# Durga Prasad & Ors v. Union of India & Ors

- **Citation:** (2019) 4 ILRA 1100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-16
- **Case number:** Writ-A No. 10265 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-prasad-ors-v-union-of-india-ors-44854
- **Pages:** 14

## Headnote

A. Service Law - Reconstruction of
different cadres - resulted into additional
post
of
different
responsibilities
of
greater importance in the higher postdifferent cadre are required to be filled
by
promotion
amongst
eligible
employees-no
illegality
in
impugned
order.

Held - upgradation in the case in hand
resulting into increase in posts in superior
cadres including that of A.S.I. have been
treated to be a promotion, for which eligibility
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1101
conditions
and
burdening
of
different
responsibilities of greater importance in the
higher posts are all to be shared by Officials,
who are promoted against prescribed posts.
(Para 29)

Writ Petition dismissed. (E-9)

List of cases cited: -

## Text

_Characters 0–39,990 of 42,901. This is a partial read: ask again with offset=39990 for what follows._

1100 INDIAN LAW REPORTS ALLAHABAD SERIES
Court once the plea of arbitrariness fails.
The Hon'ble Supreme Court in Secretory,
Government (NCT Of Delhi) and others
Vs. Grade-I DASS Officers Association
and others (2014) 13 SCC 296 has been
pleased to observe that power of judicial
review would not be warranted once the
policy itself is not found violative of
Article 14 and 16 of the Constitution of
India.

24. The petitioner had worked with
the Organization from 2001 to 2010
whereafter he has been offered fresh
appointment in the Department of Minor
Irrigation of the State of Uttar Pradesh.
The
fresh
employment
offered
to
petitioner is with a different employer and
his services with the subsequent employer
would be governed by entirely distinct set
of rules from what existed earlier. The
period of service rendered hitherto to the
previous employer would not be relevant
for the purposes of examining plea of
stagnation
against
the
subsequent
employer, which alone justifies grant of
financial upgradation under the ACP
scheme in question. Other issues like pay
protection and counting of services for
grant of pensionary benefits are governed
by separate and distinct consideration and
set of rules/ executive instructions and
have already been allowed to the
petitioner by the subsequent employer
and, therefore, these aspects requires no
further examination.

25. In view of the aforesaid
deliberations and discussions, I have no
hesitation in rejecting challenge laid to
Clause (10) of the Government Order
dated 05.11.2014 on the ground of it
being arbitrary and violative of Article 14
and 16 of the Constitution of India.
Clause (10) of the Government Order is
found to be just and valid. Petitioner's
plea for counting of his services rendered
to the previous employer, for determining
stagnation in the employment of the
Department of Minor Irrigation, and
thereby to grant financial upgradation in
lieu thereof, also can not be sustained.
Writ petition consequently fails and is
dismissed. No order is passed as to costs.
----------

(2019)12 ILR A1100

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 10265 of 2005
with
Writ-A No. 27418 of 2005

Durga Prasad & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajendra Rai, Sri S.K. Srivastava, Sri
Vijay Gautam, Sri Ram Ji Singh

Counsel for the Respondents:
Sri Govind Saran, Sri Anand Kumar, S.C.,
Sri Sharad Ranjan Nigam, Sri Vivek Singh,
Sri P.K. Pandey

A. Service Law - Reconstruction of
different cadres - resulted into additional
post
of
different
responsibilities
of
greater importance in the higher postdifferent cadre are required to be filled
by
promotion
amongst
eligible
employees-no
illegality
in
impugned
order.

