Central Administrative Tribunal - Delhi
Karan Singh vs Uoi & Ors on 22 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3623/2011
With
OA No.3326/2012
Reserved on:07.01.2014
Pronounced on:22.04.2014
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (J)
OA-3623/2011
1. Karan Singh
R/o H. No.217, Khera Khurd,
Delhi-110082.
2. Rakesh Kumar Singh
R/o H. No. 63, B.N.Enclave,
Sector-29, Faridabad,
Haryana-121008. ..Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
UOI & Ors.
1. The Secretary
Ministry of Labour & Employment
Govt. of India, Sharam Shakti Bhawan,
New Delhi
2. The Central Provident Fund Commissioner
EPFO, Ministry of Labour & Employment
Govt. of India,
Bhavishya Nidhi Bhawan,
14, Bhikaji Cama Place,
New Delhi.
3. Shri R.S. Kameshwaran
Serving as Assistant
4. Shri Makhan Lal
Serving as Assistant
5. Shri Dharshan Kumar Tanwar
Serving as Assistant
6. Smt. Kanta Devi
Serving as Assistant
7. Shri Rameshwar
Serving as Assistant
8. Shri Sohan Lal
Serving as Assistant
9. Shri Babu Ram
Serving as Assistant
(Service through
Respondent No.2).
10. All India (EPF SC/ST)
Staff Federation. .Respondents
(By Advocate: Shri R.N. Singh for Respondents 1 & 2.
Shri Lalta Prasad for Respondents 3 to 10)
OA-3326/2012
1. Sh. Padmender Singh Rawat
S/o Sh. G.S. Rawat
R./o D-134, B.K. Dutt Colony,
Lodhi Road,
New Delhi-3.
2. Ms. Santosh Ramrakhiani
W/o Sh. Desh Kumar Ramrakhiani
R/o O-34, Lajpat Nagar-II,
New Delhi-24
3. Sh. Dashan Lal,
S/o Late Sh. A.R. Manocha
R/o D-47, Gharondha Apartments
Shestra Vihar,
Delhi-92.
4. Ms. Sonia Kaushal
W/o Sh. Rajiv Kaushal
R/o Flat No.468,
M.I.G. Duplex Flats,
Vikas Kunj Society,
Vikas Puri,
Delhi.
5. Sh. Ajay Katyal,
S/o Sh. Om Prakash Katyal,
R/o C-21/B, Second Floor,
Single Storey Vijay Nagar,
Delhi-9. . Applicants
(By Advocate: Mr. Ajesh Luthra)
Versus
1. Ministry of Home Affairs
Through its Secretary
Union of India, North Block,
New Delhi.
2. Commissioner of Police
PHQ, MSO Building,
IP Estate, New Delhi
3. Joint Commissioner of Police
(Headquarters)
P.H.Q., M.S.O. Building
I.P. Estate, New Delhi
4. Sh. Virender Singh
(Stenographer) No.272-D
PIS No.25930002
5. Sh. Tirath Babu
(Stenographer) No.1020-D
PIS No.25920005
6. Sh. Pawan Kumar
(Stenographer) No.1022-D
PIS No.25920004. . Respondents
(By Advocate: Mrs. Avnish Ahlawat and Shri S.M. Arif)
ORDER
Honble Mr. G. George Paracken, Member (J) Both these Original Applications are similar in nature and, therefore, they are disposed of by this common order.
2. In these Original Applicants, the issues being considered are, (i) whether reservation is permissible in filling up the higher posts which have become available on account of cadre-restructuring and (ii) whether reservation is permissible in promotions. In our considered view, law on both the issues have already been well settled and, therefore, our task is only to apply those laws in these cases and then to adjudicate them.
OA No.3326/20122.1. In this OA, the Applicants have sought a declaration that the Respondents have wrongly applied the reservation policy in the matter of appointment/fitment to the post of Inspector (Stenographer). They have also sought a declaration that the private Respondents have been wrongly appointed to the aforesaid post.
