Central Administrative Tribunal - Hyderabad
M. Suresh Kumar And Ors. vs Union Of India (Uoi) And Ors. on 6 March, 2006
Equivalent citations: 2006(3)SLJ164(CAT)
ORDER
R.K. Batta, J. (Vice Chairman)
1. The controversy involved in both these matters being the same, the matters were heard together and the same are being disposed of by common judgment.
2. The narration of facts need not detain us for long. Briefly stated, the applicants in O.A. No. 1318/2004 are working as Train Ticket Examiners (TTEs) in the pay scale of Rs. 4000-6000 and they stake claim for the scale of Rs. 5000-8000 under the restructured scheme. The applicants claim that though they are seniors to the respondents 4 to 24, but the said respondents on the basis of reservation policy adopted by the respondents in restructuring have been placed in the scale of Rs. 5000-8000 vide impugned order dated 17.12.2004. The basic grievance of the applicants is that the reservation policy cannot be applied in the restructuring and the impugned order dated 17.12.2004 passed by the respondents by applying reservation policy, is illegal and violative of Article 14 and 16 of the Constitution of India. The applicants, therefore, seek declaration that the action of the respondents in promoting junior SC/ST employees in preference to the applicants vide impugned order 17.12.2004 is illegal and consequently the respondents be directed to promote the applicants in the restructured posts of Head Travelling Ticket Examiner (HTTE) in accordance with their seniority as per the instructions of DoPT and the law laid down by the Apex Court.
3. At this stage, we would like to point out that the O.A., as originally framed, had been disposed of at the admission stage by setting aside the impugned order dated 17.12.2004 with direction to the respondents to issue revised orders by not applying the rule of reservation in the restructured Group 'C and 'D' posts. This summary dismissal of the O.A. by order dated 27.12.2004 was the subject matter of challenge before the Hon'ble High Court by the respondents therein in Union of India, represented by the General Manager, South Central Railway, Rail Nilayam, Secundrabad and Anr. v. M. Suresh Kumar and 12 Ors. Writ Petition No. 5133/2005. The Hon'ble High Court, by order dated 11 th day of April 2005, set-aside the said order on the ground that sufficient opportunity was not given to the Railways to place the matter before the Tribunal and apart from that fact, parties had not been joined. The matter was, thus, remitted back to the Tribunal for fresh consideration. Subsequently, pursuant to the said order, the applicants joined the affected parties as respondents 4 to 24.
4. The official respondents 1 to 3 have filed a detailed reply. The respondents have referred to the scheme of restructuring the object behind the same, the executive instructions with regard to reservation of SCs/STs and that the restructuring has been done pursuant to the reservation policy laid down by the constitution Bench of the Apex Court in the case of R.K. Sabharwah. State of Punjab . According to the respondents, rule of reservation applies while ordering promotion to the post of HTTE as per the law laid down by the constitution Bench judgment mSabharwal's case (supra). The respondents contend that it is not a case of automatic fitment of the incumbent from TTE to the next higher category of HTTE without subjecting them for selection/adjudging suitability for the purpose of promotion and that the selection process has been modified restricting the said exercise to scrutiny of the service record and Confidential Reports. The respondents further contend that appointments to the restructured cadres have all the attributes of promotion involving suitability, fixation of pay in higher promoted scale, change of designation including duties and responsibilities of greater importance. The respondents also allege that restructuring scheme provides only for partial upgradation and does not provide for enmasse upgradation. It is further contended by the respondents that due to restructuring, it becomes mandatory to provide for the prescribed percentage of posts for SC/ST category employees in the said additionally created posts in the higher grade. Reliance is placed on the case of Girdhar Lai Kohili and Ors. v. Union of India and 5 Ors. Writ Petition Nos. (C) 17386-93 of 1984 wherein it is laid down that while implementing the circular dated 16.11.1984 the authorities will have regard to the law laid down mSabharwal' scasc. Therefore, according to the respondents, while making promotions against the additional posts arising due to restructuring. Railways have to follow the law laid down in Sabharwal's case, that is; law of post based reservation. The respondents further contend that back-reference has been made to the DoPT in relation to DoPT memorandum dated 25.10.2004 whereby Railways were asked to apply the restructuring scheme without following reservation policy. The said back-reference is stated to be still pending and there is no finality in that respect as yet. The respondents rely upon the Full Bench judgment of Central Administrative Tribunal, Bangalore Bench in the case of M.L. Rajaram Naik and Ors. v. The Additional Director, CGHS, Bangalore and Ors., and the connected O.A. Nos. 241, 870, 1002 of 1999 1997-2000 Administrative Tribunal Full Bench Judgments 194. The respondents have also placed reliance on other authorities as well to which we shall refer, while dealing with the matter on merits.
5. Though the private respondents were served and appearance has been put up on their behalf, yet no reply was filed by them.
6. In the rejoinder, the applicants have stated that there is no increase or addition of new posts in the cadre, but only percentage in the various grades in the cadre has been revised while adopting restructuring scheme. The applicants rely upon the judgment of Central Administrative Tribunal, Chandigarh Bench, in the case of Unreserved Employees Association, Rail Coach Factory, Kapurthala, through its President v. Union of India and Ors. 2005(1) ATJ 1. The applicants also rely upon the Full Bench judgment of Central Administrative Tribunal, Allahabad Bench in the case of P.S. Rajput and 2 Ors. v. Union of India and Ors. O.A. No. 933/2004 and the case of Mohd. Nivazuddin and 10 Ors. v. Union of India and Ors. O.A. No. 778/2004, 2006(1) ATJ 36, which was disposed of by common order dated 10th August, 2005. The applicants also rely upon the letter dated 20.4.2004 regarding implementation of cadre restructuring and the letter dated 6.5.2005 regarding reservation in promotion-treatment of SC/ST cadres promoted on their own merit.
7. In the next O.A. No. 1347/2004, we shall briefly state only the facts since rest of the controversy and the pleadings are identical. In this O.A., the applicants are working as Deputy Superintendents in the pay scale of Rs. 5500-9000 in South Central Railway, Vijayawada Division and are seeking their placement in the pay scale of Rs. 6500-10500 in the restructured scheme without applying principles of reservation. The applicants impugn the promotion of the respondents 4 to 15 vide the impugned memo dated 8.10.2004. Their contention is that the applicants are seniors to the said respondents 4 to 15, but only on account of application of policy of reservation in the restructured scheme, the respondents No. 4 to 15 have been given higher scale of pay in the restructured posts.
8. We have heard the learned Counsel appearing on both sides at great length, in view of the rival stand taken by the parties. The applicants mainly rely upon the Full Bench judgment of the Central Administrative Tribunal, Allahabad Bench in the case of P.S. Rajput and 2 Ors. v. Union of India and Ors. (supra) and the companion O.A, Mohd. Nivazuddin and 10 Ors. v. Union of India and Ors. (supra), Unreserved Employees Association, Rail Coach Factory, Kapurthala v. Union of India (supra) and Jagdish Mistry etc. v. Union of India and Ors. 2005(3) ATJ 613, wherein the issue with reference to the restructured scheme as per letter dated 9.10.2003 was considered. The issue considered in the case of P.S. Rajput and 2 Ors. v. Union of India and Ors. (supra) was as under:
Whether upgradation of a cadre as a result of restructuring and adjustment of existing staff in the upgraded cadre can be termed to be promotion attracting the principle of reservation in favour of SC/ST The Full Bench answered as under:
The upgradation of the cadre as a result of the restructuring and adjustment of existing staff will not be termed as promotion attracting the principles of reservation in favour of Scheduled Caste/Scheduled Tribe.
