- (1.) WHETHER the policy of reservation of posts for Scheduled Castes/scheduled tribes can be applied at the stage of giving effect to cadre restructuring exercise undertaken pursuant to letter No. PC-III/2003/ crc/6 dated 9. 10. 2003 issued by the railway Board is the question which arises for determination in the above noted appeals filed against the orders of Punjab and Haryana high Court which upheld the decision of chandigarh Bench of the Central administrative Tribunal (hereinafter referred to as 'the Tribunal') to quash para 14 of the said letter and the direction given for making appointments de hors the policy of reservation. The special leave petition filed by the union of India against the order of Allahabad high Court is being disposed of along with appeals because the issue arising therein is similar.
(2.) FOR the sake of convenience, we have taken the facts from the record of Civil appeal Nos. 6934-6946 of 2005. The same are :- (i) Respondents Pushpa Rani and six others joined service as Clerks in Ambala and Ferozepur Divisions of the Northern Railway. They were promoted as senior Clerks and then as Head clerks. They filed applications under section 19 of the Administrative Tribunals Act, 1985 for quashing the instructions issued by the Railway Board vide letter No. PC-III/2003/crc/6 dated 9. 10. 2003 for giving effect to the policy of reservation of posts for scheduled Castes and Scheduled tribes at the stage of restructuring of group C and D cadres. They pleaded that the exercise of restructuring undertaken by the government resulted in upgradation of the existing posts and in view of the law laid down by the Supreme Court, the policy of reservation cannot be applied while making appointment against the upgraded posts. (ii) In the counter filed on behalf of the administration, it was pleaded that instructions issued by the Railway Board are in conformity with the policy decision taken by the Government of india and the applicants cannot object to the reservation of posts for scheduled Castes and Scheduled tribes because restructuring of cadres resulted in creation of additional posts which were required to be filled by promotion. (iii) The Chandigarh Bench of the Tribunal allowed the application filed by pushpa Rani and others along with 12 similar applications filed by other employees of Ambala and Ferozepur divisions of Northern Railway, Rail coach Factory, Kapurthala and Diesel-Loco Modernization Works, Patiala and quashed para 14 of letter dated october 9, 2003. The Tribunal declared that the policy of reservation of posts for Scheduled Castes and scheduled Tribes is not applicable to the restructuring scheme including exchange formula and directed the petitioners herein to consider the cases of the applicants (respondents herein)and other eligible persons for placing them in appropriate pay scales under the restructuring scheme keeping in view their eligibility and suitability and give them consequential benefits. (iv) The Union of India through Divisional personnel Officer, Northern Railway, ambala, challenged the order of the tribunal in Civil Writ Petition no. 3182-CAT of 2003, which was dismissed by Division Bench of the high Court of Punjab and Haryana along with a batch of similar petitions. The High Court referred to the order passed by this Court in Contempt petition (Civil) No. 304 of 1999 in Civil appeal No. 1481 of 1996 and held that in view of the law laid down by the Supreme Court, the direction given by the Tribunal to fill up the upgraded posts without applying the principles of reservation cannot be termed as erroneous. Shri Amarendra Sharan, learned additional Solicitor General, referred to annexures 'a' to 'k' appended to letter dated 9. 10. 2003 to show that as a result of restructuring of group C and D cadres, additional posts became available in the higher grades and argued that the Railway Board did not commit illegality by issuing direction for implementation of the policy of reservation qua those posts and argued that the policy of reservation was rightly made applicable in relation to the additional posts. In support of this argument he strongly relied on the case of k. Manickaraj vs. Union of India , [1997 (4) SCC 342]. Shri Sharan emphasized that restructuring of cadres undertaken for enhancing organizational efficiency and functional, operational and administrative requirements cannot be treated as a simple exercise for upgradation of existing posts and the tribunal did not have the jurisdiction to nullify the instructions issued by the Railway Board or issue directions for making appointment by ignoring the policy of reservation. He distinguished the orders passed in Union of India vs. V. K. Sirothia, [1999 SCC (Lands) 938] and All India Non-SC/st Employees' Association (Railway) vs. V. K. Agarwal and Others, [2001 (10) SCC 165] by pointing out that those were the cases of mass upgradation of posts and not restructuring of cadres resulting in creation of additional posts in different grades. Shri K. S. Chauhan, counsel for All india SC/st Railways Association submitted that the directions given by the Tribunal are liable to be set aside because its interpretation of the policy of restructuring is also contrary to the law laid down by the Constitution Bench in R. K. Sabharwal and Others vs. State of Punjab and Others, [1995 (2) SCC 745]. He pointed out that the respondents had not challenged the instructions issued by the Railway Board for filling up the additional posts which were to become available as a result of restructuring of Group C and D cadles by selection and promotion and argued that in the absence of such challenge, the Tribunal could not have quashed para 14 of letter dated 9. 10. 2003 and ordained that appointments be made by ignoring the policy of reservation.
