Central Administrative Tribunal - Chandigarh
Unreserved Employees Association ... vs Union Of India (Uoi) And Anr. on 24 November, 2004
Equivalent citations: 2005(3)SLJ47(CAT)
JUDGMENT Jasbir S. Dhaliwal, Member (J)
1. Through this judgment, we propose to dispose of 13 O.As., enumerated above, as all these cases involve identical facts and a common question of law i.e. Whether the policy of reservation shall apply to the scheme of restructuring as enforced by the respondents w.e.f. 1.1.2003 or not? With consent of ld. Counsel, reference is being made to facts in the case of Ravinder Kumar and Anr. v. Union of India and Ors., O.A. No. 331-HR of 2004, though we will also be making reference to some documents/judgments filed in other O.As., with specific mention thereof, which are not in the file of Ravinder Kumar.
2. Applicants in O.A. No. 331-HR of 2004 joined the respondent Railways as Clerks on 17.10.85 and 18.10.85, respectively. Both were promoted as Senior Clerk on 27.2.92 and then as a Head Clerk on 29.9.95 and 21.5.97, respectively. Claim that their seniority as Head Clerks was at Sr. Nos. 10 and 11, respectively in the Seniority List as on 24.10.2004, Annexure A-3. Promotion from the post of Head Clerk is to the post of Office Superintendent Gr. II by way of selection from amongst persons in the feeder category with two years' experience. To remove stagnation, the respondent Railways had been resorting to restructuring of cadres (done w.e.f. 1.1.79, 1.10.80, 1.1.84 and 1.3.93) by taking into consideration total strength of all categories in one cadre and then distributing the vacancies. In this process, reservation need not be effected as the reservation already stands followed as per the instructions of the Government/Railways. However, in all the restructuring policies undertaken on the dates aforesaid, there was provision of reservation. This was challenged before the Central Administrative Tribunal, Jodhpur Bench in O.A. 326/89 and reservation in restructuring of cadres was set aside. Applicants plead that the matter was taken by the Railway Administration to the Apex Court in Civil Appeal No. 1481/96 which was dismissed on 19.11.98 by passing the following order:
"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 in Civil Appeal No. 3622/95 etc. In the light of that decision these appeals are dismissed...".
Civil Appeal No. 3622/95 carried the following decision:
"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 reasonings. On facts, it is seen that it is 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 Tribunal. The Civil Appeal is dismissed. No costs."
The clarificatory order of the Hon'ble Supreme Court, dated 31.1.2001, reads as under:
"It appears from all the decisions so far that, if as a result of re-classification or readjustment, there are not 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 the Court on 19th November, 1998 had held that reservation for SC and ST is not applicable in the upgradation of existing posts and Civil Appeal No. 1481/1996 and the connected matter 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 scales 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 addition to the total number of existing posts some additional posts are created 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 redistributed into different scales of pay as a result of said upgradation.
Thus, the Hon'ble Supreme Court, as per judgments, Annexures A-4 to A-6, held that there will be no reservation in restructuring or upgradation of the posts in the restructuring for the obvious reason that in the restructuring of cadres, the overall strength of the category falling in one category remains the same and it undergoes a change category-wise and in each category, before restructuring, appropriate reservation is followed.
3. Applicants plead that the respondent Railway Administration, without curing the illegality earlier committed, and in defiance of the directions of CAT, Jodhpur Bench, that of the Hon'ble Apex Court, without any authority and in a contemptuous manner, have issued another policy for Group 'C' and 'D' employees on 16.10.2003 and a supplementary policy dated 13.1.2003, circulated as per Annexures A-1 and A-2, impugned in the present O.As. on account of a provision having been made in Clause No. 14 for grant of reservation to SC/ST, with a prayer that the same be quashed and set aside being violative of the directions of the Hon'ble Apex Court in Civil Appeals No. 3622/95 and 1481/96 and that the respondents be restrained from giving reservation to SC/ST category in the restructured cadre of Office Superintendents Grade II (Electrical) under DRM, NR, Ambala Cantt. with a further direction to consider the candidates for the upgraded posts. Clause 14, on the provision of reservation, though states that the existing instructions with regard of reservation of SC/ST, wherever applicable, will continue to apply, is a mere camouflage as it does not specifically say that reservation policy would apply in the restructuring, but the subordinate offices are interpreting it otherwise and have followed the reservation policy in some cases and in the restructured cadre of Office Superintendents Gr. I, promotions have been made according to the restructuring scheme and the points earmarked for reserved category candidates have been kept vacant. In case of Office Supdts. Gr. II (Electrical), restructuring has been done. The process of making promotions in the category of applicants is underway and there are 12 vacancies in the cadre of Office Supdt. Gr. II and position of applicant No. 1 is at Sr. No. 10 and that of applicant No. 2 is 11. In case, reservation is given, two posts would go to SC category and one to ST category and, in that process, applicants will be out of zone of consideration and would suffer irreparable loss.
