M. Suresh Kumar and Ors. Vs Union of India (Uoi) and Ors. On 6 March, 2006

M. Suresh Kumar And Ors. vs Union Of India (Uoi) And Ors.
on 6 March, 2006
Central Administrative Tribunal - Hyderabad

M. Suresh Kumar And Ors. vs Union Of India (Uoi) And Ors. on 6 March, 2006
Equivalent citations: 2006 (3) SLJ 164 CAT
Bench: R B Vice, P A Shanker
ORDER R.K. Batta, J. (Vice Chairman)
1. The controversy involved in both these matters being the same, the matters were heard together
and the same are being disposed of by common judgment.
2. The narration of facts need not detain us for long. Briefly stated, the applicants in O.A. No.
1318/2004 are working as Train Ticket Examiners (TTEs) in the pay scale of Rs. 4000-6000 and
they stake claim for the scale of Rs. 5000-8000 under the restructured scheme. The applicants
claim that though they are seniors to the respondents 4 to 24, but the said respondents on the basis
of reservation policy adopted by the respondents in restructuring have been placed in the scale of
Rs. 5000-8000 vide impugned order dated 17.12.2004. The basic grievance of the applicants is that
the reservation policy cannot be applied in the restructuring and the impugned order dated
17.12.2004 passed by the respondents by applying reservation policy, is illegal and violative of
Article 14 and 16 of the Constitution of India. The applicants, therefore, seek declaration that the
action of the respondents in promoting junior SC/ST employees in preference to the applicants vide
impugned order 17.12.2004 is illegal and consequently the respondents be directed to promote the
applicants in the restructured posts of Head Travelling Ticket Examiner (HTTE) in accordance with
their seniority as per the instructions of DoPT and the law laid down by the Apex Court.
3. At this stage, we would like to point out that the O.A., as originally framed, had been disposed of
at the admission stage by setting aside the impugned order dated 17.12.2004 with direction to the
respondents to issue revised orders by not applying the rule of reservation in the restructured Group
'C and 'D' posts. This summary dismissal of the O.A. by order dated 27.12.2004 was the subject
matter of challenge before the Hon'ble High Court by the respondents therein in Union of India,
represented by the General Manager, South Central Railway, Rail Nilayam, Secundrabad and Anr. v.
M. Suresh Kumar and 12 Ors. Writ Petition No. 5133/2005. The Hon'ble High Court, by order dated
11 th day of April 2005, set-aside the said order on the ground that sufficient opportunity was not
given to the Railways to place the matter before the Tribunal and apart from that fact, parties had
not been joined. The matter was, thus, remitted back to the Tribunal for fresh consideration.
Subsequently, pursuant to the said order, the applicants joined the affected parties as respondents 4
to 24.
4. The official respondents 1 to 3 have filed a detailed reply. The respondents have referred to the
scheme of restructuring the object behind the same, the executive instructions with regard to
reservation of SCs/STs and that the restructuring has been done pursuant to the reservation policy
laid down by the constitution Bench of the Apex Court in the case of R.K. Sabharwah. State of
Punjab . According to the respondents, rule of reservation applies while ordering promotion to the
post of HTTE as per the law laid down by the constitution Bench judgment mSabharwal's case
(supra). The respondents contend that it is not a case of automatic fitment of the incumbent from
TTE to the next higher category of HTTE without subjecting them for selection/adjudging suitability
Indian Kanoon - http://indiankanoon.org/doc/1274769/ 1

for the purpose of promotion and that the selection process has been modified restricting the said
exercise to scrutiny of the service record and Confidential Reports. The respondents further contend
that appointments to the restructured cadres have all the attributes of promotion involving
suitability, fixation of pay in higher promoted scale, change of designation including duties and
responsibilities of greater importance. The respondents also allege that restructuring scheme
provides only for partial upgradation and does not provide for enmasse upgradation. It is further
contended by the respondents that due to restructuring, it becomes mandatory to provide for the
prescribed percentage of posts for SC/ST category employees in the said additionally created posts
in the higher grade. Reliance is placed on the case of Girdhar Lai Kohili and Ors. v. Union of India
and 5 Ors. Writ Petition Nos. (C) 17386-93 of 1984 wherein it is laid down that while implementing
the circular dated 16.11.1984 the authorities will have regard to the law laid down mSabharwal'
scasc. Therefore, according to the respondents, while making promotions against the additional
posts arising due to restructuring. Railways have to follow the law laid down in Sabharwal's case,
that is; law of post based reservation. The respondents further contend that back-reference has been
made to the DoPT in relation to DoPT memorandum dated 25.10.2004 whereby Railways were
asked to apply the restructuring scheme without following reservation policy. The said
back-reference is stated to be still pending and there is no finality in that respect as yet. The
respondents rely upon the Full Bench judgment of Central Administrative Tribunal, Bangalore
Bench in the case of M.L. Rajaram Naik and Ors. v. The Additional Director, CGHS, Bangalore and
Ors., and the connected O.A. Nos. 241, 870, 1002 of 1999 1997-2000 Administrative Tribunal Full
Bench Judgments 194. The respondents have also placed reliance on other authorities as well to
which we shall refer, while dealing with the matter on merits.
5. Though the private respondents were served and appearance has been put up on their behalf, yet
no reply was filed by them.
6. In the rejoinder, the applicants have stated that there is no increase or addition of new posts in
the cadre, but only percentage in the various grades in the cadre has been revised while adopting
restructuring scheme. The applicants rely upon the judgment of Central Administrative Tribunal,
Chandigarh Bench, in the case of Unreserved Employees Association, Rail Coach Factory,
Kapurthala, through its President v. Union of India and Ors. 2005(1) ATJ 1. The applicants also rely
upon the Full Bench judgment of Central Administrative Tribunal, Allahabad Bench in the case of
P.S. Rajput and 2 Ors. v. Union of India and Ors. O.A. No. 933/2004 and the case of Mohd.
Nivazuddin and 10 Ors. v. Union of India and Ors. O.A. No. 778/2004, 2006(1) ATJ 36, which was
disposed of by common order dated 10th August, 2005. The applicants also rely upon the letter
dated 20.4.2004 regarding implementation of cadre restructuring and the letter dated 6.5.2005
regarding reservation in promotion-treatment of SC/ST cadres promoted on their own merit.
7. In the next O.A. No. 1347/2004, we shall briefly state only the facts since rest of the controversy
and the pleadings are identical. In this O.A., the applicants are working as Deputy Superintendents
in the pay scale of Rs. 5500-9000 in South Central Railway, Vijayawada Division and are seeking
their placement in the pay scale of Rs. 6500-10500 in the restructured scheme without applying
principles of reservation. The applicants impugn the promotion of the respondents 4 to 15 vide the
impugned memo dated 8.10.2004. Their contention is that the applicants are seniors to the said

