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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  10660-10662  OF 2013 (Arising out of S.L.P. (C) Nos.31761-31763 of 2009)

B. Thirumal    …Appellant

Versus

Ananda Sivakumar and Ors. …Respondents

J U D G M E N T

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  

learned Single Judge and dismissed Writ Petitions No.25871  

of 2006 and 8925 of 2007 filed by the appellant.

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3. The  appellant  was,  at  the  relevant  point  of  time,  

working as a Junior Engineer (Electrical) in the Tamil Nadu  

Public Works 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  Service”).  Aggrieved  by  the  

prevalent  practice  of  Assistant  Engineers  (Electrical)  being  

empanelled for promotion to the 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  

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 communication dated 18th January, 2006,  inter  

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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 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.   

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  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 certiorari quashing memorandum  

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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,  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  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  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  

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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 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 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  

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 (Electrical) upon their acquiring a degree  

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qualification  was  tantamount  to  recruitment  by  transfer  

within the meaning of the 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  

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 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.

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  

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transfer.  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 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 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.

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  

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was granted at the request of such Junior Engineers or came  

about automatically. 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 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  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 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.”

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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  Assistant  Executive Engineer.  The  State  was  

further directed to indicate whether upon re-designation the  

Junior  Engineers  are  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 directed  to be filed.  An  

additional affidavit pursuant to the said 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 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  

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following  passage  from  the  affidavit  is,  in  this  regard,  

noteworthy:

“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  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 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:  

“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  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  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  

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followed in the name of a convention. We, however, fail to  

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.

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 (Electrical) in Category-II and Assistant Engineers  

(Electrical)  comprising  Category-III.  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 by the methods specified in column   (2) thereof:-

TABLE

Category                (1)

Method of recruitment (2)

1. Electrical Engineer (i)  By  Promotion  from  Assistant  Executive  

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Engineer (Electrical) in category 2.

(ii) By recruitment by transfer from the category  of  Electrical  Inspector  in  the  Tamil  Nadu  Electrical Inspectorate service.

2. Assistant  Executive  Engineer (Electrical)

(i)  By  promotion  from  Assistant  Engineer  (Electrical) in category 3; or   

(ii) By recruitment by transfer from the category  of Junior Engineer (Electrical) in the Tamil Nadu  Engineering  Subordinate  Service  or  from  the  category of Assistant  Electrical  Inspector in the  Tamil Nadu Electrical Inspectorate service; or  

(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 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  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 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 (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  diploma  in   Electrical Engineering.”

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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 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 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 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 or otherwise.  Not only that, re-designation did not  

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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 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 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 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 application filed by the incumbent.

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(ii) The re-designation is granted with effect from  

the 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  

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  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.

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. Considerable support for that conclusion  

is available from the decision of this Court in  BSNL v. R.  

Santhakumari Velusamy & Ors. AIR 2011 SC 3793. That  

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was a case where this Court was examining whether rules of  

reservation were applicable to promotions to Grade IV under  

the  Biennial  Cadre  Review  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 granted on  

the basis of seniority in the basic grade from amongst the  

officers  in  Grade  III  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  

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 that principles of reservation had  

no application for upgradation on existing posts which did not  

carry any change in duties and responsibilities. The Central  

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Administrative Tribunal, Ahmedabad upheld that contention  

and directed that reservation will have no application while  

upgrading posts under  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 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  

(1995)  4  SCC  462, Union  of  India  v.  V.K.  Sirothia  

(2008) 9 SCC 283 and  Lalit  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  promotion  and  upgradation  in  the  light  of  the   aforesaid decisions, the following principles emerge:

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(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  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 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   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   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) 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 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,  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  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   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   

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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   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

(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.

(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 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.”

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.  

In 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  

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change  of  post  is  available  to  everyone  who satisfies  the  

eligibility  conditions,  without  undergoing  any  process  of  

selection,  it  will  be  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  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  

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 sought to be termed as a case of recruitment by transfer.  

If  the  process  of  upgradation/redesignation  has  no  

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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  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)  

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  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  designation  and  better  

emoluments  for  the  incumbents  but  neither  of  those  two  

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benefits  could  constitute  promotion  or  recruitment  by  

transfer.  

19. It  is  true  that  the  State  has  shown  the  upgraded  

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 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 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.  

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  

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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 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- 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  he is stealing march over the   Diploma-holder  Junior  Engineers  who  continue  as   such in as much as such 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 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 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.  

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  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”   

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(if  we may permitted 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  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.

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  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 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 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 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,  

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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 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  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  

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 cannot be members of the Subordinate  

Service and State Service both, at one and the same time.

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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  

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, 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% 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.   

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……………………………….……….…..…J.        (T.S. THAKUR)

     ……………………..…………………..…..…J.              (VIKRAMAJIT SEN)

New Delhi November 27, 2013

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