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13. They have also relied upon the DOP&Ts OM No. 36012/82003-Estt. (Res) dated 25.10.2004 wherein it has given following clarifications to Ministry of Railways in response to their U.O. Note No. 2004-E (SCT) 1/2/1 dated 07.05.2001 on the subject of restructuring of Group C and Group D cadres in the Railway. The relevant portion is reproduced below:

..the Supreme Court in the matter of Union of India v. V.K. Sirothia has held that reservation for SCs and STs will not be applicable when making promotions to the posts upgraded on account of restructuring of cadres. The Honble Court in the Contempt Petition No. 304 of 1999 (All India Non SC/ST Employees Association v. V.K. Agarwal and Ors.) further clarified that where the total number of posts remained unaltered, though in different scales of pay, as a result of re-grouping, it would be a case of upgradation of posts and not a case of additional vacancy or post being created to which the reservation principle would apply. If the case is restricted to all existing employees who were redistributed into different scales of pay as a result of upgradation, there cannot be any reservation.
5. A written statement has been filed by the respondents. Respondents plead that applicants have laid challenge to Railway Board letter RBE 177/2003 dated 9.10.2003 (Para 14) and RBE No. 05/2004 which are strictly in accordance with the Reservation Policy of Govt. of India. In case, an adverse order is passed, a large number of Railway staff would be affected. In Para 14, the direction is to apply in cadre restructuring the 'existing instructions' with regard to reservation of SC/ST. Therefore, whether or not reservation will apply in a particular restructuring scheme, will depend upon the existing reservation policy on the date of restructuring scheme. This is the distinguishing factor, vis-a-vis, cases of V. K. Sirothia and All India Non-SC/ST Employees Association and the same result will not follow in the present scheme. The Court may assess the issue afresh in the light of 'existing reservation policy.' Respondents have also filed a supplementary written statement and applicants have filed a rejoinder.

9. The above decision was upheld by the Hon'ble Apex Court in SLP No. 11801/87 decided on 8.12.1987 titled Union of India v. A.K. Srivastava and was relied upon by Jodhpur Bench of Central Administrative Tribunal in O.A. No. 326/89 (All India Non SC/ST Employees Association (Railway) Bikaner and Anr. v. Union of India and Ors. decided on 20.10.1992). It was held that reservation for SCs and STs is not applicable in the case of upgradation of existing posts. Respondents were directed to consider the applicants therein for being put against the upgraded posts in their respective cadre in accordance with the rules of seniority subject to the rejection of unfit and that no reservation will be applicable to the posts in question. This view of the Tribunal was upheld in C.A. No. 1481/96 (Union of India and Ors. v. All India Non SC/ST Employee Assn. and Anr.) etc. The Hon'ble Apex Court in C.A. No. 3622 of 1995 titled as Union of Indian. V.K. Sirothia, decided on 19.11.1998 (Annexure A-5) upheld the finding of the Tribunal that "the so called promotion as a result of redistribution of posts is not promotion attracting reservation." The Hon'ble Apex Court further observed that on facts it is seen that it is a case of upgradation on account of restructuring of the cadres, therefore, the question of reservation will not arise. The Principal Bench of C.A.T., in O.A. No. 2123/93 (All India Non SC/ST Rly Employees Association etc. v. Union of India and Ors.) decided on 23.7.1999, while placing reliance on decision of Jodhpur Bench of Central Administrative Tribunal in O.A. No. 460/91 (Samsudden and Ors. v. Union of India and Ors.) decided on 9.5.1996, in which reliance was placed on earlier decision of Allahabad Bench of Tribunal in the case of N.K. Saini and Ors. v. The Director General RDSO and Ors., O.A. No. 414/87 and connected O.As., decided on 31.5.1988, which was upheld by Hon'ble Apex Court in C.A. No. 3622/85, took the view that reservation policy in the upgraded posts after restructuring of the cadre, whether en masse or on partial basis, is not tenable in the eyes of law. The issue again cropped up in Contempt Petition (Civil) No. 304/99 in C.A. No. 1481/1996 (All India Non SC/ST Empl. Assn. (Railway)v. V.K. Agarwal and Ors. before the Hon'ble Apex Court and it was held on 31.1.2001 that:

The undersigned is directed to refer to the Ministry of Railways U.O. Note No. 2004-E(SCT) 1/25/1 dated 7th May, 2001 on the subject noted-above and to say that the Supreme Court in the matter of Union of India v. V.K. Sirothia has held that reservation for SCs and STs will not be applicable when making promotions to the posts upgraded on account of restructuring of cadres. The Hon'ble Court in the Contempt Petition No. 304 of 1999 (All India Non SC/ST Employees Association v. V.K. Agarwal and Ors.) further clarified that where the total number of posts remained as unaltered, though in different scales of pay, as a result of re-grouping, it would be a case of upgradation of posts and not a case of additional vacancy or post being created to which the reservation principle would apply. If the case is restricted to all existing employees who were redistributed into different scales of pay as a result of upgradation, there cannot be any reservation.