Holding

The reservation policy for Scheduled Castes and Scheduled Tribes applies to the additional posts created by cadre restructuring in the Railway service and does not contravene Articles 14 and 16 of the Constitution.

Summary

The petitioners, railway clerks belonging to the Scheduled Castes and Scheduled Tribes, challenged a Railway Board letter dated 9 October 2003 that applied the reservation policy to posts created by a cadre‑restructuring exercise in Group C and D. The Central Administrative Tribunal had struck down the reservation clause, and the High Court upheld that decision. The Supreme Court examined whether reservation can be applied to the additional posts arising from restructuring, whether the letter violated Articles 14 and 16 of the Constitution, and the scope of judicial review over employer‑driven recruitment policies. Relying on the Railway Establishment Code, the meaning of “cadre” and “promotion”, and precedents on reservation in promotion, the Court held that the additional posts must be filled by promotion and therefore the reservation policy is applicable and constitutional. Consequently, the Tribunal’s order was set aside and the appeals were allowed.

Issues considered

Whether the policy of reservation for Scheduled Castes and Scheduled Tribes can be applied at the stage of cadre restructuring in the Railway service.
Whether paragraph 14 of the Railway Board letter dated 9 Oct 2003 violates Articles 14 and 16 of the Constitution.
Whether the Tribunal’s order quashing the reservation clause is legally sustainable.
Whether judicial review can dictate the methodology of recruitment or the criteria of selection in service matters.
Whether a new plea can be raised before the Supreme Court in such matters.
Interpretation of the terms “cadre” and “promotion” under the Railway Establishment Code and Manual.

Legislation cited

Administrative Tribunals Act, 1985s. Section 19
Constitution of Indias. Article 14, s. Article 16, s. Article 16(4), s. Article 16(4A), s. Article 309
Constitution (Seventy-seventh Amendment) Act, 1995
Indian Railway Establishment Manuals. Paragraph 103(i), s. Paragraph 103(ii), s. Paragraph 103(iii)

Subjects

reservationscheduled castesscheduled tribescadre restructuringpromotionrailway servicearticles 14 and 16judicial reviewpublic service equalityIndia

Judgment

[2008] 11 S.C.R. 440
.....,_

A UNION OF INDIA
II.
PUSHPA RANI & OTHERS
(Civil Appeal Nos. 6934:.6946 of 2005 etc.)
JULY 29, 2008
8
[B.N. AGRAWAL AND G.S. SINGHVI, JJ.] r

Service Law - Reservation - For Scheduled Castes!
Scheduled Tribes - Availability
.
of- At the stage
. . of cadre re-
c structuring in the Railway service - Held: Polic~ pf reserva-
tion is applicable at the stage of restructuring o( caqr~s in the
Railway service - Since the additional posts becoming avail-
able as a result of restructuring of different cadres are required
to be filled by promotion, policy of reseryation cannot be ousted
- Such provision provided in the Letter .issu£;Jd by Railway
D
Board is not violative of Articles 14 and 16 of the Constitution
- Power of judicial review cannot be exercised fQr determin-
ing the methodology for recruitment or for laying down chteria
of selection - Constitution of India, 1950 - Articles 14, 16 and
16 (4) - Railway Establishment Code ...:.. Paragraphs 103 (7),
E 119, 120, 123 and 124 - Railway Establishment lV1anual -
Para 103 (i), (ii) and (iii) - Circular RBE No .. 113197 dated
21.8:1997.
"
~

Practice and Procedure -New plea - Raising of - Be-
F fore Supreme Court - Held: Not permissible.
~
Words and Phrases:
(i) 'cadre' Meaning of
(ii) 'promotion' - Meaning of
G
The question for determination was whether the
policy of reservation of posts. for Schec;tuled Castes/
Scheduled Tribes could be applied at the stage of giving
--r- '
effect to cadre restructuring exercise undertaken pursu-