respondents 4 to 15, but only on account of application of policy of reservation in the restructured
scheme, the respondents No. 4 to 15 have been given higher scale of pay in the restructured posts.
8. We have heard the learned Counsel appearing on both sides at great length, in view of the rival
stand taken by the parties. The applicants mainly rely upon the Full Bench judgment of the Central
Administrative Tribunal, Allahabad Bench in the case of P.S. Rajput and 2 Ors. v. Union of India
and Ors. (supra) and the companion O.A, Mohd. Nivazuddin and 10 Ors. v. Union of India and Ors.
(supra), Unreserved Employees Association, Rail Coach Factory, Kapurthala v. Union of India
(supra) and Jagdish Mistry etc. v. Union of India and Ors. 2005(3) ATJ 613, wherein the issue with
reference to the restructured scheme as per letter dated 9.10.2003 was considered. The issue
considered in the case of P.S. Rajput and 2 Ors. v. Union of India and Ors. (supra) was as under:
Whether upgradation of a cadre as a result of restructuring and adjustment of existing staff in the
upgraded cadre can be termed to be promotion attracting the principle of reservation in favour of
SC/ST The Full Bench answered as under:
The upgradation of the cadre as a result of the restructuring and adjustment of existing staff will not
be termed as promotion attracting the principles of reservation in favour of Scheduled
Caste/Scheduled Tribe.
9. On the other hand, the respondents basically rely on the judgment of the Full Bench of Central
Administrative Tribunal, Bangalore Bench, in the case af M.L. RajaramNaikand Ors. v. The
Additional Director, CGHS, Bangalore and Ors. (supra) and the judgments referred therein. The
reference made therein was as under:
(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.
11. The learned Counsel for the official respondents has, on the other hand, justified the stand of the
respondents on the basis of Full Bench judgment of Central Administrative Tribunal, Bangalore
Bench in the case of ML. Rajaram and Ors. v. Union of India and Ors. and other companion O.As.
(supra). According to him, it is not a case of enmasse upgradation when the principle of reservation
may not apply, but it is a case of partial upgradation to which principle of reservation has to be
applied. In this respect, it is urged that the law laid down by the Apex Court in the case of R.K.
Sabharwal and Ors. v. State of Punjab and Ors. (supra), has to be applied and in this connection
heavy reliance is placed on the judgment of the Apex Court in the case of Girdhari Lai Kohli and Ors.
v. Union of India (supra) as also the case of K. Manick Raj v. Union of India 1997 SCC L and S 949 :
1998(1) SLJ 49 (SC). According to him, if the rule of reservation laid down by the Apex Court in the
case of R.K. Sabharwal (supra) is not applied to the restructured posts, it will result in imbalance
and the rule of reservation will be frustrated. According to the learned Counsel for the official
respondents, every scale of pay is a separate cadre and in the cadre of Chief Ticket Inspector as also
the Travelling Ticket Inspector, there has been considerable increase in the number of posts though
there is no substantial change in the category of HTTE and in fact there is decrease in the grade of
TTI. In this respect, he relied upon the chart given at page 5 in the reply in O.A. No. 1318/2004. In
O.A. No. 1347/2004 similar chart is found at page 5 which shows that there is increase in the posts
of Station Master. Station Superintendent and Deputy Superintendent though there is a steep fall in
the case of Assistant Station Master posts. He also contends before us that placement in the higher
scale amounts to promotion and in this respect, reliance is placed on the judgment referred in the
Full Bench of Central Administrative Tribunal, Bangalore Bench in the case of M.L. Rajaram Naik
(supra).
12. The learned Counsel appearing on behalf of the private respondents adopted the arguments
advanced by the learned Counsel for the official respondents.
13. In reply, the learned Counsel for the applicants urged before us that the cadre has to be
considered as a unit, as interpreted by the Central Administrative Tribunal, Chandigarh Bench in
the case of Unreserved Employees Association, Rail Coach Factory, Kapurthala through its President
and Ors. (supra). The learned Counsel for the applicants also drew our attention to the letter dated
29.4.2004 which provides for reservation due to cadre restructuring and the posts should be filled
first with the senior most employees as also the letter dated 6.5.2005 wherein it was clarified that in
the case of promotion by non-selection, promotions are to be made on the basis of
seniority-cum-fitness and the concept of merit is not involved in such promotions and as such there

is no question of consideration on merit while placing the SC/ST candidates in the panel.
14. We shall first examine the scheme as contained in the Board's letter dated 9.10.2003 and the
subsequent letter dated 6.1.2004. Ministry of Railways had undertaken review of the cadre of
certain Group 'C and 'D' staff in consultation with the staff side with a view to strengthening and
rationalising the staffing pattern on Railways. The review was undertaken on the basis of functional,
operational and administrative requirement and it was decided that the categories of staff as
indicated in the Annexure to the letter, should be restructured in accordance with the revised
percentages indicated therein. Thus, the review was done with a view to strengthening and
rationalising the staffing pattern and the said exercise was done on the basis of functional,
operational and administrative requirements, after which, it was decided to restructure the staffing
pattern in accordance with the revised percentages. Thus, the exercise done is re-organisation by
restructuring.
15. The scheme further provides that the restructuring of the cadre will be done with reference to the
sanctioned cadre strength as on the cut off date. The cut off date is stated to be 1.11.2003 as per
Board's letter dated 6.1.2004. The benefit of restructuring will be restricted to the persons who are
working in a particular cadre on the cut off date. The scheme applies to regular cadres only.
Paragraph 3 provides for pay fixation. It provides that the pay of the staff selected and posted
against additional higher grade posts as a result of restructuring will be fixed under Rule 1313
(FR-22)(1)(a)(1)-RII. It also provides that the benefit under the rule will not be available in the case
of movement from lower grade to higher grade in the non-functional situation where there is no
change in duties as in the case of movement from Goods Guard to Senior Good Guards and Goods
Drivers to Senior Goods Drivers etc. However, the said benefit will be available in the case of
functional promotions such as promotion from Senior Goods Guard to Passenger Guard and Senior
Goods Driver to Passenger Driver, though in the identical scale of pay. Paragraph 4 of the scheme
provides that the existing classification of posts covered by these orders as 'selection' and
'non-selection' as the case may be, remains unchanged, but in the case of Supervisors, suitability
shall be adjudged by following the modified selection procedure based on scrutiny of service records
and confidential reports only. Paragraph 7 provides that the cadres are being restructured on
functional, operational and administrative considerations and the posts being placed in higher
scales of pay as a result of restructing should include the duties and responsibilities of greater
importance. Paragraph 7 provides for adjustment of excess number of posts due to restructuring and
the excess may be allowed to continue to be phased out progressively with the vacation of the posts
by the existing incumbents. Paragraph 14 of the scheme provides that the existing instructions with
regard to reservation of SC/ST wherever applicable, will continue to apply. Paragraph 18 provides
for matching savings and it is specifically laid down that before restructuring the cadre as per the
revised percentage distribution of posts matching savings will have to be ensured and if the
Department/Railways are not able to provide the matching savings, the particular category/
department will not be restructured. It is also emphasized that there would be no restructuring
without matching savings by surrender of posts.
16. By Board's letter dated 6.1.2004 partial modification of orders contained in letter dated
9.10.2003 had been done. Paragraph 4 of this letter provides for modified selection procedure for all

