JUDGMENT

R.M. SAHAI, J.— This appeal by grant of special leave is directed against order of Central Administrative Tribunal, Guwahati Branch. The question that arises for consideration is more of equity and fair play than law. Therefore we proceed to exercise our jurisdiction under Article 136 read with Article 142 of the Constitution to do justice between the parties.

2. Both appellants and respondents 5 to 9 were working in class D of N.F. Railways in pay scale of Rs 200-240. Next class above it according to Railway Board circular dated May 31, 1976 was C, with posts carrying scale of pay with a maximum of Rs 290 but less than Rs 900. 33 1/2 per cent of posts in this class were to be filled by promotion from class D. One of such posts was the post of Ticket Collector. It was a class III post as compared to post held by appellants and respondents which were class IV posts. Selection by promotion for various categories was held in 1982. Since promotion to the post of Ticket Collector had not been held it was processed in pursuance of notice dated May 22, 1983 in respect of existing vacancies. Written test was held in October 1983 and viva voce in February 1984 and those successful were appointed. Appellants are successful candidates. Respondents are those who despite having appeared could not get through. They therefore challenged selection in which they failed by taking resort to restructuring order issued by Railways on August 1, 1983. They claimed that since on August 1, 1983 incumbents of class D to the extent of 65 per cent were placed in higher scale appellants became members of class C, therefore they could not avail of benefit of 33 1/2 per cent promotional quota reserved for class D. The Tribunal while rejecting claim of the respondents that there could not be promotion from class C to class C accepted their claim, that appellants, having ceased to be of class D, could not be promoted to class C against 33 1/2 per cent reserved for class D. It further held that time of test, interview and selection were material and not occurrence of vacancy.

3. Technically the Tribunal appears to be correct in its view that once in consequence of restructuring the appellants were placed in class C they could not be selected against class C posts reserved for class D. But practically it results in such glaring injustice that the benefit which the petitioners got in consequence of restructuring made them worse off by depriving them of their chance of promotion to higher scale. The effect of the Tribunals order has resulted in pushing down the appellants from class III post and in some cases even from still higher post as they had been granted second promotion as well to the post which they held in 1983. The hardship which stares in the face is that the appellants as a result of restructuring on which they had no control were placed in class C but thereby they lost the chance of moving on the promotional ladder had they chosen to remain in class D. In other words by upgradation and restructuring of posts the appellants became worse off than what they would have been if they would have continued in class D. Putting it differently the appellants who by virtue of restructuring came in class C could not be promoted to the post of Ticket Collector which is in class III. Whereas the respondents who had been rejected in the selection along with the appellants and could not come in 65 per cent quota of the D class when it was restructured, have chance of being promoted against 33 1/2 per cent in class C to the post of Ticket Collector and then further on. By this process the juniors and those who could not be selected, are likely to become senior and better placed than those who were placed in class C. That indeed would be very unfair. No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the pr