Held - upgradation in the case in hand
resulting into increase in posts in superior
cadres including that of A.S.I. have been
treated to be a promotion, for which eligibility
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1101
conditions
and
burdening
of
different
responsibilities of greater importance in the
higher posts are all to be shared by Officials,
who are promoted against prescribed posts.
(Para 29)

Writ Petition dismissed. (E-9)

List of cases cited: -

1. All India Non-SC/ST Employees Association
Railway Versus V. K. Agarwal and others,
(2001) 10 SCC 165

2.Union of India versus V. K. Sirothia, 2008 (9)
SCC 283

3. R. K. Sabharwal Vs. State of Punjab, 1995
(2) SCC 745

4. Girdhari Lal Kohli vs. Union of India, Writ
Petition No.7386-93 of 1984

5. M. L. Rajaram Naik and others vs. The
Additional Director, CGHS, Banglore and others

6. India Vs Pushpa Rani and others, 2008 (9)
SCC 244

7. D. P. Upadhyay vs. G.M., N.R. Baroda
House and Others, -15- 2002 (10) SCC 258.

8. State of Rajasthan Vs Fateh Chand Soni,
(1996) 1 SCC 562.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Rajendra Rai, learned
counsel for petitioners and Sri P.K.
Pandey, Advocate holding brief of Sri
Sharad Ranjan Nigam, learned counsel for
respondent.

2. Writ Petition (A) No.10265 of
2005 (hereinafter referred to as "Petition1") has been filed under Article 226 of the
Constitution by nine petitioners namely,
Durga Prasad, Prem Chandra Dubey,
Chandrajeet Yadav, Krishna Joshi, Sri
Ram
Dubey,
Vijay
Shanker
Singh,
Krishna Mohan Tiwari, Ram Nagina
Yadav and Arvind Rai praying for issue of
writ of certiorari quashing order dated
14.02.2005 (Annexure 4 to writ petition)
in so far as it relates to up-gradation of
respondents 5 to 19 to the post of Sub
Inspector,
Railway
Protection
Force
(hereinafter referred to as "R.P.F.") from
the post of Assistant Sub Inspector, R.P.F.
Petitioners have also prayed for issue of a
writ
of
mandamus
commanding
respondents 3 and 4 not to apply rule of
reservation for Scheduled Caste and
Scheduled Tribe while restructuring the
cadre of Group C of R.P.F. Employee
(Combatised).

3.

All
the
petitioners
are
substantively appointed Assistant Sub
Inspector (hereinafter referred to as
"A.S.I.") in R.P.F. and posted at different
places
in
North
Eastern
Railway,
Gorakhpur (hereinafter referred to as
"N.E.R., G.K.P.") when writ petition was
filed. Private respondents 5 to 19 are also
A.S.I.s in R.P.F. in different areas under
control of N.E.R., G.K.P. A seniority list
of A.S.I.s under control of N.E.R., G.K.P.
was published on 30.01.2004/14.02.2004
in which petitioners are placed at serial
numbers 26, 28, 31, 32, 34, 35, 36, 38 and
39 respectively. Railway Board decided to
restructure Group 'C' and Group 'D' cadres
of R.P.F. and Railway Protection Special
Force
(hereinafter
referred
to
as
"R.P.S.F."), both "Combatised" and "NonCombatised", and issued a Circular dated
15.09.2004, determining 01.11.2003 as
the date of giving effect for restructuring
in respect of Artisan and Ancillary
categories
of
RPF/RPSF
NonCombatised,
and
01.07.2004
for
restructuring in respect of 'combatised'
staff of RPF/RPSF. The detail and the
manner in which said restructuring is
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
required to be done, was provided in
aforesaid Circular but in para 9 it was said
that existing instructions with regard to
reservation of Scheduled Caste and
Schedulec Tribe wherever applicable shall
continue to apply. The restructuring was
made on existing strength, but by upgradation of certain posts. Procedure for
existing classification and filling up of
vacancies was prescribed in para 3, which
reads as under :-

3. The existing classification of
the posts covered by these orders as
'selection' and non-selection', as the case
may be, remains unchanged. However, for
the purpose of implementation of these
orders the existing selection procedure
will stand modified to the extent that the
selection will be based only on scrutiny of
service records and confidential reports
without
holding
any
written/vivavoce/physical test. In this procedure, the
selection Board is supposed to consider
the claims of the eligible staff one by one
in order of their seniority. It will
scrutinise
the
service
records
and
confidential reports of staff beyond the
number equal to the number of posts
calculated in terms of para 3.1 below only
to the extent the number of staff is found
unsuitable for promotion. Further while
implementing the restructuring on the
basis of above procedure, instructions
contained in Board's letter No.E(NG) I92/CR/# dt. 08.10.93 should be kept in
view. Naturally under this procedure the
categorization as 'outstanding' will not
figure in the panels. This 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. In the case of Artisan
staff, the benefit of restructuring under
these orders will be extended on passing
the requisite Trade Test.

