B. THIRUMALversusANANDA SIVAKUMAR AND ORS.

                       [2013) 14 S.C.R. 1076


A                           B. THIRUMAL
                                  v.
                ANANDA SIVAKUMAR AND ORS.
               (Civil Appeal Nos.10660-62 of 2013)
                       NOVEMBER 27, 2013
B
           [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

        Service Law:

c      Promotion - 25% quota reserved for promotion to the
  members of State Subordinate Engineering Service (Diploma
  holder Junior Engineers) - 75% quota reserved for promotion
  to the Assistant Engineers - Upgradationlre-designation of
  Junior Engineers to the post of Assistant Engineers on their
0 acquiring degree - After upgradation, degree-holder junior
  engineers/Assistant Engineers considered for promotion to
  the next post in both the categories i.e. 25% as well as 75%
  quotas """'." Held: Re-designation of junior engineers to the post
  of Assistant Engineers was only an upgradation to encourage
E them for having attained degree - It was not an re-designation
  by transfer, which would tantamount to promotion - Despite
  being re-designated as Assistant Engineer, they continued to
  hold the post of Junior Engineer - Hence consideration of
  such degree-holder redesignated Assistant Engineers for
  promotion against 25% quota cannot be found fault with -
F However, consideration of such officers against the quota of
  25% as well as 75% cannot be justified - Hence they cannot
  be considered against 75% quota.

      The appellant-a diploma-holder Engineer (Electrical)
G in the Tamil Nadu Public Works Department, filed
  representations seeking discontinuation of practice of
  Asstt. Engineers (Electrical) being empanelled for
  promotion to the post of Asstt. Executive Engineer
  (Electrical) against 25% quota reserved for the members
H                            1076
       B. THIRUMAL v. ANANDA SIVAKUMAR               1077


of Subordinate Engineering Service (to which the post of      A
Junior Engineer belonged) because the same was
against State Engineering Service. The plea of the
appellant was that though some vacancies in the cadre
of Asstt. Executive Engineers were earmarked for Junior
Engineers, the same were being filled up by appointment       B
of re-designated Asstt. Engineers. The representations
were rejected by the authorities concerned.

    He filed writ petitions seeking direction reserved for
the members of Subordinate service i.e. diploma-holder        C
Junior Engineers. Single Judge of High Court allowed
both the writ petitions. The order of the Single Judge was
set aside by Division Bench of High Court. Hence the
present appeals.

     The respondents inter alia contended that re-            D
designation of diploma-holder Junior Engineers
(Electrical) as Asstt. Engineers (Electrical) upon their
acquiring decree was not re-designation by· transfer, but
it was simple re-designation on the basis of their higher
qualification and such re-designation did not snap their      E
lien with their parent service i.e. Subordinate Engineering
Service and thus they continued to be eligible for
promotion against 25% quota meant for Subordinate
Engineering Service despite their re-designation as Asstt.
Engineers (Electrical).                                       F

    Dismissing the appeals, the Court

     HELD: 1.1. No reference to the Tamil Nadu State
Public Service Commission was made nor was any other
process of selection undertaken for re-designation of         G
degree holder Junior Engineers, 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     H
   1078    SUPREME COURT REPORTS            (2013] 14 S.C.R.


A 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
B 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
c (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. Even the duties of such re-designated officers
  remained the same as before. According to the State
0
  Government, the two positions viz. Junior Engineer
  (Electrical) and Assistant Engineer (Electrical) are
  synonymous insofar as the nature of work and duties are
  concerned. There is no element of recruitment to the
  State Engineering Service by direct recruitment or by
E transfer. Those re-designated did not stand appointed
  to the cadre of Assistant Engineers (Electrical) in State
  Service. [Paras 14 and 15] [1090-G,1091-0-E]

