Central Administrative Tribunal - Mumbai
Abhijit Uttamrao Waghmare vs Western Railway on 19 January, 2024
COLO LLLOOUSTLTOODUTL
{ OA.248/2023
CentralAdministrativeTribunal,
Mumbai Bench,
Mumbai.
G.A.248/2023
Dated this Friday the 19th day of January, 2024.
Coram:Hon'ble Justice Shri Ranjit Vasantrao More, Chairman
be?
Ceo
tft
Hon'ble Mr.Shri Krishna, Member (Administrative)
Shri Abhijit Uttamrao Waghmare,
Age 47 years, Working as Sr, Section Engineer,
Mumbai Central, Western Railway, R/at : C-1 04,
Rahul ApartmentBldg. No.3CHSLtd_AcholeRd.,
Nalasopara (East), Dist. Palghar, Pin ~ 401 209.
Manish Kulshreshtha, Age 45 years,
Working as SSE Borivali .
Address-C103 Mira Sagar CHS Ltd.,
Ramdev Park, Mira Road East,
Thane--401105.
Brijesh Kumar Singh, Age 46 years,
Working as SSE, Borivall,
Address~C.103 Mira Sagar CHS Ltd,
Ramdey Park, Mira Road East,
Thane401105.
Dev Sharan, Age 33. years,
Working as SSE Valsad,
Riatl4-A,Sona Sarita Society,
Dharampur Road Abrama, Valsad -- 396 002.
Anil Rajpoot, Age 50 years,
Working as SSE Nandurbar,
RBiat RE 6B, Railway Colony,
Nandurbar -- 425 412.
Anil Shukla, Age 31 years,
Working as SSE Surat,
Rat 192/C2, Railway Colony,
Surat.
2 OA BAR 2025
7. Chandrakant Sonawane, Age 51 years,
Working as SSE, Amainer,
Réat RE 10 B Rly, Colony, Amalner ~ 425 401.
8. Ajay Kumar Singh, Age 31 years,
Working as SSE Valsad,
Réat 29-5 type 4, Westyuard Railway Colony,
Valsad -- 396 001.
9, Awadhesh Kumar, Age 46
years, Working as SSE Navsari,
Rat A 131 Radhe Park Society,
Taluka Jalalpore, Navsari-396445,
10. Pawan Kumar Singh, Age 48 years,
Working as SSE Nandurbar,
-- R/at200/E, New Railway Colony,
os Nandurbar (MH) ~ 425 412.
11. Richard Varghese, Age 47 years,
Working as SSE, MMCT,
A. 504 Gagan Solitaire Manvel Pada Road,
Virar (EB) ~ 401 305.
i2, Baidyanathmadanlal, Age 45 years,
Working as SSE Valsad,
Rat 9 Sai River, Behind Swami Narayan
English School, Abrama, Valsad,
Gujarat-396002, Applicants.
(By Advocate Shri V.A.Nagrani).
Versus
lL. Union of India, through
the General Manager,
Westem Railway, Headquarters Office,
Churchgate , Mumbai ~ 400 020,
KS
Divisional Railway Manager,
Mumbai Central, Western Railway,
Land
"
5.
ta
OA DA8/2023
Mumbai ~400008,
Sr, Divisional Personnel Officer,
Mumbai Central, Western Raibvay,
Mumbai -- 400 008.
Shri Akshay Kumar Dhal,
SSE,CNOCE WPECICCOISC).
Shri Dilip Bharnre,
SSE, NOCC & MTRC, MMCT (ST) Respondents,
(Private respondent to be served through official
RespondentNo.2).
(ByAdvocate Shri R.R.Shetty).
ORDER
Per: Shri Krishna, Member(A)
Agerieved by the impugned order dated 21.03.2023 passed by Respondent No.2 in which 6 pasts out of 38 posts were filled up from the SC quota, the applicants have challenged the same and have sought the following reliefs in this O.A. "os This Hon'ble Tribunal may graciously be pleased to call far the records of the case from the Respondents and after examining the same quash and set aside the impugned Notification dated 21.03.2023 to the extent of applying the principle of reservation in the case of upgradation and order dated 05.04.2023 with all consequential benefits.
b. This Hon'ble Tribunal may further be pleased to grant the upgradation purely on the basis of seniority- cum-suitability as envisaged in the Notification dated 21.03.2023 without applying the principle of reservation with all consequential benefits.
e Costs of the application be provided for.
