Central Administrative Tribunal - Ahmedabad
Vijay Bhatt vs Western Railway on 6 April, 2026
1 OA No.105/2023 and 3 connected OAs
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH, AHMEDABAD
O. A.No.105/2023,
O.A.No. 200/2023,
O.A.No. 222/2023,
O.A.No. 423/2025 With
M.A.Nos. 236/2023, 170/2023 & 390/2025
ORDER RESERVED ON :13.03.2026
ORDER PRONOUNCED ON : 06.04.2026
CORAM:
HON'BLE SHRI JAYESH V. BHAIRAVIA, MEMBER (J)
HON'BLE DR. HUKUM SINGH MEENA, MEMBER (A)
OA No.105/2023
1. Shri Ramashankar Yadav S/o Sh.Rajdev Yadav
aged 50 years, working as SSE
under Sr. CDO, KKF, ADI (MG)
R/o. H/No. 2, Yadvesh Nagar,
Nr. Kailash Shem, Jogeshwari Raw,
Amariwadim, Ahmedabad-380026.
2. Shri Sanjay Kumar Yadav
S/o. Vijay Narayan Yadav,aged 44 years,
Working as SSE/C&W, CDO-ADI-BG (Kalupur)
R/o H.No. 6, Harshad Bhavani Society,
Jogeshwari Road, Anmedabad-380026.
3. Shri Rajiv Ranjan S/o. Shri Baldyanath Bhagat
aged 42 years, working as SSE under Sr. CDO,
KKF, ADI (MG), R/o H.No. 09, Reukbag Society,
Maninagar, Ahmedabad -380008
4. Shri Modi Gaurav Gupta S/o. Sh. Modi Rajeshkumar Gupta
aged 30 years, working as SSE under C&W,
Sr. DME (Co) ADI, R/o -A-704, Navdas Helios, S. P. Ring road,
Zundal, Gandhinagar, Gujarat-382421.
5. Shri Vijay K. Ravat S/o Sh.Khajansingh Ravat
aged 44 years, working as SSE under C&W/SBI Sr. DME (ADI)
R/o 8, Ottam Nagar, D‟Cabin, Sabarmati,
Ahmedabad-380019.
6. Shri Rakesh Patidar S/o Sh. Ramgopal Patidar
aged 35 years, working as SSE under Sr. CDO/ICD/SBI
JITENDRA RAJ 2026.04.13
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R/o. Flat No. 204. „B‟ Block, K. G. Royal Homes,
Chandkheda, Ahmedabad-382424.
7. Shri Piyush Raj S/o Sh.Vijaykumar Singh
aged 33 years, working as SSE under CDO-ADI-BG(Kalupur),
R/o. J-301, Indraprasth-9, New Ranip, Ahmedabad-382480.
... Applicants
Vs.
1. Union of India, notice to be served through, Secretary/
Dy. Director, Pay Commission -VII & HRMS
Ministry of Railway,Rail Bhavan,
New Delhi-110001.
2. General Manager, Western Railway,
Churchgate, Mumbai-400020.
3. Divisional Railway Manager,
Western Railway, Divisional Office,
Ashrwa, Ahmedabad-380019.
4. Sr. Divisional Personnel Officer,
Western Railway, Divisional Office,
Ashrwa, Ahmedabad-380019.
5. Madanlal R. Shakya, working at ADI/BG
6. Naresh Kumar J. working as ADI/BG
7. Gyan Singh working at GIM
8. G. N. Dabhi working at ADI/MG
9. K. M. Solanki Working at ADI/MG
10.Nandlal Meena working at GNC
11. Manoj Parmar working at ADI/MG
12. M. B. Parihar working at SBI
13. Rakesh Prakash working at ADI/BG
14. Vijaysingh G working at ADI/MG
15. Kamleshkumar Mayavanshi working at Sr. DME
16. Mukesh kumar Bairva working at ADI/MG
17. Amichand Mogre working at ADI/BG
18. Ishwar S. working at ADI/BG
19. Prakash B. working at SBI
20. Akhilesh Kumar Bhaskar working at GIM
21. Arunendra Chandra working at Sr. DME
22. Rajkumar Meena working at PNU
23. Rahul Parmar working at SBI
24. Prahlad Singh Meena working at ADI/BG
25. Devendra A. Meena working at ADI/MG
26. Vijay Sanatan working at ADI/MG
27. Rajeshkumar Sitaram working at ADI/BG
28. Subhash Ram working at ICD/SBI
29. Vinodkumar Jonwal working at SBI
30. Devendra Kumar working at ADI/MG
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31. Rajesh Meshram working at SBI
32. Dullamanjhi D. working at ADI/MG
33. Dinesh Kumar Meena working at ADI/BG
34. Viraj Gautam Kapadia working at ICD/SBI
35. Mahendra J. Meena working at SBI
36. Chad Kumar R. working at SBI
37. Bharat M. Vaghela working at GIM
38. Satyanarayan Sharma working at GIM
39. Prakhar Vishandre working at GIM
40. Vinod S. Raigar working at GIM
All the respondent Nos. 5 to 40 working under DRM(E)
ADI Respondent No. 2 ,notice to be served through
Divisional Railway Manager (E) Western Railway,
Divisional Office,Ashrawa, Ahmedabad-380 0019 ...Respondents
OA No.200/2023
1. Sh. Ashish Y. Chaturvedi
S/o Sh.Yagyanarayan Chaturvedi,aged 42 years
R/o. Tower-1, 103, Devnandan Height,Near Poddar School,
New C. G. Road, Ahmedabad - 382 424.
2. Sh. Ashok Kumar Chura S/o Sh. Bulaki Das Chura
aged 43 years R/o. F-101, Parth Avenue, Near ONGC,
Avani Bhavan, Chandkheda, Ahmedabad-382424.
3. Sh. Udaykumar G. Nair S/o Sh. Gopal Krishna Nair,
aged 54 years R/o.: A/6, Mansi Apartment,
Nr. Hebron High School, Maninagar (E), Ahmedabad-380008.
4. Sh. Sandeep Kumar S/o Sh. Devnandan Prasad Sinha
aged 39 years R/o.: FE-604, Upvan Residency,
IOC Tragad Road, Chandkheda,
Ahmedabad-382424.
5. Sh. Pavankumar Pankaj S/o Sh. Arjun Prasad Yadav
aged 41 years R/o. E-402, Parth Avenue, Near ONGC,
Avani Bhavan, Chandkheda, Ahmedabad-382424.
6. Sh. Manish J. Sharma S/o Sh. Jivan Prakash Sharma
aged 54 years R/o.: E-369, Kalptaru Millenium Park,
Kalol Highway, Zundal (Gandhinagar)-382421.
All the applicants working as CTNL under DRM(E), ADI
... Applicants
Vs.
1. Union of India,notice to be served through,
Secretary/ Dy. Director,Pay Commission -VII & HRMS
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Ministry of Railway, Rail Bhavan,
New Delhi-110001.
2. General Manager, Western Railway,
Churchgate, Mumbai-400020.
3. Divisional Railway Manager, Western Railway,
Divisional Officer, Ashrwa,
Ahmedabad-382325.
4. Sr. Divisional Operating Manager (E),
Western Railway, Divisional Office, Ashrwa,
Ahmedabad-380019.
5. Madanlal Meena S/o. Umrao Meena
6. Bharat Kumar Chandubhai Mesariya
7. Satishkuma Yashwant Telkunte
8. Jatin Suthariya S/o. Ratubhai
All the respondent Nos. 5 to 08 working under DRM(E) ADI Respondent
No. 3 notice to be served through Divisional Railway Manager (E) Western
Railway Divisional Office, Ashrawa, Ahmedabad-380 0019.
... Respondents
OA No. 423/2025
1. Shri Vijay Bhatt S/o Sh. Narahari Prasad Bhatt
aged 55 years,working as CLS/ADI under DRM/ADI
R/o. D 102, Sahaj Solarium- 2, Nr. Kalupur Commercial Bank,
New Vasna, Ahmedabad-380007.
2. Shri Ajay Kumar Modi S/o Sh.Ambalal Modi
aged 53 years,working as CGS/LCH under DRM/ADI
R/o A/42, Astha Green Wood, C-Link Road,
Radhanpur Road, Panchot, Mehsana -384205
... Applicants
Vs.
1. Union of India, notice to be served through,
General Manager, Western Railway,
Churchgate, Mumbai-400020.
2. Divisional Railway Manager (E)
DRM Office, Western Railway, Nr.Chamunda Bridge, Asharva,
Ahmedabad-382345.
3. Jayantibhai R. Jadav Working as CBS/ADI
4. Jayantkumar Durgaprasad Working as CBS/ADI
5. Ramcharan Meena Working as CLS/ADI
6. Ramsingh Meena Working as CBS/ADI
7. Mukesh Chand Meena Working as CGS/SAU(MHPL)
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Resp. Nos. 3 to 7 notice to be served through Divisional Railway Manager
(E) DRM Office, Western Railway, Nr. Chamunda Bridge, Asharva,
Ahmedabad-382345. ...Respondents
OA No.222/2023
1. Shri Devendra K. Garg S/o Sh. Kishanlal Garg
aged 58 years R/o A/12, Rajeshwari Society, Ahmedabad - 382424
2. Shri Imran Kureshi S/o Sh.i Tufelbhai Kureshi
aged 43 years R/o. 844, Bharwadwas, Hana Desai Chali,
B/h. Gujarati School, Barejadi Ahmedabad -382435
Both the applicants working as CWMVI
(Chief Wagon Movement Inspector) under DRM(E), ADI.
... Applicants
Vs.
1. Union of India, notice to be served through,
General Manager, Western Railway,
Churchgate, Mumbai-400020.
2. Divisional Railway Manager,
Western Railway, Divisional Officer,
Ashrwa, Ahmedabad-380 019.
3. Sh. Parasmal Balram Patliya notice to be served through
Divisional Railway Manager (E)
Western Railway, Divisional Office, Ashrawa,
Ahmedabad-380 019 ...Respondents
Advocates :
Ms. S.S.Chaturvedi, for the applicants
Ms. R.R.Patel for official respondents in OAs No. 105, 200 & 423.
Mr. Dwijen Joshi for private respondents.
Mr. H.D.Shukla, for official respondents in OA No. 222.
