Central Administrative Tribunal - Delhi
Mirza Muzaffar Beg vs Union Of India Through The General ... on 4 March, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2046/2005 This the 3rd day of March 2011. Honble Dr. K.B.S. Rajan, Member (J) Honble Dr. Veena Chhotray, Member (A) Mirza Muzaffar Beg, aged about 48 years Son of Shri M I Beg, Resident of E-5, Sector 23 Raj Nagar, Ghaziabad ..Applicant (By Advocate: Shri H K Chakravorty with Shri Javed Ahmed) Versus 1. Union of India through the General Manager Northern Railway, Baroda House, New Delhi 2. Divisional Railway Manager, Northern Railway, New Delhi Division, New Delhi 3. Senior Divisional Electrical Engineer, Northern Railway, Electrical Multiple Unit Car Shed, Ghaziabad 4. Shri Kishan Gopal, son of Shri Such Lal 5. Shri Lallan Ram son of Shri Gurbhari 6. Shri Panna Lal son of Shri Birju Ram All Master Craftsman at Electrical Multiple Unit Car Shed, Ghaziabad through Senior Divisional Electrical Engineer, Northern Railway, Ghaziabad ..Respondents (By Advocates: Shri Rajender Khatter for official respondents Shri Anil Singal for private respondents) O R D E R
Dr. K.B.S. Rajan:
The facts of the case in OA No. 2046/2005 transpire that the applicant who was appointed as an Apprentice was promoted in 1983 as a Fitter Gr. II on 1.3.1993 and Fitter Gr. I on 20.03.1995. Respondents No. 4-6 who were appointed as Khallasi in May and June, 1982 have been promoted as Fitter Gr. I earlier to the applicant by applying reservation. Seniority list of Group C employees was issued on 16.10.2002 inviting objections. Some of the staff approached the Tribunal for correctly determining their seniority, vide OA 2618/1999 and on disposal of the same, Review application No. 419/2000 was filed on consideration of which, the Tribunal, vide its order in March, 2001 directed the respondents to prepare seniority as per the option. Option was in respect of those who had switched over to join the Car Shed from other units but not for those who were right from the beginning, like the applicants, serving in the Car Shed. In the revised seniority issued on08-10-2003, the applicant was shown junior to the private respondents. A representation preferred has not been responded to. An upgradation order issued on 11.8.2004 valid from 1.11.2003 placed the private respondents on reservation to the promoted post of Master Craftsman and giving him the benefit of restructuring. A representation preferred against it when not responded to in any manner, present OA has been filed seeking, inter alia, the following relief:-
Issue a writ, order or direction in the nature of certiorari quashing the impugned upgradation order dated 11.8.2004 to the extent whereby the private Respondent Nos. 4 to 6 have been upgraded on the post of Master Craftsman with the further order or direction in the nature of mandamus commanding the respondent Nos. 1 to 3 to consider the upgradation of the applicant on the post of Master Craftsman after correctly determining his seniority and placing his name at Sl.No.26-A in the impugned seniority list dated 8.10.03/18.10.03 within a stipulated time whatsoever is fixed by this Honble Tribunal.
2. Respondents have contested the O.A, stating as under:-
(a) The rule of reservation on restructuring, came up for consideration by the Full Bench of the Tribunal followed by a Division Bench of the Chandigarh High Court by which para 14 of the notification dated 09-10-2003 was held to be illegal while, later on, the Apex Court granted stay order to the said judgment of the High Court, and the matter is sub-judice before the apex Court. Following reservation upto the decision of the Apex Court which is pending is just and legal. As such, it would be appropriate that this OA be kept pending till the disposal of the SLP by the Apex Court.
b) The private respondents were promoted to the grade of Technician Gr. III in 1989/1990 due to shortfall of SC/ST Technician Gr. III and later on to Tech. Gr. II in 1992 and the applicant was not promoted due to punishment awarded under D & AR.
c) On the basis of notification dated 25-10-2004 of the DOPT whereby the Railways were advised not to apply reservation while filling up of the posts upgraded on account of restructuring, no modification has so far been made.