2.2. The brief facts of the case are that all the Applicants are working as Assistant Sub Inspectors (Stenographer). The cadre strength of Stenographers in Delhi Police is 114 3 posts in the rank of Inspector (Steno) and 111 posts in the rank of Assistant Sub Inspector (Steno). The Respondents, vide letter No.14040/86/2009-UTP, GOI, MHA (UT division) dated 09.05.2012, restructured the aforesaid Stenographers Cadre. Accordingly, the total number of posts of ASI (Stenographer) (PB-II, GP-4200) have been reduced to 80 from the existing strength of 111 and the number of posts of Inspector (Stenographer) (PB-II, GP-4600) was increased from 3 to 31. However, the total strength of the cadre remained the same, i.e., 114. As part of restructuring process, it was also decided that the directly recruited ASI(Stenos) will be elevated as SI (Steno) with scale of pay (PB-II, GP-4200). Thereafter, vide Annexure A-6 order dated 16.07.2012, 90 ASI (Steno) including the Applicants were designated as SI (Steno) without any change in pay scale. Later, by the impugned order dated 14.08.2012, out of the 31 restructured posts of Inspector (Steno), 30 have been filled up by first admitting to List F and then promoting to the said post. According to the Applicants, they have been left out as the Respondents have applied reservation in favour of SC/ST candidates. In the said order dated 14.08.2012, 3 SI (Stenos) belonging to SC category, namely, S/Shri Virender Singh, Tirath Babu and Pawan Kumar have been given accelerated promotion. The Applicants made Annexure A-7 (Colly) representations against their promotion but the Respondents rejected them vide the impugned letter dated 27.8.2012 without assigning any reasons.
3. The Respondents in their reply have not refuted the factual position as stated by the Applicants. However, they have stated that as per the instructions regarding Post Based Roster for reservation of SC/STs in promotions, issued by the DOP&T from time to time, the vacancy position for filling up 32 vacant posts of Inspectors (Steno) was placed before the Departmental Promotion Committee met on 14.08.2012 as under:-
UNRESERVED SC ST TOTAL Sanctioned posts 28 04 02 34 (3 existing + newly created posts) Present 02 - - 02 Vacancies 26 04 02 32 Accordingly, the DPC approved the name of 26 unreserved and 04 SC category candidates for admission of their names to Promotion List-F (Steno) and promoted to the rank of Inspector (Steno) w.e.f. 14.08.2012 (Annexure A-2 of the OA) and 2 vacancies meant for ST category kept vacant as no eligible Steno of ST category is available in the feeder line.
4. We have considered the aforesaid submissions of the parties. Admittedly, the strength of the Stenographers cadre was 114 3 posts of Inspectors and 111 posts of ASIs. After restructuring while keeping the total strength as same 28 posts of ASI were upgraded to that of Inspector. The settled position of law is that where there is only upgradation of existing posts by way of creating additional posts, principles of reservation would not apply.
OA No.3623/20124.1. The applicants have filed this OA against the impugned Office order No.ASD-1/99 (2) 2008/Restructuring Asstt./Review DPC/264 dated 23.08.2011.
4.2. The brief facts of the case: In the year 2008, a committee of officers was constituted to look into the grievances of the employees regarding stagnation and to suggest appropriate methodology to remove such stagnation. The said committee found that the work handled by the SSAs and Assistants in Headquarter is identical. Accordingly, it was recommended that the grades of SSA and Assistants be restructured by reducing the sanctioned strength of SSA and providing additional posts of Assistants in line with CSS pattern. As the main object was to remove stagnation without causing additional burden, it was decided that the total sanctioned staff be reduced by 10% but by increasing the post of Assistant as well as Section Officer by way of upgradation. The recommendations of the committee was accepted by the Central Board of Trustees in its 184th meeting held on 11.11.2008 and issued the office order dated 18.12.2008 which reads as under:-
Employees Provident Fund Organisation (Ministry of Labour and Employment, Government of India) Bhavishya Nidhi Bhawan, 14-Bhikaji Cama Place, New Delhi-110066 www.epindia.gov.in; www.epindia.nic.in HRD/1(1)2001/CSS(Restructuring)/ Dt:18/12/2008 67066 OFFICE ORDER Sub: Restructuring of Group B and C post in EPF Organisation, Head Office at par with the CC.