      1.2. Upgradation which is synonymous to re-
F designation in the facts of the present 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
G 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,
H it will be upgradation. But if advancement to a higher
       B. THI RU MAL v. ANANDA SIVAKUMAR             1079


pay-scale without change of post is accompanied by           A
some process which has the element of selection, then
it will be a promotion to a higher pay-scale. [Para 16]
[1094-F-H; 1095-A-B]
     1.3. The rationale behind upgradation not being
considered tantamount to promotion would apply with          B
full force even to a case where the upgradatioh/
redesignation is sought to be termed as a case of
recruitment by transfer. If the process of u·pgradation/
redesignation has no correlation to the vacancies
available in the State Engineering Service and if such       c
upgradation/redesignation is granted as a matter of
course without any selection process· and merely on the
incumbent acquiring a degree qualification, such
upgradation/redesignation should not be treated as a
case of appointment to the said service by transfer. What    D
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. [Para 17] [1095-0-
F]                                                           E
     1.4. The upgradation/re-designation 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         F
designation and better emoluments for the incumbents
but neither of those two benefits co.uld constitute
promotion or recruitment by transfer. [Para 18] [1095-G-
H, 1096-A]
    .1.5. It is true that the State has shown the upgraded   G
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    H
   1080    SUPREME COURT REPORTS            [2013] 14 S.C.R.


A 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-
B designated officers for promotion even against 25%
  quota meant for the Junior Engineers ser.ving in the
  Subordinate Service. [Para 19) [1096-8-D]

       BSNL vs. R. Santhakumari Velusamy and Ors. AIR 2011
C SC 3793: 2011 (14) SCR 502; Union of India vs. S.S. Ranade
  (1995) 4 SCC 462: 1995 (3) SCR 773; Union of India vs. V.K.
  Sirothia (2008) 9 SCC 283; La/it Mohan Deb and Ors. vs.
  Union of India and Ors. (1973) 3 sec 862 - relied on.

      2.1. The High Court has, while dealing with the
D 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
E disadvantage to diploma-holder Junior Engineers, or to
  directly recruited Assistant Engineer§i4Para
                                      _,       20) [1096-E-
  F]

       2.2. An incumbent in service cannot hold lien in two
  different cadres at once. It is also not correct to say that
F 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
G 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 ~ecause
H he had acquired a degree qualification. The State has
       8. THIRUMAL v. ANANDA SIVAKUMAR                 1081


made it clear in the additional affidavit filed on its behalf   A
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      s
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            c
cannot be members of the Subordinate Service and State
Service both, at one and the same time. [Para 21] [1098-
D-H, 1099-A-B]

     2.3. Thus, the degree holder Junior Engineers
continue to be members of the Subordinate Engineering           D
Service even after they are redesignatesf 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             E
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.        F
However, the Court does not propose to interfere with
what has been done in the past especially when there is
no challenge before this Court to the appointment of the
re-designated Assistant Engineers as Assistant Executive
Engineers against vacancies falling in 75% quota. [Para         G
22] [1099-B-E]
                     Case Law Reference:
    2011 (14) SCR 502           relied on           Para 15
                                                                H
    1082    SUPREME COURT REPORTS               [2013) 14 S.C.R.


A       1995 (3) SCR 773            relied on            Para 15
        (2008) 9 sec 283           ·relied on            Para 15

        (1973) 3 sec 862            relied on            Para 15

B       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    10660-10662 of 2013.

        From the Judgment and Order dated 04.08.2009 of the
    High Court of Judicature at Madras in Writ Appeal Nos. 1155,
    1156 and 1346 of 2008.
c
       M.N. Krishnamani, Nikhil Swami, Konar Tyaki, Prabha
    Swami, for the Appellant.

      C. Selvaraju, Anil Kaushik, Arunima Dwivedi, G.S
  Chauhan, Shiv Prakash Panday, B.Balaji, R. Rakesh Kr.
D Sharma, G. Natarjan, R.Ramesh, A. Sumathi, Advs. for the
  Respondents: ·

        The Judgment of the Court was delivered by:

E       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
F 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
G 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
H Service"). Aggrieved by the prevalent practice of Assistant
        B. THIRUMAL v. ANANDA SIVAKUMAR                     1083
                 [T.S. THAKUR, J.]

Engineers (Electrical) being empanelled for promotion to the         A
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         B
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             c
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       D
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.
                                                                     E
     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        F
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                G
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,         H
    1084    SUPREME COURT REPORTS               [2013] 14 S.C.R.


A 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
B 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
c 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
D 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
E 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
F 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
G 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
H (Electrical) upon their acquiring a degree qualification was
        B. THIRUMAL v. ANANDA SIVAKUMAR                     1085
                 [T.S. THAKUR, J.]

tantamount to recruitment by transfer within the meaning of the      A
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
                                                                     B
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   C
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.                                   D

     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. E
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 F
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 G
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.
                                                                 H
    1086    SUPREME COURT REPORTS                [2013] 14 S.C.R.