3. After hearing the parties, the tribunal has passed the following order:-
15. In the result, for the forgoing reasons, OA is partly allowed to the extent that the promotion on upgradation of private respondents in order dated 11.8.2004 on adoption of reservation cannot be sustained in law and is accordingly set aside. Respondents are directed now to consider in a review DPC under the upgradation the claim of the applicant in accordance with rules and instructions.
16. In the event of promotion, applicant on being declared fit, consequences would follow. However, before parting with, we must emphasize that nothing precludes the official respondents to consider the private respondents for promotion to MCM except on application of reservation. In such an event, law shall take its own course. No costs.
4. When the above matter was taken with the Honble High Court of Delhi, the Writ Petition No. 3217 of 2007 was disposed of as under:-
The respondent no.1 herein had approached the Tribunal by means of OA No. 4056/05 challenging the upgradation of respondent no.2 to 4 to the post of Master Craftsman and also questioning the seniority given to them. The tribunal posed the question as to whether respondent no.2 to 4 belonged to Schedule Cast cadre. This question was posed as the Tribunal felt that the issue requiring determination was as to whether reservation could be applied on upgradation of the post and answered it in the negative, following a full bench judgment of Chandigarh Bench of the Tribunal, which was upheld by Punjab and Haryana High Court. In para 11 of the judgment, the Tribunal also noted that matter was pending in the Honble Supreme Court in the case titled as Union of India Vs Pushpa Rani.
Learned counsel for the petitioner has submitted that Honble Supreme Court has now decided the appeal entitled Union of India Vs. Pushpa Rani which is reported as JT 2008 (8) SC 474. n that case the Honble Supreme court held that since the restructuring of posts resulted in creation of additional post, and it was not a case of upgradation of post, the policy of reservation can be applied to such additional posts.
The Learned Counsel for the respondent no.1, however, submits that this judgment would not have any application to the present case in as much as on restructuring, no additional post was sanctioned. On the other hand, learned counsel for the respondents no.2 to 4 submits that the question of restructuring and reservation is totally extraneous issue which has been raised in this case, because of the reasons that respondents no.2 to 4 were in any case senior to respondent no.1 in the feeder cadre and therefore rightly upgraded to the post of Master Craftsman. Since these issues are not dealt by the Learned Tribunal and the view taken by the Tribunal stands over ruled, in view of the judgment of Pushpa Rani (supra), we set aside the impugned judgment and remit the case back to the Tribunal for fresh consideration on merits, having regard to the aforesaid judgment and in the light of submission which are presented by the parties before us in support of their case.
The parties shall appear before the Tribunal on 6th July, 2009. Respondents no.2 to 4 are permitted to file additional reply in the O.A.
5. In pursuance of the above order, additional replies were filed by respondent No.5 and 6 to which the rejoinder was also filed by the applicants.
6. Counsel for the applicants referred to Full Bench Judgment in OA No. 2211 of 2008 decided on 2nd December, 2010. According to the counsel, the said judgments would apply to the facts of this case.
7. Counsel for the respondents submitted that as per Pushpa Rani, reservation is permissible and as such, no illegality could be discerned in the action of the respondents in affording reservation to the upgraded posts.
8. Arguments were heard and documents perused. The question for consideration is twofold whether the seniority afforded to the applicant is wrong as contended by him;
Whether the reservation applied in the upgraded post consequent upon restructuring is illegal, as contended by the applicant.
9. Vide para 4(iv) of the O.A. challenge to the seniority is on the ground that the same has not been prepared in terms of IREM 302/303 and the decision of the Apex Court in A.K. Junajas case.
10. Rule 302/203 of the IREM reads as under:-
302. Seniority in the initial recruitment grades - Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to that grade. The grant of higher pay than the initial pay should not, as a rule, confer on railway servant seniority above those who are already appointed against regular posts. In categories of post partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due promotion in the case of promotees and the date of joining the working post after the due process in the case of direct recruits, subject to maintenance of inter-se seniority of promotees and direct recruits among themselves. When the dates of entry in to a grade of promoted railway servants and direct recruits are the same they should be put in alternate positions, the promotees being senior to the direct recruits, maintaining inter-se seniority of each group.