3.1 Normal vacancies existing
on the date of effect viz, 01.11.03 (in
respect of non-combatised staff) or
01.07.2004 (in respect of combatised
staff), 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 :

(i) From panels approved on or
before 19.03.2004 (in respect of noncombatised staff) or 01.07.2004 (in
respect of combatised staff) and current
on that date ;

(ii) and the balance in the
manner indicated in para 3 above.

3.2 Such selections which have
not been finalised by 19.03.2004 (in
respect of non-combatised staff) and
01.07.04 (in respect of combatised staff)
should be cancelled/abandoned.

3.3 All vacancies arising from
the date following the date of effect (viz.
02.11.03 in respect of non-combatised
staff
and
02.07.04
in
respect
of
compatised staff) will be filled by normal
selection procedure.

3.4 All vacancies arising out of
the
restructuring
(including
chain
vacancies arising out of restructuring)
should be filled up by senior employees
who should be given benefit of the
promotion from the respective date of
effect whereas for the normal vacancies
existing on the date of effect 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
from the date of effect (viz. 01.11.03 in
respect
of
non-combatised
staff)
is
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1103
available only for vacancies arising out of
restructuring (including chain vacancies
arising out of restructuring) and for other
vacancies the normal rules of prospective
promotion from the date of filling up of
vacancy will apply.

3.5 In case where percentages
have been reduced in lower grade and no
new post becomes available as a result of
restructuring,
the
existing
vacancies
already available on the respective date of
effect should be filled up by the normal
selection procedure.

3.6 Employees who retire/resign
in between the period from the respective
date of effect (viz. 01.11.03 in respect of
non-combatised staff and 01.07.2004 in
respect of combatised staff) to the date of
actual implementation of these orders,
will be eligible for the fixation benefits
and arrears under these orders from the
date of effect.

3.7 It is also clarified that the
panels approved till 19.03.2004 and
current on above date are to be operated
to cover only the already existing
vacancies of non-combatised categories
(except DR quota) as on 01.11.2003 as
per Para 3.1 (i) above and the remaining
existing vacancies (except DR quota) and
those
arising
out
of
restructuring
(including
chain/resultant
vacancies)
should be filled up as per para 3.1 (ii)
above. In this connection the clarification
contained
in
Board's
letter
No.
III/2004/CRC/3 dt. 03.06.2004 may also
be kept in view."

4. As per Annexure-A to the
aforesaid Circular, revised percentage of
various posts in rank/category of RPF
(Combatised) was as under :

Rank/
Catego
Pay
Scal
Revised %age
ry
e
Inspect
or -I

Inspect
or-II
6500
-
1050
0
+200
SP

6500
-
1050
0
2.75
Sub
Inspect
or
5500
-
9000
4.50
Asst.
Sub
Inspect
or
4000
-
6000
7.75
Head
Consta
ble
3200
-
4900
34.00
Consta
ble
3050
-
4590
51.00

5.

The
question,
"whether
reservation will apply and no additional
posts are created due to restructuring of
cadre", came up for consideration before
Supreme Court in All India Non SC/ST
Employees Association Railway Versus
V. K. Agarwal and others, (2001) 10
SCC 165, Cont. Petition (Civil) 304 of
1999 in Civil Appeal No.1481 of 1996,
and Supreme Court in its order dated
31.01.2001, clarified the position as under
:

"ORDER

It appears from all the decisions
so far that if as a result of re-
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
classification or re-adjustment 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 SC & ST is not
Applicable in the upgradation of existing
posts and civil civil appeal no.1481/1996
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 regrouping 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 in
the higher scales, 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. It is only if in addition 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 these additional
posts the dispute does not arise in the
present case. The present case is
restricted to all existing employees who
were re-distributed in-to different scales
of pay as a result of the said upgradation.

