Central Administrative Tribunal - Bangalore
M.L. Rajaram Naik And Ors. vs The Additional Director And Ors. on 26 April, 2000
JUDGMENT S.K. Ghosal, Member (A)
1. The Division Bench of the Bangalore Bench of the Tribunal has referred the following points which arise in O.A. Nos. 241 and 870 of 1999 to the Full Bench:
(i) Whether filling up of the upgraded posts of Senior Pharmacists in the higher scale on seniority cum fitness basis from those holding the posts of Pharmacists with a lower scale amounts to promotion calling for application of reservation in favour of Scheduled Castes and Scheduled Tribes?
(ii) Whether on the facts and circumstances of these cases the appointments of the applicants to the upgraded posts of Senior Pharmacists could be said to be illegal when the appointments were made and whether the impugned orders cancelling those appointments can be sustained?
2. The facts giving rise to the above reference which are not in dispute are as hereunder:
On a proposal for creating promotional avenues to Pharmacists in the scale of Rs. 1350-2200 working in Central Government Health Services, the Ministry of Health and Family Welfare by their letter dated 11.7.1995 conveyed the decision of the Government of India that 25 per cent of the total posts of Pharmacists in Central Government Health Scheme (CGHS) in the scale of Rs. 1350-2200 may be upgraded to the scale of pay of Rs. 1600-2600 and that the promotion to the higher scale posts known as Senior Pharmacists shall be made on the basis of seniority cum-fitness. When some clarifications (sic) regard to the upgradation of 25 per cent post of Pharmacists, the Directorate General issued clarifications as per Annexure-A1. In that clarification it was indicated that 40 point roster would be applicable for effecting promotion. After that clarification was given on the recommendation of the Departmental Promotion Committee, the applicants who belong to Scheduled Tribes and who are working as Pharmacists were appointed to the upgraded posts of Senior Pharmacists in the scale of Rs. 1600-2600. The applicants were thereafter transferred as Senior Pharmacists to take over charge of stores. Subsequently, the Directorate General by letter dated 28.11.1997 conveyed the opinion of the DOP & T that upgradation of posts of Pharmacists may be regulated as per terms and conditions laid down in DOP & T O.M. No. 22011/10/84 dated 4.2.1992. That Official Memorandum indicates the criteria to be adopted in assessing the suitability of the incumbents of the post and deciding the date of appointment to the upgraded posts.
3. By letter dated 11.9.1998 the Directorate General intimated that 25 per cent of upgradation of posts of Pharmacists does not attract reservation. Subsequently, the Ministry issued a corrigendum dated 15.9.1998 by which the word "promotion" was substituted for the word "upgradation", in the latter dated 11.7.1995 by which the decision to upgrade 25 per cent of posts was communicated. Thereafter the Directorate General withdrew the clarification that had been given by his office to the effect that 40 point roster is applicable for filling up of 25 per cent upgraded posts.
4. In view of the subsequent clarifications and corrigendum issued by the Ministry and the Directorate, the appointments of the applicants as Senior Pharmacists have been cancelled after issuing a show cause notice to them. Both the applicants have challenged the cancellation of their appointments as senior Pharmacists in O. A. Nos. 241 and 870 of 1999. They have contended that the appointment from the post of Pharmacist to the post of Senior Pharmacist which carries a higher scale is a promotion and as such reservation is attracted.
5. The respondents have strongly relied on the O.M. dated 4.2.1992 as well as the order of the Ahmedabad Bench of the Tribunal in Jagdishbhai C. Vyas v. Union of India, O.A. No. 70 of 1998 decided on 24th September, 1999, in support of their contention that reservation for Scheduled Castes and Scheduled Tribes is not applicable to fill up 25 per cent upgraded posts of Pharmacists.
