Allahabad High Court
Durga Prasad And Others vs Union Of India Thru Secy Railway And ... on 16 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2751
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A F R
Reserved on :-5.04.2019
Delivered on :16.09.2019
Court No. - 34
(1) Case :- WRIT - A No. - 10265 of 2005
Petitioner :- Durga Prasad And Others
Respondent :- Union Of India Through Secretary Railway And Others
Counsel for Petitioner :- Rajendra Rai,S.K. Srivastava,Vijay Gautam
Counsel for Respondent :- Govind Saran,Anand Kumar,S.C.,Sharad Ranjan Nigam,Vivek Singh
With
(2) Case :- WRIT - A No. - 27418 of 2005
Petitioner :- Sanjay Kumar Singh And Others
Respondent :- Union Of India Through Secretary Ministry Of Railway
And Others
Counsel for Petitioner :- Rajendra Rai
Counsel for Respondent :- Govind Saran,S.C.,Sharad Ranjan Nigam,Vivek Singh
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Rajendra Rai, learned counsel for petitioners and Sri P.K. Pandey, Advocate holding brief of Sri Sharad Ranjan Nigam, learned counsel for respondent.
2. Writ Petition (A) No.10265 of 2005 (hereinafter referred to as "Petition-1") has been filed under Article 226 of the Constitution by nine petitioners namely, Durga Prasad, Prem Chandra Dubey, Chandrajeet Yadav, Krishna Joshi, Sri Ram Dubey, Vijay Shanker Singh, Krishna Mohan Tiwari, Ram Nagina Yadav and Arvind Rai praying for issue of writ of certiorari quashing order dated 14.02.2005 (Annexure 4 to writ petition) in so far as it relates to up-gradation of respondents 5 to 19 to the post of Sub Inspector, Railway Protection Force (hereinafter referred to as "R.P.F.") from the post of Assistant Sub Inspector, R.P.F. Petitioners have also prayed for issue of a writ of mandamus commanding respondents 3 and 4 not to apply rule of reservation for Scheduled Caste and Scheduled Tribe while restructuring the cadre of Group C of R.P.F. Employee (Combatised).
3. All the petitioners are substantively appointed Assistant Sub Inspector (hereinafter referred to as "A.S.I.") in R.P.F. and posted at different places in North Eastern Railway, Gorakhpur (hereinafter referred to as "N.E.R., G.K.P.") when writ petition was filed. Private respondents 5 to 19 are also A.S.I.s in R.P.F. in different areas under control of N.E.R., G.K.P. A seniority list of A.S.I.s under control of N.E.R., G.K.P. was published on 30.01.2004/14.02.2004 in which petitioners are placed at serial numbers 26, 28, 31, 32, 34, 35, 36, 38 and 39 respectively. Railway Board decided to restructure Group 'C' and Group 'D' cadres of R.P.F. and Railway Protection Special Force (hereinafter referred to as "R.P.S.F."), both "Combatised" and "Non-Combatised", and issued a Circular dated 15.09.2004, determining 01.11.2003 as the date of giving effect for restructuring in respect of Artisan and Ancillary categories of RPF/RPSF Non-Combatised, and 01.07.2004 for restructuring in respect of 'combatised' staff of RPF/RPSF. The detail and the manner in which said restructuring is required to be done, was provided in aforesaid Circular but in para 9 it was said that existing instructions with regard to reservation of Scheduled Caste and Schedulec Tribe wherever applicable shall continue to apply. The restructuring was made on existing strength, but by up-gradation of certain posts. Procedure for existing classification and filling up of vacancies was prescribed in para 3, which reads as under :-
3. The existing classification of the posts covered by these orders as 'selection' and non-selection', as the case may be, remains unchanged. However, for the purpose of implementation of these orders the existing selection procedure will stand modified to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written/viva-voce/physical test. In this procedure, the selection Board is supposed to consider the claims of the eligible staff one by one in order of their seniority. It will scrutinise the service records and confidential reports of staff beyond the number equal to the number of posts calculated in terms of para 3.1 below only to the extent the number of staff is found unsuitable for promotion. Further while implementing the restructuring on the basis of above procedure, instructions contained in Board's letter No.E(NG) I-92/CR/# dt. 08.10.93 should be kept in view. Naturally under this procedure the categorization as 'outstanding' will not figure in the panels. This 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. In the case of Artisan staff, the benefit of restructuring under these orders will be extended on passing the requisite Trade Test.
