B. THIRUMAL v. ANANDA SIVAKUMAR & Ors.

Judgment

A B [2013) 14 S.C.R. 1076 B. THIRUMAL v. ANANDA SIVAKUMAR AND ORS. (Civil Appeal Nos.10660-62 of 2013) NOVEMBER 27, 2013 [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.] Service Law: c Promotion - 25% quota reserved for promotion to the members of State Subordinate Engineering Service (Diploma holder Junior Engineers) - 75% quota reserved for promotion to the Assistant Engineers - Upgradationlre-designation of Junior Engineers to the post of Assistant Engineers on their 0 acquiring degree - After upgradation, degree-holder junior engineers/Assistant Engineers considered for promotion to the next post in both the categories i.e. 25% as well as 75% quotas """'." Held: Re-designation of junior engineers to the post of Assistant Engineers was only an upgradation to encourage them for having attained degree - It was not an re-designation by transfer, which would tantamount to promotion - Despite being re-designated as Assistant Engineer, they continued to hold the post of Junior Engineer - Hence consideration of such degree-holder redesignated Assistant Engineers for promotion against 25% quota cannot be found fault with - F However, consideration of such officers against the quota of 25% as well as 75% cannot be justified - Hence they cannot be considered against 75% quota. E The appellant-a diploma-holder Engineer (Electrical) in the Tamil Nadu Public Works Department, filed representations seeking discontinuation of practice of Asstt. Engineers (Electrical) being empanelled for promotion to the post of Asstt. Executive Engineer (Electrical) against 25% quota reserved for the members 1076 G H B. THIRUMAL v. ANANDA SIVAKUMAR 1077 of Subordinate Engineering Service (to which the post of A Junior Engineer belonged) because the same was against State Engineering Service. The plea of the appellant was that though some vacancies in the cadre of Asstt. Executive Engineers were earmarked for Junior Engineers, the same were being filled up by appointment B of re-designated Asstt. Engineers. The representations were rejected by the authorities concerned. He filed writ petitions seeking direction reserved for the members of Subordinate service i.e. diploma-holder C Junior Engineers. Single Judge of High Court allowed both the writ petitions. The order of the Single Judge was set aside by Division Bench of High Court. Hence the present appeals. The respondents inter alia contended that re- D designation of diploma-holder Junior Engineers (Electrical) as Asstt. Engineers (Electrical) upon their acquiring decree was not re-designation by· transfer, but it was simple re-designation on the basis of their higher qualification and such re-designation did not snap their E lien with their parent service i.e. Subordinate Engineering Service and thus they continued to be eligible for promotion against 25% quota meant for Subordinate Engineering Service despite their re-designation as Asstt. Engineers (Electrical). F Dismissing the appeals, the Court HELD: 1.1. No reference to the Tamil Nadu State Public Service Commission was made nor was any other process of selection undertaken for re-designation of G degree holder Junior Engineers, which was based entirely on the degree qualification of the incumbent and was granted with effect from the date the qualification was acquired. The re-designation had similarly nothing to do with the number of vacancies available in the State H 1078 SUPREME COURT REPORTS (2013] 14 S.C.R. A Engineering Service. Availability of vacancies in the cadre of Assistant Engineers was an essential condition precedent for any recruitment to that cadre whether by transfer or otherwise. Not only that, re-designation did not result in the occurrence of any vacancy in the cadre B of Junior Engineers as it should ordinarily have, when someone holding the post of Junior Engineer got appointed to another service, resulting in the termination of his lien in the parent service. This implied that even though re-designated as an Assistant Engineer c (Electrical) the incumbent continued to hold the post of Junior Engineer after re-designation. All this leads to the irresistible conclusion that except financial benefit and status, re-designation did not bring about any other change. Even the duties of such re-designated officers remained the same as before. According to the State Government, the two positions viz. Junior Engineer (Electrical) and Assistant Engineer (Electrical) are synonymous insofar as the nature of work and duties are concerned. There is no element of recruitment to the State Engineering Service by direct recruitment or by transfer. Those re-designated did not stand appointed to the cadre of Assistant Engineers (Electrical) in State [Paras 14 and 15] [1090-G,1091-0-E] Service. E 0

1.2. Upgradation which is synonymous to re- F designation in the facts of the present case, simply confers a financial benefit by raising the scale of pay of the posts without there being movement from a lower position to a higher position. In the case of upgradation, the candidate continues to hold the same post without G any change in the duties and responsibilities but merely gets a higher pay scale. Not only that, where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if advancement to a higher H B. THI RU MAL v. ANANDA SIVAKUMAR 1079 pay-scale without change of post is accompanied by A some process which has the element of selection, then it will be a promotion to a higher pay-scale. [Para 16] [1094-F-H; 1095-A-B] B

1.3. The rationale behind upgradation not being considered tantamount to promotion would apply with full force even to a case where the upgradatioh/ redesignation is sought to be termed as a case of recruitment by transfer. If the process of u·pgradation/ redesignation has no correlation to the vacancies available in the State Engineering Service and if such upgradation/redesignation is granted as a matter of course without any selection process· and merely on the incumbent acquiring a degree qualification, such upgradation/redesignation should not be treated as a case of appointment to the said service by transfer. What D could not constitute promotion (assuming that the post of Assistant Engineer (Electrical) was a part of the Subordinate Service) cannot obviously be considered to be a case of appointment by transfer. [Para 17] [1095-0- F] c E

1.4. The upgradation/re-designation granted to the members of the Subordinate Engineering Service upon their acquiring a degree qualification was meant only to encourage or recognize their getting such higher qualification. Such upgradation may involve a higher designation and better emoluments for the incumbents but neither of those two benefits co.uld constitute promotion or recruitment by transfer. [Para 18] [1095-G H, 1096-A] .1.5. It is true that the State has shown the upgraded 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 F G H 1080 SUPREME COURT REPORTS [2013] 14 S.C.R. A the re-designation had the effect of appointing the incumbents by transfer. At any rate, there is nothing to show that the State had taken the lien of the incumbents in their parent service to have been terminated. On the contrary, the State has been considering such re- B designated officers for promotion even against 25% quota meant for the Junior Engineers ser.ving in the Subordinate Service. [Para 19) [1096-8-D]