categories whereas in the letter dated 9.10.2003, the modified selection procedure was to be applied
only in the case of Supervisors erstwhile Mistries. This paragraph now provides that the existing
classification of posts covered by these orders as 'selection' and 'non-selection', as the case may be,
remains unchanged, but for the purpose of implementation of these orders, if an individual Railway
servant becomes due for promotion to a post classified as a 'selection' post,-the existing selection
procedure shall stand modified in such a case to the extent that the selection will be based only on
scrutiny of service records and confidential reports without holding any written and/or viva-voce
test. It further provides that the modified selection procedure has been decided upon by the
Ministry of Railways as a one time exception by special dispensation, in view of the numbers
involved, with the objective of expediting the implementation of these orders. For the posts
classified as 'non-selection' at the time of restructuring, the promotion will be based only on scrutiny
of service records and confidential reports. In the case of Artisan staff, the benefit of restructuring
under these orders will be extended on passing the requisite trade test, but, in the case of placement
of Supervisors erstwhile Mistries to the grade of Rs. 5000-8000 the instructions contained in
Para-13.2 of the Board's letter dated 9.10. 2003, should be followed. Paragraphs 4.1 to 4.6 deal with
the issue as to how the vacancies have to be filled and the said paragraphs arc as under:
4.1 Normal vacancies existing on 01.11.2003 except direct recruitment quota and those arising on
that date from this cadre restructuring including chain/ resultant vacancies should be filled in the
following sequence:
(1)From panels approved on or before 01.11.2003 and current on that date;
(ii) and the balance in the manner indicated in Para 4 above.
4.2. Such selections which have not been finalised by 01.11.2003 should be cancelled/abandoned.
4.3. All vacancies arising from 02.11.2003 will be filled by normal selection procedure.
4.4. All vacancies arising out of the restructuring should be filled up by senior employees who
should be given benefit of the promotion w.e.f. 01.11.2003 whereas for the normal vacancies existing
on 01.11.2003 junior employees should be posted by modified selection procedure but they will get
promotion and higher pay from the date of taking over the posts as per normal rules. Thus the
special benefit of the promotion w.e.f. 01.11.2003 is available only for vacancies arising out of
restructuring and for other vacancies, the normal rules of prospective promotion from the date of
filling up of vacancies will apply.
4.5. In cases where percentages have been reduced in the lower grade and no new post becomes
available as a result of restructuring, the existing vacancies on 01.11.2003 should be filled up by
normal selection procedure.
4.6. Employees who retire/resign in between the period from 01.11.2003 i.e. The date of effect of
this restructuring to the date of actual implementation of these orders, will be eligible for the
fixation benefits and arrears under these orders w.e.f. 01.11.2003.

17. Para 4.1 provides for filling of normal vacancies existing as on 1.11.2003 except direct
recruitment quota and those arising on that date from the cadre restructuring including
chain/resultant vacancies in the sequence given therein. It means that for filling up direct
recruitment quota as also chain/resultant vacancies which arise on that date from restructuring,
Para 4.1 will not apply. Para 4.3 provides that all vacancies arising from 2.11.2003 will be filled by
normal selection procedure. It is pertinent to note that as per Para 4.4. all vacancies arising out of
the restructuring should be filled up by senior employees who should be given benefit of the
promotion with effect from 1.11.2003 whereas for the normal vacancies existing on 1.11.2003, junior
employees should be posted by modified selection procedure but they will get promotion and higher
pay from the date of taking over the posts as per normal rules. Thus, the special benefit of
promotion with effect from 1.11.2003 is available only for the vacancies arising out of restructuring
and for other vacancies, the normal rules of prospective promotion from the date of filling up of the
vacancies will apply. Para 6 provides that while implementing the restructuring orders, the
instructions regarding minimum period of service for promotion from time to time should be
followed. However, while considering any relaxation in the residency period prescribed for
promotions to various categories, General Managers would personally ensure that the safety aspect
of Railways is not compromised.
18. The scheme which we have referred to above was examined by the Full Bench of Central
Administrative Tribunal Allahabad Bench in the case of P.S. Rajput and Ors. v. Union of India and
Ors. (supra) and Moh d. Nivazuddin and Ors. v. Union of India and Ors. (supra) and Unreserved
Employees Association, Rail Coach Factory v. Union of India (supra). The present scheme was
compared by the Full Bench in the said cases with the earlier restructuring scheme in terms of letter
dated 20.12.1983. The Full Bench on comparison of both the schemes, came to the conclusion that
basically, the scheme is the same and by giving a label that it is a promotion, will not take away the
restructuring and make it as a promotion.
19. The scheme dated 9.10.2003 was also the subject matter of consideration before the Central
Administrative Tribunal, Chandigarh Bench in the case of Unreserved Employees Association, Rail
Coach Factory Kapurthala v. Union of India (supra). The Tribunal on comparison of various features
of the scheme came to the conclusion that the scheme dated 9.10.2003 was at par with the scheme
dated 27.1.1973 and it was observed that it appears that by passage of time and after facing various
litigations, the respondents thought of a clever idea to insert a clause by moulding the working that
"The existing instructions regarding reservation of SC/ST, wherever applicable, will continue to
apply". It was also held that placing existing incumbents against higher pay scales is not promotion,
but it is, in fact, a case of restructuring. In this case also, the issue which fell for consideration was:
Whether the policy of reservation shall apply to the scheme of restructuring as enforced by the
respondents with effect from 1.11.2003 or not The issue was answered in the negative and the
impugned Para 14 of the memo dated 9.10.2003 was quashed and set aside with declaration that the
policy of reservation in favour of the members of SC/ST is not applicable to the restructuring
scheme and the respondents were directed to consider the applicants and other eligible candidates
for placing them in the appropriate pay scales under the restructuring scheme as per their eligibility
and suitability without any reference to reservation policy.

20. The salient features of the scheme dated 9.10.2003 are that in case of selection and
non-selection posts, normal vacancies existing on 1.11.2003 shall be filled from panels approved on
or before 1.11.2003 and current on that date and in respect of balance vacancies as on 1.11.2003, the
modified selection procedure is required to be followed by scrutinising the service records and
confidential reports as a one time exception by special dispensation. All vacancies arising from
2.11.2003 are to be filled by normal selection procedure. Thus, regular selection procedure has been
partly given a go-bye and the modified selection procedure has been prescribed as a one time
exception in respect of normal vacancies existing on 1.11.2003. Another important aspect is that all
vacancies arising out of restructuring are required to be filled by the senior employees who will be
given the benefit of promotion with effect from 1.11.2003 whereas for the normal vacancies existing
as on 1.11.2003 junior employees should be posted by the modified selection procedure who will get
promotion and higher pay from the date of taking over the post as per the normal rules. Thus, the
special benefit of promotion with effect from 1.11.2003 is available only for the vacancies arising out
of restructuring and for other vacancies, normal rule of prospective promotion from the date of
filling up the vacancy will apply. This means that all vacancies arising out of restructuring have to be
filled up by the senior employees without following the modified selection procedure. Thus, senior
employees would automatically be adjusted against the vacancies arising out of restructuring. In the
case of Supervisors erstwhile Mistries in the grade of Rs. 4500-7000 plus Rs. 100 special allowance,
Para 13(a) of the scheme dated 9.10.2003 provides for enbloc upgradation to the post of Junior
Engineer Gr.II in the pay scale of Rs. 5000-8000. In fact, the subsequent letter dated 29.5.2004 also
provides that the vacancies arising due to restructuring orders should be filled with senior most
employees. Thus, strictly speaking, adjusting existing senior employees against posts arising out of
restructuring cannot be considered as promotion nor en bloc upgradation of the posts of Supervisor
to the posts of Junior Supervisor.
21. The respondents place heavy reliance on Paragraph 14 of the Scheme dated 9.10.2003 which
states that the existing instructions with regard to reservation of SCs/STs wherever applicable will
continue to apply. This Paragraph 14 of the Scheme dated 9.10.2003 has already been quashed by
the Chandigarh Bench of Central Administrative Tribunal in Unreserved Employees Association,
Rail Coach Factory, Kapurthala v. Union of India and Ors. (supra). In view of this, Paragraph 14 of
the Scheme dated 9.10.2003 does not at all exist now in the said scheme and the same cannot be
looked into.
22. In the case of Pankaj Saxena v. Union of India O.A. No. 426/PB/94 of Chandigarh Bench of
Central Administrative Tribunal, the issue of reservation in restructuring scheme was considered.
The said case related to restructuring of certain Group 'C and 'D' cadres introduced by Order dated
27.1.1993 which included Commercial Inspectors. In the said case, after placing reliance on the
decision of the Calcutta Bench of Central Administrative Tribunal in Birendra Kumar Das v. Union
of India and Ors. 1994(2) ATJ 505; Ashok Kumar Shrivastava and Anr. v. Union of India and Ors.
(1987) 4 ATC 385; N G. Prabhu and Anr. v. Chief Justice, Kerala High Court and Anr. 1973(2) SLR
251 : 1973 SLJ 879 (Kerala HC) and Union of India v. V.K. Sirothia 1999 SCC (L & S) 938, it was
held that reservation would not be available while restructuring the cadre which amounts to only
consideration of persons for being placed in the next higher grade on the basis of their service record
and confidential reports by adjudging their fitness only. The said judgment was upheld by the High