4. Applicants plead that they made representation of the Divisional Railway Manager, Ambala on 25.3.2004 but to no effect. Further plead that the provision made in Clause 14, abovesaid, is null, void, illegal, harsh and is liable to be quashed as the benefit of reservation to the reserved categories cannot be given at the cost of general categories. Respondents cannot be allowed to give double benefit to the reserved category employees by granting benefit of reservation in the basic cadres before restructuring and again in the restructured cadres. If it is so done, the general category would be put to a very disadvantageous position and which would be against the very intention and spirit of the reservation policy.
5. A written statement has been filed by the respondents. Respondents plead that applicants have laid challenge to Railway Board letter RBE 177/2003 dated 9.10.2003 (Para 14) and RBE No. 05/2004 which are strictly in accordance with the Reservation Policy of Govt. of India. In case, an adverse order is passed, a large number of Railway staff would be affected. In Para 14, the direction is to apply in cadre restructuring the 'existing instructions' with regard to reservation of SC/ST. Therefore, whether or not reservation will apply in a particular restructuring scheme, will depend upon the existing reservation policy on the date of restructuring scheme. This is the distinguishing factor, vis-a-vis, cases of V. K. Sirothia and All India Non-SC/ST Employees Association and the same result will not follow in the present scheme. The Court may assess the issue afresh in the light of 'existing reservation policy.' Respondents have also filed a supplementary written statement and applicants have filed a rejoinder.
6. We have heard the ld. Counsel for the parties and have undertaken detailed examination of these files. While issuing notice in all these cases, respondents were restrained from giving reservation in restructuring of cadre from the posts involved in each of these cases, to the next higher grade/post. Such interim orders have continued to be in operation till today.
7. The short issue involved in these O.As., which emerges for our consideration, is as to whether restructuring of a cadre and adjustment of existing staff in such scheme can be termed to be a promotion and as to whether in such restructuring scheme, the members of the Scheduled Caste/Scheduled Tribe category can be granted reservation as is available to them in the matter of normal promotions.
8. Mr. R.K. Sharma, learned Counsel for the applicants submitted that the issue is no longer res integra and has been clinched by orders passed by various Benches of the Tribunal and also as per law settled by the Hon'ble Apex Court. He referred to a series of decisions, starting from decision of Jabalpur Bench of the Central Administrative Tribunal titled as Ashok Kumar Srivastava v. Union of India and Ors., (1987) 4 STC 385. In Paras 27 and 28 of the judgment, the Tribunal held as under:
"27. Consequently, we are of the view that in the present case the upgradation of ADMOs to DMOs involved neither a selection nor a promotion. It is simply nomination or placing of pay seniors to the upgraded posts with better pay scale, on the basis of seniority subject to suitability. In the circumstances of this case placing of these few seniors to their upgraded posts with better pay scale does not amount to any fresh appointment by promotion and moreover, these persons, so nominated to the higher grade, do not leave behind vacant their earlier posts.
28. For the above reasons and on the basis of facts of this case we hold that placing of ADMOs to the higher scale of DMOs in the 300 upgraded posts is neither promotion nor appointment and so reservation policy cannot be applied to this upgradation process. As no element of promotion or appointment is involved in upgradation of these 300 posts of ADMOs and since the policy of reservation for SC and ST can be applied only in the case of fresh appointment or promotion, it cannot be applied to these 300 upgraded posts. Under the circumstances the question of reserving percentages for SCs and STs insofar as these 300 upgraded posts are concerned, in regard to their incumbents including petitioners, and those similarly placed does not arise. We are in respectful disagreement with the views of Hon'ble M.P. High Court in their decision in Dr. V.K. Vyas v. Union of India as also of the Hon'ble Andhra Pradesh High Court, cited in Para 16 earlier, for the above reasons."
