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 "Petition-1") 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 "Non-Combatised", 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 Non-Combatised, and 01.07.2004 for restructuring in respect of 'combatised' staff of RPF/RPSF. The detail and the manner in which said restructuring is 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 up-gradation 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/viva-voce/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) I-92/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 non-combatised 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 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." ;