The Diploma holders after obtaining Degree , on their application , can be re-designated as Assistant engineers and while considering their promotion for Assistant Executive Engineer (Electrical) - They can, therefore, be considered only against the 25% quota reserved for the Subordinate Service and not against 75% reserved for the State Service members directly recruited to that service or appointed by transfer in terms of the Rules. = apex court dismissed the appeal. =
the prevalent practice of Assistant Engineers (Electrical) being empanelled for promotion to the post of Assistant Executive Engineer (Electrical) against 25% quota reserved for members of the Subordinate Engineering Service =
whether the re-designation
of the diploma holder Junior Engineers as Assistant Engineers (Electrical) upon their acquiring a degree qualification was tantamount to recruitment by transfer within the meaning of the State Engineering Service Rules. =
the upgradation/redesignation granted to the members of the
Subordinate Engineering Service upon their acquiring a degree qualification
was meant only to encourage or recognize their getting such higher
qualification. Such upgradation may involve a higher designation and better
emoluments for the incumbents but neither of those two benefits could
constitute promotion or recruitment by transfer.
considered for promotion as Assistant Executive Engineers in the
75% quota earmarked for Assistant Engineers based on the
seniority fixed in the post of Assistant Engineers.
It is
further submitted that as a convention, redesignated Assistant
Engineers are also being considered for promotion as Assistant
Executive Engineers based on their seniority in the post of
Junior Engineer in the 25% quota if their turn for promotion
comes first in the seniority list of Junior Engineers, which is
an additional benefit conferred on them for having acquired
higher qualification.”
The observations made by the Division Bench do
not appear to be legally correct since an incumbent in service cannot hold
lien in two different cadres at once.
It is also not correct to say that the two services are in essence one.
The distinction is obvious and clear
enough from the rules, that provide for method of recruitment, promotion
and conditions of eligibility for the two separately.
That is so also
because the quotas for promotion to the posts of Assistant Executive
Engineers are separate for the members of the two services and one cannot
be utilized for the benefit of the other.
That apart, the High Court was
not correct in holding as if a degree holder could be redesignated as an
Assistant Engineer against his will and only because he had acquired a
degree qualification.
The State has made it clear in the additional
affidavit filed on its behalf that redesignation was ordered on the basis
of requests made by the members of the Subordinate Engineering Service.
It
was, therefore, not correct to suggest as though redesignation was thrust
upon unwilling members of the Subordinate Service. Suffice it to say that
even the High Court has held that the redesignated Assistant Engineers did
not because of redesignation become full-fledged members of the State
Service.
If that be so, there is no half way house, for either they are
members of Subordinate Service or they are not. They cannot be members of
the Subordinate Service and State Service both, at one and the same time.
22. The upshot of the above discussion is that the degree holder Junior
Engineers continue to be members of the Subordinate Engineering Service
even after they are redesignated as Assistant Engineers upon them getting a
degree qualification.
They can, therefore, be considered only against the
25% quota reserved for the Subordinate Service and not against 75% reserved for the State Service members directly recruited to that service or appointed by transfer in terms of the Rules.
To the extent the redesignated
Assistant Engineers have been considered in the past for promotion in the
quota reserved for Assistant Engineers in the State Service, the
consideration was legally bad.
Having said that, we do not propose to
interfere with what has been done in the past especially when there is no
challenge before us to the appointment of the re-designated Assistant
Engineers as Assistant Executive Engineers against vacancies falling in 75%
quota.
The settled position need not, therefore, be unsettled at this stage
in these proceedings. With the above observations and clarification these
appeals fail and are hereby dismissed, but in the circumstances without any
orders as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10660-10662 OF 2013
(Arising out of S.L.P. (C) Nos.31761-31763 of 2009)
B. Thirumal …Appellant
Versus
Ananda Sivakumar and Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. These appeals arise out of a judgment and order dated 4th August,
2009 whereby a Division Bench of the High Court of Judicature at Madras has
allowed Writ Appeals No. 1155, 1156 and 1346 of 2008 setting aside the
order passed by the learned Single Judge and dismissed Writ Petitions
No.25871 of 2006 and 8925 of 2007 filed by the appellant.
3. The appellant was, at the relevant point of time, working as a Junior
Engineer (Electrical) in the Tamil Nadu Public Works Department. He was
appointed to the said post by direct recruitment through the Tamil Nadu
Public Service Commission in the year 1984-85 and was governed by the
Special Rules applicable to Tamil Nadu Engineering Subordinate Service
(hereinafter referred to as the “Subordinate Engineering Service”).
Aggrieved by the prevalent practice of Assistant Engineers (Electrical) being empanelled for promotion to the post of Assistant Executive Engineer (Electrical) against 25% quota reserved for members of the Subordinate
Engineering Service, the appellant filed a representation to the Engineer- in-Chief, Public Works Department, praying for discontinuation of the said practice on the ground that such empanelment and consideration of Assistant Engineers (Electrical) was contrary to Special Rules applicable to the
Tamil Nadu Engineering Service, which is a State Service (hereinafter referred to as the “State Engineering Service”). The Chief Engineer
(General), PWD, however, rejected that representation in terms of a
communication dated 18th January, 2006, inter alia, pointing out that
seniority assigned to the Junior Engineers (Electrical) in the cadre could
not be altered even after they obtained a degree qualification and were re-
designated as Assistant Engineer (Electrical). The Chief Engineer was of
the view that re-designation of a diploma-holder as an Assistant Engineer
(Electrical) after his acquiring a degree qualification was not tantamount
to ‘promotion’ or appointment to State Engineering Service so as to snap
his lien in the Subordinate Service of which he is a member.
4. Dissatisfied by the rejection, the appellant submitted yet another
representation pointing out that although some vacancies in the cadre of
Assistant Executive Engineers (Electrical) were earmarked for Junior
Engineers (Electrical) yet the same were being filled up by appointment of
re-designated Assistant Engineers (Electrical). This representation was
soon followed by the appellant filing Writ Petition No.25871 of 2006 in
which the appellant prayed for a mandamus directing the respondents to
consider his case against 25% vacancies reserved for members of the
Subordinate Service and a certiorari quashing memorandum dated 18th
January, 2006 whereby the Chief Engineer had rejected the representation
filed by the appellant. A second representation filed by the appellant on
16th March, 2006 was, in the meanwhile, rejected by the Secretary to the
Government, Public Works Department, Chennai, which rejection too was
challenged by the appellant in Writ Petition No.8925 of 2007. The appellant
prayed for a mandamus directing the respondent to consider and include his
name in the panel for appointment to the post of Assistant Executive
Engineer (Electrical) against the quota reserved for the diploma holder
Junior Engineers.
By a common order dated 29th August, 2008 a Single Bench
of the High Court of Madras allowed both the writ petitions and directed
the State Government to apply Rule 5(3)(b), Branch V – Electrical of the
Special Rules applicable to the State Engineering Service in its letter and
spirit and determine the seniority and entitlement of promotion on that
basis.