3.1 Normal vacancies existing on the date of effect viz, 01.11.03 (in respect of non-combatised staff) or 01.07.2004 (in respect of combatised staff), 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 :
(i) From panels approved on or before 19.03.2004 (in respect of non-combatised staff) or 01.07.2004 (in respect of combatised staff) and current on that date ;
(ii) and the balance in the manner indicated in para 3 above.
3.2 Such selections which have not been finalised by 19.03.2004 (in respect of non-combatised staff) and 01.07.04 (in respect of combatised staff) should be cancelled/abandoned.
3.3 All vacancies arising from the date following the date of effect (viz. 02.11.03 in respect of non-combatised staff and 02.07.04 in respect of compatised staff) will be filled by normal selection procedure.
3.4 All vacancies arising out of the restructuring (including chain vacancies arising out of restructuring) should be filled up by senior employees who should be given benefit of the promotion from the respective date of effect whereas for the normal vacancies existing on the date of effect 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 from the date of effect (viz. 01.11.03 in respect of non-combatised staff) is available only for vacancies arising out of restructuring (including chain vacancies arising out of restructuring) and for other vacancies the normal rules of prospective promotion from the date of filling up of vacancy will apply.
3.5 In case where percentages have been reduced in lower grade and no new post becomes available as a result of restructuring, the existing vacancies already available on the respective date of effect should be filled up by the normal selection procedure.
3.6 Employees who retire/resign in between the period from the respective date of effect (viz. 01.11.03 in respect of non-combatised staff and 01.07.2004 in respect of combatised staff) to the date of actual implementation of these orders, will be eligible for the fixation benefits and arrears under these orders from the date of effect.
3.7 It is also clarified that the panels approved till 19.03.2004 and current on above date are to be operated to cover only the already existing vacancies of non-combatised categories (except DR quota) as on 01.11.2003 as per Para 3.1 (i) above and the remaining existing vacancies (except DR quota) and those arising out of restructuring (including chain/resultant vacancies) should be filled up as per para 3.1 (ii) above. In this connection the clarification contained in Board's letter No. III/2004/CRC/3 dt. 03.06.2004 may also be kept in view."
4. As per Annexure-A to the aforesaid Circular, revised percentage of various posts in rank/category of RPF (Combatised) was as under :
Rank/Category Pay Scale Revised %age Inspector -I Inspector-II 6500-10500 +200 SP 6500-10500 2.75 Sub Inspector 5500-9000 4.50 Asst. Sub Inspector 4000-6000 7.75 Head Constable 3200-4900 34.00 Constable 3050-4590 51.00
5. The question, "whether reservation will apply and no additional posts are created due to restructuring of cadre", came up for consideration before Supreme Court in All India Non SC/ST Employees Association Railway Versus V. K. Agarwal and others, (2001) 10 SCC 165, Cont. Petition (Civil) 304 of 1999 in Civil Appeal No.1481 of 1996, and Supreme Court in its order dated 31.01.2001, clarified the position as under :
"ORDER It appears from all the decisions so far that if as a result of re-classification or re-adjustment 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 SC & ST is not Applicable in the upgradation of existing posts and civil 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 in 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 that in respect of those additional posts the reservation will apply, but with regard to these additional posts the dispute does not arise in the present case. The present case is restricted to all existing employees who were re-distributed in-to 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.
List after 6 weeks."