Court of Punjab and Haryana in Union of India and Ors. v. V. Pankaj Saxena and Anr. in CWP No.
10217-CAT-2002 vide judgment dated 22.7.2002. Union of India had filed Special Leave to Appeal
(Civil) No. 11588/2003 against the said order of Punjab and Haryana High Court and the Special
Leave Petitions were dismissed by Order dated 13.5.2005.
23. The controversy relating to applicability of reservation policy to the Scheme dated 9.10.2003
again came up before the Punjab and Harayana High Court in Union of India v. Pushpa Rani and
Ors. in Civil Writ Petition No. 3182/2005. In that matter the Central Administrative Tribunal had
held that the reservation policy would not be applicable in case of restrcturing/upgradation of posts.
These observations were made with reference to the Scheme dated 9.10.2003. The Hon'ble, High
Court considered the issue including the issue relating to Cadre and applicability of the case of R.K.
Sabharwal and Ors. v. State of Punjab and Haryana and Ors. (supra). The Hon'ble High Court after
examining the matter and relying upon the observations of the Apex Court in Contempt Petition
(Civil) No. 304/99 in C.A. No. 1481/96, dismissed the said writ petition.
24. It is also pertinent to note that the total number of posts under the restructuring scheme
remains the same as per the charts furnished by the respondents at page 5 of the reply. In the cadre
of Chief Ticket Inspectors/Ticket Collectors, the total number of vacancies prior to restructuring
were 956 and after restructuring as on 1.11.2003 the vacancies are stated to be 954. In the case of
Station Masters/Assistant Station Masters' cadre, the total number of vacancies prior to
restructuring is stated to be 656 and after restructuring as on 1.11.2003, the vacancies are stated to
be 656. In the various categories of posts of Ticket Collectors and Station Masters, the percentage of
number of posts under each category has undergone change. The said percentage is with reference
to the cadre of Ticket Collectors, Chief Ticket Inspectors/Station Masters/Assistant Station Masters
as a whole. The charts show that the official respondents have themselves taken the cadre as a whole
and only percentage of posts in each category in the said cadre has undergone change but the total
number of posts remains same, the position can be illustrated with reference to Annexure 'A' (i)
(O.A. 1347/2004) and Annexure 'C (O.A. 1318/2004) to the scheme dated 9.10.2003. Annexure 'A'
(i) is as under:
STATEMENT REGARDING RESTRUCTURING OF GROUP 'C and 'D' STAFF OF TRANSPORTATION TRAFFIC DEPARTME
Annexure to Board's letter No. PC III/2003/CRC/6 dated 9.10.03

CATEGORY GRADE EXISTING REVISED
(Rs.) %AGE %AGE
Station 7450-11500 6.5
Masters/
Assistant
4500-7000 8.5
*Foot Note: The revised percentage distribution of posts will be made applicable in the unified

Annexure 'C is as follows:

STATEMENT REGARDING RESTRUCTURING OF GROUP 'C and 'D' STAFF OF COMMERCIAL DEPARTENT
Annexure to Board's letter No, PC III/2003/CRC/6 dated 9.10.03.

CATEGORY GRADE EXISTING REVISED
(Rs.) %AGE %AGE
The above annexures show that Station Masters/Assistant Station Masters fall within one category
and the Ticket Checking Staff is in another category. The said categories denote the cadre namely,
cadre of Station Masters/Assistant Station Masters and the cadre of Ticket Checking Staff. In the
said cadres., different grades of pay are provided as also the existing percentage of grades in the said
cadre and the revised percentage. Corresponding charts showing total number of posts in each
cadre, are found at page 5 of the O. As. and the said charts are as under:
CHIEF TICKET INSPECTORS/TICKET COLLECTORS

Prior Revised
to retruc- distribution
turing as on on in
31.10.2003 restructuring
as on
01.11.03
Designation Grade Percentage
(After
transfer
of posts Increase/
to GNT Decrease
Division
% No. of % No. of
posts posts
1 2 3 4 5 6 7(6-4)
Chief 6500-10 08 64 12 (after 49
Ticket Surren-
Inspector Der of
02 posts)
Ticket
Inspector/
Travelling
Ticket
Examiner/

Travelling 4000-6000 35 398 28 268 -130

Ticket
Examiner
Ticket
Collector 3050-4590 20 162 17 162 -
TOTAL 956 954 -02
STATION MASTERS/ASSISTANT STATION MASTERS
Prior to Under cadre
restructuring restructuring
as on on 01.11.03
31.10.2003
Designation Grade Increase/
Decrease
% No. of % No. of
posts posts
1 2 3 4 5 6 7 (6-4)
Station 7450-11500 03 28 6.5 43 +15
Managers
Station 6500-10500 15 113 22 144 +31
Superin-
tendents
Dy. Station 5500-9000 25 166 30 197 +31
Superinten
dents
Assistant 5000-8000 47 303 33 216 -87
Station
Masters
Assistant 4500-7000 10 46 8.5 56 +10
Station
Masters
TOTAL: 100 656 100 656 Nil
However, the Railways have now come out with a plea during the course of arguments that each
grade in the cadre of Chief Ticket Collectors/Ticket Collectors and Station Masters/ Assistant
Station Masters is a cadre by itself. This aspect was also, in fact, considered by the Central
Administrative Tribunal, Chandigarh Bench in Unreserved Employees Association, Railway Coach
Factory, Kapurthala v. Union of India (supra) In that case, the Tribunal found that "the respondents
were trying to narrow down the scope and meaning of the term "Cadre". The definition of the word
"cadre" given in Fundamental Rule 9(4), which ispari materia to the rules of Railway
Administration, means the strength of a service or part of a service sanctioned as a separate unit.
Therefore, by interpreting this definition, the word "cadre" was held to include all the categories in a
particular wing of service. Certain instances were given that in the clerical cadre. It will include all
the categories starting from Clerk upto Office Superintendent and similar will be the position in the
technical cadres and it cannot be given a restricted meaning so as to restrict it to only one category
out of the total service on the basis of one scale of pay. The Tribunal declared the Railway Board's
letter mentioning that each scale of pay is to be treated as a cadre, as illegal. This judgment was
rendered on 24.11.2004. The Railway Board made a reference to the DoPT and DoPT vide O.M.
Dated 7.3.2005 clarified that the term "cadre" in the O.M. Dated 2.7.1997 has been defined for the