Note -
i. ** In the case of training period of a direct recruit is curtailed in the exigencies of service, the dates of joining the working post in case of such a direct recruit shall be date he would have normally come to a working post after completion of the prescribed period of training.
(E(NG)I-78-SR-6-42 dated 07.04.1982 ACS. 132) ** Renumbered vide Advance Correction Slip No. 2 issued under Railway Board's Letter No. E(NG)I/89/SR6/35 dated 23.8.91.
ii. The provision contained in Note (i) above will also apply to the Inter Apprentices and departmentally selected candidates against the quota prescribed in certain categories to be filled by Limited Departmental Competitive Examination ( such as 10% in the case of Traffic and Commercial Apprentices)."
[Authority :- Railway Board's letter No. E(NG)I/89/SR6/35 dated 23.8.91] ** Note (ii) Inserted vide Advance Correction Slip No. 2 issued under Railway Board's Letter No. E(NG)I/89/SR6/35 dated 23.8.91.
303. The seniority of the candidates recruited through the Railway Recruitment Board or by any other recruitment authority should be determined as under a. **{Candidates who are sent for initial training to Training Schools will rank in seniority in the relevant grade in the order of merit obtained in the examination held at the end of the training period before being posted against working post. Those who join the subsequent courses and those who pass the examination in subsequent chances will rank junior to those who had passed the examination. In case, however, persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter-se seniority will be regulated batch wise provided persons higher up in the panel of the RRB not sent for training in the appropriate batch (as per seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regulating the inter-se seniority provided such persons pass the examination at the end of the training in the first attempt.} [Authority: Railway Board's letter No. E(NG)I/89/SR6/32(PNM) dated 19.03.1993 (RBE 47/1993)] ** Substituted vide Advance Correction Slip No. 9 circulated vide Railway Board's letter No. E(NG)I/89/SR6/32(PNM) dated 19.03.1993 (RBE 47/1993).
b. In the case of candidate who do not have to undergo any training in training school, the seniority should be determined on the basis of the merit order assigned by Railway Recruitment Board or other recruiting authority.
11. A perusal of the above would go to show that the seniority which the above rules talks of is that of initial recruitment. In the case of the applicant, the initial recruitment is of Khalassi and even if the next post is taken, it is Technician Grade III, whereas, the impugned seniority is one of Technician Gr. I, two more posts higher than that of Technician Gr. III. As such, the said rules do not apply.
12. Of course, a separate Rule 309 read with 306 of IREM does exist in respect of seniority on promotion to the higher grade. The said Rules read as under:-
306. Candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case by paragraph 305 above.
***
309. SENIORITY ON PROMOTION. - Paragraph 306 above applies equally to seniority in promotion vacancies in one and the same category due allowance being made for delay, if any, in joining the new posts in the exigencies of service.
13. If the above rule is applied to the case of the applicant, the applicants date of promotion to the post of Technician Gr. I is 20-03-1995, while the other two i.e. private respondents promotion is anterior to that of the applicant. The challenge of seniority in Grade I is on the ground that the applicants initial date of joining in the post of Khallasi or for that matter as Technician Gr. III is anterior to those of the private respondents and it is on account of jack up at every stage of promotion that the private respondents had stolen a march over the applicant, which is illegal in view of the decision of the Apex Court in Ajit Singh (II) vs State of Punjab (1999) 7 SCC 209. The promotion of private respondents to the level of grade II is guided by the then prevailing rule position and we do not find any illegality in the seniority afforded to the private respondents ahead of the applicant. Apart from the same, the applicant had not challenged the seniority of Grade II at the relevant point of time.
14. Coming to the seniority list of Grade I Technician, the reason why the private respondents were promoted ahead of the applicant is not far from comprehension. They are senior in Grade II and further, the applicant was undergoing currency of penalty of withholding of increments. It is to be noted here that promotion granted at the level of Technician Gr. II was not on the basis of any restructuring but in the normal course. This had occurred in 1992, when the applicant was not promoted to the said grade, which he got only in 1995 (consequent upon the applicant undergoing currency of penalty at the material point of time). Such a deferment of promotion till the expiry of the currency of penalty has been held valid in the case of Union of India v. K. Krishnan, (1992) Supp 3 SCC 50 wherein the Apex court has held, the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one (This has also been referred to in a later judgment vide Union of India v. B. Radhakrishna (1997) 11 SCC 698.) Thus, challenge to the seniority in the post of Technician Gr. I is not legally sustainable.