(emphasis added)
6. Following aforesaid order, an Office Memorandum was issued by Ministry of Personnel, advising Ministry of Railway to implement directions of Supreme Court contained in Union of India versus V. K. Sirothia, 2008 (9) SCC 283 and further clarification made in Contempt Petition No.304 of 1999, All India Non SC/ST Employees Association (Railways) Vs. V. K. Agarwal and others (supra). Government of India's Circular dated 25.10.2004 reads as under :
" The undersigned is directed to refer to the Ministry of Railways U.O. Note No. 2004-E(SCT)I/25/1 dated 7th May, 2004 on the subject noted above and to say that the Supreme Court in the matter of Union of India versus 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 versus V.K. Agarwal And Others] further clarified that where the total number of posts remained 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 re-distributed 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."
(emphasis added)
7. Ignoring same, however, official respondents have applied reservation on upgraded cadre and promoted respondents 5 to 19 by impugned order dated 14.02.2005, mentioning their names from serial number 24 to 38 though they are all much junior to the petitioners finding place in seniority list from serial number 40 to 71 and, therefore, impugned list is illegal.
8. Respondents 1 to 4 have filed counter affidavit. It is said that before restructuring 123 posts of Sub Inspectors were sanctioned, out of which 3 posts were ex-cadre. 50 % of vacancies are to be filled in by direct recruitment and 50 % by departmental selection. Thus, 60 posts comes to be filled through different source of recruitment. As a result of restructuring 40 vacancies came together with 60 posts available for departmental selection and total comes to 100 posts. Out of 100 posts reservation for S.C. is 15 % and for S.T. is 7.5 %, but respondents could find only 7 S.C. and 3 S.T. candidates suitable and available against upgraded vacancies of Sub Inspectors and they have been promoted. Rule of reservation has been applied in the light of Circular dated 15.09.2004, clearly providing for reservation. With regard to directions of Supreme Court in V. K. Agarwal (supra), it is clear that aforesaid direction is not consistent with law laid down by Supreme Court in R. K. Sabharwal Vs. State of Punjab, 1995 (2) SCC 745 followed in Girdhari Lal Kohli vs. Union of India, Writ Petition No.7386-93 of 1984 decided on 26.07.1995.
9. Petitioners have filed rejoinder affidavit and I may refer to the same at a later stage whenever is required.
10. Counter affidavit has been filed on behalf of respondents 5, 6, 9, 11, 13, 14, 15, 16 and 18. It is said that benefit of reservation has been given based on roster as per Supreme Court Judgment in R. K. Sabharwal (supra). Vacancy position of Cadre of Railway Protection Force, N.E. Railway, Gorakhpur as on 01.07.2004 in form of chart is given as under :
Rank Existing % of sanctioned strength Revised % of sanctioned strength Sanctioned Strength Prior to 1.7.2004 Total posts After revised % of cadre under restructuring on 1.7.04 Vacancies created under restructuring w.e.f 1.7.04 Existing Vacancy Prior to Restructuring Resultant vacancy Inspector-I 6,500-10,500 2.75 67 84 +17 12 _ Sub Inspector Gr.5500-9000 4.50 123 137 +14 2 29 Asstt. Sub-Inspector 4,000-6,000/-
7.75 180 235 +55 22 16 Hd. Constable 3,200-4,900 34.00 1059 739
-26 320 370 Constable 3,050-4,590/-
51.00 1609 1343
-60 264 574
11. The private respondents have also relied on Full Bench judgment passed by Central Administrative Tribunal, Banglore Bench, Banglore in M. L. Rajaram Naik and others vs. The Additional Director, CGHS, Banglore and others holding that appointment to the upgraded post amounts to promotion attracting the principles of reservation for special categories like SCs and STs.
12. Writ Petition (A) No.27418 of 2005 (hereinafter referred to as "Petition-2") has been filed under Article 226 of the Constitution by three petitioners namely, Sanjay Kumar Singh, Babban Kumar Singh and Rakesh Kumar Singh assailing upgradation of respondents 5, 6 and 7 on the post of Inspector, R.P.F., North Eastern Railway, Gorakhpur on the ground that reservation could not have been applied. Respondent 5's upgradation has been challenged on additional ground that earlier he was posted at East Central Railway, Hajipur and thereafter transferred, therefore, he could not have been considered for restructuring. With respect to respondents 6 and 7, it is also contended that reservation quota is already full and, therefore, reservation cannot be applied.