The Union Of India shall rework the seniority in the light of the
clarification made today and report back
within 6 weeks from today.
List after 6 weeks."
(emphasis added)

6. Following aforesaid order, an
Office Memorandum was issued by
Ministry of Personnel, advising Ministry
of Railway to implement directions of
Supreme Court contained in Union of
India versus V. K. Sirothia, 2008 (9)
SCC 283 and further clarification made in
Contempt Petition No.304 of 1999, All
India
Non
SC/ST
Employees
Association
(Railways)
Vs.
V.
K.
Agarwal
and
others
(supra).
Government of India's Circular dated
25.10.2004 reads as under :

" The undersigned is directed to
refer to the Ministry of Railways U.O.
Note No. 2004-E(SCT)I/25/1 dated 7th
May, 2004 on the subject noted above and
to say that the Supreme Court in the
matter of Union of India versus 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
versus
V.K.
Agarwal And Others] 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 re-distributed into different
scales of pay as a result of upgradation,
there cannot be any reservation.

2.
The
matter
has
been
examined
keeping
in
view
the
observations of the Supreme Court. The
Ministry of Railways are advised 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."
 (emphasis added)

7. Ignoring same, however, official
respondents have applied reservation on
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1105
upgraded cadre and promoted respondents
5 to 19 by impugned order dated
14.02.2005, mentioning their names from
serial number 24 to 38 though they are all
much junior to the petitioners finding
place in seniority list from serial number
40 to 71 and, therefore, impugned list is
illegal.

8. Respondents 1 to 4 have filed
counter affidavit. It is said that before
restructuring 123 posts of Sub Inspectors
were sanctioned, out of which 3 posts
were ex-cadre. 50 % of vacancies are to
be filled in by direct recruitment and 50 %
by departmental selection. Thus, 60 posts
comes to be filled through different
source of recruitment. As a result of
restructuring 40 vacancies came together
with 60 posts available for departmental
selection and total comes to 100 posts.
Out of 100 posts reservation for S.C. is 15
% and for S.T. is 7.5 %, but respondents
could find only 7 S.C. and 3 S.T.
candidates suitable and available against
upgraded vacancies of Sub Inspectors and
they have been promoted. Rule of
reservation has been applied in the light
of Circular dated 15.09.2004, clearly
providing for reservation. With regard to
directions of Supreme Court in V. K.
Agarwal (supra), it is clear that aforesaid
direction is not consistent with law laid
down by Supreme Court in R. K.
Sabharwal Vs. State of Punjab, 1995 (2)
SCC 745 followed in Girdhari Lal Kohli
vs. Union of India, Writ Petition
No.7386-93
of
1984
decided
on
26.07.1995.

9. Petitioners have filed rejoinder
affidavit and I may refer to the same at a
later stage whenever is required.

10. Counter affidavit has been filed
on behalf of respondents 5, 6, 9, 11, 13,
14, 15, 16 and 18. It is said that benefit of
reservation has been given based on roster
as per Supreme Court Judgment in R. K.
Sabharwal (supra). Vacancy position of
Cadre of Railway Protection Force, N.E.
Railway, Gorakhpur as on 01.07.2004 in
form of chart is given as under :

Rank E
xi
st
in
g
%

o
f
s
a
n
ct
io
n
e
d
st
re
n
gt
h
R
e
v
i
s
e
d

%

o
f

s
a
n
c
t
i
o
n
e
d

s
t
r
e
n
g
t
h
Sanc
tion
ed
Stre
ngth
Prio
r to
1.7.2
004
Total
posts
After
revised
%
of
cadre
under
restructu
ring
on
1.7.04
V
a
c
a
n
ci
e
s
c
r
e
a
te
d
u
n
d
e
r
r
e
st
r
u
ct
u
ri
n
g
w
.e
.f
1.
7.
0
Ex
isti
ng
Va
ca
nc
y
Pri
or
to
Re
str
uct
uri
ng
Resul
tant
vacan
cy
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
4
Insp
ector
-I
6,500
-
10,50
0