9. The above decision was upheld by the Hon'ble Apex Court in SLP No. 11801/87 decided on 8.12.1987 titled Union of India v. A.K. Srivastava and was relied upon by Jodhpur Bench of Central Administrative Tribunal in O.A. No. 326/89 (All India Non SC/ST Employees Association (Railway) Bikaner and Anr. v. Union of India and Ors. decided on 20.10.1992). It was held that reservation for SCs and STs is not applicable in the case of upgradation of existing posts. Respondents were directed to consider the applicants therein for being put against the upgraded posts in their respective cadre in accordance with the rules of seniority subject to the rejection of unfit and that no reservation will be applicable to the posts in question. This view of the Tribunal was upheld in C.A. No. 1481/96 (Union of India and Ors. v. All India Non SC/ST Employee Assn. and Anr.) etc. The Hon'ble Apex Court in C.A. No. 3622 of 1995 titled as Union of Indian. V.K. Sirothia, decided on 19.11.1998 (Annexure A-5) upheld the finding of the Tribunal that "the so called promotion as a result of redistribution of posts is not promotion attracting reservation." The Hon'ble Apex Court further observed that 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. The Principal Bench of C.A.T., in O.A. No. 2123/93 (All India Non SC/ST Rly Employees Association etc. v. Union of India and Ors.) decided on 23.7.1999, while placing reliance on decision of Jodhpur Bench of Central Administrative Tribunal in O.A. No. 460/91 (Samsudden and Ors. v. Union of India and Ors.) decided on 9.5.1996, in which reliance was placed on earlier decision of Allahabad Bench of Tribunal in the case of N.K. Saini and Ors. v. The Director General RDSO and Ors., O.A. No. 414/87 and connected O.As., decided on 31.5.1988, which was upheld by Hon'ble Apex Court in C.A. No. 3622/85, took the view that reservation policy in the upgraded posts after restructuring of the cadre, whether en masse or on partial basis, is not tenable in the eyes of law. The issue again cropped up in Contempt Petition (Civil) No. 304/99 in C.A. No. 1481/1996 (All India Non SC/ST Empl. Assn. (Railway)v. V.K. Agarwal and Ors. before the Hon'ble Apex Court and it was held on 31.1.2001 that:
"... 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, the principle of reservation will not be applicable. It is on this basis that this Court on 19th November, 1988 had held that 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 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 or post being created to which the reservation principle would apply. It is only in addition 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 redistributed into different scales of pay as a result of the said upgradation.
The Union of India shall re-work the seniority in the light of the clarification made today and report back within 6 weeks from today."
The consistent view of this Tribunal as well as of the Hon'ble Apex Court has been that there cannot be any reservation in the matter of restructuring upgradation of a cadre. Even the Railway Administration with a view to implement the decision of Jodhpur Bench of C. A.T., as upheld by the Hon'ble Apex Court, issued instructions dated 5.3.2001 (Annexure R-1) to implement the orders of the Hon'ble Apex Court.
10. The Bench put a query to the learned Counsel for the respondents as to how do they distinguish the present cases from the earlier view taken by the Tribunal and particularly, the view taken by the Hon'ble Apex Court in V.K. Agarwal's case (supra). The learned Counsel tried to raise a distinction that earlier decisions were rendered when reservation was on "vacancy-based roster" and now after the judgment of R.K. Sabharwal's case, roster has been maintained post-based and each category has to be treated as a separate cadre. This, according to them, is a promotion and they have relied upon a circular of the Railway Board dated 21.8.1997 and judgement of the Hon'ble Apex Court in the case of Girdhari Lal Kohli etc. etc. They tried to raise a distinction in the case of V. K. Agarwal on the ground that while disposing of the contempt petition in the case of V.K. Agarwal etc. (supra), the Hon'ble Apex Court did not agree to the petitioners' plea for extending the implementation to any other offices or to any other restructuring schemes (Annexure R-2). The learned Counsel further argued that the reservation policy of the Railways is best understood in the light of the Apex Court decision in the case of Girdhari Lal Kohli. In that case, the Allahabad High Court had held that circulars of Railways made reservation to the extent of 15% in favour of SCs in respect of appointment to the posts and not to the vacancies which may occur in the cadre. The Hon'ble Apex Court passed two interim orders on 24.2.1984 and 24.9.1984 to the effect that any promotions made during the pendency of the appeal will be subject to the result of the appeal and promotions which may be made thereafter will be strictly in accordance with the judgment of the High Court, etc. Based on the interim orders passed in 1984 the respondents have tried to project that reservation is applicable to the restructuring scheme.
