Supreme Court of India
BHARAT SANCHAR NIGAM LTD.versusR. SANTHAKUMARI VELUSAMY & ORS.
- Citation
- 2011 INSC 656
- Decided
- 6 September 2011
- Disposal
- Appeal(s) allowed
- Bench
- R V RAVEENDRAN
Holding
Upgradation of existing posts without creation of new posts and without a selection process does not attract reservation provisions under Articles 16(4) and 16(4A).
Summary
The Supreme Court examined whether the Biennial Cadre Review (BCR) scheme of the telecom department, which upgraded the pay scale of the senior 10% of Grade III employees without creating new posts, attracted reservation provisions under Articles 16(4) and 16(4A) of the Constitution. The Court distinguished upgradation from promotion, holding that upgradation confers only a financial benefit without a change in duties or a selection process. Since the BCR scheme involved only seniority‑based screening for fitness and did not create additional posts, it was deemed an upgradation simplicitor, not a promotion. Consequently, the reservation rules did not apply. The Court set aside the High Court and Tribunal orders that had treated the scheme as a promotion and dismissed the original applications challenging the telecom department’s order of 8 September 1999.
Issues considered
- Whether the BCR upgradation scheme constitutes a promotion for the purpose of Articles 16(4) and 16(4A).
- Whether reservation provisions apply to upgradation of existing posts that do not involve creation of new posts.
- Whether the screening process under the BCR scheme amounts to a selection process that would trigger reservation.
Legislation cited
- Constitution of Indias. Article 16(4), s. Article 16(4A)
Subjects
service lawupgradationpromotionreservationArticle 16(4)Article 16(4A)civil serviceBCR schemeseniorityselection process
Judgment
[2011] 14 (ADDL.) S.C.R. 502
A BHARAT SANCHAR NIGAM LTD.
v.
R. SANTHAKUMARI VELUSAMY & ORS.
(Civil Appeal Nos. 5286-87 of 2005)
SEPTEMBER 6, 2011
B
[R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ.]
Service Law - Upgradation - Applicability of reservation
provisions - Biennial Cadre Review (BCR) Scheme - Nature
C of - Held: As upgradation involves neither appointment nor
promotion, it will not attract reservation - Upgradation involves
mere conferment of financial benefits by providing a higher
scale of pay - If there is mere upgradation of posts, as
contrasted from promotion, reservation provisions would not
D apply - However, where the upgradation does not involve
appointment to a different or higher post, but is as a result of
a promotional process involving selection, then the principles
of reservation are attracted - In the instant case, the BCR
scheme in question was an upgradation scheme to give relief
E against stagnation - It did not involve creation of any new
posts - It did not involve advancement to a higher post - It
did not involve any process of selection for conferment of the
benefit of higher pay-scale - The upgradation was given to
the senior most 10% of BCR scale employees in Grade Ill
F strictly as per seniority - The BCR scheme was a scheme for
upgradation simplicitor without involving any creation of
additional posts or any process of selection for extending the
benefit - Such a scheme of upgradation did not invite the
rules of reservation - Constitution of India, 1950 - Article
G 16(4) and 16(4A).
Service Law - Promotion and upgradation -
Distinguished - Principles relating to applicability of rules of
reservation - Discussed.
H 502
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 503
VELUSAMY
The appellant is the successor of the Department of A
· Telecommunications, Ministry of Communications, and
Government of India (for short 'government' or 'telecom
department'). There were four grades of employees of
telecom departments. Promotions from one grade to a
higher grade were on the basis of seniority/departmental 8
examination. The telecom department introduced an 'One
Time-Bound Promotion' scheme ('OTBP scheme') in the
year 1983-84 under which regular employees who had
completed 16 years of service in a grade, were placed in
the next higher grade. After some years, the employees C
unions demanded a second time-bound promotion on
completion of 26 years of service in the basic· grade, as
Group C and Group D cadres were only entitled to one-
time bound promotion. The government decided that a
second time bound promotion was not feasible.
However, to provide relief from stagnation in the grade, D
the government decided to have a Biennial Cadre Review
('BCR') under which a specified percentage of posts
could be upgraded on the basis of functional justification.
The BCR scheme was accordingly introduced vide E
Circular dated 16.10.1990. It was made applicable to those
cadres in Group C and Group D, for which one-time
bound promotion scheme on completion of 16 years of
service in the basic grade was in force. Under the said
scheme, employees who were in regular service as on F
1.1.1990 and had completed 26 years of satisfactory
service in the basic cadres, were to be screened by a duly
constituted Committee to assess their performance and
determine their suitability for advancement and if they
were found suitable, to be upgraded in the higher scale. G
The upgradation was restricted to 10% of the posts in
Grade Ill.
The circular of the telecom department dated 1.3.1996
applying rules of reservations to promotions to Grade IV
H
504 ·SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A under BCR was challenged by the All India Non SC/ST
Telecom Employees Association on the ground that
principles of reservation would not apply for upgradation
of existing posts which did not carry any change in
duties and responsibilities. The Central Administrative
Tribunal, Ahmedabad Bench held that the department
8
could not apply reservation rules while upgrading the
posts under the BCR scheme and directed the
department to take appropriate action for effecting
promotions to the upgraded posts without applying the
C reservation roster. The writ petition filed by the
government challenging the said order of the Tribunal
(Ahmedabad Bench) was dismissed by the Gujarat High
Court. In view of the said decision, the Government
issued an order dated 8.9.1999 directing that a Review
DPC be held and all ineligible officers wrongly promoted
D to Grade IV by application of reservation roster as per
office order dated 1.3.1996, should be reverted back and
all eligible officers should be placed in Grade IV and their
pay should be fixed notionally. As a consequence of the
said Circular dated 8.9.1999, the contesting respondents
E were reverted from Grade IV to Grade Ill.
