisor Grade I have been framed and,

therefore, clarification 35 issued by the Government of India would not apply. We,

however, cannot agree with the learned counsel for the respondents. Framing of

separate Recruitment Rules was not a condition precedent for upgradation of the

posts and failure to frame separate Recruitment Rules for the post of Supervisor

Grade-I, which had to take place post-upgradation does not take the case of the

respondents out of the purview of clarification 35 issued by the Government of

India. Once it is shown that only some of the persons in the cadre of Supervisor

(Woman) were placed in a higher pay scale, the clarification 35 issued by the

Government comes into play and such upgradation has to be treated as

promotion/upgradation and is required to offset against entitlement under the ACP.

6. The Tribunal, while allowing the OA, has taken a view that a clarification

issued by DOP&T at Serial No. 52 applies to the case of the applicants and as per

that clarification, if the pay scales of feeder and promotional posts are merged in

the same pay scale, the ACP entitlement has to be decided in such a manner that

the next financial upgradation is in the next hierarchical grade than the merged

level. However, the case before this Court is not a case of merger of feeder and

promotional cadre. Here, only 25% of the posts in the cadre of Supervisor

(Woman) were upgraded and re-designated as Supervisor Grade-I, and in such a

case, Clarification issued at Serial No. 35 clearly applies.

7. The learned counsel for the respondents has relied upon Bharat Sanchar

Nigam Ltd. v. R. Santhakumari Velusamy & Ors. 2011 STPL (Web) 781 SC. In

support of his contention that upgradation of 25% posts of Supervisor (Woman)

and re-designating them as Supervisor (Grade-I) does not amount to promotion. In

the case of Bharat Sanchar Nigam Ltd. (supra), there were four grades of

employees of Telecom Departments and promotions from one grade to higher

grade were made on the basis of the seniority/departmental examination. 'One

Time-Bound Promotion' scheme (OTBP) was introduced in the year 1983-84 under

which the employees who had completed 16 years of service in the grade were

placed in the next higher grade. After some time, the Government decided to have

a Biennial Cadre Review (BCR) under which a specified percentage of posts could

be upgraded on the basis of functional justification. Under the said scheme,

employees, who were in service on 01.01.1990 and who had completed 26 years of

service in the basic cadre, were to be screened to assess their performance and

determine their suitability for advancement and if found suitable, they were to be

upgraded in the higher scale. The upgradation was restricted to 10% of the posts in

Grade III. Vide Circular dated 11.03.1991, the Government issued some

clarification regarding designations by another Circular dated 13.12.1995. The

Government formulated a procedure for promotion to Grade IV. Under the said

procedure, promotions to Grade IV were to be based on seniority in the basic

grade, from amongst the officers in Grade III, subject to fitness determined in the

usual manner of OTBP. By a clarificatory Circular dated 01.03.1996, the

Government issued a clarification that promotion to Grade IV would be given from

amongst officials in Grade III on the basis of their seniority in the basic grade,

subject to fulfillment of other conditions and that normal rules of reservation would

apply to promotions in Grade IV. The Circular dated 01.03.1996 was challenged

by All India Non SC/ST Telecom Employees Association on the ground that

principles of reservation would not apply for upgradation of existing posts which

did not carry any change in duties and responsibilities. Ahmedabad Bench of the

Tribunal held that the Department could not apply reservation rules while

upgrading the post in the BCR Scheme. The writ petition filed by the Government

was dismissed by Gujarat high Court. The Government then issued an order

directing that review DPC be held and all ineligible officers, wrongly promoted to

Grade IV by application of reservation roster, be reverted back and all eligible

officers should be placed in Grade IV. As a consequence, the contesting

respondents were reverted from Grade IV to Grade III. Being aggrieved, they filed

applications before Madras Bench of the Tribunal, challenging the validity of the

order, whereby they were reverted. The Full Bench of the Madras High Court

differed from the decision of its Ahmedabad Bench and held that the appointment

was a non-promotional appointment and distinction between upgradation and

promotion based on the nomenclature only does not appear to be tenable. The

Government was directed to restore the contesting respondents to their promoted

posts. The writ petition filed by the Telecommunication Department was

dismissed by Madras High Court. The order of the High Court was challenged

before Supreme Court and it was contended that there was a clear distinction

between upgradation and promotion. It was submitted that upgradation does not

involve promotion to a higher position as the pedestal of the employees remains the

same and he is only conferred some benefit by granting a higher pay scale to

overcome stagnation. The appellants before the Supreme Court contended that

since there was only upgradation of existing post with creation of additional post,

principles of reservation would not apply. Supreme Court, after reviewing the case

of law on the subject, was of the view that even in cases where no additional posts

were created, but, a process of selection was involved in the upgradation, the

process has to be considered as a process of promotion and not as an upgradation

simplicitor and, therefore, the principle of reservation would be attracted. The

following principles were laid down by the Court, indicating the distinction

between the promotion of upgradation:-

(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to 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 simplicitor 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 simplicitor. 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 simplicitor. 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 simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, 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.

As regards the case before it, Supreme Court noted that the BCR scheme did

not involve creation of additional posts but merely restructured the existing posts,

as a result of which 10% of the posts in Grade III were placed in a higher grade

(Grade IV) to give relief against stagnation and the purpose of screening was only

to find out whether the service record of the employees contained any adverse

entries or whether the employee had suffered punishment. It did not involve

consideration of comparative merit or selection. The Court, therefore, held that

BCR Scheme was an upgradation scheme to give relief against stagnation.