11. The argument put-forth on behalf of the respondents does appear to be attractive but a close examination of the same shows that the issue as to whether reservation is applicable in the restructuring scheme was neither raised nor adjudicated upon in that case. The issue raised in that case was as to whether the reservation should be computed to the extent of 15% for SC and 7 1/2% for STs on posts and not on vacancies that may arise, from time to time. It was in that context that the Hon'ble Apex Court, while passing the final order dated 26.7.1995 (Annexure R-5), took the view that while implementing the circular dated November 17, 1984, the authorities will have regard to the law laid down by the Hon'ble Apex Court in Sabharwal's case. We fail to understand the logic advanced by the respondents in support of their contention when it has been held upto the highest Court of the country and that, too, after the final decision dated 26.7.1995 in the case of Girdhari Lal Kohli, supra, that reservation is not applicable in the cases of upgradation/restructuring. As to how they are sticking to their stand of making reservation in the scheme of restructuring is not understood. They are trying to apply the principle of reservation applicable in respect of promotions to the restructuring which is prohibited by law. It appears that they are not in a position to understand the difference between the terms "promotion" and "restructuring" (intended to give upgradation financially to meet stagnation).
12. The respondents have placed reliance on a decision of Jodhpur Bench of Central Administrative Tribunal in O.A. No. 86/1992, (All India Non-Scheduled Caste/Tribes Association (Railway) Bikaner and Ors. v. Union of India and Ors.), decided on 10.8.1993, in which even though the applicants were non-suited on number of defects in the pleadings but a finding was recorded that since there was partial upgradation of the posts and not mass upgradation, question of promotion arises. It appears that the respondent Ministry of Railways was well aware of the progress of litigation in the matter of reservation in restructuring but never cared to bring to notice the earlier orders passed by various Benches of the Tribunal, and even by Hon'ble Apex Court, wherein a definite view had already been taken that there cannot be any reservation in restructuring etc. and naturally, the settled proposition of law being not before the Tribunal in O.A. No. 86/1992, actuated it to take a different view. It is well settled that a decision taken by the Tribunal without taking into consideration the latest law settled by the Hon'ble Apex Court has to be treated as 'per incuriam' and cannot be treated as a good law, to be applied universally. The reliance placed by the respondents on decision of Bombay Bench of C.A.T. in the case of Samual Paul Raj v. Union of India and Ors., decided on 31.3.1997 (Annexure R-7) and O.A. No. 46/2004 (Harish Chandra v. The General Manager etc.) decided on 26th July, 2004 of Lucknow Bench of C.A.T. is also of no help to them in view of the fact that these decisions do not take into account the law settled on the subject by the Apex Court and are 'per incuriam' and cannot be treated as binding. Reading of these judgments indicates that all earlier judgments, including that of the Apex Court mentioned above, were not brought to notice of the Benches of Lucknow and Bombay, at all. Since reliance is being placed on Supreme Court judgment on the legal issue involved, we feel no need of making a reference to a Larger Bench as the judgments of these two Benches are being treated as per-incuriam.
13. With reference to salient features of the restructuring scheme as explained in the supplementary written statement of respondents and decisions of Hon'ble Apex Court in State of Rajasthan v. Fateh Chand Soni, 1996 SCC 582; Indira Sawhney v. Union of India (1992) 22 ATC 385; Ram Prashad and Ors. v. D.K. Vijay and Ors., (1999) SCC 251; Full Bench of C.A.T. Bangalore Bench in M.L. Rajaram Naik v. The Addl. Director, CGHS, Bangalore, 2000(2) ATJ 422, it has been argued on behalf of the respondents that placement in a higher scale on account of restructuring of cadre etc., amounts to "promotion" and thus, the reservation will be applicable.