4 OA 2488/2025d. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
M Tt is case of the applicants that the respondents have issued impugned Notification vide file NoE/TELE/1025/1 VOLT dated 21.03.2023 for filling up of vacancies of SSE/TELE in the scale of Rs.9300-34800, Grade Pay of Rs.4800 (Level-08) TELECOM wing S&T Department {as per modified selection) in which it has been proposed to conduct suitability to the post of SSE/TELE in the scale of Rs.93000- 34800Grade Pay of Rs.4800 (Level-8) against 50 upgradation with prescribed bench marks as per modified selection (suitability based on Service Record and APARs) in which number of vacancies assessed as under:
"GEN=29, SC=06,ST=03, Total=38"", 3 In the said notification a list of 38 employees have been mentioned in 'List-A' stating that the employees are eligible for suitability with prescribed bench mark as per modified selection as per seniority, It further states that 31 employees mentioned in the "List-B' will be considered if any employee from list'A'foundunsuitableorsubmittedunwillingness.Para2onthepage3 of the notification reads as under:
"The above Suitability/Prometion has been initiated/ordered only after ascertaining quantifiable data of representation of SC/ST employees in the grade, as per the post based rosters againstSCrosterpointno.04,12,17,24,30 tas OA.248/2023 & 38 against ST roster point No.08, 20 & 34.NH distributed as per percentage of SSE. Accordingly, the following notification is issued in compliance with the directions of the Hon'ble Supreme Court in M.Nagaraj case."
4. The applicants have submitted that in the case of upgradation, reservation cannot be applied. It has been submitted that as per DoPT OM dated 12.04.2022 followed by Railway vide RBE Order dated 13.04.2022 conditions that has been set out by the Hon'ble Supreme Court are to be satisfied by the Government for the purpose of implementing the policy of reservation in promotions. In the present case the said exercise is not carried out. It has been stated that the applicants were initially appointed as Junior Engineers (TELE S&T Department) by way of direct recruitment in 2002-and were further promoted to the post of St. Section Engineer in the year 2013 in the Pay Level -7 in the pay scale of Rs.9300-34800 with Grade Pay of Rs.4600/-. It has been submitted that the respondents have initiated the process of upgradation in the Level-8 of pay matrix in the pay scale of Rs.9300- 34800 with Grade Pay of Rs.4800/- and accordingly had proposed to conduct the suitability to the post of SSE in Level-8 against 30% upgradation with prescribed bench mark as per modified selection _ (suitability based on service record and APARs).
5, It is submitted that while conducting suitability against 50% upgradation the respondents have applied the principle of reservation and 6 OA.288/2023 had accordingly assessed the number of vacancies as 38 in which they have stated that 29 posts for general category, 6 posts for SC and 3 posts for ST. It has been submitted that the applicants have submitted representation dated 23.03.2023 objecting the action of applying the principle of reservation in the case of upgradation. It has been reported by the respondents vide order dated 05.04.2023 on the ground that the guidelines for reservation In promotion issued by Railway Board vide order dated 13.04.2022 and 22.06.2022 are applicable.
6. The applicants have placed reliance on the decision of Division Bench of the Hon'ble Apex Court im the case of Bharat Sanchar Nigam Limited Vs. R. Santha kumara Velusamy &0rs.(2011) 9 SCC $10 decided on 06.09.2011 in which it has been stated in Para 29 as under:
""iyPromotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay_scale without moving to a different post. But the mere fact that both -- that is, advancement to a higher position and advancement to a hisher pay scale -- are described by the common term "promotion", does not mean that they are the same. The nvo 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 --7 OA.248/2023
and responsibilities but merely gets a higher pay scale.
(ii) 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 seale, 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 satis fies 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, uperadation 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 Gastead 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 eranting the upgradation or benefit of advancement to a higher pav scale, it will be a promotion. A mere sereening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be apart of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar te those applicable topromotion, the nit 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 8 OA 2448/2023 "= is therefore a promotion, the rules of reservation will apoly,
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling 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 invelve creation of additional pasts 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. (emphasis supplied}
7. On notice the respondents no.1 to 3 have filed reply affidavit resisting the O.A, It has been stated that it is a settled position of law that the reservation will apply only ifthe post is a selection post. It is stated that the applicants have admitted that it would be appreciated that the modified selection process is involved and 50% upgradation to Level-S from Level-7 in the pay scale of Rs.9300-34800 with Grade Pay of Rs.4800/- is to be granted, provided the candidates meets the prescribed benchmark as per the modified selection (suitability based on service record and APARSs}.
