UNION OF INDIA versus PUSHPA RANI & OTHERS

44. The Union of India unsuccessfully appealed against 0 the order of the Tribunal inas'much as ·st.P No.11801 of 1987 filed by it was dismissed by this Court on 8.12: 1987 in the fol- lowing terms: · "We have heard the learned counsel for qoth the parties and we have g6n~ through the judgment of the· Central Administrative Tribunal at Jabalpur Bench in Ashok Kumar Shrivastava & Ors. v. Union of India & Ors. (T.A. No.139/86) decided on 24th March, 1987 against which the special leave petition is filed. We agree with the reasons given by the Central : Administrative Tribunal for the.conclusion it has reached. We hereby affirm the judgment of the Central Administrative ·Tribunal. The Special Leave Petition is dismissed."

45. In O.A. No.414 of 1987, N.K. Saini & Others vs. The Director General, ROSO & Others, the applicant challenged the question of application of policy of reservation in the matter of G promotion to the upgraded posts becoming available as. a re- sult of restructuring of cadres in Research Design &-Standards Organization. Allahabad Bench of the Tribunal reforred to the orders passed in V.K. Sirothia's case and A.K. Srivastava's case. and held that the upgraded posts could not have been H offered to the reserved category candidates. -+–· UNION OF INDIA v. PUSHPA RANI ,_~ & OTHERS [G.S. SINGHVI, J.]

46. S.L.P. (C) No.9628-30 of 1988, Govind Sahai & Ors. vs. N.K. Saini & Ors., was dismissed by the Supreme Court by a short order which reads as under:- "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 ~y leave petition. It is, therefore, dismissed.

47. In All India Non SC/ST Employees Association (Rail- way), Bikaner &Anothervs. Union of India & Others, 0.A. No.326 of 1989, Jodhpur Bench of the Tribunal ruled that the reserva- c tion for Scheduled Castes and Scheduled Tribes is not appli- cable in the case of upgradation of the existing posts.

48. Petition for special leave to appeal filed by the Union of India against the afore-mentioned order which was converted as Civil Appeal No.1481of1996 was dismissed by this Court D on 19th November, 1998 in the following terms:- "Special Leave granted in S.L.Ps. Heard counsel on both sides. This court on 3.1.96 granted special leave but limited to the proposition that the reservation for SC and ST is not applicable in the case of upgradation of existing posts. This issue we have decided today in Civil Appeal No.3622/ 95 etc. In the light of that decision, these appeals are dismissed with no order as to costs."

49. The Association which was respondent before this ~ –', Court, filed Contempt Petition (C) No.304 of 1999. During the pendency of the Contempt Petition, the railway administration filed I .A. No.2 of 2000 for clarification of order dated 19th No- vember, 1998 by claiming that there was a lot of confusion. The same was disposed of vide this Court's Order dated 31.1.2001. The relevant portions of which read as under:- _ _,_ "It appears from all the decisions so far that if as a result of reclassification or 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 .f~ '- on this basis that this Court on 19th November, 1998 had t held that reservation for SC and ST is not applicable in the upg radation of existing posts and Civil Appeal No.1481 / 1996 and the connected matters were decided against the Union of India. The affect of this is that where the total number of posts remained unaltered, though in different scales of pay, as a result of regrouping and the effect of -r · 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 no_t a case c of additional vacancy or post being created to which the reservation principle would apply. It is only if in additional to the total number of existing posts some additional posts are created that in respect of those additional posts the reservation will apply, but with regard to 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."

50. In K. Manickaraj's case the Court considered whether E the benefit of reservation could be extended to the appellant while making appointment on the post of Welfare Inspector Grade II. The Court noted that as a result of restructuring, the number of posts available in cadre of Welfare Inspector Grade II increased from 23 to 26 and if reservation of 15% of promo- tion was given to Scheduled Castes, 4 posts would be avail- able for reserved category. On behalf of the respondents, it was ~-4 pleaded that there has been no change in the strength of the posts in Grade II which remained 23 and the upgraded posts were meant only for sport persons. The Tribunal accepted the G contentions raised by the respondents and negatived the claim of appellant. This Court reversed the order of the Tribunal and observed:- t- "It is admitted that the total r:iumber of posts in Grade II …. was 23 and 3 posts from Grade 111 were upgraded to that of Grade 11. The upgraded posts which. were made as UNION OF INDIA v. PUSHPA RANI & OTHERS [G.S. SINGHVI, J.] early as in August 1987, as per Memorandum dated 24- 8-1987, still continue. It is, therefore, not possible for us to accept the contention of the learned counsel for the respondent that the alleged upgradation was made for a temporary period meant for sports personnel. The posts which were upgraded in the year 1988 having continued till date, the cadre strength of Grade II Inspectors must be held to have become 26 and not 23 as contended by the respondent. If 15% of the cadre is meant for reserved category people then it would work out at 4 and admittedly there are only 3 persons belonging to the Scheduled Castes in Grade 11. In that view of the matter the appellant was entitled to be promoted against the 15% reserved quota of posts in Grade II treating the total number of posts in Grade II to be 26. In our considered opinion the Tribunal was in error in not taking into account the upgraded posts which have been upgraded from Grade Ill to Grade II on the ground that it was meant for sports personnel. While computing the number of posts available for reserved category, there is no justification to exclude the upgraded posts which had continued from 1988 till date."

