Union of India Vs.
Pushpa Rani & Ors.  INSC 1249 (29 July 2008)
JURISDICTION CIVIL APPEAL NOS.6934-6946 OF 2005 Union of India
........Appellant Versus Pushpa Rani & Others ..........Respondents WITH
C.A. NO.6932 OF 2005 Union of India ......... Appellant Versus N.D. Kakkar
& Others ........Respondents WITH C.A. NO.6919 OF 2005 All India SC/ST
Railway Employees Assn. ......... Appellant Versus Union of India & Others ........Respondents
2 WITH C.A. No.612 of 2006 Union of India ......... Appellant Versus Jarnail
Singh & Others .,.......Respondents WITH C.A. No._______of 2008 (Arising
out of S.L.P. (C) No.5045 OF 2007) Union of India & Others .........
Rubi Mazumdar .........Respondent
G.S. Singhvi, J.
1. Whether the policy
of reservation of posts for Scheduled Castes/ Scheduled Tribes can be applied
at the stage of giving effect to cadre restructuring exercise undertaken
pursuant to letter No.PC-III/2003/CRC/6 dated 9.10.2003 issued by the Railway
Board is the question which arises for determination in the above noted appeals
filed against the orders of Punjab & Haryana High Court which upheld the
decision of Chandigarh 3 Bench of the Central Administrative Tribunal
(hereinafter referred to as `the Tribunal') to quash para 14 of the said letter
and the direction given for making appointments de hors the policy of
reservation. The special leave petition filed by the Union of India against the
order of Allahabad High Court is being disposed of along with appeals because
the issue arising therein is similar.
2. For the sake of
convenience, we have taken the facts from the record of Civil Appeal
Nos.6934-6946 of 2005. The same are:- (i) Respondents Pushpa Rani and six
others joined service as Clerks in Ambala and Ferozepur Divisions of the
Northern Railway. They were promoted as Senior Clerks and then as Head Clerks.
They filed applications under Section 19 of the Administrative Tribunals Act,
1985 for quashing the instructions issued by the Railway Board vide letter
No.PC-III/2003/CRC/6 dated 9.10.2003 for giving effect to the policy of
reservation of posts for Scheduled Castes and Scheduled Tribes at the stage of
restructuring of Group C and D cadres. They pleaded that the exercise of
restructuring undertaken by the government resulted in upgradation of the
existing posts and in view of the law laid down by the Supreme Court, the
policy of reservation 4 cannot be applied while making appointment against the
(ii) In the counter
filed on behalf of the administration, it was pleaded that instructions issued
by the Railway Board are in conformity with the policy decision taken by the
Government of India and the applicants cannot object to the reservation of
posts for Scheduled Castes and Scheduled Tribes because restructuring of cadres
resulted in creation of additional posts which were required to be filled by
(iii) The Chandigarh
Bench of the Tribunal allowed the application filed by Pushpa Rani and others
along with 12 similar applications filed by other employees of Ambala and
Ferozepur Divisions of Northern Railway, Rail Coach Factory, Kapurthala and
Diesel-Loco Modernization Works, Patiala and quashed para 14 of letter dated
October 9, 2003. The Tribunal declared that the policy of reservation of posts
for Scheduled Castes and Scheduled Tribes is not applicable to the
restructuring scheme including exchange formula and directed the petitioners
herein to consider the cases of the applicants (respondents herein) and other
eligible persons for placing them in 5 appropriate pay scales under the
restructuring scheme keeping in view their eligibility and suitability and give
them consequential benefits.
(iv) The Union of
India through Divisional Personnel Officer, Northern Railway, Ambala,
challenged the order of the Tribunal in Civil Writ Petition No.3182-CAT of
2003, which was dismissed by Division Bench of the High Court of Punjab and
Haryana along with a batch of similar petitions. The High Court referred to the
order passed by this Court in Contempt Petition (Civil) No.304 of 1999 in Civil
Appeal No.1481 of 1996 and held that in view of the law laid down by the
Supreme Court, the direction given by the Tribunal to fill up the upgraded
posts without applying the principles of reservation cannot be termed as
3. Shri Amarendra
Sharan, learned Additional Solicitor General, referred to Annexures `A' to `K'
appended to letter dated 9.10.2003 to show that as a result of restructuring of
Group C and D cadres, additional posts became available in the higher grades
and argued that the Railway Board did not commit illegality by issuing
direction for implementation of the policy of reservation qua those posts and
argued that the policy of 6 reservation was rightly made applicable in
relation to the additional posts.
In support of this
argument he strongly relied on the case of K. Manickaraj vs. Union of India
[1997 (4) SCC 342]. Shri Sharan emphasized that restructuring of cadres
undertaken for enhancing organizational efficiency and functional, operational
and administrative requirements cannot be treated as a simple exercise for
upgradation of existing posts and the Tribunal did not have the jurisdiction to
nullify the instructions issued by the Railway Board or issue directions for
making appointment by ignoring the policy of reservation. He distinguished the
orders passed in Union of India vs. V.K. Sirothia [1999 SCC (L&S) 938] and
All India Non-SC/ST Employees' Association (Railway) vs. V.K. Agarwal and
Others [2001 (10) SCC 165] by pointing out that those were the cases of mass
upgradation of posts and not restructuring of cadres resulting in creation of
additional posts in different grades.
4. Shri K.S. Chauhan,
counsel for All India SC/ST Railways Association submitted that the directions
given by the Tribunal are liable to be set aside because its interpretation of
the policy of restructuring is also contrary to the law laid down by the
Constitution Bench in R.K. Sabharwal and Others vs. State of Punjab and Others
[1995 (2) SCC 745]. He 7 pointed out that the respondents had not challenged
the instructions issued by the Railway Board for filling up the additional
posts which were to become available as a result of restructuring of Group C
and D cadres by selection and promotion and argued that in the absence of such
challenge, the Tribunal could not have quashed para 14 of letter dated
9.10.2003 and ordained that appointments be made by ignoring the policy of
5. Dr. Rajiv Dhawan,
Senior Advocate, appearing for some of the respondents, argued that
restructuring of Group C and D cadres is nothing but an exercise for
upgradation of the existing posts and the Tribunal did not commit any
illegality by striking down para 14 of letter dated 9.10.2003 vide which the
policy of reservation was made applicable to the upgraded posts. He further
argued that if the policy of reservation is applied at the stage of
restructuring of Group C and D cadres then the same would amount to giving
double benefit to the members of Scheduled Castes and Scheduled Tribes, who had
already been given out-of turn promotions. Dr. Dhawan relied on the larger
Bench judgment of this Court in Indra Sawhney and Others vs. Union of India and
Others [1992 Supp. (3) SCC 217] and of the Constitution Bench in M. Nagaraj and
Others vs. Union of India and Others [2006 (8) SCC 212] and argued that even if
the upgraded posts are 8 required to be filled by promotion after following
the process of selection, the policy of reservation of posts for Scheduled
Castes and Scheduled Tribes cannot be applied qua such posts because no
quantifiable data showing backwardness of Scheduled Castes and Scheduled Tribes
and inadequacy of their representation was produced before the Tribunal. Dr.
Dhawan made specific
reference to paragraphs 85, 86, 106, 117, 119 and 121 of the judgment in M.
Nagaraj's case and argued that the enabling provision contained in Article
16(4-A) cannot be relied upon by the appellants to justify implementation of
the policy of reservation at the stage of restructuring of Group C and D cadres
because the members of Scheduled Castes and Scheduled Tribes are adequately
represented in those cadres and efficiency of the administration will be
adversely affected by giving double benefit to them. He then argued that even
if para 14 of letter dated 9.10.2003 is held to be constitutionally valid, the
policy of reservation should be made applicable only qua posts which become
available after 9.10.2003. Another argument of the learned senior counsel is
that if restructuring exercise is intended to remove stagnation and improve the
quality of services then implementation thereof cannot be made subject to the
policy of reservation. Shri Sushil Jain and Smt. Kiran Suri, Advocates, adopted
the arguments of Dr. Dhawan and submitted that view expressed by 9 different
benches of the Tribunal that the policy of reservation cannot be applied at the
stage of making appointment against the upgraded posts should not be disturbed
because the same has been substantively approved by this Court in V.K.
Sirothia's case and V.K. Agarwal's case. In the written submissions filed by
him, Shri Sushil Jain has highlighted the difference between the scheme of
restructuring resulting in upgradation of the posts and the policy of promotion
and contended that the Tribunal rightly annulled para 14 of letter dated
9.10.2003 on the ground that policy of reservation cannot be applied against
the upgraded posts. Another point made by Shri Jain is that the definition of
`cadre' contained in para 4(b) of Circular dated 21.8.1997 is ultra vires para
103 of the Code because the effect of statutory rules framed by the Board
cannot be nullified by an administrative decision.
6. Learned counsel
appearing for the respondent in SLP (C) No.5045 of 2007 supported the order
passed by Allahabad Bench of the Tribunal and argued that the direction given
for considering the case of his client for promotion as Personal Inspector
Grade `A' should not be upset because the cadre comprises of only two posts out
of which one was required to be filled from the general category candidates.
7. We have considered
the respective arguments/submissions and examined the records. The Railway
Establishment Code (hereinafter referred to as "the Code") was first
published in September 1940. It was revised from time to time. The 1985 edition
of the Code was issued under the authority of the President of India under
proviso to Article 309 of the Constitution of India. Paragraphs 103(7), 119,
120, 123 and 124 of the Code which have bearing on the decision of these cases
are as under:- 103(7) `Cadre' means the strength of a service or a part of a
service sanctioned as a separate unit.
119. In the Railway
Board and attached offices - The number and character of Group C & D posts
in the office of the Railway Board and other offices, projects, organizations
immediately under its control shall be such as may be determined by the Railway
Board. The Director General, Research, Designs and Standards Organisation or
any other authority to whom the powers may be specifically delegated by the
Railway Board may create temporary posts on the conditions prescribed in their
respective schedules of power.
120. On Railways,
Production Units or other Establishment - The number and character of Group C
& D posts may be determined by the General Managers or the authority in
whom such powers are delegated, provided that the prior sanction of the Railway
Ministry is necessary for the introduction of a new category not already
obtaining on a Railway.