8. There can be no doubt that if we have to examine the issue as a proposition

of law, without applying clarification 35 issued by the DOP&T, upgradation of 52

posts of Supervisor (Woman) to the pre-revised pay scale of 1640-2900 would not

be a promotion since neither any additional posts were created as a part of the

restructuring nor was any element of selection or comparative merit involved in

placing 52 Supervisor (Woman) in the upgraded post which was re-designated as

Supervisor (Grade-I). As a legal proposition, promotion is clearly distinguishable

from upgradation. The promotion ordinarily involves advancement in rank or grade

or both of the employee concerned on the basis of selection. On promotion, the

employee is placed in a higher position/grade consequent to the promotion and

such higher position/grade may also involve discharge of higher duties. However,

even if there is no change in the duties but, a process of selection is involved while

placing an employee in a higher grade, such as Selection Grade, it would amount to

promotion, even if the nature of the duties continues to remain the same. On the

other hand, financial upgradation is normally granted in order to remove stagnation

and sometimes also for administrative reasons. If financial upgradation available

to the employees to complete a specified years of service or on the basis of

seniority alone, no element of selection is involved in the process and

consequently it cannot be termed as promotion, irrespective of whether additional

posts are created while granting financial upgradation or not. The purpose of

financial upgradation in such a case being only to provide relief against stagnation,

the process does not involve advancement to a higher post. Even if screening of

the employee is required to assess his suitability for advancement before giving the

financial upgradation, that also would not amount to promotion for the reason that

no process of selection is involved in such a case. If, however, financial

upgradation is given after selection it would be a case of promotion to a higher pay

scale since grant of the higher pay scale in such a case would depend upon the

comparative merits of those who are considered for grant of higher pay scale.

9. In the case before us, since no element of selection was involved in placing

52 Supervisor (Woman) in the higher pay scale of Rs 1640-2900, such upgradation

would in common parlance, not amount to promotion to a higher post or to a higher

pay scale. But, if we have to apply Clarification 35 issued by DOP&T, there is no

escape from holding that such financial upgradation would be deemed to be

promotion for the purpose of ACP Scheme, as far as the persons who are posted

against upgraded posts are concerned and it would be offset against their

entitlement under the ACP. We have no hesitation in saying that in terms of

service jurisprudence, this kind of financial upgradation does not constitute

promotion to a higher post or to a higher pay scale such as selection grade since it

does not have an element of selection, which requires evaluation of comparative

merit and the financial upgradation is not given only on the basis of seniority alone.

But, in order to get benefit of financial upgradation, the respondents have to bring

their case within the four corners of the ACP Scheme, which, on account of

Clarification No. 35, provides for treating such upgradation as promotion, for the

purpose of Scheme, by virtue of a deeming provision, which by virtue of this

clarification, now forms part of the ACP Scheme.

10. We find from a perusal of the prayer made in the OA, that the respondents

had challenged Clarification No. 35, issued by DOP&T on the ground that it was

against the object of the main scheme. However, no arguments seem to have been

advanced before the Tribunal on this aspect and no arguments challenging the

legality of the said Clarification have been advanced before us. In any case, it is for

the framer of the Scheme to decide the terms and conditions on which financial

upgradation under the ACP Scheme is to be granted and while doing so, the framer

of the Scheme is not bound by the meaning to the expression 'promotion' in the

ordinary service parlance and it is competent to accord a restrictive meaning of the

expression 'promotion', for the purpose of deciding to whom and subject to what

conditions the benefit under the Scheme should be granted. It is not as if the

Clarification No. 35 has been issued by someone other than the framer of the

Scheme. The original Scheme as well as the Clarification, both having been issued

by DOP&T, we see no merit in the challenge to the validity of the clarification.

The purpose of providing financial upgradation under the ACP scheme is to

remove stagnation on account of inability of the system to provide periodical

promotion to the Government servants, the underlying idea being to atleast

compensate them for the financial loss which they would otherwise suffer on

account of periodical promotion not being given to them. Since financial

upgradation of 52 Supervisors (Woman) resulted in the next pay scale being made

available to them, the objective behind framing the ACP scheme stood served as

far as the first financial upgradation was concerned. If this upgradation is not taken

into consideration for the purpose of scheme, the result would be that these 52

persons would get 03 financial upgradations, one on upgradation of the post from

the pre-revised pay scale of 1400-2300 to the pre revised scale of Rs 1640-2900,

second on completion of 12 years of service and third on completion of 24 years of

service whereas the objective of the scheme is to grant two financial upgradations

to the employees in whole of their career and that is why the scheme provides that

if promotion is granted to the employee within 12 years or 24 years of the service

he would not be entitled to first or second financial upgradation as the case may be.

If Clarification 35 is not applied, the result would be that those who were placed in

the upgraded posts would get ACP on completion of 24 years of service, in the pay

scale of Senior Superintendent, whereas those who do not work on the upgraded

post would be placed in the pay scale of CPPO/Superintendent, on completion of

24 years of service. On the other hand, if Clarification 35 is applied, all the persons

who were working as Supervisor (Woman) at the time the restructuring took place

would be placed in the pay scale of Rs 6500-10500, which is the pay scale of

CPPO/Superintendent on completion of 24 years of regular service. Therefore, it

cannot be said that clarification 35 issued by DoPT runs contrary to the objective of

ACP scheme of the government.

For the reasons stated hereinabove, we are of the view that the upgradation

of 52 Supervisor (Woman) from the pre-revised pay scale of 1400-2300 to the pre

revised scale of Rs 1640-2900 amounts to promotion for the purpose of ACP

Scheme and consequently, the respondents were not entitled to the benefit of the

first financial upgradation under the ACP Scheme. The impugned order dated

20.09.2010 passed by the Tribunal is, therefore, set aside.

In the facts and circumstances of the case, there shall be no order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

FEBRUARY 29, 2012 BG