9. On the other hand, the respondents basically rely on the judgment of the Full Bench of Central Administrative Tribunal, Bangalore Bench, in the case af M.L. RajaramNaikand Ors. v. The Additional Director, CGHS, Bangalore and Ors. (supra) and the judgments referred therein. The reference made therein was as under:
(i) Whether filling up of the upgraded posts of Senior Pharmacists in the higher scale on seniority-cum-fitness basis from those holding the posts of Pharmacists with a lower scale amounts to promotion calling for application of reservation in favour of Scheduled Castes and Scheduled Tribes?
Whether on the facts and circumstances of these cases, the appointments of the applicants to the upgraded posts of Senior Pharmacists could be said to be illegal when the appointments were made and whether the impugned orders cancelling these appointments can be sustained?
The Full Bench answered the reference that the appointments to the upgraded posts of Senior Pharmacists in CGHS and the upgraded posts of BCR Grade-IV in the Department of Telecommunications amount to promotion attracting the principles of reservation for special categories like SCs and STs.
10. The learned Counsel for the applicants took us through scheme dated 9.10.2003 and emphasized that the present scheme is nothing but old scheme with some changes here and there and the notable change is Paragraph 14 of the present scheme which provides that the existing instructions with regard to the reservation of SCs and STs wherever applicable will continue to apply; and that the scheme is self-financing and matching savings have to be surrendered before restructuring is implemented as also the clarifications vide letter dated 6.01.2004 that the selection procedure will stand modified restricting scrutiny to the service record and the confidential reports as a one time exception by special dispensation. The learned Counsel for the applicants has urged that this is the third time that the respondents have framed the restructured scheme and every time, the rule of reservation has been struck-down by the Courts. Counsel for the applicants has emphatically contended that the cadre has to be taken as the entire cadre as a whole and there being no increase in the posts in the cadre, it is settled law that the rule or reservation cannot be applied while adjusting the existing incumbents in the restructured posts. He has relied upon the rulings which lay down that in the restructured cadre involving upgradation, the rule of reservation cannot be applied.
11. The learned Counsel for the official respondents has, on the other hand, justified the stand of the respondents on the basis of Full Bench judgment of Central Administrative Tribunal, Bangalore Bench in the case of ML. Rajaram and Ors. v. Union of India and Ors. and other companion O.As. (supra). According to him, it is not a case of enmasse upgradation when the principle of reservation may not apply, but it is a case of partial upgradation to which principle of reservation has to be applied. In this respect, it is urged that the law laid down by the Apex Court in the case of R.K. Sabharwal and Ors. v. State of Punjab and Ors. (supra), has to be applied and in this connection heavy reliance is placed on the judgment of the Apex Court in the case of Girdhari Lai Kohli and Ors. v. Union of India (supra) as also the case of K. Manick Raj v. Union of India 1997 SCC L and S 949 : 1998(1) SLJ 49 (SC). According to him, if the rule of reservation laid down by the Apex Court in the case of R.K. Sabharwal (supra) is not applied to the restructured posts, it will result in imbalance and the rule of reservation will be frustrated. According to the learned Counsel for the official respondents, every scale of pay is a separate cadre and in the cadre of Chief Ticket Inspector as also the Travelling Ticket Inspector, there has been considerable increase in the number of posts though there is no substantial change in the category of HTTE and in fact there is decrease in the grade of TTI. In this respect, he relied upon the chart given at page 5 in the reply in O.A. No. 1318/2004. In O.A. No. 1347/2004 similar chart is found at page 5 which shows that there is increase in the posts of Station Master. Station Superintendent and Deputy Superintendent though there is a steep fall in the case of Assistant Station Master posts. He also contends before us that placement in the higher scale amounts to promotion and in this respect, reliance is placed on the judgment referred in the Full Bench of Central Administrative Tribunal, Bangalore Bench in the case of M.L. Rajaram Naik (supra).
12. The learned Counsel appearing on behalf of the private respondents adopted the arguments advanced by the learned Counsel for the official respondents.
13. In reply, the learned Counsel for the applicants urged before us that the cadre has to be considered as a unit, as interpreted by the Central Administrative Tribunal, Chandigarh Bench in the case of Unreserved Employees Association, Rail Coach Factory, Kapurthala through its President and Ors. (supra). The learned Counsel for the applicants also drew our attention to the letter dated 29.4.2004 which provides for reservation due to cadre restructuring and the posts should be filled first with the senior most employees as also the letter dated 6.5.2005 wherein it was clarified that in the case of promotion by non-selection, promotions are to be made on the basis of seniority-cum-fitness and the concept of merit is not involved in such promotions and as such there is no question of consideration on merit while placing the SC/ST candidates in the panel.
14. We shall first examine the scheme as contained in the Board's letter dated 9.10.2003 and the subsequent letter dated 6.1.2004. Ministry of Railways had undertaken review of the cadre of certain Group 'C and 'D' staff in consultation with the staff side with a view to strengthening and rationalising the staffing pattern on Railways. The review was undertaken on the basis of functional, operational and administrative requirement and it was decided that the categories of staff as indicated in the Annexure to the letter, should be restructured in accordance with the revised percentages indicated therein. Thus, the review was done with a view to strengthening and rationalising the staffing pattern and the said exercise was done on the basis of functional, operational and administrative requirements, after which, it was decided to restructure the staffing pattern in accordance with the revised percentages. Thus, the exercise done is re-organisation by restructuring.
15. The scheme further provides that the restructuring of the cadre will be done with reference to the sanctioned cadre strength as on the cut off date. The cut off date is stated to be 1.11.2003 as per Board's letter dated 6.1.2004. The benefit of restructuring will be restricted to the persons who are working in a particular cadre on the cut off date. The scheme applies to regular cadres only. Paragraph 3 provides for pay fixation. It provides that the pay of the staff selected and posted against additional higher grade posts as a result of restructuring will be fixed under Rule 1313 (FR-22)(1)(a)(1)-RII. It also provides that the benefit under the rule will not be available in the case of movement from lower grade to higher grade in the non-functional situation where there is no change in duties as in the case of movement from Goods Guard to Senior Good Guards and Goods Drivers to Senior Goods Drivers etc. However, the said benefit will be available in the case of functional promotions such as promotion from Senior Goods Guard to Passenger Guard and Senior Goods Driver to Passenger Driver, though in the identical scale of pay. Paragraph 4 of the scheme provides that the existing classification of posts covered by these orders as 'selection' and 'non-selection' as the case may be, remains unchanged, but in the case of Supervisors, suitability shall be adjudged by following the modified selection procedure based on scrutiny of service records and confidential reports only. Paragraph 7 provides that the cadres are being restructured on functional, operational and administrative considerations and the posts being placed in higher scales of pay as a result of restructing should include the duties and responsibilities of greater importance. Paragraph 7 provides for adjustment of excess number of posts due to restructuring and the excess may be allowed to continue to be phased out progressively with the vacation of the posts by the existing incumbents. Paragraph 14 of the scheme provides that the existing instructions with regard to reservation of SC/ST wherever applicable, will continue to apply. Paragraph 18 provides for matching savings and it is specifically laid down that before restructuring the cadre 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. It is also emphasized that there would be no restructuring without matching savings by surrender of posts.