2
.
7
5
67
84
+
1
7
12 _
Sub
Insp
ector
Gr.5
5009000

4
.
5
0
123
137
+
1
4
2
29
Asstt
.
SubInsp
ector
4,000
-
6,000
/-

7
.
7
5
180
235
+
5
5
22 16
Hd.
Cons
table
3,200
-
4,900

3
4
.
0
0
1059 739
-
2
6
32
0
370
Cons
table
3,050
-
4,590
/-

5
1
.
0
0
1609 1343
-
6
0
26
4
574

11. The private respondents have
also relied on Full Bench judgment passed
by
Central
Administrative
Tribunal,
Banglore Bench, Banglore in M. L.
Rajaram Naik and others vs. The
Additional Director, CGHS, Banglore
and others holding that appointment to
the upgraded post amounts to promotion
attracting the principles of reservation for
special categories like SCs and Sts.

12. Writ Petition (A) No.27418 of
2005 (hereinafter referred to as "Petition2") has been filed under Article 226 of the
Constitution by three petitioners namely,
Sanjay Kumar Singh, Babban Kumar
Singh and Rakesh Kumar Singh assailing
upgradation of respondents 5, 6 and 7 on
the post of Inspector, R.P.F., North
Eastern Railway, Gorakhpur on the
ground that reservation could not have
been applied. Respondent 5's upgradation
has been challenged on additional ground
that earlier he was posted at East Central
Railway,
Hajipur
and
thereafter
transferred, therefore, he could not have
been considered for restructuring. With
respect to respondents 6 and 7, it is also
contended that reservation quota is
already full and, therefore, reservation
cannot be applied.

13. Here also, the stand taken by
official respondent in the counter affidavit
is similar to that as has been taken in
Petition I, therefore, I am not repeating
the same.

14. The short issue up for
consideration in these matters is "whether
upgradation of posts on account of
restructuring of cadre, can be treated as
promotion so as to attract provisions of
reservation relating to Scheduled Caste
and Scheduled Tribe and Other Backward
Class etc".

15. From facts discussed above it is
evident that as a result of restructuring,
lower posts of Constable and Head
Constable have reduced while there is
increase in superior posts like A.S.I., S.I.
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1107
and Inspector-I. The existing strength of
A.S.I. prior to 01.07.2004 was 180 and as
a result of restructuring with effect from
01.07.2004, it has become 235.

16. I find that initially the issue,
whether upgradation of posts will amount
to promotion or not, was raised before
Central
Administrative
Tribunals
at
different places wherein answer was given
in negative. Union of India brought the
matter in appeal and these appeals were
decided vide judgment dated 19.11.1998
by Supreme Court in Union of India vs
V. K. Sirothia (supra), and the short
judgement reads as under :

"CA 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 order of the Tribunal.

3. The civil appeal is dismissed.
No costs.

CA No.9149 of 1995

4. In view of the order passed in
Civil Appeal no.3622 of 1995, etc., this
appeal has to be allowed as in the order
under appeal the Tribunal has taken a
contrary view. The appeal is, therefore,
allowed. No costs."
 (emphasis added)

17. After above judgment it appears
that grievance of non compliance was
made in Contempt Petition No.304 of
1999, All India Non-SC/ST Employees'
Association (Railway) vs. V. K. Agarwal
and others (supra), wherein Supreme
Court
passed
order
on
31.01.2001
clarifying the position as under :-

"1. It appears from all the
decisions so far that if as a result of
reclassification or readjustment, there
are 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 19-11-1998 had held that
reservation for SC and ST is not
applicable in the upgradation of existing
posts and Civil Appeal No.1481 of 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
regrouping 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 or post being created
to which the reservation principle would
apply. It is only if in addition 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 redistributed into different scales of
pay as a result of the said upgradation.

2. The Union of India shall
rework the seniority in the light of the
clarification made today and report back
within 6 weeks from today.