ORDER
PER JAYESH V. BHAIRAVIA, MEMBER (J) In the instant group of OAs, being aggrieved with the instructions regarding application of reservation policy for grant of benefit of upgradation / promotion to Level-8 from Level-7 as stipulated in Railway Board‟s RBE No. 155/2022 dated 17.11.2022 and clarification issued by the respondents thereon, as also being aggrieved with the eligibility list/select list issued by JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 6 OA No.105/2023 and 3 connected OAs the respondents pursuant to the said instructions of RBE No. 155/2022, the applicants have filed the present O.As under Sec.19 of the Administrative Tribunal‟s Act, 1985 seeking relief(s) as prayed for in para 8 of the respective OAs.
2. In OA No. 105/2023, the applicants challenges the legality and validity of the Railway Board‟s policy as enumerated in RBE No. 155/2022 dated 17.11.2022 and the Eligibility list for promotion to the Group-„C‟ posts of SSE (C&W), ADI Division in Level-8 as well the clarification(s) issued by the Railway Board dated 01.12.2022.
In O.A No. 200/2023, the applicants challenges the legality and validity of the select/suitability list dated 27.06.2023 for upgradation in the pay matrix Level-8 for the post of CTNL (NG-Operating Division, ADI Division).
In O.A No. 222/2023, the applicants challenges the legality and validity of the select/suitability list dated 13.03.2023 for upgradation in the pay matrix Level-8 for the post of CWM-VI (Traffic Movement Department) ADI Division,.
In the O.A No. 423/2025, the applicants challenges the legality and validity of the select list dated 10.09.2025 for upgradation in the pay matrix Level-8 for the post of CCS (BLG), Commercial Department, ADI Division.
2.1 Since the issue involved in the aforesaid group of OAs, are identical and arises from a common set of facts, with the consent of learned counsel for the parties and for the sake of convenience and clarity, the pleading of O.A. No.105/2023 (Ramshanker Yadav & Ors. Vs. UOI & Ors.) is referred to as the lead case for adjudication.
Accordingly, the above captioned OAs are heard together and decided by this common Order.
3. Learned counsel Ms. S.S.Chaturvedi, Advocate, appears for the applicants and learned counsel Ms. R.R.Patel, appears for the official JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 7 OA No.105/2023 and 3 connected OAs respondents and learned counsel Mr. Dwijen Joshi, appears for the private respondents.
4. By filing O.A. No.105/2023, the applicants have sought the following reliefs:-
(i) Lordships be pleased to admit this petition. And be pleased to issue order quash and setting aside order bearing No. EM/890/1/C&W/SSE dated 11.03.2023 as Annexure A/1, Order bearing No. PC-VII/2019/RSRP/3 (RBE 155/2022) Dated 17.11.2022 as Annexure A/2 and PC-VII/2019/RSRP/3 Dated 01.12.2022 Annexure A/7. And be pleased to direct the respondent to issue the fresh eligibility list as per the seniority list with all consequential benefit.
(ii) That the Hon'ble Tribunal may be kindly pleased to call for the entire record of the selection file and quantified data of SC/ST and OBC data in possession of the respondent for its kind perusal.
(iii) Any other relief which the Hon'ble Tribunal deems fit.
(iv) That the Hon'ble Tribunal in the facts and circumstances of the present case may further be pleased to grant cost of the application to the applicant.
FACTS OF THE CASE
4. Brief facts of the case (OA No.105/2023) are as under:-
4.1 Vide Notification bearing No. EM/890/1/C&W/SSC dated 11.03.2023 the office of respondent No. 4 i.e. Divisional Office, Western Railway Ahmedabad notified the Eligibility List for promotion to the Group „C‟ post of SSE (C&W), Scale 9,300-34,800 + 4,800 GP in Level-8 (50% Upgradation from 4,600/-GP) Mechanical Department - C&W ADI Division [Annex.A./1] which is impugned herein.
4.2 The aforesaid eligibility list has been notified by following the instructions/directions contained in Railway Board Communication dated 17.11.2022 vide RBE No. 155/2022 (Annex.A/2), which is also impugned in the present O.A. The said RBE No. 155/2022 dated 17.11.2022, reads as under :-
JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 8 OA No.105/2023 and 3 connected OAs GOVERNMENT OF INDIA (BHARAT SARKAR) MINISTRY OF RAILWAYS/RAIL MANTRALAYА (RAILWAY BOARD) PC-VII No.200 RBE No. 155/2022 No. PC-VII/2019/RSRP/3 dated 17/11/2022 The General Manager/CAOs(R), All India Railways & Production Units, (As per mailing list) Sub: - Upgradation of pay structure of certain cadres.
Consequent upon approval conveyed by Ministry of Finance vide their ID Note No. 36(1)/E.III(B)/2015 dated 01.11.2022, the President has now accorded his approval for upgrading the pay structure of certain Group 'C' cadres of Ministry of Railways detailed in the list enclosed as Annexure-I in following manner :-
(i) Upgradation of 50% posts from Level-7 (PB-2/GP-4600)/Group 'C' to Level-8 (PB-2/GP-4800)/Group 'C.
(ii) Further upgradation of these 50% posts in Level-8 (PB-2/GP-
4800)/Group 'C to Level-9 (PB-2/GP-5400)/Group 'C' on non- functional basis after 4 years of service in Level-8(PB-2/GP- 4800).
2. Modalities governing above upgradation are enclosed as Annexure-II.
3. This issues with the concurrence of Finance Directorate of Ministry of Railways.
Encl: As above Sd/
Deputy Director, Pay Commission-VII & HRMS
Railway Board
4.3 The modalities governing the upgradation of pay structure have been provided in Annexs.-I to IV attached with the said RBE 155/2022. The Annex.-1 to the RBE No. 155/2022 provides the list of categories covered under upgradation, Annex.-II provides the details of effective date of the proposed upgradation and details about phases of implementation including other details such as Matching Saving etc., whereas, the Annex.-III & IV contains the OM dated 13.06.2011 issued by the Ministry of Finance, Department of Expenditure, on the subject - Cadre Restructuring of Group „C‟ Categories on Indian Railways and its Method of calculation of financial implications and the Pay Structure as per the VI CPC in respect to Levels 7-8 (Annex.A/2 Colly.).
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4.4 It is stated that subsequent to publication of the RBE No. 155/2022 dated 17.11.2022,the Railway Board issued clarifications vide letter dated 01.12.2022 (Annex.A/7) wherein it has been stated that there is no change in the classification or functional responsibilities with respect to the upgraded posts in Level - 8 and Level - 9 and the upgraded posts may be classified as non selection and may be filled up on the basis of seniority, scrutiny of service records and confidential reports, without holding any written test or viva voce. Further it has been mentioned therein that the practice being followed for promotion in Level-7 in respect of Vigilance and D&A clearance will be applicable for upgradation from Level - 7 to Level - 8 and Level - 8 to Level - 9 as per extant instructions. Further, it has been clarified that reservation will apply as per extant rules.
4.5 It is stated that before issuing the instructions / directions as contained in RBE No. 155/2022 and subsequent clarifications the respondents did not consider the seniority list of Group „C‟ employees working under Pay Level-7 [Mechanical (C&W)] and by applying the reservation policy had published the eligibility/select list dated 11.03.2023 (Annex.A/1 in OA 105/2023) for grant of upgradation from Level-7 to Level - 8 which resulted into non inclusion of applicants herein. Hence, being aggrieved the applicants along with other similarly placed employees have jointly submitted their representation dated 13.03.2023 (Annex.A/4) before the respondents and had brought to the knowledge about anomaly in the said eligibility list and the said eligibility list issued contrary to various instructions of the Railway Board on the subject of applicability of reservation in upgradation as well the same has been issued in violation of the DoP&T Guidelines on the subject. Therefore, requested the respondent No. 2 herein to correct the said eligibility list dated 11.03.2023 (Annex.A/1).
4.6 Since the respondent have not considered the aforesaid representation of the applicant and by applying the on merit concept for granting JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 10 OA No.105/2023 and 3 connected OAs reservation in respect to notified posts to be filled-up by upgradation have started the selection procedure by de-hors the rules and likely to declare the panel, hence, this O.A. CONTENTIONS OF THE APPLICANTS
5. The applicants in the above-mentioned Original Applications are aggrieved by the action of the respondent authorities in applying reservation while considering upgradation of pay structure from Pay Matrix Level-7 to Pay Matrix Level-8, in reference to the Railway Board Policy dated 17.11.2022 (RBE No.155/2022), resulting in non- empanelment of the applicants in the select list issued by the respondents.
5.1 Learned counsel for the applicants argued that the respondent authority while issuing the eligibility list dated 11.03.2023 (Annex. A-1 of OA No. 105/2023), deliberately inserted the word "promotion" along with "upgradation" with an apparent intention to create confusion. Several identical cases pertaining to different Railway Divisions have been filed before this Tribunal; however, in none of those cases does the select list mention the word "promotion." The mere use of the word "promotion" cannot convert the entire process into one of promotion, as the Scheme under which the selection has been carried out, namely RBE No.155/2022, clearly pertains to upgradation and not the „promotion‟.
5.2 It is further submitted that the clarification issued by the Railways in RBE No.155/2022 dated 01.12.2022 (Annex. A-7 of OA No. 105/2023) clearly establishes that there is no classification or change in functional responsibilities or duties with respect to the upgraded posts in Level-8 and Level-9. The process has been categorized as non-selection and is to be undertaken on the basis of seniority, scrutiny of service records, and Confidential Reports, without any written examination and/or viva voce. Therefore, it is submitted that when financial upgradation is granted with the objective of removing JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 11 OA No.105/2023 and 3 connected OAs stagnation, the same falls within the category of upgradation simpliciter and not promotion. However, the respondents in the present case, in spite of there is no change in duties or designation, and the process squarely falls within the ambit of upgradation simpliciter has decided to apply reservation while filling up the said upgraded posts which is not permissible under the law.