16. By Board's letter dated 6.1.2004 partial modification of orders contained in letter dated 9.10.2003 had been done. Paragraph 4 of this letter provides for modified selection procedure for all categories whereas in the letter dated 9.10.2003, the modified selection procedure was to be applied only in the case of Supervisors erstwhile Mistries. This paragraph now provides that the existing classification of posts covered by these orders as 'selection' and 'non-selection', as the case may be, remains unchanged, but for the purpose of implementation of these orders, if an individual Railway servant becomes due for promotion to a post classified as a 'selection' post,-the existing selection procedure shall stand modified in such a case to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written and/or viva-voce test. It further provides that the modified selection procedure has been decided upon by the Ministry of Railways as a one time exception by special dispensation, in view of the numbers involved, with the objective of expediting the implementation of these orders. For the posts classified as 'non-selection' at the time of restructuring, the promotion will be based only on scrutiny of service records and confidential reports. In the case of Artisan staff, the benefit of restructuring under these orders will be extended on passing the requisite trade test, but, in the case of placement of Supervisors erstwhile Mistries to the grade of Rs. 5000-8000 the instructions contained in Para-13.2 of the Board's letter dated 9.10. 2003, should be followed. Paragraphs 4.1 to 4.6 deal with the issue as to how the vacancies have to be filled and the said paragraphs arc as under:
4.1 Normal vacancies existing on 01.11.2003 except direct recruitment quota and those arising on that date from this cadre restructuring including chain/ resultant vacancies should be filled in the following sequence:
(1)From panels approved on or before 01.11.2003 and current on that date;
(ii) and the balance in the manner indicated in Para 4 above.
4.2. Such selections which have not been finalised by 01.11.2003 should be cancelled/abandoned.
4.3. All vacancies arising from 02.11.2003 will be filled by normal selection procedure.
4.4. All vacancies arising out of the restructuring should be filled up by senior employees who should be given benefit of the promotion w.e.f. 01.11.2003 whereas for the normal vacancies existing on 01.11.2003 junior employees should be posted by modified selection procedure but they will get promotion and higher pay from the date of taking over the posts as per normal rules. Thus the special benefit of the promotion w.e.f. 01.11.2003 is available only for vacancies arising out of restructuring and for other vacancies, the normal rules of prospective promotion from the date of filling up of vacancies will apply.
4.5. In cases where percentages have been reduced in the lower grade and no new post becomes available as a result of restructuring, the existing vacancies on 01.11.2003 should be filled up by normal selection procedure.
4.6. Employees who retire/resign in between the period from 01.11.2003 i.e. The date of effect of this restructuring to the date of actual implementation of these orders, will be eligible for the fixation benefits and arrears under these orders w.e.f. 01.11.2003.
17. Para 4.1 provides for filling of normal vacancies existing as on 1.11.2003 except direct recruitment quota and those arising on that date from the cadre restructuring including chain/resultant vacancies in the sequence given therein. It means that for filling up direct recruitment quota as also chain/resultant vacancies which arise on that date from restructuring, Para 4.1 will not apply. Para 4.3 provides that all vacancies arising from 2.11.2003 will be filled by normal selection procedure. It is pertinent to note that as per Para 4.4. all vacancies arising out of the restructuring should be filled up by senior employees who should be given benefit of the promotion with effect from 1.11.2003 whereas for the normal vacancies existing on 1.11.2003, junior employees should be posted by modified selection procedure but they will get promotion and higher pay from the date of taking over the posts as per normal rules. Thus, the special benefit of promotion with effect from 1.11.2003 is available only for the vacancies arising out of restructuring and for other vacancies, the normal rules of prospective promotion from the date of filling up of the vacancies will apply. Para 6 provides that while implementing the restructuring orders, the instructions regarding minimum period of service for promotion from time to time should be followed. However, while considering any relaxation in the residency period prescribed for promotions to various categories, General Managers would personally ensure that the safety aspect of Railways is not compromised.
18. The scheme which we have referred to above was examined by the Full Bench of Central Administrative Tribunal Allahabad Bench in the case of P.S. Rajput and Ors. v. Union of India and Ors. (supra) and Moh d. Nivazuddin and Ors. v. Union of India and Ors. (supra) and Unreserved Employees Association, Rail Coach Factory v. Union of India (supra). The present scheme was compared by the Full Bench in the said cases with the earlier restructuring scheme in terms of letter dated 20.12.1983. The Full Bench on comparison of both the schemes, came to the conclusion that basically, the scheme is the same and by giving a label that it is a promotion, will not take away the restructuring and make it as a promotion.
19. The scheme dated 9.10.2003 was also the subject matter of consideration before the Central Administrative Tribunal, Chandigarh Bench in the case of Unreserved Employees Association, Rail Coach Factory Kapurthala v. Union of India (supra). The Tribunal on comparison of various features of the scheme came to the conclusion that the scheme dated 9.10.2003 was at par with the scheme dated 27.1.1973 and it was observed that it appears that by passage of time and after facing various litigations, the respondents thought of a clever idea to insert a clause by moulding the working that "The existing instructions regarding reservation of SC/ST, wherever applicable, will continue to apply". It was also held that placing existing incumbents against higher pay scales is not promotion, but it is, in fact, a case of restructuring. In this case also, the issue which fell for consideration was:
Whether the policy of reservation shall apply to the scheme of restructuring as enforced by the respondents with effect from 1.11.2003 or not The issue was answered in the negative and the impugned Para 14 of the memo dated 9.10.2003 was quashed and set aside with declaration that the policy of reservation in favour of the members of SC/ST is not applicable to the restructuring scheme and the respondents were directed to consider the applicants and other eligible candidates for placing them in the appropriate pay scales under the restructuring scheme as per their eligibility and suitability without any reference to reservation policy.
20. The salient features of the scheme dated 9.10.2003 are that in case of selection and non-selection posts, normal vacancies existing on 1.11.2003 shall be filled from panels approved on or before 1.11.2003 and current on that date and in respect of balance vacancies as on 1.11.2003, the modified selection procedure is required to be followed by scrutinising the service records and confidential reports as a one time exception by special dispensation. All vacancies arising from 2.11.2003 are to be filled by normal selection procedure. Thus, regular selection procedure has been partly given a go-bye and the modified selection procedure has been prescribed as a one time exception in respect of normal vacancies existing on 1.11.2003. Another important aspect is that all vacancies arising out of restructuring are required to be filled by the senior employees who will be given the benefit of promotion with effect from 1.11.2003 whereas for the normal vacancies existing as on 1.11.2003 junior employees should be posted by the modified selection procedure who will get promotion and higher pay from the date of taking over the post as per the normal rules. Thus, the special benefit of promotion with effect from 1.11.2003 is available only for the vacancies arising out of restructuring and for other vacancies, normal rule of prospective promotion from the date of filling up the vacancy will apply. This means that all vacancies arising out of restructuring have to be filled up by the senior employees without following the modified selection procedure. Thus, senior employees would automatically be adjusted against the vacancies arising out of restructuring. In the case of Supervisors erstwhile Mistries in the grade of Rs. 4500-7000 plus Rs. 100 special allowance, Para 13(a) of the scheme dated 9.10.2003 provides for enbloc upgradation to the post of Junior Engineer Gr.II in the pay scale of Rs. 5000-8000. In fact, the subsequent letter dated 29.5.2004 also provides that the vacancies arising due to restructuring orders should be filled with senior most employees. Thus, strictly speaking, adjusting existing senior employees against posts arising out of restructuring cannot be considered as promotion nor en bloc upgradation of the posts of Supervisor to the posts of Junior Supervisor.