The contesting respondents fil_ed applications before ·
the Madras Bench of the Tribunal. They challenged the
validity of the said order dated 8.9.1999 and sought its
F quashing and also sought a direction to the government
to permit them to continue in Grade IV. Similar
applications were filed before the Tribunal's Bangalore
Bench. A Full Bench of the Tribunal at Bangalore allowed
the applications. The Full Bench of the Tribunal differed
G from the decision of its Ahmadabad Bench and held that
the decision of the Gujarat High Court affirming the said
decision was also of no assistance as it was at variance
with the decisions of this Court. It held that the BCR
upgradation to Grade IV in the telecom department
H
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 505
VELUSAMY
amounted to promotion, attracting reservation for SCs A
and STs.
Following the said decision of the Full Bench of the
Tribunal, the Madras Bench of the Tribunal allowed the
applications filed by the contesting respondents and 8
directed the government to restore the contesting
respondents to their promoted posts which they were
holding before the order dated 8.9.1999. The
Telecommunication Department challenged the said order
of the Tribunal by filing a batch of writ petitions before
the Madras High Court. The Madras High Court dismissed · C
. the writ petitions upholding the order of. the Tribunal.
In the instant appeals the appellant contended that
there is a clear distinction between upgradation and
promotion; that the BCR scheme introduced as per order D
dated 16.10.1990 was a scheme of upgradation and not
promotion; that where there is only upgradation of
existing posts, with creating additional posts, principles
of reservation would not apply and that the Tribunal and
the High Court committed a serious error by treating E
upgradation as a promotion to which reservation"rules
would apply.
Allowing the appeals, the Court
. HELD:1.1. Article 16(4) of the Constitution enables F
the State to make any provision for reservation of
appointment or posts in favour of any backward classes
of citizens. Article 16(4A) enables the State to make ·any
provision for reservation in matters of promotion, with
consequential seniority, to any class or classes of posts G
in the services under the State in favour of Scheduled
Castes and Scheduled Tribes, which in the opinion of the
State, are not adequately represented in the services
under the State. As upgradation involves neither
appointment nor promotion, it will not attract reservation. H
506 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Upgradation involves mere conferment of financial
benefits by providing a higher scale of pay. If there is
mere upgradation of posts, as contrasted from
promotion, reservation provisions would not apply. [Para
11] [518-C-E]
8
1.2. However, where the upgradation does not
involve appointment to a different or higher post, but is
as a result of a promotional process involving selection,
then the principles of reservation are attracted. [Para 19]
C [527-B-C]
1.3. The following principles emerge relating to
promotion and upgradation:
(i) Promotion is an advancement in rank or grade or
D both and is a step towards advancement to higher
position, grade or honour and dignity. Though in the
traditional sense promotion refers to advancement
to a higher post, in its wider sense, promotion may
include an advancement to a higher pay scale
without moving to a different post. But the mere fact
E
that both - that is advancement to a higher position
and advancement to a higher pay scale - are
described by the common term 'promotion', does not
mean that they are the same. The two types of
promotion are distinct and have different
F connotations and consequences;
(ii) Upgradation merely confers a financial benefit by
raising the scale of pay of the post without there
being movement from a lower position to a higher
G position. In an upgradation, the candidate continues
to hold the same post without any change in the
duties and responsibilities but merely gets a higher
pay scale;
(iii) When there is an advancement to a higher pay
H
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 507
VELUSAMY
scale without change of post, it may be referred to A
as upgradation or promotion to a higher pay scale.
But there is still difference between the two. Where
the advancement to a higher pay-scale without
change of post is available to everyone who satisfies
the eligibility conditions, without undergoing any B
process of selection, it will be upgradation. But if the
advancement to a higher pay-scale without change
of post is as a result of some process which has
elements of selection, then it will be a promotion to
a higher pay scale. In other words, upgradation by c
application of a process of selection, as ~ontrasted
from an upgradation simplicitor can be said to be a
promotion in its wider sense that is advancement to
a higher pay scale;
(iv) Generally, upgradation relates to and applies to D
all positions in a category, who have completed a
minimum period of service. Upgradation, can also be
restricted to a percentage of posts in a cadre with
reference to seniority (instead of being made
available to all employees in the category) and it will E
still be an upgradation simplicitor. But if there is a
process of selection or consideration of comparative
merit or suitability for granting the upgrad~tion or
" benefit of advancement to a higher pay scale, it will
be a promotion. A mere screening to eliminate such F
employees whose service records may contain
adverse entries or who might have suffered
punishment, may not amount to a process of
selection leading .to promotion and the elimination
may still be a part of the process of upgradation G
simplicitor. Where the upgradation involves a
process of selection criteria similar to those
applicable to promotion, then it will, in effect, be a
promotion, though termed as upgradation;
(v) Where the process is an upgradation simplicitor, H
508 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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 and
(vi) Where there is a restructuring· of some cadres
B
resulting in creation of additional posts and filling of
those vacancies by those who satisfy the conditions
of eligibility which includes a minimum period of
service, will attract the rules of reservation. On the
other hand, where the restructuring of posts does
c 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. [Para
21] [529-F-H; 530-A-H; 531-A-D]
D
All India Employees Association (Railways) vs. V.K.
Agarwal 2001 (10) SCC 165; Union of India vs. V. K. Sirothia
2008 (9) SCC 283; La/it Mohan Deb v. Union of India 1973
(3) SCC 862; Tarsen Singh vs. State of Punjab 1994 (5) SCC
E 392: 1994 (1) Suppl. SCR 452; Union of India vs. S.S.
Ranade 1995 (4) SCC 462: 1995 (3) SCR 773; State of
Rajasthan vs. Fateh Chand Soni 1996 (1) SCC 562: 1995
(6) Suppl. SCR 559; Dayaram Asanand Gursahani v. State
of Maharashtra 1984 (3) SCC 36: 1984 (2) SCR 703; Ram
F Prasad vs. D. K. Vijay 1999 (7) SCC 251: 1999 (2) Suppl.
