2008 Supreme(SC) 1136

2008(5) Supreme 513
Supreme Court of india
(From Punjab & Haryana High Court)
B.N. Agrawal and G.S. Singhvi, JJ.
Union of India — Appellant
versus
Pushpa Rani & Others — Respondents
Civil Appeal Nos. 6934-6946 of 2005
With
C.A. Nos. 6932 & 6919 of 2005, 612 of 2006
With
C.A. No. 4712 of 2008
(Arising Olut of S.L.P. (C) No. 5045 of 2007)
Decided on : 29-07-2008

Important Point
Filling of posts becoming available consequent upon restructuring by promotion cannot be equated to upgradation simplicitor.

Headnote:(a)The Railway Establishment Code, 1940 (1985 edition) – Paragraphs 103(7), 119, 120, 123 and 124 – Railway Board and General Managers are empowered to frame rules for regulating the recruitment and conditions of service of the employees. (Para 12)

       (1968) 3 SCR 575 – Relied upon.

       (b)Service Law – Cadre – No fixed meaning has been ascribed to the term ‘cadre’ – Different service rules define it differently. (Para 15)

       (1975)1 SCC 319; (1988)2 SCC 214; (1996)9 SCC 266 – Relied upon.

       (c)The Railway Establishment Code, 1940 (1985 edition) – Paragraphs 103(7), Paragraph 103(iii), Railway Establishment Manual and Circular R.B.E. No.113/97 – In railway establishment posts are sanctioned with reference to grades which term means sub-division of a class, each bearing a different scale of pay – Therefore, the posts sanctioned in different grades would constitute independent cadres and there is no reason why a restricted meaning should be given to the term ‘cadre’ for the purpose of implementing the roster. (Para 19)

       (d)Service Law – Upgradation – Upgradation of a post involves the transfer of a post from the lower to the higher grade and placement of the incumbent of that post in the higher grade, ordinarily without involving any selection – However, service rules may provide for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. (Para 23)

       (2002) 10 SCC 258 – Relied upon.

       (e)Service Law – Promotion – ‘Promotion’ not only covers advancement to higher position or rank but also implies advancement to a higher grade. (Para 24)

       (1996)1 SCC 562 – Relied upon.

       (1999) 7 SCC 251; (1996)2 SCC 715; (1999)7 SCC 209 – Referred.

       (f)Service Law – Restructuring – Restructuring on the basis of functional, operational and administrative requirements by providing better promotional avenues – Posts becoming vacant thereby to be filled by selection – This cannot be equated to upgradation -No illegality in applying existing reservation policies to such selections. (Paras 27 and 28)

       (g)Service Jurisprudence – Matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer – Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides – Court cannot sit in appeal over the judgment of the employer – Court has no role in determining the methodology of recruitment or laying down the criteria of selection – It is also not open the Court to make comparative evaluation of the merit of the candidates – Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration. (Para 29)

       (h)Service Law – Reservation – Reservation can be made not only at the stage of initial appointment, but also while making appointment against selection post – Impugned action not ultra vires. (Para 33)

       AIR 1962 SC 36; (1970) 3 SCC 567; (1981)1 SCC 246; 1992 Supp. (3) SC 217 – Relied upon.

       (i)Service Law – Reservation – Restructuring exercise envisaged in letter dated 9.10.2003 resulting in creation of additional posts in most of the cadres – Such posts decided to be filled up by promotion – Incumbents given duties and responsibilities of greater importance – Such a case cannot be equated to upgradation of posts simplicitor – Consequently, policy of reservation is applicable to the cadre restructuring exercise undertaken pursuant to the policy contained in letter dated 9.10.2003. (Paras 51 and 56)

       Facts of the case :

       1. 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.

       2.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.

       3.The Tribunal allowed the application.

       4.The High Court dismissed the writ petition.

       Findings of the Court :

       Filling of posts becoming available consequent upon restructuring by promotion cannot be equated to upgradation simplicitor.

       Result : Appeals allowed.