H 440
UNION OF INDIA v. PUSHPA RANI 441
... & OTHERS
_..
ant to letter No. PC-111/2003/CRC/6 dated 9.10.2003 issued A
by Railway Board.
Allowing the appeals, the Court
HELD: 1.1 The policy of reservation can be applied at
the stage of restructuring of Group C and D cadres in the B
I -; railways and para 14 of letter dated 9.10.2003 is not viola·-
tive of doctrine of equality enshrined in Articles 14 and 16
of the Constitution of India. Once it is recognized that the
additional posts becoming available as a result of restruc-
turing of different cadres are required to be filled by pro- c
motion from amongst the employees who satisfy the con-
ditions of eligibility and are adjudged suitable, there can
be no rational justification to exclude the applicability of
the policy of reservation while effecting promotions, more
so because it has not been shown that the procedure for
D
making appointment by promotion against such additional
posts is different than the one prescribed for normal pro-
motion. [Paras 20 and 25] [475-C, 479-C,D,E]
Ram Prasad and Ors. vs. D.K. Vijay and Ors. 1999 (7)
sec 251 - followed. E
State of Rajasthan vs. Fateh Chand Soni 1996 (1) SCC
562 - relied on.
Union of India vs. VK. Sirothia 1999 SCC (L & S) 938;
All India Non-SC/ST Employees' Association (Railway) vs. F
VK. Agarwal and Ors. 2001 (10) SCC 165 - distinguished.
~

General Manager, Southern Railway vs. Rangachari AIR
1962 SC 36; State of Punjab vs. Hira Lal and Ors. 1970 (3)
SCC 567; K. Manickaraj vs. Union of India 1997 (4) SCC 342-
referred to. G
1.2 A conjoint reading of paragraph 103(7) of Rail-
way Establishment Code, Para 103{iii) of the Railway Es-
tablishment Manual and Circular R.B.E. No.113/97 makes
it clear that in the railways, the term 'cadre' generally de-
H
442 SUPREME COURT REPORTS [2008] 11 S.C.R.
'i""
""'f-
A . notes the strength of a service or a part of a service sane-
tioned as a separate unit. However, for the purpose of
roster, a wider meaning has been given to the said term
so as to take within its fold the posts sanctioned in diffe~-
ent grades. The reason for giving this enlarged meanin_g
B to 'the term "cadre" is that posts in the railway establish-
ment are sanctioned with reference~to grades. Even tern- r-
porary, work charged, supernumerary and shadow posts
created in different grades can constitute part of the
cadre. [Para 14] [473-D,E,F]
c 1.3 In legal parlance, 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, such placement does not involve selec::.
tion but in some of the service rules and/or policy framed
D by the employer for upgradation of posts, provision has
been made for denial of higher grade to an employee whose ,,...
service record may contairr-advers-e entries or who may
have suffered punishment. [Para 23] [477-G, 478-A]
D.P. Upadhyay vs. GM., N.R. Baroda House and Ors.
E 2002 (10) sec 258 - referred to ..

1.4 The word 'promotion' means "advancement or
preferment in honour, dignity, rank, or grade". 'Promotion' r
thus not only covers advancement to higher position or
F rank but also implies advancement to a higher grade. In
service law the expression 'promotion' has been. under- >--- '
stood in the wider sense and it has been held that "pro-
motion can be either to a higher pay scale or to a higher
post". [Para 24] [478-A,B,C]
G State of Rajasthan vs. Fateh Chand Soni 1996 (1) SCC
., 562- referred to
1.5 lf'is not correct to say that the policy'
-, of reserva-
tion cannot be applied at the stage of making promotions
because the Railway Administration did not produce any
H
· UNION OF INDIA v. PUSHPA RANI 443
& OTHERS

