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(i) Whether filling up of the upgraded posts of Senior Pharmacists in the higher scale on seniority-cum-fitness basis from those holding the posts of Pharmacists with a lower scale amounts to promotion calling for application of reservation in favour of Scheduled Castes and Scheduled Tribes?

Whether on the facts and circumstances of these cases, the appointments of the applicants to the upgraded posts of Senior Pharmacists could be said to be illegal when the appointments were made and whether the impugned orders cancelling these appointments can be sustained?

The Full Bench answered the reference that the appointments to the upgraded posts of Senior Pharmacists in CGHS and the upgraded posts of BCR Grade-IV in the Department of Telecommunications amount to promotion attracting the principles of reservation for special categories like SCs and STs.

10. The learned Counsel for the applicants took us through scheme dated 9.10.2003 and emphasized that the present scheme is nothing but old scheme with some changes here and there and the notable change is Paragraph 14 of the present scheme which provides that the existing instructions with regard to the reservation of SCs and STs wherever applicable will continue to apply; and that the scheme is self-financing and matching savings have to be surrendered before restructuring is implemented as also the clarifications vide letter dated 6.01.2004 that the selection procedure will stand modified restricting scrutiny to the service record and the confidential reports as a one time exception by special dispensation. The learned Counsel for the applicants has urged that this is the third time that the respondents have framed the restructured scheme and every time, the rule of reservation has been struck-down by the Courts. Counsel for the applicants has emphatically contended that the cadre has to be taken as the entire cadre as a whole and there being no increase in the posts in the cadre, it is settled law that the rule or reservation cannot be applied while adjusting the existing incumbents in the restructured posts. He has relied upon the rulings which lay down that in the restructured cadre involving upgradation, the rule of reservation cannot be applied.

It is pertinent to note that in that case, the exercise was done with a view to remove stagnation and betterment of chance of promotion and the method followed was redistribution. In the case before us, the purpose behind the scheme dated 9.10.2003 is strengthening and rationalising the staffing pattern on the basis of functional, operational and administrative requirement and it is in this process of restructuring due to revised percentages that the posts in some scales have been increased though the total number of posts in the cadre remains the same as a result of which some employees would be placed in the higher scale without following regular process for promotion and the same will be done on the basis of seniority as also modified selection procedure based upon scrutiny of service records and confidential reports alone without holding any written and/or vi va-voce test. In the case of Ashok Kumar Srivastava (supra), it was held that upgradation of EDMOs to DMOs involved neither selection nor promotion. It was simply nomination or placing of some seniors to the upgraded posts with better scales, on the basis of seniority, subject to suitability. Accordingly, it was held that placing a few seniors to the upgraded posts with better scale, does not amount to any fresh appointment by promotion.

41. The respondents have placed heavy reliance on the judgment of the Full Bench of Central Administrative Tribunal, Bangalore Bench in the case of M.L Rajaram Naik and Ors. v. Additional Director, CGHS (supra). In that case, the question of upgradation and reservation was considered with reference to the posts of Pharmacist in CGHS. The Full Bench held that appointment to the upgraded posts of Senior Pharmacist in CGHS and upgraded posts of BCR Grade-IV in the Department of Telecommunications amounts to promotion attracting principles of reservation for special categories like SCs and STs. The Full Bench judgment of the Bangalore Bench of Central Administrative Tribunal was duly considered by the Full Bench of Central Administrative Tribunal, Allahabad Bench in P.S. Rajput and Ors. v. Union of India and Ors. (supra) and it was held that the decision did not help the respondents' case therein.