14. The learned Counsel for the applicants countered the above argument raised by the learned Counsel for the respondents by relying upon a decision of Principal Bench of C.A.T. in O.A. No. 1540 of 2003 (Shiv Kumar and Ors. v. Union of India and Ors.) decided on 29.4.2004 (Annexure A-12), in which it was, inter alia, held that when a Full Bench decision is pitted against the decision of the Apex Court, the latter shall have to prevail being a binding precedent under Article 141 of the Constitution of India and more particularly when the decision of the Hon'ble Apex Court is ignored in the Full Bench which renders it per incuriam. After considering the conflicting decisions of various Tribunals, the Bench, following the view taken by the Hon'ble Apex Court, held as under:
"54. We cannot describe these two orders passed as non-speaking orders or not laying a proposition of law. A definite proposition of law has been held to distinguish promotion from upgradation and the test is creation of additional posts. These orders are speaking orders and are binding precedent under Article 141 of the Constitution of India. We follow the same and in that event, the decision of the Full Bench which has been on a wrong premises, per incuriam of these orders has to give way and is no more a binding precedent for us. We do not offend the doctrine of precedent while doing so.
55. to 58. xxx xxx xxx
59. In the result, for the foregoing reasons, we allow this O.A. Notification dated 15.9.2000 in so far as it provides reservation and notification dated 5.6.2003 and 6.6.2003 are quashed and set aside. The respondents are directed to accept the recommendations of the 5th CPC as upgradation and work out a methodology afresh in the light of decision in N. K. Saini 's case (supra) and then further process for filling up the posts of upgradation, reservation and consider applicants and other similarly circumstanced."
In the said judgment all the judgments relied upon by the respondents have been duly considered. Similarly, High Court of Delhi, in CWP No. 6090/2002 decided on 18.11.2003 (Union of India etc. v. All India Non-SC/ST Railway Employees etc.), while considering the issue as to whether the decision of the Tribunal which quashed Paragraph 10 of the Scheme dated 27.1.1993 is to be applied retrospectively or prospectively, came down heavily on the respondents, holding that the Tribunal has not taken a fresh decision but has followed only an "already settled" law.
15. In an M.A. No. 1773/2004, filed in O.A. No. 1173/2004, the Principal Bench of C.A.T. ordered that such of the SC/ST employees as have been allowed the benefit of reservation on upgraded posts with consequential seniority should not be further promoted till further orders. Thus, the consistent view, taken by the Courts, is that there cannot be any reservation in restructuring of cadres as under such scheme the incumbents are merely placed in the higher pay scale without any element of promotion.
16. A plea of post-based roster on the basis of R.K. Sabharwal's case and reliance on Girdhari Lal Kohli's case was duly placed by the respondents in Civil Appeal No. 1481/1996 before the Hon'ble Apex Court by way of affidavit, Annexure A-16, wherein the stand taken by them was that the affidavit is being filed to bring to the notice of the Hon'ble Apex Court the subsequent events, namely, the decision in the case of Girdhari Lal Kohli and Ors. v. Union of India and Ors. and the judgment of the Central Administrative Tribunal, Jodhpur Bench and that upgradation benefits are generally allowed on "as is where is basis" so that less/no disturbances are caused to employees due to resultant promotions as these are ordered in mid of school or college session. Incumbents of upgraded posts shoulder higher responsibilities as their commitment and involvement and sense of responsibility increases multifolds to achieve higher productivity by intensive utilisation and better upkeep of assets, thereby affecting minimum idle/failure time. It was also contended that it is difficult to appreciate as to how the applicability of rules of reservation can be excluded in the upgraded posts etc. etc. This stand of the respondents was not accepted by the Hon'ble Apex Court while deciding C.A. No. 1481 of 1996 and even C.P. arising therein. The respondents cannot be allowed to re-agitate the same issue, time and again.
