Madras High Court
The Union Of India (Uoi), Rep., By The ... vs T. Varadaraju, S. Ruth Joice ... on 18 October, 2004
ORDER
1. The respondents who are the employees under the appellants were promoted under the Scheme called 'BCR' Scheme applying the reservation quota. Subsequently, by issuing the impugned orders dated 8.9.1999 and 30.12.1999, they cancelled the promotion and posted them to the original post. The same were challenged by the employees before the Tribunal and the Central Administrative Tribunal, Madras Bench, following the decision of the Full Bench of the Bangalore Bench, dated 26.4.2000 allowed the Original Applications with direction to restore the employees to the promoted post which they were holding before the impugned orders are passed. Aggrieved against the same, the Department preferred the above writ petitions.
2. Before dealing with the issue raised before us, we are inclined to consider the scope of the Scheme in question. Normally, service conditions of the employees in the Posts and Telegraphs Department are governed by the "Posts and Telegraphs Department, Telecommunication Branch (Selection Grade Posts) Recruitment Rules, 1979, hereinafter referred to 'the Recruitment Rules' framed under Article 309 of the Constitution of India. The scale of pay and method of recruitment have been specified in the Schedule to the Recruitment Rules. The posts are classified as Grades I, II, III and IV on the basis of the scales of pay. In 1983, taking into consideration the stagnation in getting promotion, the appellants framed a Scheme, called "One Time Bound Promotion Scheme", according to which promotion to Grade-II posts on the basis of the departmental examination would be abolished and promotions are being considered to those who had continued in regular service for 16 years in the basic grade, namely, Grade-I and Grade-II, and it safeguarded the right of the employees who had already been promoted to Grade-II under the Recruitment Rules.
3. Subsequently, accepting the demand of the staff unions for Second- Time Bound Promotion on completion of 26 years of service in the basic grade, another Scheme called "Biennial Grade Cadre Reviews", hereinafter referred to as "BCR" was introduced by issuing the proceedings dated 16.10.1990. According to the said BCR, those who had continued in regular service for 26 years in the basic grade and those who were in service as on 1.1.1990 would be entitled to promotion. To give effect to such promotion, suitable number of posts were created by upgradation based on functional justification under the powers of CGMs in consultation with their accredited finance. As observed by the Apex Court in C.A.No.10692 of 1995 although the BCR provides for regular service in the basic grade as a pre-condition for granting of the benefit, the benefit was expressly made applicable to those employees who had already, by virtue of the "One Time Bound Promotion Scheme", been granted promotion to Grade-II with effect from 1983.
4. The relevant clauses under the 'BCR' Scheme are as follows:-
"ix) The first Biennial Cadre Review for eligible Cadres/officials may be conducted immediately covering the period up to 30.6.92 be ascertained the eligible official who have completed/will be completing 26 years of service or more as on the crucial dates, namely the date of review, 1.1.91, 1.7.91 and 1.1.92. The No. of posts need to provide for the promotion of the eligible persons will be determined and will be sanctioned/activated in 4 instalments the first and the fourth on 1.1.92. With these posts, it should be possible to provide for promotion of these employees who have completed 26 years of service or more on the above crucial dates, subject to their otherwise being found fit. The criterion for promotion will be seniority, subject to selection.
xi) Creation of posts by upgradation under the Biennial cadre review will be by matching savings to the extent of 1% cut on basic cadre and 5% cut on supervisory cadre. These cuts (under Biennial cadre review) are in addition to the existing cuts of 5% in basic cadres and 15% in supervisory cadres under the OTBP scheme."
5. Subsequently, clarifications were issued in the letter dated 18.3.1992 by Department of Telecommunications, New Delhi. In the said proceedings, they have restructured the cadres in Groups 'C' and 'D'. With respect to fixation of pay and the duties, in the said proceedings, it is stated as follows:-
"II. Fixation of Pay under FR(22)(c):
Under the BCR scheme posts in Grades-III and IV are created on the basis of functional responsibilities and separate DPCs are held for promotions from Grade-II to Grade-III and Grade-III to Grade-IV. Pay of the officials will be fixed under FR 22(c) old and FR 22(i)(a)(i) on each promotion provided the appointment in the lower grade is regular.