5.3 It is submitted that the Railway Board vide its communication dated 22.06.2022 informed all the General Manager (P) All Indian Railways about the clarification in respect to reservation in promotions - procedure to be followed prior to effecting reservations in the matter of promotions to the effect that fresh instructions had been issued vide Board‟s letter dated 13.04.2022 and 02.05.2022 in consonance with the DoP&T OM dated 12.04.2022, wherein, it has been advised to follow instructions / guidelines laid down in Board‟s letter dated 21.08.1997 with respect to maintenance of roster. Attention has been invited to para 10 of Annex. - 1 of the said letter dated 21.08.1997 wherein it has been mentioned that while operating the roster, persons belonging to communities for whom reservation has been made, but who are appointed on merit and not owing to reservation, should not be shown against reserved point and they will occupy the unreserved points. It was reiterated that as the Jarnail Singh batch of cases are still pending in the Hon‟ble Supreme Court any promotion order shall be subject to further orders that may be passed by the Hon‟ble Supreme Court in the said batch cases (Annexs.A/5 & 6 colly.) In this regard, it is submitted that the said Railway Board‟s circular is purely based on the promotional post - selection /non selection and applicability of reservation in promotion on a non selection post. In the present O.A., the grievance raised only on the short issue of whether the reservation policy can be made applicable in the matter of financial upgradation.
5.4 Learned counsel submitted that in the case of Bharat Sanchar Nigam Ltd. Vs. R. SanthakumariVelusamy & Others. [AIR 2011 SC 2012] JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 12 OA No.105/2023 and 3 connected OAs it has been held by Hon‟ble Supreme Court that upgradation can be restricted to a percentage of posts in a cadre with reference to seniority and would still remain an upgradation simpliciter. However, if there is a process involving comparative merit or suitability, it would amount to promotion. A mere screening to eliminate employees with adverse service records or punishments does not amount to selection and remains part of upgradation simpliciter. It is only where the process involves selection criteria akin to promotion that it would assume the character of promotion, even if termed otherwise.
However, the respondents in the present matters have made strenuous efforts to convert the process of upgradation into one of promotion by relying upon restructuring undertaken for financial purposes. However, the respondents have failed to place on record any material to demonstrate that new posts were created pursuant to such restructuring. On the contrary, the restructuring merely involves reclassification or surrender of posts, including reduction from lower levels for financial adjustment.
It is submitted that the Hon‟ble Supreme Court in the aforesaid judgment, has further held that where restructuring does not involve creation of additional posts but only placement of existing posts in a higher grade to relieve stagnation, the same does not amount to promotion and, consequently, does not attract reservation. In the present case, no new posts have been created. Rather, the Railway Board, vide RBE No. 48/2020 dated 02.07.2020 has imposed a freeze on creation of new posts for economic reasons. Therefore, the impugned orders are bad in law.
5.5 In support of the claim of the applicants, reliance has been placed on the following decisions of various Benches of this Tribunal and submits that the action of the respondents to provide reservation while granting financial upgradation has been deprecated. Therefore, the impugned orders in the present cases, are also bad in law. Learned JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 13 OA No.105/2023 and 3 connected OAs counsel for the applicant in this regard, has relied upon the following judgments :
(i) OA No.327/2023, Geeta S. Karipapoil vs. Union of India, decided on 01.12.2023, by the Mumbai Bench of this Tribunal, wherein the Tribunal allowed the said OA challenging the application of reservation in financial upgradation to Grade Pay Rs.4800 in circumstances identical to the present case;
(ii) OA No.503/2023 and other allied matters, decided on 01.04.2025 by the Hyderabad Bench of this Tribunal, wherein 18 matters involving identical issues were allowed, and the application of reservation in financial upgradation under RBE No.155/2022 was set aside
(iii) OA No.686/2024, M. Prakash vs. Union of India & Others, decided on 31.10.2025 by the Hyderabad Bench of this Tribunal, wherein the select list applying reservation in financial upgradation to Grade Pay Rs.4,800 was set aside; and
(iv) OA No.681/2023 & OA No. 771/2023, Manoj Dangadh & Another vs. Union of India & Others, decided on 19.12.2025 by the Jabalpur Bench of this Tribunal, wherein similar relief was granted by setting aside the application of reservation in financial upgradation under RBE No.155/2022.
5.6 Learned counsel by referring vide RBE No. 91/2018 dated 19.06.2018 and by referring DoP&T OM dated 15.06.2018 would argue that the Instructions were time and again issued that as per the Hon‟ble Supreme Court directions for the purpose of promotion the principle of "reserve to reserve‟ and „unreserve to unreserve‟ and the „own merit principle‟, applied (Annex.A/8). However, in the present case the posts in question are required to be filled up by way of upgradation and not by promotion hence the same is not applicable in the facts of the present case.
5.7 Further it is submitted that as per the Railway Board‟s Instructions dated 07.06.1974 for promotion to non selection post the list of JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 14 OA No.105/2023 and 3 connected OAs eligible candidates has to be drawn on the basis of strictly as per seniority of the eligible candidates. As far as SC/ST candidates are concerned, if they are not falling in the seniority of eligible candidates then SC/ST available in the lower seniority of that category can be picked up against the vacancy reserved for them. In case senior SC/ST fails, junior SC/ST may also be considered in continuation test.
5.8 Learned counsel by referring the Office Order dated 21.02.2023 issued by the Divisional Railway Manager (P) of East Coast Railways submits that while granting upgradation to the Chief Staff and Welfare Inspectors of Level - 7 to the post of Chief S&WI in Level-8 would argue that the said East Coast Railways while implementing the RBE 155/2022 had considered only the seniority of the officers maintained at Level - 7 and an order of upgradation for Level-8 has been issued (Annex.A-11). Therefore, in the case of the applicants the respondents ought to have considered only their seniority for the purpose of preparing eligibility list and the panel for upgradation of post from Level - 7 to Level - 8.
5.9 It is submitted that some of the private respondents herein were promoted and appointed on SC point at the relevant time vide their promotion order dated 23.04.2017, 11.04.2011, 23.05.2012 etc. and, therefore, now, it is not open for the respondents to consider them for purposes of grant of benefit of Level - 8 based on principal of own merit.
5.10 Therefore, learned counsel for the applicants would argue that the impugned orders are bad in law which deprive the legitimate right of the applicant to be considered for upgradation of their post from Level-7 to Level-8.
6. Learned counsel for the applicants has also filed common written notes of arguments in the present group of OAs and reiterated the aforesaid submissions.
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CONTENTIONS OF THE OFFICIAL RESPONDENTS
7. On receipt of notice issued by this Tribunal, the official respondents have filed their reply and denied the claim of the applicants.
7.1 Ms. R.R.Patel, learned counsel appearing for the official respondents submits that by way of the present OAs, the applicants have, in sum and substance, assailed the suitability lists issued in or about the year 2023 for placement from Pay Matrix Level-7 to Level-8 as well as the legality of the scheme/policy of upgradation of the post from Level - 7 to Level-8 as notified by the Railway Board dated 17.11.2022 (RBE No. 155/2022) as well the clarification issued by the Railway Board dated 01.12.2022.
However, during the pendency of the O.A, the applicant(s) by filing M.A. No.155/2022 in OA No. 105/2023 sought amendment in the OA including the prayer clause mainly on the ground that erroneously the applicant(s) has challenged the legality of entire policy as notified vide RBE No. 155/2022 dated 17.11.2022 and therefore the challenge be confined only to Clause (iii) of the clarification dated 01.12.2022 issued by the Railway Board in respect of RBE No. 155/2022. Thus, effectively, the challenge in O.A. No.105/2023 stands restricted to the eligibility list and clause (iii) of the clarification dated 01.12.2022.
7.2 Learned counsel also submitted that the policy dated 17.11.2022 provides for upgradation of pay structure of certain cadres, as enumerated in Annexure-1 thereto. The Scheme envisages upgradation of 50% of posts from Level-7 (PB-2/GP-4600) to Level-8 (PB-2/GP-4800), followed by further upgradation to Level-
9. The present OAs are concerned with the first stage, namely upgradation from Level-7 to Level-8. Annexure-2 to the policy lays down the modalities governing such upgradation, including date of effect, phases of implementation, review mechanism, matching savings, classification and designation, and pay fixation. Annexs.-III JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 16 OA No.105/2023 and 3 connected OAs and IV attached to RBE No. 155/2022 dealt with related aspects including financial implications.
7.3 It is further submitted that the Railway Board issued a clarification dated 01.12.2022 in response to queries from field units regarding implementation of the policy as enumerated in RBE No. 155/2022 dated 17.11.2022. The said clarification, inter alia, provides that:
(i) Though there shall be no change in classification or functional responsibilities/duties, the process shall be treated as non-selection and shall be undertaken on the basis of seniority, scrutiny of service records, and vigilance/disciplinary clearance;
(ii) Vigilance/D&A clearance shall apply as per extant instructions;
(iii) Reservation shall be applicable as per extant rules;
(iv) The number of posts for upgradation shall be determined as per the prescribed norms;
(v) Future direct recruitment shall be made only at Level-7;
(vi) Minimum residency period as applicable to promotion to non-selection posts shall apply;
(vii) Whole numbers shall be considered while upgrading posts;
(viii) Matching savings shall be achieved by surrendering equivalent posts;
(ix) In absence of adequate posts for surrender, upgradation cannot be implemented; and
(xii) Financial upgradation shall be counted against MACP entitlements.
7.4 Learned counsel for the official respondents submits that It is submitted that the Railway Board issued an additional clarification dated 14.07.2023 (Annex.R/3) on the applicability of reservation vide which it is clarified that:
(i) In cases of mass upgradation, reservation shall not apply;
and JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 17 OA No.105/2023 and 3 connected OAs
(ii) However, where only a portion of the sanctioned cadre strength is upgraded to a higher grade--whether an existing or newly created grade--resulting in increase in number of posts, reservation shall apply both to the lower grade and the upgraded posts.
7.5 Learned counsel thus argued that from a conjoint reading of the policy dated 17.11.2022 (RBE No. 155/2022) and the clarifications dated 01.12.2022 and 14.07.2023, it is evident that the scheme does not merely envisage upgradation simpliciter but is, in substance, a case of promotion. In this regard, learned counsel has emphasized the following aspects which according to the Railways are significant:
(a) The scheme is self-financing and expenditure-neutral, requiring matching savings through surrender of posts from lower levels.
This effectively results in creation of posts in Level-8 by reducing posts in Level-7 and below;
(b) The cadre strength at Level-8 is fixed at 50% of Level-7 strength. Consequently, once all posts at Level-8 are filled, no further employee can be accommodated unless vacancies arise, as in the case of regular promotions;
(c) There is provision for annual review of the scheme based on variation in cadre strength;
(d) The scheme operates on the basis of seniority, unlike ACP/MACP, which are time-bound and independent of seniority;
(e) Unlike ACP/MACP, which are based on completion of prescribed years of service, the present scheme does not follow such criteria;
(f) Employees already granted financial upgradation under MACP may again be placed in Level-8 under this scheme for purposes of further progression.;
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(g) A minimum residency period, as applicable to promotion to non- selection posts, is prescribed; and
(h) The methodology and procedure for filling upgraded posts is akin to that of promotion to non-selection posts.