SCR 576; Union of India vs. Pushpa Rani 2008 (9) SCC 242:
2008 (11) SCR 440 - relied on.
N. G. Prabhu vs. Chief Justice, Kera/a High Court 1973
(2) Lab. IC 1399 - referred to.
G
2.1. The BCR scheme did not involve creation of
additional posts but merely restructured the existing
posts as a result of which 10% of the posts in Grade Ill
were placed in a higher grade (Grade IV) to give relief
H against stagnation. This is evident from the terms of the
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 509
VELUSAMY
BCR scheme and the clarification contained in the letter A
· dated 7.5.1993 that no posts were sanctioned, as far as
10% BCR was concerned. [Para 22] [531-E-F]
2.2. The BCR scheme dated 16.10.1990 provided that
the persons who had completed 26 years of service 8 .
would be screened by a duly constituted Review
Committee to assess the performance and suitability for
advancement. The screening was for the limited purpose
of finding out whether the service record of the employee
contained any adverse entries or whether the employee C
had suffered punishment. The screening process did not
involve consideration of comparative merit nor involve
any selection. The 10% posts were upgraded strictly by
seniority subject to screening. This is evident from the
terms of BCR scheme and the Circular dated 13.12.1995
which provided that the promotions to Grade IV were to D
be based on seniority in the basic grade from among the
officers in Grade Ill, subject to fitness determined as per
OTBP manner, that is screening to ascertain whether
there are any adverse comments or punishment against
the employee concerned. [Para 23] [531-G-H; 532-A-B] E
2.3. The BCR scheme was an upgradation scheme
to give relief against stagnation. It did not involve creation
of any new posts. It did not involve advancement to a
higher post. It did not involve any process of selection F
for conferment of the benefit of higher pay-scale. The
upgradation was given to the senior most 10% of BCR
scale employees in Grade Ill strictly as per seniority. BCR
scheme as per circular dated 16.10.1990 was thus a
scheme for upgradation simplicitor without involving any G
creation of additional posts or any process of selection
for extending the benefit. Such a scheme of upgradation
did not invite the rules of reservation. [Para 24) [532-D-E]
3. The orders of the ·High Court and the Tribunal are
accordingly set aside and the Original Applications H
510 SUPREME COURT REPORTS [2011] 14 (ADDL) S.C.R.
A challenging the order of the telecom department dated
8.9.1999 are dismissed. [Para 25) [532-F]
Case Law Reference:
1995 (3) SCR 773 relied on Para 8
B
1913 (3) sec 862 relied on Para 8
1995 (6) Suppl. SCR 559 relied on Para 8, 17
1999 (2) Suppl. SCR 576 relied on Para 8,16
c 2001 (10) sec 165 relied on Para 10, 11
2008 (9) sec 283 relied on Para 11
1994 (1) Suppl. SCR 452 relied on Para 12
D 1973 (2) Lab. IC 1399 referred to Para 15
1984 (2) SCR 703 relied on Para 18
2008 (11) SCR 440 relied on Para 20
CIVIi... APP ELLATE JURISDICTION : Civil Apr>eal Nos.
E 5286-5287 of 2005.
From the Judgment & Order dated 18.10.2004 of the High
Court of Judicature at Madras in W.P. Nos. 11880 and 11881
of 2001.
F
WITH
C.A. Nos. 3405, 4542, 4543, 4544, 4545 & 4546 of 2006.
R.D. Agrawala, Pavan Kumar, Prithvi Pal, Jayanth Muth
G Raj, Malavik G., C.K. Sasi, Kiran Suri, Madhu Moolchandani,
S.D. Dwarakanath, Dr. Kailash Chand for the aopearing parties.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. The appellant, Bharat Sanchar
H.
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 511
VELUSAMY [R.V. RAVEENDRAN, J.]
Nigam Ltd., is the successor of the Department of A
Telecommunications, Ministry of Communications,· and
Government of India (for short 'government' or 'telecom
..
department'). The question involved in these matters is whether
rules of reservation will apply to upgradation of posts.
B
2. There were four grades of employees of telecom
departments known as Telegraphists or Telecom Operating
Assistants in the Telecom Department. Promotions from one
grade to a higher grade were on the basis of seniority/
departmental examination. The telecom department introduced C
an 'One Time-Bound Promotion' scheme ('OTBP scheme' for
short) in the year 1983-84 under which regular employees who
had completed 16 years of service in. a grade, were placed in
the next higher grade. After some years, the employees unions
demanded a second time-bound promotion on completion of
26 years of service in the basic grade, as Group C and Group D ·
D cadres were only entitled to one-time bound promotion. The
government decided that a second time bound promotion was
not feasible. However, to provide relief from stagnation in the
grade, the government decided to have a Biennial Cadre
Review ('BCR' for short) under which a specified percentage E
of posts could be upgraded on the basis of functional
justification.
3. The BCR scheme was accordingly introduced vide
Circular dated 16.10.1990. It was made applicable to those F
cadres in Group C a~d Group D, for which one-time bound
promotion scheme on completion of 16 years of service in the
basic grade was in force. Under the said scheme, employees
who were in regular service as on 1.1.1990 and had completed
. 26 years of satisfactory service in the basic cadres, were to G
be screened by a duly constituted Committee to assess their
performance and determine their suitability for advancement
· and if they were found suitable, to be upgraded in the higher
scale. The upgradation was restricted to 10% of the posts in
Grade Ill. We extract below the relevant terms of the BCR from
H
512 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A the Circular dated 16.10.1990:
"
(iii) Biennial Cadre Reviews will be conducted in respect
of the eligible cadre at the level of circles who control these
B cadres.
(iv) At the time of review the number of officials who have
completed/would be completing 26 years of service in the
basic cadres including time spend in higher scale (OTBP)
will be ascertained. The persons will be screened by the
c duly constituted Review committee to assess the
performance and suitability for advancement.