The Central Board of Trustees, EPF in its 184th meeting held on 11.11.2008 restructure the Group B and C Cadres in EPF Organisation , Head Office and re-allocated the sanctioned posts as under:-
Sl.No. Name of the Posts Pay scales (pre-revised) Existing posts No. of post created Total sanctioned strength
1. Section Officers 6500-10500 57 29 86
2. Assistant 5500-9000 73 74 147
3. SSA 4000-6000 166 - -
4. UDC 4000-6000 - 16 16
5. LDC 3050-4590 8 16 24 This issues with the approval of ACC(HR).
Sd/-
(R.K. Kukreja) Regional PF Commissioner (HRM).
4.3. Thereafter, the Respondents vide their order dated 26.12.2008, promoted 138 SSAs as Assistants on regular basis in the pay band of Rs.9300-34800 with Grade Pay Rs.4200. They have also issued a draft seniority list of 140 Assistants as on 31.03.2010. In the said list, the positions of all the Assistants were the same as they were in the cadre of SSA, meaning thereby, the inter-se position of the SSAs have not been subjected to any change. The said list was finalized without any change vide the subsequent final seniority list dated 08.09.2010.
4.4. Later on, the All India EPF SC/ST Staff Federation, vide its letter dated 09.08.2010 addressed to the National Commission for SC, submitted that due reservation to the officials belonging to SC/ST categories has not been provided in the cadres of Assistant; Section Officers, DPAs; PA/PS and Assistant PF Commissioner. The stand of department has been that except in the case of the cadre of APFC, in all the remaining aforesaid cadres, restructuring of posts/cadres have taken place in which the total number of posts have either reduced or remained the same. Since in these restructuring exercise, all the eligible officials in the pre-restructured setup were converted into the restructured posts/cadres en masse, fresh application of roster points reserved for SC/ST officials was not required and hence that aspect was not acted upon accordingly. However, a reference in this regard was made to the Ministry of Labour and the DOP&T. After considering the matter in detail, the Respondents, vide their letter dated 23.06.2011, came to the conclusion that reservation policy for SC/ST employees is not applicable in any of the aforesaid restructuring done in the EPFO. However, by the impugned letter dated 09.08.2011, the M/o Labour and Employment (Respondent No.2) asked the EPFO (Respondent No.2) to apply the reservation policy even in the matter of up-gradation in terms of DOP&T OM dated 10.08.2010. Thereafter, the Respondent No.2 issued the impugned order dated 23.08.2011. By the said order, fresh reservation roster was prepared in the cadre of Assistant and the DPC held on 26.12.2008 was reviewed on 16.8.2011 and consequently 133 officials have been promoted to the post of Assistant giving reservation for SC/ST officials.
4.5. The Applicants have, therefore, filed this OA seeking the following reliefs:-
(i) To quash and set aside the impugned order dated 09.08.2011 and 23.08.2011.
(ii) To declare the action of Respondents in applying reservation against the posts upgraded on account of restructuring of Group B and C cadre as illegal and unjustified.
(iii) To issue direction to the Respondents to restore back the promotion of the Applicants as it were before passing the impugned order dated 23.08.2011 and 09.08.2011.
(iv) To allow the OA with costs.
(v) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the Applicants.
5. The Respondent No.2 in their reply has submitted that the impugned order has been issued in the light of implementation of DOP&T OM No.36012/45/2005-Estt.(Res.) dated 10.08.2010 on the issue of persons promoted on own merit and also by implementing the policy of reservation on restructuring as per the directions of Respondent No.1. According to the said OM SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against un-reserved points of the reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. These orders will take effect from 02.07.1977 the date on which post based reservation was introduced. Accordingly, fresh reservation rosters were prepared in the cadre of Section Officer and Assistants on the above lines.
6. The SC/ST candidates who have been impleaded as Private Respondents have filed their separate reply. They have relied upon the judgment of the Apex Court in the case of U.O.I. Vs. Pushpa Rani 2008 (9) SCC 242 wherein it has been held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill up such post from promotion from all eligible and suitable employees and, therefore, it was a case of promotion and consequently, reservation rules were applicable. They have also stated that the action taken by the competent authorities is in accordance with relevant rules and instructions on the subject and the impugned order has been issued in the light of implementation of DOP&T OM No.36012/45/2005-Estt. (Reg.) dated 10.08.2010 for filling up the posts/vacancies created on restructuring of Group B and C cadre. Further, they have submitted that in the restructuring of Group B and C cadres in the EPF Organisation, Headquarters, new posts have been created in the cadres of Section Officer and Assistant. The details of the same are as under:-
Name of the Posts and Pay Scale Number of posts before restructuring Number of posts after restructuring New creation Section Officer (6500-10500) 57 86 29 Assistant 73 147 74 Upper Division Clerk(4000-6000) 00 16 16 Lower Division Clerk (3050-4590) 08 24 16
7. They have further stated that the Applicants have not been removed from the regular cadre of Assistant as alleged, as the order dated 23.08.2011 clearly envisages that the review DPC recommended that they may continue to hold the post of Assistant. They have further stated that at the time of restructuring of Group B and C cadres, Applicants were promoted against the newly created (74) posts in the cadre of Assistants.