8. It has been submitted that the case in question is not gee OA.248/2023 one of mere grant of 50% upgradation to persons based on seniority but grant of upgradation only based on their being found suitable on the basis of service record and APARs. A person who does not meet the benchmark, therefore, cannot be granted the said upgradation. The law in this regard is already well settled by the Hon'ble Apex Court in the case of Dayanand Asanand Gurshakani, 1984 SCC (L&S) Page 341 and Ramprasad Vs. DK. Vijay, 1999 SCC (L&S) Page 1275. In the light of the aforesaid position and in the light of the policy decision taken by the Railway Board in RBE No.1$3/2022 dated 17.1 1.2022 & 01.12.2022, reservation has been correctly applied. The same, therefore, does not wartant amy interference of this Tribunal.
5. It is submitted that filling up of 50% upgradation in the Level-8 in the scale of Rs.9300-34800 with Grade Pay of Rs.4800/- has been initiated as per Railway Board's guidelines for upgradation issued vide RBE No,155/2022 dated 17.11.2022 and 01.12.2022. Further the vacancies have been arisen as per the post based roster as SC-06, ST-O3 and General-29, Total=38. Only after ascertaining quantifiable data of representation of SC/ST employees in the grade, as per the post based rosters, against SC roster point No.04, 12,17, 34, 30 and 38 against ST roster point No.8, 20 and 34 distributed as per percentage of SSE GIT) GP4800/-.
10. The eligibility has been notified as per Railway Boards letter dated 13.04.2022 and 02.05.2022, where in it has been advised to follow seeeeeata 10 OA248/2023 instructions / guidelines laid duwn in Board's letter dated 21.08.1997 with reference to maintenance of roster, Further, suitability will be adjudged satisfying the condition mentioned in para-2 of (a) and (b) as under:
"(ajin terms of DoPT O.M. No.43011/153/2010- Estt (Rest) dated 04.01.2013, the Liaison Officer shall ensure that the reservation rosters are strictly maintained as per the instruction/guidelines, laid down in DoPT O.M. No.36012/2/96-Estt (Res.} dated 02.07.1997.
(b)In order to ensure maintenance of efficiency of administration, the DPC shall carefully assess the suitability of the officers, being considered for promotion."
Tt has been submitted that the upgradation has been granted as per the Railway Board Circular dated 17.11.2022 and 01.12.2022, and since there is an act of selection involved, in that a person who does not meet the benchmark cannot be promoted and that upgradation of 50% of the posts is not to be granted merely based on the seniority of the employees but subject to their meeting the benchmark, there is an element of selection involved, hence the reservation in promotion has to apply. The respondents, therefore, prays not to interfere with the orders of upgradation and dismiss the O.A. ll. They have further__ during the course of final arguments Mr.Nagrani has placed reliance on the decision of Co-ordinate Bench of this Tribunal in O.A.No.327/2023 in the case of Geeta S. Karipapail Vs. Union of India & others decided involving post of Chief Office 11 OA.248/2023 Superintendent decided on 01.12.2023, in which the Co-ordinate Bench has held that grant of upgradation of Grade Pay of Rs.4600 to Rs.4800/- is upgradation simpliciter and not promotion and, therefore, reservation was not applicable,
12. We have heard both the parties at length and perused the pleadings and decuments filed on record and also arguments made by the both sides during final hearing.
13. We find that the impugned order dated 21.03.2023 pertains to Hlling up of vacancies of SSE/TELE in the seale of Rs.9300-34800/- with GP 4800/- (Level-8) TELECOM wing S&T Department (as per modified selection). It has been clearly stated in the order dated 21.03.2623 that it is proposed to conduct suitability to the post of SSE/TELE in the scale of Rs.9300-34800/- with GP 4800/- (Level-8) against 50% upgradation with prescribed benchmark as per modified selection (suitability based on service record and APARs), A note to this impugned order says that "the above suitability / promotion has been initiated / ordered only after ascertaining quantifiable data of representation of SC/ST employees in the grade, as per the post based rosters, against SC roster point no.04, 12, 17, 24, 30 & 38 against ST roster point No.08, 20 & 34.Nu distributed as per percentage of SSE. Accordingly, the following notification is issued in compliance with the directions of the Hon'ble Supreme Court i M. Nagaraj case."