(v) In the Biennial cadre review, suitable number of posts
will be created by upgradation based on functional
D justification.
(vi) Creation of posts by upgradation will be in the scales
indicated below:
Basic scale of Scale after Scale after BCR on .
the cadre OTBP after completion of 26 years or
E 16 years of more
basic grade
750-940 800-1150 950-1400
825-1200 950-1400 1200-1800
F 975-1540 1320-2040 1400-2600
975-1600 1400-2300 1600-2660
(10% of the posts in the
pay scale of 1600-2660
will be in the pay scale of
G Rs.2000-3200
1320-2040 1600-2600 1640-2900
(10% of the posts in the
pay scale of 1640-2900
will be in the pay scale of
H Rs.2000-3200)
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 513
VELUSAMY [RV RAVEENDRAN, J.] ·.
(vi) xxx xxx xxx A
(viii) Necessary posts will be created by upgradation under
the powers of CGMs in consultation with their accredited
finance.
(ix) The first Biennial Cadre Review for eligible cadres/ · 8
officials may be conducted immediately covering the
period upto 30.6.1992 to ascertain the eligible officials
who have completed/will be completing 26 years of
services or more as on the crucial dates, namely, the date
of the review 01.1.1991, 01.7.1991 and 01.1.1992. The C
number of posts needed or provide for the promotion of
the eligible persons will be determined and will be
sanctioned/activated in four instalments the first
immediately, the second on 01.9.1991, the third on
01. 7 .1991 and the fourth on 01.1.1992. With these posts, D
it should be possible be provide for promotion of those
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. E
Order implementing the first instalment of cadre review
should be issued before 30.11.1990.
In the second cadre review, which will cover the period from
1.7.1992 to 30.6.1994, which should be completed before F
01. 7.1992, the required number of posts needed to be
released in half yearly instalments on 1. 7 .1992, 1.1.1993,
1. 7. 1993 and 1.1.1994 to cater for promotion of those who
would have completed 26 years of service on the four
cn~cial dates, will be ascertained and sanctions released G
in appropriate instalment so that the promotions of eligible
personnel could be notified on due dates.
"
4. The Government issued the following clarification H
514 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A regarding designations by circular dated 11.3.1991:
State of Entry Grade allotted
(i) Initial Entry (Basic grade) Grade I
(ii) OTBP scale Grade II
B (iii) BCR scale Grade Ill
(iv) 10% of posts in BCR pay scales Grade IV
to be placed in pay scale of 2000-3200
By letter dated 7.5.1993, the telecom department clarified that
C there were no sanctioned posts in regard to 10% BCR and the
number of posts depend upon the number of BCR officials
available; and that therefore no local officiating arrangement
could be made if an official in the 10% BCR retired before the
next review.
D
5. By circular dated 13.12.1995, the government
formulated the procedure regarding promotion to Grade IV.
Under the said procedure, promotions to Grade IV were to be
based on seniority in the basic grade from among the officers
E in Grade Ill subject to fitness determined in the usual manner
of OTBP. By a clarificatory Circular dated 1.3.1996, the
government issued a clarification that promotion to Grade IV
would be given from among officials in Grade Ill on the basis
of their seniority in the basic grade, subject to fulfillment of other
conditions and that normal rules of reservation would apply to
F promotions in Grade IV.
6. The circular of the telecom department dated 1.3.1996
applying rules of reservations to promotions to Grade IV under
BCR was challenged by the All India Non SC/ST Telecom
G Employees Association on the ground that principles of
reservation would not apply for upgradation of existing posts
which did not carry any change in duties and responsibilities.
The Central Administrative Tribunal, Ahmadabad Bench by its
order dated 11.4.1997 (OA No.623/1996 - All India Non-
H Schedule Caste/Schedule Tribe Telecom Employees
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 515
VELUSAMY [R.V. RAVEENDRAN, J.)
Association v. Union of India) held that the department could A
not apply reservation rules while upgrading the posts under the
BCR scheme and directed the department to take appropriate
action for effecting promotions to the upgraded posts without
applying the reservation roster. The writ petition (SCA No. 7576
of 1997) filed by the government challenging the said order of B
the Tribunal (Ahmedabad Bench) was dismissed by the Gujarat
High Court by order dated 24.3.1999. In view of the said
decision, the Government issued an order dated 8.9.1999
directing that a Review DPC be held and all ineligible officers
wrongly promoted to Grade IV by application of reservation c
roster as per office order dated 1.3.1996, should be reverted
back and all eligible officers should be placed in Grade IV and
their pay should be fixed notionally. As a consequence of the
said Circular dated 8.9.1999, the contesting respondents were
reverted from Grade IV to Grade Ill.
D
7. Feeling aggrieved, the contesting respondents filed
applications before the Madras Bench of the Tribunal. They
challenged the validity of the said order dated 8.9.1999 and
sought its quashing and also sought a direction to the
government to permit them to continue in Grade IV. Similar E
applications were filed before the Tribunal's Bangalore Bench.
A Full Bench of the Tribunal at Bangalore allowed the
applications by order dated 26.4,2000. It held :
"Through the mechanism of grant of time-bound F
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 a process of advancement/appointment to G
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
H
516 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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
B 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
c be achieved is the provision of opportunities for career
advancement which, in the circumstances, is synonymous
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
D
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
E 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
F 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
G only does not appear to be tenable."