8. The Applicants have filed a rejoinder. They have stated that in view of the law laid down by the Honble Supreme Court in the case of M. Nagaraj and recent decision in the case of U.P. State Corporation, the Respondents cannot give benefits of reservation in the matter of promotion. When the Respondents have not collected any quantifiable data before providing reservation in promotion, they cannot apply reservation in promotion in EPFO. They have stated that it is evident from the Respondents own documents that the total posts of UDC/SSA were 166 whereas the total upgraded post of Assistant are only 147. They have also submitted that the Private Respondents have wrongly stated that 74 new posts have been created in the cadre of Assistant and the same is evident from aforesaid facts. In fact, the posts of Assistants have been increased due to up-gradation of the post of UDC/SSA. It is evident from the record of DPC that the criteria as provided for has not been made available. The officials were treated as Assistant on the basis of their seniority in the grade of UDC/SSA.
9. We have considered the rival contentions. It is seen that in the cadres of Assistant and SSA, after restructuring the total number of posts have reduced. The number of posts of Assistant and SSA before restructuring was 73 and 166 respectively and the total was 239. After restructuring, the posts of SSA was abolished and in their place the existing strength of Assistant was increased from 73 to 147. In other words, the total strength of Assistants and SSA before restructuring (73+166= 239) has been reduced to 147. As a result, the Respondents have promoted the SSA en masse as Assistants in the same order of their seniority without following any selection process. However, the All India EPF SC/ST Staff Federation made a representation dated 09.08.2010 that due reservation to the officials to SC/ST categories has not been promoted in the cadre of Assistants Section Officers etc. Thereafter, the Respondents made a reference to DOP&T to ascertain as to whether or not, fresh reservation to te existing SC/ST officials in the case of cadre restructuring is to be provided where the total no. of posts have either been reduced or remained the same. The advice of the DOP&T was to examine the case in the light of the judgment of the Apex Court in Union of India and Others Vs. Pushpa Rani decided on 29.07.2008 2008 (9) SCC 242. Thereafter, the Respondents EPFO examined the case in the light of the aforesaid judgment and came to the conclusion that reservation policy for SC/ST employees is not applicable for the following reasons:-
(i) upgradation of large number of posts was involved;
(ii) these posts could be filled by the existing incumbents in the higher grade without subjecting them to the process of selection; and
(iii) 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.
10. The OM No.36012/45/2005-Estt.(Res.) dated 10.10.2010 issued by the DOP&T regarding treatment of SC/ST candidates promoted on their own merit for grant of reservation relied upon by Respondent M/o Labour & Employment in the impugned letter dated 09.08.2011 has no application. It only says that SC/ST candidates appointed by promotion on their own merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against unreserved points of reservation roster, irrespective of the fact whether the promotion is made by selection method or non-selection method. Therefore, the impugned order dated 23.08.2011 has been issued without any justification.