evidence to show that Scheduled Castes and Scheduled A
Tribes were not adequately represented in different cad-
res and that the efficiency of administration will not be jeop-
ardized by reserving posts for Scheduled Castes and
Scheduled Tribes. In the applications filed by them, the re-
-( spondents did not plead that the application of the policy B
of reservation would lead to excessive representation of
the members of Scheduled Castes and Scheduled Tribes,
or that the existing policy of reservation framed by the
Government of India was not preceded by an exercise in
relation to the issue of adequacy of their representation. c
Therefore, Union of India and the Railway Administration
did not get opportunity to show that the employees be-
longing to Scheduled Castes and Scheduled Tribes did
not have adequate representation in different cadres; that
the outer limit of reservation i.e. 50% will not be violated by
D
...( applying the policy of reservation and that the efficiency
of administration will not be jeopardized by applying the
policy of reservation. Therefore, it is neither possible nor
desirable to entertain a totally new plea raised on behalf of
the respondents, more so, because adjudication of such
plea calls for a detailed investigation into the issues of facts. E
[Para 53] [496-E,F,G,H, 497-A,B,C]
2 .. The matters relating to creation and abolition of
posts, formation and structuring/restructuring of cadres,
prescribing the source/mode of recruitment and qualifi- F
cations, criteria of selection, evaluation of service records
of the employees fall within the exclusive domain of the
employer. What steps should be taken for improving effi-
ciency of the administration is also the preserve of the
employer. The power of judicial review can be exercised
G
in such matters only if it is shown that the action of the
, -~ employer is contrary to any constitutional.or statutory pro-
vision or is patently arbitrary or is vitiated due to ma/a
tides. The Court has no role in determining the methodol-
ogy of recruitment or laying down the criteria of selec-
H
444 SUPREME COURT REPORTS [2008] 11 S.C.R.
'f

A tion. It is also not open to the Court to make comparative
evaluation of the merit of the candidates. The Court cannot
suggest the manner in which the employer should struc-
ture or restructure the cadres for the purpose of improving
efficiency of administration. [Para 29] [480-8,C,D, E] I-
I
B ·Case Law Reference )- ~

i
2001 (1 O) sec 165 Distinguished Para 3
}
)-

1968 (3) SCR 575 Referred to Para 11 '(
1915 (1) sec 319 Referred to Para 16
c
1988 (2) sec 214 Referred to Para 17
1996 (9) sec 266 Referred to Para 18
2002 (10) sec 258 Referred to Para 23
o· 1996 (1) sec 562 Relied on Para 24
).-
1973 (3) sec 862 Referred to Para 25
1995 (4) sec 462 Referred to Para 25
~
1996 (2) sec 115 Referred to Para 26
E
1999 (7) sec 209 Referred to Para 26
...
1999 (7) sec 251 Followed Para 26
AIR 1962 SC 36 Referred to Para 33
F 1910 (3) sec 567 Referred to Para 34
1981 (1) sec 246 Referred to Para 35
1992 Supp. (3) sec 211 Referred to Para 36
2006 (8) sec 212 · Referred to Para 38
G
1999 sec (L & S) 938 Distinguished Para 40
-{"'-·
1973 Labour Industrial
Cases 1399 Referred to Para 43
H 1997 (4) sec 342 Referred to Para 50
UNION OF INDIA v. PUSHPA RANI 445
~ .. & OTHERS [G.S. SINGHVI, J.]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. A
6934-6946 of 2005
From the final Judgment and Order dated 3.3.2005 of the
High Court of Punjab and Haryana at Chandigarh in CWP Nos.
3182,3330,3265,3267,3274, 3271, 3270,3266,3273, 3268,
3269 & 3183 of 2005 B