12 A BAS 3023
14. After issue of impugned order dated 21.03.2023 the representation was made by various persons dated 23.03.2023. The respondents in the impugned order dated 05.04.2023 have stated that the representation dated 23.03.2023 has been examined and it is advised that the eligibility list has been notified vide office letter of even no. dated 21.03.2023 as per Railway Board's guidelines for reservation in promotion vide No.2018-E(SCT)V25/9 dated 13.04.2022 and 27.06.2022 {copy enclosed). We have perused the above letters of Railway Board dated 13.04.2022 and 22.06.2022, 01.12.2022 and 14.07.2023. The letter No.2018-E(SCTIV25/9 dated 13.04.2022 was issued in pursuance of DoPT OM No.36012/16/2019-Estt (RES) dated 12.04.2022 enclosing the said OM. It states that the above provisions i.e. provisions contained in DoPT OM dated 12.04.2022 may be brought to the notice of all concerned and to ensure adherence and strict compliance of the same. The DoPT OM dated 12.04.2022 was issued to implement the judgment of Hon'ble Supreme Court in the case of Jarnail Singh and Others Vs. Lachhimi Narain Gupta and Ors. (Civil Appeal No.629/2022 arising out of SLP (C) No.30621/2011 and other connected matters and after taking opinion of learned Attorney General for India it has been stated that in the judgment dated 28.01.2022 the Supreme Court set ont the conditions that are to be satisfied by the Government for the purpose of implementing the policy of reservation in promotions. These conditions are ~ ;
xe i ta 13 OA.248/2023 "(1) Collection of quantifiable data regarding inadequacy of representation of Scheduled Castes and Scheduled Tribes;
Gi} Application of this data to each cadre separately; and
(ii) If a roster exists, the unit for operation of the roster would be the cadre for which the quantifiable data would have to be collected and applied in regard to the filling up of the vacancies in the roster."
The OM further states that all the Ministries/Departments should ensure that the above conditions are complied with before implementing the policy of reservation in promotions and carrying out any promotionsbasedthereon.Forthispurpose,allMinistries/Departmentsare alsorequiredtoensurethefollowing:
16.
"(ayn terms of DoPT OM No.43011/153/2010-Estt (Res.) dated 4.1.2013, the Liaison Officer shall ensure that the reservation rosters are strictly maintained as per the instructions/guidelines, laid down in DoPT OM No.36012/2/96-Estt (Res.), dated 2.7.1997.
(b} In order to ensure maintenance of efficiency of administration, the DPC shall carefully assess the suitability of the officers, being considered for promotion.
(c) The Appointing Authority shall issue the appointment/promotion orders only after satislying itself that the conditions mentioned in paragraph 2 and sub-para (a) &
(b)of this paragraph have been fully complied with."
Para 5 of the said OM further says that since the Jarnail Singh batch of cases are pending in the Supreme Court, any promotion order issued shall be subject to further orders that may be passed by the Supreme Court in the said batch of cases.
id OA.258/202317. The instructions No.2018-E(SCT)U25/0 dated 22.06.2022 has been issued by the Railway Board on the subject of reservation in promotions
-- procedure to be followed prior to effecting reservations in the matter of promotions. The above instructions was issued as clarifications are being sought from the Zonal Railway with reference to Board's Instructions issued vide letter No.2018-E(SCT}/25/0 dated 13.04.2022 and 02.05.2022 in consonance with DoPT OM No,36012/16/2019-Estt.(Res.) dated 12.04.2022. In the para 2 of instructions dated 22.06.2022, it has been clarified that "cadre for the purpose of roster shall mean a particular grade and shall comprise the number of the posts to be filled by a particular mode of recruitment in terms of the codal/manual provisions or Railway Board's instructions issued from time to time. It has been advised to follow instructions/euidelines, laid down in Board's letter No.95- ESSCTI/SO/S(@) dated 21.08.1997 with reference to maintenance of roster. It had 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 points. They will occupy the unreserved points.