15. As regards reservation due to upgradation, counsel for the applicant relies upon the full bench judgment, while that of respondents rely upon the decision of the Apex Court in the case of Pushpa Rani.
16. As regards the full Bench Judgment, the same deals with the validity of order dated 08-03-2002 (dealing with principles for determining the seniority of staff belonging to SC/ST promoted earlier vis-`-vis General/OBC staff promoted latter) There was another circular dated 13-01-2005 and a further circular dated 29-02-2008, which modified the above said circular dated 08-03-2002. Decision in the case of M. Nagraj & others v. Union of India & others, (2006) 8 SCC 212 had been the basis for issue of the order dated 29-02-2008. By the Full Bench, the decision of the Tribunal is as under:-
Reference is then to letter dated 31.8.1982 relevant portion whereof has already been extracted hereinbefore. In view of the case law and the instructions, it was held that the reservation roster would only ensure the prescribed percentage of reservation but would not affect seniority, and that whereas reserved candidates would be entitled to accelerated promotions, they would not be entitled to consequential seniority, and further that the seniority between the general and reserved candidates in promoted category would continue to be the same as was at the time of the initial appointment provided both belong to the same grade. It is the plea of the applicants that there may be provision for reservation in promotion but there was no provision for conferment of consequential seniority. In Indra Sawhneys case, specifically it was held that Article 16(4) cannot be the source of making reservation in promotions. The judgment in Virpal Singh Chauhans case came to be delivered on 10.10.1995 and the same was made prospective from 10.2.1995, i.e., the date of judgment in R. K. Sabharwals case. The issue of prospectivity of Virpal Singh Chauhan and R. K. Sabharwal was considered by a Constitutional Bench in Ajit Singh Januja (supra) wherein it was held that promotions already made would be deemed to be ad hoc and there cannot be conferment of seniority till there was vacancy in regular course. The issue as raised by the applicants, it is the case of the applicants, that for the period prior to 10.2.1995 the issue raised by them would be covered by the judgment of the Honble Supreme Court in the case of Ajit Singh Januja (supra) and for the period between 10.2.1995 and 17.6.1995 the principle of regaining seniority has been accepted by the railways itself and, therefore, for the period prior to 17.6.1995 no seniority can be conferred. For the period after 10.2.1995, it is the case of the applicants, the railways has itself accepted vide circular dated 25.9.1997 that the seniority lists which are prepared as per circulars dated 19.1.1972 and 31.8.1982 would be valid for promotions after 10.2.1995. For the period 17.6.1995 till 8.3.2002, it is the case of the applicants that the post-77th Amendment as well as the 85th Amendment, the power subsisted for conferment of accelerated seniority but the said power has been exercised by the railways for the first time on 8.3.2002. The said circular is sought to be made retrospective from 17.6.1995, which would be unsustainable. In the Indian Railways, it is the case of the applicants, there was no provision for accelerated seniority and, therefore, the retrospective power would not be available to the Railways.