7.6 Learned counsel also submitted that the Hon‟ble Supreme Court in UOI Vs. Pushpa Rani & Others (supra) examined a similar Railway Board policy dated 09.10.2003 concerning cadre restructuring. The Court considered provisions relating to reservation, pinpointing of posts, and matching savings, and framed the issue whether reservation could be applied at the stage of cadre restructuring. In paragraph 25 thereof, the Hon‟ble Supreme Court held that once additional posts arising out of restructuring are to be filled by promotion from eligible and suitable employees, there is no justification to exclude the applicability of reservation and further it has been held that matters relating to cadre restructuring, creation/abolition of posts, and prescription of recruitment methods fall within the domain of the employer, subject to limited judicial review.
The Hon‟ble Apex Court in the said judgment i.e. in Pushpa Rani‟s case (supra) held that the reservation is applicable to cadre restructuring undertaken pursuant to the said policy.
Thus, learned counsel for the respondents would argue that applying the ratio of the aforesaid judgment to the present scheme, though termed as upgradation, incorporates features akin to promotion and is limited to only 50% of posts. It is not a case of mass upgradation; rather, it is selective and conditional, and, therefore, reservation is applicable. The scheme cannot be treated as financial upgradation simpliciter.
7.7 Learned counsel further submitted that the Hon‟ble Supreme Court in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy & Ors. (supra), after considering earlier judgment rendered in the case of Pushpa Rani (supra), held that where there is an element of selection, JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 19 OA No.105/2023 and 3 connected OAs the process assumes the character of promotion and reservation would apply. In the present case, since there is scrutiny of service records and application of eligibility criteria, matching savings clause as stipulated in the scheme establishes the element of selection is present. Therefore, the instructions contained in the RBE No. 155/2022 and subsequent clarification to it are in consonance with the Articles 14 and 16 of the Constitution of India as well as the same are in compliance of the directions issued by Hon‟ble the Apex Court in the judgment referred hereinabove. Further, it is submitted that the impugned eligibility list/select list are therefore just and proper and the grievances raised by the applicant against it are not tenable in the eye of law.
7.8 So far as reliance placed by the applicants on the decision of the Hon‟ble CAT, Mumbai Bench in O.A. No.327/2023 is concerned, in the said case, the judgment in Pushpa Rani (supra) and the subsequent clarifications dated 01.12.2022 and 14.07.2023 were not brought to the notice of the Mumbai Bench of this Tribunal. The decision was rendered primarily on the ground that duties and responsibilities remained unchanged.
Further, subsequent to the said order, the CAT Mumbai Bench in an another O.A. No.248/2023, after considering the judgments in Pushpa Rani & BSNL (supra), as well as, the clarifications dated 01.12.2022 and 14.07.2023, vide order 19.01.2024 held that reservation is applicable where 50% posts are upgraded through restructuring involving matching savings. The Tribunal in the said order also distinguished the earlier decision in O.A. No.327/2023 on facts and dismissed the O.A. No.248/2023 by Order dated 19.01.2024.
7.9 Learned counsel also submitted that the contention of the applicants that the decision in O.A. No.248/2023 is per incuriam has been specifically rejected by the Tribunal, which held that the earlier decision in O.A. No.327/2023 was distinguishable. Therefore, the JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 20 OA No.105/2023 and 3 connected OAs later decision in O.A. No.248/2023 holds the field and has binding effect.
7.10 So far as subsequent decisions of the Bangalore and Jabalpur Benches of this Tribunal, relied upon by the applicants, do not carry binding force as they failed to consider the decision rendered in O.A. No.248/2023, which had comprehensively dealt with the policy, clarifications, and binding precedents of the Hon‟ble Supreme Court. Similarly, the decision of the Hyderabad Bench of this Tribunal in O.A. No.550/2023 and allied matters is distinguishable, as it proceeded on the premise that the entire cadre was upgraded without creation of new posts and held the decision in O.A. No.248/2023 to be per incuriam. It is submitted that such a finding is erroneous, as the present scheme clearly involves restructuring through matching savings and creation of posts in Level-8. In view of the aforesaid, learned counsel submitted that the policy dated 17.11.2022 and the clarifications dated 01.12.2022 and 14.07.2023 are in consonance with the law laid down by the Hon‟ble Supreme Court in Pushpa Rani (supra) and BSNL (supra). Since the present exercise is not a case of upgradation simpliciter, but involves elements of selection and restructuring, it partakes the character of promotion, and therefore, the principle of own merit-reservation is rightly made applicable by the respondents.
7.11 Lastly, Ms. R.R.Patel, learned counsel for the official respondents, submitted that in view of above submissions, the action of the respondent authorities in applying reservation while issuing the impugned suitability lists cannot be faulted and thus warrants no interference by this Tribunal in the matter and the present OAs deserves to be dismissed.
CONTENTIONS OF PRIVATE RESPONDENTS
8. Mr. Dwijen Joshi, learned counsel appearing for private respondent Nos. 4 to 6 submitted that the controversy involved in the present OAs does not pertain to the nomenclature of "upgradation" or "promotion," as both JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 21 OA No.105/2023 and 3 connected OAs terms can be used interchangeably. In paragraph 21 of the judgment in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy & Ors. [reported in (2011) 9 SCC 510], wherein the Hon‟ble Apex Court held that where there is advancement to a higher pay scale without change of post, the same may be described either as upgradation or as promotion to a higher pay scale. Therefore, merely because the term "upgradation" is used, it cannot be contended that the process does not amount to promotion. In fact, even in the impugned order, the respondents themselves have used the expression "promotion."
Further, in several other communications, the word "promotion" has consistently been used while implementing the policy. As such, the present case essentially involves grant of promotion as a result of cadre restructuring.
Learned counsel for the private respondents would argue that the following aspects are established while following the instructions contained in RBE No. 155/2022 and declaration of eligibility/select list for grant of benefit of pay matrix Level-8 to the eligible employees working under the pay matrix Level-7.
(i) The characteristics of promotion are satisfied;
(ii) The policy dated 17.11.2022 is similar in nature to the policy dated 09.10.2003 considered in Union of India Vs. Pushpa Rani & Ors; and
(iii) The present case is one of restructuring, resulting in promotions.
Therefore, the learned counsel submitted that the present scheme is not a case of upgradation simpliciter but amounts to promotion. Thus, unless posts are vacated by existing incumbents, whether by retirement or otherwise, employees lower in the seniority list cannot be granted the benefit of placement in the higher grade. This clearly indicates that availability of vacancies is a precondition, as in the case of regular promotions. Further, promotion is granted JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 22 OA No.105/2023 and 3 connected OAs after considering eligibility and suitability of candidates, wherein seniority, scrutiny of service records, and Confidential Reports are taken into account, as also reflected in the order dated 01.12.2022.
It is submitted that in the present case the process is not en masse and thus cannot be equated with ordinary upgradation granted uniformly. Additionally, candidates who have already been granted Level-8 under the MACP Scheme are again placed in Level-8 under the present scheme for the purpose of determining their position in the select list and consequential advancement to Level-9.
8.1 Learned counsel further submitted that a minimum residency period of two years is prescribed under the present Scheme, which is not a requirement in cases of upgradation under the MACP Scheme. Therefore, on these grounds, the scheme clearly partakes the character of promotion and not mere upgradation simpliciter.
8.2 In support of above submissions, the respondents have placed reliance on the judgment in Union of India vs. Pushpa Rani & Others, reported in (2008) 9 SCC 242, para 17 thereof reads as under:
"17. The relevant paragraphs of policy contained in Letter dated 9-10-2003 which is subject-matter of this litigation, also read as under:
"The Ministry of Railways have had under review cadres of certain Group C & D staff in consultation with the staff side with a view to strengthening and rationalising the staffing pattern on Railways. As a result of the review undertaken on the basis of functional, operational and administrative requirements, it has been decided with the approval of the President that the Group C & D categories of staff as indicated in the annexures to this letter should be restructured in accordance with the revised percentages indicated therein. While implementing these orders the following detailed instructions should be strictly and carefully adhered to:
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1.Date of effect (hereinafter referred to as cut-off date).--This restructuring of cadres will be with reference to the sanctioned cadre strength as on the date following the date on which the cadres in the headquarter offices of new Zonal Railways/new divisions are closed. The benefit of restructuring will be restricted to the persons who are working in a particular cadre on the cut-off date.
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3. Pay fixation [Rule 1313 (FR 22)-RII].--Staff selected and posted against the additional higher grade posts as a result of restructuring will have their pay fixed under Rule 1313 (FR 22)(I)(a)(1)-RII on pro forma basis w.e.f. the cut-
off date with the usual option for pay fixation as per extant rules. Actual payment based on the pay so fixed should be made from the date of taking over the charge of the higher grade post arising out of these restructuring orders. The benefit under this Rule will, however, no longer be available in the case of movement from lower grade to higher grade in the non-functional situations where there is no change in duties as in the case of movement from Goods Guards to Senior Goods Guards and Goods Drivers to Senior Goods Drivers, etc. In the case of such movement, the pay will be fixed under Rule 1313 (FR 22)(I)(a)(2)-RII. However, the benefit of fixation of pay under Rule 1313 (FR 22)(I)(a)(1)- RII will now be admissible in the cases of functional promotions such as promotion from Senior Goods Guards to Passenger Guards and Senior Goods Drivers to Passenger Drivers, etc. though in identical scale of pay.
4. Existing classification and filling up of the vacancies.-- The existing classification of the posts covered by these orders as „selection‟ and „non-selection‟, as the case may be, remains unchanged. Action should be taken to position the employees on the basis of selection/non-
selection/suitability/trade test, as the case may be. However, JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 24 OA No.105/2023 and 3 connected OAs the instructions contained in Para 13.2 should be followed in case of placement of Supervisors (erstwhile Mistris) to grade Rs 5000-8000.
5. Extant instructions for D&A/Vigilance clearance will be applicable for effecting promotions under these orders with reference to the cut-off date.
6. Minimum years of service in each grade.--While implementing the restructuring orders, instructions regarding minimum period of service for promotion issued from time to time should be followed. In other words, residency period prescribed for promotions to various categories should not be relaxed.