(3.) DR. Rajiv Dhawan, Senior Advocate, appearing for some of the respondents, argued that restructuring of Group C and D cadres is nothing but an exercise for upgradation of the existing posts and the tribunal did not commit any illegality by striking down para 14 of letter dated 9. 10. 2003 vide which the policy of reservation was made applicable to the upgraded posts. He further argued that if the policy of reservation is applied at the stage of restructuring of Group C and D cadres then the same would amount to giving double benefit to the members of scheduled Castes and Scheduled Tribes, who had already been given out-of turn promotions. Dr. Dhawan relied on the larger Bench judgment of this Court in Indra Sawhney and others us. Union of India and Others, [1992 supp. (3) SCC 217] and of the Constitution bench in M. Nagaraj and Others vs. Union of india and Others, [2006 (8) SCC 212] and argued that even if the upgraded posts are required to be filled by promotion after following the process of selection, the policy of reservation of posts for Scheduled Castes and scheduled Tribes cannot be applied qua such posts because no quantifiable data showing backwardness of Scheduled Castes and scheduled Tribes and inadequacy of their representation was produced before the tribunal. Dr. Dhawan made specific reference to paragraphs 85, 86, 106, 117, 119 and 121 of the judgment in M. Nagaraj's case and argued that the enabling provision contained in Article 16 (4-A) cannot be relied upon by the appellants to justify implementation of the policy of reservation at the stage of restructuring of Group C and D cadres because the members of Scheduled Castes and Scheduled tribes are adequately represented in those cadres and efficiency of the administration will be adversely affected by giving double benefit to them. He then argued that even if para 14 of letter dated 9/10/2003 is held to be constitutionally valid, the policy of reservation should be made applicable only qua posts which become available after 9/10/2003. Another argument of the learned senior counsel is that if restructuring exercise is intended to remove stagnation and improve the quality of services then implementation thereof cannot be made subject to the policy of reservation. Shri Sushil Jain and Smt. Kiran Sun, Advocates, adopted the arguments of Dr. Dhawan and submitted that view expressed by different benches of the Tribunal that the policy of reservation cannot be applied at the stage of making appointment against the upgraded posts should not be disturbed because the same has been substantively approved by this Court in V. K. Sirothia's case and V. K. Agarwal's case. In the written submissions filed by him, Shri Sushil Jain has highlighted the difference between the scheme of restructuring resulting in upgradation of the posts and the policy of promotion and contended that the Tribunal rightly annulled para 14 of letter dated 9/10/2003 on the ground that policy of reservation cannot be applied against the upgraded posts. Another point made by Shri Jain is that the definition of 'cadre' contained in para 4 (b) of Circular dated 21/8/1997 is ultra vires para 103 of the Code because the effect of statutory rules framed by the Board cannot be nullified by an administrative decision. Learned counsel appearing for the respondent in SLP (C) No. 5045 of 2007 supported the order passed by Allahabad Bench of the Tribunal and argued that the direction given for considering the case of his client for promotion as Personal Inspector Grade 'a' should not be upset because the cadre comprises of only two posts out of which one was required to be filled from the general category candidates.;