8. The Full Bench of the Tribunal differed from the decision
of its Ahmadabad Bench and held that the decision of the
Gujarat High Court affirming the said decision was also of no
H assistance as it was at variance with the decisions of this Court
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 517
VELUSAMY [RV. RAVEENDRAN, J.j
in Union of India vs. S.S.. Ranade - 1995 (4) SCC 462, La/it A
Mohan Deb v. Union of India - 1973 (3) SCC 862, State of
Rajasthan vs. Fateh Chand Soni - 1996 (1) SCC 562, and
Ram Prasad vs. D. K. Vijay - 1999 (7) SCC. 251. It held that
the BCR upgradation to Grade IV in the telecom department
amounted to promotion, attracting reservation for SCs and STs. B
9. Following the said decision of the Full Bench of the
Tribunal, the Madras Bench of the Tribunal by order dated
25.7.2000 allowed the applications filed by the contesting
respondents herein and directed the government to restore the C
contesting respondents to their promoted posts which they
were holding before the order dated 8.9.1999. The
Telecommunication Department challenged the said order of
the Tribunal by filing a batch of writ petitions before the Madras
High Court. The Madras High Court, by the impugned order
dated 18.10.2004, dismissed the writ petitions upholding the D
order of the Tribunal.
10. The said order is challenged in these appeals by
special leave by the appellant. The appellant has put forth the
following contentions : E
(i) There is a clear distinction between upgradation and
promotion. While promotion involves advancement in rank,
grade or both and is always a step towards advancement
to higher position, grade or honour, upgradation does not F
involve promotion to a higher position and the pedestal of
the employee remains the same and the employee is
merely conferred some financial benefits by granting a
higher pay scale, to overcome stagnation. The BCR
scheme introduced as per order dated 16.10.1990 was a
scheme of upgradation and not promotion. G
(ii) Where there is only upgradation of existing posts: with
creating additional posts, principles of reservation would
not apply. The Tribunal and the High Court committed a
serious error by treating upgradation as a promotion to H
518 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A which reservation rules would apply. The Tribunal and the
High Court ought to have followed the decision oHhis Court
in All India Employees Association (Railways) vs. V.K.
Agarwal - 2001 (10) SCC 165 and the decision of the
Gujarat High Court dated 24.3.1999 in Special Civil
B Application No.7576 of 1997 - Union of India vs. All India
.Non SC/ST Telecom Employees Association.
11. Article 16(4) enables the State to make any provision
for reservation of appointment or posts in favour of any
C backward classes of citizens. Article 16(4A) enables the State
to make any provision for reservation in matters of promotion,
with consequential seniority, to any class or classes of posts
in the services under the State in favour of Scheduled Castes
and Scheduled Tribes, which in the opinion of the State, are
not adequately represented in the services under the State. As
D upgradation involves neither appointment nor promotion, it will
not attract reservation. Upgradation involves mere conferment
of financial benefits by providing a higher scale of pay. If there
is mere upgradation of posts, as contrasted from promotion,
· reservation provisions would not apply. [See : A// India
E Employees Association (Railways) vs. V.K. Agarwal - 2001
(10) SCC 165 and Union of India vs. V. K. Sirothia - 2008 (9)
SCC 283]. In V.K. Agarawal this Court held :
"It appears from all the decisions so far that if as a result
F of reclassification or readjustment, there are no
additional posts which are created and it is a case of
upgradation, then the principle of reservation will not be
applicable. It is on this basis that this Court on 19.11.1998
had held that reservation for SC and ST is not applicable
in the upgradation of existing posts and CA No.1481 of
G
1996 and the connected matters were decided against the
Union of India. The effect of this is that where the total
number of posts remained unaltered, though in different
scales of pay, as a result of regrouping and the effect of
which may be that some of the employees who were in the
H
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 519
VELUSAMY [R.V. RAVEENDRAN, J.]
scale of pay of Rs.~50- 700 will go into the higher scales, A
it would be a case of upgradation of posts and not a case
of additional vacancy or post being created to which the
reservation principle would apply. It is only if in addition
to the total number of existing posts some additional
posts are created that in respect of those additional posts B
the reservation will apply, but with regard to those
additional posts the dispute does not arise in the present
case. The present case is restricted to all existing
employees who were redistributed into different scales of
pay as a result of the said upgradation." c
(emphasis supplied)
The decision of this Court in V.K. Sirothia arose from a
decision of the Allahabad Bench of the Tribunal which
expressed a similar view (in V.K. Sirothia vs. Union of India - D
O.A. No.384/1986). The Tribunal held :
. "The restructuring 9f posts was done to provide relief in
terms of promotional avenues. No additional posts were
created. Some posts out of existing total were placed in
E
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.
F
It was deliberate exercise of redistribution with the primary
object of betterment of chance of promotion and removal
of stagnation."
The Union of India challenged the said order of the Tribunal
and this Court by a brief order dated 19.11.1998 (Union o'r India· G
vs. V.K. Sirothia - 2008 (9) SCC 283) dismissed the appeal
by a brief order. The relevant portion of the said order is
extracted below :
"The finding of the Tribunal that "the so-called promotion
H
520 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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 ground to interfere with the order of the
B
Tribunal."
12. We may next consider the concepts of 'promotion' and
'upgradation'. In La/it Mohan Deb, this Court explained the
difference between a promotion post and a selection grade :
c
a
"It is well recognised that promotion post is a higher post
with a higher pay. A selection grade has higher pay but in
the same post. A selection grade is intended to ensure that
capable employees who may not get a chance of
0 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. Selection grades
are, therefore, created in the interest of greater efficiency."
In Tarsen Singh vs. State of Punjab -1994 (5) SCC 392,
E this Court defined 'promotion' thus :
"Promotion as understood under the service law
jurisprudence means advancement in rank, grade or both.
Promotion is always a step towards advancement to a
F higher position, grade or honour."
13. In S.S. Ranade the scope and meaning of the word
'promotion' was considered. The issue in that case was
whether a Commandant (Selection Grade) held a higher rank
than a Commandant and consequently entitled to be
G superannuated at a later age of 58 years instead of 55 years.