7. Basic functions, duties and responsibilities.--Since the cadres as detailed in the annexures to this letter are being restructured on functional, operational and administrative considerations, the posts being placed in higher scales of pay as a result of restructuring should include the duties and responsibilities of greater importance.
8. Adjustment of excess number of posts.--If prior to issue of these instructions the number of posts existing in any grade in any particular cadre exceeds the number admissible on the revised percentages, the excess be allowed to continue to be phased out progressively with the vacation of the posts by the existing incumbents.
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11.Introduction of direct recruitment (i) Ministerial staff (excluding Accounts staff) (ii) Personnel Inspectors (iii) Depot Material Superintendents.--The implementation of restructuring scheme in the categories of Ministerial staff, Personnel Inspectors and Depot Material Superintendents is subject to the introduction of direct recruitment in these categories. After implementation of the restructuring in accordance with the revised percentage distribution of posts indicated in the annexures enclosed, the vacancies arising in these categories on or after the cut-off date should be filled JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 25 OA No.105/2023 and 3 connected OAs through direct recruitment in the manner indicated hereunder:
11.1. An element of direct recruitment of graduates with not less than 50% marks shall now be introduced at the level of Office Superintendent Grade II in the pay scale Rs 5500-
9000 in the ministerial categories (Establishment & other than Establishment but excluding Accounts) to the extent of 20% of the posts. The remaining 80% of the posts in grade Rs 5500-9000 shall continue to be filled by promotion of staff from the lower grade Rs 5000-8000 as per the procedure in force.
11.2. 20% of the posts in grade Rs 6500-10,500 in the category of Personnel Inspectors shall be filled by direct recruitment from amongst the candidates possessing bachelor degree with postgraduate diploma in Personnel Management, Labour Laws, etc. as mentioned in Board's Letter No. E(NG)I-2002/PM4/1 dated 12-7-2002. The remaining 80% of the posts shall continue to be filled by promotion of staff from the lower grade of Rs 5500-9000 as per the procedure in force.
11.3. 20% of the posts in grade Rs 6500-10,500 in the category of Depot Material Superintendents should be filled by direct recruitment from amongst the candidates possessing qualification of degree in Engineering in any discipline. The remaining 80% of the posts shall continue to be filled by promotion of staff from the lower grade of Rs 5500-9000 as per procedure in force.
12.Gatemen (Engg.).--As a result of implementation of this restructuring, more number of additional posts will be available in the highest grade of this category. Henceforth, therefore, the posts of Gatemen (Engg.) should be operated in grade Rs 2750-4400. In order to ensure the full availability of Gatemen (Engg.) and rotation of the existing staff specially those who are working, as such, for a long period, the Trackmen, etc. at the time of their promotion to grade Rs 2750-4400 should be posted as Gateman (Engg.) subject to their fulfilling the requirement of prescribed JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 26 OA No.105/2023 and 3 connected OAs medical standard and literacy level, etc. as per extant instructions.
13. (a) Upgradation of the posts of Supervisor (erstwhile Mistris).--Subject to provisions of Para 13.2 below, all the posts of Supervisors (erstwhile Mistris) in grade Rs 4500- 7000 + Rs 100 special allowance [excluding Supervisors (P. Way)] should en bloc be upgraded to the posts of Junior Engineer Grade II in the pay scale of Rs 5000-8000 and merged with the respective cadre of Technical Supervisors with its spread effect in higher grades Rs 5500-9000, 6500- 10,500 and 7450-11,500 as per the revised percentage distribution of posts prescribed for Technical Supervisors in these orders.
13. (b) In case of Supervisor (P. Way), the posts being held by the erstwhile PWMs supervising more than one gang up to a maximum of 17.26% of the sanctioned cadre of PWMs shall be upgraded to and merged with the posts of Junior Engineer (P. Way) Grade II in the pay scale of Rs 5000- 8000 with its spread effect in higher grades of JE-I, SE & SSE in grades Rs 5500-9000, 6500-10,500 and 7450-11,500 respectively, as per the revised percentages prescribed for Technical Supervisors in these orders.
13.1. The financial implications involved in the upgradation covered by (a) & (b) above should be offset by surrender of posts of Supervisors of equivalent money value.
13.2. Procedure for fitment.--The placement of the existing incumbents will be regulated as per the procedure given below:
(a) The existing regular incumbents of the posts of Supervisors [including Supervisors (P. Way) to the extent of upgradation of posts] will be placed in grade Rs 5000-8000 without subjecting them to normal selection procedure.
Their suitability shall be adjudged by following modified selection procedure according to which the selection will be based on scrutiny of service records and confidential reports only.
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(b) The Supervisors (other than P. Way) who do not get promoted to grade Rs 5000-8000 shall continue to hold the post in the existing grade Rs 4500-7000 + Rs 100 SA as personal to them. To this extent, the posts upgraded to grade Rs 5000-8000 will be operated in the lower grade Rs 4500- 7000 + Rs 100 SA till the existing incumbents vacate the same by way of promotion, retirement, etc. On vacation of the posts, the same shall automatically be operated in grade Rs 5000-8000.
13.3. Specific provisions for Supervisor (P. Way).--The remaining posts of Supervisors (P. Way), erstwhile PWMs which are not to be upgraded and shall continue to be operated in the existing scale of pay, should be redesignated as „Track Supervisor‟.
13.4. While the existing incumbents of the post of Supervisor (P. Way) redesignated as „Track Supervisor‟ shall continue to draw the scale of pay Rs 4500-7000 + Rs 100 SA as personal to them, the future incumbents to the post of „Track Supervisor‟ will be in the pay scale of Rs 4500-7000 without the Special Allowance of Rs 100.
13.5. The upgradation of posts of Supervisor (P. Way) as indicated hereinabove should not result in creation of posts of Trolleymen. In other words, under no circumstances, would additional posts of Trolleyman be created.
14. Provisions of reservation.--The existing instructions with regard to reservation of SC/ST wherever applicable will continue to apply.
15. Direct recruitment percentages.--Direct recruitment percentages will not be applicable to the additional posts arising out of these restructuring orders as on the cut-off date. The direct recruitment percentage will apply for normal vacancies arising on or after the date following the cut-off date. Also the direct recruitment quota as on the date preceding the cut-off date will be maintained.
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16. Pinpointing of posts.--The administration should take steps to pinpoint the additional posts arising out of this restructuring as per administrative requirements.
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18. Matching savings.--Entire scheme of restructuring is to be a self-financing and expenditure neutral proposition. Financial implications should be worked out taking into account the midpoints of the scales of pay of the respective posts (mean of the minima and maxima of the scale), existing number of posts and revised number of posts in the grade on the basis of the revised percentage of distribution of posts. After working out the financial implications, the matching savings should be effected from the category itself. Wherever it is not possible to do so from the category itself, the matching savings should be arranged from the department at the divisional/zonal level. But before restructuring the cadre as per the revised percentage distribution of posts, matching savings will have to be ensured and if the Department/Railways are not able to provide the matching savings, the particular category/department will not be restructured. While effecting surrender of posts of equivalent financial value, the existing vacant posts available in the categories on the cut-off date should be considered for the purpose of offsetting the cost of restructuring/financial effects of restructuring. The Board desires that the General Managers should ensure that the restructuring is implemented expeditiously with matching savings without any exception and difficulty. There would be no restructuring without matching savings by surrender of posts.
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19. Reorganisation of Zonal Railways/divisions.--Due to reorganisation of Zonal Railways/divisions cadres are in a fluid situation. It may, therefore, take some time for the cadres in the headquarter offices of new zones and divisions to stabilise. In the circumstances, new Zonal Railways are required to ensure that the staff transferred to headquarter JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 29 OA No.105/2023 and 3 connected OAs offices of new Zonal Railways/new divisions are not extended the double benefit of restructuring. In case an employee has been given the benefit of restructuring on the old (parent) railway in terms of these orders, he will not be allowed the benefit of restructuring again on the headquarter offices of new Zonal Railways/new divisions. In other words, no railway servant will be considered for double promotion as a result of this restructuring."
(emphasized supplied) 8.3 Learned counsel further submitted that the policy dated 09.10.2003 considered in Pushpa Rani (supra) and the present policy i.e. RBE No.155/2022 dated 17.11.2022 are similar in character and modality such as procedure for fitment, provision for reservation, pinpointing post as well matching saving by way of surrendering Level -7 and Level -6 to achieve the object of to grant benefit of Level-8 restricted to only 50% of Level-7 posts holders employees. He reiterated that in the present scheme i.e. RBE No.155/2022 stipulates that for grant of benefits of Level-8, the incumbent shall have minimum five years of qualifying service in Level-7 and the scheme also provides for restructuring by way of matching savings which involves surrender of post from several levels including levels-7 & 6 and thereby the post for Level-8 has been created / organized. Since, there is a creation of new setup / new posts in Level-8 by surrendering matching saving, under the circumstances, the respondents had rightly applied the reservation policy by following the dicta laid down by Hon‟ble the Supreme Court as referred hereinabove.
8.4 Further, the procedure for fitment, as noted in Pushpa Rani (supra), provides that existing incumbents are to be placed in the higher grade without undergoing the normal selection process, but subject to a modified selection procedure based on scrutiny of service records and Confidential Reports. A similar mechanism is provided in the present policy dated 17.11.2022 and its implementation instructions. As such, akin to Pushpa Rani (supra), the present policy also involves "pinpointing" of posts. As reflected in paragraph 8 of the JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 30 OA No.105/2023 and 3 connected OAs Miscellaneous Application, posts are identified in advance and candidates, upon promotion, are dislocated and posted against such earmarked posts.
In the Ahmedabad Division, such an exercise has been carried out, and details of postings after such pinpointing in respect to promotion to Level-8 were granted by surrendering a number of posts from Level-1 to Level-7. In this regard, learned counsel placed reliance on a comparative chart of creation and surrender of posts to implement the scheme under RBE No. 155/2022 in various departments of ADI Division. According to the learned counsel to create 578 posts in Level-8, the respondents have surrendered 653 posts in Level-7 to Level-1. Thus, upon promotion to Level-8, employees are transferred to specific Units/Stations, where corresponding posts exist.
8.5 Learned counsel for private respondents further submitted that the concept of ―matching savings‖ is incorporated in Annexure-II attached to RBE No. 155/2022 dated 17.11.2022. This indicates that the scheme is financially neutral, requiring surrender of posts for creation of higher-grade posts. Therefore, all three essential features identified in Pushpa Rani (supra) are present in the instant case.