11 123. The Railway
Board have full powers to make rules of general application to Group C &
Group D railway servants under their control.
124. The General
Managers of Indian Railways have full powers to make rules with regard to
Railway servants in Group C & D under their control provided they are not
inconsistent with any made by the President or the Ministry of Railways."
Para 103(i), (ii) and
(iii) of the Railway Establishment Manual (Volume I), which too is relevant for
these cases reads as under:- 103. Definitions - For the purpose of these rules,
unless there be anything repugnant in the subject or context - (i) A
"Group" means a series of classes which form a normal channel of
"Class" comprises all appointments in the same branch or department
bearing the same designation.
"Grades" are sub-divisions of a class, each bearing a different scale
of pay. An intermediate grade is any grade in a class, higher than the
8. Till 1997, the
rosters framed for giving effect to the policy of reservation were vacancy
based. In R.K. Sabharwal's case, this Court held that the rosters must be
operated with reference to the posts and not the vacancies. Thereafter, the
Government of India, Ministry of Railways (Railway Board) issued revised
instructions vide Circular R.B.E. No.113/97 and prescribed post based roster.
These instructions were circulated vide letter No.95-E(SCT)1/49/5(1) dated
21.8.1997, the relevant portions of which are extracted below: - Circular
No.113/97 "Under the existing instructions, vacancy based rosters have
been prescribed in order to implement the Government's Policy relating to the
reservation of jobs for the Scheduled Castes, Scheduled Tribes and other Backward
Classes (OBCs). The application of reservation on the basis of these rosters
was called in the question before the courts. The Constitution Bench of the
Supreme Court in the case of R.K. Sabharwal vs. State of Punjab as well as
Union of India vs. J.C. Malik has held that the reservation of jobs for
Backward Classes SC/ST/OBCs should apply to the posts and not to the vacancies.
The Court further held that the vacancy based rosters can operate only till
such time as the representation of the persons belonging to the reserved
categories, in a cadre, reaches the prescribed percentage of reservation.
Thereafter, the rosters cannot operate and vacancies released by retirement,
13 resignation, promotion etc. of the persons belonging to the general and the
reserved categories are to be filled by the appointment of the person from the
respective category so that the prescribed percentage of reservation is
The courts also held
that persons belonging to reserved categories, who are appointed on the basis
of merit and not on account of reservation are not be counted towards the quota
meant for reservation.
With a view to bring
the policy of reservation in line with the law laid down by the Supreme Court,
it has been decided that the existing 200 point and 100 point vacancy based
rosters of direct recruitment shall be replaced by post based rosters. All the
Zonal Railways, Production Units and Associated Officers of the Railway Board
should therefore, prepare the rosters for Group C posts (where the minimum of
scale of pay is Rs.1400 (RPS) and above) based on principles elaborated in the
Explanatory notes given in Annexure I and illustrated in the Model Roster as
given in Annexure II and Annexure III.
concerned authorities may prepare rosters to replace the existing 100 point
rosters in respect to local recruitment to Gr. C and Gr. D posts where the
minimum of scale of pay is less than 1400 (RPS) and normally attracting
candidates from a locality/region on the basis of the same principles.
14 The principles
for preparing the rosters elaborated upon in Explanatory notes are briefly
recapitulated below:- (a) The number of points in the roster shall be equal to
the number of posts in the cadre. In the case there is any increase or decrease
in the cadre strength in future, the rosters shall be expanded or contracted
(b) Cadre, for the
purpose of roster, shall mean a particular grade and shall comprise the number
of posts to be filled by a particular mode of recruitment in terms of the
codal/manual provisions of Railway Board's instructions issued from time to
time. Thus, in a cadre of say 200 posts where the recruitment rules prescribed
a ratio of 50:50 for direct recruitment and promotion, 2 rosters one for direct
recruitment and another for promotion (where reservation in promotion applies)
each comprising 100 points shall be drawn up on the lines of the respective
model rosters. The cadre also means the sanctioned temporary posts, work
charged posts, supernumerary posts, shadow posts in the grade."
9. The relevant
paragraphs of Railway Board's Circular No.181/85 which was issued vide letter
NO.PCIII/84/UPG/19 dated 25.6.1985 and was considered in various cases read as
under:- Letter dated 25.6.1985 15 "1. Restructuring of certain Group `C'
& `D' cadres have been under consideration in consultation with the Staff
Side in the Committee of the Departmental Council of the JCM (Railways) for
sometime. The Ministry of Railways have decided with the approval of the
President to restructure certain categories of Group `C' & `D' as detailed
in the Annexure enclosed.
2. While implementing
these orders specific instructions given in the footnote under the different
categories should be strictly and carefully adhered to.
3. For the purpose of
restructuring the cadre strength as on 1.1.1984 will be taken into account and
will include Rest Giver and Leave Reserve posts.
5.1 The existing
classification of the posts covered by these restructuring orders, as
"Selection" and "Non-Selection", as the case may be,
remains unchanged. However, for the purpose of implementation of these orders,
if an individual Railway servant becomes due for promotion to only one grade
above the grade of the post held by him, at present, on a regular basis, and
such higher grade post is classified as a "Selection" post, the
existing selection procedure will stand modified in such a case to the extent
that the selection will be based only on scrutiny of service records without
holding any written and/or viva-voce 16 test. Under this procedure, the
categorization `Outstanding' will not exist.
6.1 The existing
rules and orders in regard to reservation for SC/ST will continue to apply
while filling up additional vacancies in the higher grades arising as a result
9. In all the
categories covered by this letter even though more posts, in higher scales of
pay have been introduced as a result of restructuring, the basic functions,
duties and responsibilities, attached to these posts at present will continue,
to which may be added such other duties and responsibilities as considered
10. The Board desire
that restructuring and posting of staff after due process of selection as
provided for in these orders, should be completed expeditiously."
The percentage of
upgraded posts is indicated in Annexure I appended to letter dated 25.6.1985,
which reads as under:- ANNEXURE-I Subject: Statement indicating restructuring
of certain Group `C' and `D' cadres on Railways.
dated 25.6. 1985 17 I Loco Running Staff
1. Passenger Driver
`A' All Passenger Train Drivers `A' having (Rs.550-700) a run of 250 kms. And
above to be upgraded from Driver `A' (Rs.550-700) to Driver `A' Spl.
(Rs.550-750) All Leave Reserve for `A' Spl. and `A' Drivers to be kept in Grade
2. (i) Goods Driver
Gr.`B' Goods Driver Gr.`B' Percentage (Rs.425-640 - 40%) Rs.425-640 60 (ii)
Goods Driver Gr.`C' Goods Driver Gr.`C' 40 (Rs.330-560-60%) Rs.330-560 (10% of
the Gr.`C' Selection Grade Rs.425-600 posts operated as to be discontinued
Selection Grade posts in Rs.425-600)
3. Shunters 30% of
Shunters to be upgraded as (Rs.290-400) Shunting Drivers Rs.330-560
4. Fireman `A'/Disel
Asstt./ 30% of posts to be given special pay @ Asstt. Elec. Loco Driver Rs.15
5. Fireman `B' Leave
reserve posts for Fireman `A' (Rs.260-350) hitherto kept in Fireman `B' to be
upgraded to Fireman `A'
6. Fireman `C' 30% of
Fireman `C' to be upgraded to (Rs.210-270) scale Rs.260-350 (L) (L) Note: 30%
of Fireman `C' scale Rs.210-270 who are upgraded to scale Rs.260-350 will
remain designated as Fireman `C' and utilized as far as possible on Mail,
Express and Passenger Trains. The further avenue of promotion of Fireman `C' in
scale Rs.210-270 and Rs.260- 350 will remain unaltered.
7. Motormen on EMU
Trains 50% on Western Railway and 40% on (Rs.550-700) Central, Northern,
Eastern, Southern and S.E. Railways to be upgraded as Driver `A' Spl. in scale
II. Traffic Running
1. Passenger Guard
`A' (i) All Passenger Train Guards (Rs.425-600) having a run of 250 kms. and
above to be upgraded to Guard `A' Spl. Rs.425-640.
(ii) Leave Reserve
for `A' Spl. and `A' Guard to be kept in `A' Grade only.
2. (i) Goods Guard
Gr.`B' Goods Guard Gr.`B' Percentage (Rs.330-560-40%) Rs.330-560 60 (ii) Goods
Guard Gr.`C' Goods Guard Gr.`C' 40 (Rs.330-530-60%) Rs.330-530 III. Account
Staff Clerks Grade I to be aggregated with Selection Grade Clerks Grade I, Sub-
Heads and Selection Grade Sub-Heads and placed in the following Percentages:-
Clerk Grade I 55% (Rs.330-560) Sub-Heads 45% (Rs.425-700) Note:
1. Posts of Selection
Grade Clerks Grade I Rs.425-700 to be discontinued.
2. Selection Grade
Sub-Heads will continue as per extant orders.
3. Sub-Heads to work
as Clerical hands as required by the Administration 19 IV. Cash & Pay
Office Staff The cadre of Shroffs to be placed in the following Percentages:-
(a) Head-Shroff Rs.425-640 20% Senior Shroff Rs.330-560 40% Junior Shroff
Rs.260-400 40% (b) Cashiers to be placed in the following Percentages:-
Rs.455-700 40% Rs.425-640 40% Rs.330-560 20% (c) Upgradation effected to posts in
Supervisory Cadre as under:- Scale (Rs.) Existing Revised 700-900 55 107
550-750 134 146 455-700 37 Nil Total 226 253 (+27 posts upgraded from Head
Shroff Scale Rs.425-640) The detailed distribution of Supervisory Cadre
Railway-wise is given in Annexure-II.) V. Tool Checkers 1. CLW & DLW: The
existing cadre of Tool Checkers in CLW &
DLW will be
restructured as under:- Scale (Rs.) Revised Percentage 260-400 40% 330-560 30%
425-700 20% 550-750 10% 20 The CLW and DLW Administration should take action
for introducing direct recruitment in the cadre of Tool Checkers on the
standard pattern applicable to other Ministerial cadres and merge with the
appropriate Ministerial cadre.
