Sunday, November 13, 2011

Reservations in Promotions-Supreme Court Judgment Dated 6th September 2011

What is the difference in promotion in which SC/ST reservations are applicable and promotion in which it is not applicable?
The Supreme Court judgment dated 06/09/2011 in C.A. Nos 5286-87/2005 in the matter of BSNL Vs. R.Santhakumari Velusamy & Others clarified as below:
1.      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 sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an 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 common term ‘promotion’, does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
2.       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 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.
3.      Therefore when there is 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 still there is 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 process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is 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 application of a process of selection, as contrasted from an upgradation in simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
4.      Generally upgradation relates to and applies to all positions in a cateegoy, 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 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 advancement to a higher pay scale, it will be a promotion.A mere screening to eliminate such employees whose service records may contain adverse 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 thee process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable in promotion, then, it will, in effect, be a promotion, though termed upgradation.
5.      Where the process is an upgradation simplicitor, there is no need to apply rules of reeserrvation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
6.      Where the process 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 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.
Further, the Supreme Court made the following observations in this judgment:
1.      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-III 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 were sanctioned, as far as 10% BCR was concerned.
2.      In this, 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 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 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 basic grade from among the officers in Grade III, 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.
3.      To sum up, the BCR scheme was an upgradation scheme to give relief against stagnation. It did not involve creation of any new post. 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 seniormost 10% of the BCR scale employees in Grade III strictly as per seniority. BCR scheme as per circular dated 16.0.1990 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 upgrradation did not invite the rules of reeservation.
4.      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.
This is the latest law of the land on the issue of reservations in promotions.

1 comment:

  1. Prior to above verdict in OTBP and BCR reservation was there according to the DOTs orders. Thereafter in restructuring scale after completion of 16/26 it was abolished. What is the fate of past settled cases in reservations. Whether past promotions would be revised. There was no fault on the part of Sc/ST candidates who got such facilities in OTBP/BCR.