6. The Ahmedabad Bench relying mainly on the order of the Jabalpur Bench in Ashok Kumar Srivastava and Anr. v. Union of India and Ors. (1987) 4 ATC 385, which order was affirmed by the Supreme Court, the decision of the Ahmedabad Bench in All India Non-Scheduled Castes/Scheduled Tribe Telecom Employees Association and Ors. v. Union of India and Anr., O.A. No. 623/1996 decided on 11.4.1997, which order was upheld by the Gujarat High Court, and the decision of the Supreme Court in Union of India v. B.K. Sirothia, Civil Appeal No. 3522 of 1995 with C.A. No. 9149/95 decided on 19.11.1998, has held that reservation roster cannot be applied in respect of upgraded posts of Senior Pharmacists and that those posts should be filled on the basis of seniority-cum fitness.
7. The Division Bench after taking note of the decisions relied on by the Ahmedabad Bench and the reasons given in those decisions to hold that no promotion is involved while filling up of the upgraded posts and as such reservation to Scheduled Castes and Scheduled Tribes was not available, has referred to the decisions of the Supreme Court in Union of India and Anr. v. S.S. Ranade, (1995) 4 SCC 462=1995(3) SLJ 83 (SC), Lalit Mohan Deb v. Union of India, (1973) 3 SCC 862, State ofRajasthan v. Patch ChandSoni, (1996) 1 SCC 562, and Ram Prasad and Ors. v. D. K. Vijay and Ors., (1999) 7 SCC 251, which decisions, according to the Division Bench showed that where some posts in a cadre are treated as selection grade posts with higher scale and even where such selection grade scales and posts are created to provided an avenue of promotion to avoid stagnation, and without necessarily involving higher responsibilities, appointments to such selection scale and selection grade would amount to promotion and that reservation to Scheduled Castes and Scheduled Tribes had to be made. In the light of the view taken in Shrivastava's case and other cases and the legal position as enunciated in these other set of Supreme Court decisions, the Division Bench has, in para 21 of the order of reference, observed as hereunder:
"21. We find it difficult to make out any distinction between a case where in order to provide promotional avenues and to avoid stagnation by way of restructuring the cadre certain percentage of posts in a particular cadre are upgraded to a higher scale and a case where certain number of posts in a cadre are treated as selection grade or selection scale posts with a higher scale. If reservation is applicable for placement of an employee from a lower scale to a selection scale in the same post, we are unable to understand as to why reservation would not be applicable if certain posts are upgraded to a higher scale."
8. The Division Bench has felt that the question involved is of great consequence for both the reserved category and the general category candidates and therefore it has referred the above questions to the Full Bench.
9. In O. A. No. 1002 of 1999 the applicant is an employee of the department of Telecom who had been promoted to BCR Grade-IV on the basis of reservation and who has now been informed that his promotion will have to be withdrawn on the ground that reservation was not available for promotion to fill up BCR Grade-IV. He has challenged that notice issued to him.
10. The department of Telecom introduced a scheme by order dated 16th October, 1990 under which there was provision for promotion to BCR Grade-Ill posts and to BCR Grade-IV posts at the rate of 10% of BCR Grade III postscent Grade-IV. As per that scheme 10 per cent of the BCR Grade-Ill posts were required to be treated as Grade-IV posts in a higher scale by upgradation. As per the scheme promotion to Grade-IV was based on seniority in Grade-Ill and reservation roster was also made applicable. The Principal Bench of the Tribunal later held that the promotion to Grade-IV should be effected on the basis of seniority in the basic grade and not on the basis of seniority in Grade-Ill. That view was also upheld by the Supreme Court. By letter dated 1.3.1996 the department had clarified that normal rule of reservation would apply to promotions to Grade-IV. The applicant who belongs to Scheduled Tribe and who was already in BCR-III was promoted to Grade-IV on the basis of reservation roster with effect from 1.7.1996. However, the clarification issued by the Department by letter dated 1.3.1996 was challenged before the Ahmedabad Bench of the Tribunal in O.A. No. 623 of 1996. That Bench mainly relying on the order of the Jodhpur Bench in Samsudden and Ors. v. Union of India O.A. No. 460 of 1991=1996(3) SLJ 124 (Jodhpur) and Ashok Kumar Srivastava and Anr. v. Union of India, (supra), quashed the letter dated 1.3.1996 holding that reservation roster cannot be applied for the upgraded posts and gave a direction to the department to take appropriate action for effecting promotions to the upgraded posts without applying reservation roster. The writ petition filed against that order was rejected by the Gujarat High Court. Thereafter the department has given instructions by Circular dated 8.9.1999 to conduct review DPC and to revert all ineligible officials promoted to Grade-IV by the application of reservation roster and to place all eligible officials in Grade-IV. It is in pursuance of this circular the impugned notice has been issued to the applicant.