37. We have applied our mind to the pleadings and the contentions raised by the learned counsel representing the applicants on the issues as mentioned above, but are of the view that once, in brevity, it is the case of the applicants that when no compliance of pre-conditions as spelled out in M. Nagarajs case has been done, reservation in promotion with accelerated seniority shall have to be worked in the way and manner as per the law settled earlier on the issue. If that be so, we need not have to labour on the issues raised by the applicants, as surely, if the position is already settled, the only relevant discussion and adjudication in this case can be and should be confined to non-observance of the pre-conditions for making accelerated promotions as valid. We have already held above that the railways have not worked out or even applied their mind to the pre-conditions as mentioned above before giving effect to the provisions of Article 16(4A), and for that reason, circular dated 29.2.2008 vide which the seniority of SC/ST railway servants promoted by virtue of rule of reservation/roster has to be regulated in terms of instructions contained in Boards letter dated 8.3.2002 and 13.1.2005, has to be quashed. There is a specific prayer to quash instructions dated 8.3.2002 and 13.1.2005 as well, but there would be no need to do so as the same have been discussed in the case of railways itself in the matter of Virpal Singh Chauhan (supra), and commented upon. While setting aside instructions dated 29.2.2008, our directions would be to not to give accelerated seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which alone Article 16(4A) of the Constitution is to operate, are complied with. No directions in this case can be given as regards seniority of the applicants vis-`-vis those who were appointed with them and have stolen a march over them because of reservation and have obtained accelerated seniority. No such specific prayer has been made either. However, it would be open for the parties to this lis or any one else to seek determination of their proper seniority for which legal proceedings shall have to be resorted to. It would be difficult to order across the board that all those who have obtained the benefit of reservation and have also been accorded accelerated seniority be put below general category candidates who may have been senior to the reserved category employees and became below in seniority on the promoted posts because of conferment of accelerated seniority to the reserved category employees. Surely, for seeking seniority over and above Scheduled Caste and Scheduled Tribe employees, number of things shall have to be gone into, as for instance, as to when was the promotion made and seniority fixed, and whether the cause of general category employees would be within limitation. There can be number of issues that may arise. We have mentioned only one by way of illustration.
38. Present Original Application is disposed of in the manner fully indicated above. In view of the nature of the controversy involved in the case, costs of the litigation are made easy.
17. As regards reservation in restructuring, the Apex Court has held in the case of Pushpa Rani (supra) as under:-
48. The policy contained in Railway Boards Letter dated 25-6-1985 was considered by the Allahabad Bench of the Tribunal in case bearing Registration No. 384 of 1986, V.K. Sirothia v. Union of India. Some of the peculiar features of V.K. Sirothia case are:
(i) Prior to 1-6-1981 there were three categories of Guards in Grades A, B and C in Jhansi Division of Central Railway.
(ii) On 1-6-1981 a fourth category was created, which was called as Guards Grade A (Special).
(iii) Originally 69 posts of Guards Grade A were upgraded and redesignated as Guards Grade A (Special).
(iv) 109 posts of Guards Grade B were upgraded to Guards Grade A and 182 posts of Guards Grade C were upgraded to that of Guards Grade B. Consequently, 272 posts of Guards remained in Grade C.
(v) The above redistribution of posts was done as a result of restructuring of cadre of Guards in Jhansi Division by the Railway Division Manager.
(vi) There was redistribution among various Grades of Guards on 1-1-1984. Sixty-nine posts of Guards Grade A which were upgraded to Grade A (Special) (15 posts) and Grade A (Special II) (54 posts). Some more posts of Guards in Grade C were upgraded to Grade B. Out of 109 posts of Grade A 32 were upgraded as Grade A (Special II) and 77 were left as Guards Grade A.
(vii) Similarly in Grades B and C the percentage of distribution was interchanged and instead of 182, 272 posts were upgraded to that of Grade B leaving out 182 posts in Grade C.
49. The Tribunal noted that as per Railway Boards Letter No. E9(P&A)-II-SCT/3 dated 2-8-1983, the policy of reservation for the Scheduled Castes and Scheduled Tribes is not applicable where cadre restructuring results in mass upgradation of posts and held:
6. In this connection Railway Boards Letter No. E9(P&A)-II- SCT/3 dated 2-8-1983, which is placed at Annexure I of the petition, refers Board have clarified in this letter that where cadre restructuring results in mass upgradation of posts in a particular category reservation for SC/ST is not to be provided. However, in cases where restructuring results in partial upgradation on the basis of percentage distribution the existing rules should be applied against the additional number of higher grade posts which become available as a result of cadre restructuring.