11. As regards the issue of reservation in the case of the restructuring of the cadres is concerned, generally the existing posts are upgraded as it is to posts with higher scale of pay. In such cases, mostly the number of posts in the cadre remains the same. However, there may be occasions, on restructuring of the cadres, the total number of existing posts is increased and in the higher category, additional posts are created. The Gujarat High Court in Union of India Vs. All India Non-SC/ST Telecom Employees Association Special Civil Appeal No.7576 of 1997 decided on 24.03.1999 and the Apex court in All India Non-SC/ST Employees Association (Railway) Vs. V.K. Agarwal and Others (2001) 10 SCC 165 and in Union of India Vs. V.K. Sirothia 2008 (9) SCC 283 held that if the total number of existing posts remain the same and certain employees get the higher pay scales due to the reclassification of the different scales of pay, it would be only a case of upgradation of posts and not creation of any new posts. Hence, the principle of reservation would not be applicable in such cases. In other words unless some additional posts are created by way of restructuring, reservation of posts for SC and ST candidates cannot be resorted to. Again, in its judgment in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy and Others (2011) 9 SCC 510, the Apex Court held that if there is mere upgradation of posts, as contrasted from promotion, reservation provisions would not apply. But in cases where no additional posts were created, but where a process of selection was involved in the upgradation, the process has to be considered not as an upgradation simplicitor, but a process of promotion and therefore the principles of reservation would be attracted. In the said judgment, the Apex Court has also considered its earlier judgments in the cases of V.K. Agarwal and Others (supra) and V.K. Sirothia (supra) as well as the judgment of the Gujarat High Court in Union of India vs. All India Non SC/ST Telecom Employees Association (supra). The relevant part of the said judgment is as under:-
13. The said order is challenged in these appeals by special leave by the appellant. The appellant has put forth the following contentions :
(i) There is a clear distinction between upgradation and promotion. While promotion involves advancement in rank, grade or both and is always a step towards advancement to higher position, grade or honour, upgradation does not involve promotion to a higher position and the pedestal of the employee remains the same and the employee is merely conferred some financial benefits by granting a higher pay scale, to overcome stagnation. The BCR scheme introduced as per order dated 16.10.1990 was a scheme of upgradation and not promotion.
(ii) Where there is only upgradation of existing posts, with creating additional posts, principles of reservation would not apply. The Tribunal and the High Court committed a serious error by treating upgradation as a promotion to which reservation rules would apply. The Tribunal and the High Court ought to have followed the decision of this Court in All India Employees Association (Railways) vs. V.K. Agarwal - 2001 (10) SCC 165 and the decision of the Gujarat High Court dated 24.3.1999 in Special Civil Application No.7576 of 1997 - Union of India vs. All India Non SC/ST Telecom Employees Association.
14. Article 16(4) enables the State to make any provision for reservation of appointment or posts in favour of any backward classes of citizens. Article 16(4A) enables the State to make any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and Scheduled Tribes, which in the opinion of the State, are not adequately represented in the services under the State. As upgradation involves neither appointment nor promotion, it will not attract reservation. Upgradation involves mere conferment of financial benefits by providing a higher scale of pay. If there is mere upgradation of posts, as contrasted from promotion, reservation provisions would not apply. [See : All India Employees Association (Railways) vs. V.K. Agarwal - 2001 (10) SCC 165 and Union of India vs. V. K. Sirothia - 2008 (9) SCC 283].
15. In V.K. Agarawal this Court held:
"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 CA 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)
16. The decision of this Court in V.K. Sirothia arose from a decision of the Allahabad Bench of the Tribunal which expressed a similar view (in V.K. Sirothia vs. Union of India - O.A. No.384/1986). The Tribunal held:
"The restructuring of posts was done to provide relief in terms of promotional avenues. No additional posts were created. Some posts out of existing total were placed in higher grade to provide these avenues to the staff who were stagnating. The placement of these posts cannot be termed as creation of additional posts. There were definite number of posts and the total remained the same. The only difference was that some of these were in a higher grade. It was deliberate exercise of redistribution with the primary object of betterment of chance of promotion and removal of stagnation."
The Union of India challenged the said order of the Tribunal and this Court by a brief order dated 19.11.1998 (Union of India vs. V.K. Sirothia - 2008 (9) SCC 283) dismissed the appeal by a brief order. The relevant portion of the said order is extracted below :
"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."
17. We may next consider the concepts of `promotion' and `upgradation'. In Lalit Mohan Deb, this Court explained the difference between a promotion post and a selection grade :
"It is well recognised that a promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who may not get a chance of promotion on account of limited outlets of promotions should at least be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency."