11. Before the Division Bench it was contended that appointment to BCR Grade-IV which has a higher scale of pay amounts to promotion, that reservation for Scheduled Castes and Scheduled Tribes is, therefore, attracted, that the promotion given to the applicant is valid and that the Circular issued by the department on the basis of the order of the Ahmedabad Bench is not valid and that as he was not a party to the order passed by the Ahmedabad Bench he is not bound by the same.
12. As a similar question which had arisen in O.A. Nos. 241 and 870 of 1999 had been referred to the Full Bench, the Division Bench has thought it proper to refer the following question in O.A. No. 1002 of 1999 to the Full Bench :
"Whether placement in 10 per cent BCR (Grade-IV) as per the scheme dated 16.10.1990 on the basis of seniority in basic grade amounts to promotion and if so, whether reservation for scheduled castes and scheduled tribes in those BCR Grade-IV posts is not applicable?"
13. As one of the points referred to the Full Bench in both cases is common, common arguments have been heard. Sri P.A. Kulkarni, Advocate sought for permission to appear and address arguments on the ground that the finding given by the Full Bench will have a bearing on some other cases filed by him. He was permitted to submit his arguments. He has sought to support the view taken by Ahmedabad Bench that reservation is not applicable to fill up the upgraded posts.
14. As the orders passed by the Ahmedabad Bench both in the case of CGHS and the department of Telecom relies entirely on the earlier orders, some of which were affirmed by the Supreme Court, it is appropriate that we refer to those cases. In point of time the case in V. K. K. Sirothia v. Union of India (Petition No. 384/1986 decided on 1.10.1986) appears to be the earliest. That was a case where the correctness of the Railway Board's letter dated 2.8.1983 which inter alia stated that where cadre restructuring results in mass upgradation of posts in a particular category, reservation for Scheduled Castes and Scheduled Tribes would not be ordinarily applicable and that however if restructuring results in particular upgradation of a cadre/category on the basis of percentage distribution, the existing rules and orders governing reservation for Scheduled Castes and Scheduled Tribes will apply against additional number of higher grade posts which were available as a result of cadre restructuring. The order passed by the Tribunal in Sirothia's case is not available. However, in O.A. No. 70 of 1998 the Ahmedabad Bench has reproduced the order passed by the Supreme Court in the appeal preferred by the Union of India in Union of India v. V.K. Sirothia (Civil Appeal No. 3622 of 1995 with C.A. No. 9149/95 decided on 19.11.1998) as hereunder:
"The finding of the Tribunal that the so called promotion as a result of redistribution of posts is not promotion attracting reservation" on the facts of the case, appears to be based on good reasoning. On facts, it is seen that it is a case of upgradation on account of restructuring of the cadres. Therefore, the question of reservation will not arise. We do not find any good ground to interfere with the order of the Tribunal.
The Civil Appeal is dismissed. No costs."