21. The respondents place heavy reliance on Paragraph 14 of the Scheme dated 9.10.2003 which states that the existing instructions with regard to reservation of SCs/STs wherever applicable will continue to apply. This Paragraph 14 of the Scheme dated 9.10.2003 has already been quashed by the Chandigarh Bench of Central Administrative Tribunal in Unreserved Employees Association, Rail Coach Factory, Kapurthala v. Union of India and Ors. (supra). In view of this, Paragraph 14 of the Scheme dated 9.10.2003 does not at all exist now in the said scheme and the same cannot be looked into.
22. In the case of Pankaj Saxena v. Union of India O.A. No. 426/PB/94 of Chandigarh Bench of Central Administrative Tribunal, the issue of reservation in restructuring scheme was considered. The said case related to restructuring of certain Group 'C and 'D' cadres introduced by Order dated 27.1.1993 which included Commercial Inspectors. In the said case, after placing reliance on the decision of the Calcutta Bench of Central Administrative Tribunal in Birendra Kumar Das v. Union of India and Ors. 1994(2) ATJ 505; Ashok Kumar Shrivastava and Anr. v. Union of India and Ors. (1987) 4 ATC 385; N G. Prabhu and Anr. v. Chief Justice, Kerala High Court and Anr. 1973(2) SLR 251 : 1973 SLJ 879 (Kerala HC) and Union of India v. V.K. Sirothia 1999 SCC (L & S) 938, it was held that reservation would not be available while restructuring the cadre which amounts to only consideration of persons for being placed in the next higher grade on the basis of their service record and confidential reports by adjudging their fitness only. The said judgment was upheld by the High Court of Punjab and Haryana in Union of India and Ors. v. V. Pankaj Saxena and Anr. in CWP No. 10217-CAT-2002 vide judgment dated 22.7.2002. Union of India had filed Special Leave to Appeal (Civil) No. 11588/2003 against the said order of Punjab and Haryana High Court and the Special Leave Petitions were dismissed by Order dated 13.5.2005.
23. The controversy relating to applicability of reservation policy to the Scheme dated 9.10.2003 again came up before the Punjab and Harayana High Court in Union of India v. Pushpa Rani and Ors. in Civil Writ Petition No. 3182/2005. In that matter the Central Administrative Tribunal had held that the reservation policy would not be applicable in case of restrcturing/upgradation of posts. These observations were made with reference to the Scheme dated 9.10.2003. The Hon'ble, High Court considered the issue including the issue relating to Cadre and applicability of the case of R.K. Sabharwal and Ors. v. State of Punjab and Haryana and Ors. (supra). The Hon'ble High Court after examining the matter and relying upon the observations of the Apex Court in Contempt Petition (Civil) No. 304/99 in C.A. No. 1481/96, dismissed the said writ petition.
24. It is also pertinent to note that the total number of posts under the restructuring scheme remains the same as per the charts furnished by the respondents at page 5 of the reply. In the cadre of Chief Ticket Inspectors/Ticket Collectors, the total number of vacancies prior to restructuring were 956 and after restructuring as on 1.11.2003 the vacancies are stated to be 954. In the case of Station Masters/Assistant Station Masters' cadre, the total number of vacancies prior to restructuring is stated to be 656 and after restructuring as on 1.11.2003, the vacancies are stated to be 656. In the various categories of posts of Ticket Collectors and Station Masters, the percentage of number of posts under each category has undergone change. The said percentage is with reference to the cadre of Ticket Collectors, Chief Ticket Inspectors/Station Masters/Assistant Station Masters as a whole. The charts show that the official respondents have themselves taken the cadre as a whole and only percentage of posts in each category in the said cadre has undergone change but the total number of posts remains same, the position can be illustrated with reference to Annexure 'A' (i) (O.A. 1347/2004) and Annexure 'C (O.A. 1318/2004) to the scheme dated 9.10.2003. Annexure 'A' (i) is as under:
STATEMENT REGARDING RESTRUCTURING OF GROUP 'C and 'D' STAFF OF TRANSPORTATION TRAFFIC DEPARTMENT Annexure to Board's letter No. PC III/2003/CRC/6 dated 9.10.03 CATEGORY GRADE EXISTING REVISED (Rs.) %AGE %AGE Station 7450-11500 6.5 Masters/ Assistant Station 6500-10500 22 Masters 5500-9000 30 5000-8000 33 4500-7000 8.5 *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.
Annexure 'C is as follows:
STATEMENT REGARDING RESTRUCTURING OF GROUP 'C and 'D' STAFF OF COMMERCIAL DEPARTENT Annexure to Board's letter No, PC III/2003/CRC/6 dated 9.10.03.