8.6 Learned counsel emphasized that the concept of "matching savings"
has been emphasized in para 18 of the Pushpa Rani‟s judgment (supra) wherein it has been held that restructuring must be implemented with matching savings through surrender of posts. The relevant portion of the said para states that there can be no restructuring without such savings.
In the present case also, restructuring has been carried out by way of matching savings which involves surrender of posts across various levels, including Level-6 and Level-7, to create additional posts in Level-8. For this purpose, reliance is placed on the Office Memorandum dated 16.03.2023 which indicates that 26 posts from Level-7 and 5 posts from Level-6 were surrendered and reallocated to JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 31 OA No.105/2023 and 3 connected OAs Level-8. This demonstrates that additional posts at Level-8 have been created through restructuring.
8.7 Learned counsel thus argued that Level-8, is a newly created grade for the cadre of Chief Office Superintendents (CHOS), as, Level-7 was previously the highest grade. Therefore, the present exercise in the present case is amount to promotion consequent upon restructuring. It is submitted that in the case of Pushpa Rani (supra) also involves element of restructuring and therefore, policy of reservation was applicable, in this regard para 56 of the judgment in Pushpa Rani (supra) has been relied upon.
8.8 Reliance has also been made on paragraph 21(v) of Bharat Sanchar Nigam Limited vs. R. Santhakumari Velusamy & Others (2011) 9 SCC 208, wherein the Hon‟ble Apex Court held that ―where restructuring results in creation of additional posts and such posts are filled based on eligibility conditions, the rule of reservation is attracted.‟ In the present case also, the creation of additional posts through matching savings clearly brings the matter within the ambit of the said principle.
8.9 Learned counsel further argued that irrespective of nomenclature, where restructuring results in creation of posts and filling them based on eligibility, the exercise is in substance one of promotion, attracting reservation. In the present case also, the substance of the exercise clearly indicates that it is a case of promotion. In support of above contentions, reliance is also placed on the decision of the Mumbai Bench of this Tribunal in OA No. 248/2023, wherein it has been held that creation of 50% posts in Level-8 through restructuring and matching savings attracts the rule of reservation.
8.10 Learned counsel further submitted that in the cadre of Traffic Controller, pursuant to implementation of policy dated 17.11.2022 (RBE No.155/2022), Level-8 has been newly created, and placement JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 32 OA No.105/2023 and 3 connected OAs therein is to be made exclusively by way of promotion from Level-7 on the basis of seniority-cum-suitability. The communication dated 25.06.2025 clearly establishes that 100% of placements in Level-8 are by way of promotion.
8.11 Lastly, Mr. Joshi, learned counsel for the private respondents, submitted that in cases of restructuring, as held in Pushpa Rani and reiterated in BSNL Vs. Velusamy (supra), satisfaction of "conditions of eligibility" is sufficient to determine suitability, and a full-fledged selection process is not necessary. In the present case also, eligibility conditions have been prescribed in the Railway Board communication dated 01.12.2022 and thus the requirement of suitability stands satisfied. As such, the present exercise is one of promotion arising out of cadre restructuring, and consequently, the application of reservation is valid and in accordance with law.
REJOINDER
9. In rebuttal, learned counsel for the applicants besides reiterating the contentions as noted above, submitted that the reliance placed by the respondents on the judgment of the Hon‟ble Supreme Court in Pushpa Rani is misplaced and distinguishable on facts. In Pushpa Rani (supra), the policy dated 19.10.2003 pertained to restructuring by merging Group „C‟ and Group „D‟ posts to create a new cadre, thereby involving a change in cadre structure. The policy itself clarified that such instructions would not apply in cases where there is no change in duties or designation. In the present case, there is no change in cadre, duties, or designation. The exercise undertaken is purely for financial upgradation to address stagnation. Hence, the said judgment does not support the case of the respondents. Further, it is submitted that the judgment passed by Hon‟ble Apex Court in the case of BSNL (supra) apply in the facts of the present case and the order passed by CAT, Mumbai Bench in OA No. 327/2023 as well the CAT, Hyderabad Bench. The respondents have erroneously interpreted the instructions contained in the subsequent clarification JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 33 OA No.105/2023 and 3 connected OAs dated 14.07.2023. According to the learned counsel there is no creation of any new post under the scheme of RBE No.155/2022 therefore; the impugned orders are bad in law.
ANALYSIS
10. We have heard learned counsel for the parties and carefully perused the material on record as well as the judgments on which reliance has been placed by the parties.
11. Having regard to the submissions of the respective parties and the pleadings on record, we observe that the applicants in the present batch of OAs are working under the Railways with Pay Matrix Level
7. The Railway Board issued a policy dated 17.11.2022 (RBE No. 155/2022) providing for upgradation of pay structure of certain cadres, inter alia, by upgrading 50% of posts from Pay Matrix Level- 7 to Level-8. The said policy is supplemented by clarifications dated 01.12.2022 and 14.07.2023, which, inter alia, stipulate:
o The process is to be undertaken on the basis of seniority subject to scrutiny of service records;
o Minimum residency period applicable to promotion to non-selection posts shall apply;
o The scheme is to be implemented through matching savings, i.e., by surrender of posts of equivalent financial value; and o Reservation shall apply where only a part of the cadre strength is upgraded, resulting in increase in posts in the higher grade.
11.1 Pursuant to the aforesaid policy and clarifications, the respondents issued suitability/Selection lists in the year 2023 for placement from Level-7 to Level-8, wherein reservation was applied. The applicants, being aggrieved by their non-empanelment in the said suitability/Select lists, have challenged the action of the respondents primarily on the ground that the exercise is upgradation simpliciter and not promotion, and, therefore, reservation is not applicable. It is JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 34 OA No.105/2023 and 3 connected OAs stated that there is no change in designation or duties in the upgraded posts; the number of posts in Level-8 is restricted to 50% of the cadre strength of Level-7; the scheme involves matching savings through surrender of posts from lower levels; placement is based on seniority-
cum-suitability, including scrutiny of service records as well.
12. Thus, upon consideration of the pleadings and submissions, we find that the following issues arise for adjudication in these cases:
(i) Whether the upgradation from Pay Matrix Level-7 to Pay Matrix Level-8 under the policy dated 17.11.2022 is a case of "upgradation simpliciter" or contributes the character of "promotion"?
(ii) Whether the application of reservation in the said process is legally sustainable and whether the impugned policy i.e RBE No.155/2022 dated 17.11.2022 and clarifications thereon issued by the Railway Board are tenable in eye of law?
(iii) Whether the impugned suitability/ select lists suffer from any illegality warranting interference by this Tribunal?
13. With regard to issue (i) as noted in para 12 above, i.e., whether the upgradation from Level-7 to Level-8 under the policy dated 17.11.2022 is a case of "upgradation simpliciter" or partakes the character of "promotion", we observe that the principal contention of the applicants is that the said scheme is one of financial upgradation simpliciter, as there is no change in duties, designation, or functional responsibilities. However, a holistic examination of the policy dated 17.11.2022 and its clarifications reveals otherwise. Firstly, the scheme is not a blanket or en masse upgradation, but is restricted to only 50% of the cadre strength. This necessarily implies that not all employees in Level-7 would be entitled to placement in Level-8, and such placement is contingent upon availability of vacancies. This feature is a hallmark of promotion. Secondly, the scheme incorporates eligibility conditions, including:
Minimum residency period; Vigilance and disciplinary clearance; Scrutiny of service records and Confidential Reports. These elements JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 35 OA No.105/2023 and 3 connected OAs introduce a degree of selection/suitability, albeit limited, which distinguishes the scheme from a pure time-bound financial upgradation such as ACP/MACP Schemes. Thirdly, the requirement of matching savings through surrender of posts clearly indicates that the exercise results in restructuring of the cadre, leading to redistribution of posts across different levels. Such restructuring cannot be equated with mere financial upgradation.
13.1 It is profitable to refer the judgment of the Hon‟ble Supreme Court in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy & Others [reported in (2011) 9 SCC 510] wherein, the Hon‟ble Apex Court held that where advancement to a higher pay scale involves an element of selection or is linked to availability of posts, the same may assume the character of promotion, irrespective of nomenclature. The relevant paras of the said judgments are reproduced as under:-
"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(4-A) 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 the 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, the reservation provisions would not apply. [See All India Non- SC/ST Employees' Assn. (Railway) v. V.K. Agarwal [(2001) 10 SCC 165 : 2002 SCC (L&S) 688] and Union of India v. V.K. Sirothia [(2008) 9 SCC 283 : 1999 SCC (L&S) 938 (cited order)] .] * * * *
22. But even in cases where no additional posts were created, but where a process of selection was involved in the upgradation, JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 36 OA No.105/2023 and 3 connected OAs the process has to be considered not as an upgradation simpliciter, 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 [(1999) 7 SCC 251 : 1999 SCC (L&S) 1275] 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 [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] .
* * * *
26. In view of the decisions in DayaramAsanandGursahani [(1984) 3 SCC 36 : 1984 SCC (L&S) 341 : (1984) 2 SCR 703] , Fateh Chand Soni [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] and Ram Prasad [(1999) 7 SCC 251 : 1999 SCC (L&S) 1275] , the position that emerges is that even where the upgradation does not involve appointment to a different or higher post, but is as a result of a promotional process involving selection, then the principles of reservation are attracted.
27. In Union of India v. Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851] this Court examined the entire case law and explained the difference between upgradation and promotion thus:
(SCC pp. 244h-245h) "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 JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 37 OA No.105/2023 and 3 connected OAs 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 recognised 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 rationalise the staffing pattern. For this purpose, the Ministry of Railways undertook review of certain cadres. The basis of the review was functional, operational 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 JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 38 OA No.105/2023 and 3 connected OAs posts for the Scheduled Castes and Scheduled Tribes 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."
28. In Pushpa Rani [(2008) 9 SCC 242 : (2008) 2 SCC (L&S) 851] , 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 by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the 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 advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 39 OA No.105/2023 and 3 connected OAs dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include 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 simpliciter 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 simpliciter. 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 JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 40 OA No.105/2023 and 3 connected OAs leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. 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.
(v) Where the process is an upgradation simpliciter, there is no need to apply the rules of reservation. But where the upgradation involves a selection process and is therefore a promotion, the 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.