I8. In the instructions dated 02.05.2022, the Railway Board has directed all the General Managers and Production Units to ensure that the reservation rosters are strictly maintained as per the. instructions/guidelines, laid down in DoP&T OM No.36012/2/96-Estt, (Res.} dated 2.7.1997, 1S OA S48 /2023 19, Since these instructions were issued on similar lines to Railways vide Railway Board's letter No.95-E(SCT)V/49/S(@) dated 21,08,1997 (RBE No.1 14/97), it is advised to follow the same in case of promotion in Railways/Production Units.
26. We further find that the Railway Board has issued instructions vide file No. PC-VIL2019/RSRP/3 dated 01.12.2022 clarifying the upgradation of pay structure of certain cadres, In clause (iil) of Para 2 on the point of provision of Reservation, it has been clarified that reservation will apply as per extant rules,
-- 21. We further find that during pendency of this O.A. the Railway Board has issued further instructions No.2023-E(SCT)I/25/8 dated 14.07.2023 as under:
"Sub: Reservation in upgradation of pay structure of certain cadres -- clarification Ref: PCVIN/2019/RSRP/Sdated17.11.2022&01.12.2022 References are being received from Zonal Railways seeking clarifications on letters referred above, whether Reservation is applicable in case of upgradation and cadre restructuring. The matter has been thoroughly examined in view of the judgment of Hon'ble Supreme Court in CA No.6934-6946/2005 in Union of India Vs. Puskparani & others decided on 29.07.2008 in similar matters and clarified as under:
Upgradation of posts (functional or otherwise) due to stagnation resulting in cadre review:
1. Incase of Mass Upgradation, where a grade of whole cadre is upgraded from existing grade to higher grade and where all the incumbents are placed in higher grade, without creation of new posts, reservation shall not be applicable.16 DA.248/2023
2. However, in cases, where a portion of the sanctioned cadre strength is upgraded to an existing hicher 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 strencth in lower grade as well as upgraded strength.
3. Accordingly instructions issued regarding application of reservation as per extant rules vide reference cited would hold good.
This disposes off references received from RCF/Kapurthala, South Western Railway and Eastern Railway vide letter mas.2022-E/RCF/SCT&OBC/RES/RBdt. 18.04.2023, SWR/P.135/l/Uperadation/ChS&WI dt. 13.04.2023 & E.839/Upgradation'ChS& WHO -- dt. 17.04.2023 respectively."
22, We notice that this instructions of Railway Board dated 14.07.2023 and instruction dated 01-12-2022 have not been brought to the notice of the Co-ordinate Bench in O.4.327/2023 which was decided on 01.12.2023, therefore, said decision is distinguishable on facts.
23. We find that a 3 Judge Bench of the Hon'ble Supreme Court in the case of Rama Nand and Others Vs Chief Secretary of NCT of Delhi & Others decided on 06.08.2020 has considered the judgment in the case of Union of India Vs. Pushpa Rani & Others and Union of India Vs. Pushpa Rani & Others {2008} 9 SCC 243! and also the case of BSNL (supra) and held in para 12 as under:
"The law eXplaining the difference between upgradation and promotion was set out in Union of India v. Pushpa Rani(supra) and those principles have been extracted in para 27, the relevant portion of para 27 reads as under:1? OA.248/2023
"37. In Union of India v. Pushpa Rani [((2008) 9 SCC 242, this Court examined the entire case law and explained the difference between upgradation and promotion thus:(SCCpp.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 placernent does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word 'promotion' means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank _ but also implies advancement to a higher grade. In service Jaw, the word 'promotion' has been understood in wider sense and it has been held that promotion can be either te a higher pay seale or to a higher post."
24, We find that the Hon'ble Supreme Court in the case of Union of India Vs. Pushpa Rani & Others (supra) in Civil Appeal Nos.6934- 6946/2005 decided on 29.07.2008 (supra) has occasion to examine the provisions of Railway Code and in Para 19 has held as under:
"19......The existing and revised percentage of posts in different cadres are indicated in Annexures 'A' to 'K' appended to letter dated 9.10.2003. For the sake of reference Annexure 'A' G)} appended to that letter is reproduced below:-
ANNEXURE 'A'(ij) STATEMENT REGARDING RESTRUCTURING OF GROUP 'C' & *D' STAFF pc aaa 18 OA248/2023 OF TRANSPORTATION TRAFFIC DEPARTMENT Annexure to Board's letter NoPC HIV2003/CRC'6 dated 9.102003 CATEGORY GRADE EXISTING REVISED %AGE %AGE (Rs) Station Masters/Assistant 7450-11500 6.5. 4500-7000 @.5 Foot Note: The revised percentage distribution of pasts will be made applicable in the unified cadre as per the provisions contained in Para-10.1 of the covering letter.