2. Eastern Railway:
The Tool Checkers on Eastern Railway will also have the grades Rs.425-700 and
Rs.550-750 and the same percentage structure as laid down for CLW and DLW in
Item I above with the proviso that upgradation of posts to scale Rs.550-750
forming part of 10% of the cadre will be effected only after the existing staff
promoted to scale Rs.425-700 in terms of these restructuring orders complete
one year of service in that grade from the date of physical promotion. The
Railway should take action to merge the cadre of Tool Checkers with the
appropriate Ministerial cadre and introduce direct recruitment as per existing
pattern applicable to the Ministerial cadre.
(Rs.260-430) The existing regular incumbents of the post of Tracers in all the
four disciplines of the Engg. Departments viz. Civil Engg, Mechanical Engg., Signal
& Telecommunication Engg. and Elec. Engg. Departments will be promoted in
the following manner:- 21 (i) Those who possess the diploma in Draftsmanship
from recognized institutions will be upgraded as Junior Draftsman scale
(ii) Those who do not
possess the diploma in Draftsmanship but have completed 5 years of service as
on 1.1.84 will be upgraded as Junior Draftsman in scale Rs.330-560.
(iii) The balance
non-qualified Tracers will be progressively promoted by upgrading their posts
as Junior Draftsman (Rs.330-560) as and when they complete 5 years of service
or acquire the necessary qualification. The review will be done every six
months commencing from 1.7.1986.
(iv) The vacancies
which occur in the normal course in scale Rs.330-560 will continue to be filled
as per existing pattern.
(v) After the entire
cadre of the Tracers has been fully accommodated in the higher grade post of
Junior Draftsman in scale Rs.330-560, future vacancies in scale Rs.330-560 will
be filled cent-per-cent by direct recruitment of diploma holders in
Draftsmanship. Detailed instructions will follow.
The existing cadre of
Tracers is to be frozen and actual requirements reviewed and determined with
Board's approval within six months. In this connection, reference is invited to
Ministry of Railways letter No.E(NG) II- 85/RC-2/7 dated 27.2.1985. Once the
cadre of the Junior Draftsman in scale Rs.330-560 is fixed finally, it will be
taken into account for percentage distribution applicable to the drawing office
staff vide item 6 of the Annexure to this Ministry's letter No.PCIII/84/UPG/9,
dated 16.11.1984 in the subsequent annual cadre reviews.
VII. Permanent Way
Mates to Permanent Way Mistries 22 (i) 20% of posts of Permanent Way Mates in
scale Rs.260-400 to be upgraded to Permanent Way Mistries in scale Rs.380-560.
(ii) 50% of vacancies
arising on or after 1.1.85 in scale Rs.380-560 should be filled by candidates
who have passed 12th Standard with Maths and Science.
recruitment of PWI Grade III in scale Rs.425-700 will be reduce from 75% to
66-2/3% for vacancies arising in that category after the date of restructuring
as proposed in item VII(i) above. For promotion of directly recruited PW
Mistries scale Rs.380-560 to PWI Grade III in scale Rs.425-700, a minimum of
three years service as PW Mistries will be required including training period.
VIII Message Checkers
(for Central Western & Eastern Railways only) Message Checkers will be
restructured as under:- Grade Central Western Eastern (Rs.) Extg. Revd. Extg.
Revd. Extg. Revd.
cadre cadre cadre
cadre cadre cadre 260-430 5 4 8 7 4 3 330-560 4 3 6 5 3 3 425-640 1 2 1 2 2 2
550-750 - 1 1 1 - 1 700-900 1 Total 10 10 16 16 9 9
10. The relevant
paragraphs of policy contained in letter dated 9.10.2003 which is subject
matter of this litigation, also read as under:- "The Ministry of Railways
have had under review cadres of certain Group `C' & `D' staff in
consultation with the staff side with a view to strengthening and rationalizing
the staffing pattern on Railways. As a result of the review undertaken on the
basis of functional, operational and administrative 23 requirements, it has
been decided with the approval of the President that the Group `C' & `D'
categories of staff as indicated in the Annexures to this letter should be
restructured in accordance with the revised percentages indicated therein.
these orders the following detailed instructions should be strictly and
carefully adhered to:
xxx xxx xxx 1. Date
of effect (hereinafter referred to as cut-off date):
This restructuring of
cadres will be with reference to the sanctioned cadre strength as on the date
following the date on which the cadres in the headquarter offices of new Zonal
Railways/New Divisions are closed. The benefit of restructuring will be
restricted to the persons who are working in a particular cadre on the cut-off
3. Pay Fixation (Rule
1313 (FR 22) - RII). Staff selected and posted against the additional higher
grade posts as a result of restructuring will have their pay fixed under Rule
1313 (FR-22)(I)(a)(1)-RII on proforma basis w.e.f.
the cut-off date with
the usual option for pay fixation as per extant rules. Actual payment based on
the pay so fixed should be made from the date of taking over the charge of the
higher grade post arising out of these restructuring orders. The benefit under
this rule will, however, no longer be available in the case of movement from
lower grade to higher grade in the non-functional situations where there is no
change in duties as in the 24 case of movement from Goods Guards to Sr. Goods
Guards and Goods Drivers to Sr. Goods Drivers etc. In the case of such
movement, the pay will be fixed under Rule 1313 (FR 22) (I)(a)(2)-RII. However,
the benefit of fixation of pay under Rule 1313 (FR-22)(I)(a)(1) R-II will now
be admissible in the cases of functional promotions such as promotion from Sr.
Goods Guards to Passenger Guards and Sr. Goods Drivers to Passenger Drivers
etc. though in identical scale of pay.
4. Existing classification
and filling up of the vacancies.
classification of the posts covered by these orders as `selection' and
`non-selection', as the case may be, remains unchanged. Action should be taken
to position the employees on the basis of selection/non-
selection/suitability/Trade Test, as the case may be.
instructions contained in Para 13.2 should be followed in case of placement of
Supervisors (erstwhile Mistries) to grade Rs.5000-8000.
instructions for D&A/Vigilance clearance will be applicable for effecting
promotions under these orders with reference to the cut-off date.
6. Minimum years of
service in each grade. While implementing the restructuring orders,
instructions regarding minimum period of service for promotion 25 issued from
time to time should be followed. In other words, residency period prescribed
for promotions to various categories should not be relaxed.
7. Basic functions,
duties and responsibilities. Since the cadres as detailed in the annexures to
this letter are being restructured on functional, operational and
administrative considerations, the posts being placed in higher scales of pay
as a result of restructuring should include the duties and responsibilities of
8. Adjustment of
excess number of posts. If prior to issue of these instructions the number of
posts existing in any grade in any particular cadre exceeds the number
admissible on the revised percentages, the excess be allowed to continue to be
phased out progressively with the vacation of the posts by the existing
11. Introduction of
Direct recruitment (i)Ministerial Staff (excluding Accounts staff)
(ii)Personnel Inspectors (iii) Depot Material Superintendents.
The implementation of
restructuring scheme in the categories of Ministerial staff, Personnel
Inspectors and Depot Material Superintendents is subject to the introduction of
direct recruitment in these categories.
of the restructuring in accordance with the revised percentage distribution of
posts 26 indicated in the annexures enclosed, the vacancies arising in these
categories on or after the cut-off date should be filled through direct
recruitment in the manner indicated hereunder:-
11.1 An element of
direct recruitment of graduates with not less than 50% marks shall now be
introduced at the level of Office Superintendent Gr.II in the pay scale
Rs.5500- 9000 in the Ministerial categories (Establishment & other than
Establishment but excluding Accounts) to the extent of 20% of the posts. The
remaining 80% of the posts in grade Rs.5500-9000 shall continue to be filled by
promotion of staff from the lower grade Rs.5000- 8000 as per the procedure in
11.2 20% of the posts
in grade Rs.6500-10500 in the category of Personnel Inspectors shall be filled
by direct recruitment from amongst the candidates possessing Bachelor degree
with Postgraduate Diploma in Personnel Management, labour laws, etc. as
mentioned in Board's letter No.E(NG)I-2002/PM4/1 dated 12-07-2002. The remaining
80% of the posts shall continue to be filled by promotion of staff from the
lower grade of Rs.5500-9000 as per the procedure in force.
11.3 20% of the posts
in grade Rs.6500-10500 in the category of Depot Material Superintendents should
be filled by direct recruitment from amongst the candidates possessing
qualification of degree in Engineering in any discipline. The remaining 80% of
the posts shall 27 continue to be filled by promotion of staff from the lower
grade of Rs.5500-9000 as per procedure in force.
12. Gatemen (Engg.)
As a result of implementation of this restructuring, more number of additional
posts will be available in the highest grade of this category.
therefore, the posts of Gatemen (Engg.) should be operated in grade Rs.2750-4400.
In order to ensure the full availability of Gatemen (Engg.) and rotation of the
existing staff specially those who are working, as such, for a long period, the
Trackmen etc. at the time of their promotion to grade Rs.2750-4400 should be
posted as Gateman (Engg.) subject to their fulfilling the requirement of
prescribed medical standard and literacy level etc. as per extant instructions.
13(a) Upgradation of
the posts of Supervisor (erstwhile Mistries) Subject to provisions of Para-13.2
below, all the posts of Supervisors (erstwhile Mistries) in grade Rs.4500-7000
+ Rs.100 Special Allowance (excluding Supervisors (P.Way) should enbloc be
upgraded to the posts of Junior Engineer Gr.II in the pay scale of Rs.5000-8000
and merged with the respective cadre of Technical Supervisors with its spread
effect in higher grades Rs.5500-9000, 6500-10500 & 7450-11500 as per the
revised percentage distribution of posts prescribed for Technical Supervisors
in these orders.
28 13(b) In case of
Supervisor (P.Way), the posts being held by the erstwhile PWMs supervising more
than one gang upto a maximum of 17.26% of the sanctioned cadre of PWMs shall be
upgraded to and merged with the posts of Junior Engineer (P.Way) Gr.II in the
pay scale of Rs.5000-8000 with its spread effect in higher grades of JE-I, SE
& SSE in grades Rs.5500-9000, 6500-10500 & 7450-11500 respectively, as
per the revised percentages prescribed for Technical Supervisors in these
13.1 The financial
implications involved in the upgradation covered by (a) & (b) above should
be off set by surrender of posts of Supervisors of equivalent money value.