limited purpose of implementation of reservation for SCs, STs and OBCs in services and for
maintenance of reservation rosters/registers for the purpose. It is stated therein that the O.M.
speaks of "cadre" for the purpose of roster and shall mean a particular grade and the definition of
the word "cadre" given in Fundamental Rules 9(4) is not relevant for the purpose of maintenance of
reservation rosters and will be against the policy of reservation. Therefore, the Railway authorities
were advised to file an appeal against the stand taken by the Central Administrative Tribunal in
respect of the definition of the term "cadre". The concept of "cadre" was also considered by the Full
Bench of Central Administrative Tribunal in P.S. Rajput and 2 Ors. v. Union of India (supra) as well
as in Jagdish M. Mistry v. Union of India (supra).
25. It may be mentioned here that the Apex Court in the case of Dr. Chakradhar Paswan v. State of
Bihar and Ors. has laid down that in service jurisprudence, the term 'cadre' has a definite legal
connotation. In the legal sense, the word 'cadre' is not synonymous with 'service'. The Apex Court
has pointed out that Fundamental Rule 9(4) defines the word 'cadre' to mean the strength of a
service or part of a service sanctioned as a separate unit and it is open to the Government to
constitute as many cadres in any particular service as it may choose according to administrative
convenience and expediency. The definition of "Cadre" in FR 9(4) which is pari materia to Rule
103(7) of Indian Railway Establishment Code (Volume-I), cannot be changed by issuing O.M.,
without effecting appropriate change in the FR/Rules in accordance with law.
26. The respondents themselves have determined the percentage of the posts in different categories
of the cadre of Ticket Collectors and Station Masters on the basis of total number of posts in the
cadre and as such the respondents cannot now be allowed to contend that every scale is a cadre by
itself. Thus, it is clear that the total number of posts in each cadre have remained the same even
after restructuring.
27. We shall now deal with the concepts of promotion, upgradation and time bound promotion and
then revert back to the issue of restructuring where total number of posts after restructuring
remains the same.
28. The Full Bench of Central Administrative Tribunal, Allahabad Bench, in the case of P.S. Rajput
and Ors. (supra) had considered the concept of promotion in the light of various judgments referred
to therein and we need not repeat the said exercise. It was held therein that the expression
"promotion" has been understood in the wider sense inasmuch as promotion can be had either to a
higher pay scale or to a higher post. The Full Bench concluded after reference to the authorities that
it is clear that in order to state that there is a promotion in that cadre, it goes with the facts and
circumstances of each case. For this purpose the scheme has to be scrutinised. It was further
observed that normally, promotion would be to a next post and a higher grade or a class of service to
a higher category. In certain circumstances, it can be to higher pay scales but that would be in
peculiar circumstances because promotion necessarily has to be effected in accordance with the
recruitment rules/ that have been framed. If there is only an element of restructuring of scale
without adhering to the recruitment rules it may not amount to a promotion. In this respect, we
would like to emphasise following observations made by the Apex Court in Director, Central Rice
Research Institution, Cuttack and Anr. v. Khetra Mohan Das 1995 SCC L and S 179:

A promotion is different from fitment by way of rationlisation and initial adjustment. Promotion, as
is generally understood, means the appointment of a person of any category or grade of a service or
a class of service to a higher category or grade of such service or class. The promotion to Category II
in the case of the respondent can be only as per Rule 7.2 and not by way of induction as claimed by
the respondent.
29. The concept of upgradation has been dealt with by the Full Bench of Kerala High Court in N.G.
Prabhu and Anr. v. Chief Justice, Kerala High Court (supra). In that case, the Government had
raised the salary scale of a few of the posts of Stenographers to give them belter service conditions.
There was no question of persons so nominated to the higher grades leaving posts which they were
holding and occupying new posts. In this connection, the Full Bench has explained the concept of
upgradation as under:
Promotion is, of course, appointment to a different post carrying a higher scale of pay in the service.
It, to better the conditions of service of the incumbents in posts in the same category the scale of any
of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay.
But in such a case it may not be proper to characterise the event as promotion to higher posts
though a benefit of a higher scale of pay is obtained by all concerned. In other words, if the
upgradation relates to all the posts in a category naturally, there is no sense in calling it a promotion
of all the persons in that category. That is because there is no question of appointment from one
post to another. Parties continue to hold same posts but get a higher scale of pay. It may be that it is
not all the posts in a particular category that are so upgraded, but only a part of it. Normally, the
benefit of such upgradation would go to the seniors in the category. They would automatically get a
higher scale of pay. That is because though their posts continue in the same category a higher scale
of pay is fixed for those posts. It is appropriate then to say that the seniors have been nominated to
the Higher Grade which has been so created by upgradation. This phenomena does not differ from
the case where all the posts are upgraded and, it appears to us that those who get the higher grade
cannot be said to have been promoted' because here again there is no question of appointment from
one post to another. They continue to hold the same post, but because of seniority in the same post
they are given a higher scale of pay. When a person is nominated to the higher scale of pay from
time to time based on seniority it may perhaps loosely be termed as a promotion. But it appears to
us that it is different from promotion as we envisage it normally and promotion as defined in Rule
2(1) of the 1959 Rules.
30. The Principal Bench of Central Administrative Tribunal in Shiv Kumar v. Union of India and
Ors. O.A. No. 1540/2003, has pointed out that a definite proposition of law has been held to
distinguish promotion from upgradation and the test is creation of additional posts.
31. In the case before us, the category/cadre of Ticket Checking Staff O.A. 1318/2004 in Anncxures
'C to the scheme dated 9.10.2003 indicates that there are 5 scales thereunder. The existing
percentage of each scale vis-a-vis entire cadre is also specified therein as also revised percentage on
account of restructuring. The scales remain the same even after restructuring but only there is
re-allocation of number of posts in each scale, but the total number of posts remain same. The
position is same in the case of Station Masters/Assistant Station Masters O.A. 1347/2004, as can be