51. An analysis of orders passed by the Tribunals and this Court shows that all cases except that of K. Manickaraj's case involved upgradation of large number of posts which could be filled by placing the existing incumbents in the higher grade with- out 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 Castes and Scheduled Tribes is not applicable where cadre restructur- ing results in mass upgradation of posts and held that the ad- ministration was required to make appointment/placement G against tbe upgraded posts without reserving posts for'Sched.:. uled Castes and Scheduled Tribes. This Court repeatedly em- phasized that the restructuring exercise did not result in cre- ation of new posts/additional posts which could be filled by pro- motion by following the procedure of selection. Therefore, these A decisions are of no help to the cause of the respondents. At the cost of repetition, we consider it necessary to emphasize that restructuring exercise envisaged in letter dated 9.10.2003 re- sulted in creation of additional posts in most of the cadres cov- ered by the policy and the government had taken a conscious B decision to fill up such posts by piOmotion from amongst eli- gible and suitable employees and the promotees were burdened with duties and responsibilities of greater importance. There- fore, the Tribunal and High Court were not justified in treating it as a case of upgradation of posts simplicitor. Consequently, c the decision of the Tribunal to quash para 14 of letter dated 9.10.2003 and direction given for making appointments de hors the policy of reservation are legally unsustainable.

52. The arguments made by learned counsel in the con- text of paras 11 and 15 need not detain us because none of the D issues decided by the Tribunal and High Court relate to direct recruitment against future vacancies. ·

53. The point remains to be considered is whether the order of the Tribunal, which has been confirmed by the High E Court, can be maintained by applying the ratio of M. Nagaraj's case. Dr. Rajiv Dhawan, learned senior counsel appearing for some of the respondents, made strenuous efforts to convince us that the policy of reservation cannot be applied at the stage ·of making promotions because the Railway Administration did not produce any evidence to show that Scheduled Castes and F Scheduled Tribes were not adequately represented in different cadres and that the efficiency of administration will not be jeop- ardized by reserving posts for Scheduled Castes and Sched- uled Tribes, but we have not felt persuaded to accept this sub- mission. In the applications filed by them, the respondents did G not plead that the application of the policy of reservation would lead to excessive representation of the members of Scheduled Castes and Scheduled Tribes, or that the existing policy of res- ervation framed by the Government of India was not preceded by an exercise in relation to the issue of adequacy of their rep- H resentation. Rather; the thrust of their claim was that restructur- UNION OF INDIA v. PUSHPA RANI & OTHERS [G.S. SINGHVI, J.] ing of different cadres in Group C and D resulted in upgradation of posts and the policy of reservation cannot be applied qua upgraded posts. Therefore, the Union of India and the Railway Administration did not get opportunity to show that the employ- ees belonging to Scheduled Castes and Scheduled Tribes did >- y not have adequate representation in different cadres; that the outer limit of reservation i.e. 50% will not be violated by apply- ing the policy of reservation and that the efficiency of adminis- tration will not be jeopardized by applying the policy of reserva- tion. Therefore, it is neither possible nor desirable to entertain a totally new plea raised on behalf of the respondents, more so, because adjudication of such plea calls for a detailed investi- c gation into the issues of facts. Civil Appeal No.· 4712@ S.L.P. (C) No.5045 OF 2007

54. Leave granted.

55. In this appeal, Union of India and two others have chal- lenged order dated 5.4.2006 passed by Allahabad Bench of the Tribunal and order dated 6. 7.2006 passed by High Court of Allahabad in Writ Petition No.34662 of 2006. The facts culled out from the record of the appeal show that as a result of cadre restructuring exercise undertaken pursuant to the policy con- tained in letter dated 9.10.2003, two posts of Personal lnspec- tor Grade I (Rs.6500-105001-) became available in Varanasi Division of Northern Railway. One of these posts was earmarked for general category and the other for the reserved category. __ …. The respondent who was holding the post of Senior Personal Inspector represented for appointment against the unfilled post earmarked for reserved category by contending that she fulfils the conditions of eligibility. Her claim was rejected by the com- petent authority on the premise that the reserved post cannot G be offered to general category candidate. She then filed O.A. No.509 of 2005. The Allahabad Bench of the Tribunal relied on the order passed by this Court in VK. Sirothia's case and the one passed by the Full Bench of the Tribunal fn O.A. No.933 of 2004 (PS. Rajput and two others v. Union of India and Others) Sl)PREME COURT REPORTS [2008) 11 S.C.R. and held that the applicant (respondent herein) is entitled to be considered for the second post. The High Court also relied on the order passed in VK. Sirothia's case and dismissed the writ petition filed by the Union of India and others. ;r

56. We have heard learned counsel for the parties. In view B of the findings recorded by us in civil appeals that policy of res- ervation is applicable to the cadre restructuring exercise un- dertaken pursuant to the policy contained in letter dated 9.10.2003, the orders impugned in civil appeal arising out of Special Leave Petition (Civil) No.5045 of 2007 are liable to be C set aside.

57. In the result, the appeals are allowed and the impugned orders are quashed. As a consequence, the original applica- tions filed by the respondents in all the cases shall stand dis- D missed. However, parties are left to bear their own costs. K.K.T. Appeals allowed.