2016

UP-GRADATION AND PROMOTION IN SERVICE MATTER & JURISDICTION OF THE HIGH COURTS

By:
ISHFAQ ALI
B.Sc., L.L.B., M.L.I.Sc.
Advocate-General’s office,
High Court, Peshawar

Under clause (1) of Article 212 of the Constitution of Pakistan, 1973 [the Constitution] the appropriate Legislature has been empowered to enact for the establishment of one or more Administrative Courts or Tribunals for exercising exclusive Jurisdiction in respect of the matters referred to in sub‑clauses (a), (b) and (c) of the above clause, which inter alia include the matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan including in respect of disciplinary matters. It may further be noticed that clause (2) of the above Article provides that notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established in terms of clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the Jurisdiction of such Administrative Court or Tribunal extends.[1]

The terms and conditions of service have been defined in the Civil Servants Acts, these are appointments, promotion, probation, confirmation, tenure of office of civil servants seniority, posting and transfer, pay, leave, termination of service, absorption, deputation, reversion to a lower post, removal, retirement, pension and gratuity, conduct, efficiency and discipline, suspension, provident fund, benevolent fund and group insurance, appeal /representation and other matters connected therewith etc. Now I am trying to resolve the controversy whether the up-gradation is a promotion. And if not, then High Court has the jurisdiction to deal with the matter of up-gradation?

Promotion means taking of a further step on a ladder. It is only where an employee after having gained experience in a particular post or having otherwise better qualified himself is appointed, to apt which is regarded as a higher post in that particular line that it is called promotion.[2] “Promotion” as per dictionary meaning means “advancement or preferment for honour, dignity or rank”.[3] ‘Promotion' thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law 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”.[4] Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour.[5] Promotion is basically not to a higher grade but to a higher post.[6]

Section 9 of civil servant Act, 1973 defined the promotion as:

A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rule for departmental promotion in the service or cadre to which he belongs.

In Tarsen Singh Vs. State of Punjab[7], the Indian Supreme Court defined the `promotion' as:

“Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour.”

Promotion is not a vested right of a civil servant[8] but “right to be considered for promotion[9] “ would accrue in favour of the civil servant on his fulfilling the requisite prescribed qualification. as the same is dependent upon the eligibility-cum-fitness. [10]

Promotion to next high higher grade/post or appointment through promotion to 'selection' posts is based on 'merit', which required subjective assessment regarding “fitness “ and “suitability “ of the officers, to the said posts subject to their eligibility.[11] The question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned, and, therefore, the Tribunal has jurisdiction[12], and whereas the question of fitness or suitability is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness or suitability.[13] Determination of fitness for promotion thus fell within the domain of the Competent Authority alone.[14]

The meaning of the word upgradation in the Chambers English Dictionary has been given as “an upward slope or course”, to raise in status quality, value, etc. Whereas according to concise Oxford Dictionary the word up-grade means “raise in rank etc.”

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 apply.[15] Principle of reservation does not apply if as a result of reclassification or re-adjustment there is no additional post which is created. It was clarified that if as a result of reclassification and re-adjustment having been effected any post is created then the principle of reservation would be applicable.[16]

Central Administrative Tribunal India in a case M.L. Rajaram Naik And Ors. Vs The Additional Director and Ors[17], decided on 26 April, 2000, while differentiating up-gradation and promotion, held that:

“The crux of the matter rests on the interpretation of the words 'upgradation' and 'promotion.' In case 'upgradation' is held to mean “to attain a higher stature while remaining on the same pedestal,” it cannot be equated with 'promotion' which may be understood to mean “moving upwards and leaving the original pedestal.” The dictionary meaning of the word upgradation in the Chambers 20th Century Dictionary, New Edition 1983 has been given as “an upward slope or course” and 'promotion' has been held to mean as “advancement in rank or in honour.” Looking at the two meanings given to the words upgradation and promotion, what is made out is that upgradation involves the process of moving upwards while remaining on the same pedestal, whereas promotion results in skipping to a higher plane leaving behind the original pedestal.

Now we come to our topic, whether the upgradation of post falls under the terms and conditions of service or not? 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 as held:

Supreme of Azad Jamu and Kashmir Supreme Court (AJ&K) in Mubusher-Ul-Haque Versus Azad Government of The State of Jammu and Kashmir[18] held that

“Promotion is basically not to a higher grade but to a higher post.”

The Supreme Court of India in Bharat Sanchar Nigam Ltd vs R. Santhakumar Velusamy[19] held that:

“Upgradation involves mere conferment of financial benefits by providing a higher scale of pay”

The Supreme Court of Pakistan in a case Ali Azhar Khan Baloch Versus Province of Sindh[20] held that:

The expression 'upgradation' is distinct from the expression 'promotion' which has not been defined either in the Act or the Rules framed thereunder …….