seen from Annexure ' A' (i) to the scheme dated 9.10.2003 and Chart at page 5 of the said O.A.
32. Thus, upgradation relates to the percentage of posts in each scale after restructuring.
Consequent thereto, some of the senior persons in each scale would be adjusted/reallocated on
account of rationalisation to higher scales of pay and in case of juniors, the said exercise will be done
by modified selection procedure on the basis of service record and confidential reports. The
principle laid down by the Full Bench of the Kerala High Court is, thus, clearly applicable to the
present situation wherein it is laid down that it is not all the posts in a particular category that are so
upgraded, but only a part of it. Normally, benefit of such upgradation would go to the seniors in the
category and they automatically get higher pay scale and in such circumstances, it would be
appropriate to say that senior would be nominated to a higher grade which has been so created by
upgradation. The Full Bench has further laid down that this phenomena does not differ from the
case where all the posts are upgraded and those who get the higher grade cannot be said to be
promoted as there is no question of appointment from one post to another. It is also observed that
when a person is nominated to the higher pay scale from time to time based on seniority, it may
perhaps loosely be termed as a promotion, but it is different from promotion as envisaged normally
and promotion as defined in Rules.
33. In Shamsudclin and Ors. v. Union of India and Ors. 1996 (34) ATC 489, the issue was again
examined with reference to reservations and the distinction between promotion and upgradation
was pointed out as under:
12. The crux of the matter rests on the interpretation of the words 'upgradation' and 'promotion'. In
case 'upgradation' is held to mean "to attain a higher statute while remaining on the same pedestal",
it cannot be equated with 'promotion' which may be understood to mean "moving upwards and
leaving the original pedestal". The dictionary meaning of the word upgradation in the Chambers
20th Century Dictionary, New Edition 1983 has been given as "an upward slope or course" and
'promotion' has been held to mean as "advancement in rank or in honour". Looking at the two
meanings given to the words upgradation and promotion, what is made out is that upgradation
involves the process of moving upwards while remaining on the same pedestal. Whereas promotion
results in (sic) to a higher place leaving behind the original pedestal. Thus, construed even if the
premise taken by the respondents is accepted that upgradation of posts has to be effected to remove
the hurdle of the stagnation mainly in the career of an employee, then it permits such an employee
to receive a higher scale of pay by giving it a different nomenclature but without shifting him from
his post and without clothing him with additional duties and responsibilities. Such an employee gets
the benefit of the upgradation primarily on the basis of his seniority in the basic cadre and moves
nearer to the step which may, ultimately fructify in his promotion to a higher post. In our view the
above interpretation takes us nearer to common sense approach and appeals more to the
conscience. It is also the settled principle of interpretation that words should be interpreted in such
a manner which advance the cause of justice and not retard il. Had it been otherwise and if the
respondents had really wanted to increase the promotional posts they could have done so straight
away by creating new promotional posts with commensurate higher pay scales instead of simply
upgrading certain percentage of posts while restructuring the cadre as a whole and keeping the
strength of the cadre same. It appears that in introducing the scheme of the restructuring of the

cadres by way of upgradation of certain percentage of posts the appropriate authorities have taken
into consideration only the financial constraints and to keep the budgetary expenditure static
without taking into consideration the legal complications which may ensue on implementation of
policy of reservation in thif scheme. This is evident from the history of the scheme, when the policy
of reservation was made applicable to 'en masse' upgradation which ultimately was struck down in
the decision rendered by the Jabalpur Bench of the Tribunal in the case of Ashok Kumar Srivastava
v. Union of India and affirmed by the Hon'ble Supreme Court when a Special Leave Petition No.
10144-46/1988 filed by the Union of India was dismissed vide order dated 26.10.1988. This is the
second chain of litigation whereby the implementation of the policy of the reservation in partial
upgradation is being challenged. In this regard we can beneficially reproduce the relevant portions
of the decision rendered by the Allahabad Bench of the Tribunal in the case of N.K. Sainiv. Director
General RDSO where this controversy has been discussed threadbare. In this decision the Allahabad
Bench of the Tribunal after consideration of the basic letter dated 2.8.1983 issued by the Railway
Board which provided implementation of the reservation policy in cases of partial upgradation also
observed that:
The Railway Board's letter of 2.8.1983 actually talks of no reservation in en masse upgradation while
in partial upgradation of a cadre on the basis of percentage distribution, it provides for the
application of the rules governing reservation as the Board interpreted that such upgradation will
give additional number of higher grade posts. This logic would not seem to be correct. We have
already observed that if there are no additional posts created in en masse upgradation the adoption
of the concept that in partial upgradation additional posts get created would be wrong and
fallacious. Upgradation cannot mean and does not mean the creation of additional posts. It is
placing certain number of posts into the higher grade. If there was a creation of certain number of
posts the total number of posts must have correspondingly increased but that does not happen.
Therefore, we have no hesitation to say that the clause in regard to application of reservation against
the additional number of higher grade posts which become available as a result of cadre
restructuring in Board's letter of 2.8.1983 is uncalled for and against principles of upgradation. This
qualification made by the Railway Board in their letter was uncalled for and is not in consonance
with the aims and objects of the philosophy of upgradation and restructuring Consequently, the
Allahabad Bench of the Tribunal while directing the respondents and allowing the applications held
that:
We allow this application and direct that the applicants will be considered for being put against
these upgraded posts in accordance with the rule seniority subject to rejection of the unfit and no
reservation will be applicable to the posts. Persons wrongly promoted will stand reverted but no
recoveries be made from the over payments made during the period they have officiated. The
applicants would be provided proforma fixation with effect from the dates they should have been
actually promoted i.e., 1.7.1985. They will not be entitled to any arrears on this account. The
application is disposed of accordingly with no order as to costs.
13. When the Union of India against this order went in appeal to the Hon'ble Supreme Court by
filing a Special Leave Petition being Special Leave to Appeal (Civil) No. 10144-46 of 1988, it was
dismissed vide order dated 26.10.1988. Another independent Special Leave to Appeal (Civil) No.

9628-30 of 1988 from the judgment of the Allahabad Bench of the Tribunal in O.As. Nos. 414 of
1988, 468 of 1987 and 432 of 1987 was also filed by Govind Sahai which was also dismissed by the
Hon' ble Supreme Court vide its order dated 31.5.1988 observing that:
Heard learned Counsel for the petitioners at length and also heard learned Counsel for the Central
Government. In our opinion, we see no reason to entertain this Special Leave Petition. It is,
therefore, dismissed.
14. It is thus abundantly clear that the view taken by the Allahabad Bench of the Tribunal in N.K.
Saini case having been affirmed by the Hon'ble Supreme Court; it is now unquestionable that
implementation of the reservation policy in the upgraded posts after restructuring of the cadres
whether 'en masse' or on partial basis is not tenable in the eye of law.
34. Another concept which has lately developed is Time Bound Promotion. This concept was
introduced with a view to give benefit of the employees who had stagnated for a considerable period
and did not get promotion. The schemes are known as TBOP One Time Bound Promotion and BCR
Biennail Cadre Review Schemes. The question whether TBOP or BCR were merely financial
upgradation or promotion, came up for consideration before Full Bench of Central Administrative
Tribunal, Cuttack Bench in the case of Shri D.C. Mishra and 23 Ors. v. Union of India and Ors. O.A.
No. 329/2000. It was held therein that the said schemes were not promotion schemes to the next
higher posts. The matter again came up for consideration before the Central Administrative
Tribunal, Hyderabad Bench in Sk. Abdul Gaffar and 3 Ors. v. Union of India and Ors. O.A. No.
976/2003 and companion O.As., to which one of us Batta, J was a party. Reference in the said Full
Bench was answered by stating that TBOP and BCR schemes were financial upgradations in the
scales and the substitution of the nomenclature of 'promotion' by the word 'financial upgradation' in
the scheme does not make any legal difference.
35. In the case before us, the restructuring has been done to strengthen and rationalise the staff
pattern on Railways on the basis of functional, operational and administrative requirements and
consequently there has been re-arrangement/reallocation of the posts in different scales in the cadre
which will result in adjustment/reallocation of existing employees in the said cadre as a result of
which some of the employees in this process would get higher pay scale. We have already referred to
the scheme and the clarificatiorf dated 6.1.2004 which shows that all vacancies arising out of
restructuring have to be filled up by senior employees who should be given the benefit with effect
from 1.11.2003. The existing selection procedure stands modified and selection will be based on
scrutinising of service records and confidential reports as a one time exception by special
dispensation.
36. At this stage, we would like to refer to the judgment of the Central Administrative Tribunal,
Calcutta Bench in Birendra Kumar Das v. Union of India (supra). It was the case where the applicant
was given the benefit of restructuring but was subsequently reverted by applying reservation rule. It
was held therein that for granting restructuring benefit to the employees under the Railway Board
Circular dated 27.1.1993, reservation for SCs and STs cannot be made and only on the basis of the
seniority-cum-fitness, promotion has to be given. In that case, by way of restructuring, certain