III. SUPERVISORY DUTIES:
Officials in Grade-IV in the cadres of TDA (General) TDA (Phones), TDA (Telegraph), TDA (Telegraph General) will perform supervisory duties without any extra remuneration or allowance. In case of non-availability of Grade -IV officials, the supervisory duties will be performed by the senior-most Grade III officials in the station without any extra remuneration or allowance. In case the senior-most officials in Grade-III in the station declines, the next below official in the station will perform supervisory duties."
6. In the letter dated 13.12.1995, the Department of Telecommunications, New Delhi formulated the procedure regarding the promotion to Grade-IV. After reviewing the existing procedure of promotion to Grade-IV on the basis of the judgment of the Principal Bench, New Delhi, which was upheld by the Apex Court, it was decided to supercede the earlier instruction, and issued instructions to the effect that the promotion to Grade-IV would be given from among the officials of Grade-III on the basis of their seniority in the basic grade and promotion would be subject to fitness determined by OTBP as usual. Certain clarifications were sought for, for the letter dated 13.12.1995 referred to above. In the said clarifications, the Department of Telecommunications in the proceedings dated 1.3.1996 informed that normal rules of reservation would apply to promotion in Grade-IV. This clarification was issued answering the doubt raised in the earlier letter dated 25.1.1996 by the Assistant General Manager.
7. The Central Administrative Tribunal, Ahmedabad, in the decision dated 11.4.1997 found that the action of the Department in applying the reservation for upgraded post cannot be sustained. Aggrieved against the same, the Union of India filed Special Civil application No.7576 of 1997 before the High Court of Gujarat at Ahmedabad. The learned Judges of the Gujarat High Court rejected the writ petition. In view of the above said judicial orders, the impugned circulars dated 8.9.1999 and 30.12.1999 were issued. Challenging the said circulars, the respondents filed the Original Applications before the Central Administrative Tribunal, Madras Bench. The Madras Bench of the Tribunal in the order dated 25.7.2000, following the Full Bench decision of the Bangalore Bench allowed the Applications and directed the appellants to restore the Applicants to the promoted posts which they were holding before the impugned orders are passed. Aggrieved by the same, these writ petitions are filed by the Department.
8. The crux of the matter rests on the interpretation of the words "upgradation" and "promotion". Such an interpretation is necessary in view of the fact that the respondents got promotion under the guise of Article 16(4A) of the Constitution of India. If it is construed only upgradation, the rule of reservation cannot be made applicable and thereby the respondents are not entitled for promotion, as they have been promoted only on the basis of reservation quota. As rightly submitted by the learned counsel for the petitioners, in view of the decision in Ajit Singh (II) v. State of Punjab, , even if it is construed as promotion, we have to see whether any provision has been made for reservation as contemplated under Article 16(4A) of the Constitution of India.
9. In the literal sense the word "promote" means "to advance to a higher position, grade, or honour". "Promotion" also means, as described in Webster's Comprehensive Dictionary, "advancement or preferment in honour, dignity, rank or grade". So, the promotion does not cover only advancement to higher position or rank but also implies advancement to a higher Grade.
10. In the decision in Tarsem Singh v. State of Punjab, , while considering the meaning of "promotion" which is understood under the Service Law jurisprudence, the Apex Court has held that it means an advancement in rank, grade or honour and "promotion" is always a step towards advancement to a higher position, grade or honour. According to the said decision, an employee is eligible for promotion only if his pay scale is equal or lower than the pay scale of the post for which the employee is sought to be promoted.
11. It is also held in the decision in Union of India v. S.S.Ranade, , that the use of the word "promotion" does not necessarily lead to the conclusion that the promotion which is contemplated there is necessarily a promotion to a higher post and promotion can be either to a higher pay scale or to a higher post. Similar view was taken in the decision in State of Rajasthan v. Fateh Chand Soni, , by rejecting the opinion of the High Court that the appointment to a higher scale of an officer holding the same post does not constitute promotion.