13. Here also, the stand taken by official respondent in the counter affidavit is similar to that as has been taken in Petition I, therefore, I am not repeating the same.
14. The short issue up for consideration in these matters is "whether upgradation of posts on account of restructuring of cadre, can be treated as promotion so as to attract provisions of reservation relating to Scheduled Caste and Scheduled Tribe and Other Backward Class etc".
15. From facts discussed above it is evident that as a result of restructuring, lower posts of Constable and Head Constable have reduced while there is increase in superior posts like A.S.I., S.I. and Inspector-I. The existing strength of A.S.I. prior to 01.07.2004 was 180 and as a result of restructuring with effect from 01.07.2004, it has become 235.
16. I find that initially the issue, whether upgradation of posts will amount to promotion or not, was raised before Central Administrative Tribunals at different places wherein answer was given in negative. Union of India brought the matter in appeal and these appeals were decided vide judgment dated 19.11.1998 by Supreme Court in Union of India vs V. K. Sirothia (supra), and the short judgement reads as under :
"CA No.3622 of 19951. 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 order of the Tribunal.
3. The civil appeal is dismissed. No costs.CA No.9149 of 1995
4. In view of the order passed in Civil Appeal no.3622 of 1995, etc., this appeal has to be allowed as in the order under appeal the Tribunal has taken a contrary view. The appeal is, therefore, allowed. No costs."
(emphasis added)
17. After above judgment it appears that grievance of non compliance was made in Contempt Petition No.304 of 1999, All India Non-SC/ST Employees' Association (Railway) vs. V. K. Agarwal and others (supra), wherein Supreme Court passed order on 31.01.2001 clarifying the position as under :-
"1. It appears from all the decisions so far that if as a result of reclassification or readjustment, there are 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 19-11-1998 had held that reservation for SC and ST is not applicable in the upgradation of existing posts and Civil Appeal No.1481 of 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 regrouping and the effect of which may be that some of the employees who were in the scale of pay of Rs.550-700 will go into the higher scales, it would be a case of upgradation of posts and not a case of additional vacancy or post being created to which the reservation principle would apply. It is only if in 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.
2. The Union of India shall rework the seniority in the light of the clarification made today and report back within 6 weeks from today.
3. List after 6 weeks."
(emphasis added)
18. It is on the basis of these two orders of Supreme Court, petitioners have claimed that provisions of reservation could not have been followed and, therefore, promotion of respondents 5 to 19 in Petition-1 and respondents 5 to 7 in Petition-2 on upgraded posts treating the vacancies reserved, are illegal.
19. However, I find that subsequently the same issue has been examined by Supreme Court in detail in Union of India Vs Pushpa Rani and others, 2008 (9) SCC 244. Therein cadre restructuring given effect vide Railway Board's letter No.PC-III/2003/CRC/6 dated 09.10.2003 was up for consideration. Central Administrative Tribunal (hereinafter referred to as "Tribunal") at its Bench in Chandigarh and Allahabad decided Original Applications filed before it under Section 19 of Administrative Tribunal Act, 1985 in favour of applicant employees following judgment in All India Non-SC/ST Employees' Association (Railway) Vs. V. K. Agarwal (supra). Writ petitions filed before Punjab and Haryana High Court and this Court, respectively, were dismissed. Thereafter matter was taken by Union of India before Supreme Court. It noted that till 1997 policy of reservation was applied on vacancy-wise basis. Later on following judgment of Supreme Court in R. K. Sabharwal (supra) wherein it was held that rosters must be operated with reference to the posts and not the vacancies, the policy was changed. Earlier provisions were revised by Railway Board's Circular No.113/97 vide Letter No.95-E (SCT)1/49/5 (1) dated 21.08.1997.
