Central Administrative Tribunal - Mumbai
Geeta S Karipapoil vs Western Railway on 1 December, 2023
LL
OA. No. 27/2089.
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAL
ORIGINAL APPLICATION No.327/2023.
Dated this Priday the 61% December, 2023.
Coram: Justice Shri. M.G, Sewlikar, Member i)
Dr. Bhagwan Sahai, Member {A}
_ Geeta 5. Raripapoil, (Wife of Satish Karipapoil) date of birth .. .
17.12.1972, age: $0 years 05 months,k working as: Chief Office
Superintendent (CHOS), Mumbai Central ( Group "C* Post) in
Western Railway, Mumbai Division, in the office Sr. Divisional
Personnel Officer, Mumbai Central, Mumbai 400008, and
residing at : 92/L. Western Railway Quarters, Sherly Rajan
Road, Pali Hill, Bandra (West), Mumbai 400050, State of
Maharashtra, cell: 7738906060, email idl:
geetasatish [email protected] ~ Applicant
(Shri R.G. Walia, Adveoate)
VERSUS
"1 Union of India; Through: secretary, Railway Board, Rail
Bhavan, Raisina Road, Rafi Ahmed Kidwai Marg, New
Delhi-110011. [email protected]
bo
General Manager, Western Railway, Headquarters' Office,
Churchgate, MLK. Road, Mumbai400020,
3. DRM (Divisional Railway Manager) DRM's Office, Mumbai
Division, Mumbai Central, Mumbai 400008.
4. Chief Personnel Office, Headquarters' Office, Western
Railway, Churchgate, MLK. Road, Mumbai 400020.
ENS
te
O.AL No. 9297/9023,
Ay
Mr Hashmukh P. Chunawala, Posting as Chief Office
Superintendent, presently on Deputation to RCT/MCST, to
be served through DRM (Divisional Railway Manager)
Mumbai Division, Mumbai Central, Mumbai-400008.
- Respondents
(Ms. N.V. Masurkar, Advocate)
ORDER
Per:Justice M.G, Sewlikar, Member () By this application the applicant is seekine ¥ and L1*® April, 2023 to the extent it provides reservation in the matter of upgradation of pay scale in the cadre of Chiesk Office a8) Superintendent and direction to the respondents te grant financial upgradation ts the applicant 00, os in the Grade Pay of Rs. 4800/~,
2. Facts in brief are that the applicant joined the railway office on the post of Junior Clerk on 8" May, 1990. Currently, she is working as Chief Office Superintendent. The post of Chief LLL LLL ELLE O.A. No, 3927/2029. rintendent as per Railway Board order "8 November, 2022 carried the Grade Pay of Rs. 4600/- in PB-II (level -7) It is contended that the Railway Board after approval of the Ministry of Finance issued circular dated i7t November, £022 on the subject of upgradation of pay Structures of certain cadres vide which Bogradation of pay structure of certain group "Cc cadres of Ministry of Railway was approved.
3. The upgradation was to be made with effect from O18 December, 2022. 50 per cent of posts in a particular category of posts are upgraded to the next level i.e. from Grade Pay of Rs.
4600/- to Grade Pay of Rs. 4800/-. The remaining wees teal engpinnicicee 50 pe x cent 'pos ts continue in Grade Pay of Rs. 4e00/-, there will not be any change in the nomenclature 'designation, duties and responsibilities and they will remain classified in Group "C"'. There was no change in the vacancy position/cadre structure. There was no O.A. No. ge7/ans9.
enhancement or additional vacancies created an "8i the said upgradation. It is thus, clear that the upgradation of pay structure is oniy financial upgradation and not promotion. On C4*® April, 2023, respondents issued a list of officials for such upgradation. Thereafter, the respondents issued the impugned order dated Li*® April, 20233, Though this order is styled as order of promotion, no element of promotion is involved in this order and, therefore, it is financial upgradation.
4. In terms of seniority list dated OLS March, 2023, the applicant stands at Sr.No. 20. By the impugned order dated 118 April, 2023 upgradation 'has been granted to the candidates belonging to reserved category. Those candidates are at Sr. No. 21 6 22, Candidate at Sr. No. 21 is a SC candidate and candidate at Sr, No. 22 is a sr candidate. The applicant has impleaded Mr. Hashmukh P. Chunawala as private respondent who < . D.ANo, 3297/8023, wo ee) By Oo r cy au 0 rm eas i ph a ct Au ch ct on T said financial pupgradation as he is on deputation and therefore, O1 vacancy is lying vacant with regard to upgradation. Ib is contended that the respondents cannot apply reservation in matter of upgradation. Despite that, respondents have applied reservation. The applicant has not bean granted financial upgradation though she is Senior to candidates at Sr. 21 & 22. The applicant has, therefore, filed this application for seeking aforesaid reliefs.
