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Wednesday, November 27, 2013

Service matter = 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. = B. Thirumal …Appellant Versus Ananda Sivakumar and Ors. …Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41001

        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.
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 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.”
              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

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