11, The nature and scope of the Railway Board's power to make rules was considered by the Constitution Bench of this Court in B.S. Vadera Vs. Union of India and Others [1968(3) SCR 575]. The facts of that case were that the petitioners, who joined service as Lower Division Clerks, were first promoted as Upper Division Clerks and then as Assistants (on oe ad-hoc basis). In June 1967, they were reverted to the . posts of Upper Division Clerks. It was argued on their behalf that the Railway Board does not have the power to frame the Scheme or amend the same with rétrospective effect.
This Court referred to the provisions of the Indian Railway Board Act, 1905, Article 309 of the Constitution and Rules 187 and 158 of the Code (these rules are pari material to paras 123 and 124 of 1985 edition of the Cade) and held that the Railway Board's Secretariat Clerical Service (Re-
organisation) Scheme was statutory in character and that the Railway Board could amend the same with retrospective effect. Paras 2] to 25 of the judgment which contain its ratio are extracted below:
"91 There is no controversy that the Indian Railvay Establishment Code has been issued, by the President, in exercise of the powers, vested in him, by the proviso to Article 309, of the Constitution. Only byo rules require to be noted, and they are Rules 137 and 138, occurring in Chapter I under the sub-heading "Power to frame rules". They are as follows:
"IS7, The Raiheay Board have full powers to make rules of a general application to non-gazetted railway servants under their control.19° OVA.248/2023
188 The General Managers of Indian Railways have full powers to make rules with regard fo non-gasetied railway servants under their control, provided they are nat inconsistent with any rules made by the President or the Railway Board."
We are not concerned, really im this matter, with Rule 158, because the Scheme, Annexures 4 and 7, in particular, and the various orders, have been passed by the 2°° respondent, the Railway Board. The Railway Board, as will be seen from Rule 157, have full powers to make rules of general application, to non-gazetted railway servants under their control. The question is whether the 2° respondent, has, while acting under Rule 157, power to make a rule (in this case, the Scheme), having effect from an anterior date.
23. The matter must be considered _in_ the light of the provisions of Article 309, of the Constitution. That Article provides:
"309, Sublect to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in comection with the affairs of the Union or of any State:
Provided that it shall be competent fox the President or such person as he may direct in the case of services and posts in_connection with the affairs of the Union, and for the Governor of a State or such person as he may divect_in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment. and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
We may emphasize the words "ond any rules so made shall have effect subject to the provisions of any such Act." which must receive their due weight, To thet aspect, We shall come, presently.
23. We have already pointed out, that Annexure 4 was issued on February 5, 1987, and Annexure 7 on March 30, we 20 OA248/2023 1963, and that the initial constitution of the Service was to be from December 1, 1954, and it is, on that basis, that the promotions, or appointments, to the Service, are to be ma ade. in this case, there is no Act of the appropriate Legislature, regulating the recruitment and conditions of service. under the 2nd respondent and, therefore, the main part of Article 309 is not attracted, But, under the Proviso therein, the President has cot full power to make rules, regulating the reeruitment, and conditions of serv ice, of persons, under the 2°¢ respondent. Further, under the Proviso, such person, as may be directed by the President, can also make rules, reculating the recruitment and conditions of service, of persons, under the 2" respondent. The rules so made, either hy the President, or such person, as he may direct, will have currency, until provision, in that behalf, is made by or under an Act, of the appropriate Legislature, under Article 309.
ce 24. It is also significant to note that the proviso to Article _ 309, clearly lays down that 'any rules so made shall have effect, subject to the provisions of any such Act'. The clear and unambiguous expressions, used in the Constitution, prust be given their full and unrestricted meaning, unless hedged- in, by any limitations, The rules, which have to be 'subject to the provisions of the Constitution, shall have effect, 'subject to the provisions of any such Act'. That is, ifthe appropriate legislature has passed an Act, under Article 309, the rules, framed under the proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively, and, ret trospectively. Apart from the lintitations, pointed out above, there is none other, impased by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, wiess they can be impeached on grounds such as breach of Part Lif, ar any other Constitutional provision, must be enforced, if made by the appropriate authority. "(eraphasis supplied) = 25 It is clear from the above judgment of Hon'ble Supreme Court that as per Rule 157, the Railway Board have full powers to make rules of a general application to non-gazetted railway servants under their control.