CATEGORY GRADE EXISTING REVISED
(Rs.) %AGE %AGE
Ticket 6500-10500 8 12
Checking 5500-9000 12 18
Staff 5500-8000 25 25
4000-6000 35 28
3050-4590 20 17
The above annexures show that Station Masters/Assistant Station Masters fall within one category and the Ticket Checking Staff is in another category. The said categories denote the cadre namely, cadre of Station Masters/Assistant Station Masters and the cadre of Ticket Checking Staff. In the said cadres., different grades of pay are provided as also the existing percentage of grades in the said cadre and the revised percentage. Corresponding charts showing total number of posts in each cadre, are found at page 5 of the O. As. and the said charts are as under:
CHIEF TICKET INSPECTORS/TICKET COLLECTORS
Prior Revised
to retruc- distribution
turing as on on in
31.10.2003 restructuring
as on
01.11.03
Designation Grade Percentage
(After
transfer
of posts Increase/
to GNT Decrease
Division
% No. of % No. of
posts posts
1 2 3 4 5 6 7(6-4)
Chief 6500-10 08 64 12 (after 49
Ticket Surren-
Inspector Der of
02 posts)
Travelling 5500-9000 12 97 18 172 75
Ticket
Inspector/
Head 5000-8000 25 235 25 239 04
Travelling
Ticket
Examiner/
Travelling 4000-6000 35 398 28 268 -130
Ticket
Examiner
Ticket
Collector 3050-4590 20 162 17 162 -
TOTAL 956 954 -02
STATION MASTERS/ASSISTANT STATION MASTERS
Prior to Under cadre
restructuring restructuring
as on on 01.11.03
31.10.2003
Designation Grade Increase/
Decrease
% No. of % No. of
posts posts
1 2 3 4 5 6 7 (6-4)
Station 7450-11500 03 28 6.5 43 +15
Managers
Station 6500-10500 15 113 22 144 +31
Superin-
tendents
Dy. Station 5500-9000 25 166 30 197 +31
Superinten
dents
Assistant 5000-8000 47 303 33 216 -87
Station
Masters
Assistant 4500-7000 10 46 8.5 56 +10
Station
Masters
TOTAL: 100 656 100 656 Nil
However, the Railways have now come out with a plea during the course of arguments that each grade in the cadre of Chief Ticket Collectors/Ticket Collectors and Station Masters/ Assistant Station Masters is a cadre by itself. This aspect was also, in fact, considered by the Central Administrative Tribunal, Chandigarh Bench in Unreserved Employees Association, Railway Coach Factory, Kapurthala v. Union of India (supra) In that case, the Tribunal found that "the respondents were trying to narrow down the scope and meaning of the term "Cadre". The definition of the word "cadre" given in Fundamental Rule 9(4), which ispari materia to the rules of Railway Administration, means the strength of a service or part of a service sanctioned as a separate unit. Therefore, by interpreting this definition, the word "cadre" was held to include all the categories in a particular wing of service. Certain instances were given that in the clerical cadre. It will include all the categories starting from Clerk upto Office Superintendent and similar will be the position in the technical cadres and it cannot be given a restricted meaning so as to restrict it to only one category out of the total service on the basis of one scale of pay. The Tribunal declared the Railway Board's letter mentioning that each scale of pay is to be treated as a cadre, as illegal. This judgment was rendered on 24.11.2004. The Railway Board made a reference to the DoPT and DoPT vide O.M. Dated 7.3.2005 clarified that the term "cadre" in the O.M. Dated 2.7.1997 has been defined for the limited purpose of implementation of reservation for SCs, STs and OBCs in services and for maintenance of reservation rosters/registers for the purpose. It is stated therein that the O.M. speaks of "cadre" for the purpose of roster and shall mean a particular grade and the definition of the word "cadre" given in Fundamental Rules 9(4) is not relevant for the purpose of maintenance of reservation rosters and will be against the policy of reservation. Therefore, the Railway authorities were advised to file an appeal against the stand taken by the Central Administrative Tribunal in respect of the definition of the term "cadre". The concept of "cadre" was also considered by the Full Bench of Central Administrative Tribunal in P.S. Rajput and 2 Ors. v. Union of India (supra) as well as in Jagdish M. Mistry v. Union of India (supra).
25. It may be mentioned here that the Apex Court in the case of Dr. Chakradhar Paswan v. State of Bihar and Ors. has laid down that in service jurisprudence, the term 'cadre' has a definite legal connotation. In the legal sense, the word 'cadre' is not synonymous with 'service'. The Apex Court has pointed out that Fundamental Rule 9(4) defines the word 'cadre' to mean the strength of a service or part of a service sanctioned as a separate unit and it is open to the Government to constitute as many cadres in any particular service as it may choose according to administrative convenience and expediency. The definition of "Cadre" in FR 9(4) which is pari materia to Rule 103(7) of Indian Railway Establishment Code (Volume-I), cannot be changed by issuing O.M., without effecting appropriate change in the FR/Rules in accordance with law.
26. The respondents themselves have determined the percentage of the posts in different categories of the cadre of Ticket Collectors and Station Masters on the basis of total number of posts in the cadre and as such the respondents cannot now be allowed to contend that every scale is a cadre by itself. Thus, it is clear that the total number of posts in each cadre have remained the same even after restructuring.
27. We shall now deal with the concepts of promotion, upgradation and time bound promotion and then revert back to the issue of restructuring where total number of posts after restructuring remains the same.
28. The Full Bench of Central Administrative Tribunal, Allahabad Bench, in the case of P.S. Rajput and Ors. (supra) had considered the concept of promotion in the light of various judgments referred to therein and we need not repeat the said exercise. It was held therein that the expression "promotion" has been understood in the wider sense inasmuch as promotion can be had either to a higher pay scale or to a higher post. The Full Bench concluded after reference to the authorities that it is clear that in order to state that there is a promotion in that cadre, it goes with the facts and circumstances of each case. For this purpose the scheme has to be scrutinised. It was further observed that normally, promotion would be to a next post and a higher grade or a class of service to a higher category. In certain circumstances, it can be to higher pay scales but that would be in peculiar circumstances because promotion necessarily has to be effected in accordance with the recruitment rules/ that have been framed. If there is only an element of restructuring of scale without adhering to the recruitment rules it may not amount to a promotion. In this respect, we would like to emphasise following observations made by the Apex Court in Director, Central Rice Research Institution, Cuttack and Anr. v. Khetra Mohan Das 1995 SCC L and S 179:
A promotion is different from fitment by way of rationlisation and initial adjustment. Promotion, as is generally understood, means the appointment of a person of any category or grade of a service or a class of service to a higher category or grade of such service or class. The promotion to Category II in the case of the respondent can be only as per Rule 7.2 and not by way of induction as claimed by the respondent.
29. The concept of upgradation has been dealt with by the Full Bench of Kerala High Court in N.G. Prabhu and Anr. v. Chief Justice, Kerala High Court (supra). In that case, the Government had raised the salary scale of a few of the posts of Stenographers to give them belter service conditions. There was no question of persons so nominated to the higher grades leaving posts which they were holding and occupying new posts. In this connection, the Full Bench has explained the concept of upgradation as under:
Promotion is, of course, appointment to a different post carrying a higher scale of pay in the service. It, to better the conditions of service of the incumbents in posts in the same category the scale of any of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay. But in such a case it may not be proper to characterise the event as promotion to higher posts though a benefit of a higher scale of pay is obtained by all concerned. In other words, if the upgradation relates to all the posts in a category naturally, there is no sense in calling it a promotion of all the persons in that category. That is because there is no question of appointment from one post to another. Parties continue to hold 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 category. They would 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 upgradation. This phenomena 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. When a person is nominated to the higher scale of pay from time to time based on seniority it may perhaps loosely be termed as a promotion. But it appears to us that it is different from promotion as we envisage it normally and promotion as defined in Rule 2(1) of the 1959 Rules.
30. The Principal Bench of Central Administrative Tribunal in Shiv Kumar v. Union of India and Ors. O.A. No. 1540/2003, has pointed out that a definite proposition of law has been held to distinguish promotion from upgradation and the test is creation of additional posts.
31. In the case before us, the category/cadre of Ticket Checking Staff O.A. 1318/2004 in Anncxures 'C to the scheme dated 9.10.2003 indicates that there are 5 scales thereunder. The existing percentage of each scale vis-a-vis entire cadre is also specified therein as also revised percentage on account of restructuring. The scales remain the same even after restructuring but only there is re-allocation of number of posts in each scale, but the total number of posts remain same. The position is same in the case of Station Masters/Assistant Station Masters O.A. 1347/2004, as can be seen from Annexure ' A' (i) to the scheme dated 9.10.2003 and Chart at page 5 of the said O.A.