13.2 Procedure for
fitment. The placement of the existing incumbents will be regulated as per the
procedure given below:- (a) The existing regular incumbents of the posts of
Supervisors (including Supervisors/P.Way to the extent of upgradation of posts)
will be placed in grade Rs.5000- 8000 without subjecting them to normal
selection procedure. Their suitability shall be adjudged by following modified
selection procedure according to which the selection will be based on scrutiny
of service records and confidential reports only.
(b) The Supervisors
(other than P.Way) who do not get promoted to grade Rs.5000-8000 shall continue
to hold the post in the existing grade Rs.4500-7000 + Rs.100 SA 29 as personal
to them. To this extent, the posts upgraded to grade Rs.5000-8000 will be
operated in the lower grade Rs.4500-7000 + Rs.100 SA till the existing
incumbents vacate the same by way of promotion, retirement etc. On vacation of
the posts, the same shall automatically be operated in grade Rs.5000-8000.
provisions for Supervisor (P.Way) The remaining posts of Supervisors (P.Way),
erstwhile PWMs which are not to be upgraded and shall continue to be operated
in the existing scale of pay, should be redesignated as `Track Supervisor'.
13.4 While the
existing incumbents of the post of Supervisor (P.Way) redisignated as `Track
Supervisor' shall continue to draw the scale of pay Rs.4500-7000 + Rs.100 SA as
personal to them, the future incumbents to the post of `Track Supervisor' will
be in the pay scale of Rs.4500-7000 without the Special Allowance of Rs.100/-.
13.5 The upgradation
of posts of Supervisor (P.Way) as indicated hereinabove should not result in
creation of posts of Trolleymen. In other words under no circumstances,
additional posts of Trolleyman would be created.
14. Provisions of
reservation. The existing instructions with regard to reservation of SC/ST
wherever applicable will continue to apply.
recruitment percentages: Direct recruitment percentages will not be applicable
to the additional posts arising out of these restructuring orders as on the
cut-off date. The direct recruitment percentage will apply for normal vacancies
arising on or after the date following the cut-off date. Also the direct
recruitment quota as on the date preceding the cut-off date will be maintained.
16. Pin pointing of
posts. The administration should take steps to pin-point the additional posts
arising out of this restructuring as per administrative requirements.
18. Matching Savings.
Entire scheme of restructuring is to be a self-financing and expenditure
implications should be worked out taking into account the mid points of the
scales of pay of the respective posts (mean of the minima and maxima of the
scale), existing number of posts and revised number of posts in the grade on
the basis of the revised percentage of distribution of posts. After working out
the financial implications, the matching savings should be effected from the
category itself. Wherever it is not possible to do so from the category itself,
the matching savings should be arranged from the department at the
divisional/zonal level. But before restructuring the cadre 31 as per the
revised percentage distribution of posts, matching savings will have to be
ensured and if the Department/Railways are not able to provide the matching
savings, the particular category/department will not be restructured. While
effecting surrender of posts of equivalent financial value, the existing vacant
posts available in the categories on the cut-off date should be considered for
the purpose of off-setting the cost of restructuring/financial effects of
Board desire that the
General Managers should ensure that the restructuring is implemented
expeditiously with matching savings without any exception and difficulty.
There would be no
restructuring without matching savings by surrender of posts."
of Zonal Railways/Divisions: Due to re-organization of Zonal Railways/Divisions
cadres are in a fluid situation. It may, therefore, take some time for the
cadres in the headquarter offices of New Zones and Divisions to stabilize. In
the circumstances, new Zonal Railways are required to ensure that the staff
transferred to headquarter offices of new Zonal Railways/new Divisions are not
extended the double benefit of restructuring. In case an employee has been
given the benefit of restructuring on the old (parent) railway in terms of
these orders, he will not be allowed the benefit of restructuring again on the
headquarter offices of new 32 Zonal Railways/new Divisions. In other words, no
railway servant will be considered for double promotion as a result of this
The existing and
revised percentage of posts in different cadres are indicated in Annexures `A'
to `K' appended to letter dated 9.10.2003. For the sake of reference Annexure
`A'(i) appended to that letter is reproduced below:- ANNEXURE `A'(i) STATEMENT
REGARDING RESTRUCTURING OF GROUP `C' & `D' STAFF OF TRANSPORTATION TRAFFIC
DEPARTMENT Annexure to Board's letter No.PC III/2003/CRC/6 dated 9-10-2003
CATEGORY GRADE EXISTING REVISED %AGE %AGE (Rs.) Station Masters/Assistant
7450-11500 6.5 Station Masters* 6500-10500 22 5500-9000 30 5000-8000 33
4500-7000 8.5 Train Clerks 5500-9000 20 30 5000-8000 30 36 4000-6000 25 17
3050-4590 25 17 Traffic Controllers 7450-11500 30 37 6500-10500 55 48 5500-9000
15 15 Shunting Masters/ 5000-8000 25 50 Jamadars 4000-6000 75 50 33
Pointsmen/Levermen/ 3050-4590 75 83 Shuntmen 2650-4000 25 17 Cabinmen 4000-6000
25 50 3050-4590 75 50 Foot Note: The revised percentage distribution of posts
will be made applicable in the unified cadre as per the provisions contained in
Para-10.1 of the covering letter.
11. The nature and
scope of the Railway Board's power to make rules was considered by the
Constitution Bench of this Court in B.S. Vadera vs. Union of India and Others
[1968 (3) SCR 575]. The facts of that case were that the petitioners, who
joined service as Lower Division Clerks, were first promoted as Upper Division
Clerks and then as Assistants (on ad-hoc basis). In June 1967, they were
reverted to the posts of Upper Division Clerks. It was argued on their behalf
that the Railway Board does not have the power to frame the Scheme or amend the
same with retrospective effect.
This Court referred
to the provisions of the Indian Railway Board Act, 1905, Article 309 of the
Constitution and Rules 157 and 158 of the Code (these rules are pari material
to paras 123 and 124 of 1985 edition of the Code) and held that the Railway
Board's Secretariat Clerical Service (Re- organisation) Scheme was statutory in
character and that the Railway Board could amend the same with retrospective
effect. Paras 21 to 25 of the judgment which contain its ratio are extracted
below:- 34 "21. There is no controversy that the Indian Railway
Establishment Code has been issued, by the President, in exercise of the
powers, vested in him, by the proviso to Article 309, of the Constitution. Only
two rules require to be noted, and they are Rules 157 and 158, occurring in
Chapter I, under the sub-heading "Power to frame rules". They are as
Railway Board have full powers to make rules of a general application to
non-gazetted railway servants under their control.
158. The General
Managers of Indian Railways have full powers to make rules with regard to
non-gazetted railway servants under their control, provided they are not
inconsistent with any rules made by the President or the Railway Board."
We are not concerned,
really in this matter, with Rule 158, because the Scheme, Annexures 4 and 7, in
particular, and the various orders, have been passed by the 2nd respondent, the
Railway Board. The Railway Board, as will be seen from Rule 157, have full
powers to make rules of general application, to non-gazetted railway servants
under their control. The question is whether the 2nd respondent, has, while
acting under Rule 157, power to make a rule (in this case, the Scheme), having
effect from an anterior date.
22. The matter must
be considered, in the light of the provisions of Article 309, of the
Constitution. That Article provides:
"309. Subject to
the provisions of this Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of persons appointed, to
public services and posts in connection with the affairs of the Union or of any
Provided that it
shall be competent for the President or such person as he may direct in the
case of services and posts in connection with the affairs of the Union, and for
the Governor of a State or such person as he may direct in the case of services
and posts in connection with the affairs of the State, to make rules regulating
the recruitment, and the conditions of service of persons appointed, to such
services and posts until provision in that behalf is made by or under an Act of
the appropriate Legislature under this article, and any rules so made shall
have effect subject to the provisions of any such Act."
We may emphasize the
words "and any rules so made shall have effect subject to the provisions
of any such Act," which must receive their due weight. To that aspect, we
shall come, presently.
23. We have already
pointed out, that Annexure 4 was issued on February 5, 1957, and Annexure 7, on
March 30, 1963, and 36 that the initial constitution of the Service was to be
from December 1, 1954, and it is, on that basis, that the promotions, or
appointments, to the Service, are to be made. In this case, there is no Act of
the appropriate Legislature, regulating the recruitment and conditions of
service, under the 2nd respondent and, therefore, the main part of Article 309
is not attracted. But, under the Proviso therein, the President has got full
power to make rules, regulating the recruitment, and conditions of service, of
persons, under the 2nd respondent. Further, under the Proviso, such person, as
may be directed by the President, can also make rules, regulating the
recruitment and conditions of service, of persons, under the 2nd respondent.
The rules so made, either by the President, or such person, as he may direct,
will have currency, until provision, in that behalf, is made by or under an
Act, of the appropriate Legislature, under Article 309.
24. It is also
significant to note that the proviso to Article 309, clearly lays down that
`any rules so made shall have effect, subject to the provisions of any such
Act'. The clear and unambiguous expressions, used in the Constitution, must be
given their full and unrestricted meaning, unless hedged-in, by any
limitations. The rules, which have to be `subject to the provisions of the
Constitution, shall have effect, `subject to the provisions of any such Act'.
That is, if the appropriate legislature has passed an Act, under Article 309,
the rules, framed under the proviso, will have effect, subject to that Act;
but, in the absence
of any Act, of the appropriate legislature, on 37 the matter, `in our opinion,
the rules, made by the President, or by such person as he may direct, are to
have full effect, both prospectively, and, retrospectively. Apart from the
limitations, pointed out above, there is none other, imposed by the proviso to
Article 309, regarding the ambit of the operation of such rules. In other
words, the rules, unless they can be impeached on grounds such as breach of
Part III, or any other Constitutional provision, must be enforced, if made by
the appropriate authority.
25. In the case
before us, the Indian Railway Establishment Code has been issued, by the
President, in the exercise of his powers, under the proviso to Article 309.