A      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.
B 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
c 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
D 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
E       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."

F         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
G Assistant Executive Engineer. The State was further directed
   to indicate whether upon re-designation the Junior Engineers
   1:1re 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
H
        B. THI RU MAL v. ANANDA SIVAKUMAR                   1087
                   [T.S. THAKUR, J.]

directed to be filed. An additional affidavit pursuant to the said   A
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   B
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:                                                  c
     "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          D
     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    E
     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:       F

     "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 G
     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 H
    1088     SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A        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
8
    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.
c
         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
0   (Electrical) in Category-II and Assistant Engineers (Electrical)
    comprising Category-Ill. 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
E        by the methods specified in column (2) thereof:-
                                 TABLE

              Category               Method of recruitment
                ( 1)                       (2)
F   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
G                                    in the Tamil Nadu Electrical
                                     Inspectorate service.
    2.   Assistant Executive         (i) By promotion from Assistant
         Engineer (Electrical)       Engineer (Electrical) in category 3;
                                     or
                                     (ii) By recruitment by transfer from
H
        B. THIRUMAL v. ANANDA SIVAKUMAR                                1089
                 [T.S. THAKUR, J.]

                                     me category OT Junior t:ngmeer              A
                                      (Electrical) in the Tamil Nadu
                                      Engineering Subordinate Service or
                                      from the category of Assistant
                                      Electrical Inspector in the Tamil
                                      Nadu Electrical Inspectorate
                                      service; or                                B
                                     (iii) By direct recruitment, if qualified
                                     hands are not available for
                                     appointment by the above methods.

3.   Assistant Engineer (Electrical) (i) By direct recruitment; or
                                      (ii) By recruitment by transfer from       c
                                      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        D
                                      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                                 E
     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
                                                                                 F
     (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                     G
     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
                                                                                 H
    1090         SUPREME COURT REPORTS              [2013) 14 S.C.R.


A   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
B   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
c   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
0
    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
E   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
F   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
G    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
H                  application filed by the incumbent.
        B. THIRUMAL v. ANANDA SIVAKUMAR                    1091
                 [T.S. THAKUR, J.]
     (ii)    The re-designation is granted with effect from the     A
             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              B
             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    C
             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.               o
      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.      E
Considerable support for that conclusion is available from the
decision of this Court in BSNL v. R. Santhakumari Ve/usamy
& 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              F
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           G
granted on the basis of seniority in the basic grade from
amongst the officers in Grade Ill 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            H
    1092    SUPREME COURT REPORTS                [2013] 14 S.C.R.


A 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
B 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
c 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
0 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
E (1995) 4 SCC 462, Union of India v. V.K. Sirothia (2008) 9
  SCC 283 and La/it 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
F       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
G
        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
H
   B. THIRUMAL v. ANANDA SIVAKUMAR                   1093
            [T.S. THAKUR, J.] .

a higher pay scale - are described by the common term         A
'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
                                                              8
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.
                                                              c
(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           D
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      E
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.                                        F
(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 G
empl~yees 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
                                                          H
    1094    SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A       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
B       and the elimination may still be a parl 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
c       (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.

D       (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
E       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."
F       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. ln
G 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,
H
        8. THIRUMAL v. ANANDA SIVAKUMAR                    1095
                 [T.S. THAKUR, J.]
without undergoing any process of selection, it will be             A
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              B
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           c
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         D
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           E
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)        F
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       G
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
                                                                    H
    1096    SUPREME COURT REPORTS                 [2013) 14 S.C.R.

A 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
B 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
C 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
D 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.

E        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
F 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-
G        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
H        he is stealing .march over the Diploma-holder Junior
   B. THIRUMAL v. ANANDA SIVAKUMAR                  1097
            [T.S. THAKUR, J.]

Engineers who continue as such in as much as such a          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              B
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      c
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.
                                                             D
       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    E
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    F
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         G
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.                           H
    1098    SUPREME COURT REPORTS                [2013] 14 S.C.R.


A             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
B
        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
c       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
D       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
E   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
F   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
G   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
H   Court has held that the redesignated Assistant Engineers did
        B. THIRUMAL v. ANANDA SIVAKUMAR                    1099
                 [T.S. THAKUR, J.)
not because of redesignation become full-fledged members of         A
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.
                                                                    B
     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       C
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,    D
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%      E
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.
                                                                    F
Kalpana K. Tripathy                            Appeals dismissed.