32. Thus, upgradation relates to the percentage of posts in each scale after restructuring. Consequent thereto, some of the senior persons in each scale would be adjusted/reallocated on account of rationalisation to higher scales of pay and in case of juniors, the said exercise will be done by modified selection procedure on the basis of service record and confidential reports. The principle laid down by the Full Bench of the Kerala High Court is, thus, clearly applicable to the present situation wherein it is laid down that it is not all the posts in a particular category that are so upgraded, but only a part of it. Normally, benefit of such upgradation would go to the seniors in the category and they automatically get higher pay scale and in such circumstances, it would be appropriate to say that senior would be nominated to a higher grade which has been so created by upgradation. The Full Bench has further laid down that this phenomena does not differ from the case where all the posts are upgraded and those who get the higher grade cannot be said to be promoted as there is no question of appointment from one post to another. It is also observed that when a person is nominated to the higher pay scale from time to time based on seniority, it may perhaps loosely be termed as a promotion, but it is different from promotion as envisaged normally and promotion as defined in Rules.
33. In Shamsudclin and Ors. v. Union of India and Ors. 1996 (34) ATC 489, the issue was again examined with reference to reservations and the distinction between promotion and upgradation was pointed out as under:
12. The crux of the matter rests on the interpretation of the words 'upgradation' and 'promotion'. In case 'upgradation' is held to mean "to attain a higher statute while remaining on the same pedestal", it cannot be equated with 'promotion' which may be understood to mean "moving upwards and leaving the original pedestal". The dictionary meaning of the word upgradation in the Chambers 20th Century Dictionary, New Edition 1983 has been given as "an upward slope or course" and 'promotion' has been held to mean as "advancement in rank or in honour". Looking at the two meanings given to the words upgradation and promotion, what is made out is that upgradation involves the process of moving upwards while remaining on the same pedestal. Whereas promotion results in (sic) to a higher place leaving behind the original pedestal. Thus, construed even if the premise taken by the respondents is accepted that upgradation of posts has to be effected to remove the hurdle of the stagnation mainly in the career of an employee, then it permits such an employee to receive a higher scale of pay by giving it a different nomenclature but without shifting him from his post and without clothing him with additional duties and responsibilities. Such an employee gets the benefit of the upgradation primarily on the basis of his seniority in the basic cadre and moves nearer to the step which may, ultimately fructify in his promotion to a higher post. In our view the above interpretation takes us nearer to common sense approach and appeals more to the conscience. It is also the settled principle of interpretation that words should be interpreted in such a manner which advance the cause of justice and not retard il. Had it been otherwise and if the respondents had really wanted to increase the promotional posts they could have done so straight away by creating new promotional posts with commensurate higher pay scales instead of simply upgrading certain percentage of posts while restructuring the cadre as a whole and keeping the strength of the cadre same. It appears that in introducing the scheme of the restructuring of the cadres by way of upgradation of certain percentage of posts the appropriate authorities have taken into consideration only the financial constraints and to keep the budgetary expenditure static without taking into consideration the legal complications which may ensue on implementation of policy of reservation in thif scheme. This is evident from the history of the scheme, when the policy of reservation was made applicable to 'en masse' upgradation which ultimately was struck down in the decision rendered by the Jabalpur Bench of the Tribunal in the case of Ashok Kumar Srivastava v. Union of India and affirmed by the Hon'ble Supreme Court when a Special Leave Petition No. 10144-46/1988 filed by the Union of India was dismissed vide order dated 26.10.1988. This is the second chain of litigation whereby the implementation of the policy of the reservation in partial upgradation is being challenged. In this regard we can beneficially reproduce the relevant portions of the decision rendered by the Allahabad Bench of the Tribunal in the case of N.K. Sainiv. Director General RDSO where this controversy has been discussed threadbare. In this decision the Allahabad Bench of the Tribunal after consideration of the basic letter dated 2.8.1983 issued by the Railway Board which provided implementation of the reservation policy in cases of partial upgradation also observed that:
The Railway Board's letter of 2.8.1983 actually talks of no reservation in en masse upgradation while in partial upgradation of a cadre on the basis of percentage distribution, it provides for the application of the rules governing reservation as the Board interpreted that such upgradation will give additional number of higher grade posts. This logic would not seem to be correct. We have already observed that if there are no additional posts created in en masse upgradation the adoption of the concept that in partial upgradation additional posts get created would be wrong and fallacious. Upgradation cannot mean and does not mean the creation of additional posts. It is placing certain number of posts into the higher grade. If there was a creation of certain number of posts the total number of posts must have correspondingly increased but that does not happen. Therefore, we have no hesitation to say that the clause in regard to application of reservation against the additional number of higher grade posts which become available as a result of cadre restructuring in Board's letter of 2.8.1983 is uncalled for and against principles of upgradation. This qualification made by the Railway Board in their letter was uncalled for and is not in consonance with the aims and objects of the philosophy of upgradation and restructuring Consequently, the Allahabad Bench of the Tribunal while directing the respondents and allowing the applications held that:
We allow this application and direct that the applicants will be considered for being put against these upgraded posts in accordance with the rule seniority subject to rejection of the unfit and no reservation will be applicable to the posts. Persons wrongly promoted will stand reverted but no recoveries be made from the over payments made during the period they have officiated. The applicants would be provided proforma fixation with effect from the dates they should have been actually promoted i.e., 1.7.1985. They will not be entitled to any arrears on this account. The application is disposed of accordingly with no order as to costs.
13. When the Union of India against this order went in appeal to the Hon'ble Supreme Court by filing a Special Leave Petition being Special Leave to Appeal (Civil) No. 10144-46 of 1988, it was dismissed vide order dated 26.10.1988. Another independent Special Leave to Appeal (Civil) No. 9628-30 of 1988 from the judgment of the Allahabad Bench of the Tribunal in O.As. Nos. 414 of 1988, 468 of 1987 and 432 of 1987 was also filed by Govind Sahai which was also dismissed by the Hon' ble Supreme Court vide its order dated 31.5.1988 observing that:
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.
14. It is thus abundantly clear that the view taken by the Allahabad Bench of the Tribunal in N.K. Saini case having been affirmed by the Hon'ble Supreme Court; it is now unquestionable that implementation of the reservation policy in the upgraded posts after restructuring of the cadres whether 'en masse' or on partial basis is not tenable in the eye of law.
34. Another concept which has lately developed is Time Bound Promotion. This concept was introduced with a view to give benefit of the employees who had stagnated for a considerable period and did not get promotion. The schemes are known as TBOP One Time Bound Promotion and BCR Biennail Cadre Review Schemes. The question whether TBOP or BCR were merely financial upgradation or promotion, came up for consideration before Full Bench of Central Administrative Tribunal, Cuttack Bench in the case of Shri D.C. Mishra and 23 Ors. v. Union of India and Ors. O.A. No. 329/2000. It was held therein that the said schemes were not promotion schemes to the next higher posts. The matter again came up for consideration before the Central Administrative Tribunal, Hyderabad Bench in Sk. Abdul Gaffar and 3 Ors. v. Union of India and Ors. O.A. No. 976/2003 and companion O.As., to which one of us Batta, J was a party. Reference in the said Full Bench was answered by stating that TBOP and BCR schemes were financial upgradations in the scales and the substitution of the nomenclature of 'promotion' by the word 'financial upgradation' in the scheme does not make any legal difference.