20. Provisions of restructuring which was up for consideration in Union of India Vs. V. K. Sirothia (supra) were provided in Railway Board's Circular No.181/85 issued vide Letter No.PCIII/84/UPG/19 dated 25.06.1985. Later on restructuring policy was circulated vide Letter No.PC-III/2003/CRC/6 dated 09.10.2003. Noticing provisions of both Circulars dated 25.06.1985 and 09.10.2003, Supreme Court found that there was substantial differences/dissimilarities in the provisions of two Circulars and those differences were highlighted in para 29 of the judgment which reads as under :
"29. A cursory reading of the relevant extracts of Letters dated 25-6-1985 and 9-10-2003 reproduced hereinabove may give an impression that the policies contained therein are similar but a closer scrutiny thereof reveals the following stark dissimilarities :
(i) In terms of Para 5.1 of Letter dated 25-6-1985, the existing classification of the posts covered by the restructuring orders i.e. "selection" and "non-selection" was to be retained. However, for the purpose of promoting an individual railway employee there was deemed modification of the selection procedure and the promotion was to be made without holding any written test and/or viva-voce. As against this, action in terms of para 4 of letter dated 9.10.2003 is required to be taken for making appointment on the basis of selection/non-selection/suitability/Trade Test and in para 5, the requirement of D&A/Vigilance clearance has been made mandatory for effecting promotion with reference to the cut off date.
(ii) While the policy contained in letter dated 25.6.1985 did not specify any minimum period of services as a condition for promotion, para 6 of letter dated 9.10.2003 lays down the requirement of minimum period of services as a condition for promotion and also declares that residency period prescribed for promotion to various categories should not be relaxed.
(iii) Para 9 of letter dated 25.6.1985 postulated retention of basic functions, duties and responsibilities and addition of other duties and responsibilities, whereas para 7 of letter dated 9.10.2003 mandates that posts being placed in the higher scales of pay should include the duties and responsibilities of greater importance because restructuring is contemplated on functional, operational and administrative considerations.
(iv) While the policy contained in letter dated 9.10.2003 postulates progressive phasing out of excess number of posts in a particular cadre, no such provision was made in the policy circulated vide letter dated 25.6.1985.
(v) The instructions contained in letter dated 25.6.1985 did not provide for direct recruitment against upgraded posts, but para 15 of letter dated 9.10.2003 unequivocally lays down that direct recruitment percentages will not be applicable to the additional posts becoming available as a result of restructuring and the same will apply to normal vacancies after the cut-off date.
(vi) Para 18 of letter dated 9.10.2003 shows that the scheme of restructuring is a self-financing and expenditure neutral proposition. There was no such provision in the earlier policy.
(vii) Annexure 1 appended to letter dated 25.6.1985 shows that the percentage of the upgraded posts becoming available as a result of restructuring varied from 20 to 60 in different grades, except in the cadre of Tool Checkers where the percentage varied from 10 to 40. As against this, the percentage of additional posts (as indicated in Annexures A to K appended to letter dated 1.10.2003) becoming available as a result of restructuring of different cadres in Group C and D posts varied from 1 to 10, except in one or two cadres where it was more than 20."
(emphasis added)
21. Thereafter, Court in para 30 of judgment said as under :-
"30. From what we have noted above, it is clear that the policies contained in letters dated 25.6.1985 and 9.10.2003 are substantially dis-similar. The exercise of restructuring envisaged in the first policy was in the nature of upgradation of substantial number of posts in different cadres and the upgraded posts were to be filled simply by scrutinizing the service records of the employees without holding any written and/or viva voce test and there was no merit based selection. In contrast, the restructuring exercise envisaged in letter dated 9.10.2003 resulted in creation of additional posts in some cadres with duties and responsibilities of greater importance and which could be filled by promotion from amongst the persons fulfilling the conditions of eligibility and satisfying the criteria of suitability and/or merit. Para 13 of letter dated 9.10.2003 is, in itself, demonstrative of the difference between simple upgradation of posts in the cadre of Supervisors which are required to be filled without subjecting the incumbents of the posts to normal selection procedure whereas the additional posts becoming available in other cadres are required to be filled by promotion."