3. List after 6 weeks."
 (emphasis added)
1108 INDIAN LAW REPORTS ALLAHABAD SERIES

18. It is on the basis of these two
orders of Supreme Court, petitioners have
claimed that provisions of reservation
could not have been followed and,
therefore, promotion of respondents 5 to
19 in Petition-1 and respondents 5 to 7 in
Petition-2 on upgraded posts treating the
vacancies reserved, are illegal.

19. However, I find that subsequently
the same issue has been examined by
Supreme Court in detail in Union of India
Vs Pushpa Rani and others, 2008 (9) SCC
244. Therein cadre restructuring given effect
vide
Railway
Board's
letter
No.PCIII/2003/CRC/6 dated 09.10.2003 was up for
consideration.
Central
Administrative
Tribunal
(hereinafter
referred
to
as
"Tribunal") at its Bench in Chandigarh and
Allahabad decided Original Applications
filed before it under Section 19 of
Administrative Tribunal Act, 1985 in favour
of applicant employees following judgment
in All India Non-SC/ST Employees'
Association (Railway) Vs. V. K. Agarwal
(supra). Writ petitions filed before Punjab
and Haryana High Court and this Court,
respectively, were dismissed. Thereafter
matter was taken by Union of India before
Supreme Court. It noted that till 1997 policy
of reservation was applied on vacancy-wise
basis. Later on following judgment of
Supreme Court in R. K. Sabharwal (supra)
wherein it was held that rosters must be
operated with reference to the posts and not
the vacancies, the policy was changed.
Earlier provisions were revised by Railway
Board's Circular No.113/97 vide Letter
No.95-E (SCT)1/49/5 (1) dated 21.08.1997.

20. Provisions of restructuring
which was up for consideration in Union
of India Vs. V. K. Sirothia (supra) were
provided in Railway Board's Circular
No.181/85
issued
vide
Letter
No.PCIII/84/UPG/19 dated 25.06.1985.
Later
on
restructuring
policy
was
circulated
vide
Letter
No.PCIII/2003/CRC/6
dated
09.10.2003.
Noticing provisions of both Circulars
dated
25.06.1985
and
09.10.2003,
Supreme Court found that there was
substantial differences/dissimilarities in
the provisions of two Circulars and those
differences were highlighted in para 29 of
the judgment which reads as under :

"29. A cursory reading of the
relevant extracts of Letters dated 25-61985
and
9-10-2003
reproduced
hereinabove may give an impression that
the policies contained therein are similar
but a closer scrutiny thereof reveals the
following stark dissimilarities :

(i) In terms of Para 5.1 of Letter
dated
25-6-1985,
the
existing
classification of the posts covered by the
restructuring orders i.e. "selection" and
"non-selection" was to be retained.
However, for the purpose of promoting
an individual railway employee there was
deemed modification of the selection
procedure and the promotion was to be
made without holding any written test
and/or viva-voce. As against this, action
in terms of para 4 of letter dated
9.10.2003 is required to be taken for
making appointment on the basis of
selection/non-selection/suitability/Trade
Test and in para 5, the requirement of
D&A/Vigilance clearance has been made
mandatory for effecting promotion with
reference to the cut off date.

(ii) While the policy contained
in letter dated 25.6.1985 did not specify
any minimum period of services as a
condition for promotion, para 6 of letter
dated
9.10.2003
lays
down
the
requirement of minimum period of
services as a condition for promotion
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1109
and also declares that residency period
prescribed for promotion to various
categories should not be relaxed.

(iii) Para 9 of letter dated
25.6.1985 postulated retention of basic
functions, duties and responsibilities and
addition
of
other
duties
and
responsibilities, whereas para 7 of letter
dated 9.10.2003 mandates that posts
being placed in the higher scales of pay
should
include
the
duties
and
responsibilities of greater importance
because restructuring is contemplated on
functional, operational and administrative
considerations.

(iv) While the policy contained
in letter dated 9.10.2003 postulates
progressive phasing out of excess number
of posts in a particular cadre, no such
provision was made in the policy
circulated vide letter dated 25.6.1985.

(v) The instructions contained in
letter dated 25.6.1985 did not provide for
direct recruitment against upgraded
posts, but para 15 of letter dated
9.10.2003 unequivocally lays down that
direct recruitment percentages will not be
applicable
to
the
additional
posts
becoming available as a result of
restructuring and the same will apply to
normal vacancies after the cut-off date.