5. Three Junior Engineers (Respondents No. 1, 2 and 3 in these appeals),
who had been re-designated as Assistant Executive Engineer (Electrical)
after they had acquired a degree qualification challenged the
aforementioned order passed by the Single Bench in Writ Appeals No.1155 and
1156 of 2008. Their principal contention was that the re-designation of a
Junior Engineer on his acquiring a degree was not tantamount to his
promotion to the cadre of Assistant Engineers which is governed by a
separate set of rules - the Special Rules relevant to the State Engineering
Service. The Tamil Nadu Engineering Association also assailed the order
passed by the Single Judge in Writ Appeal No.1346 of 2008 which were all
heard and allowed by the Division Bench of the High Court of Madras in
terms of order impugned before us in the present appeal.
6. It is common ground that the post of Assistant Engineer (Electrical)
is not a part of the cadre of the Tamil Nadu Engineering Subordinate
Service. There is, therefore, no question of a member of the said service
being promoted as an Assistant Engineer (Electrical). The only question
that falls for our determination in that view is
whether the re-designation
of the diploma holder Junior Engineers as Assistant Engineers (Electrical) upon their acquiring a degree qualification was tantamount to recruitment by transfer within the meaning of the State Engineering Service Rules.
7. Appearing for the appellant Mr. Krishnamani, argued that re-
designation of the diploma holder Junior Engineers was nothing but
appointment of such Engineers as Assistant Engineers (Electrical) in the
State Engineering Service by transfer within the meaning of Para 3 of the
Table attached to the Special Rules to the State Engineering Service which
specifically provides for appointment to the posts of Assistant Engineers
(Electrical) by direct recruitment or by transfer in the category of Junior
Engineer (Electrical) in the Tamil Nadu Engineering Subordinate Service of
those who possess a degree in Electrical Engineering. The rules also
provide for Junior Electrical Inspectors in the Tamil Nadu Electrical
Inspectorate Service being recruited to the post of Assistant Engineer
(Electrical) by transfer.
8. Per contra, learned counsel for the respondents argued that re-
designation of a Junior Engineers (Electrical) as Assistant Engineers
(Electrical) upon their acquiring degree qualification was not the same
thing as recruitment by transfer. Any such recruitment, argued the learned
counsel, could be made only by constituting a Departmental Promotion
Committee for consideration of the claims and inter se merit of all
eligible candidates. No such procedure was, however, followed while re-
designating Junior Engineers (Electrical) as Assistant Engineers
(Electrical) in the instant case. The result was that Junior Engineers
(Electrical) were simply re-designated as Assistant Engineers (Electrical)
on the basis of their higher academic qualification and that such re-
designation did not snap their lien with the parent service, namely, Tamil
Nadu Engineering Subordinate Service. Such being the case the re-designated
Assistant Engineers (Electrical) continued to be eligible for promotion
against 25% quota meant for the members of the Subordinate Engineering
Service, their re-designation as Assistant Engineers (Electrical)
notwithstanding.
9. We had after noticing the rival contentions of the parties passed an
order on 12th April, 2012 by which we had directed the State Government to
file an affidavit stating whether or not the re-designation of such Junior
Engineers was granted at the request of such Junior Engineers or came about
automatically. The State was also directed to place on record Government
Orders and Circulars issued from time to time regarding recruitment to the
State Engineering Service by transfer from the Subordinate Engineering
Service as a source of such recruitment and in case the State had treated
the re-designated members of the Subordinate Service to have been recruited
by transfer the process that was followed for making such recruitment. In
compliance with that order an affidavit was filed by Shri K. Eswantha Rao,
Deputy Secretary to Government, Public Works Department, Chennai on 4th
October, 2012. A reading of the affidavit shows that re-designation is
granted only on receipt of an application from the Junior Engineer
concerned. The Affidavit states:
“As per the said rule provisions, on receipt of application from the Junior Engineer concerned informing the fact of acquisition of B.E. degree by him and requesting redesignation, he is granted redesignation as Assistant Engineer with effect from the date of acquisition of B.E. degree by recruitment by transfer.”
10. By another order dated 14th August, 2013 passed by this Court, the
respondent-State was directed to file a further affidavit stating
whether
the re-designated Assistant Engineers are considered for promotion against the 75% quota reserved for the Assistant Engineers for promotion to the cadre of Assistant Executive Engineer. The State was further directed to
indicate
whether upon re-designation the Junior Engineers are shown in the
final seniority list of Assistant Engineers and also to furnish details
about the sanctioned cadre strength of Assistant Engineers in the State
Service for the past ten years.
Copies of the seniority lists and the
relevant Rules were also directed to be filed. An additional affidavit
pursuant to the said directions has been filed in which it is stated that
Assistant Engineers upon their re-designation are being considered for
promotion as Assistant Executive Engineers against 75% quota earmarked for
Assistant Engineers based on the seniority fixed in the cadre of Assistant
Engineers. The affidavit goes on to state that such Assistant Engineers are
also being considered for promotion as Assistant Executive Engineers
against 25% quota reserved for diploma holder Junior Engineers. The
following passage from the affidavit is, in this regard, noteworthy:
“It is submitted that redesignated Assistant Engineers are being
considered for promotion as Assistant Executive Engineers in the
75% quota earmarked for Assistant Engineers based on the
seniority fixed in the post of Assistant Engineers. It is
further submitted that as a convention, redesignated Assistant
Engineers are also being considered for promotion as Assistant
Executive Engineers based on their seniority in the post of
Junior Engineer in the 25% quota if their turn for promotion
comes first in the seniority list of Junior Engineers, which is
an additional benefit conferred on them for having acquired
higher qualification.”
11. The affidavit goes on to explain the reason for such duality of
consideration for promotion in the following words:
“It is submitted that there is no explicit provision in the
special rules for Tamil Nadu Engineering Services to provide
promotion to the redesignated Assistant Engineers on the basis
of their seniority in the post of Junior Engineer if their turn
for promotion as Assistant Executive Engineers comes earlier in
the seniority list of Junior Engineers than in the seniority
lists of Assistant Engineers. However, this procedure is being
followed conventionally and more than twenty persons both in the
category of Civil and Electrical in this Department have been
promoted as Assistant Executive Engineers.”
12. We have referred to the affidavits in detail only to highlight the
fact that the procedure followed by the State Government is not sanctioned
by any rule and yet is being followed in the name of a convention. We,
however, fail to appreciate how an officer could be considered for
promotion in two different channels of promotion. Nor is it possible to
appreciate how an engineer or any other civil servant could be a member of
two distinct services at the same time or claim a lien or consideration for
promotion on that basis.