percentage of posts were merely upgraded and to the upgraded posts, promotions were given. The
Calcutta Bench of Central Administrative Tribunal, after considering the judgment of Jabalpur
Bench of Central Administrative Tribunal in A.K. Srivastava v. Union of India and Anr. (supra)
wherein the Full Bench judgment of Kerala High Court in N.G. Prabhu v. The Chief Justice, Kerala
High Court (supra) as also V.K. Sirothia v. Union of India in O.A. 384/86 of Central Administrative
Tribunal, Allahabad Bench, were considered and it was held in A.K. Srivastava's case (supra) that in
restructuring of posts, no new posts were created and some posts out of existing total number of
posts were placed in the higher grade to pi"bvide avenues of promotion to the stagnated employees
and the placement of these posts cannot be termed as creation of additional posts and the only
difference was that some of them were placed in the higher grade and this is neither new
appointment nor promotion. Consequently, reservation of SC/ST candidates to such posts cannot be
made. The same principle was followed by the Calcutta Bench of Central Administrative Tribunal in
the case of Birender Das and Anr. v. Union oflrdia and Ors. (supra).
37. It will be appropriate at this stage to reproduce below, the observations from the case of V.K.
Sirothia v. Union of India (supra) of Allahabad Bench of Central Administrative Tribunal, which
have been quoted as under, in the case of Ashok Kumar Srivastava and Anr. v. Union of India and
Ors. (supra):
The restructuring of posts was done to provide relief in terms of promotional avenues. No additional
posts were created. Some posts out of existing total were placed in higher grade to provide these
avenues to the staff who were stagnating. The placement of these posts cannot be termed as creation
of additional posts. There were definite number of posts and the total remained the same. The only
difference was that some of these were in a higher grade. It was deliberate exercise of redistribution
with the primary object of betterment of chance of promotion and removal of stagnation.
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.
38. We may, at this stage, also point out that the issue relating to application of reservations to the
restructuring scheme dated 9.10.2003, was specifically the subject matter of consideration before
the Chandigarh Bench of Central Administrative Tribunal in the case oi Unreserved Employees

Association, Rail Coach Factory, Kapurtluila v. Union of India and Ors. (supra), before the Full
Bench of Central Administrative Tribunal. Allahabad Bench inP.S. Rajput and Ors. v. Union of India
and Ors. (supn) and before the Bombay Bench of Central Administrative Tribunal in Jagdish M,
Mistry v. Union of India (supra). In all these cases, it was held that reservation of SC/ST shall not
apply while implementing restructuring scheme dated 9.10.2003. It may also be mentioned here
that the Central Administrative Tribunal, Principal Bench, New Delhi had, in another O.A., held vide
order dated 7.8.2002 that there was no reservation in the upgraded posts as a result of
restructuring. Union of India had filed Civil Writ Petition No. 6090/2002 in the Delhi High Court
and the only controversy raised therein was relating to the prospective application of 1993 scheme
which had been quashed, and the said scheme of 1993 has not been even seriously challenged. The
Delhi High Court had dismissed the said writ petition vide order dated 18.11.2003.
39. In Unreserved Employees Association, Rail Coach Factory, Kapurthala v. Union of India and
Ors. (supra), the Division Bench of the Tribunal has referred to O.M. dated 25.10.2004 regarding
application of reservation in Group 'C and 'D' cadres and taking into account the observations of the
Apex Court in Union of India v. V.K. Simthia (supra). Railways were directed to implement the
directions of the Supreme Court and not to apply reservation while filling the posts upgraded on
account of restructuring, by the existing employees. The Division Bench further held that the
Ministry of Railways would be bound by the clarification given by the DoPT.
40. It is relevant and appropriate at this stage to refer to the judgment of the Apex Court in
Shreedharan Kallat v. Union of India and Ors. wherein the Hon'ble Supreme Court has laid down
that the orders of the High Court regarding validity or interpretation of service rules, having
achieved finality, is binding on the Department and cannot be challenged by it is an another case.
The Apex Court found that what was surprising was that apart from respondents, even Railways,
which was unsuccessful twice, again raked up the same controversy and supported the respondents.
The Apex Court has further laid down that the Railways had once again taken up the plea which was
rejected by the High Court and such unwarranted stand by public authorities results in protracted
litigation involving wastage of money and time and the Department is precluded from challenging
the interpretation given by the Court same principle has to be applied and extended at least to the
Full Bench judgment of the Tribunal which has binding effect upon the Division Benches of the
Tribunal and once Full Bench has considered a particular issue and given its findings against the
party, such party, especially Government Departments, cannot be permitted to raise the same
controversy again and again before the Division Bench since it results in not only protracted
litigation inspite of finality of the issue determined by the Full Bench, but it also involves in wastage
of money and lime. The remedy for the official respondents would, therefore, be to challenge the
judgment of the Full Bench. Be that as it may, even on merits, we do not find that the stand taken by
the official respondents can be accepted.
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.
42. In the case of M.L. Rajaram Naik and Ors. v. The Additional Director, CGHS, Bangalore and Ors.
(supra) the respondents had placed reliance on the judgment of Ahmedabad Bench of Central
Administrative Tribunal in Jagdish Bhai C. Vyas v. Union of India O.A. No. 70 of 1998 decided on
24.9.1999 in support of their contention that reservation for Scheduled Castes and Scheduled Tribes
is not applicable to fill up 25% upgraded posts of Pharmacists. In this respect, the Full Bench of
Central Administrative Tribunal, Bangalore Bench, in Paragraphs 6 and 29, observed as under:
The Ahmedabad Bench relying mainly on the order of the Jabalpur Bench in Ashok Kumar
Shrivastava and Anr. v. Union of India and Ors. (1987) 4 ATC 385 which order was affirmed by the
Supreme Court, the decision of the Ahmedabad Bench in All India Non-Scheduled Caste/ Scheduled
Tribe Telecom Employees Association and Ors. v. Union of India andAnr. O.A. No. 623/1996
dictated on 11.4.1997 which order was upheld by the Gujarat High Court and the decision of the
Supreme Court in Union of India v. B.K. Sirothia Civil Appeal No. 3522 of 1995 with C.A. No.
9149/95 decided on 19.11.1998, has held that reservation roster cannot be applied in respect of
upgraded posts of Senior Pharmacists and that these posts should be filled on the basis of
seniority-cum-fitness.
29. The fact that the contrary decision of the Ahmedabad Bench has been affirmed by the Hon'ble
High Court of Gujarat, in our considered view, cannot be a factor pertaining to the question of the
issues referred to Full Bench by the aforesaid Division Bench of the Bangalore Bench of the
Tribunal. The decision of the Hon'ble High Court of Gujarat, as is obvious is not binding on the
Bangalore Bench of the Tribunal though it has persuasive value. Further, when the decision of the
Ahmedabad Bench has been affirmed by the Hon'ble High Court of Gujarat is found to be at
variance with the principles laid down by the Hon'ble Supreme Court, which have not been referred
to by the Ahmedabad Bench at all, or is in conflict with the decision rendered by the Madras Bench
of the Tribunal, it is all the more necessary for the Full Bench to go into the merits-of these decisions
of the Benches of the Tribunal.
43. It may also be pointed out that the case of ML Rajaram Naik (supra) had also dealt with the issue
relating to upgraded posts of BCR Grade IV in the Department of C.G.H.S., and had held that the
same amounted to promotion attracting principles of reservation for special category like SCs and
STs. In this respect, we would like to point out the Full Bench decision of Central Administrative
Tribunal, Hyderabad Bench in the case of Sk. Abdul Gaffar and 3 Ors. v. Union of India and Ors. and
the companion O.As. (supra) to which one of us (Batta, J) was a party, wherein it has been held that
TBOP and BCR schemes were financial upgradations in the scales and the substitution of the
nomenclature of 'promotion' by the word 'financial upgradation' in the scheme does not make any
legal difference. The judgment in the case of M.L. Rajaram Naik partly rests on the premise that
BCR is promotion, which question has been considered at a great length and in greater details in the