35. In the case before us, the restructuring has been done to strengthen and rationalise the staff pattern on Railways on the basis of functional, operational and administrative requirements and consequently there has been re-arrangement/reallocation of the posts in different scales in the cadre which will result in adjustment/reallocation of existing employees in the said cadre as a result of which some of the employees in this process would get higher pay scale. We have already referred to the scheme and the clarificatiorf dated 6.1.2004 which shows that all vacancies arising out of restructuring have to be filled up by senior employees who should be given the benefit with effect from 1.11.2003. The existing selection procedure stands modified and selection will be based on scrutinising of service records and confidential reports as a one time exception by special dispensation.
36. At this stage, we would like to refer to the judgment of the Central Administrative Tribunal, Calcutta Bench in Birendra Kumar Das v. Union of India (supra). It was the case where the applicant was given the benefit of restructuring but was subsequently reverted by applying reservation rule. It was held therein that for granting restructuring benefit to the employees under the Railway Board Circular dated 27.1.1993, reservation for SCs and STs cannot be made and only on the basis of the seniority-cum-fitness, promotion has to be given. In that case, by way of restructuring, certain percentage of posts were merely upgraded and to the upgraded posts, promotions were given. The Calcutta Bench of Central Administrative Tribunal, after considering the judgment of Jabalpur Bench of Central Administrative Tribunal in A.K. Srivastava v. Union of India and Anr. (supra) wherein the Full Bench judgment of Kerala High Court in N.G. Prabhu v. The Chief Justice, Kerala High Court (supra) as also V.K. Sirothia v. Union of India in O.A. 384/86 of Central Administrative Tribunal, Allahabad Bench, were considered and it was held in A.K. Srivastava's case (supra) that in restructuring of posts, no new posts were created and some posts out of existing total number of posts were placed in the higher grade to pi"bvide avenues of promotion to the stagnated employees and the placement of these posts cannot be termed as creation of additional posts and the only difference was that some of them were placed in the higher grade and this is neither new appointment nor promotion. Consequently, reservation of SC/ST candidates to such posts cannot be made. The same principle was followed by the Calcutta Bench of Central Administrative Tribunal in the case of Birender Das and Anr. v. Union oflrdia and Ors. (supra).
37. It will be appropriate at this stage to reproduce below, the observations from the case of V.K. Sirothia v. Union of India (supra) of Allahabad Bench of Central Administrative Tribunal, which have been quoted as under, in the case of Ashok Kumar Srivastava and Anr. v. Union of India and Ors. (supra):
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.
It is pertinent to note that in that case, the exercise was done with a view to remove stagnation and betterment of chance of promotion and the method followed was redistribution. In the case before us, the purpose behind the scheme dated 9.10.2003 is strengthening and rationalising the staffing pattern on the basis of functional, operational and administrative requirement and it is in this process of restructuring due to revised percentages that the posts in some scales have been increased though the total number of posts in the cadre remains the same as a result of which some employees would be placed in the higher scale without following regular process for promotion and the same will be done on the basis of seniority as also modified selection procedure based upon scrutiny of service records and confidential reports alone without holding any written and/or vi va-voce test. In the case of Ashok Kumar Srivastava (supra), it was held that upgradation of EDMOs to DMOs involved neither selection nor promotion. It was simply nomination or placing of some seniors to the upgraded posts with better scales, on the basis of seniority, subject to suitability. Accordingly, it was held that placing a few seniors to the upgraded posts with better scale, does not amount to any fresh appointment by promotion.
38. We may, at this stage, also point out that the issue relating to application of reservations to the restructuring scheme dated 9.10.2003, was specifically the subject matter of consideration before the Chandigarh Bench of Central Administrative Tribunal in the case oi Unreserved Employees Association, Rail Coach Factory, Kapurtluila v. Union of India and Ors. (supra), before the Full Bench of Central Administrative Tribunal. Allahabad Bench inP.S. Rajput and Ors. v. Union of India and Ors. (supn) and before the Bombay Bench of Central Administrative Tribunal in Jagdish M, Mistry v. Union of India (supra). In all these cases, it was held that reservation of SC/ST shall not apply while implementing restructuring scheme dated 9.10.2003. It may also be mentioned here that the Central Administrative Tribunal, Principal Bench, New Delhi had, in another O.A., held vide order dated 7.8.2002 that there was no reservation in the upgraded posts as a result of restructuring. Union of India had filed Civil Writ Petition No. 6090/2002 in the Delhi High Court and the only controversy raised therein was relating to the prospective application of 1993 scheme which had been quashed, and the said scheme of 1993 has not been even seriously challenged. The Delhi High Court had dismissed the said writ petition vide order dated 18.11.2003.
39. In Unreserved Employees Association, Rail Coach Factory, Kapurthala v. Union of India and Ors. (supra), the Division Bench of the Tribunal has referred to O.M. dated 25.10.2004 regarding application of reservation in Group 'C and 'D' cadres and taking into account the observations of the Apex Court in Union of India v. V.K. Simthia (supra). Railways were directed to implement the directions of the Supreme Court and not to apply reservation while filling the posts upgraded on account of restructuring, by the existing employees. The Division Bench further held that the Ministry of Railways would be bound by the clarification given by the DoPT.
40. It is relevant and appropriate at this stage to refer to the judgment of the Apex Court in Shreedharan Kallat v. Union of India and Ors. wherein the Hon'ble Supreme Court has laid down that the orders of the High Court regarding validity or interpretation of service rules, having achieved finality, is binding on the Department and cannot be challenged by it is an another case. The Apex Court found that what was surprising was that apart from respondents, even Railways, which was unsuccessful twice, again raked up the same controversy and supported the respondents. The Apex Court has further laid down that the Railways had once again taken up the plea which was rejected by the High Court and such unwarranted stand by public authorities results in protracted litigation involving wastage of money and time and the Department is precluded from challenging the interpretation given by the Court same principle has to be applied and extended at least to the Full Bench judgment of the Tribunal which has binding effect upon the Division Benches of the Tribunal and once Full Bench has considered a particular issue and given its findings against the party, such party, especially Government Departments, cannot be permitted to raise the same controversy again and again before the Division Bench since it results in not only protracted litigation inspite of finality of the issue determined by the Full Bench, but it also involves in wastage of money and lime. The remedy for the official respondents would, therefore, be to challenge the judgment of the Full Bench. Be that as it may, even on merits, we do not find that the stand taken by the official respondents can be accepted.
41. The respondents have placed heavy reliance on the judgment of the Full Bench of Central Administrative Tribunal, Bangalore Bench in the case of M.L Rajaram Naik and Ors. v. Additional Director, CGHS (supra). In that case, the question of upgradation and reservation was considered with reference to the posts of Pharmacist in CGHS. The Full Bench held that appointment to the upgraded posts of Senior Pharmacist in CGHS and upgraded posts of BCR Grade-IV in the Department of Telecommunications amounts to promotion attracting principles of reservation for special categories like SCs and STs. The Full Bench judgment of the Bangalore Bench of Central Administrative Tribunal was duly considered by the Full Bench of Central Administrative Tribunal, Allahabad Bench in P.S. Rajput and Ors. v. Union of India and Ors. (supra) and it was held that the decision did not help the respondents' case therein.