13. Time now to refer to the provisions of ‘Branch V – Electrical’ of the
Special Rules applicable to State Engineering Service which recognises
three categories of officers, namely, Electric Engineers in Category-I,
Assistant Executive Engineers (Electrical) in Category-II and Assistant
Engineers (Electrical) comprising Category-III. Rule 2 and the Table below
the same prescribe the category and the method of recruitment. It reads:
“2 Appointment:- (a) Appointment to the categories specified in
column (1) of the Table below shall be made by the methods
specified in column (2) thereof:-
TABLE
| |Category |Method of recruitment |
| | |(2) |
| |(1) | |
|1. |Electrical Engineer|(i) By Promotion from Assistant |
| | |Executive Engineer (Electrical) in |
| | |category 2. |
| | |(ii) By recruitment by transfer from the|
| | |category of Electrical Inspector in the |
| | |Tamil Nadu Electrical Inspectorate |
| | |service. |
|2. |Assistant Executive|(i) By promotion from Assistant Engineer|
| |Engineer |(Electrical) in category 3; or |
| |(Electrical) | |
| | |(ii) By recruitment by transfer from the|
| | |category of Junior Engineer (Electrical)|
| | |in the Tamil Nadu Engineering |
| | |Subordinate Service or from the category|
| | |of Assistant Electrical Inspector in the|
| | |Tamil Nadu Electrical Inspectorate |
| | |service; or |
| | |(iii) By direct recruitment, if |
| | |qualified hands are not available for |
| | |appointment by the above methods. |
|3. |Assistant Engineer |(i) By direct recruitment; or |
| |(Electrical) | |
| | |(ii) By recruitment by transfer from the|
| | |category of Junior Engineer (Electrical)|
| | |in the Tamil Nadu Engineering |
| | |Subordinate service who possess a Degree|
| | |in Electrical Engineering; or from the |
| | |category of Junior Electrical Inspectors|
| | |in the Tamil Nadu Electrical |
| | |Inspectorate service. |
(b) Promotion to the category of Electrical Engineer shall be
made on grounds of merit and ability, seniority being considered
only where merit and ability are approximately equal.
(c) So far as qualified and suitable candidates are available
out of every four vacancies successively arising in the category
of a Assistant Executive Engineer (Electrical), the first three
vacancies shall be filled in or reserved to be filled in by
promotion from among the category to Assistant Engineer
possessing B.E.degree (Electrical) and the fourth vacancy shall
be filled in or reserved to be filled by recruitment by transfer
from the category of Junior Engineer (Electrical) possessing the
diploma in Electrical Engineering.”
14. A bare glance at the above would show that appointment to the
category of Assistant Engineer can be made by direct recruitment or by
transfer from the category of Junior Engineer (Electrical) in the Tamil
Nadu Engineering Subordinate Service from among those who possess a degree
in Electrical Engineering or from the Junior Electrical Inspectors to the
Tamil Nadu Electrical Inspectorate Service.
The question as noticed earlier
is whether the re-designation of degree holder Junior Engineers was by
itself tantamount to appointment by transfer to the State Engineering
Service. It is common ground that no reference to the Tamil Nadu State
Public Service Commission was made nor was any other process of selection
undertaken for such re-designation which was based entirely on the degree
qualification of the incumbent and was granted with effect from the date
the qualification was acquired. The re-designation had similarly nothing
to do with the number of vacancies available in the State Engineering
Service. Availability of vacancies in the cadre of Assistant Engineers was
an essential condition precedent for any recruitment to that cadre whether
by transfer or otherwise. Not only that, re-designation did not result in
the occurrence of any vacancy in the cadre of Junior Engineers as it should
ordinarily have, when someone holding the post of Junior Engineer got
appointed to another service, resulting in the termination of his lien in
the parent service. This implied that even though re-designated as an
Assistant Engineer (Electrical) the incumbent continued to hold the post of
Junior Engineer after re-designation. All this leads to the irresistible
conclusion that except financial benefit and status, re-designation did not
bring about any other change. If the version of the respondents is
believed as we are inclined to do, even the duties of such re-designated
officers remained the same as before. According to the State Government the
two positions viz. Junior Engineer (Electrical) and Assistant Engineer
(Electrical) are synonymous insofar as the nature of work and duties are
concerned.
To sum up :
i) The re-designation comes as a natural and inexorable
consequence of the higher qualification acquired by a Junior
Engineer, no matter on an application filed by the incumbent.
ii) The re-designation is granted with effect from the date the
higher qualification is acquired.
(iii) The re-designation has no co-relation to the vacancies in the
cadre of Assistant Engineers (Electrical). No vacancies are
created to accommodate the officers being re-designated,
which would be inevitable unless the vacancies equal to the
officers being re-designated, were already available.
(iv) The nature of duties for the re-designated officers remained
the same as for Junior Engineers.
(v) The re-designated officers continue to be considered for
promotion in their parent service against 25% quota fixed for
that source.
15. The cumulative effect of the above, in our opinion, is that there is
no element of recruitment to the State Engineering Service by direct
recruitment or by transfer. The contention that those re-designated stood
appointed to the cadre of Assistant Engineers (Electrical) in State Service
must, therefore, fail.
Considerable support for that conclusion is
available from the decision of this Court in BSNL v. R. Santhakumari
Velusamy & Ors. AIR 2011 SC 3793. That was a case where this Court was
examining whether rules of reservation were applicable to promotions to
Grade IV under the Biennial Cadre Review Scheme introduced by the
Department of Telecommunications, Government of India with a view to remove
stagnation of certain categories of employees serving in the said
department. The Government had formulated the procedure regarding
promotion to Grade IV according to which such promotions were to be granted
on the basis of seniority in the basic grade from amongst the officers in
Grade III subject to fitness determined in the usual manner of One Time
Bound Promotion Scheme (‘OTBP Scheme’ for short). By a clarificatory
Circular issued subsequently the Government had directed that promotions
would be subject to fulfilment of other conditions and that normal rules of
reservation would apply to the same. The direction regarding application of
rules of reservation to promotions to Grade IV was assailed by the All
India Non Schedule Caste/Schedule Tribe Telecom Employees Association on
the ground that principles of reservation had no application for
upgradation on existing posts which did not carry any change in duties and
responsibilities. The Central Administrative Tribunal, Ahmedabad upheld
that contention and directed that reservation will have no application
while upgrading posts under the BCR Scheme and directed that the department
shall take appropriate action for effecting promotions to the upgraded
posts without applying the reservation roster. The order passed by the
Tribunal was upheld by the Gujarat High Court in a writ petition filed by
the Government. The matter eventually reached this Court by special leave.
One of the main issues considered by this Court was whether upgradation of
the posts under the BCR Scheme was tantamount to promotion. This Court
upon a comprehensive review of the decisions rendered earlier including
those rendered in Union of India v. S.S. Ranade (1995) 4 SCC 462, Union of
India v. V.K. Sirothia (2008) 9 SCC 283 and Lalit Mohan Deb and Ors. v.
Union of India & Ors. (1973) 3 SCC 862 formulated specific principles
relating to promotion and upgradation in the following words:
“21. 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 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. A
(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.”
16. On a careful reading of principles (ii) and (iii) above, it is
evident that upgradation which is synonymous to re-designation in the facts
of this case simply confers a financial benefit by raising the scale of pay
of the posts without there being movement from a lower position to a higher
position. In the case of upgradation, the candidate continues to hold the
same post without any change in the duties and responsibilities but merely
gets a higher pay scale. Not only that, 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 advancement to a higher pay-scale without
change of post is accompanied by some process which has the element of
selection, then it will be a promotion to a higher pay-scale. This Court
declared that up-gradation in that case was not promotion, also because the
BCR Scheme did not involve creation of additional posts nor did the scheme
involve consideration of inter se merit of the candidates or involve any
selection process. The Court on that basis declared that BCR Scheme was
only an upgradation intended to give relief against stagnation which was
not tantamount to promotion. To such process of upgradation, the
Reservation Rules had no application, declared this Court.