18. In Tarsen Singh vs. State of Punjab - 1994 (5) SCC 392, this Court defined `promotion' thus:
"Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour."
xxxx xxxx xxxx
22. But even in cases where no additional posts were created, but where a process of selection was involved in the upgradation, the process has to be considered not as an upgradation simplicitor, but a process of promotion and therefore the principles of reservation would be attracted. We may refer to the Constitution Bench decision of this Court in Ram Prasad (supra) where this Court held that appointment from senior scale to selection scale is a promotion though it may not be a promotion to a higher position and consequently the reserved candidates are entitled to be promoted to the selection scale by way of roster points. For this purpose, the Constitution Bench relied upon the decision of Fateh Chand Soni.
xxxx xxxx xxxxx
27. In Union of India vs. Pushpa Rani - 2008 (9) SCC 242, this Court examined the entire case law and explained the difference between upgradation and promotion thus :
"In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word `promotion' means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word `promotion' has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.
Once it is recognized that additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude applicability of policy of reservation while effecting promotions, more so because it has not been shown that procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion.
Policy contained in Letter dated 9.10.2003 has been framed with a view to strengthen and rationalize the staffing pattern. For this purpose, the Ministry of Railways undertook review of certain cadres. The basis of the review was functional, operation and administrative requirement of the Railways. This exercise was intended to improve efficiency of administration by providing incentives to existing employees in the form of better promotional avenues and at the same time requiring 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 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 existing incumbents in the higher grade without subjecting them to the rigor of selection. It has therefore to be held that the Railway Board did not commit any illegality by directing that existing instructions with regard to the policy of reservation of posts for SC and ST will apply at the stage of effecting promotion against the additional posts. The Tribunal committed serious illegality by striking down para 14 of letter dated 9.10.2003. Matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of employees fall within the exclusive domain of employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated by mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
(emphasis supplied)
28. In Pushpa Rani, this Court while considering a scheme contained in the letter dated 9.10.2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill-up such posts from promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, reservation rules were applicable.
29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge :
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is advancement to a higher position and advancement to a higher pay scale - are described by the common term `promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation. A
(v) Where the process is an upgradation simplicitor, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.
12. We have heard the counsel for the parties in these two OAs. We have also perused the documents filed by the parties available on record. The question of reservation in promotion is already a settled issue. The five judges Constitution Bench of the Apex Court in M. Nagaraj & Others v. Union of India & Others JT 2006 (9) SC 191, 2006 (8) SCC 2112 held that reservation in promotion per se is not unconstitutional. Therefore, it has upheld the provisions for reservation in promotion for Scheduled Castes and Scheduled Tribes with consequential seniority as contained in Article 16 (4A) and Article 16 (4B) of Constitution. The said Article reads as under:-
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year. But such reservation is subject to the condition that the State shall form its opinion that the Scheduled Castes and Scheduled Tribes are not adequately represented in the service. The relevant part of the Apex Courts judgment in the aforesaid case is as under:-
122. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
13. Again in its judgment in Suraj Bhan Meena and Another v. State of Rajasthan and Others (2011) 1 SCC 467, the Apex Court reiterated the conditions precedent for reservation of posts in promotion as inadequacy of representation of members of SCs and STs and ascertainment of the necessity of such reservation. Further, the said judgment held the notifications providing for promotion of members of SCs and STs with consequential seniority issued by State Government without first acquiring quantifiable data regarding inadequacy of representation of SCs and STs in public services has been rightly set aside by High Court. The relevant part of the said judgment reads as under:-
64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution.
65. In effect, what has been decided in M. Nagaraj's case (supra) is part recognition of the views expressed in Virpal Singh Chauhan's case (supra), but at the same time upholding the validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved concepts and could not be elevated to the status of a constitutional principle so as to place them beyond the amending power of the Parliament. Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B) would have to be satisfied, which could only be achieved after an inquiry as to identity.
66. The position after the decision in M. Nagaraj's case (supra) is that reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required.
67. The view of the High Court is based on the decision in M. Nagaraj's case (supra) as no exercise was undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Schedule Castes and Scheduled Tribes communities in public services. The Rajasthan High Court has rightly quashed the notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Scheduled Tribes communities and the same does not call for any interference.
14. Further, in its recent judgment in U.P. Power Corporation Ltd. v. Rajesh Kumar & Others 2012 (4) SCALE 687 decided on 27.04.2012, the Apex Court has held that fresh exercise in the light of the judgment of the Constitution Bench in M. Nagarajs case (supra) is a categorical imperative. The relevant part of the said judgment is as under:-
41. As has been indicated hereinbefore, it has been vehemently argued by the learned senior counsel for the State and the learned senior counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardized. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj (supra). It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Vir Pal Singh Chauhan (supra) and Ajit Singh (II) (supra). We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj (supra) is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4A) and 16(4B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.