(vi) Para 18 of letter dated
9.10.2003 shows that the scheme of
restructuring is a self-financing and
expenditure neutral proposition. There
was no such provision in the earlier
policy.

(vii) Annexure 1 appended to
letter dated 25.6.1985 shows that the
percentage
of
the
upgraded
posts
becoming available as a result of
restructuring varied from 20 to 60 in
different grades, except in the cadre of
Tool Checkers where the percentage
varied from 10 to 40. As against this, the
percentage
of
additional
posts
(as
indicated in Annexures A to K appended
to letter dated 1.10.2003) becoming
available as a result of restructuring of
different cadres in Group C and D posts
varied from 1 to 10, except in one or two
cadres where it was more than 20."
 (emphasis added)

21. Thereafter, Court in para 30 of
judgment said 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 dis-similar. 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 scrutinizing the service
records of the employees without holding
any written 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."
(emphasis added)

22. Court further held that in legal
parlance, upgradation of a post involves
transfer of a post from lower to higher
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
grade and placement of incumbent of that
post in higher grade. However, in some
service rules provisions are/may be made
for denial of higher grade to an employee
whose service record may contain adverse
entries or who may have suffered
punishment. If such provisions are made,
they are to be followed as held in D.P.
Upadhyay vs. G.M., N.R. Baroda House
and Others, 2002 (10) SCC 258.

23. In State of Rajasthan Vs Fateh
Chand Soni, (1996) 1 SCC 562, Court
held :-

"word
"promotion"
means
"advancement or preferment in honour,
dignity, rank or grade". "Promotion" thus
not only covers advancement to higher
position
or
rank but
also implies
advancement to a higher grade. In
service law the expression "promotion"
has been understood in the wider sense
and it can be either to a higher pay scale
or to higher post."

(emphasis added)

24. Having said so Court held that
once it is recognized that additional posts
becoming available as a result of
restructuring of different cadres are
required to be filled by promotion
amongst employees who satisfy the
conditions of eligibility and are adjudged
suitable,
there
can
be
no
rational
justification to exclude the applicability of
policy of reservation while effecting
promotions, more so because it has not
been shown that the procedure for making
appointment by promotion against such
additional posts is different that the one
prescribed for normal promotion.

25. Thereafter Court referred to
Railway
Board's
Circular
dated
09.10.2003 and in paras 35 and 36 said as
under :-

"35. A careful reading of the
policy contained in letter dated 9.10.2003
shows that with a view to strengthen and
rationalize the staffing pattern, the
Ministry of Railways had undertaken
review of certain cadres. The basis of the
review was functional, operational and
administrative
requirement
of
the
Railways. This exercise was intended to
improve the efficiency of administration
by providing incentives to the existing
employees
in
the
form
of
better
promotional avenues and at the same time
requiring the promotees to discharge
more
onerous
duties.
The
policy
envisaged that additional posts becoming
available in the higher grades as a sequel
to restructuring of some of the cadres
should be filled by promotion by
considering such of the employees who
satisfy the conditions of eligibility
including the minimum period of service
and who are adjudged suitable by the
process of selection. This cannot be
equated with upgradation of posts which
are required to be filled by placing the
existing incumbents in the higher grade
without subjecting them to the rigor of
selection.

36. In view of the above
discussion, we hold that the Railway
Board did not commit any illegality by
directing that the existing instructions
with regard to the policy of reservation of
posts for Scheduled Castes and Scheduled
Tribes will apply at the stage of effecting
promotion against the additional posts
and the Tribunal committed serious
illegality by striking down para 14 of
letter dated 9.10.2003."
 (emphasis added)

26. Thereafter Supreme Court in
Union of India vs. Pushpa Rani and
others (supra) also examined judgments
4 All. Durga Prasad & Ors. Vs. Union of India & Ors.
1111
of various Tribunals up for consideration
in appeal including matter decided in
Union of India Vs V. K. Sirothia (supra)
and its follow up and then in para 59 said
as under :-

"59. 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 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 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 emphasized
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 emphasize 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 High Court
were not justified in treating it as a case
of upgradation of posts simplicitor.
Consequently, 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."
 (emphasis added)

27. Ultimately, Supreme Court set
aside orders of Tribunals and High Courts
and upheld reservation as a result of
restructuring of posts and promotion
made thereunder.