17. The rationale behind upgradation not being considered tantamount to
promotion would, in our opinion, apply with full force even to a case where
the upgradation/redesignation is sought to be termed as a case of
recruitment by transfer. If the process of upgradation/redesignation has no
correlation to the vacancies available in the State Engineering Service and
if such upgradation/redesignation is granted as a matter of course without
any selection process and merely on the incumbent acquiring a degree
qualification, we see no reason why such upgradation/redesignation should
be treated as a case of appointment to the said service by transfer. What
could not constitute promotion (assuming that the post of Assistant
Engineer (Electrical) was a part of the Subordinate Service) cannot
obviously be considered to be a case of appointment by transfer.
18. Suffice it to say that the principles enunciated in Velusamy’s case
(supra) when applied to the facts of the case at hand, leave no manner of
doubt that the upgradation/redesignation granted to the members of the
Subordinate Engineering Service upon their acquiring a degree qualification
was meant only to encourage or recognize their getting such higher
qualification. Such upgradation may involve a higher designation and better
emoluments for the incumbents but neither of those two benefits could
constitute promotion or recruitment by transfer.
19. It is true that the State has shown the upgraded engineers in the
seniority list of the Assistant Engineers (Electrical) and even considered
and promoted them against vacancies available in 75% quota, meant for that
source but such inclusion, consideration and promotion cannot by itself be
treated to be ground for holding that the re-designation had the effect of
appointing the incumbents by transfer. At any rate, there is nothing to
show that the State had taken the lien of the incumbents in their parent
service to have been terminated. On the contrary, the State has been
considering such re-designated officers for promotion even against 25%
quota meant for the Junior Engineers serving in the Subordinate Service.
The aberration of considering the redesignated officers as members of the
State Service does not constitute a sufficient basis for us to depart from
the legal parameters to which we have adverted earlier.
20. The Division Bench of the High Court has, while dealing with the
question whether Junior Engineers re-designated as Assistant Engineers
could have the “best of both worlds” by availing of both the 25% and 75%
quotas, upheld that practice on the ground that it only served to reward
pursuit of higher studies without causing any undue disadvantage to diploma-
holder Junior Engineers, or to directly recruited Assistant Engineers. The
Division Bench observed:
“14…A Diploma-holder Junior Engineer, who on acquisition of
Degree in Electrical Engineering is re-designated as Assistant
Engineer, is placed below the directly recruited graduate
Engineer during the year concerned. Therefore, obviously he does
not steal march over such directly recruited Assistant Engineer
having Degree in Engineering. Similarly it cannot be said that
he is stealing march over the Diploma-holder Junior Engineers
who continue as such in as much as such a person only gets a
better opportunity because of his perseverance in pursuing
further study and acquisition of a higher qualification
subsequently ads to the quality of work done by such person. A
Diploma-holder Junior Engineer, who subsequently acquires a
degree in Engineering, does not become senior above any Diploma-
holder Junior Engineer. While he retains his seniority, he only
gets an additional avenue as he is also redesignated as
Assistant Engineer. Ultimately, the benefit goes to a person who
pursues higher studies. It cannot be said that there is anything
inherently arbitrary in such a scenario in as much as a person
ultimately gets some reward for his pursuit of higher study and
because of his perseverance in obtaining a higher degree.
If a Diploma-holder Junior Engineer on acquisition of
higher qualification is to be compulsorily moved out of the
category of Junior Engineer, anomalous position may crop up.
Since such a person would be placed below all the existing
graduate Assistant Engineers, his chance of being promoted
within the quota of 3/4th meant for graduate Assistant Engineers
would be practically nil. It is of course true that on being re-
designated as Assistant Engineer, such a person receives higher
salary, but when he is compulsorily “kicked upstairs” (if we may
permitted to observe so) the Diploma-holder Junior Engineer, who
were below him, would be in a better position for being
promoted, even though less qualified than him. The convention
which was being hitherto followed in the Department does not
prejudice a graduate Engineer in the Assistant Engineer cadre
nor it has the effect of blocking the promotional prospects of
any Diploma-holder Junior Engineer, who was senior to such other
Diploma-holder Junior Engineer who subsequently acquires the
higher qualification.
Xx xx xx
19. In our considered opinion, the Junior Engineers, on
acquisition of higher qualification are re-designated as
Assistant Engineers, but it cannot be said that they have become
full-fledged members of any other service. It is to be noticed
that though technically two services may be different, the
nature of the work done is the same and, since two services are
essentially same, the traditional concept of losing lien in the
original service while absorbed or deputed in any other service
does not strictly arise for consideration.
20.The convention, which was hitherto being followed by the
Department, and now approved by us, has the effect of conferring
additional benefit on a person who pursues the study for
acquiring higher qualification.”
21. The observations made by the Division Bench in the above passages do
not appear to be legally correct since an incumbent in service cannot hold
lien in two different cadres at once. It is also not correct to say that
the two services are in essence one. The distinction is obvious and clear
enough from the rules, that provide for method of recruitment, promotion
and conditions of eligibility for the two separately. That is so also
because the quotas for promotion to the posts of Assistant Executive
Engineers are separate for the members of the two services and one cannot
be utilized for the benefit of the other. That apart, the High Court was
not correct in holding as if a degree holder could be redesignated as an
Assistant Engineer against his will and only because he had acquired a
degree qualification. The State has made it clear in the additional
affidavit filed on its behalf that redesignation was ordered on the basis
of requests made by the members of the Subordinate Engineering Service. It
was, therefore, not correct to suggest as though redesignation was thrust
upon unwilling members of the Subordinate Service. Suffice it to say that
even the High Court has held that the redesignated Assistant Engineers did
not because of redesignation become full-fledged members of the State
Service. If that be so, there is no half way house, for either they are
members of Subordinate Service or they are not. They cannot be members of
the Subordinate Service and State Service both, at one and the same time.
22. The upshot of the above discussion is that the degree holder Junior
Engineers continue to be members of the Subordinate Engineering Service
even after they are redesignated as Assistant Engineers upon them getting a
degree qualification.
They can, therefore, be considered only against the
25% quota reserved for the Subordinate Service and not against 75% reserved for the State Service members directly recruited to that service or appointed by transfer in terms of the Rules.
To the extent the redesignated
Assistant Engineers have been considered in the past for promotion in the
quota reserved for Assistant Engineers in the State Service, the
consideration was legally bad. Having said that, we do not propose to
interfere with what has been done in the past especially when there is no
challenge before us to the appointment of the re-designated Assistant
Engineers as Assistant Executive Engineers against vacancies falling in 75%
quota. The settled position need not, therefore, be unsettled at this stage
in these proceedings. With the above observations and clarification these
appeals fail and are hereby dismissed, but in the circumstances without any
orders as to costs.
……………………………….……….…..…J.