15. In Ashok Kumar Shrivastava's case (supra) 300 posts of ADMOs were upgraded to those of DMOs. The post of DMO was a non-selection post. The Ministry of Railways had reiterated its view that rule of reservation will not apply to promotions from ADMOs to DMOs as the posts were not selection posts. Circular had been issued by the Railway Board to the effect that reservation was not applicable in promotions to the posts of DMOs because under the Rules these posts are required to be filled up by promotion on the basis of seniority cum-suitability and not on the basis of selection. However, subsequently reservation was made applicable for promotion to the upgraded posts of DMOs and the respondents in that case were promoted. The applicants had challenged those promotions. The Tribunal has referred to various circulars issued by the Railway Board itself indicating that in the matter of filling up of the posts of DMOs by promotion reservation would not be applicable. Reliance also was placed on the order of the Allahabad Bench in V.K. Sirothia 's case wherein it was held that as no additional posts are created by upgrading the posts reservation would not be applicable. At page 395 the Jabalpur Bench has extracted a portion of the order in V.K. Sirothia's case as hereunder:
"The restructuring of posts was done to provide relief on terms of promotional avenues. No additional posts were created. Some posts out of existing total were placed in higher grade to provide these avenues to the staff who were stagnating. The placement of these posts cannot be termed as creation of additional posts. There were definite number of posts and the total remained the same. The only difference was that some of these were in a higher grade. It was deliberate exercise of redistribution with the primary object of betterment of chance of promotion and removal of stagnation......
Upgradation of cadre by redistribution of posts will lose its primary objective if it is taken as generation of additional posts in the upgraded posts which it rightly is not. There has to be rationality in the implementation of directions and instructions. The criterion has to be formulated keeping the aims and safeguards in view. The keynote thought behind the exercise should not be lost sight of. It is to improve prospects, remove stagnation and provide avenues. The very purpose of defeated if the end result is anything else."
Taking into consideration facts and circumstances of the case the Jabalpur Bench held that the upgradation to DMOs did not involve either a selection or a promotion, that it is simply nomination or placing of some senior to the upgraded posts with better pay scale on the basis of seniority subject to suitability. In para 27 the Tribunal has stated as hereunder:
"27. Consequently we are of the view that in the present case the upgradation of ADMOs to DMOs involves neither a selection nor a promotion. It is simply nomination or placing of some seniors to the upgraded posts with better pay scale, on the basis of seniority subject to suitability. In the circumstances of this case placing of these few seniors to their upgraded posts with better pay scale does not amount to any fresh appointment by promotion and, moreover, these persons, so nominated to the higher grade, do not leave behind vacant their earlier posts." (Emphasis supplied)
16. When the order in Ashok Kumar Shrivastava's case was challenged in S.L.P. No. 11801 of 1987 the Supreme Court has passed the following order:
"We have heard the learned Counsel for both the parties and we have gone through the judgment of the Central Administrative Tribunal at Jabalpur Bench in Ashok Kumar Shrivastava and Ors. v. Union of India and Ors. (T.A. No. 139/86) decided on 24th March, 1987 against which this Special Leave Petition is filed. We agree with the reasons given by the Central Administrative Tribunal for the conclusion it has reached. We hereby affirm the judgment of the Central Administrative Tribunal. The Special Leave Petition is dismissed."
17. In Samsudden and Ors. v. Union of India and Ors., (supra), the Jodhpur Bench was also dealing with a case of Railways and the question that had arisen there was as to whether reservation is permissible in cases where there has been partial upgradation of posts on the restructure/reel assification of the cadre. In that case the Tribunal has not only relied on the order in Ashok Kumar Shrivastava's case but has also relied on the earlier order of the Allahabad Bench in N.K. Saini v. Director General, RDSO, O.A. No. 414/87, decided on 31.5.1988. That was also a case pertaining to Railways and it was dealing with the Railway Board's letter dated 2.8.1983 providing implementation of reservation policy even in case of partial upgradation. The Allahabad Bench in that case has held that reservation is not applicable and a portion of the order in N, K. Saint's case is extracted in Samsudden's case at page 493 as hereunder :
"The Railway Board's letter dated 2.8.1983 actually talks of no reservation in en masse upgradation while in partial upgradation of a cadre on the basis of percentage distribution, it provides for the application of the rules governing reservation as the Board interpreted that such upgradation will give additional number of higher grade posts. This logic would not seem to be correct. We have already observed that if there are no additional posts created in en masse upgradation the adoption of the concept that in partial upgradation additional posts get created would be wrong and fallacious. Upgradation cannot mean and does not mean the creation of additional posts. It is placing certain number of posts into the higher grade. If there was a creation of certain number of posts the total number of posts must have correspondingly increased but that does not happen. Therefore, we have no hesitation to say that the clause in regard to application of reservation against the additional number of higher grade posts which become available as a result of cadre restructuring in Board's letter of 2.8.1983 is uncalled for and against principles of upgradation. This qualification made by the Railway Board in their letter was uncalled for is not in consonance with the aims and objects of the philosophy of upgradation and restructuring."
