UNION OF INDIA Vs. BRAHMA DEO

JUDGEMENT

(1.) This writ petition is directed against the orders dated 05.08.2010 and 14.10.2011 passed in OA No. 1429/2010 and RA No. 202/2011 in OA No. 1429/2010 respectively. The facts giving rise to the filing of this writ petition can be summarized as follow: The respondent before this Court joined PSS Grade B on 10.10.2002. Pursuant to the report of the Sixth Pay Commission, PS Grade B officers were granted upgradation of grade pay from Rs 4800 to Rs 5400 on completion of four years after due screening in regard to the vigilance clearance. The upgradation was to be granted on non-functional basis and was not linked to any vacancy. A chargesheet under Rule 14 of CCS(CCA) Rules, 1965 was issued to the respondent vide Memo dated 20.10.2008 and on account of the aforesaid chargesheet, the higher grade pay of Rs 5400 was not granted to him. OA No. 2649/2009 was filed by the petitioner seeking grant of higher grade pay. The OA was disposed of vide order dated 16.09.2009, thereby permitting the respondent before this Court to make a representation with respect to his grievance and the petitioners before this Court (the respondents in the OA) were directed to pass an appropriate order on the representation. A representation dated 22.10.2009 made by the respondent pursuant to the order of Tribunal is stated to have been rejected vide speaking order dated 30.11.2009. The respondent filed OA No. 1429/2010 seeking grant of higher grade pay of Rs 5400. The OA was allowed vide impugned order dated 05.08.2010 and the petitioner was directed to accord grade pay of Rs 5400 to the respondent in the pay band of Rs 9300-34800 w.e.f. 10.10.2006.

(2.) The only contention raised by the learned counsel for the petitioner before us is that since grant of higher grade pay of Rs 5400 amounts to promotion and disciplinary proceedings are already pending against the respondent, the higher grade pay of Rs 5400/- cannot be paid to him during pendency of disciplinary proceedings and only a sealed cover with respect to grant of higher grade pay can be resorted by the petitioners.

(3.) The distinction between upgradation and promotion was examined by Supreme Court in Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy & Ors.,2011 STPL 781. In that case, there were four grades of employees of Telecom Departments and promotions from one grade to higher grade were made on the basis of the seniority/departmental examination. 'One Time-Bound Promotion' scheme (OTBP) was introduced in the year 1983-84 under which the employees who had completed 16 years of service in the grade were placed in the next higher grade. After some time, 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. Under the said scheme, employees, who were in service on 01.01.1990 and who had completed 26 years of service in the basic cadre, were to be screened to assess their performance and determine their suitability for advancement and if found suitable, they were to be upgraded in the higher scale. The upgradation was restricted to 10% of the posts in Grade III. Vide Circular dated 11.03.1991, the Government issued some clarification regarding designations by another Circular dated 13.12.1995. The Government formulated a procedure for promotion to Grade IV. Under the said procedure, promotions to Grade IV were to be based on seniority in the basic grade, from amongst the officers in Grade III, subject to fitness determined in the usual manner of OTBP. By a clarificatory Circular dated 01.03.1996, the Government issued a clarification that promotion to Grade IV would be given from amongst officials in Grade III 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 promotions in Grade IV. The Circular dated 01.03.1996 was challenged by 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. Ahmedabad Bench of the Tribunal held that the Department could not apply reservation rules while upgrading the post in the BCR Scheme. The writ petition filed by the Government was dismissed by Gujarat high Court. The Government then issued an order directing that review DPC be held and all ineligible officers, wrongly promoted to Grade IV by application of reservation roster, be reverted back and all eligible officers should be placed in Grade IV. As a consequence, the contesting respondents were reverted from Grade IV to Grade III. Being aggrieved, they filed applications before Madras Bench of the Tribunal, challenging the validity of the order, whereby they were reverted. The Full Bench of the Madras High Court differed from the decision of its Ahmedabad Bench and held that the appointment was a non-promotional appointment and distinction between upgradation and promotion based on the nomenclature only does not appear to be tenable. The Government was directed to restore the contesting respondents to their promoted posts. The writ petition filed by the Telecommunication Department was dismissed by Madras High Court. The order of the High Court was challenged before Supreme Court and it was contended that there was a clear distinction between upgradation and promotion. It was submitted that upgradation does not involve promotion to a higher position as the pedestal of the employees remains the same and he is only conferred some benefit by granting a higher pay scale to overcome stagnation. The appellants before the Supreme Court contended that since there was only upgradation of existing post with creation of additional post, principles of reservation would not apply. Supreme Court, after reviewing the case law on the subject, was of the view that even in cases where no additional posts were created, but, a process of selection was involved in the upgradation, the process has to be considered as a process of promotion and not as an upgradation simplicitor and, therefore, the principle of reservation would be attracted. The following principles were laid down by the Court, indicating the distinction between the promotion of upgradation:-