(emphasis added)
22. Court further held that in legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of incumbent of that post in higher grade. However, in some service rules provisions are/may be made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. If such provisions are made, they are to be followed as held in D.P. Upadhyay vs. G.M., N.R. Baroda House and Others, 2002 (10) SCC 258.
23. In State of Rajasthan Vs Fateh Chand Soni, (1996) 1 SCC 562, Court held :-
"word "promotion" means "advancement or preferment in honour, dignity, rank or grade". "Promotion" thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law the expression "promotion" has been understood in the wider sense and it can be either to a higher pay scale or to higher post."
(emphasis added)
24. Having said so Court held that once it is recognized that additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion amongst employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different that the one prescribed for normal promotion.
25. Thereafter Court referred to Railway Board's Circular dated 09.10.2003 and in paras 35 and 36 said as under :-
"35. A careful reading of the policy contained in letter dated 9.10.2003 shows that with a view to strengthen and rationalize the staffing pattern, the Ministry of Railways had undertaken review of certain cadres. The basis of the review was functional, operational and administrative requirement of the Railways. This exercise was intended to improve the efficiency of administration by providing incentives to the existing employees in the form of better promotional avenues and at the same time requiring the promotees to discharge more onerous duties. The policy envisaged that additional posts becoming available in the higher grades as a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility including the minimum period of service and who are adjudged suitable by the process of selection. This cannot be equated with upgradation of posts which are required to be filled by placing the existing incumbents in the higher grade without subjecting them to the rigor of selection.
36. In view of the above discussion, we hold that the Railway Board did not commit any illegality by directing that the existing instructions with regard to the policy of reservation of posts for Scheduled Castes and Scheduled Tribes will apply at the stage of effecting promotion against the additional posts and the Tribunal committed serious illegality by striking down para 14 of letter dated 9.10.2003."
(emphasis added)
26. Thereafter Supreme Court in Union of India vs. Pushpa Rani and others (supra) also examined judgments of various Tribunals up for consideration in appeal including matter decided in Union of India Vs V. K. Sirothia (supra) and its follow up and then in para 59 said as under :-
"59. An analysis of orders passed by the Tribunals and this Court shows that all cases except that of K. Manickaraj's case involved upgradation of large number of posts which could be filled by placing the existing incumbents in the higher grade without subjecting them to the process of selection. Different Benches of the Tribunal referred to the policy decision taken by the Railway Board that reservation policy for Scheduled Castes and Scheduled Tribes is not applicable where cadre restructuring results in mass upgradation of posts and held that the administration was required to make appointment/placement against the upgraded posts without reserving posts for Scheduled Castes and Scheduled Tribes. This Court repeatedly emphasized that the restructuring exercise did not result in creation of new posts/additional posts which could be filled by promotion by following the procedure of selection. Therefore, these decisions are of no help to the cause of the respondents. At the cost of repetition, we consider it necessary to emphasize that restructuring exercise envisaged in letter dated 9.10.2003 resulted in creation of additional posts in most of the cadres covered by the policy and the government had taken a conscious decision to fill up such posts by promotion from amongst eligible and suitable employees and the promotees were burdened with duties and responsibilities of greater importance. Therefore, the Tribunal and High Court were not justified in treating it as a case of upgradation of posts simplicitor. Consequently, the decision of the Tribunal to quash para 14 of letter dated 9.10.2003 and direction given for making appointments de hors the policy of reservation are legally unsustainable."
(emphasis added)
27. Ultimately, Supreme Court set aside orders of Tribunals and High Courts and upheld reservation as a result of restructuring of posts and promotion made thereunder.