3 Respondent no. G1 filed its reply contending therein that as per Railway Board letter dated 17* November, 2022 50 per cent posts of the cadre strength ha been upgraded _ from Level-7 to hevel-$ i.e. Grade Pay of Rs. 4o00/- to Grade Pay of Rs. 4800/-. Because of this upgradation vacancies have arisen. The upgraded posts are filled on the basis of Seniority, scrutiny of service records and O.4, No. 29/2004, confidential reports without holding any written test or any viva voce. Upgradation relates ta all posts in a category, who have completed a minimum period of service. Upgradation can alse be restructured 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 Simpliciter. But if there is a process of Selection or consideration of COMpAaArative merit Or Suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. Where upgradation involves a process of Selection based on criteria similar to those applicable to promotion then it will be a Promotion though the Promotion is an upgradation. espondent no. 05 is selected against sc Vacancy and placed in."
Select list,however he is not promoted until he gets repatriated from RCT Division. The total posts of Chief Office Superintenden ct . 05 and candidate at Sr. Samir Sitaram Mahulkar are selected against ST vacancy and one SC & ST is shortfall.
further contended that there are other senior employees above the apolicant who have &iso not been upgraded.
6. We have heard Mr. R.G. Walia, learned counsel for the applicant and Ms. N.V. Masurkar, dearned counsel for the respondents.
7. Respondent no. OS remained absent though
8. bearned counsel for the applicant submitted that the applicant is at Sr. No. 20 in seniority dist dated O1s* March, 2023, Respondent no. 05 is at Sx. No. 21 in the Said seniority list and Samir Sitaram Mahulkar is at Sr. No. 22 an the said seniority list. He contended that by virtue of letter dated 17° November, 2022, upgradation of 50 per cent posts from Level-7 to Level-85 O.A. No. a27/9003, in Group °C" has been approved by the Ministry } 8} of Railways/Rail Mantralaya. By virtue of which order dated O4% April, 2022 came to be passed ¥ geanting upgradation of 50 posts from Level-?
OLS* December, 2022. This list is of 18 persons. Thereafter order dated 11% April, 2023 came to be passed. Mr. Walia contended that though the respondents are contending that this is an order of promotion, in fact it is an order of upgradation because in order to have an element of promotion, criteria applicable to promotion is to be made applicable to upgradation. In that 'eventuality, it amounts to promotion. Rs contended that the fetter of the Ministry clearly spells out that the duties and responsibilities of the candidates will remain same, there will be no change in designation, Therefore, as per law laid down in the case of oe ie a.
"Conte oe KD» res 2) Velusamy and Others, (2011) 9 Supreme Court =~ isbae™, me, OVA. Ne, 827/20283, Bharat Sanchar Nigam Limited Vs. R. Santhakumari Cases 510, it is upgradation and not promotion.
5. Ms. N.V. Masurkar, learned counsel for the respondents submitted that this is not an % upgradation but it is promotion. This promotion has occasioned because of the vacancies which had arisen because of upgradation of 50 per cent posts. She submitted that ib is a selection based on scrutiny of service record and other factors. When there is a process of selection or consideration of comparative merit ofr suitability for granting the upgradation or benefit of advancement to a higher pay scale,
-it will be a promotion. She submitted that if this test is applied, it clearly goes te show that 2 ads promotion and not upgradation. Reservation has been granted because of the extant rules regarding reservation. She further contended that Rallway Board issued 10 G.AONo. 327/202, communication dated 14th July, 2023 in which it is stated that where a grade of whole cadre is upgraded from existing grade to higher grade and where all the incumbents ara placed in higher grade, without creation of new posts, feservation shall not be applicable. In cases where a@ portion of sanctionad cadre strength is upgraded through an existing higher grade in that category or new higher gradé, resulting in increase in number of posts then the reservation is to be applied to parted strength in lower grade as well as upgraded Strength. She further submitted that in the case at hand, 50 per cent posts have been upgraded and, therefore, it is @ partial upgradation and not mass upgradation. Therefore, reservation -- has been correctly applied.
10. We have given thoughtful consideration to the submissions made by the learnad counsels on both sides.
4d O.A. No, 3997/anea li. The question involved in this OA are: (i) Whether vacancies were cre gated because of 50 per cent upgradation.; {b) Whether the impugned order is upgradation or promotion; and {c} whether reservation is applicable in case of promotion or upgradation. In the case of Bharat Sanchar Nigam Limited (supra), Supreme Court has explained principles regarding promotions and upgradations and in which case reservation will be applicable and in which case it will not bs applicable. In para 29, Supreme Court held thus:
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1) g to a different both - that is igher n and advancement a higher pay scale ~ are described by the cemmon fern Le motion', does not mean that they are the me. 7 two types of promotion are disténct and have different connotations and consequences.
{ii} Upgradation merely confers a financial benefit by raising the scalé of pay of the past 22 DA No. 927/809, Mao a 9 1 road a lowe % OG "on ory 4a 0 i 1 gy Sh my, Bo mara tn gos at % e 40 DG a3 as 43 fad 43 0 TS se 4a Al 4 ® "mf 3) wm £3, ¥ Uy ay % Fly Op oky oy = et 43 by, grt vwg Soo iD cc oe ind A po BS 4 8 th iy yo md wy cB Su fy Py mht 3 Q 43 my Oo Sony 42 obo weg a vid had yl on o wn Oe & ay 2 me mm a ty hy Leagan a naire or raGatian "Dg?
promotion to ted t at) Q a a Ey as 8 4) My os woe Oo a 43 st te gradation, ercentage of po 2 f "
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OF higher pay scale, it t Od service records m be a may still ¢ : Bg Ga o Y ce REiOn.