17. Even a Bench of this Tribunal, in O.A. No. 426/PB/94, titled as Pankaj Saxena v. Union of India and Ors., decided on 24th July, 2001 (in which one of us, Jasbir S. Dhaliwal, JM was a Member), considered the issue of reservation in restructuring scheme. That was a case of restructuring of certain Group 'C' and 'D' cadres introduced by order dated 27.1.1993, which included the Commercial Inspectors. Placing reliance on a decision of Calcutta Bench of C.A.T. in the case of Birender Kumar Dass v. Union of India and Ors., 1994(2) ATJ 505 and Ashok Kumar Srivastava (supra), N.G. Praghu v. Chief Justice, Kerala, 1973 Lab. IC 1399 and V.K. Sirothia (supra), it has been clearly 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 for adjudging their fitness only. This judgment was upheld by the High Court of Punjab and Haryana in CWP No. 10217-CAT-2002 (Union of India and Ors. v. Pankaj Saxena and Anr.) decided on 22.7.2002.
18. Now we come to the scheme introduced by the respondent Railways which is under consideration in this case. Undisputedly, the scheme dated 9.10.2003 makes it clear that the benefit of restructuring will be restricted to the persons who are working in a particular cadre on the cut-off date. Since the cadres 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 greater importance. 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 may be allowed to continue to be phased out progressively with the vacation of the posts by the existing incumbents. The duties, responsibilities and functions being performed by the employees of the restrictive cadres will be combined in a phased manner. Each member of the cadre will have to be equipped with necessary skills and functions through proper training and development. In the initial stage of the merger, efforts should be made to post the employees in the categories in which they have been working etc. etc. A comparison of the Scheme dated 9.10.2003 (Annexure A-1) with one dated 27.1.1993, which was in issue in the case of Pankaj Saxena (supra), leaves no manner of doubt that there is no distinguishing features in the basic character of the both. The reservation provided in the Scheme dated 9.10.2003 is in Paragraph No. 14 which provides that the existing instructions with regard to reservation of SC/ST, wherever applicable, will continue to apply, whereas it was similarly mentioned in Para 10 of 1993 restructuring scheme.
19. Various features of the Scheme leaves no manner of doubt in our mind that this is a restructuring and placing of existing incumbents against higher pay scales and is not a "promotion." Hon'ble Supreme Court in Annexure A-5 has held "the so called promotion, as a result of redistribution of posts, is not promotion attracting reservation." This scheme is at par with the Scheme dated 27.1.1993. However, it appears that by passage of time and after facing various litigation, they thought of a clever idea to insert a clause by moulding the wording that "the existing instructions with regard to reservation of SC/ST wherever applicable will continue to apply." The respondents are trying to take advantage of this clause to enforce reservation in the restructuring which is not permissible either under instructions or law. We find that the case of the applicants is fully covered by the ratio of the law laid down in the case of Pankaj Saxena (supra). The placement in the higher pay scale in the restructuring scheme is not a promotion as held by various Benches of the Tribunal and even the Hon'ble Apex Court and, thus, there is no question of applicability of reservation formula in such restructuring. Seen from this angle, the insertion of Clause 14 in the Scheme and its application is illegal and has to be quashed for the reasons to follow.