(T.S. THAKUR)
……………………..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
November 27, 2013
the prevalent practice of Assistant Engineers (Electrical) being empanelled for promotion to the post of Assistant Executive Engineer (Electrical) against 25% quota reserved for members of the Subordinate Engineering Service =
whether the re-designation
of the diploma holder Junior Engineers as Assistant Engineers (Electrical) upon their acquiring a degree qualification was tantamount to recruitment by transfer within the meaning of the State Engineering Service Rules. =
the upgradation/redesignation granted to the members of the
Subordinate Engineering Service upon their acquiring a degree qualification
was meant only to encourage or recognize their getting such higher
qualification. Such upgradation may involve a higher designation and better
emoluments for the incumbents but neither of those two benefits could
constitute promotion or recruitment by transfer.
whether
the re-designated Assistant Engineers are considered for promotion against
the 75% quota reserved for the Assistant Engineers for promotion to the
cadre of Assistant Executive Engineer =
“It is submitted that redesignated Assistant Engineers are beingthe re-designated Assistant Engineers are considered for promotion against
the 75% quota reserved for the Assistant Engineers for promotion to the
cadre of Assistant Executive Engineer =
considered for promotion as Assistant Executive Engineers in the
75% quota earmarked for Assistant Engineers based on the
seniority fixed in the post of Assistant Engineers.
It is
further submitted that as a convention, redesignated Assistant
Engineers are also being considered for promotion as Assistant
Executive Engineers based on their seniority in the post of
Junior Engineer in the 25% quota if their turn for promotion
comes first in the seniority list of Junior Engineers, which is
an additional benefit conferred on them for having acquired
higher qualification.”
The observations made by the Division Bench do
not appear to be legally correct since an incumbent in service cannot hold
lien in two different cadres at once.
It is also not correct to say that the two services are in essence one.
The distinction is obvious and clear
enough from the rules, that provide for method of recruitment, promotion
and conditions of eligibility for the two separately.
That is so also
because the quotas for promotion to the posts of Assistant Executive
Engineers are separate for the members of the two services and one cannot
be utilized for the benefit of the other.
That apart, the High Court was
not correct in holding as if a degree holder could be redesignated as an
Assistant Engineer against his will and only because he had acquired a
degree qualification.
The State has made it clear in the additional
affidavit filed on its behalf that redesignation was ordered on the basis
of requests made by the members of the Subordinate Engineering Service.
It
was, therefore, not correct to suggest as though redesignation was thrust
upon unwilling members of the Subordinate Service. Suffice it to say that
even the High Court has held that the redesignated Assistant Engineers did
not because of redesignation become full-fledged members of the State
Service.
If that be so, there is no half way house, for either they are
members of Subordinate Service or they are not. They cannot be members of
the Subordinate Service and State Service both, at one and the same time.
22. The upshot of the above discussion is that the degree holder Junior
Engineers continue to be members of the Subordinate Engineering Service
even after they are redesignated as Assistant Engineers upon them getting a
degree qualification.
They can, therefore, be considered only against the
25% quota reserved for the Subordinate Service and not against 75% reserved for the State Service members directly recruited to that service or appointed by transfer in terms of the Rules.
To the extent the redesignated
Assistant Engineers have been considered in the past for promotion in the
quota reserved for Assistant Engineers in the State Service, the
consideration was legally bad.
Having said that, we do not propose to
interfere with what has been done in the past especially when there is no
challenge before us to the appointment of the re-designated Assistant
Engineers as Assistant Executive Engineers against vacancies falling in 75%
quota.
The settled position need not, therefore, be unsettled at this stage
in these proceedings. With the above observations and clarification these
appeals fail and are hereby dismissed, but in the circumstances without any
orders as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10660-10662 OF 2013
(Arising out of S.L.P. (C) Nos.31761-31763 of 2009)
B. Thirumal …Appellant
Versus
Ananda Sivakumar and Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. These appeals arise out of a judgment and order dated 4th August,
2009 whereby a Division Bench of the High Court of Judicature at Madras has
allowed Writ Appeals No. 1155, 1156 and 1346 of 2008 setting aside the
order passed by the learned Single Judge and dismissed Writ Petitions
No.25871 of 2006 and 8925 of 2007 filed by the appellant.
3. The appellant was, at the relevant point of time, working as a Junior
Engineer (Electrical) in the Tamil Nadu Public Works Department. He was
appointed to the said post by direct recruitment through the Tamil Nadu
Public Service Commission in the year 1984-85 and was governed by the
Special Rules applicable to Tamil Nadu Engineering Subordinate Service
(hereinafter referred to as the “Subordinate Engineering Service”).
Aggrieved by the prevalent practice of Assistant Engineers (Electrical) being empanelled for promotion to the post of Assistant Executive Engineer (Electrical) against 25% quota reserved for members of the Subordinate
Engineering Service, the appellant filed a representation to the Engineer- in-Chief, Public Works Department, praying for discontinuation of the said practice on the ground that such empanelment and consideration of Assistant Engineers (Electrical) was contrary to Special Rules applicable to the
Tamil Nadu Engineering Service, which is a State Service (hereinafter referred to as the “State Engineering Service”). The Chief Engineer
(General), PWD, however, rejected that representation in terms of a
communication dated 18th January, 2006, inter alia, pointing out that
seniority assigned to the Junior Engineers (Electrical) in the cadre could
not be altered even after they obtained a degree qualification and were re-
designated as Assistant Engineer (Electrical). The Chief Engineer was of
the view that re-designation of a diploma-holder as an Assistant Engineer
(Electrical) after his acquiring a degree qualification was not tantamount
to ‘promotion’ or appointment to State Engineering Service so as to snap
his lien in the Subordinate Service of which he is a member.
4. Dissatisfied by the rejection, the appellant submitted yet another
representation pointing out that although some vacancies in the cadre of
Assistant Executive Engineers (Electrical) were earmarked for Junior
Engineers (Electrical) yet the same were being filled up by appointment of
re-designated Assistant Engineers (Electrical). This representation was
soon followed by the appellant filing Writ Petition No.25871 of 2006 in
which the appellant prayed for a mandamus directing the respondents to
consider his case against 25% vacancies reserved for members of the
Subordinate Service and a certiorari quashing memorandum dated 18th
January, 2006 whereby the Chief Engineer had rejected the representation
filed by the appellant. A second representation filed by the appellant on
16th March, 2006 was, in the meanwhile, rejected by the Secretary to the
Government, Public Works Department, Chennai, which rejection too was
challenged by the appellant in Writ Petition No.8925 of 2007. The appellant
prayed for a mandamus directing the respondent to consider and include his
name in the panel for appointment to the post of Assistant Executive
Engineer (Electrical) against the quota reserved for the diploma holder
Junior Engineers.
By a common order dated 29th August, 2008 a Single Bench
of the High Court of Madras allowed both the writ petitions and directed
the State Government to apply Rule 5(3)(b), Branch V – Electrical of the
Special Rules applicable to the State Engineering Service in its letter and
spirit and determine the seniority and entitlement of promotion on that
basis.