This Court, following the decision in La/it Mohan Deb, held as
follows:
"Undoubtedly, a Commandant who becomes a
H Commandant (Selection Grade) secures a promotion to
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARf\ 521
VELUSAMY [R.V. RAVEENDRAN, J.]
a higher pay scale. But it is a higher pay scale in the same A
post. The use of the word 'promotion' in Rule 6 and the
Constitution of a Departmental Promotion Committee for
selection of Commandant (Selection Grade) in Rule 7, do
not necessarily lead to the conclusion that the promotion
which is contemplated there is necessarily a promotion to B
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.
)()()()()()()()()(
c
In the present case, an element of selection is involved
in granting selection grade because there is no
automatic promotion to the selection grade pay scale. But
this factor is not decisive. In the present case also, as in
the above cases, Selection Grade posts are created D
entirely for the purpose of granting some relief to those
who have very limited avenues of getting promotion to a
higher post. That is why a higher pay or pay scale is
granted in the same post. Thus, by its very nature, a
selection grade post cannot be considered as a higher E
post for the purposes of Rule 9 .... Because the creation
of a selection grade in the same post stands on a very
different footing. By its very nature a selection grade
provides a higher pay or a higher pay scale in the same
post. The beneficiary of a selection grade does not F
thereby occupy a post which is higher in rank than the post
earlier occupied by him."
(emphasis supplied)
On facts, this Court found that the respondent therein G
required a promotion which resulted in occupation of a post
which was higher in rank than the post earlier occupied, to get
the relief of longer service. This Court held that though his
promotion from Commandant to Commandant (Selection
Grade), resulted in a promotion to a higher pay scale, that was H
522 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A not sufficient to grant relief to the respondent therein as his
promotion to selection grade did not involve advancement to
a higher post.
14. In Fateh Chand Soni, this Court following Ranade
B defined 'promotion' thus:
'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
c sense the word "Promote" m.eans "to advance to a higher
position, grade, or honour". So also "Promotion" means
"advancement of preferment in honour, dignity, rank or
grade". [See: Webster's Comprehensive Dictionary,
International Edition, p. 1009]. "Promotion" thus not only
D 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."
E
(emphasis supplied)
15. The distinction between upgradation and promotion
was spelt out by a Full Bench of the Kerala High Court in N. G.
Prabhu vs. Chief Justice, Kera/a High Court · 1973 (2) Lab.
F IC 1399, thus :
"Promotion is, of course, appointment, to a different post
carrying a higher scale of pay in the service. If, to better
the conditions of service of the incumbents in posts in the
G same category the scale of pay of all the posts in the
category is raised, the incumbents would naturally get the
higher scale of pay. But in such a case it may not be
proper to characterize the event as a promotion to higher
posts though a benefit of a higher scale of pay is obtained
by all concerned. In other words, if the upgradation relates
H
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 523
VELUSAMY [R.V. RAVEENDRAN, J.]
to all the posts in a category naturally, there is no sense in A
calling it a promotion of all the persons in that category.
That is because there is no question of appointment from
one post to another. Parties continued to hold same posts
but get a higher scale of pay. It may be that it is not all the
posts in a particular category that are so upgrade, but only B
a part of it. Normally, the benefit of such upgradation would
go to the seniors in the category. They would automatically
get a higher scale of pay. That is because though their
posts continue in the same category a higher scale of pay
is fixed for those posts. It is appropriate then to say that c
the seniors have been nominated to the higher grade which
has been so created by upgradation. This phenomenon
does not differ from the case where all the posts are
·upgraded and, it appears to us that those who get the
higher grade cannot be said to have been 'promoted'
0
because here again there is no question of appointment
from one post to another. They continue to hold the same
post, but because of seniority in the same post they are
given a higher scale of pay. When a person is nominated
to the higher scale of pay from time to time based on
seniority, it may perhaps be loosely termed as a
E
promotion."
16. But even in cases where no additional posts were
created, but where a process of selection was involved in the
upgradation, the process has to be considered not as an F
upgradation simplicitor, but a process of promotion and
therefore the principles of reservation would be attracted. We
may refer to the Constitution Bench decision of this Court in
Ram Prasad (supra) where this Court held that appointment
from senior scale to selection scale is a promotion though it G
may not be a promotion to a higher position and consequenUy
the reserved candidates are entitled to be promoted to the
selection scale by way of roster points. For this purpose, the
Constitution Bench relied upon the decision of Fateh Chand
Soni. H
524 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A 17. In Fateh Chand Soni (supra). the issue was whether
seniority in the selection grade (in the Rajasthan Police
Service) was to be fixed on the basis of date of appointment
to the selection scale or on the basis bf seniority in the senior
scale irrespective of the date on which appointment was made
B to the selection scale. This Court held that appointment to the
selection scale of an officer in the senior scale in the service
constituted promotion and seniority in the selection scale had
to be fixed on the basis of the date of selection and a person
selected and appointed as a result of an earlier selection would
c rank senior to a person who is selected and appointed as a
result of a subsequent selection. We note below the reasoning
of this Court :
"In La/it Mohan Deb v. Union of India, the pay scale of all
the Assistants in the Civil Secretariat in Tripura was Rs.80-
D 180 and on the basis of the recommendations of the
Second Pay Commission appointed by the Government
of India the scales were revised and 25% of the posts were
placed in the Selection Grade in the scale of Rs. 150-300
and the rest continued in the old pay scale of Rs.80-180.
E For the purpose of filling the Selection Grade posts, a test
was held and lhose who qualified in the said test were
appointed to the Selection Grade. The Assistants in the
Selection Grade and the Assistants in the old pay scale
were doing the same type of work. This Court observed
F that "provision of a Selection Grade in the same category
of posts is not a new thing" 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
promotions should at least be placed in the Selection
G Grade to prevent stagnation on the maximum of the scale"
and that "Selection Grades are, therefore created in the
interest of greater efficiency". The Court took note of the
fact that the basis for selection of some of the Assistants
to the Selection Grade scale was seniority-cum-merit
H which is one of the two or three principles of promotion
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 525
VELUSAMY [R.V. RAVEENDRAN, J.]
widely accepted in the administration and, therefore, the A
creation of Selection Grade in the category of Assistants
was not open to challenge. In that case, the Court had
proceeded on the basis that the appointment to the
higher grade amounted to promotion.