7. The second condition enunciated in the Boards letter leads us to the question whether this upgradation has resulted in additional posts. The restructuring of posts was done to provide relief in terms of promotional avenues. No additional posts were created? Some posts out of existing total were placed in higher grade to provide these avenues to the staff who were stagnating. The placement of these posts in the higher grade cannot be termed as creation of additional posts. There were definite number of posts and the total remained the same. The only difference was that some of these were now in a higher grade. It was a deliberate exercise or redistribution with the primary object of betterment of chances of promotion and removal of stagnation. Additional posts could only be created if there were additional requirements. There should have been justification for their creation and proper sanction. We find no such situation here. It was a simpliciter exercise of dividing the total number in ratios. It was done on 40:60 first and later it was made 60:40, the number remained same
50. The appeal preferred against the aforementioned order (Union of India v. V.K. Sirothia ) was dismissed by this Court in the following terms:
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 order of the Tribunal.
53. In OA No. 414 of 1987, N.K. Saini v. RDSO the applicant challenged the question of application of policy of reservation in the matter of promotion to the upgraded posts becoming available as a result of restructuring of cadres in Research Design and Standards Organisation. The Allahabad Bench of the Tribunal referred to the orders passed in V.K. Sirothia case and A.K. Shrivastava case and held that the upgraded posts could not have been offered to the reserved category candidates.
55. In All India Non SC/ST Employees Assn. (Railway) v. Union of India, OA No. 326 of 1989, Jodhpur Bench of the Tribunal ruled that the reservation for Scheduled Castes and Scheduled Tribes is not applicable in the case of upgradation of the existing posts.
56. Petition for special leave to appeal filed by the Union of India against the aforementioned order which was converted as Civil Appeal No. 1481 of 1996 was dismissed by this Court on 19-11-1998 in the following terms:
Special leave granted in SLPs. Heard counsel on both sides. This Court on 3-1-1996 granted special leave but limited to the proposition that the reservation for SC and ST is not applicable in the case of upgradation of existing posts. This issue we have decided today in Civil Appeal No. 3622 of 19953, etc. In the light of that decision, these appeals are dismissed with no order as to costs.
57. The Association which was the respondent before this Court, filed Contempt Petition (C) No. 304 of 1999. During the pendency of the contempt petition, the Railway Administration filed IA No. 2 of 2000 for clarification of order dated 19-11-1998 by claiming that there was a lot of confusion. The same was disposed of vide this Courts order dated 31-1-20011. The relevant portions of which read as under:
It appears from all the decisions so far that if as a result of reclassification or readjustment there 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 SCs and STs 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. (emphasis supplied)
58. In K. Manickaraj case2 the Court considered whether the benefit of reservation could be extended to the appellant while making appointment on the post of Welfare Inspector Grade II. The Court noted that as a result of restructuring, the number of posts available in cadre of Welfare Inspector Grade II increased from 23 to 26 and if reservation of 15% of promotion was given to Scheduled Castes, four posts would be available for reserved category. On behalf of the respondents, it was pleaded that there has been no change in the strength of the posts in Grade II which remained 23 and the upgraded posts were meant only for sport persons. The Tribunal accepted the contentions raised by the respondents and negatived the claim of the appellant. This Court reversed the order of the Tribunal and observed: (SCC p. 344, para 5) 5. It is admitted that the total number of posts in Grade II was 23 and 3 posts from Grade III were upgraded to that of Grade II. The upgraded posts which were made as early as in August 1987, as per Memorandum dated 24-8-1987, still continue. It is, therefore, not possible for us to accept the contention of the learned counsel for the respondent that the alleged upgradation was made for a temporary period meant for sports personnel. The posts which were upgraded in the year 1988 having continued till date, the cadre strength of Grade II Inspectors must be held to have become 26 and not 23 as contended by the respondent. If 15% of the cadre is meant for reserved category people then it would work out at 4 and admittedly there are only 3 persons belonging to the Scheduled Castes in Grade II. In that view of the matter the appellant was entitled to be promoted against the 15% reserved quota of posts in Grade II treating the total number of posts in Grade II to be 26. In our considered opinion the Tribunal was in error in not taking into account the upgraded posts which have been upgraded from Grade III to Grade II on the ground that it was meant for sports personnel. While computing the number of posts available for reserved category, there is no justification to exclude the upgraded posts which had continued from 1988 till date.