28. I have examined the relevant provisions contained in Railway Board's Circular providing restructuring in the case in hand i.e. dated 15.09.2004 with Railway Board's Circular dated 09.10.2003 and find that the provisions are more or less similar to Railway Board's Circular dated 09.10.2003, which was considered by Supreme Court in Union of India Vs. Pushpa Rani (supra). This is evident from following clauses of Circular dated 15.09.2004 :
"1.1. This restructuring of cadres will be with reference to the sanctioned cadre strength as on the respective date of effect as indicated above. The staff who will be placed in higher grades as a result of implementation of these orders will also draw pay in higher grades from the respective date of effect.
2. Staff selected and posted against the additional higher grade posts as a result of restructuring will have their pay fixed under Rule 1313 (FR-22)(I)(a)(1) R-II from the date of effect with the usual option for pay fixation as per extant rules. The benefit of fixation of pay from the date of of effect should also be given on promotion against chain/resultant vacancies, if the same would arise purely due to the restructuring.
3. The existing classification of the posts covered by these orders as 'selection' and non-selection', as the case may be, remains unchanged. However, for the purpose of implementation of these orders the existing selection procedure will stand modified to the extent that the selection will be based only on scrutiny of service records and confidential reports without holding any written/viva-voce/physical test. In this procedure, the selection Board is supposed to consider the claims of the eligible staff one by one in order of their seniority. It will scrutinise the service records and confidential reports staff beyond the number equal to the number of posts calculated in terms of para 3.1 below only to the extent the number of staff is found unsuitable for promotion. Further while implementing the restructuring on the basis of the above procedure, instructions contained in Board's letter No.E(NG)I-92/CR/3 dated 08.10.93 should be kept in view. Naturally under this procedure the categorization as 'outstanding' will not figure in the panels. This 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 expending the implementation of these orders. In the case of Artisan staff, the benefit of restructuring under these orders will be extended on passing the requisite 'Trade Test'.
3.4. All vacancies arising out of the restructuring (including chain vacancies arising out of restructuring) should be filled up by senior employees who should be given benefit of the promotion from the respective date of effect whereas for the normal vacancies existing on the date of effect junior employees should be posted by modified selection procedure but they will get promotion and higher pay from the date of taking over of the posts as per normal rules. Thus the special benefit of the promotion from the date of effect (viz.01.11.03 in respect of non-combatised staff and 01.07.2004 in respect of combatised staff) is available only for vacancies arising out of restructuring (including chain vacancies arising out of restructuring) and for other vacancies the normal rules of prospective promotion from the date of filling up of vacancy will apply.
4. Extant instructions for D & A/Vigilance clearance will be applicable for effecting promotions under these orders with reference to the respective crucial dates (viz.01.11.2003 in respect of non-combatised staff and 01.07.2004 in respect of combatised staff).
5. While implementing the restructuring orders, instructions regarding minimum period of service for promotion issued from time to time should be followed. In other words, residency period prescribed for promotions to various categories should not be relaxed.
6. Since the cadres as detailed in the annexures to this letter are being restructured on functional, operational and administrative considerations, the posts being placed in higher scales of pay as a result of restructuring should include the duties and responsibilities of greater importance."
(emphasis added)
29. The above paragraphs of Circular dated 15.09.2004 I have quoted are broadly similar to the Circular dated 09.10.2003 and it shows that upgradation in the case in hand resulting into increase in posts in superior cadres including that of A.S.I. have been treated to be a promotion, for which eligibility conditions and burdening of different responsibilities of greater importance in the higher posts are all to be shared by Officials, who are promoted against prescribed posts, hence, above judgment will apply with full force in the case in hand.
30. In that view of the matter, I am of the opinion that issued raised in present writ petitions is covered by decision in Union of India Vs. Pushpa Rani (supra) and, therefore, application of provisions of reservation for promotion of respondents 5 to 19 in Petition-1 and respondents 5 to 7 in Petition-2 pursuant to Circular dated 15.09.2004 providing restructuring in Cadre of rank/catogory of RPF (Combatised) which is up for consideration in present writ petitions, is neither illegal nor bad.
31. In the result, both writ petitions fail being devoid of merits and are dismissed accordingly.
32. Interim order, if any, stands vacated.
Order Date :- 16.09.2019 Manish Himwan