Similarly, Rule 158 provides that the General Managers of Indian
2) 0 OA,248/2023 Railways have full powers to make rules with regard to non-gazetted railway servants under their control, provided they are not inconsistent with any rales made by the President or the Railway Board.
26. A3 judge Bench of the Hon'bie Supreme Court in the case of Jamail Singh and others Vs. Lachhmi Narain Gupta & Ors in Civil Appeal No.629/2022 decided on 28.01.2022 in para 17 and 18 of the judgment has held as under:
"17, Seniority of Superintending Engineers in the Irrigation Department of the State of Punjab was the subject matter of a writ petition filed under Article 32 of the Constitution of India In RK. Sabharwal & Ors. Vs. State of Punjab & Ors., (1995) 2 SCC 745. The relevant instructions issued by the State of 12 (1995) 2 SCC 745
25| Page Punjab provided for 14 per cent reservation for SCs, Two points came up for consideration. before this Court in the said judgment, the first being that in case more than 14 per cent of the Scheduled Caste candidates are appointed/promoted in a cadre on their own metit/seniority, then the purpose of reservation having been achieved in the said cadre, the Government instructions providing reservations would become inoperative. The second point on which arguments were heard is that roster cannot operate once the posts earmarked for the SCs, STs and Backward Classes are filled. Any post falling vacant in a cadre, thereafter, is to be filled from the category - reserved of general - due to retirement etc. of whose member the post fell vacant. The first point raised by general category candidates was rejected by this Court by holding that reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts, their number eannot be added and taken into consideration for working out the percentage of reservation. This Court was of the opinion that Article 16(4) of the Constitution of India enables the State Government to make 26 | P a g e provision for reservation in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the services. The percentage of posts reserved for Backward Classes, as prescribed by the State, has to be strictly followed and cannot be varied or changed simply because same members of the Backward Class have already been appointed/promoted against the general seats.
i8. The second point relates to the implementation of the roster in ui 99 OA SS 2033 the form of "running account" year to year, Roster paints were fixed in a lot of 100 posts. This Court held that once [4 percent posts earmarked in the roster are filled up, the result envisaged by the instructions is achieved. Thereafter, there is no justification for operating the roster, This Court observed that the "running account"
is to operate only till the quota provided by the instructions is reached and not thereafter. The vacancies arising in the cadre, after the initial posts are filled, will have to be filled from amongst the category to which the past belonged in the roster. * Therefore, the respondents were duty bound to follow the roster point. We find that the respondents have maintained the roster as per law laid down above.
27. We find that the Railway Board vide instructions issued in File No. issued in File no.PC-VIV2019/RSRP/3 dated 01.12.2022 has clarified in para 2(iii) that provision of reservation will apply in upgraded pay structure and similarly instruction No. 2023-E(SCT)LI/25/8 dated 14.07.2023 has instructed in Para 2 in cases, where a portion of the sanctioned cadre strength 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 lower grade as well as upgraded strength. The creation of 50% post in pay level-§ is a newly_created cadre after restructuring by undertaking the exercise_of matching saving by upgrading only 50% post out of pay level-7. 'Thus, it is not the case _of the applicants that 100% posts of Senior Section Engineers/TEL have been upgraded to Pay Level-8.
32 Therefore, the said instruction dated 01.12.2022 and instruction dated 14.07.2023 was binding on Respondents No.1, 2 and 3. The pe ve 33 OA 2482023 instructions have not been challenged oy the applicants . The impugned atractinn pa AAA z Seaee wt thea oy! cm Parte pee GAT io 2022 In view of the above facts, we do ne cor a os S pa Th.
Ne 2 need A 3 my 5 =.
Lr in the impugned order, Therefore, we are of the view that ihe impugned order was correctly passed.
25. In view of the above facts and circumstances, we find that the OA. is devoid of any merit and the same deserves to be dismissed and fs accordingly dismissed, iShri-ehishna} (Justice Ranjit V. More) Member (A) Chairman.
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