5. Three Junior Engineers (Respondents No. 1, 2 and 3 in these appeals),
who had been re-designated as Assistant Executive Engineer (Electrical)
after they had acquired a degree qualification challenged the
aforementioned order passed by the Single Bench in Writ Appeals No.1155 and
1156 of 2008. Their principal contention was that the re-designation of a
Junior Engineer on his acquiring a degree was not tantamount to his
promotion to the cadre of Assistant Engineers which is governed by a
separate set of rules - the Special Rules relevant to the State Engineering
Service. The Tamil Nadu Engineering Association also assailed the order
passed by the Single Judge in Writ Appeal No.1346 of 2008 which were all
heard and allowed by the Division Bench of the High Court of Madras in
terms of order impugned before us in the present appeal.
6. It is common ground that the post of Assistant Engineer (Electrical)
is not a part of the cadre of the Tamil Nadu Engineering Subordinate
Service. There is, therefore, no question of a member of the said service
being promoted as an Assistant Engineer (Electrical). The only question
that falls for our determination in that view is
whether the re-designation
of the diploma holder Junior Engineers as Assistant Engineers (Electrical) upon their acquiring a degree qualification was tantamount to recruitment by transfer within the meaning of the State Engineering Service Rules.
7. Appearing for the appellant Mr. Krishnamani, argued that re-
designation of the diploma holder Junior Engineers was nothing but
appointment of such Engineers as Assistant Engineers (Electrical) in the
State Engineering Service by transfer within the meaning of Para 3 of the
Table attached to the Special Rules to the State Engineering Service which
specifically provides for appointment to the posts of Assistant Engineers
(Electrical) by direct recruitment or by transfer in the category of Junior
Engineer (Electrical) in the Tamil Nadu Engineering Subordinate Service of
those who possess a degree in Electrical Engineering. The rules also
provide for Junior Electrical Inspectors in the Tamil Nadu Electrical
Inspectorate Service being recruited to the post of Assistant Engineer
(Electrical) by transfer.
8. Per contra, learned counsel for the respondents argued that re-
designation of a Junior Engineers (Electrical) as Assistant Engineers
(Electrical) upon their acquiring degree qualification was not the same
thing as recruitment by transfer. Any such recruitment, argued the learned
counsel, could be made only by constituting a Departmental Promotion
Committee for consideration of the claims and inter se merit of all
eligible candidates. No such procedure was, however, followed while re-
designating Junior Engineers (Electrical) as Assistant Engineers
(Electrical) in the instant case. The result was that Junior Engineers
(Electrical) were simply re-designated as Assistant Engineers (Electrical)
on the basis of their higher academic qualification and that such re-
designation did not snap their lien with the parent service, namely, Tamil
Nadu Engineering Subordinate Service. Such being the case the re-designated
Assistant Engineers (Electrical) continued to be eligible for promotion
against 25% quota meant for the members of the Subordinate Engineering
Service, their re-designation as Assistant Engineers (Electrical)
notwithstanding.
9. We had after noticing the rival contentions of the parties passed an
order on 12th April, 2012 by which we had directed the State Government to
file an affidavit stating whether or not the re-designation of such Junior
Engineers was granted at the request of such Junior Engineers or came about
automatically. The State was also directed to place on record Government
Orders and Circulars issued from time to time regarding recruitment to the
State Engineering Service by transfer from the Subordinate Engineering
Service as a source of such recruitment and in case the State had treated
the re-designated members of the Subordinate Service to have been recruited
by transfer the process that was followed for making such recruitment. In
compliance with that order an affidavit was filed by Shri K. Eswantha Rao,
Deputy Secretary to Government, Public Works Department, Chennai on 4th
October, 2012. A reading of the affidavit shows that re-designation is
granted only on receipt of an application from the Junior Engineer
concerned. The Affidavit states:
“As per the said rule provisions, on receipt of application from the Junior Engineer concerned informing the fact of acquisition of B.E. degree by him and requesting redesignation, he is granted redesignation as Assistant Engineer with effect from the date of acquisition of B.E. degree by recruitment by transfer.”
10. By another order dated 14th August, 2013 passed by this Court, the
respondent-State was directed to file a further affidavit stating
whether
the re-designated Assistant Engineers are considered for promotion against the 75% quota reserved for the Assistant Engineers for promotion to the cadre of Assistant Executive Engineer. The State was further directed to
indicate
whether upon re-designation the Junior Engineers are shown in the
final seniority list of Assistant Engineers and also to furnish details
about the sanctioned cadre strength of Assistant Engineers in the State
Service for the past ten years.
Copies of the seniority lists and the
relevant Rules were also directed to be filed. An additional affidavit
pursuant to the said directions has been filed in which it is stated that
Assistant Engineers upon their re-designation are being considered for
promotion as Assistant Executive Engineers against 75% quota earmarked for
Assistant Engineers based on the seniority fixed in the cadre of Assistant
Engineers. The affidavit goes on to state that such Assistant Engineers are
also being considered for promotion as Assistant Executive Engineers
against 25% quota reserved for diploma holder Junior Engineers. The
following passage from the affidavit is, in this regard, noteworthy:
“It is submitted that redesignated Assistant Engineers are being
considered for promotion as Assistant Executive Engineers in the
75% quota earmarked for Assistant Engineers based on the
seniority fixed in the post of Assistant Engineers. It is
further submitted that as a convention, redesignated Assistant
Engineers are also being considered for promotion as Assistant
Executive Engineers based on their seniority in the post of
Junior Engineer in the 25% quota if their turn for promotion
comes first in the seniority list of Junior Engineers, which is
an additional benefit conferred on them for having acquired
higher qualification.”
11. The affidavit goes on to explain the reason for such duality of
consideration for promotion in the following words:
“It is submitted that there is no explicit provision in the
special rules for Tamil Nadu Engineering Services to provide
promotion to the redesignated Assistant Engineers on the basis
of their seniority in the post of Junior Engineer if their turn
for promotion as Assistant Executive Engineers comes earlier in
the seniority list of Junior Engineers than in the seniority
lists of Assistant Engineers. However, this procedure is being
followed conventionally and more than twenty persons both in the
category of Civil and Electrical in this Department have been
promoted as Assistant Executive Engineers.”
12. We have referred to the affidavits in detail only to highlight the
fact that the procedure followed by the State Government is not sanctioned
by any rule and yet is being followed in the name of a convention. We,
however, fail to appreciate how an officer could be considered for
promotion in two different channels of promotion. Nor is it possible to
appreciate how an engineer or any other civil servant could be a member of
two distinct services at the same time or claim a lien or consideration for
promotion on that basis.