30. In this case, the BCR Scheme did not involve creation of additional posts but merely restructured the existing posts as a result of which 10% of the posts in Grade III were placed in a higher grade (Grade IV) to give relief against stagnation. This is evident from the terms of the BCR Scheme and the clarification contained in the Letter dated 7-5-1993 that no posts were sanctioned, as far as 10% BCR was concerned."
13.2 Further, in Union of India Vs. Pushpa Rani & Others (supra), the Hon‟ble Apex Court held that where additional posts arise out of restructuring and are filled based on eligibility and suitability, the exercise partakes the character of promotion. The relevant paras of the said judgment are reproduced as under:-
"30. From what we have noted above, it is clear that the policies contained in Letters dated 25-6-1985 and 9-10-2003 are substantially dissimilar. The exercise of restructuring envisaged in the first policy was in the nature of upgradation of substantial number of posts in different cadres and the upgraded posts were to be filled simply by scrutinising the service records of the employees without holding any written JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 41 OA No.105/2023 and 3 connected OAs and/or viva voce test and there was no merit-based selection. In contrast, the restructuring exercise envisaged in Letter dated 9-10- 2003 resulted in creation of additional posts in some cadres with duties and responsibilities of greater importance and which could be filled by promotion from amongst the persons fulfilling the conditions of eligibility and satisfying the criteria of suitability and/or merit. Para 13 of Letter dated 9-10-2003 is, in itself, demonstrative of the difference between simple upgradation of posts in the cadre of Supervisors which are required to be filled without subjecting the incumbents of the posts to normal selection procedure whereas the additional posts becoming available in other cadres are required to be filled by promotion.
31. In legal parlance, upgradation of a post involves the transfer of a post from the lower to the 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 -- D.P. Upadhyay v. N.R. Baroda House [(2002) 10 SCC 258 : 2003 SCC (L&S) 250] .
32. The word "promotion" means "advancement or preferment in honour, dignity, rank or grade". "Promotion" thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law the expression "promotion" has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post" -- State of Rajasthan v. Fateh Chand Soni [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] .
33. Once it is recognised that the additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst the employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of the policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion. In Fateh Chand Soni case [(1996) 1 SCC 562 : 1996 SCC JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 42 OA No.105/2023 and 3 connected OAs (L&S) 340] this Court interpreted the provisions contained in the Rajasthan Police Service Rules, 1954, which regulate appointment to the selection scale in the service and held that such appointment constitutes promotion. The Court then considered two earlier judgments in Lalit Mohan Deb v. Union of India [(1973) 3 SCC 862 : 1973 SCC (L&S) 272] and Union of India v. S.S. Ranade [(1995) 4 SCC 462 : 1995 SCC (L&S) 1033 : (1995) 30 ATC 559] and declared that the High Court was in error in holding that appointment to the selection scale does not constitute promotion.
34. In Ram Prasad v. D.K. Vijay [(1999) 7 SCC 251 : 1999 SCC (L&S) 1275] it was submitted that the view taken in Fateh Chand Soni case [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] requires reconsideration because the same is inconsistent with the latter judgments in Ajit Singh Januja v. State of Punjab [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] and Ajit Singh (II) v. State of Punjab [(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] . While rejecting this plea, the Constitution Bench observed: (Ram Prasad case [(1999) 7 SCC 251 : 1999 SCC (L&S) 1275] , SCC p. 255, para 15) "15. The contention of Shri Gopal Subramanium for the general candidates that appointment from senior scale to selection scale is not a promotion and that Fateh Chand Soni [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] requires reconsideration in view of the judgments in Union of India v. S.S. Ranade [(1995) 4 SCC 462 : 1995 SCC (L&S) 1033 : (1995) 30 ATC 559] and Lalit Mohan Deb v. Union of India [(1973) 3 SCC 862 : 1973 SCC (L&S) 272] cannot be accepted. We are unable to agree. We find that both these cases have been referred to and explained in Fateh Chand Soni case [(1996) 1 SCC 562 : 1996 SCC (L&S) 340] . Therefore, the reserved candidates are entitled to be promoted to the selection scale by way of the roster points. But this has to be done in the manner mentioned in R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 :
(1995) 29 ATC 481] . The appeal of the general candidates has to fail."
(emphasis supplied)
35. A careful reading of the policy contained in Letter dated 9-10-2003 shows that with a view to strengthen and rationalise the staffing pattern, the Ministry of Railways had undertaken review of certain cadres. The basis of the review was functional, operational and administrative requirement of the Railways. This exercise was intended to improve the efficiency of administration by providing incentives to the existing employees in the form of better promotional avenues and at the same time requiring the promotees JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 43 OA No.105/2023 and 3 connected OAs to discharge more onerous duties. The policy envisaged that additional posts becoming available in the higher grades as a sequel to restructuring of some of the cadres should be filled by promotion by considering such of the employees who satisfy the conditions of eligibility including the minimum period of service and who are adjudged suitable by the process of selection. This cannot be equated with upgradation of posts which are required to be filled by placing the existing incumbents in the higher grade without subjecting them to the rigor of selection.
36. In view of the above discussion, we hold that the Railway Board did not commit any illegality by directing that the existing instructions with regard to the policy of reservation of posts for Scheduled Castes and Scheduled Tribes will apply at the stage of effecting promotion against the additional posts and the Tribunal committed serious illegality by striking down Para 14 of Letter dated 9-10-2003.
37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that 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 the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The 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 due to 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.
* * *
59. An analysis of orders passed by the Tribunals and this Court shows that all cases except that of K. Manickaraj case [(1997) 4 SCC 342 : 1997 SCC (L&S) 949] 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 JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 44 OA No.105/2023 and 3 connected OAs 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."
13.3 Applying the aforesaid principles, in the present case as noted hereinabove, undisputedly as per the terms of the scheme under RBE No.155/2022, the process for grant of benefit of upgrading the pay structure of 50% posts from Level-7 (PB-II GP-4600)/ Group-„C‟ to Level-8 (PB-II GP-4800)/ Group-„C‟ involves a process of selection which includes minimum service of five years in Level-7, vigilance clearance of each incumbents, the seniority as well as by applying the criteria of matching saving by surrendering Level-7 to Level-6 posts and thereby restructuring the cadre for Level-8 and thereby the benefit of upgradation or benefit of advancement to a higher pay scale has been provided. Thus, this Tribunal is of the considered view that the present scheme, though termed as "upgradation of pay structure of certain cadres", cannot be treated as upgradation simpliciter, but is in substance a promotion arising out of cadre restructuring. Thus, the issue (i), is answered accordingly.
14. With regard to the issue (ii), as noted in para 12 above i.e., whether the application of reservation in the said process is legally sustainable and whether the impugned policy i.e. RBE No.155/2022 dated JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 45 OA No.105/2023 and 3 connected OAs 17.11.2022 and clarifications thereon issued by the Railway Board are tenable in eye of law? is concerned, we observe that once it is held that the exercise partakes the character of promotion, the next question is whether reservation is applicable. The clarification dated 14.07.2023 issued by the Railway Board makes a clear distinction that in cases of mass upgradation, reservation shall not apply; and in cases where only a portion of the cadre is upgraded, resulting in increase in posts, reservation shall apply. The relevant portion of the said clarification dated 14.07.2023 provides as under:-
"(i) In cases of Mass Upgradation, where a grade of whole cadre is upgraded from exiting grade to higher grade and where all the incumbents are placed in a higher grade, without creation of new posts, then the reservation shall not applicable; and
(ii) However, in a cases, where a portion of the sanctioned cadre strength is upgraded to an existing higher grade in that category or new higher grade, resulting in increase in number of posts, reservation is to be applied to parted strength in lower grade and the upgraded posts."
14.1 In the present case, admittedly, only 50% of Level-7 posts are upgraded and the scheme involves creation of posts in Level-8 through matching savings. Thus, the present cases squarely fall within the second category envisaged in the clarification dated 14.07.2023.
14.2 The law laid down by the Hon‟ble Supreme Court in Pushpa Rani (supra) is unequivocal that reservation is applicable to cadre restructuring exercises where additional posts are created and filled by promotion. Similarly, in BSNL Vs. R. Santhakumari Velusamy & Ors.(supra), it has been held that where restructuring results in creation of posts and filling them based on eligibility, reservation would be attracted. Thus, the contention of the applicants that no new posts are created is untenable.
JITENDRA RAJ 2026.04.13
MEHTA 13:04:28+05'30'
46 OA No.105/2023 and 3 connected OAs
It is apt to mention that creation of posts through reallocation and matching savings is a recognized mode of cadre restructuring and cannot be ignored merely because it is financially neutral. As such, we hold that the application of reservation by the respondents is in consonance with the policy as well as settled legal principles. Accordingly, this issue (ii) is answered accordingly.
15. With regard to issue (iii), as noted in para 12 above i.e., whether the impugned eligibility list / select lists suffer from any illegality warranting interference by this Tribunal, in this regard, it is required to mention that it emerges from the record that pursuant to the terms of the scheme notified by the Railway Board vide RBE No.155/2022 dated 17.11.2022 and subsequent clarification dated 01.12.2022 and 14.07.2023 notified the eligibility list for grant of benefit of the higher pay scale of Level-8 to the 50% posts from Level-7 and on found fit to the selection criteria under the said Scheme of RBE No.155/2022 had published the select list of the eligible employees by applying the policy of reservation.
However, as noted hereinabove, the applicants herein raised grievance only with regard to application of the reservation while granting benefits of the Scheme of RBE No.155/2022 on the ground that the said scheme provides upgradation simpliciter and not a promotion. To sustain the said claim, the learned counsel for the applicant had relied upon certain decisions of coordinate benches of this Tribunal including the order passed in OA No.327/2023 dated 01.12.2023 by CAT Mumbai Bench, an order passed by CAT Hyderabad Bench in OA No.503/2023 and other orders passed by the different benches of this Tribunal. Per contra; the respondents had also relied upon various orders passed by the coordinate bench of this Tribunal on the subject including the order passed by CAT Mumbai Bench in OA No.248/2023 decided on 19.01.2024. Further, it can be seen that both the parties relied upon the judgment passed by the JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 47 OA No.105/2023 and 3 connected OAs Hon‟ble Apex Court in the case of Pushpa Rani (supra), BSNL Vs. R. Santhakumari (supra) as referred hereinabove.