It is stated that the Special Leave Petition filed against the order in Saini's case was dismissed by the Supreme Court. The Jodhpur Bench on the basis of the earlier decisions has held that reservation is not permissible where there has been partial upgradation of posts".
18. The Gujarat High Court while affirming the order of the Ahmedabad Bench in No. 0/685/99 has referred to the decision relied on by the Ahmedabad Bench and after pointing out that the Counsel appearing for the Union of India after reading the judgment delivered by the Jodhpur Bench in Samsudden's case fairly stated that he was not in a position to distinguish that case and that decision of Jodhpur Bench had been confirmed by the Apex Court, has held that it did not find any merit in the petition.
19. It would be worthwhile to extract some of the reasons given by the Jodhpur Bench in Samsudden's case as it would be pointed out later that the Supreme Court in later decisions has specifically disagreed with the main reason given by the Tribunal in the above cases to come to the conclusion that promotion is not involved in filling up upgraded posts. In para 12 in Samsudden's case this is what the Tribunal has held:
"The crux of the matter rests on the interpretation of the words 'upgradation' and 'promotion.' In case 'upgradation' is held to mean "to attain a higher stature while remaining on the same pedestal," it cannot be equated with 'promotion' which may be understood to mean "moving upwards and leaving the original pedestal." The dictionary meaning of the word upgradation in the Chambers 20th Century Dictionary, New Edition 1983 has been given as "an upward slope or course" and 'promotion' has been held to mean as "advancement in rank or in honour." Looking at the two meanings given to the words upgradation and promotion, what is made out is that upgradation involves the process of moving upwards while remaining on the same pedestal, whereas promotion results in skipping to a higher plane leaving behind the original pedestal. Thus, construed even if the premise taken by the respondents is accepted that upgradation of posts has to be effected to remove the hurdle of the stagnation mainly in the career of an employee, then it permits such an employee to receive a higher scale of pay by giving it a different nomenclature but without shifting him from his post and without clothing him with additional duties and responsibilities. Such an employee gets the benefit of the upgradation primarily on the basis of his seniority in the basic cadre and moves nearer to the step which may, ultimately fructify in his promotion to a higher post.....
20. The question as to whether appointment to higher scale in the same post would amount to promotion came up for consideration in Union of India and Anr. v. S.S. Ranade, (supra). In that case a Commandant who had been promoted as Commandant (Selection Grade) had contended that because he had been promoted to a post higher than Commandant, he was eligible for higher age of superannuation as per Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978 which stipulated that officers holding a rank higher than that of a Commandant shall retire at the age of 58 years. That was also a case where 123 posts of Commandants in the selection grade were created by replacing 123 ordinary posts of Commandants in the lower scale of pay. It was contended before the Supreme Court that as the respondent had been promoted from the post of Commandant, it necessarily meant that he had been promoted to a higher post. Dealing with that contention the Supreme Court has held as hereunder:
"This submission is based on a misunderstanding of what is meant by Selection Grade. Undoubtedly, a Commandant who becomes aCommandant (Selection Grade) secures a promotion to a higher pay scale. But, it is a higher pay scale in the same post. The use of the word 'promotion' in Rule 6 and the constitution of a Departmental Promotion Committee for selection of Com mandant (Selection Grade) in Rule 7, do not necessarily lead to the conclusion that the promotion which is contemplated there is necessarily a promotion to a higher post. Promotion can be either to a higher pay scale or to a higher post. These two rules and the use of the word 'Promotion' there do not conclude the issue."
While coming to the above conclusion the Supreme Court has referred to its earlier decision in Lalit Mohan Deb v. Union of India, (supra). In that case the Supreme Court has held that administration can provide two scales of pay in the same category of posts and that a selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotion should atleast be placed in the selection grade to prevent stagnation.