B
The Rules governing appointment to the Selection Scale
in the Service also envisage that such appointment
constitutes promotion. The relevant provision is contained
in Rule 28(A) of the Rules which prescribes the criteria,
eligibility and procedure for promotion to Junior, Senior
and other posts encadred in the Service. Under sub-rule
c
(5) of Rule 28(A) promotion from the lowest post or
category of post in the Service to the next higher post or
category of post in the Service is required to be made
strictly on the basis of seniority-cum-merit. Sub~rule (6) of
Rule 28(A) provides that selection for promotion to all other D
higher posts or higher categories of posts in the Service
shall be made on the basis of merit and on the basis of
seniority-cum~merit in the proportion of 50:50."
(emphasis supplied) E
18. In Dayaram Asanand Gursahani v. State of
Maharashtra - 1984 (3) SCC 36 a three Judge Bench of this
Court held:
" ......... As mentioned earlier, the selection grade post is F
not a post to which promotion has to be made nor is there
any efficiency bar rule attached to it. Further it is not shown
that the Governor had issued any executive instructions as
it had been done in Sant Ram Sharma v. State of
Rajasthan and Anr. (1968) 1 SCR 111 and in La/it Mohan G
Deb and Ors. v. Union of India and Ors. (1973) 3 SCC
862 enabling the High Court to withhold increments in the
extended pay scale which is in this case called as
selection grade pay scale. The pay scale to which a judicial
officer is entitled is a condition of service whfoh can be H
526 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A regulated by a statute or rules made under the proviso to
Article 309 or by executive instructions issued under
Article 162 of the Constitution. It cannot come within the
range of the expression 'control' in Article 235 of the
Constitution. (See B.S. Yadav and Ors. etc. v. State of
B Haryana and Ors. etc. (1981) 1 SCR 1024). It is only
where there is such a law, rule or executive instruction, the
High Court may act under Article 235 of the Constitution
to sanction it or to refuse to sanction it. We are of the view
that in the present case the mere nomenclature given to
c the extended pay scale as the selection grade pay scale
does not lead to the inference that there is an element of
selection involved in sanctioning it. In the circumstances it
should be treated as just an extended pay scale which
forms part of the pay scale of Rs. 900-1800 as clarified in
two Government orders sanctioning the selection grade
D
posst ......... ."
The aforesaid decision in Dayaram Asanand Gursahani
was distinguished in Fateh Chand Soni on the following
reasoning:
E
"The High Court has referred to the decision of this Court
in Dayaram Asanand Gursahani v. State of Maharashtra
and Ors. [1984] 2 SCR 703, wherein, after considering the
resolution of the State Government sanctioning the post of
F District Judge in the Selection Grade, this Court has held
that the said resolution did not indicate that there was any
process of promotion by selection or otherwise from the
cadre of District Judges to the Selection Grade District
Judges. In the particular facts of that case it was held that
mere nomenclature given to the extended pay scale as the
G
Selection Grade pay Scale does not lead t0 the inference
that there is no element of selection involv-:>d in sanctioning
it and that it should be treated as just an extended pay
scale which forms part of the pay scale. The position in
the present case is, however, different. Here the Selection
H
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 527
VELUSAMY [R.V. RAVEENDRAN, J.]
Scale is a separate scale and is not an extension of the A
Senior Scale. Moreover appointment to the Selection
Scale is made by selection on the basis of merit and
seniority-cum-merit in accordance with Rule 28(A) of the
Rules."
B
19. In view of the decisions in Dayaram Asanaild
Gursahani, Fateh Chand Soni and Ram Prasad, the position
that emerges is that even where the upgradation does not
involve appointment to a different or higher post, but is as a
result of a promotional process involving selection, then the C
principles of reservation are attracted.
20. In Union of India vs. Pushpa Rani - 2008 (9) SCC
242, this Court examined the entire case law and explained the
difference between upgradation and promotion thus :
D
"In legal parlance, upgradation of a post involves transfer
of a post from lower to higher grade and placement of the
' incumbent of that post in the higher grade. Ordinarily, such
placement does not involve selection but in some of the
service rules and/or policy framed by the employer for E
upgradation of posts, provision has been made for denial
of higher grade to an employee whose service record
may contain adverse entries or who may have suffered
punishment. The word 'promotion' means advancement
or preferment in honour, dignity, rank, grade. Promotion
F
thus not only covers advancement to higher position or rank
but also implies advancement to a higher grade. In service
law, the word 'promotion' has been understood in wider
sense and it has been held that promotion can be either
to a higher pay scale or to a higher post.
G
Once it is recognized that additional posts becoming
available as a result of restructuring of different cadres are
required to be filled by promotion from amongst employees
who satisfy the conditions of eligibility and are adjudged
suitable, there can be no rational justification to exclude H
528 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
.A applicability of policy of reservation while effecting
promotions, more so because it has not been shown that
procedure for making appointment by promotion against
such additional posts is different than the one prescribed
for normal promotion.
