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Showing contexts for: upgradation of posts in Karan Singh vs Uoi & Ors on 22 April, 2014Matching Fragments
4.5. The Applicants have, therefore, filed this OA seeking the following reliefs:-
(i) To quash and set aside the impugned order dated 09.08.2011 and 23.08.2011.
(ii) To declare the action of Respondents in applying reservation against the posts upgraded on account of restructuring of Group B and C cadre as illegal and unjustified.
(iii) To issue direction to the Respondents to restore back the promotion of the Applicants as it were before passing the impugned order dated 23.08.2011 and 09.08.2011.
8. The Applicants have filed a rejoinder. They have stated that in view of the law laid down by the Honble Supreme Court in the case of M. Nagaraj and recent decision in the case of U.P. State Corporation, the Respondents cannot give benefits of reservation in the matter of promotion. When the Respondents have not collected any quantifiable data before providing reservation in promotion, they cannot apply reservation in promotion in EPFO. They have stated that it is evident from the Respondents own documents that the total posts of UDC/SSA were 166 whereas the total upgraded post of Assistant are only 147. They have also submitted that the Private Respondents have wrongly stated that 74 new posts have been created in the cadre of Assistant and the same is evident from aforesaid facts. In fact, the posts of Assistants have been increased due to up-gradation of the post of UDC/SSA. It is evident from the record of DPC that the criteria as provided for has not been made available. The officials were treated as Assistant on the basis of their seniority in the grade of UDC/SSA.
11. As regards the issue of reservation in the case of the restructuring of the cadres is concerned, generally the existing posts are upgraded as it is to posts with higher scale of pay. In such cases, mostly the number of posts in the cadre remains the same. However, there may be occasions, on restructuring of the cadres, the total number of existing posts is increased and in the higher category, additional posts are created. The Gujarat High Court in Union of India Vs. All India Non-SC/ST Telecom Employees Association Special Civil Appeal No.7576 of 1997 decided on 24.03.1999 and the Apex court in All India Non-SC/ST Employees Association (Railway) Vs. V.K. Agarwal and Others (2001) 10 SCC 165 and in Union of India Vs. V.K. Sirothia 2008 (9) SCC 283 held that if the total number of existing posts remain the same and certain employees get the higher pay scales due to the reclassification of the different scales of pay, it would be only a case of upgradation of posts and not creation of any new posts. Hence, the principle of reservation would not be applicable in such cases. In other words unless some additional posts are created by way of restructuring, reservation of posts for SC and ST candidates cannot be resorted to. Again, in its judgment in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy and Others (2011) 9 SCC 510, the Apex Court held that if there is mere upgradation of posts, as contrasted from promotion, reservation provisions would not apply. But in cases where no additional posts were created, but where a process of selection was involved in the upgradation, the process has to be considered not as an upgradation simplicitor, but a process of promotion and therefore the principles of reservation would be attracted. In the said judgment, the Apex Court has also considered its earlier judgments in the cases of V.K. Agarwal and Others (supra) and V.K. Sirothia (supra) as well as the judgment of the Gujarat High Court in Union of India vs. All India Non SC/ST Telecom Employees Association (supra). The relevant part of the said judgment is as under:-
19. As far as OA No.3623/2011 is concerned, we quash and set aside the impugned orders dated 09.08.2011 and 23.08.2011. We also declare that the action of the Respondents in applying reservation against the upgraded posts on account of the restructuring of the Group B and C cadre is illegal and wrong. Consequently, the respondents are directed to restore the promotion of the Applicants existed before passing the aforesaid impugned orders. The Respondents shall also pass appropriate order in implementation of the aforesaid directions.