Full Bench case of Sk. Abdul Gaffar and 3 Ors. v. Union of India (supra). In view of this, the very
basis on which the judgment in the case of M.L. Rajaramwas rendered, is shaken.
44. The arguments advanced by the learned Counsel for the official respondents based on the
judgment of the Apex Court in R.K. Sabharwal v. State of Punjab (supra) were also duly considered
and rejected not only in the Full Bench judgment of Central Administrative Tribunal, Allahabad
Bench in the case of P.S. Rajput (supra) but also in the Division Bench judgments of Central
Administrative Tribunal, Chandigarh Bench in the case of Unreserved Employees Association Rail
Coach Factory, Kapurthala v. Union of India and Ors. (supra) and of the Central Administrative
Tribunal, Bombay Bench in Jagdish Mistry v. Union of India and Ors. (supra). The official
respondents, therefore, cannot be permitted to raise and advance such arguments again and again
before different Benches of the Tribunal in similar matters dealing with the same scheme dated
9.10.2003.
45. The Full Bench judgment in the case of M.L. Rajaram and Ors. v. Additional Director, CGHS,
Bangalore (supra) was with reference to the different scheme under CGHS whereas the Full Bench
judgment in the case of P.S. Rajput (supra) as also the Division Bench judgment in Unreserved
Employees Association, Rail Coach Factory, Kapurthala v. Union of India and Ors. (supra) and
Jagdish Mistry v. Union of India (supra) are in respect of the same controversy relating to the
scheme dated 9.10.2003. We would like to emphasize that the Apex Court had gone into the
question of restructuring and whether it amounted to promotion as also the question of reservation
in the case of Union of India v. V.K. Sirothia (supra) wherein it was held, C.A. No. 3622 of 1995
1. Heard Counsel on both sides.
2. The finding of the Tribunal that "the so-called promotion as a result of redistribution of posts is
not promotion attracting reservation" on the facts of the case appears to be based on good
reasoning. 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. We do not find any ground to interfere
with the orders of the Tribunal.
3. The civil appeal is dismissed. No costs.
46. It is also pertinent to note that the matter had again come up before the Hon'ble Supreme Court
in All India Non-SC/ST Employees Association (Railway) v. A.K. Agarwal and Ors. Three Judges
Bench. The dispute in the said case had arisen in the case of All India Non-SC/ST Employees
Association (Railway), Bikaner and Anr. v. Union of India and Ors. O.A. No. 326/89. In that case,
the Division Bench of Central Administrative Tribunal, Jodhpur Bench had considered the issue as
to application of reservation for SCs and STs in the case of upgradation of existing posts in the
Railways under the earlier scheme. The Division Bench had held that reservation for SCs and STs
was not applicable in the case of upgradation to all existing posts. This matter had come up before
the Apex Court in Contempt Petition (Civil) No. 304 of 1999. The Apex Court pointed out that in the
order dated 31.1.2001 it was clarified that the principle of reservation does not apply if as a result of
re-classification or re-adjustment no additional post is created. It was also clarified that if as a result

of re-classification and re-adjustment having been effected any post is created then the principle of
reservation would be applicable. It was, however, noticed that the present case was restricted only to
the existing employees who were re-distributed into different scales of pay as a result of this
upgradation. The Apex Court in its order dated 31.1.2001 has, in this connection, has observed:
It appears from all the decisions for that if a result of re-classification on readjustment there is no
additional posts which are created and it is a case of upgradation then the principle of reservation
will not be applicable. It is on this basis that this Court on 19th November, 1998, had held that
reservation for S.C. and S.T. is not applicable in the upgradation of existing posts and Civil Appeal
No. 148/1996 and the connected matters were decided against the Union of India. The effect of this
is that where the total number of posts remained unaltered though in different scales of pay as a
result of re-grouping and the effect of which may be that some of the employees who were in the
scale of pay of Rs. 550-700 will go into the higher scales, it would be a case of upgradation of posts
and not a case of additional vacancy of post being created to which the reservation principle would
apply. It is only of in addition to the total number of existing posts some additional posts are created
that in respect of those additional posts the dispute does not arise in the present case. The present
case is restricted to all existing employees who were re-distributed into different scales of pay as a
result of the said upgradation.
47. In view of the above, we hold that reiterate that the policy of reservation in favour of Members of
SC and ST, is not applicable to the restructuring scheme dated 9.10.2003 and consequently the
respondents are directed lo consider the applicants and other eligible employees for placing them in
the appropriate pay scales under the restructuring Scheme as per their eligibility and suitability
without reference to the reservation policy, from the due date with all consequential benefits, within
a period of three months from the date of receipt of a copy of the order. The impugned order dated
17.12.2004 in O.A. 1318/2004 and the impugned order dated 8.10.2004 in O.A. 1347/2004 are
accordingly set-aside.
48. The O.As. are allowed in the aforesaid terms with no order as to costs.

M. Suresh Kumar and Ors. Vs Union of India (Uoi) and Ors. On 6 March, 2006

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M. Suresh Kumar And Ors. vs Union Of India (Uoi) And Ors.

Central Administrative Tribunal - Hyderabad

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(1)From panels approved on or before 01.11.2003 and current on that date;

(ii) and the balance in the manner indicated in Para 4 above.

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Annexure to Board's letter No. PC III/2003/CRC/6 dated 9.10.03

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Annexure 'C is as follows:

Annexure to Board's letter No, PC III/2003/CRC/6 dated 9.10.03.

CHIEF TICKET INSPECTORS/TICKET COLLECTORS

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Travelling 4000-6000 35 398 28 268 -130

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Department of Telecommunications amounts to promotion attracting principles of reservation for

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1. Heard Counsel on both sides.

3. The civil appeal is dismissed. No costs.

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