PTCKee anne ne 43 OA. Na, 327/208, {vw} Wh upgradation simplic. oly rules of reserva cten involves ssisetio: @ promotion, rules of ivi). Wiere ring of some cadres &£ itional posts and Fil by those whe satisfy bility which inoludes service wilt attrace On the other hand, wher posts does not inveive c osts but merely results posts being placed srovide relier against Wess does mot coe Pee be opaegerva Lion.
12, From this decision of Supreme Court, it is clear that promotion is an advancement in rank or grade or both and is a step towards advacement to a higher position, grade or honour of dignity. Upgradation mererly confers a financial upgradation by raising the scale of pay of the ry post without their being movement from a lower post to a higher post and the candidate a continues to hold the same post without any change in the duties and responsibities but merely gets a higher grade pay. When there is @ i4 of selection or consideration of ade the upgradation or benefit of adavacement to a higher pay scale, it will be promotion, A mere scrutiny to séliminate such employees whose service record may contain adverse entries or rh who might have suffered punishment may not amount oO & process of selection leading to promotion and the elimination may still be a part of the process of ubgradation simpliciter. Where upgradation involves the process of selection with criteria similar to thase applicable to promotion, then it will be termed as promotion, though termed as upgradation. This Supreme Court. decision further explains that when there is upgradation similiciter, there is no need to apply the rules of reservation bot when the upgradation involves the selection process, then it is promotion, and the rule of reservation will apply.
15G.AU No, 927/2023,.
¥ é ff this principle is applied to the present gents ae md 3 Seaie < cx oo 4 : » * " . 2 ANY § , the conclusion that necessarily leads is o See se that the upgradation in the case at hand is not promotion but it is upgradation simpliciter. The food etter dated i?th November, 2022 regarding upgradation of pay scale of certain categories states that. -Ehere will be mo change in. the no omenclature/ designation, duties and responsibilities and classification of the pos after upgradation and they will yvemain classified as Group "Cc".
iN. This clearly explains that there is ne change in duty, nomenclature or desi Lgnation and responsipilities. As explained by Supreme Court in the case of Bharat Sanchar Riven Limited {supra}, the test to determine whether upgradation is promotion is when the upgradation involves a process of slection with criteria similar to those applicable to promotion, then it will be a promotion, though it is styled as O.ANo. 3879/2025.
upgradation. In the case at hand nowhere respondents have contended that the selection criteria similar to promotion have been applied. No document, no rules, no Circular has been placed on record to show as to what are the eriteria for promotion and the similar oriteria have been applied for upgradation. Therefore, it cannot be said that it is a promotion. The criteria applied for upgradation as per letter dated Olst December, 202 f.3 are seniority, scrutiny of service record and confidential records without holding any written test or any Viva voce. As indicated earlier, there is nothing on record to gauge that these are the . eriteria for - promotion. "Therefore, the upgradation is not promotion but it is upgradation Simpliciter, When there is upgradation simpliciter, whether it is partial or Mass upgradation, reservation will not apply.
Agneta, af \ "
G.A. No, 3827/2029.
& a . tos ;
& There is «no change in designation, dy responsibilities, duties. Therefore, this not a eromotion but it is upgradation simpliciter. Therefore, the respondents were not justified in applying reservation.
io. The respondents have not placed anything on record to show how many posts were upgraded on account of which vacancies had arisen. They could have produced the order of upgradation of the post of Chief Office Superintendent. The order dated 04th April, #2023 shows that it is upgradation and 18 candidates have been upgraded. The order dated Lith April, 2023 shows that the same candidates have been shown to have been promoted. Therefore, if cannot be said that these promotions were made to fill up the vacancy created on account of upgradation.
iss In view of the above, it is clear that the impugned order is not of promotion but it is upgradation similiciter and rersservation was not O48, No. 32:7/2029, permissible to be applied. The respondents have stated in their reply that one vacancy of SC & §?
is still thers rd ny (b th 3 ten pe fete CO} by me cr fete 091 ty ct cA ig a
a) fh.
ty Hog ro) Respondents did not consider her because of not applicable, this post can he given to the is. In view of the above, we find if appropriate to allow this OA and direct the respondents to grant financial upgradation to the applicant in the ol vacant post of SC candidate, subject to her os teh 2 i x Fours 1 74 Rs is. In the light of above, OA is ailowed.
Respondents are directed to grant upgradation fron Grade Pay of Rs. 4600/- Level-? to Crade Pay of Rs.
4800/- Level-8 to the applicant in O01 vacant post SC, if she is found eligible. Pending MAs, if (Dr. Bhagivan Sahai) (Justicé-M.G. Sewlikar) Member (A) . Member (J)