Under Rule 157, the President has directed the Railway Board, to make rules, of
general application to non-gazetted railway servants, under their control. The
rules, which are embodied in the Schemes, framed by the Board, under Annexures
4 and 7, are within the powers, conferred under Rule 157; and, in the absence
of any Act, having been passed by the `appropriate' Legislature, on the said
matter, the rules, framed by the Railway Board, will have full effect and, if
so indicated, retrospectively also. Such indication, about retrospective
effect, as has already been pointed out by us, is clearly there, in the
12. In view of the
pronouncement of the Constitution Bench, there cannot be any doubt that the
Railway Board and General Managers are empowered 38 to frame rules for
regulating the recruitment and conditions of service of the employees.
13. We shall now
consider whether the posts created with reference to different grades in Group
C and D can be treated as independent cadres and the policy of reservation can
be applied while making appointment to these cadres.
14. A conjoint reading
of paragraph 103(7) of the Code, 103(iii) of the Railway Establishment Manual
and Circular R.B.E. No.113/97 makes it clear that in the railways, the term
`cadre' generally denotes the strength of a service or a part of a service
sanctioned as a separate unit. However, for the purpose of roster, a wider
meaning has been given to the said term so as to take within its fold the posts
sanctioned in different grades. The reason for giving this enlarged meaning to
the term "cadre" is that posts in the railway establishment are
sanctioned with reference to grades. Even temporary, work charged,
supernumerary and shadow posts created in different grades can constitute part
of the cadre.
15. In the service
jurisprudence which has developed in our country, no fixed meaning has been
ascribed to the term "cadre". In different service 39 rules framed
under proviso to Article 309 of the Constitution as also rules framed in
exercise of the powers of delegated legislation, the word "cadre"
has been given
16. In A.K. Subraman
and Others vs. Union of India and Others [1975 (1) SCC 319], a three Judges
Bench of this Court while interpreting the provisions contained in Central
Engineering Service, Class I, Recruitment Rules, 1954, observed as under :
"grade" has various shades of meaning in the service jurisprudence.
It is sometimes used to denote a pay scale and sometimes a cadre. Here it is
obviously used in the sense of cadre. A cadre may consist only of permanent
posts or sometimes, as is quite common these days, also of temporary
17. In Dr. Chakradhar
Paswan vs. State of Bihar and Others [1988 (2) SCC 214] it was observed as
under:- "In service jurisprudence, the term `cadre' has a definite legal
connotation. It is not synonymous with `service'. It is open to the Government
to constitute as many cadres in any particular service as it may choose
according to the administrative convenience and expediency and it cannot be
said that the establishment of the Directorate constituted the formation of a
joint cadre of the Director and the Deputy Directors because 40 the posts are
not interchangeable and the incumbents do not perform the same duties, carry
the same responsibilities or draw the same pay. The posts of the Director and
those of the Deputy Directors constitute different cadres of the Service. The
first vacancy in the cadre of Deputy Directors was that of the Deputy Director
(Homoeopathic) and it had to be treated as unreserved, the second reserved and
the third unreserved.
Therefore, for the
first vacancy of the Deputy Director (Homeopathic), a candidate belonging to
the Scheduled Caste had therefore to compete with others."
18. In State of
Maharashtra vs. Purshottam and Others [1996 (9) SCC 266], it was held that the
"cadre" means unit of strength of a service or a part of it as
determined by the employer.
19. The argument of
Shri Sushil Jain that para 4(b) of Circular RBE No.113/97 dated 21.8.1997 is
ultra vires the definition of the word "cadre"
contained in para
103(7) of the Code completely ignores the stark reality that in the railway
establishment the posts are sanctioned with reference to grades which term
means sub-division of a class, each bearing a different scale of pay.
Therefore, the posts sanctioned in different grades would constitute
independent cadres and we see no reason why a restricted 41 meaning should be
given to the term `cadre' for the purpose of implementing the roster.
20. The next question
which merits consideration is whether the policy of reservation can be applied
at the stage of restructuring of Group C and D cadres in the railways and
whether para 14 of letter dated 9.10.2003 is violative of doctrine of equality
enshrined in Articles 14 and 16 of the Constitution.
21. A cursory reading
of the relevant extracts of letters dated 25.6.1985 and 9.10.2003 reproduced
hereinabove may give an impression that the policies contained therein are
similar but a closer scrutiny thereof reveals the following stark
dissimilarities:- (i) In terms of para 5.1 of letter dated 25.6.1985, the
existing classification of the posts covered by the restructuring orders i.e.
`non-selection' was to be retained. However, for the purpose of promoting an
individual railway employee there was deemed modification of the selection
procedure and the promotion was to be made without holding any written test
and/or viva-voce. As against this, action in terms of para 4 of letter dated
9.10.2003 is required to be taken for making appointment on the basis of 42
selection/non-selection/suitability/Trade Test and in para 5, the requirement
of D&A/Vigilance clearance has been made mandatory for effecting promotion
with reference to the cut off date.
(ii) While the policy
contained in letter dated 25.6.1985 did not specify any minimum period of
services as a condition for promotion, para 6 of letter dated 9.10.2003 lays
down the requirement of minimum period of services as a condition for promotion
and also declares that residency period prescribed for promotion to various
categories should not be relaxed.
(iii) Para 9 of
letter dated 25.6.1985 postulated retention of basic functions, duties and
responsibilities and addition of other duties and responsibilities, whereas
para 7 of letter dated 9.10.2003 mandates that posts being placed in the higher
scales of pay should include the duties and responsibilities of greater
importance because restructuring is contemplated on functional, operational and
(iv) While the policy
contained in letter dated 9.10.2003 postulates progressive phasing out of
excess number of posts in a particular cadre, no such provision was made in the
policy circulated vide letter dated 25.6.1985.
43 (v) The
instructions contained in letter dated 25.6.1985 did not provide for direct
recruitment against upgraded posts, but para 15 of letter dated 9.10.2003
unequivocally lays down that direct recruitment percentages will not be
applicable to the additional posts becoming available as a result of
restructuring and the same will apply to normal vacancies after the cut-off
(vi) Para 18 of
letter dated 9.10.2003 shows that the scheme of restructuring is a
self-financing and expenditure neutral proposition.
There was no such
provision in the earlier policy.
(vii) Annexure 1
appended to letter dated 25.6.1985 shows that the percentage of the upgraded
posts becoming available as a result of restructuring varied from 20 to 60 in
different grades, except in the cadre of Tool Checkers where the percentage
varied from 10 to 40.
As against this, the
percentage of additional posts (as indicated in Annexures A to K appended to
letter dated 1.10.2003) becoming available as a result of restructuring of
different cadres in Group C and D posts varied from 1 to 10, except in one or
two cadres where it was more than 20.
22. From what we have
noted above, it is clear that the policies contained in letters dated 25.6.1985
and 9.10.2003 are substantially dis-similar. The 44 exercise of restructuring
envisaged in the first policy was in the nature of upgradation of substantial
number of posts in different cadres and the upgraded posts were to be filled simply
by scrutinizing the service records of the employees without holding any
written and/or viva voce test and there was no merit based selection. In
contrast, the restructuring exercise envisaged in letter dated 9.10.2003
resulted in creation of additional posts in some cadres with duties and
responsibilities of greater importance and which could be filled by promotion
from amongst the persons fulfilling the conditions of eligibility and
satisfying the criteria of suitability and/or merit.
Para 13 of letter
dated 9.10.2003 is, in itself, demonstrative of the difference between simple
upgradation of posts in the cadre of Supervisors which are required to be
filled without subjecting the incumbents of the posts to normal selection
procedure whereas the additional posts becoming available in other cadres are
required to be filled by promotion.
23. In legal
parlance, upgradation of a post involves the transfer of a post from the lower
to the higher grade and placement of the incumbent of that post in the higher
grade. Ordinarily, such placement does not involve selection but in some of the
service rules and/or policy framed by the employer for upgradation of posts,
provision has been made for denial of higher grade to an employee whose service
record may contain adverse 45 entries or who may have suffered punishment -
D.P. Upadhyay vs. G.M., N.R. Baroda House and Others [2002 (10) SCC 258].
24. The word
`promotion' means "advancement or preferment in honour, dignity, rank, or
grade". `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" - State of Rajasthan vs. Fateh Chand Soni [1996 (1) SCC 562].
25. Once it is
recognized that the additional posts becoming available as a result of
restructuring of different cadres are required to be filled by promotion from
amongst the employees who satisfy the conditions of eligibility and are
adjudged suitable, there can be no rational justification to exclude the
applicability of the policy of reservation while effecting promotions, more so
because it has not been shown that the procedure for making appointment by
promotion against such additional posts is different than the one prescribed
for normal promotion. In Fateh Chand Soni's case, this Court interpreted the
provisions contained in the Rajasthan Police Service Rules, 1954, which regulate
appointment to the Selection Scale in 46 the service and held that such
appointment constitutes promotion. The Court then considered two earlier
judgments in Lalit Mohan Deb vs. Union of India [1973 (3) SCC 862] and Union of
India vs. S.S. Ranade [1995 (4) SCC 462] and declared that the High Court was
in error in holding that appointment to the Selection Scale does not constitute
26. In Ram Prasad and
Others vs. D.K. Vijay and Others [1999 (7) SCC 251], it was submitted that the
view taken in Fateh Chand Soni's case requires re-consideration because the
same is inconsistent with the latter judgments in Ajit Singh Januja vs. State
of Punjab [1996 (2) SCC 715] and Ajit Singh II vs. State of Punjab [1999 (7)
SCC 209]. While rejecting this plea, the Constitution Bench observed:-
"The contention of Shri Gopal Subramanium for the general candidates that
appointment from senior scale to selection scale is not a promotion and that
Fateh Chand Soni requires reconsideration in view of the judgments in Union of
India vs. S.S. Ranade and Lalit Mohan Deb vs. Union of India cannot be
accepted. We are unable to agree. We find that both these cases have been
referred to and explained in Fateh Chand Soni case. Therefore, the reserved
candidates are entitled to be promoted to the selection scale by way of the
roster points. But this has to be done in the manner mentioned in R.K.
