Union Of India & Ors. vs Brahma Deo
2012 Latest Caselaw 1519 Del

        *        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment reserved on: 02.03.2012
                                         Judgment pronounced on: 05.03.2012

+       W.P.(C) 1255/2012 & CM No. 2727/2012 (stay)


        UNION OF INDIA & ORS.                                         ...         Petitioner



                                         versus


        BRAHMA DEO
                                                                            ... Respondent
Advocates who appeared in this case:
For the Petitioner        : Mr R.V. Sinha, Adv. with Mr A.S. Singh, Adv.

For Respondent            : None.

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

V.K. JAIN, J.

1. This writ petition is directed against the orders dated 05.08.2010 and

14.10.2011 passed in OA No. 1429/2010 and RA No. 202/2011 in OA No.

1429/2010 respectively. The facts giving rise to the filing of this writ petition can

be summarized as follow:

The respondent before this Court joined PSS Grade 'B' on 10.10.2002.

Pursuant to the report of the Sixth Pay Commission, PS Grade 'B' officers were

granted upgradation of grade pay from Rs 4800 to Rs 5400 on completion of four

years after due screening in regard to the vigilance clearance. The upgradation was

to be granted on non-functional basis and was not linked to any vacancy. A

chargesheet under Rule 14 of CCS(CCA) Rules, 1965 was issued to the respondent

vide Memo dated 20.10.2008 and on account of the aforesaid chargesheet, the

higher grade pay of Rs 5400 was not granted to him. OA No. 2649/2009 was filed

by the petitioner seeking grant of higher grade pay. The OA was disposed of vide

order dated 16.09.2009, thereby permitting the respondent before this Court to

make a representation with respect to his grievance and the petitioners before this

Court (the respondents in the OA) were directed to pass an appropriate order on the

representation. A representation dated 22.10.2009 made by the respondent pursuant

to the order of Tribunal is stated to have been rejected vide speaking order dated

30.11.2009. The respondent filed OA No. 1429/2010 seeking grant of higher grade

pay of Rs 5400. The OA was allowed vide impugned order dated 05.08.2010 and

the petitioner was directed to accord grade pay of Rs 5400 to the respondent in the

pay band of Rs 9300-34800 w.e.f. 10.10.2006.

2. The only contention raised by the learned counsel for the petitioner before us

is that since grant of higher grade pay of Rs 5400 amounts to promotion and

disciplinary proceedings are already pending against the respondent, the higher

grade pay of Rs 5400/- cannot be paid to him during pendency of disciplinary

proceedings and only a sealed cover with respect to grant of higher grade pay can

be resorted by the petitioners.

3. The distinction between upgradation and promotion was examined by

Supreme Court in Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy &

Ors. 2011 STPL (Web) 781 SC. In that case, there were four grades of employees

of Telecom Departments and promotions from one grade to higher grade were

made on the basis of the seniority/departmental examination. 'One Time-Bound

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

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

next higher grade. After some time, the Government decided to have a Biennial

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

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

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

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

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

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

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

clarification regarding designations by another Circular dated 13.12.1995. The

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

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

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

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

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

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

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

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

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

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

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

Tribunal held that the Department could not apply reservation rules while

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

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

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

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

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

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

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

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

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

was a non-promotional appointment and distinction between upgradation and

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

Government was directed to restore the contesting respondents to their promoted

posts. The writ petition filed by the Telecommunication Department was

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

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

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

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

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

overcome stagnation. The appellants before the Supreme Court contended that

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

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

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

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

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

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

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

between the promotion of upgradation:-

(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense,

promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both that is advancement to a higher position and advancement to a higher pay scale - are described by the common term 'promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.

(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.

(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.

(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a

cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.

(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.

(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.

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

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

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

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

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

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

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

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

4. In the case before this Court, a perusal of the order dated 04.11.2008 issued

by the Government of India, Ministry of Communications & IT, Department of

Posts, whereby grant of upgradation of the grade pay from Rs 4800 to Rs 5400 on

completion of four years service was notified, would show that no element of

selection was involved in grant of the said upgradation and only screening limited

to vigilance clearance was to be done by the competent authority before granting

the upgradation. It is also not in dispute that the upgradation was to be given to all

those who had completed four years of service and were cleared from vigilance

point of view. Admittedly, grant of the higher grade-pay does not involve

movement from a lower position to a higher position nor is there any change in the

duties and responsibilities of those who are granted the higher grade pay. The

higher grade pay is, therefore, available to everyone who satisfies the eligibility

conditions and no comparison of inter se merit of the eligible candidates is

involved in the process. Thus, it cannot be disputed that grant of higher grade pay

does not have element of selection and, therefore, is an upgradation simplicitor and

that too only of the grade pay, not of the pay scale/pay band. Even if, upgradation

is restricted to some of the post in the cadre, it would not constitute promotion

unless an element of selection is involved in the selection and neither there is

movement from lower position to a higher position nor any change in the duties

and responsibilities. In the case before this Court, grant of higher grade pay is not

even restricted to a specified percentage of cadre or to a specified number of

employers. It is available to all those who have completed four years of service,

subject, of course, to clearance from the vigilance angle. The view taken by the

Supreme Court in Bharat Sanchar Nigam Limited (supra) was that even the

screening to eliminate those employees whose service records contained adverse

entries or who might have suffered punishment may not amount to a process of

selection leading to promotion, the elimination in such a case being only a part of

process of upgradation simplicitor. In the case before this Court even the screening

is restricted clearance from vigilance angle and does not entail elimination of those

whose service records contains adverse entries. The case before us is, therefore,

consequently covered by the decision of the Supreme Court in Bharat Sanchar

Nigam Limited (supra).

We, therefore, find no reason to interfere with the impugned orders passed

by the Tribunal. The writ petition is devoid of any merit and is, therefore,

dismissed.

V.K.JAIN, J

BADAR DURREZ AHMED, J

MARCH 05, 2012 BG/'sn'