15. A Full Bench of this Tribunal has also considered the issue earlier in great detail in its order dated 02.12.2010 in OA No. 2211/2008 - All India Equality Forum and Others v. Union of India and Others. The said order has also directed the Respondent Railways therein not to give accelerated promotion and consequential seniority to Scheduled Caste and Scheduled Tribe category employees till such time pre-conditions on which Article 16(4A) of the Constitution is to operate, are complied with. The concluding part of the said order reads as under:-
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-a-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.
16. The High Court of Punjab and Haryana at Chandigarh in CWP No.13218 of 2009 (O&M) Lachhmi Narain Gupta and others v. Jarnail Singh and Others decided on 15.07.2011 has also followed the Apex Courts dictum in the case of M. Nagarajs case (supra) and held as under:-
38. When the principles laid down in the case of M. Nagaraj(supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation in respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos. 5 and 6. The aforesaid fact has also been conceded by the respondent-Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.1.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made alongwith backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffers from violation of the provisions of Articles 16(4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagarajs case (supra) as well as in Suraj Bhan Meenas case (supra).
17. Co-ordinate Benches of this Tribunal has also decided OA No.2434/2012 Liladhar Ramchandi and Others Vs. Government of N.C.T. of Delhi and Others (decided on 27.09.2013) and OA No.2009/2013 Shri Vijender Singh and Others Vs. Commissioner of Police and Others (decided on 24.12.2013) following the aforesaid dictum laid down by the Apex Court. The operative parts of those OAs are as under:-OA No.2434/2012
5. It is the specific case of the applicants that the respondents are not bound to make reservations for SCs/STs in the matter of promotions, and however, if they wish to exercise their discretion, and make such provision, they have to collect quantifiable data showing backwardness of the class and inadequacy of the representation of that class. Even if there are compelling reasons, the respondents have to see that the reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely, as per the dicta laid down in the aforesaid Judgments. But the respondents, without undertaking any exercise as contemplated by the Honble Apex Court, as aforesaid, and without making any provision for providing reservations in promotions, effected the promotions in various Nursing Cadres, by following the rule of reservation, and further contemplating to make further promotions to higher posts.
6. The respondents vide their reply though not denied the OA averments, but submitted that after the pronouncement of the Judgements in S.Nagaraj and Suraj Bhan Meenas cases (supra), they have not received any Instructions/Guidelines or Office Memorandums/Circulars either to follow those Judgments or orders passed in compliance of the said Judgments, and hence, they have applied the rule of reservations in effecting promotions to various Nursing Cadres. It is further stated that the Department is in the process of finalizing the seniority lists of Staff Nurses and as soon as those lists are finalized, the ad hoc promotions made under the impugned Annexures would be reviewed and further appropriate action as per law would be taken. They further submit that since the impugned promotions are only of ad hoc nature and would be reviewed once the seniority lists of Staff Nurses are finalized, therefore, the interference of this Tribunal is not warranted at this stage.
7. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Ms. P.K.Gupta, the learned counsel for the respondents and also gone through the pleadings on record.
8. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
9. The contention of the respondents that the promotions were effected only on ad hoc basis and hence, they will apply the law laid down by the Honble Apex Court while making regular promotions and till then they maintain the ad hoc promotions is unacceptable, untenable and unsustainable.
10. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned promotion orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review all the promotions effected by applying rule of reservation to the categories of Nursing Sisters, Assistant Nursing Sisters, Deputy Nursing Sisters and Nursing Superintendents and re do the entire exercise of effecting promotions to the said categories, in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, draw the seniority lists in the said categories as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
11. The OA is accordingly allowed in terms of the aforesaid directions. No order as to costs.OA No.2009/2013
8. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Shri N.K.Singh for Mrs. Avniash Ahlawat, the learned counsel for the official respondents No.1 and 2 and Shri Ajesh Luthra for Respondents No.3 to 5 and 7 and Shri A.K.Singh for Respondent No.6 and also gone through the pleadings on record.