12. In the decision in Lalit Mohan Deb v. Union of India, , while considering the appointment to the Selection Grade, it is held that for the purpose of filling the Selection Grade posts, a test was held and those who qualified in the test were appointed to the Selection Grade which is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the Selection Grade to prevent stagnation on the maximum of the scale and the Assistants in the Selection Grade and the Assistants in the old pay scale were being the same type of work as of the Selection Grade. But, such appointment to the Selection Grade was considered as promotion by the Apex Court in the said decision.
13. "Upgradation" is held to mean "to attain a higher stature while remaining in the same pedestal and it cannot be equated with "promotion". In the present case, even according to the petitioners, upgradation of post was effected only to remove the hurdle of stagnation in the career of an employee and admittedly higher scale of pay was fixed for the employees who have been given promotion under BCR though no additional duties and responsibilities are provided. Even under the said Scheme, the scale of pay due to upgradation is given, which reads as follows:-
Basic scale of the cadre Scale after OTBP after 16 years of service in basic grade Scale after Biennial Cadre Review on completion of 26 years or more 750-940 800-1150 950-1400 825-1200 950-1400 1200-1800 975-1540 1320-2040 1400-2600 975-1660 1440-2300 1600-2660(10% of posts in the pay scale of 1600-2660 will be in the pay scale of 2000-3200) 1320-2040 1400-2600 1640-2900 (10% of the posts in the pay scale of Rs.1640-2900 will be in the pay scale of Rs.2000-3200)
14. Though the learned counsel for the petitioners relied on the decisions in Union of India v. V.K.Sirothia, 1999 SCC (L&S) 938, and in All India Non-SC/ST Employees' Assn. v. V.K.Agarwal, , in the said decisions, the Apex Court has not dealt with whether the posts which are the subject matter in those cases are promotional posts or they are only upgradation. So the said decisions may not have any help to decide the issue in question.
15. In the present case, admittedly, under the said Scheme, though the posts have been upgraded for giving promotion to the employees under the BCR, they are entitled for higher scale of pay in view of such promotion. If it is so, as held by the Apex Court in the above said decisions cited supra, the said post has to be construed only as a promotional post.
16. Moreover, even according to the proceedings issued by way of clarification, by virtue of promotion under BCR Scheme, they have to perform supervisory duties. Even in the proceedings dated 16.1.1997 issued by the petitioners, the promotion under the BCR would be on functional basis and it carries higher responsibilities. Even under the BCR Scheme, the promotion is not merely on the basis of seniority but on the basis of their performance and suitability for advancement. Moreover, such promotions are being done after holding DPC. Though learned counsel for the petitioners, referring to the orders of promotion to certain employees, submitted that even in the order giving promotion, it is stated that placing them in higher scale of pay does not involve any change in the responsibilities and officials will do the same work hitherto being performed in the respective cadre. On the basis of such submission, it cannot be said that placing the employees on higher scale of pay by implementing the BCR cannot be construed as promotion. So, the submission of the learned counsel for the petitioners cannot be countenanced in this regard.
17. Learned counsel for the petitioners also submitted that unless provision is made for reservation, the employees cannot ask, as a matter of right, on the basis of Article 16(4A) of the Constitution of India, to give promotion to them applying reservation quota. In this case, even in the proceedings of the Government of India, dated 11.3.1991, it is specifically stated that normal rule of reservation will apply regarding promotion under the BCR. Again in the proceedings dated 30.6.1993, the same has been reiterated. Even in the clarification to the BCR Scheme issued under the proceedings dated 1.3.1996 by the Department of Telecommunications, it is stated that normal rules of reservation would apply to promotion in Grade-IV.
18. From the above, it is clear that the authorities concerned have provided reservation while giving promotion under BCR. So, the said submission that since no provision is made for reservation, no promotion on the basis of reservation can be sought for, cannot be sustained.
19. For all the reasons stated above, we are of the opinion that the Central Administrative Tribunal is correct in allowing the Original Applications. So we do not find any reason to interfere with the impugned orders of the Tribunal. Hence these writ petitions are dismissed. No costs.