13. Time now to refer to the provisions of ‘Branch V – Electrical’ of the
Special Rules applicable to State Engineering Service which recognises
three categories of officers, namely, Electric Engineers in Category-I,
Assistant Executive Engineers (Electrical) in Category-II and Assistant
Engineers (Electrical) comprising Category-III. Rule 2 and the Table below
the same prescribe the category and the method of recruitment. It reads:
“2 Appointment:- (a) Appointment to the categories specified in
column (1) of the Table below shall be made by the methods
specified in column (2) thereof:-
TABLE
| |Category |Method of recruitment |
| | |(2) |
| |(1) | |
|1. |Electrical Engineer|(i) By Promotion from Assistant |
| | |Executive Engineer (Electrical) in |
| | |category 2. |
| | |(ii) By recruitment by transfer from the|
| | |category of Electrical Inspector in the |
| | |Tamil Nadu Electrical Inspectorate |
| | |service. |
|2. |Assistant Executive|(i) By promotion from Assistant Engineer|
| |Engineer |(Electrical) in category 3; or |
| |(Electrical) | |
| | |(ii) By recruitment by transfer from the|
| | |category of Junior Engineer (Electrical)|
| | |in the Tamil Nadu Engineering |
| | |Subordinate Service or from the category|
| | |of Assistant Electrical Inspector in the|
| | |Tamil Nadu Electrical Inspectorate |
| | |service; or |
| | |(iii) By direct recruitment, if |
| | |qualified hands are not available for |
| | |appointment by the above methods. |
|3. |Assistant Engineer |(i) By direct recruitment; or |
| |(Electrical) | |
| | |(ii) By recruitment by transfer from the|
| | |category of Junior Engineer (Electrical)|
| | |in the Tamil Nadu Engineering |
| | |Subordinate service who possess a Degree|
| | |in Electrical Engineering; or from the |
| | |category of Junior Electrical Inspectors|
| | |in the Tamil Nadu Electrical |
| | |Inspectorate service. |
(b) Promotion to the category of Electrical Engineer shall be
made on grounds of merit and ability, seniority being considered
only where merit and ability are approximately equal.
(c) So far as qualified and suitable candidates are available
out of every four vacancies successively arising in the category
of a Assistant Executive Engineer (Electrical), the first three
vacancies shall be filled in or reserved to be filled in by
promotion from among the category to Assistant Engineer
possessing B.E.degree (Electrical) and the fourth vacancy shall
be filled in or reserved to be filled by recruitment by transfer
from the category of Junior Engineer (Electrical) possessing the
diploma in Electrical Engineering.”
14. A bare glance at the above would show that appointment to the
category of Assistant Engineer can be made by direct recruitment or by
transfer from the category of Junior Engineer (Electrical) in the Tamil
Nadu Engineering Subordinate Service from among those who possess a degree
in Electrical Engineering or from the Junior Electrical Inspectors to the
Tamil Nadu Electrical Inspectorate Service.
The question as noticed earlier
is whether the re-designation of degree holder Junior Engineers was by
itself tantamount to appointment by transfer to the State Engineering
Service. It is common ground that no reference to the Tamil Nadu State
Public Service Commission was made nor was any other process of selection
undertaken for such re-designation which was based entirely on the degree
qualification of the incumbent and was granted with effect from the date
the qualification was acquired. The re-designation had similarly nothing
to do with the number of vacancies available in the State Engineering
Service. Availability of vacancies in the cadre of Assistant Engineers was
an essential condition precedent for any recruitment to that cadre whether
by transfer or otherwise. Not only that, re-designation did not result in
the occurrence of any vacancy in the cadre of Junior Engineers as it should
ordinarily have, when someone holding the post of Junior Engineer got
appointed to another service, resulting in the termination of his lien in
the parent service. This implied that even though re-designated as an
Assistant Engineer (Electrical) the incumbent continued to hold the post of
Junior Engineer after re-designation. All this leads to the irresistible
conclusion that except financial benefit and status, re-designation did not
bring about any other change. If the version of the respondents is
believed as we are inclined to do, even the duties of such re-designated
officers remained the same as before. According to the State Government the
two positions viz. Junior Engineer (Electrical) and Assistant Engineer
(Electrical) are synonymous insofar as the nature of work and duties are
concerned.
To sum up :
i) The re-designation comes as a natural and inexorable
consequence of the higher qualification acquired by a Junior
Engineer, no matter on an application filed by the incumbent.
ii) The re-designation is granted with effect from the date the
higher qualification is acquired.
(iii) The re-designation has no co-relation to the vacancies in the
cadre of Assistant Engineers (Electrical). No vacancies are
created to accommodate the officers being re-designated,
which would be inevitable unless the vacancies equal to the
officers being re-designated, were already available.
(iv) The nature of duties for the re-designated officers remained
the same as for Junior Engineers.
(v) The re-designated officers continue to be considered for
promotion in their parent service against 25% quota fixed for
that source.
15. The cumulative effect of the above, in our opinion, is that there is
no element of recruitment to the State Engineering Service by direct
recruitment or by transfer. The contention that those re-designated stood
appointed to the cadre of Assistant Engineers (Electrical) in State Service
must, therefore, fail.
Considerable support for that conclusion is
available from the decision of this Court in BSNL v. R. Santhakumari
Velusamy & Ors. AIR 2011 SC 3793. That was a case where this Court was
examining whether rules of reservation were applicable to promotions to
Grade IV under the Biennial Cadre Review Scheme introduced by the
Department of Telecommunications, Government of India with a view to remove
stagnation of certain categories of employees serving in the said
department. The Government had formulated the procedure regarding
promotion to Grade IV according to which such promotions were to be granted
on the basis of seniority in the basic grade from amongst the officers in
Grade III subject to fitness determined in the usual manner of One Time
Bound Promotion Scheme (‘OTBP Scheme’ for short). By a clarificatory
Circular issued subsequently the Government had directed that promotions
would be subject to fulfilment of other conditions and that normal rules of
reservation would apply to the same. The direction regarding application of
rules of reservation to promotions to Grade IV was assailed by the All
India Non Schedule Caste/Schedule Tribe Telecom Employees Association on
the ground that principles of reservation had no application for
upgradation on existing posts which did not carry any change in duties and
responsibilities. The Central Administrative Tribunal, Ahmedabad upheld
that contention and directed that reservation will have no application
while upgrading posts under the BCR Scheme and directed that the department
shall take appropriate action for effecting promotions to the upgraded
posts without applying the reservation roster. The order passed by the
Tribunal was upheld by the Gujarat High Court in a writ petition filed by
the Government. The matter eventually reached this Court by special leave.
One of the main issues considered by this Court was whether upgradation of
the posts under the BCR Scheme was tantamount to promotion. This Court
upon a comprehensive review of the decisions rendered earlier including
those rendered in Union of India v. S.S. Ranade (1995) 4 SCC 462, Union of
India v. V.K. Sirothia (2008) 9 SCC 283 and Lalit Mohan Deb and Ors. v.
Union of India & Ors. (1973) 3 SCC 862 formulated specific principles
relating to promotion and upgradation in the following words:
“21. 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 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. A
(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.”
16. On a careful reading of principles (ii) and (iii) above, it is
evident that upgradation which is synonymous to re-designation in the facts
of this case simply confers a financial benefit by raising the scale of pay
of the posts without there being movement from a lower position to a higher
position. In the case of upgradation, the candidate continues to hold the
same post without any change in the duties and responsibilities but merely
gets a higher pay scale. Not only that, 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 advancement to a higher pay-scale without
change of post is accompanied by some process which has the element of
selection, then it will be a promotion to a higher pay-scale. This Court
declared that up-gradation in that case was not promotion, also because the
BCR Scheme did not involve creation of additional posts nor did the scheme
involve consideration of inter se merit of the candidates or involve any
selection process. The Court on that basis declared that BCR Scheme was
only an upgradation intended to give relief against stagnation which was
not tantamount to promotion. To such process of upgradation, the
Reservation Rules had no application, declared this Court.