Sabharwal 47 vs. State of Punjab. The appeal of the general candidates has to
27. A careful reading
of the policy contained in letter dated 9.10.2003 shows that with a view to
strengthen and rationalize the staffing pattern, the Ministry of Railways had
undertaken review of certain cadres. The basis of the review was functional,
operational and administrative requirement of the Railways. This exercise was
intended to improve the efficiency of administration by providing incentives to
the existing employees in the form of better promotional avenues and at the
same time requiring the promotees to discharge more onerous duties. The policy
envisaged that additional posts becoming available in the higher grades as a
sequel to restructuring of some of the cadres should be filled by promotion by
considering such of the employees who satisfy the conditions of eligibility
including the minimum period of service and who are adjudged suitable by the
process of selection.
This cannot be
equated with upgradation of posts which are required to be filled by placing
the existing incumbents in the higher grade without subjecting them to the
rigor of selection.
28. In view of the
above discussion, we hold that the Railway Board did not commit any illegality
by directing that the existing instructions with 48 regard to the policy of
reservation of posts for Scheduled Castes and Scheduled Tribes will apply at
the stage of effecting promotion against the additional posts and the Tribunal
committed serious illegality by striking down para 14 of letter dated
29. Before parting
with this aspect of the case, we consider it necessary to reiterate the settled
legal position that matters relating to creation and abolition of posts,
formation and structuring/restructuring of cadres, prescribing the source/mode
of recruitment and qualifications, criteria of selection, evaluation of service
records of the employees fall within the exclusive domain of the employer. What
steps should be taken for improving efficiency of the administration is also
the preserve of the employer. The power of judicial review can be exercised in
such matters only if it is shown that the action of the employer is contrary to
any constitutional or statutory provision or is patently arbitrary or is
vitiated due to mala fides. The Court cannot sit in appeal over the judgment of
the employer and ordain that a particular post be filled by direct recruitment
or promotion or by transfer. The Court has no role in determining the
methodology of recruitment or laying down the criteria of selection. It is also
not open the Court to make comparative evaluation of the merit of the candidates.
The Court cannot suggest the manner in which the employer 49 should structure
or restructure the cadres for the purpose of improving efficiency of
30. We may now deal
with an ancillary question whether the policy of reservation of posts for
Scheduled Castes and Scheduled Tribes can be applied in the matter of
31. The framers of
the Constitution were very much conscious and aware of the widespread
inequalities and disparities in the social fabric of the country as also of the
gulf between rich and poor and this is the reason why the goal of justice -
social, political and economic was given the place of pre-eminence in the
Preamble. The concept of equality enshrined in Part III and Part IV of the
Constitution has two different dimensions. It embodies the principle of
non-discrimination [Articles 14, 15(1), (2) and 16(2)]. At the same time it
obligates the State to take affirmative action for ensuring that unequals
(downtrodden, oppressed and have-nots) in the society are brought at a level
where they can compete with others (haves of the society) (Articles 15(3), (4),
(5), 16(4), (4A), (4B), 39, 39A and 41).
32. The legislative
and administrative measures taken by the State for providing reservation of
seats and posts in the field of education and 50 employment are reflective of
the affirmative action taken for achieving the goal of real equality. However,
implementation and execution of such actions have continuously faced roadblocks
at several stages. Those who had been benefited by the existing system cried
foul and created the bogy of violation of their legal and constitutional
rights. Almost all the actions taken by the State and its agencies for
ameliorating the conditions of have- nots of the society by providing reservation
were subjected to periodical judicial scrutiny. By and large, the Courts
approved the affirmative actions of the State but on some occasions the policy
of reservation or implementation thereof was found to be faulty and actions
taken by the government have been nullified or sliced by judicial intervention.
33. Article 16(1)
ensures that there shall be equality of opportunity in matters relating to
employment or appointment. Clause (2) thereof declares that no citizen shall be
treated ineligible or discriminated in respect of any employment or office
under the State on the ground only of religion, race, caste, sex, descent,
place of birth, residence or any of them. Clause (4) enables the State to make
provision for reservation in favour of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under
the State. In General Manager, Southern Railway vs. Rangachari [AIR 1962 SC
36], the 51 Constitution Bench made comparative analysis of Articles 16 (1),
(2) and (4) and held that reservation can be made not only at the stage of
initial appointment, but also while making appointment against selection post.
34. The ratio of
Rangachari's case was reiterated in State of Punjab vs. Hira Lal and Others
[1970 (3) SCC 567]. In that case, the Court considered whether the Government
of Punjab could provide for reservation of 10% of posts for Scheduled Castes
and Scheduled Tribes at the stage of promotion. While reversing the judgment of
Punjab & Haryana High Court which had quashed the policy of the State
Government, this Court referred to the judgment in Rangachari's case and held:-
"The reservation must be only for the purpose of giving adequate
representation in the services to the Scheduled Castes, Scheduled Tribes and
Backward Classes. The exception provided in Article 16(4) should not make the
rule embodied in Article 16(1) meaningless. But the burden of establishing that
a particular reservation made by the State is offensive to Article 16(1) is on
the person who takes the plea. The mere fact that the reservation made may give
extensive benefits to some of the persons who have the benefit of the
reservation does not by itself make the reservation bad.
It is true that every
reservation under Article 16(4) does introduce an element of discrimination
particularly when the 52 question of promotion arises. It is an inevitable
consequence of any reservation of posts that junior officers are allowed to
take a march over their seniors. This circumstance is bound to displease the
senior officers. It may also be that some of them will get frustrated but then
the Constitution makers have thought fit in the interests of the society as a
whole that the backward class of citizens of this country should be afforded
35. In Akhil
Bharatiya Soshit Karamchari Sangh (Railway) vs. Union of India and Others [1981
(1) SCC 246], Chinnappa Redy, J. in his concurring judgment observed as under:-
"Reservation of posts and all other measures designed to promote the participation
of the Scheduled Castes and the Scheduled Tribes in the Public Services at all
levels are necessary consequences flowing from the Fundamental Right guaranteed
by Article 16(1). This very idea is emphasized further by Article 16(4).
Therefore, when posts whether at the stage of initial appointment or at the
stage of promotion are reserved or other preferential treatment is accorded to
members of the Scheduled Castes, Scheduled Tribes and other socially and
economically backward classes, it is not a concession or privilege extended to
them; it is in recognition of their undoubted Fundamental Right to Equality of
Opportunity and in discharge of the constitutional obligation imposed upon the
53 State to secure to all its citizens `Justice, social, economic and
political' and `Equality of status and opportunity', to assure `the dignity of
the individual' among all citizens, to `promote with special care, the
educational and economic interests of the weaker section of the people', to
ensure their participation on equal basis in the administration of the affairs
of the country and generally to foster the ideal of a `Sovereign, Socialist,
Secular, Democratic Republic'. Every lawful method is permissible to secure the
due representation of the Scheduled Castes and Scheduled Tribes in the Public
Services. There is no fixed ceiling to reservation or preferential treatment in
favour of the Scheduled Castes and Scheduled Tribes though generally
reservation may not be far in excess of fifty per cent.
There is no rigidity
about the fifty per cent rule which is only a convenient guide-line laid down
by judges. Every case must be decided with reference to the present practical
results yielded by the application of the particular rule of preferential
treatment and not with reference to hypothetical results which the application
of the rule may yield in the future."
36. In Indra
Sawhney's case, the larger Bench considered whether Clause (4) of Article 16
was confined to initial appointment or the same can be applied at the stage of
promotion. After elaborate discussion, the majority of the larger Bench held
that Article 16(4) is confined to initial appointment and cannot extend to
providing reservation in the matter of 54 promotion. At the same time it was
held that the promotions already made by applying the policy of reservation
will not be affected and the policy may continue to operate for a period of 5
37. The judgment in
Indra Sawhney's case led to seventy-seventh amendment of the Constitution. The
Statement of Objects and Reasons incorporated in the bill introduced, which led
to the passing of Constitution (Seventy-seventh Amendment) Act, 1995 reads as
under:- "Statement of Objects and Reasons.- The Scheduled Castes and the
Scheduled Tribes have been enjoying the facility of reservation in promotion
since 1955. The Supreme Court in its judgment dated 16.11.1992 in the case of
Indra Sawhney vs. Union of India [1992 Supp. (3) SC 217], however, observed
that reservation of appointments or posts under Article 16(4) of the
Constitution is confined to initial appointment and cannot extend to
reservation in the matter of promotion. This ruling of the Supreme Court will
adversely affect the interests of the Scheduled Castes and the Scheduled
Tribes. Since the representation of the Scheduled Castes and the Scheduled
Tribes in services in the States has not reached the required level, it is
necessary to continue the existing dispensation of providing reservation in
promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view
of the commitment of the Government to protect the interests of the Scheduled
Castes and the Scheduled Tribes, the Government has decided 55 to continue the
existing policy of reservation in promotion for the Scheduled Castes and the
Scheduled Tribes. To carry this out, it is necessary to amend Article 16 of the
Constitution by inserting a new clause (4-A) in the said article to provide for
reservation in promotion for the Scheduled Castes and the Scheduled
Clause (4-A) which
was inserted by the aforesaid amendment reads as under:- "Nothing in this
article shall prevent the State from making any provision for reservation in
matters of promotion to any class or classes of posts in the services under the
State in favour of the Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the services under the
constitutionality of the above reproduced clause has been upheld in M.
39. We shall now
advert to the decisions of different benches of the Tribunal and orders passed
by this Court in the context of the actions taken by the competent authority
for giving effect to the policy of restructuring envisaged in letter dated
25.6.1985 for reservation of posts for Scheduled Castes and Scheduled Tribes.
40. The policy
contained in Railway Board's letter dated 25.6.1985 was considered by Allahabad
Bench of the Tribunal in case bearing registration No.384 of 1986, V.K.
Sirothia vs. Union of India and Others. Some of the peculiar features of V.K.
Sirothia's case are:-
(i) Prior to 1.6.1981
there were 3 categories of guards in grades `A', `B' and `C' in Jhansi Division
of Central Railway.
(ii). On 1.6.1981 a
fourth category was created, which was called as guards grade `A' (Special).
(iii) Originally 69
posts of guards grade `A' were upgraded and re- designated as guards grade `A'
(iv) 109 posts of
guards grade `B' were upgraded to guards grade `A' and 182 posts of guards
grade `C' were upgraded to that of guards grade `B'. Consequently, 272 posts of
guards remained in grade `C'.
(v) The above
redistribution of posts was done as a result of restructuring of cadre of guards
in Jhansi Division by the Railway Division manager.