9. No person or authority can ignore or violate the law of the land on the ground that they have not received any Instructions/Guidelines/Office Memorandums/Circulars from their higher authorities or from any other Ministry to follow the said law.
10. The learned counsel for the applicants relied upon the Judgements of the Honble Apex Court in DWARIKESH SUGAR INDUSTRIES LTD V. PREM HEAVY ENGINEERING WORKS (P) LTD., AND ANOTHER, (1997) 6 SCC 450 and submits that the Apex Court has observed in Para 32 as under:
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. He also placed reliance on a Judgment of this Bench in OA No.2434/2012, dated 5.12.2013, to this effect.
11. Shri Ajesh Luthra and Shri A.K.Singh, the learned counsel appearing for the private respondents submit that they belong to Unreserved category and are very much senior to the applicants in the category of Sub Inspector (Executive) and irrespective of the result of the OA, they are entitled for promotion to the post of Inspector, in view of their seniority and in view of availability of the sufficient vacancies. Further, the learned counsel appearing for the private respondents also not disputed the legal position and the applicability of the Judgements of the Honble Apex Court in M. Nagaraj and Suraj Bhan Meena, etc. to the facts of the present case.
12. This Tribunal while issuing notices restrained the respondents from making any further promotions by order dated 11.06.2013. When the MA No.1994/2013 filed by respondents 3 to 5 seeking to vacate or modify the said order, was not found favour by this Tribunal by order dated 06.08.2013, they filed W.P (C) No.6582/2013 and the same was disposed by the Honble High Court of Delhi vide its order dated 21.10.2013 directing this Tribunal to dispose the main OA itself.
13. The present OA is filed without making any of the affected parties as respondents to the OA. Further, in the impugned orders, which are sought to be quashed, in addition to the ineligible persons, i.e., persons sought to be promoted by virtue of applying the rule of reservation in promotions, others who belongs to all categories, i.e., General and Reserved categories, whose cases would not be effected, even the rule of reservation is not applied are also there. In view of the same, we are not proposing to quash the impugned orders. Alternatively, the ends of justice would be met if a direction is issued to the respondents to review the impugned order issued by applying rule of reservation and to redo the entire exercise in strict compliance of the law laid down by the Honble Apex Court in M. Nagaraj and Others v. Union of India, (2006) 8 SCC 212 and Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467, and accordingly, redraw the names of Sub Inspectors (Executive) for admission to Promotion List `F (Exe.) for the vacancy year 2013-14, as per rules. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. Ordered accordingly.
14. The OA is accordingly allowed in terms of the aforesaid directions. In view of the orders in OA, no orders are necessary in MA 1994/2013 and MA 2753/2013 filed for vacation/modification of interim order dated 11.06.2013 and they are also disposed of accordingly. No order as to costs.
18. In view of the above position, both thse OAs are allowed. As far as OA 3326/2012 is concerned, we declare that the official respondents have wrongly applied reservation policy in the matter of appointment/fitment to the post of Inspector (Stenographer) and wrongly appointed the private respondents to the aforesaid post. Consequently, we quash and set aside the impugned order of the official respondents No.52985-53085/CB-V/PHQ dated 14.08.2012 and notification No.52983/CB-V with notification No. 52984/CB-V dated 14.08.2012 to the extent of promoting the private Respondents to the rank of Inspector (Stenographer) and their letter No.55032-35/CB-V (PHQ) dated 27.08.2012 rejecting the representations of the Applicants against the aforesaid order dated 14.08.2012. Further, we direct the Respondents to consider the Applicants to the post of Inspector (Stenographer) w.e.f. the date their counterparts have been appointed to the said post with all consequential benefits.
19. As far as OA No.3623/2011 is concerned, we quash and set aside the impugned orders dated 09.08.2011 and 23.08.2011. We also declare that the action of the Respondents in applying reservation against the upgraded posts on account of the restructuring of the Group B and C cadre is illegal and wrong. Consequently, the respondents are directed to restore the promotion of the Applicants existed before passing the aforesaid impugned orders. The Respondents shall also pass appropriate order in implementation of the aforesaid directions.
20. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order.
21. There shall be no order as to costs.
Let a copy of this order be placed in all the files.
(Shekhar Agarwal) (G. Geroge Paracken)
Member (A) Member (J)
Rakesh