21. In State of Rajasthan v. Fateh Chand Soni, (supra) a question arose as to whether the appointment to the selection scale can be treated as promotion. The High Court while holding that it did not amount to promotion had given some reasons which have been given by different Benches of the Tribunal referred to above. In para 7 the Supreme Court has referred to the reasons given by the High Court as hereunder:
".....The High Court has held that the said appointment cannot be treated as promotion for the reason that when an officer in the Senior Scale is granted Selection Scale, he neither leaves the post which was already held by him nor he occupies any new post and the post held by him remains the same and he starts getting pay in Selection Scale instead of senior scale which, by itself, cannot confer a higher status or rank. According to the High Court, the grant of Selection Scale to a senior scale officer does not exalt his status, rank or honour and an officer does not stand elevated to any superior or commanding position over other senior scale officers. The High Court has also referred to the fact that the post of Additional Superintendent of Police held by Senior Scale Officers and officers who are being paid in the Selection Scale is interchangeable and such change or replacement and substitution by posting and transfer in the Service is a matter of routine and merely because the Government follows the process of selection to identify the officers to whom the selection scale is to be granted cannot confer a higher status so as to make it a case of promotion."
The Supreme Court has specifically disagreed with the above reasons given by the High Court and in para 8 it has been held as hereunder :
"The High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the Service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word 'promote' means "to advance to a higher position, grade, or honour." So also 'promotion' means "advancement or preferment in honour, dignity, rank, or grade." (See : Webster's Comprehensive Dictionary, International Edn., P. 1009) 'Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression 'promotion' has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post."
The Supreme Court has held that appointment to selection scale of an officer in the senior scale constitutes promotion. When contention was raised that there could not have been reservation in such promotions in view of the decision in Indra Sawhney v. Union of India (1992) 22 ATC 385, the Supreme Court has pointed out that decision has allowed the existing provisions to continue to operate for 5 years. Thus this decision clearly lays down that even in a case where a person is appointed to a higher scale it would be promotion and that in such case reservation was permissible.
22. The correctness of the decision in Fateh Chand Soni's case was sought to be questioned before the Constitution Bench in Ram Prasad and Ors. v. D.K. Vijay and Ors., (supra). The Supreme Court in para 15 did not accept that Fateh Chand Soni's case required reconsideration and further held that the reserved candidates are entitled to be promoted to the selection scale by way of roster points. However, it was made clear that the decision in R.K. Sabharwal v. State of Punjab, (1995) 29 ATC 481=1995(3) SLJ 227 (SC), will have to be adhered to while giving promotion by way of roster points.
23. In view of the above decisions of the Supreme Court including the view of the 5 Judges Bench, it can no longer be contended that an appointment to a higher scale to amount to promotion should involve creation or addition of new posts and that if in the same post a higher scale is given appointment to such higher scale would not amount to promotion. We do not find any distinction in a case where to provide promotional avenues certain number of posts in the existing cadre are given a higher scale and are treated as selection grade posts and a case where to provide promotional avenues certain per centage of posts are upgraded to a higher scale. In most of the orders passed by different Benches of the Tribunal, other than the one by Ahmedabad Bench, interpretation of certain circulars issued by the Railways was involved and one of the main reasons given in those orders for holding that reservation was not applicable with regard to the upgradation posts was that there was no addition to the number of posts. The Supreme Court while rejecting the Special Leave petition or appeal against the orders of the Tribunal has not purported to lays down any general principle that appointment to upgraded posts in no case would amount to promotion. On the facts and circumstances of the case, the Supreme Court has not interfered with the orders of the Tribunal. The decisions in Ranade 's case and Fateh Chand Soni's case lays down in clear terms that appointment to a higher scale in the same post will amount to promotion. As the view in Fateh Chand Soni's case has been approved by the Constitution Bench in Ram Prasad's case, we are clearly of the view that it cannot be contended that where to provide promotional avenues certain per centage of posts are upgraded to a higher scale question of promotion would not arise for filling up those upgraded posts. However, where there is a wholesale or mass scale upgradation of an entire cadre of posts by means of granting of ahigher scale of pay for such upgraded posts, it really amounts to the granting of a higher replacement scale. In such enbloc upgradation of posts, there would be no need for reservation as all the holders of the posts get the benefit of upgradation. But, in these cases there has been no whole sale upgradation.