15.1 At this stage, it is apt to mention that the decision in O.A. No.327/2023 dated 01.12.2023 passed by coordinate Mumbai bench (relied upon by the applicants) did not consider the clarifications dated 01.12.2022 and 14.07.2023 issued by the Railway Board in connection with the scheme i.e. RBE No.155/2022 dated 17.11.2022, nor the binding ratio in Pushpa Rani (supra) in its proper perspective; however, in the later decision passed by CAT Mumbai Bench in O.A. No.248/2023 dated 19.01.2024, the said coordinate bench after considering the entire legal framework has upheld the applicability of reservation in an identical scheme by referring the law laid down by Hon‟ble Apex Court in the case of BSNL v/s. R. Santhakumari (supra), Dayaram Asanand Gursahani v/s. State of Maharashtra & Ors., reported in (1984) 3 SCC 36 : 1984 SCC (L&S) 341, Rama Prasad V/s. D.K.Vijay (1999) SCC (L&S) 1275, Pushpa Rani (supra), Jarnail Singh & Ors. v/s. Lachhminarayan decided on 28.01.2022 in Civil Appeal No. 629/2022 reported in (2022) 10 SCC 595 and the judgment passed by the 3-Judge Bench of the Hon‟ble Supreme Court in the case of Rama Nand & Ors. v./s Chief Secretary, Govt. of NCT of Delhi, reported in (2020) 9 SCC 208, and held that the process of declaration of eligibility list / suitability list in terms of RBE No.155/2022 and the subsequent clarification dated 01.12.2022 and 14.07.2023 are binding on the respondents and the objections against the implementation of the said policy i.e. RBE No.155/2022 was rejected.
15.2 It is notice that Hon'ble Supreme Court in the case of Rama Nand & others (supra) the 3-Judge Bench while considering the issue whether the benefits accruing to the appellants therein as a consequence of the reorganization scheme of wireless and communication system could be said to given them the benefit of a promotion and whether they were still entitled to a financial upgradation on account of ACP JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 48 OA No.105/2023 and 3 connected OAs Scheme, had considered and relied upon the judgment passed in cases of Pushpa Rani (supra) and BSNL Vs. R. Santhakumari (supra) and by recording the finding that the consequence of reorganization of the cadre resulted in not only a mere re-description of the post but also much higher pay scale being granted to the appellants based on an element of selection criteria. Since there is a requirement of minimum five years service, thus, all Telephone Operators would not automatically eligible for the new posts. Further, the financial emoluments are much higher and the said Telephone Operators can be said to be eligible for such new post and higher pay scale on completion of training. All these cannot be stated to be only an exercise of merely re-description or re-organization of the cadre. Thus, in terms of the law laid down in the case of BSNL (supra) the process involved in grant of higher pay scale was not treated as upgradation simpliciter as claimed by the appellant therein and held that the said selection process is also in nature of promotion and upheld the judgment passed by the Hon‟ble High Court disentitling the appellant therein to the benefits of the ACP Scheme.
15.3 In the present case, as discussed hereinabove, there exists re-
description of 50% posts of Level-7 as post of Level-8 that also much a higher pay scale based on an element of selection criteria such as a requirement of minimum five years of service, vigilance clearance, thus, all the employees who are under Pay Matrix Level-7 would not automatically eligible for new posts but the employees who met with the selection criteria will be eligible for grant of benefit of Level-8. Therefore, all these elements involved in the process for implementing the scheme under RBE No.155/2022 and consequent upon declaration of eligibility/ suitability of the selection list is in consonance with the terms of the scheme and also involved a character of promotion in light of law laid down by 3-Judge Bench of Hon‟ble Apex Court in the case of Rama Nand (supra).
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15.4 Therefore, the decisions relied upon by the applicants herein, as noted above, being distinguishable on facts and the same is rendered without considering relevant material, hence, do not advance their cases.Whereas at the same time, we are in agreement with the reasoning adopted in O.A.No.248/2023 passed by coordinate Mumbai Bench since the same are in consonance with the binding law laid down by a 3-Judges Bench of the Hon‟ble Apex Court in case of Ram Nand (supra) as well Pushpa Rani (supra) and BSNL (supra).
15.5 In the absence of any procedural irregularity or violation of statutory provisions, the impugned eligibility list/ suitability list/ select list issued by the respondents cannot be said to suffer from any illegality or arbitrariness. The Issue (iii) is also answered accordingly.
16. Although, the learned counsel for the applicants has urged that in the event this Tribunal is not inclined to follow the judgments rendered by the Coordinate Benches referred to hereinabove, the matter ought, in the fitness of things, to be referred to a Full Bench for an authoritative pronouncement on the issues involved, but, we are unable to accede to the said submission. The reasons are obvious that it is a settled principle of judicial discipline that a reference to a Full Bench is warranted only when there exist a direct conflict of coordinate Bench decisions on identical issues and materially similar facts, or where the Bench, for cogent reasons, is unable to agree with the ratio laid down in an earlier binding precedent. Mere existence of different outcomes, without a demonstrable conflict on law, does not ipso facto necessitate such reference.
16.1 In the present case, as discussed in the foregoing paragraphs, the decision rendered in O.A. No.327/2023 by the CAT, Mumbai Bench and other orders relied upon by the counsel for the applicants is clearly distinguishable on facts, inasmuch as the relevant Railway Board clarifications dated 01.12.2022 and 14.07.2023, as well as the binding dicta laid down by a 3-Judges Bench of the Hon‟ble Apex Court in case of Rama Nand (supra) were neither brought to the JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 50 OA No.105/2023 and 3 connected OAs notice nor considered by the said Bench. Further after referring judgment Pushpa Rani (supra) and BSNL Vs. R. Santhakumari Velusamy & Ors.(supra) a 3-Judges Bench of the Hon‟ble Apex Court gave its judgment in Rama Nand‟s (supra) case.
It is apt to mention that the later decision in O.A. No.248/2023 passed by the CAT Mumbai Bench wherein it has comprehensively examined the entire policy framework, the subsequent clarifications, and the governing law laid down by the Hon‟ble Apex Court in Rama Nand (supra) as well as in Pushpa Rani (supra) and BSNL. (supra) cases and had also dealt with the observation passed in OA No. 327/2023, thereafter, the Bench has returned findings after due consideration thereof. Thus, the dicta laid down by Hon‟ble Apex Court more particularly, by a 3- Judges Bench judgment in Rama Nand‟s case, Pushpa Rani and BSNL, has been followed which in our considered view hold the field and accordingly same has been followed herein as well.
16.2 It is trite law that a judgment rendered in ignorance of binding statutory provisions or authoritative precedents is per incuthiriam and does not have precedential value. In such circumstances, this Bench of the Tribunal is not only justified but duty-bound to follow the correct exposition of law, rather than mechanically referring the matter to a Full Bench.
16.3 In this regard, further we find no irreconcilable conflict warranting reference to a Full Bench. The apparent divergence in the decisions cited by the applicants is attributable to differences in factual matrix and absence of consideration of relevant policy clarifications and binding judgment on Hon‟ble Apex Court as discussed hereinabove. In that view of the matter, we are of the considered opinion that request for reference to a Full Bench is misconceived and devoid of merit, and the same is accordingly not tenable.
17. It is reiterated that the concept of "matching savings" has been emphasized in para 18 of the Pushpa Rani‟s judgment (supra) JITENDRA RAJ 2026.04.13 MEHTA 13:04:28+05'30' 51 OA No.105/2023 and 3 connected OAs wherein it has been held that restructuring must be implemented with matching savings through surrender of posts. In the present case it is evidently clear that the scheme i.e. of RBE 155/2022 provides for restructuring by way of matching savings which involves surrender of post from several levels including levels-7 & 6 and thereby the posts for Level-8 have been created/organized. For this purpose, undisputedly various posts from Level-7 and from Level-6 were surrendered and reallocated to Level-8. This demonstrates that additional posts at Level-8 have been created through restructuring.
As already noted hereinabove, the Hon‟ble Apex Court in the case of BSNL (supra) has categorically and in specific terms held that ―where restructuring results in creation of additional posts and such posts are filled based on eligibility conditions, the rule of reservation is attracted.‟ Thus, we find substantial force in the submission of learned counsel for the respondents that in the present case, the scheme i.e. RBE No. 155/2022, is financially neutral, requiring surrender of posts for creation of higher-grade posts. Therefore, all three essential features identified in Pushpa Rani (supra) are present in the instant cases and the respondent department has correctly notified the impugned list of selection.
18. Further, it is noticed that the Ministry of Railways has clarified vide its letter dated 14.07.2023 i.e. RBE No. 93/2023 (Annex. R/3) that in cases where a portion of the sanctioned cadre is upgraded to an existing higher grade in that category or a new higher grade, resulting in increase in number of posts, then the reservation is to be applied to parted strength in the lower grade as well upgraded strength and, accordingly instructions have been issued to the effect that application of reservation as per extant rules as provided in RBE No. 155/2022 dated 17.11.2022 and the clarification thereon dated 01.12.2022, would hold good.
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Hence, it can be seen that the process for grant of higher pay in Level-8 under the scheme in question dated 17.11.2022 undisputedly involves, the cadre restructuring, increase number of posts in newly created higher grade i.e. Level-8 which has not only upgradation simpliciter but there exists an element of promotion to a higher grade from Level-7. Thus, application of reservation in the said process is legally valid and in consonance with the law laid down by the Hon‟ble Supreme Court in the cases of Pushpa Rani, BSNL Vs. R. Santhakumari Velusamy & a 3-Judges Bench judgment rendered by the Hon‟ble Apex Court in Rama Nand‟s case (supra).
19. In view of the foregoing discussions, we hold that the scheme of upgradation from Level-7 to Level-8 and thereafter from Level -8 to Level-9 under policy dated 17.11.2022, is not a case of upgradation simpliciter, but partakes the character of promotion arising out of cadre restructuring.
20. For the foregoing reasons, the impugned eligibility list / select list as well as the policy decision, as enumerated in the RBE No.155/2022 dated 17.11.2022 and subsequent clarification(s) issued by the Railway Board are, in our considered view, do not suffer from any illegality warranting interference by this Tribunal. Thus, the OAs. being devoid of merit, are dismissed accordingly.
21. The Interim orders granted earlier stand vacated accordingly. The pending M.A(s), if any, stand disposed of accordingly.
22. No order as to Costs.
23. The Registry is directed to place a copy of this Order in each of the connected OAs.
(Dr.Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (Administrative) Member (Judicial)
jrm
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