Central Administrative Tribunal India in a case Daniel P. Varghese vs Union of India on 16^th February, 2012 held that:

Again, revision of pay scale or up-gradation of pay scale is not within the jurisdiction of the Tribunal as held by the Apex Court in a catena of cases. To cite an example, in the case of Food Corpn. of India Vs. Ashish Kumar Ganguly, (2009) 7 SCC 734, para 21 is relevant which is reproduced as:

However, it is also equally well settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.

The Honourable Supreme Court of Pakistan in Muhammad Farid Khattak Vs. Chief Secretary, Government of NWFP[21] held that:

Civil servant, under the garb and cloak of financial benefits could not demand upgradation of the post retrospectively from Service Tribunal, such being outside the scope and ambit of the Service Tribunal.

Although change of grade amounts to promotion such as given in cases of selection grade (PLD 1993 SC 187+1994 SCMR 1626 ) but it is very important to mention here that in selection grade cases after evaluation of eligibility and fitness of civil servants the selection grade is awarded whereas in up-gradation case the person already holding the post is awarded higher grade (if it is single post).

It is well recognized that a promotion post is a higher post with a higher pay. Selection grade is a higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get chance of promotion on account of limited outlets of promotion should at least be placed in the selection grade to prevent stagnation on the maximum of the scale.[22] In case element of selection is involved in granting of selection, it would amount to promotion in a higher post scale and it cannot be claimed as matter of right automatically.[23]

In Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy and Others, [AIR 2011 SC 3793 = (2011) 9 SCC 510] the Hon'ble Supreme Court of India analyzed the principles relating to promotion and upgradation in the light of the decisions in Union of India vs. S.S. Ranade (1995) 4 SCC 462, Lalit Mohan Deb vs. Union of India (1973) 3 SCC 862, State of Rajasthan vs. Fateh Chand Soni (1996) 1 SCC 562, Ram Prasad vs. D.K. Vijay (1999) 7SCC 251, All India Non-SC/ST Employees' Assn. (Railway) vs. V.K. Agarwal (2001) 10 SCC 165, Union of India vs. V.K. Sirothia (2008) 9 SCC 283, Tarsem Singh vs. State of Punjab (1994) 5 SCC 392, Dayaram Asanand Gursahani vs. State of Maharashtra (1984) 3 SCC 36 and Union of India vs. Pushpa Rani (2008) 9 SCC 242 and on careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerged:

(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 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.

(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.”

What has been stated above it is crystal clear that the up-gradation is distinct from the promotion. As it is not form of promotion. Therefore, upgradation is not part of the terms and conditions of service,[24] High Court has the jurisdiction to adjudicate upon the matter[25]. Even High Court under Constitutional jurisdiction could order removal of discrimination without any reasonable basis, even if such removal of discrimination involved upgradation.[26] Principle of reasonableness and rationality, which was an essential element of equality or non-arbitrariness was projected by Art.25 of the Constitution and it must characterize every State action whether it be under authority of law or in exercise of executive power. Petitioners had been discriminated as the authorities without any reasonable differentia had denied the right of up-gradation of their posts. Constitutional petition is maintainable in the circumstances.[27]

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[4]. Union of India vs. Pushpa Rani - 2008 (9) SCC 242 : State of Rajasthan vs. Fateh Chand Soni [1996 (1) SCC 562] Ref.

[5]. AIR 1995 SC 384 = (994) 5 SCC 392.

[8]. 1990 SCMR 1321 : PLD 1997 SC 351(d) : PLD 1988 SC 155: 2010 SCMR 511: 2009 PLC (CS) 215 .

[9]. 2012 SCMR 971 : 2011 PLC (CS) 1130.

[11]. 2015 PLC (CS) 923 : PLD 2013 LAH. 413.

[12]. 2012 PLC (CS) 179 : 1999 SCMR 1605 : PLD 1994 SC 345, 539 : 1997 SCMR 382, 1013 : 2003 SCMR 1241 : 2007 SCMR 682.

[13]. 2012 PLC (CS) 1062 : PLD 1994 SC 539 : PLD 1997 SC 382 : 2002 SCMR 1056 : 2005 SCMR 695 : 2003 SCMR 1191 : 2007 SCMR 682 : 1991 SCMR 1129 : 1997 SCMR 382, 1013 : 2003 SCMR 1241 : 2007 SCMR 682.

[14]. 2014 PLC (CS) 982 : PLD 2003 SC 110 : 2001 PLC (CS) 157.

[15].      Bharat Sanchar Nigam Ltd. Vs. R. Santhakumari Velusamy & Ors, [AIR 2011 SC 3793] Para 11.

[19]. (2011) 9 SCC 510 = AIR 2011 SC 3793.

[22]. Lalit Mohan Deb and others Vs. Union of India, AIR 1972 SC 996.

[23]. Union of India and another Vs. S.S. Ranade, 1995 (4) SCC 462.

[24]. 2012 PLC (CS) 362 + 2002 PLC (CS) 427.

[25]. 2013 PLC (CS) 145 + 2012 PLC (CS) 87.