24. In view of the above principles clearly laid down by the Hon'ble Supreme Court in these latter decisions, which are not based on an interpretation of any particular circular issued by a particular department, we are of the considered view that the question as to whether appointment to a upgraded post amounts to a promotion or not can be addressed effectively if the purpose of upgradation of a certain percentage or number of posts in a cadre is first ascertained and considered in this context. We are also of the firm opinion that once the basic purpose of upgradation is found to be provision of promotional opportunities, the difference in nomenclature between upgraded posts and selection grade posts becomes immaterial.
25. It is not disputed that the upgradation of 25% of the posts of Pharmacists under the Central Government Health Scheme (CGHS) as Senior Pharmacistsm, which is the background to the O.As No. 241 and 870/1999, and the creation of upgraded posts to the extent of 10% of the BCR Grade-Ill posts in the Department of Telecommunications and calling such upgraded posts as BCR Grade-IV posts, which is the context of the O.A. No. 1002/1999, have been done for the purpose of providing promotional opportunities to the Pharmacists in the CGHS and to the BCR Gr. III personnel in the Department of Telecommunications, respectively. The materials placed on behalf of the authorities before us clearly indicate that the departments concerned have also treated the dispensation providing for appointments to these upgraded posts only in the specific context of removal of stagnancy in the concerned cadre and of providing promotional opportunities for the incumbents of the posts in the cadre.
26. In this connection, we notice in particular that the Directorate of the CGHS had initially explicitly treated the appointment to the post of Senior Pharmacist from the ordinary grade of Pharmacist as a promotion and such promotions have been ordered only on the recommendations of the duly constituted Departmental Promotion Committee. It was only subsequently that the word "Promotion" was replaced by the word "Upgradation," in the sentence "the promotion in the higher scale of Senior Pharmacists shall be made on the basis of Seniority-cum-merit." Even this latter dispensation, (Annexure-R9 of the reply statement in O.As No. 241 and 870/1999), however, did not dispense with the requirement of the DPC meeting and for making the necessary recommendations for the purpose. In the case concerning the Senior Pharmacists in CGHS, the immediate provocation for that change from "Promotion" to "Upgradation" was the issue of a communication by the Directorate of CGHS dated 28.10.1998 bearing No. C. 18013/3PNE/97-CGHS.II, which is seen as Annexure-R10 of the reply statement filed in O.A. No. 241 and 870/1999, on behalf of the official respondents. In the said Annexure-RlO communication it was directed that the upgradation of 25% of the posts of Pharmacists was required to be regulated in accordance with DOPTs O.M. No. 22011/10/84-Estt. (D), dated 4.2.1992. On a perusal of that latter O.M. dated 4.2.1992, we find that on the question as to whether appointment to a upgraded post can be treated as promotion or not, the said O.M. does not throw any light whatsoever.
27. As we have already observed, the Hon'ble Supreme Court has held that for the purpose of promotion, it is not necessary to move from a certain post to a higher post or to move to a job involving higher responsibilities even at the same post. In fact, at the hearing, a decision of the Madras Bench of the Tribunal in O.A. No. 404/1998 rendered on 15.12.1999 involving the same matter of reservation for the posts of Senior Pharmacists in CGHS has been brought to our notice. We find that in that order of the Madras Bench, the reliance placed on the above mentioned O.M. of DOPT, dated 4.2.1992, by the respondent department for treating the promotion to the upgraded posts of Senior Pharmacists as mere upgradation and not amounting to promotion, has been declared as untenable and since that O.M. was found not to have any relevance for any matter with regard to the adoption of 40 point roster, the plea of the respondent department was turned down. The Madras Bench based on that reason has held there that the respondent department is bound to follow the 40 point roster, i.e., to provide for reservation for the special categories like SCs and STs with regard to the 25% upgraded posts in the pharmacists cadre which are required to be filled on seniority-cum-fitness. Similarly, we observe that the Dept. of Telecom, has always treated the BCR Gr. IV posts as promotional posts, the appointments to which are declared to be on a functional basis and thus attracting the provisions of F.R. 22(I){a)(i) regarding pay fixation.
