Is Reservation Rule applicable for Non-Functional Promotion
#1
we have some non functional grade I post of helper. are we to NOT FOLLOW/ FOLLOW 50 point roster & 2X5 EMPLOYEES for allowing junior s/c or s/t employee for bring them into purview of promotion to non functional grade I post of helper. Suppose there are 2 non functional grade I post of helper. Gradation list of helper posts is follows.
sl. no. name caste
1. A Gen
2. B Gen
3. C Gen
4. D S/C
5. E Gen
6. F Gen

WHO WILL GET THE BENEFIT A & B OR A & D
PLEASE CONFIRM
H DATTA
AO
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#2
Re: IS reservation rule applicable for non functional promot

Reservation Rule appears to be applicable for promotions, whether functional or non-functional, if the number of promotional post is more than one.

50 point roster is to be followed and you may have to even declare a carried forward vacancy for reserved candidates if in earlier cases it has not been maintained.
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#3
Re: Is reservation rule applicable for non functional promot

A&B ... in my opinion if the past record is not found.
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#4
Re: Is reservation rule applicable for non functional promot

Please say whether zone of consideration is to be followed.
H DATTA
AO
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#5
Re: Is reservation rule applicable for non functional promot

As the reservation rule is applicable, and the no. of posts is more than one, naturally the zone of consideration is to be constituted.
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#6
Re: Is reservation rule applicable for non functional promotion

Non-functional upgradation involving NO element of selection shall not attract reservation rules. Following are the observations made by the Hon'ble Delhi H.C. in Brahma Deo case on the 5th March,2012:
"Supreme Court 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:-

(i) Promotion is an advancement in rank or grade or both and is a steptowards 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 ahigher 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.

It is also not in dispute that the upgradation was to be given to all those who had completed four years of service and were cleared from vigilance point of view. Admittedly, grant of the higher grade-pay does not involve movement from a lower position to a higher position nor is there any change in the duties and responsibilities of those who are granted the higher grade pay. The higher grade pay is, therefore, available to everyone who satisfies the eligibility conditions and no comparison of inter se merit of the eligible candidates is involved in the process. Thus, it cannot be disputed that grant of higher grade pay does not have element of selection and, therefore, is an upgradation simplicitor and that too only of the grade pay, not of the pay scale/pay band. Even if, upgradation is restricted to some of the post in the cadre, it would not constitute promotion unless an element of selection is involved in the selection and neither there is movement from lower position to a higher position nor any change in the duties and responsibilities."

Pls go through the court observations in the attachment.

Ref: http://delhidistrictcourts.nic.in/Indmar12.htm

Kindly go through the methods of operation of reservation rules from the attachment available from the following link: https://askwb.com/threads/promotion.708/


Attached Files
.pdf   UOI VS. BRAHMA DEO.pdf (Size: 41.58 KB / Downloads: 206)
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#7
Re: Is reservation rule applicable for non functional promot

donyi_polo Wrote:Non-functional upgradation involving NO element of selection shall not attract reservation rules.

Thanks to donyi_polo a lot for sharing the Hon'ble Supreme Court's verdict.

But, in the given case, this is not a case of 'personal upgradation' like career advancement benefit and will undergo a process of selection. while feeling up the vacant Grade 1 posts, the OPR of the concerned employees in the basis grade will be taken into consideration and on the happening of the Senior's OPR unsatisfactory, the junior one will get promoted. But in case of 'personal upgradation' like career advancement, if the ACR/OPR of the concerned employee is found unsatisfactory, the benefit is not passed to the junior, it is awaited until the specific employee improves in the ACR/OPR to the desired level.

Therefore, in the present as well as similar cases, reservation rule will be applicable.
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#8
Re: Is reservation rule applicable for non functional promot

Thanks to Mr. Ray for his valuable comments.
Yes, if there is a process of SELECTION involved in upgradation the principles of reservation will be applicable.

I want to add one more thing that the principles of 'Zone of consideration' and 'Bench Mark' are applicable where promotion is in the mode of Selection (by seniority cum merit) and NOT on the basis of Seniority-cum-fitness (purely by non-selection).
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#9
Re: Is reservation rule applicable for non functional promot

@hariswarandatta
It appears that the present case involves a process of SELECTION without any change of duties & responsibilities, attracting reservation rules.
Now, of the two posts the number of reserved posts and the nature of reservation (SC/ST) are to be determined. Post-based roster is considered for filling up vacancies.
If no vacant posts are reserved, then A (Gen) & B (Gen) will be promoted (provided ACRs are ok).
If 1 post is reserved for SC candidate, then A (Gen) & D (SC) will be promoted (provided ACRs are ok).
If 1 post is reserved for ST candidate, then only A(Gen) will be promoted (provided ACR is ok) and ST vacancy will remain unfilled.

If it is such that the nonfunctional upgradation without change of duties & responsibilities (no change of post) involves no selection procedure, then A & B will be upgraded.

N.B.: In cases of a mere financial upgradation (no change of post) , Annual Confidential Reports/ Performance Reports are also evaluated.

Pls see the reservation rules applicable for promotion.
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#10
Re: Is reservation rule applicable for non functional promot

donyi_polo Wrote:If 1 post is reserved for ST candidate, then only A(Gen) will be promoted (provided ACR is ok) and ST vacancy will remain unfilled.

I would like to differ.

If 1 post is reserved for ST candidate, A (Gen) & D (SC) will be promoted (provided OPRs are ok). If OPR of D (SC) is marginally Unsatisfactory i.e. 'average', his OPR should be considered as Satisfactory i.e. 'good' and will be promoted. If D(SC) is promoted, the reservation for ST will not be carried forward. If his OPR does not become satisfactory even by giving one higher grade and he is not promoted, B (Gen) will be promoted (with due regard to OPR) and the reservation for ST will be carried forwarded to next point in roster provided the next vacancy is not a reserved one.
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