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Judgment
Suresh Kait, J.—The present writ petition is directed against the order/judgment dated 29.10.2003 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 1224/2003. Being aggrieved, the petitioner has filed this writ petition and has challenged the aforesaid order.
The brief facts of the case are as under:
The respondents, herein, were working as Telephone Operators. In terms of letter No. F-33/ CFO/6194/C-C dated 29.08.1983, Wire Less communication system in Delhi Fire Service was re-organized, and existing Wireless under work and communication system was modernized converting all the posts of Telephone Operators as Radio Telephone Operators. It was also communicated by the aforesaid letter that 96 posts of Radio Telephone Operators in the grade of Rs. 330-480 should be provided, and the existing 27 posts of Telephone Operators who were in pay scale of Rs. 260-400, will be converted into Radio Telephone Operators after required training.
In pursuance of the aforesaid decision dated 29.08.1983, the petitioners, issued a circular on 28.02.1984 stating that the posts of all the Telephone Operators including the applicants (respondents herein) were converted as Radio Telephone Operators after short training for a period of two months @ of 2 hours daily from 12 hours to 14 hours w.e.f. 05.03.1984. Accordingly, all the respondents were imparted the required training.
The case of the respondents, herein, is that after having undergone the training, and after completing 5 years of service as in the grade of Rs. 260-400/Rs.950-1500, the post of Telephone Operators, including the respondents, herein, were converted as Radio Telephone Operators, in the revised pay scale of Rs. 1200-1800/Rs.4000-6000. As per the Recruitment Rules, the educational qualifications prescribed for appointment to the post of RTOs were Diploma in Telecommunication Engineer or B.Sc or equivalent and age limit was 35 years and the pay scale was Rs. 330-480/Rs.5500-9000.
Somewhere, in the year 1999, the Government of India issued a Scheme on the recommendation of the Vth Pay Commission, to deal with the problems of genuine stagnation and hardships faced by the employees, due to lack of channel of promotional avenues. Therefore, it was decided to grant two financial up-gradations, under the said Scheme to Group �B, �C� and �D� employees on completion of 12 years and 24 years of their regular services respectively.
The contentions of the respondents are that they were appointed in the year 1981 to 1984 and they had not been given any promotion nor there was any channel of promotion provided. They also submitted representations to the petitioners to grant the benefit of first financial up-gradation in accordance with the Scheme. The respondents had also pointed out that all those RTOs who were appointed directly, after the date from which the respondents were holding the post of RTOs had already been given the benefit of first financial up-gradation. Their submission in this regard was that those RTOs who were appointed directly after conversion of the post of Telephone Operators as RTOs have been given first financial up-gradation, after they had completed 12 years of service in accordance with the ACP Scheme of 1999.
The petitioner while considering their representation, had sought clarification from the DOP&T, which is as under:
Whether placement/appointment in higher scales of pay based on the recommendations or Committees set up to rationalise the cadres is to be reckoned as promotion/financial upgradation and offset against the two financial upgradations applicable under the ACP Scheme?
Vide OM dated 18.07.2001, the DOP&T clarified the same which is as under:
Where all the posts are placed in a higher scale of pay, with or without a change in the designation without requirement of any new qualification on for holding the post in the higher grade, not specified in the Recruitment Rules for the existing post, and without involving any change in responsibilities and duties, 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-rationalized grade, then this will be taken as promotion/upgradation.
If the rationalized/restructured grades require possession of a specific nature of qualification and experience, not specified for the existing posts in pre-rationalized set up, and existing incumbents in pre-rationalized scales/pre-structured grades, who are in possession of the required qualification/experience are placed directly in the rationalized upgraded post, such placement will also not be viewed as promotion/upgradation. However, if existing incumbents in the pre-rationalized grades who do not possess the said qualification/experience are considered for placement in the corresponding rationalized 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 evolved, 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.
The case of the petitioner is that the re-organization scheme of Wireless Communication System of Delhi Fire Service was introduced as per Commissioner�s letter dated 29.08.1983. As per the aforesaid letter, 96 posts of Radio Telephone Operators were created in public interest. At that point of time, 27 Telephone Operators were working and all of them were converted as Radio Telephone Operators after a short duration of training. It is further submitted that the Recruitment Rules were also framed for the post of Radio Telephone Operators, but those Recruitment Rules were never notified and were not given effect to. These rules, specifically prescribe the composition of DPC, but no DPC, whatsoever, was ever constituted and no criteria of promotion was ever followed. In the absence of Notification, the Recruitment Rules cannot be treated as the operative one.
It is pertinent to mention here that through the aforesaid re-organization Scheme, an order dated 15.10.1987 was passed and in that office order it is nowhere stated that it was a promotion, rather it was mentioned as conversion on the basis of the Corporation Resolution No. 570 dated 10.10.1983. It is worth mentioning here that when the Telephone Operators converted into Radio Telephone Operators, no DPC was ever convened and no evaluation of ACRs was ever done as in the Recruitment Rules, prescribing it a selection post. After the conversion there was no pay fixation in terms of Rule 22 of Fundamental Rules, and the promotional norms were not followed at all. The dicta of the judgment of the Supreme Court in the case of All India Non SC/ST Employees Association (Railway) v. V.K. Aggarwal has specifically stated that it is a re-grouping of the post without change of vacancy.
The Tribunal has allowed the OA which is as under:
Promotion and merger of cadre are two words operating in different spheres. Promotion from one post to another would only be subject to satisfying certain basic qualifications, at times educational qualifications and can be based on the service records. So far as conversion of the posts is concerned, it is done in exercise of the powers with the Government to consider the exigencies and convert number of posts or merge them into some other post subject to certain conditions.
What is the position in the facts of the present case? We have already reproduced above the order which clearly indicates that the posts of Telephone Operators to which the applicants were working, were converted as Radio Telephone Operators. It was not a promotion made. Even the rigours of promotion were not undergone. Therefore, it cannot be termed that the applicants had been promoted.
Once the applicants had not been promoted, necessarily their regular service has to be counted and the ACR, Scheme benefits must be accorded to them in accordance with the decision.
Resultantly, we allow the present application and direct the respondents to consider the applicants for grant of first financial upgradation in accordance with the ACP Scheme.
In our view, the Tribunal has gone wrong while deciding the issue involved, without appreciating that all the posts of Telephone Operators were converted as Radio Telephone Operators with the condition that they should have completed 5 years of regular service. Further, the scale of Telephone Operators was Rs. 260-400, while the scale of Radio Telephone Operators was Rs. 380-560. In this way the respondents were promoted as Radio Telephone Operators and, therefore, they are not entitled to the benefit of ACP Scheme.
The petitioners, herein, have rejected the claim of the respondents on the aforesaid basis viz. and that is after seeking clarification from the Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training, Government of India as we have already discussed above.
Keeping in view the facts and circumstances of the case and the discussion enumerated hereinabove, we are of the opinion that the Tribunal has committed an error in deciding the issue. Therefore, we set aside the order dated 29.10.2003 passed in OA No. 1224/2003 and allow the writ petition accordingly. There shall be no orders as to costs.