17. The rationale behind upgradation not being considered tantamount to
promotion would, in our opinion, apply with full force even to a case where
the upgradation/redesignation is sought to be termed as a case of
recruitment by transfer. If the process of upgradation/redesignation has no
correlation to the vacancies available in the State Engineering Service and
if such upgradation/redesignation is granted as a matter of course without
any selection process and merely on the incumbent acquiring a degree
qualification, we see no reason why such upgradation/redesignation should
be treated as a case of appointment to the said service by transfer. What
could not constitute promotion (assuming that the post of Assistant
Engineer (Electrical) was a part of the Subordinate Service) cannot
obviously be considered to be a case of appointment by transfer.
18. Suffice it to say that the principles enunciated in Velusamy’s case
(supra) when applied to the facts of the case at hand, leave no manner of
doubt that the upgradation/redesignation granted to the members of the
Subordinate Engineering Service upon their acquiring a degree qualification
was meant only to encourage or recognize their getting such higher
qualification. Such upgradation may involve a higher designation and better
emoluments for the incumbents but neither of those two benefits could
constitute promotion or recruitment by transfer.
19. It is true that the State has shown the upgraded engineers in the
seniority list of the Assistant Engineers (Electrical) and even considered
and promoted them against vacancies available in 75% quota, meant for that
source but such inclusion, consideration and promotion cannot by itself be
treated to be ground for holding that the re-designation had the effect of
appointing the incumbents by transfer. At any rate, there is nothing to
show that the State had taken the lien of the incumbents in their parent
service to have been terminated. On the contrary, the State has been
considering such re-designated officers for promotion even against 25%
quota meant for the Junior Engineers serving in the Subordinate Service.
The aberration of considering the redesignated officers as members of the
State Service does not constitute a sufficient basis for us to depart from
the legal parameters to which we have adverted earlier.
20. The Division Bench of the High Court has, while dealing with the
question whether Junior Engineers re-designated as Assistant Engineers
could have the “best of both worlds” by availing of both the 25% and 75%
quotas, upheld that practice on the ground that it only served to reward
pursuit of higher studies without causing any undue disadvantage to diploma-
holder Junior Engineers, or to directly recruited Assistant Engineers. The
Division Bench observed:
“14…A Diploma-holder Junior Engineer, who on acquisition of
Degree in Electrical Engineering is re-designated as Assistant
Engineer, is placed below the directly recruited graduate
Engineer during the year concerned. Therefore, obviously he does
not steal march over such directly recruited Assistant Engineer
having Degree in Engineering. Similarly it cannot be said that
he is stealing march over the Diploma-holder Junior Engineers
who continue as such in as much as such a person only gets a
better opportunity because of his perseverance in pursuing
further study and acquisition of a higher qualification
subsequently ads to the quality of work done by such person. A
Diploma-holder Junior Engineer, who subsequently acquires a
degree in Engineering, does not become senior above any Diploma-
holder Junior Engineer. While he retains his seniority, he only
gets an additional avenue as he is also redesignated as
Assistant Engineer. Ultimately, the benefit goes to a person who
pursues higher studies. It cannot be said that there is anything
inherently arbitrary in such a scenario in as much as a person
ultimately gets some reward for his pursuit of higher study and
because of his perseverance in obtaining a higher degree.
If a Diploma-holder Junior Engineer on acquisition of
higher qualification is to be compulsorily moved out of the
category of Junior Engineer, anomalous position may crop up.
Since such a person would be placed below all the existing
graduate Assistant Engineers, his chance of being promoted
within the quota of 3/4th meant for graduate Assistant Engineers
would be practically nil. It is of course true that on being re-
designated as Assistant Engineer, such a person receives higher
salary, but when he is compulsorily “kicked upstairs” (if we may
permitted to observe so) the Diploma-holder Junior Engineer, who
were below him, would be in a better position for being
promoted, even though less qualified than him. The convention
which was being hitherto followed in the Department does not
prejudice a graduate Engineer in the Assistant Engineer cadre
nor it has the effect of blocking the promotional prospects of
any Diploma-holder Junior Engineer, who was senior to such other
Diploma-holder Junior Engineer who subsequently acquires the
higher qualification.
Xx xx xx
19. In our considered opinion, the Junior Engineers, on
acquisition of higher qualification are re-designated as
Assistant Engineers, but it cannot be said that they have become
full-fledged members of any other service. It is to be noticed
that though technically two services may be different, the
nature of the work done is the same and, since two services are
essentially same, the traditional concept of losing lien in the
original service while absorbed or deputed in any other service
does not strictly arise for consideration.
20.The convention, which was hitherto being followed by the
Department, and now approved by us, has the effect of conferring
additional benefit on a person who pursues the study for
acquiring higher qualification.”
21. The observations made by the Division Bench in the above passages do
not appear to be legally correct since an incumbent in service cannot hold
lien in two different cadres at once. It is also not correct to say that
the two services are in essence one. The distinction is obvious and clear
enough from the rules, that provide for method of recruitment, promotion
and conditions of eligibility for the two separately. That is so also
because the quotas for promotion to the posts of Assistant Executive
Engineers are separate for the members of the two services and one cannot
be utilized for the benefit of the other. That apart, the High Court was
not correct in holding as if a degree holder could be redesignated as an
Assistant Engineer against his will and only because he had acquired a
degree qualification. The State has made it clear in the additional
affidavit filed on its behalf that redesignation was ordered on the basis
of requests made by the members of the Subordinate Engineering Service. It
was, therefore, not correct to suggest as though redesignation was thrust
upon unwilling members of the Subordinate Service. Suffice it to say that
even the High Court has held that the redesignated Assistant Engineers did
not because of redesignation become full-fledged members of the State
Service. If that be so, there is no half way house, for either they are
members of Subordinate Service or they are not. They cannot be members of
the Subordinate Service and State Service both, at one and the same time.
22. The upshot of the above discussion is that the degree holder Junior
Engineers continue to be members of the Subordinate Engineering Service
even after they are redesignated as Assistant Engineers upon them getting a
degree qualification.
They can, therefore, be considered only against the
25% quota reserved for the Subordinate Service and not against 75% reserved for the State Service members directly recruited to that service or appointed by transfer in terms of the Rules.
To the extent the redesignated
Assistant Engineers have been considered in the past for promotion in the
quota reserved for Assistant Engineers in the State Service, the
consideration was legally bad. Having said that, we do not propose to
interfere with what has been done in the past especially when there is no
challenge before us to the appointment of the re-designated Assistant
Engineers as Assistant Executive Engineers against vacancies falling in 75%
quota. The settled position need not, therefore, be unsettled at this stage
in these proceedings. With the above observations and clarification these
appeals fail and are hereby dismissed, but in the circumstances without any
orders as to costs.
……………………………….……….…..…J.
(T.S. THAKUR)
……………………..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
November 27, 2013