(vi) There was
redistribution among various grades of guards on 1.1.1984.
69 posts of guards
grade `A' which were upgraded to grade `A' (Special) (15 posts) and grade `A'
(Special-II) (54 posts). Some more 57 posts of guards in grade `C' were
upgraded to grade `B'. Out of 109 posts of grade `A' 32 were upgraded as grade
`A' (Special-II) and 77 were left as guards grade `A'.
(vii) Similarly in
grades `B' and `C' the percentage of distribution was interchanged and instead
of 182, 272 posts were upgraded to that of grade `B' leaving out 182 posts in
41. The Tribunal
noted that as per Railway Board's letter No.E9(P&A)- II-SCT/3 dated
2.8.1983, the policy of reservation for Scheduled Castes and Scheduled Tribes
is not applicable where cadre restructuring results in mass upgradation of
posts and held:
"6. In this
connection Railway Board's letter No.E9(P&A)- II-SCT/3 dated 2.8.1983,
which is placed at Annexure-I of the petition, refers Board have clarified in
this letter that where cadre restructuring results in mass up-gradation of
posts in a particular category reservation for SC/ST is not to be provided.
However, in cases
where restructuring results in partial up- gradation on the basis of percentage
distribution the existing rules should be applied against the additional number
of higher grade posts which become available as a result of cadre
restructuring. The first important aspect of this letter is `mass
up-gradation'. What does the term `mass' signify and how it should be
interpreted? Does it mean that if all the posts in a category are upgraded
en-block, such an up-gradation will 58 justify for being called `mass
up-gradation' or is it that if a major percentage is up-graded then it will be
called `mass up- gradation'? The dictionary meaning of the word `mass' is large
quantity or number. `It can not be said that the large quantity will only mean
all the posts being upgraded. Large quantity should mean what the word
signifies i.e. a large number of posts should be involved in the exercise. The
petitioner Guard grade `C' there were 454 posts. By an up-gradation made on
1.6.81 40% of these posts got upgraded to grade `B' while on 1.1.84 the
percentage was changed to 60%. Out of total 454 posts 40% works out to 182
posts to a 60% to 272 posts. This is sizeable number and it cannot be said that
the figure is in any way small. This should fall within the meaning of mass up-
7. The second
condition enunciated in the Board's letter leads us to the question whether
this up-gradation has resulted in additional posts. The restructuring of posts
was done to provide relief in terms of promotional avenues. No additional posts
were created? Some posts out of existing total were placed in higher grade to
provide these avenue to the staff who were stagnating. The placement of these
posts in the higher grade cannot be termed as creation of additional posts.
There were definite number of posts and total remained the same.
The only difference
was that some of these were now in a higher grade. It was a deliberate exercise
or re-distribution with the primary object of betterment of chances of
promotion 59 and removal of stagnation. Additional posts could only be created
if there were additional requirements. There should have been justification for
their creation and proper sanction.
We find no such
situation here. It was a simplicitor exercise of dividing the total number in
ratios. It was done on 40:60 first and later it was made 60:40 the number
8. It would be
different matter if in a fixed cadre the promotion are made on occurrence of
vacancies in higher grades. Such vacancies arise due to promotion, attrition or
creation of additional posts. It is in such situations that reservation
percentages apply and have to be followed. Up- gradation of cadres by
redistribution of posts will lose its primary objective if it is taken as
generation of additional posts in the up-graded posts which it rightly is not.
There has to be
rationality in the implementation of direction and instructions. The criteria
has also to for cumulated keeping the aims and as regards in view. The key note
thought behind the exercise should not be lost sight of. It is to improve
prospects, remove stagnation and provide avenues. The very purpose is defeated
if the end result is anything also. The ambiguity in the Railway Board's letter
of 2.8.83 needs to be clarified and correctly interpreted. There cannot be any
additional posts as result of restructuring up-gradation. The so called
promotion as a result of redistribution of posts is not promotion attracting
reservation. The 454 posts in grade `C' 60 had already been subject to
reservation, a second reservation tantamount to giving unintended
42. The appeal
preferred against the aforementioned order [Union of India vs. V.K. Sirothia
(supra)] was dismissed by this Court in the following terms:- "Heard
counsel on both sides. The finding of Tribunal that "the so called
promotion as a result of redistribution of posts is not promotion attracting
reservation" on the facts of the case, appears to be based on good
reasonings. On facts, it is seen that it is a case of upgradation on account of
restructuring of the cadres, therefore, the question of reservation will not
arise. We do not find any ground to interfere with the order of the
43. The same issue
was considered by Jabalpur Bench of the Tribunal in T.A. No.139 of 1986, Ashok
Kumar Shrivastava vs. Union of India decided on March 24. 1987. That case
involved upgradation of 300 posts of Assistant District Medical Officers to
those of District Medical Officers in accordance with the directions issued by
the Railway Board vide circular dated 31.7.1981. Ashok Kumar Shrivastava and
another challenged the applicability of reservation to the upgraded posts and
pleaded that they were entitled to the higher post without requiring to undergo
any selection. The 61 Tribunal referred to the orders passed by Allahabad
Bench in V.K.
Sirothia's case and
judgment of the Full bench of Kerala High Court in N.G. Prabhu v. Chief
Justice, Kerala High Court (1973 Labour Industrial Cases 1399) and held :
Board in their letter No.81/E (GR) 11/7/7/30, dated 16.5.1981, to UP SC which
recommending only 5 per cent direct recruitment to the posts of DMOs informed
the Secretary, UPSC as under :
situation has since changed in that the justification for direct recruitment of
Divisional Medical Officers no long exists. Many Assistant Divisional Medical Officers
are not postgraduates. There has been considered demand for scrapping of direct
recruitment. The Ministry of Railways have an in-depth study of the problem and
have come to the conclusion that there is no justification to continue direct
recruitment in senior scale for the following reasons, etc.
It is also clear from
the following extract of subsequent order of upgradation dated 31.7.1981
(Annexure `A') that the process was only to give better pay to same ADMOs.
An over all view of
the organizational and medicare structure of the Indian Railways has been taken
keeping in view the basic objectives of improving effectiveness and quality of
service. As a result of the review, it has been 62 decided that 300 existing
posts of Assistant Divisional Medical Officers in Indian Railway Medical
Service should be placed in the senior scale as Divisional Medical Officer.
We also find that
posts of ADMOs have been just upgraded and placed in the higher scale of DMO to
give relief to ADMOs who were stagnating. Persons so upgraded are not going to
occupy any new posts as the total number of posts remains unchanged and the
total strength of ADMOs and DMO remains the same. No new post has been created
as per the Indian Railway Medical Services (CMO, Addl. CMO, MS and Div./Sr. MO)
Recruitment Rules, 1978 (Annexure `R-2') or Order 8I/EGRIII/7/30, dated
16.5.1981. The placement of same posts in higher grade is not creation of
25. Under these
circumstances this Tribunal is of the view that this mass upgradation of 300
ADMOs to the exactly equivalent number of posts of DMOs is a case of their
being simply placed in the higher senior scale of the grade and as admittedly
also no selection is involved, cannot be considered to involve any process of
promotion or fresh appointment and therefore no fresh reservation of SC and STs
in terms of the prescribed percentage can be made to the upgraded posts and to
the existing incumbents holding the posts of ADMOs which were upgraded. What is
applicable to this situation is not Railway Board's Circular
No.X/78/E(SCT)/15/13/P & II, dated 22.2.1982 (Annexure `E') but Railway
Board's Circular No. E 63 (P&A) II, 83/RS/8, dated 2.8.1983 an extract of
which is reproduced below :
In supersession of
instructions contained in Board's Letter No.81/E(SCT) 15/83 dated 16.1.1982 and
5.5.1982 the Board desires to clarify that where cadre restructuring results in
on mass upgradation of posts in a particular category, the question of
providing for reservation to SC/ST according to the extent rules and orders in
such a situation should not ordinarily arise since reservations have already
been made in the lower grade. However, if cadre restructuring results in
particular upgradation of a Cadre/Category on the basis of percentage distribution,
the existing rules and orders governing reservation for SC/STs will apply
against the additional number of higher grade posts which become available as a
result of cadre restructuring on the basis of existing rules and order
providing for reservation for SC/STs.
The respondent has
not stated that the above instructions have been superseded.
26. In similar
circumstances, a Full Bench of Kerala High Court in N.G. Prabhu v. Chief
Justice, in para 16 observed as under :
In other words, if
the upgradation relates to all the posts in a category naturally there is no
sense in calling it a 64 promotion of all the person in that category. That is
because there is no question of appointment from one post to another.
Parties continue to
hold the same posts but get a higher scale of pay. It may be that it is not all
the posts in a particular category that are so upgraded but only a part of it.
Normally, the benefit of such upgradation would go to the seniors in the
automatically get a higher scale of pay. That is because though their posts
continue in the same category, a higher scale of pay is fixed for those posts.
It is appropriate then to say that the seniors have been nominated to the
higher grade which has been so created by the upgradation. The phenomenon does
not differ from the case where all the posts are upgraded, and it appears to us
that those who get the higher grade cannot be said to have been `promoted;
because here again there is no question of appointment from one post to
another. They continue to hold the same post, but because of seniority in the
same post they are given a higher scale of pay.
On the same analogy
thus, this upgradation of 300 posts of ADMOs in present case is not an
appointment of a member of the service by promotion to a post in the service on
a higher scale of pay and therefore does not attract the reservation principle.
Allahabad bench of CAT in its decision in OA 384 of 1986 V.K. Sirothia v. Union
of India has held in the case of upgradation of railway guards as follows :
65 The restructuring
of posts was done to provide relief in terms of promotional avenues. No
additional posts were created. Some posts out of existing total were placed in
higher grade to provide these avenues to the staff who were stagnating. The
placement of these posts cannot be termed as creation of additional posts.
There were definite number of posts and the total remained the same. The only
difference was that some of these were in a higher grade. It was deliberate
exercise of redistribution with the primary object of betterment of chance of
promotion and removal of stagnation."
