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JITENDRA RAJ 2026.04.13
    MEHTA    13:04:28+05'30'

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.

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' 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.

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' 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.

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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' 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."