28. I have examined the relevant
provisions contained in Railway Board's
Circular providing restructuring in the
case in hand i.e. dated 15.09.2004 with
Railway
Board's
Circular
dated
09.10.2003 and find that the provisions
are more or less similar to Railway
Board's Circular dated 09.10.2003, which
was considered by Supreme Court in
Union of India Vs. Pushpa Rani
(supra). This is evident from following
clauses of Circular dated 15.09.2004 :

"1.1.
This
restructuring
of
cadres will be with reference to the
sanctioned cadre strength as on the
respective date of effect as indicated
above. The staff who will be placed in
higher
grades
as
a
result
of
implementation of these orders will also
draw pay in higher grades from the
respective date of effect.

2. Staff selected and posted
against the additional higher grade posts
as a result of restructuring will have their
pay fixed under Rule 1313 (FR22)(I)(a)(1) R-II from the date of effect
with the usual option for pay fixation as
per extant rules. The benefit of fixation of
pay from the date of of effect should also
be
given
on
promotion
against
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
chain/resultant vacancies, if the same
would
arise
purely
due
to
the
restructuring.

3. The existing classification of
the posts covered by these orders as
'selection' and non-selection', as the case
may be, remains unchanged. However,
for the purpose of implementation of these
orders the existing selection procedure
will stand modified to the extent that the
selection will be based only on scrutiny
of service records and confidential
reports without holding any written/vivavoce/physical test. In this procedure, the
selection Board is supposed to consider
the claims of the eligible staff one by one
in order of their seniority. It will
scrutinise
the
service
records
and
confidential reports staff beyond the
number equal to the number of posts
calculated in terms of para 3.1 below only
to the extent the number of staff is found
unsuitable for promotion. Further while
implementing the restructuring on the
basis of the above procedure, instructions
contained in Board's letter No.E(NG)I92/CR/3 dated 08.10.93 should be kept in
view. Naturally under this procedure the
categorization as 'outstanding' will not
figure in the panels. This 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
expending
the
implementation of these orders. In the
case of Artisan staff, the benefit of
restructuring under these orders will be
extended on passing the requisite 'Trade
Test'.

3.4. All vacancies arising out of
the
restructuring
(including
chain
vacancies arising out of restructuring)
should be filled up by senior employees
who should be given benefit of the
promotion from the respective date of
effect whereas for the normal vacancies
existing on the date of effect junior
employees should be posted by modified
selection procedure but they will get
promotion and higher pay from the date
of taking over of the posts as per normal
rules. Thus the special benefit of the
promotion from the date of effect
(viz.01.11.03 in respect of non-combatised
staff and 01.07.2004 in respect of
combatised staff) is available only for
vacancies arising out of restructuring
(including chain vacancies arising out of
restructuring) and for other vacancies
the
normal
rules
of
prospective
promotion from the date of filling up of
vacancy will apply.

4. Extant instructions for D &
A/Vigilance clearance will be applicable
for effecting promotions under these
orders with reference to the respective
crucial dates (viz.01.11.2003 in respect of
non-combatised staff and 01.07.2004 in
respect of combatised staff).

5.
While
implementing
the
restructuring
orders,
instructions
regarding minimum period of service for
promotion issued from time to time
should be followed. In other words,
residency
period
prescribed
for
promotions to various categories should
not be relaxed.

6. Since the cadres as detailed
in the annexures to this letter are being
restructured on functional, operational
and administrative considerations, the
posts being placed in higher scales of pay
as a result of restructuring should include
the duties and responsibilities of greater
importance."
(emphasis added)

29. The above paragraphs of
Circular dated 15.09.2004 I have quoted
4 All. Saroj Kumar Vs. State of U.P.