B
Policy contained in Letter dated 9.10.2003 has been
framed with a view to strengthen and rationalize the staffing
pattern. For this purpose, the Ministry of Railways
undertook review of certain cadres. The basis of the review
was functional, operation and administrative requirement
c of the Railways. This exercise was intended to improve
efficiency of administration by providing incentives to
existing employees in the form of better promotional
avenues and at the same time requiring promotees to
discharge more onerous duties. The policy envisaged that
D additional posts becoming available in the higher grades
as a sequel to restructuring of some of the cadres should
be filled by promotion by considering such of the
employees who satisfy the conditions of eligibility
including minimum period of service and who are
E adjudged suitable by the process of selection. This
cannot be equated with upgradation of posts which are
required to be filled by placing existing incumbents in the
higher grade without subjecting them to the rigor of
selection. It has therefore to be held that the Railway Board
F did not commit any illegality by directing that existing
instructions with regard to the policy of reservation of posts
for SC and ST will apply at the stage of effecting promotion
against the additional posts. The Tribunal committed
serious illegality by striking down para 14 of letter dated
G 9.10.2003. Matters relating to creation and abolition of
posts, formation and structuring/restructuring of cadres,
prescribing the source/mode of recruitment and
qualifications, criteria of selection, evaluation of service
records of employees fall within the exclusive domain of
H employer. What steps should be taken for improving
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 529
VELUSAMY [R.V. RAVEENDRAN, J.]
efficiency of the administration is also the preserve of the A
employer. Power of judicial review can be exercised in
such matters only if it is shown that the action of the
employer is contrary to any constitutional or statutory
provision or is patently arbitrary or is vitiated by mala fides.
The court cannot sit in appeal over the judgment of the B
employer and ordain that a particular post be filled by
direct recruitment or promotion or by transfer. The court
has no role in determining the methodology of recruitment
or laying down the criteria of selection. It is also open to
the court to make comparative evaluation of the merit of c
the candidates. The court cannot suggest the manner in
which the employer should structure or r~structure the
cadres for the purpose of improving· efficiency of
administration."
(emphasis supplied) D
In Pushpa Rani, this Court while considering a scheme
contained in the letter dated 9.10.2003 held that it provided for
a restructuring exercise resulting in creation of additional posts
in most of the cadres and there was a conscious decision to E
fill-up such posts from promotion from all eligible and suitable
employees and, therefore, it was a case of promotion .and,
consequently, reservation rules were applicable.
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) Promoti.on is an advancement in rank or grade or both
and is a step towards advancement to higher position, grade
or honour and dignity. Though in the traditional sense promotion G
refers to advancement to a higher post, in its wider sense,
promotion may include an advancement to a higher pay scale
without moving to a different post. But the mere fact that both
- that is advancement to a higher position and advancement
to a higher pay scale - are described by the common term H
530 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
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 raising
B 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 post is available to
D everyone who satisfies the eligibility conditions, without
undergoing any process of selection, it will be upgradation. But ·
if the advancement to a higher pay-scale without change of post
is as a result of some process which has elements of selection,
then it will be a promotion to a higher pay scale. In other words,
E upgradation by application of a process of selection, as
contrasted from an upgradation simplicitor can be said to be
a promotion in its wider sense that is advancement to a higher
pay scale.
(iv) Generally, upgradation relates to and applies to all
F positions in a category, who have completed a minimum period
of service. Upgradation, can also be restricted to a percentage
of posts ir1 a cadre with reference to seniority (instead of being
made available to all employees in the category) and it will still
be an upgradation simplicitor. But if there is a process of
G selection or consideration of comparative merit or suitability for
granting the upgradation or benefit of advancement to a higher
pay scale, it will be a promotion. A mere screening to eliminate
such employees whose service records may contain adverse
entries or who might have suffered punishment, may not amount
H
BHARAT SANCHAR NIGAM LTD. v. R. SANTHAKUMARI 531
VELUSAMY [R.V. RAVEENDRAN, J.]
to a process of selection leading to promotion and the A
- elimination may still be a part of the process of upgradation
simplicitor. Where the upgradation involves a process of
selection criteria similar to those applicable to promotion, then
it will, in effect. be a promotion, though termed as upgradation.
A B
(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.
c
(vi) Where there is a restructuring of some cadres resulting
in creation of additional posts and filling of those vacancies by
those who satisfy the conditions of eligibility which includes a
minimum period of service, will attract the rules of reservation.
On the other hand, where the restructuring of posts does not D
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.
E
22. In this case, the BCR scheme did not involve creation
of additional posts but merely restructured the existing posts
as a result of which 10% of the posts in Grade Ill were placed
in a higher grade (Grade IV) to give relief against stagnation.
This is evident from the terms of the BCR scheme and the
clarification contained in the letter dated 7.5.1993 that no posts F
were sanctioned, as far as 10% BCR was concerned.
23. In this case, the BCR scheme dated 16.10.1990
provided that. the persons who had completed 26 years of
service would be screened by a duly constituted Review G
Committee to assess the performance and suitability for
advancement. The screening was for the limited purpose of
finding out whether the service record of the employee
contained any adverse entries or whether the employee had
suffered punishment. The screening process did not involve H
532 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R..
A consideration of comparative merit nor involve any selection.
The 10% posts were upgraded strictly by seniority subject to
screening. This is evident from the terms of BCR scheme and
the Circular dated 13.12.1995 which provided that the
promotions to Grade IV were to be based on seniority in the
B basic grade from among the officers in Grade Ill, subject to
fitness determined as per OTBP manner, that is screening to
ascertain whether there are any adverse comments or
punishment against the employee concerned.
24. To sum up, the BCR scheme was an upgradation
C scheme to give relief against stagnation. It did not involve
creation of any new posts. It did not involve advancement to a
higher post. It did not involve any process of selection for
conferment of the benefit of higher pay-scale. The upgradation
was given to the senior most 10% of BCR scale employees in
D Grade Ill strictly as per seniority. BCR scheme as per circular
dated 16.10.1990 was thus a scheme for upgradation
simplicitor without involving any creation of additional posts or
any process of selection for extending the benefit. Such a
scheme of upgradation did not invite the rules of reservation.
E
25. We accordingly allow these appeals, set aside the
orders of the High Court and the Tribunal and dismiss the
. Original Applications challenging the order of the telecom
department dated 8.9.1999.
F B.B.B Appeals allowed.
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