20. Undisputedly, the view adopted by different Benches of the Tribunal, with certain per-incuriam exceptions, is that there cannot be any reservation in the restructuring scheme and as upheld by the Hon'ble Apex Court has become law which is binding on this Tribunal in view of Article 141 of the Constitution of India. Once a law has been settled by the Courts, it has to be followed and the Administrative Authorities cannot undo such settled law by passing administrative orders. The Hon'ble Apex Court, in the case of Govt. of Andhra Pradesh and Ors. v. G.V.K. Girls High School, 2000(5) SLR 152, has held that the Legislature cannot overrule a judgment unless it removes the basis of the legal rights upon which the judgment is based with retrospective effect. In State of Haryana and Ors. v. Ram Kumar etc. etc. JT 2000 (Suppp. I) SC 294, the Hon'ble Apex Court has held that by administrative orders, judgment of the Court cannot be overruled. In R. Jambukeswaran and Ors. v. Union of India and Ors., 2004(2) ATJ 1, the Full Bench of Central Administrative Tribunal, Madras Bench, has held that the legislature by mere declaration without anything more, cannot directly overrule or override a judicial decision. It can render a judicial decision ineffective by enacting a valid law on the topic within its legislative field. A judicial pronouncement cannot be over-turned by issuing an administrative order. In this case, in Para No. 14 of memo, dated 9.10.2003 (Annexure A-1) relating to alleged reservation in the restructuring Scheme, which is in the nature of an administrative order, being against the law declared by the Hon'ble Apex Court on the subject, cannot be upheld by this Tribunal as it seeks to undo the law declared by the Hon'ble Apex Court. Once it has been accepted upto the Hon'ble Apex Court that there cannot be any reservation in restructuring, the action of the respondents in forcing such reservation, that too by issuing an administrative order, is declared as illegal. It is held that the policy of reservation to the extent of 15% and 71/2%, in favour of members of SCs/STs, is not applicable to the restructuring scheme. Admittedly, under the restructuring of the cadre, no additional posts have been created and it is a case of upgradation only of some posts in the lower categories, total number of posts remaining the same, (for example, see Annexure A-7) and, thus, the principle of reservation is not attracted. In other words, the effect 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. 5000-8000, will go into the higher scales of Office Superintendent (Rs. 5500-9000) etc., it would be a case of upgradation of posts only and not a case of additional vacancy or post being created to which the reservation principle would apply. The total number of posts i.e. 75 + 8 in the hierarchy remains the same. The present case is restricted to all existing employees who were redistributed into different scales of pay as a result of the said restructuring scheme which is not applicable to staff, other than the existing staff.
21. Even the Railway Administration by its own stand taken in supplementary written statement at Page 139 of the paper book, has itself admitted that existing strength of particular cadre of posts will include different categories with different pay scales and instance given by them in Para 3, sub-para (i) of supplementary written statement filed on behalf of respondents in O.A. No. 231-HR of 2004 is reproduced as under.
"Let us take that the existing strength of a particular cadre of posts in different categories with different pay scales as 100 and on the basis of the existing percentage and revised percentage is like:
Category Existing Number of Revised Number of
% age posts before % age posts
restructu- after restru-
ring cturing
A 15 15 20 20
B 20 20 25 25
C 25 25 30 30
D 40 40 25 25
Thus, there is no force in the contention of the respondents that each category has to be treated as a separate cadre. As a matter of fact, if this contention is accepted, that an increase in the number of posts in one category, as a result of restructuring or upgradation of posts, is to be treated as creation of new additional post and thus subject to reservation then it will amount to reservation applied thrice over to the same post. There cannot be reservation in the matter of restructuring and upgradation of the posts.
22. We are of the opinion that the respondents are 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 is pari materia to the rules of Railway Administration, means the strength of service or part of service sanctioned as a separate unit. By interpreting this definition, the word "cadre" will include all the categories in particular wing of service. For instance 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. Railway Board letter mentioning that each scale of pay is to be treated as a cadre, is hereby declared illegal. The framers of our Constitution had provided in Article 16 to make an exception from the equal opportunity of jobs under the State in favour of any class or classes of posts for Scheduled Castes and Scheduled Tribes where they are not adequately represented or for making provision of such reservation in favour of Backward Classes of citizens requiring such help and uplifting in the society in jobs under the State. Through various judgments, such Govt. of India instructions providing for reservation in recruitment, and in promotions as well, has been recognized. However, the basic intention is to provide not only protection to the reserved categories but enhanced protection of law for their appointments, whether direct or through promotion. We need not repeat the philosophy behind the provisions of reservation. However, it was never meant to give all the positions in a particular cadre to the reserved categories so as to put the unreserved categories to a big disadvantage. In case contention of respondents is accepted that each scale of pay, with four or more less scales of pay for one particular cadre, to be treated as a separate cadre, with the application of policy of reservation, the top two scales of pay would be earned by reserved categories alone by both on the reserved points in the roster as well as on the basis of length of service achieved due to reservation on each scale of pay. In our considered opinion, such was never and could not have been the intention while laying down the policy of reservation.