42. In the case of M.L. Rajaram Naik and Ors. v. The Additional Director, CGHS, Bangalore and Ors. (supra) the respondents had placed reliance on the judgment of Ahmedabad Bench of Central Administrative Tribunal in Jagdish Bhai C. Vyas v. Union of India O.A. No. 70 of 1998 decided on 24.9.1999 in support of their contention that reservation for Scheduled Castes and Scheduled Tribes is not applicable to fill up 25% upgraded posts of Pharmacists. In this respect, the Full Bench of Central Administrative Tribunal, Bangalore Bench, in Paragraphs 6 and 29, observed as under:
The Ahmedabad Bench relying mainly on the order of the Jabalpur Bench in Ashok Kumar Shrivastava and Anr. v. Union of India and Ors. (1987) 4 ATC 385 which order was affirmed by the Supreme Court, the decision of the Ahmedabad Bench in All India Non-Scheduled Caste/ Scheduled Tribe Telecom Employees Association and Ors. v. Union of India andAnr. O.A. No. 623/1996 dictated on 11.4.1997 which order was upheld by the Gujarat High Court and the decision of the Supreme Court in Union of India v. B.K. Sirothia Civil Appeal No. 3522 of 1995 with C.A. No. 9149/95 decided on 19.11.1998, has held that reservation roster cannot be applied in respect of upgraded posts of Senior Pharmacists and that these posts should be filled on the basis of seniority-cum-fitness.
29. The fact that the contrary decision of the Ahmedabad Bench has been affirmed by the Hon'ble High Court of Gujarat, in our considered view, cannot be a factor pertaining to the question of the issues referred to Full Bench by the aforesaid Division Bench of the Bangalore Bench of the Tribunal. The decision of the Hon'ble High Court of Gujarat, as is obvious is not binding on the Bangalore Bench of the Tribunal though it has persuasive value. Further, when the decision of the Ahmedabad Bench has been affirmed by the Hon'ble High Court of Gujarat is found to be at variance with the principles laid down by the Hon'ble Supreme Court, which have not been referred to by the Ahmedabad Bench at all, or is in conflict with the decision rendered by the Madras Bench of the Tribunal, it is all the more necessary for the Full Bench to go into the merits-of these decisions of the Benches of the Tribunal.
43. It may also be pointed out that the case of ML Rajaram Naik (supra) had also dealt with the issue relating to upgraded posts of BCR Grade IV in the Department of C.G.H.S., and had held that the same amounted to promotion attracting principles of reservation for special category like SCs and STs. In this respect, we would like to point out the Full Bench decision of Central Administrative Tribunal, Hyderabad Bench in the case of Sk. Abdul Gaffar and 3 Ors. v. Union of India and Ors. and the companion O.As. (supra) to which one of us (Batta, J) was a party, wherein it has been held that TBOP and BCR schemes were financial upgradations in the scales and the substitution of the nomenclature of 'promotion' by the word 'financial upgradation' in the scheme does not make any legal difference. The judgment in the case of M.L. Rajaram Naik partly rests on the premise that BCR is promotion, which question has been considered at a great length and in greater details in the Full Bench case of Sk. Abdul Gaffar and 3 Ors. v. Union of India (supra). In view of this, the very basis on which the judgment in the case of M.L. Rajaramwas rendered, is shaken.
44. The arguments advanced by the learned Counsel for the official respondents based on the judgment of the Apex Court in R.K. Sabharwal v. State of Punjab (supra) were also duly considered and rejected not only in the Full Bench judgment of Central Administrative Tribunal, Allahabad Bench in the case of P.S. Rajput (supra) but also in the Division Bench judgments of Central Administrative Tribunal, Chandigarh Bench in the case of Unreserved Employees Association Rail Coach Factory, Kapurthala v. Union of India and Ors. (supra) and of the Central Administrative Tribunal, Bombay Bench in Jagdish Mistry v. Union of India and Ors. (supra). The official respondents, therefore, cannot be permitted to raise and advance such arguments again and again before different Benches of the Tribunal in similar matters dealing with the same scheme dated 9.10.2003.
45. The Full Bench judgment in the case of M.L. Rajaram and Ors. v. Additional Director, CGHS, Bangalore (supra) was with reference to the different scheme under CGHS whereas the Full Bench judgment in the case of P.S. Rajput (supra) as also the Division Bench judgment in Unreserved Employees Association, Rail Coach Factory, Kapurthala v. Union of India and Ors. (supra) and Jagdish Mistry v. Union of India (supra) are in respect of the same controversy relating to the scheme dated 9.10.2003. We would like to emphasize that the Apex Court had gone into the question of restructuring and whether it amounted to promotion as also the question of reservation in the case of Union of India v. V.K. Sirothia (supra) wherein it was held, C.A. No. 3622 of 1995
1. Heard Counsel on both sides.
2. The finding of the 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 reasoning. 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 orders of the Tribunal.
3. The civil appeal is dismissed. No costs.
46. It is also pertinent to note that the matter had again come up before the Hon'ble Supreme Court in All India Non-SC/ST Employees Association (Railway) v. A.K. Agarwal and Ors. Three Judges Bench. The dispute in the said case had arisen in the case of All India Non-SC/ST Employees Association (Railway), Bikaner and Anr. v. Union of India and Ors. O.A. No. 326/89. In that case, the Division Bench of Central Administrative Tribunal, Jodhpur Bench had considered the issue as to application of reservation for SCs and STs in the case of upgradation of existing posts in the Railways under the earlier scheme. The Division Bench had held that reservation for SCs and STs was not applicable in the case of upgradation to all existing posts. This matter had come up before the Apex Court in Contempt Petition (Civil) No. 304 of 1999. The Apex Court pointed out that in the order dated 31.1.2001 it was clarified that the principle of reservation does not apply if as a result of re-classification or re-adjustment no additional post is created. It was also clarified that if as a result of re-classification and re-adjustment having been effected any post is created then the principle of reservation would be applicable. It was, however, noticed that the present case was restricted only to the existing employees who were re-distributed into different scales of pay as a result of this upgradation. The Apex Court in its order dated 31.1.2001 has, in this connection, has observed:
It appears from all the decisions for that if a result of re-classification on 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 reservation for S.C. and S.T. is not applicable in the upgradation of existing posts and Civil Appeal No. 148/1996 and the connected matters were decided against the Union of India. The effect of this is that where the total number of posts remained unaltered though in different scales of pay as a result of re-grouping 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 of post being created to which the reservation principle would apply. It is only of in addition to the total number of existing posts some additional posts are created that in respect of 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.
47. In view of the above, we hold that reiterate that the policy of reservation in favour of Members of SC and ST, is not applicable to the restructuring scheme dated 9.10.2003 and consequently the respondents are directed lo consider the applicants and other eligible employees for placing them in the appropriate pay scales under the restructuring Scheme as per their eligibility and suitability without reference to the reservation policy, from the due date with all consequential benefits, within a period of three months from the date of receipt of a copy of the order. The impugned order dated 17.12.2004 in O.A. 1318/2004 and the impugned order dated 8.10.2004 in O.A. 1347/2004 are accordingly set-aside.
48. The O.As. are allowed in the aforesaid terms with no order as to costs.