44. The Union of
India unsuccessfully appealed against the order of the Tribunal inasmuch as SLP
No.11801 of 1987 filed by it was dismissed by this Court on 8.12.1987 in the
"We have heard
the learned counsel for both the parties and we have gone through the judgment
of the Central Administrative Tribunal at Jabalpur Bench in Ashok Kumar
Ors. v. Union of
India & Ors. (T.A. No.139/86) decided on 24th March, 1987 against which the
special leave petition is filed.
We agree with the
reasons given by the Central Administrative Tribunal for the conclusion it has
reached. We hereby affirm the judgment of the Central Administrative Tribunal.
The Special Leave Petition is dismissed."
45. In O.A. No.414 of
1987, N.K. Saini & Others vs. The Director General, RDSO & Others, the
applicant challenged the question of application of policy of reservation in
the matter of promotion to the upgraded posts becoming available as a result of
restructuring of cadres in Research Design & Standards Organization.
Allahabad Bench of the Tribunal referred to the orders passed in V.K.
Sirothia's case and A.K. Srivastava's case and held that the upgraded posts
could not have been offered to the reserved category candidates.
46. S.L.P. (C)
No.9628-30 of 1988, Govind Sahai & Ors. vs. N.K. Saini & Ors., was
dismissed by the Supreme Court by a short order which reads as under:-
"Heard learned counsel for the petitioners at length and also heard
learned counsel for the Central Government. In our opinion, we see no reason to
entertain this special leave petition. It is, therefore, dismissed.
47. In All India Non
SC/ST Employees Association (Railway), Bikaner & Another vs. Union of India
& Others, O.A. No.326 of 1989, Jodhpur Bench of the Tribunal ruled that the
reservation for Scheduled Castes and Scheduled Tribes is not applicable in the
case of upgradation of the existing posts.
48. Petition for
special leave to appeal filed by the Union of India against the afore-mentioned
order which was converted as Civil Appeal No.1481 of 1996 was dismissed by this
Court on 19th November, 1998 in the following terms:- "Special Leave
granted in S.L.Ps. Heard counsel on both sides.
This court on 3.1.96
granted special leave but limited to the proposition that the reservation for
SC and ST is not applicable in the case of upgradation of existing posts. This
issue we have decided today in Civil Appeal No.3622/95 etc. In the light of
that decision, these appeals are dismissed with no order as to costs."
49. The Association
which was respondent before this Court, filed Contempt Petition (C) No.304 of
1999. During the pendency of the Contempt Petition, the railway administration
filed I.A. No.2 of 2000 for clarification of order dated 19th November, 1998 by
claiming that there was a lot of confusion. The same was disposed of vide this
Court's Order dated 31.1.2001. The relevant portions of which read as under:-
"It appears from all the decisions so far that if as a result of
reclassification or readjustment there is no additional posts which are created
and it is a case of upgradation, then the principle of reservation will not be
applicable. It is on this basis that this Court on 19th November, 1998 had held
that 68 reservation for SC and ST is not applicable in the upgradation of
existing posts and Civil Appeal No.1481/1996 and the connected matters were
decided against the Union of India.
The affect of this is
that where the total number of posts remained unaltered, though in different
scales of pay, as a result of regrouping and the effect of which may be that
some of the employees who were in the scale of pay of Rs.550-700 will go into
the higher scales, it would be a case of upgradation of posts and not a case of
additional vacancy or post being created to which the reservation principle
would apply. It is only if in additional to the total number of existing posts
some additional posts are created that in respect of those additional posts the
reservation will apply, but with regard to those additional posts the dispute
does not arise in the present case.
The present case is
restricted to all existing employees who were re-distributed into different
scales of pay as a result of the said upgradation."
50. In K.
Manickaraj's case the Court considered whether the benefit of reservation could
be extended to the appellant while making appointment on the post of Welfare
Inspector Grade II. The Court noted that as a result of restructuring, the
number of posts available in cadre of Welfare Inspector Grade II increased from
23 to 26 and if reservation of 15% of promotion was given to Scheduled Castes,
4 posts would be available for reserved category. On behalf of the respondents,
it was pleaded that there has been 69 no change in the strength of the posts
in Grade II which remained 23 and the upgraded posts were meant only for sport
persons. The Tribunal accepted the contentions raised by the respondents and
negatived the claim of appellant. This Court reversed the order of the Tribunal
and observed:- "It is admitted that the total number of posts in Grade II
was 23 and 3 posts from Grade III were upgraded to that of Grade II.
The upgraded posts
which were made as early as in August 1987, as per Memorandum dated 24-8-1987,
still continue. It is, therefore, not possible for us to accept the contention
of the learned counsel for the respondent that the alleged up gradation was
made for a temporary period meant for sports personnel.
The posts which were
upgraded in the year 1988 having continued till date, the cadre strength of
Grade II Inspectors must be held to have become 26 and not 23 as contended by
the respondent. If 15% of the cadre is meant for reserved category people then it
would work out at 4 and admittedly there are only 3 persons belonging to the
Scheduled Castes in Grade II.
In that view of the
matter the appellant was entitled to be promoted against the 15% reserved quota
of posts in Grade II treating the total number of posts in Grade II to be 26.
In our considered opinion the Tribunal was in error in not taking into account
the upgraded posts which have been upgraded from Grade III to Grade II on the
ground that it was meant for sports personnel. While computing the number of
posts available for 70 reserved category, there is no justification to exclude
the upgraded posts which had continued from 1988 till date."
51. An analysis of
orders passed by the Tribunals and this Court shows that all cases except that
of K. Manickaraj's case involved upgradation of large number of posts which
could be filled by placing the existing incumbents in the higher grade without
subjecting them to the process of selection. Different Benches of the Tribunal
referred to the policy decision taken by the Railway Board that reservation
policy for Scheduled Castes and Scheduled Tribes is not applicable where cadre
restructuring results in mass upgradation of posts and held that the
administration was required to make appointment/placement against the upgraded
posts without reserving posts for Scheduled Castes and Scheduled Tribes. This
Court repeatedly emphasized that the restructuring exercise did not result in
creation of new posts/additional posts which could be filled by promotion by following
the procedure of selection. Therefore, these decisions are of no help to the
cause of the respondents. At the cost of repetition, we consider it necessary
to emphasize that restructuring exercise envisaged in letter dated 9.10.2003
resulted in creation of additional posts in most of the cadres covered by the
policy and the government had taken a conscious decision to fill up such posts
by promotion from amongst eligible and suitable employees and the 71 promotees
were burdened with duties and responsibilities of greater importance.
Therefore, the Tribunal and High Court were not justified in treating it as a
case of upgradation of posts simplicitor. Consequently, the decision of the
Tribunal to quash para 14 of letter dated 9.10.2003 and direction given for
making appointments de hors the policy of reservation are legally
52. The arguments
made by learned counsel in the context of paras 11 and 15 need not detain us
because none of the issues decided by the Tribunal and High Court relate to
direct recruitment against future vacancies.
53. The point remains
to be considered is whether the order of the Tribunal, which has been confirmed
by the High Court, can be maintained by applying the ratio of M. Nagaraj's
case. Dr. Rajiv Dhawan, learned senior counsel appearing for some of the
respondents, made strenuous efforts to convince us that the policy of
reservation cannot be applied at the stage of making promotions because the
Railway Administration did not produce any evidence to show that Scheduled
Castes and Scheduled Tribes were not adequately represented in different cadres
and that the efficiency 72 of administration will not be jeopardized by
reserving posts for Scheduled Castes and Scheduled Tribes, but we have not felt
persuaded to accept this submission. In the applications filed by them, the
respondents did not plead that the application of the policy of reservation
would lead to excessive representation of the members of Scheduled Castes and
Scheduled Tribes, or that the existing policy of reservation framed by the
Government of India was not preceded by an exercise in relation to the issue of
adequacy of their representation. Rather, the thrust of their claim was that
restructuring of different cadres in Group C and D resulted in upgradation of
posts and the policy of reservation cannot be applied qua upgraded posts.
Therefore, the Union of India and the Railway Administration did not get
opportunity to show that the employees belonging to Scheduled Castes and
Scheduled Tribes did not have adequate representation in different cadres; that
the outer limit of reservation i.e. 50% will not be violated by applying the
policy of reservation and that the efficiency of administration will not be
jeopardized by applying the policy of reservation. Therefore, it is neither
possible nor desirable to entertain a totally new plea raised on behalf of the
respondents, more so, because adjudication of such plea calls for a detailed
investigation into the issues of facts.
Civil Appeal No._____@
S.L.P. (C) No.5045 OF 2007 73 54. Leave granted.
55. In this appeal,
Union of India and two others have challenged order dated 5.4.2006 passed by
Allahabad Bench of the Tribunal and order dated 6.7.2006 passed by High Court
of Allahabad in Writ Petition No.34662 of 2006. The facts culled out from the
record of the appeal show that as a result of cadre restructuring exercise
undertaken pursuant to the policy contained in letter dated 9.10.2003, two
posts of Personal Inspector Grade I (Rs.6500- 10500/-) became available in
Varanasi Division of Northern Railway. One of these posts was earmarked for
general category and the other for the reserved category. The respondent who
was holding the post of Senior Personal Inspector represented for appointment
against the unfilled post earmarked for reserved category by contending that
she fulfils the conditions of eligibility. Her claim was rejected by the
competent authority on the premise that the reserved post cannot be offered to
general category candidate. She then filed O.A. No.509 of 2005. The Allahabad
Bench of the Tribunal relied on the order passed by this Court in V.K.
Sirothia's case and the one passed by the Full Bench of the Tribunal in O.A.
No.933 of 2004 (P.S. Rajput and two others v. Union of India and Others) and
held that the applicant (respondent herein) is entitled to be considered for
the second post. The High Court also relied on the order passed in V.K. Sirothia's
case and dismissed the writ petition filed by the Union of India and others.
56. We have heard
learned counsel for the parties. In view of the findings recorded by us in
civil appeals that policy of reservation is applicable to the cadre
restructuring exercise undertaken pursuant to the policy contained in letter
dated 9.10.2003, the orders impugned in civil appeal arising out of Special
Leave Petition (Civil) No.5045 of 2007 are liable to be set aside.
57. In the result,
the appeals are allowed and the impugned orders are quashed. As a consequence,
the original applications filed by the respondents in all the cases shall stand
dismissed. However, parties are left to bear their own costs.
J. (B.N. Agrawal)