28. Through the mechanism of grant of time-bound advancements to the higher scales of pay with different designations, or through appointments to posts which are upgraded with higher scales of pay within a given cadre, entailing creation of additional posts or not, essentially what takes place is aprocess of advancement/appointment to these higher scales of pay. We are convinced that this process can only be treated as promotion in the light of the principle laid down by the Hon' ble Supreme Court that an appointment to a higher scale of pay even at the same post and even without involving any additional responsibilities can still be a promotion. Even if in a given situation, the creation of the upgraded posts with higher scales of pay do not result in a net addition to the existing number of posts in that cadre, but is specifically and explicitly created to remove stagnation, to follows that those upgraded posts involving higher scales of pay are in effect a substitute for promotion. It is so because either through a regular promotion in terms of the Cadre and Recruitment rules or through the creation of the upgraded posts in the same cadre with a higher scale of pay what is sought to be achieved is the provision of opportunities for career advancement which, in the circumstances, is synonimous with promotional opportunities. Once this basic objective for the creation of upgraded posts is understood and appreciated, we are of the firm opinion that such provisions for career advancement through appointments to upgraded posts cannot be treated for the purpose of reservation of special categories like SCs and STs differently from appointments to posts which are designated in particular as promotional posts. In our view, it is also absolutely immaterial as to whether the mode of appointment to these upgraded posts with higher scales of pay is by selection or by merely applying the criterion of seniority subject to fitness. In fact, it is evident that appointments to a number of posts which are specifically designated as promotional posts are also made on the basis of seniority-cum-fitness. Therefore, the adoption of that latter criterion for appointment to a upgraded post by itself cannot make such an appointment as non-promotional appointment. On this score drawing a distinction between upgradation and promotion based on the nomenclature only does not appear to be tenable.
29. The fact that the contrary decision of the Ahmedabad Bench has been affirmed by the Hon'ble High Court of Gujarat, in our considered view, cannot be a factor precluding the consideration of the issues referred to this Full Bench by the aforesaid Division Bench of the Bangalore Bench of the Tribunal. The decision of the Hon'ble High Court of Gujarat, as is obvious, is not binding on the Bangalore Bench of the Tribunal though it has persuasive value. Further, when the decision of the Ahmedabad Bench, which has been affirmed by the Hon'ble High Court of Gujarat, is found to be at variance with the principles laid down by the Hon'ble Supreme Court, which have not been referred to by the Ahmedabad Bench at all, or is in conflict with the decision rendered by the Madras Bench of the Tribunal, it is all the more necessary for the Full Bench to go into the merits of these decisions of the Benches of the Tribunal.
30. In the light of the detailed discussions made by us above and in particular applying the principles laid down by the Hon'ble Supreme Court in Union of India and Anr. v. S.S. Ranade, in State of Rajasthan v. Fateh Chand Soni and in Ramprasad and Ors. v. D.K. Vijay and Ors., reported in (1995) 4 SCC 462, (1996) 1 SCC 562 and (1999) 7 SCC 251 respectively, we hold that appointment to the upgraded posts of Senior Pharmacists in CGHS and upgraded posts of BCR Gr. IV in the Department of Telecommunication amounts to promotion attracting the principle of reservation for special categories like SCs and STs.
31. In the event, we answer the 1st issue referred in to us in O.A. No.s. 241 and 870/1999 in the affirmative and in the light of that answer, the 2nd issue framed therein does not have to be specifically answered. Similarly, we answer the issue framed in O.A. No. 1002/1999 in the affirmative, meaning thereby that placing in 10% BCR Gr. IV amounts to promotion and reservation for SCs and STs in those posts is applicable.
32. The concerned O.As are now remitted to the Division Bench for further disposal in the light of our above decisions.