23. It has been argued by almost all the ld. Counsel for respondents that the distinction between 1993 Scheme of restructuring and the present scheme is that earlier Railways had been operating (not at all Stations) a vacancy-based roster but now in view of judgment of Hon'ble Supreme Court in R.K. Sabharwal's case post-based rosters have been made applicable w.e.f. 10.2.1995 onwards. It is, thus, argued that under the existing instructions of reservation, this shall make all the difference. We have considered this distinction after hearing the ld. Counsel at length. In our opinion, reservation applied when vacancy-based rosters were being operated under some Railways and reservation applies when new post-based rosters are being operated, in matters of direct recruitment and promotions. The question before us is : Whether reservation shall, at all, apply in the matter of scheme of restructuring, which is now available? As mentioned above, we have not noticed any points of distinction between the earlier schemes of restructuring as applied by the Railways from time to time, particularly 1993 Scheme from the present Scheme. Each Scheme of restructuring had a clause for making reservation in the process of restructuring and had clauses giving the benefits after restructuring and placement in the higher scale of with benefits under FR 22(1)(a) which are normally given at the time of promotion. As discussed above, Hon'ble Supreme Court, the Hon'ble High Court of Kerala, of Punjab, and of Delhi have already held that such schemes of restructuring shall not attract reservation in the so-called promotions. These are to be treated only tentamount to higher status while remaining on the same pedestal. The Scheme of restructuring may provide a process of moving upwards, whereas a promotion, in fact, has the effect of taking a frog-leap from the lower pedestal to the next higher pedestal leaving behind the original platform. The fact, however, cannot be ignored that there is no addition of posts in the total strength and it is only upgradation provided to a few of the total posts. In our opinion, it is immaterial whether the reservation is to vacancy-based or post-based as we are clear in our mind that in the Scheme of restructuring the policy of reservation does not apply at all.
24. In some of the Original Applications viz. O.A. No. 680/PB of 2004 titled as Sri Bhagwan and Anr. v. Union of India and Ors. and O.A. No. 773-PB of 2004 titled Sarabjit Singh and Anr. v. Union of India and Ors., declaration has been sought that even the principle of exchange of vacancies from SC to ST and vice versa is not applicable in the restructuring of the cadres. Since we have taken a view that there cannot be reservation in the matter of restructuring and upgradation of posts, in present case it is 2003 Scheme, there is no question of applying reservation through method of exchange.
25. Before parting, we may, with advantage, make reference to a recent clarification/directions given by Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, as contained in their letter dated 25th October, 2004 which is in reply to a note received from Ministry of Railways dated 7th May, 2004 on the controversy involved in the present case. We are reproducing the said letter below:
"Subject: Restructuring of Group 'C' and group 'D' cadres in the Railways--Application of reservation to Scheduled Castes/Scheduled Tribes.
The undersigned is directed to refer to the Ministry of Railways U.O. Note No. 2004-E(SCT) 1/25/1 dated 7th May, 2001 on the subject noted-above and to say that the Supreme Court in the matter of Union of India v. V.K. Sirothia has held that reservation for SCs and STs will not be applicable when making promotions to the posts upgraded on account of restructuring of cadres. The Hon'ble Court in the Contempt Petition No. 304 of 1999 (All India Non SC/ST Employees Association v. V.K. Agarwal and Ors.) further clarified that where the total number of posts remained as unaltered, though in different scales of pay, as a result of re-grouping, 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. If the case is restricted to all existing employees who were redistributed into different scales of pay as a result of upgradation, there cannot be any reservation.
2. The matter has been examined keeping in view the observations of the Supreme Court. The Ministry of Railways are advised 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."
After going through this O.M. and reading the same with our conclusions arrived at on the basis of various judgments, particularly of the High Courts of Punjab, Delhi and Kerala and Supreme Court judgments, in our opinion, Ministry of Railways would be bound by the clarification given by DOPT and would issue their own circular on similar lines.
26. Consequently, for the foregoing reasons, the original applications are allowed. The impugned Paragraph No. 14 of Memo dated 9.10.2003 (Annexure A-1) is quashed and set aside with a declaration that the policy of reservation in favour of members of SC/ST is not applicable to the restructuring scheme, abovesaid, including exchange formula. Respondents are directed to consider the applicants and other eligible persons for placing them in the appropriate pay scales under the restructuring scheme as per their eligibility and suitability without any reference to reservation policy, from due date with all the consequential benefits, within a period of three months from the date of receipt of copy of this order. In view of the peculiar circumstances, parties are left to bear their own costs.