59. An analysis of orders passed by the Tribunals and this Court shows that all cases except that of K. Manickaraj case2 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 emphasised 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 emphasise 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 the High Court were not justified in treating it as a case of upgradation of posts simpliciter. Consequently, the decision of the Tribunal to quash Para 14 of Letter dated 9-10-2003 and direction given for making appointments dehors the policy of reservation are legally unsustainable.
61. The point which remains to be considered is whether the order of the Tribunal, which has been confirmed by the High Court, can be maintained by applying the ratio of M. Nagaraj case . Dr. Rajeev Dhavan, learned Senior Counsel appearing for some of the respondents, made strenuous efforts to convince us that the policy of reservation cannot be applied at the stage of making promotions because the Railway Administration did not produce any evidence to show that Scheduled Castes and Scheduled Tribes were not adequately represented in different cadres and that the efficiency of administration will not be jeopardised by reserving posts for Scheduled Castes and Scheduled Tribes, but we have not felt persuaded to accept this submission. In the applications filed by them, the respondents did not plead that the application of the policy of reservation would lead to excessive representation of the members of Scheduled Castes and Scheduled Tribes, or that the existing policy of reservation framed by the Government of India was not preceded by an exercise in relation to the issue of adequacy of their representation. Rather, the thrust of their claim was that restructuring of different cadres in Group C and D resulted in upgradation of posts and the policy of reservation cannot be applied qua upgraded posts. Therefore, the Union of India and the Railway Administration did not get opportunity to show that the employees belonging to Scheduled Castes and Scheduled Tribes did not have adequate representation in different cadres; that the outer limit of reservation i.e. 50% will not be violated by applying the policy of reservation and that the efficiency of administration will not be jeopardised by applying the policy of reservation. Therefore, it is neither possible nor desirable to entertain a totally new plea raised on behalf of the respondents, more so, because adjudication of such plea calls for a detailed investigation into the issues of facts.
18. Thus, Restructuring scheme of 2003 providing for certain newly created post, reservation is available. However, reservation shall be applicable only in respect of those cadres where there has been an increase in the complement and not in the entire restructuring. For, if reservation is made applicable even where there has been no increase in the complement of a cadre, then the same would be deviating from the law laid down in Sirothia. Sirothia has not been upset by the Apex Court in Pushpa Rani.
19. For promotion to the post of MCM, two aspects have to be kept in view, i.e. seniority position in Grade I and reservation if any in restructuring. In so far as seniority position is concerned, the same is based the position as in Grade I, which is impugned herein. The same cannot be modified as mentioned in the preceding paragraphs.
20. Coming to the issue of reservation, it is related to the question whether there has been any increase in the complement of the cadre of technician due to restructuring. It is to be made clear that in so far as decision of Pushpa Rani is concerned, the decision is that the ratio of Sirothia would hold good when the restructuring does not involve any additional complement, while the ratio of Pushpa Rani is that reservation is to be pressed into service at a situation if there be increase in the total complement of the cadre. It is inappropriate to construe that by virtue of Pushpa Rani the entire restructuring as per the order dated 09-10-2003 has to abide by the reservation aspect. Pushpa Rani having approved Sirothia as well, a clear exercise has to be gone into to find out whether a particular cadre falls under Sirothia or Pushpa Rani.
21. In view of the above, this OA is disposed of with the following:-
The claim of the applicant for quashing of the Annexure A3 seniority is rejected.
As far as reservation is concerned, the respondents shall conduct an exercise to ascertain as to whether there has been creation of new posts in the cadre of Technicians (to which the applicant belongs) and if so, apply reservation and if not reservation shall not be applied. In case reservation has not to be applied, then, against the general category the filling up of the vacancies would be as per the existing practice (ie general category persons or those of the reserved category who had not enjoyed the benefits of such reservation in the past, either at the level of induction or promotion, notwithstanding the fact that such reserved candidates would be fairly senior.)
21. Under the circumstances, there shall be no orders as to costs.
( Dr. Veena Chhotray ) ( Dr. K.B.S. Rajan ) Member (A) Member (J) /sunil/