WITH
C.A. Nos. 6932 & 6919 of 2005, 612 of 2006 & 4712 of
2008
c
A. Sharan, ASG., Dr. R.G. Padia, Dr. K.S. Chauhan, Gyan
Mitra, Chand Kiran, Ramesh Kumar, Amit Anand Tiwari,
Awadhesh Kumar Singh, Kiran Bharadwaj, Lalit Srivastava, B.
Sunita Rao, K.B. Sunita, A.K. Srivastava, Anil Katiyar and B.
Krishna Prasad for the Appellants.
D
-~
Dr. Raj iv Dhwan, Sushil Kumar Jain, Puneet Jain, Ashwani,
Archana Tiwari, Pratibha Jain, T.G. Narayanan Nair, Kiran Suri,
S.J. Amith and Ms. Aparna Bhat for the Respondents.
The Judgment of the Court was delivered by
E
G.S. SINGHVI, J. 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 un-
dertaken pursuant to letter No.PC-11112003/qRC/6 dated
9.10.2003 issued by the Railway Board is the question which F
--".
arises for determination in the above noted appeals filed against
the orders of Punjab & Haryana High Court which upheld the
decision of Chandigarh Bench of the Central Administrative Tri-
bunal (hereinafter referred to as 'the Tribunal') to quash para
14 of the said letter and the direction given for making appoint- G
ments de hors the policy of reservation. The special leave peti-
tion 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.
1 2. For the sake of convenience, we have taken the facts H
'
446 SUPREME COURT REPORTS [2008] 11 S.C.R.
;1-

A 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
B 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-Ill/
2003/CRC/6 dated 9.10.2003 for giving effect to the
c policy of reservation of posts for Scheduled Castes
and Scheduled Tribes at the stage of restructuring of
Grol!p C and D cadres. They pleaded that the
exercise of restructuring under~aken by the
government resulted in upgradation of the existing
D 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
E was pleaded that instructions issued by the Railway
Board are in conformity with the policy decision Jaken
by the Government of India and the applicants cannot
object to th~ reservation of posts for Scheduled
Castes and Scheduled Tribes because restructuring
F of cadres resulted in creation of additional posts >----
which were required to be filled by promotion ..
(i!i) The Chandigarh Bench of the Tribunal allowed the
application filed by Pushpa Rani and others along
with 12 similar applicaUons filed by other employees
G
of Ambala and Ferozepur Divisions of Northern
Railway, Rail Coach Factory, Kapurthala and Diesel- y<-
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
H t
,;
UNION OF INDIA v. PUSHPA RANI 447
& OTHERS [G.S. SINGHVI, J.]

Scheduled Castes and Scheduled Tribes is not A
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 B
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- C
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 D
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. E
3. 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 ille- F
gality by issuing direction for implementation of the policy of
reservation qua those posts and argued that the policy of res-
ervation 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 G
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 H
448 SUPREME COURT REPORTS [2008) 11 S.C.R.

A Railway Board or issue directions for making appointment by
ignoring the po·licy of reservation. He distinguished the orders
passed in Union .of India VS. VK. Sirothia [1999 sec (L&S)
938] and All India Non-SC/ST Employees' Association (Rail-
way) vs. VK. Agarwal and Others [2001 (10) SCC 165] by point-
8 ing out that those were the cases of mass upgradation of posts
and not restructuri.ng of cadres resulting in creation of additional
posts in different g_rades.
4. Shri K.S. Chauhan, counsel for All India SC/ST Rail-
ways Association submitted that the directions given by the Tri-
C ·bunal 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 ~ut that
the respondents had not challenged the ·instructions issued by
D the Railway Board Jar filling up the additional posts which were
to become available as a result of restructuring of Group C and
D cadres· 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 ordaine:d that appoint-
E ments be made by ignoring the policy of reservation .
. 5. 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
F 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 ap-
plied at the stage of restructuring of Group C and D cadres
then the same would amount to giving double benefit to the mem-
G bers of Scheduled Castes and Scheduled Tribes, who had al-
ready been given out-of turn promotions. Dr. Dhawan relied on
the larger Bench judgment of this Court in Indra Sawhney and
Others vs. Union of India and Others [1992 Supp. (3) SCC
217] and of the Constitution Bench in M. Nagaraj and Others
H vs. Union of India and Others [2006 (8) sec 212] and argued

.F
UNION OF INDIA v. PUSHPA RANI 449
& OTHERS [G.S. SINGHVI, J.]

that even if the upgraded posts are required to be filled by pro- A
motion after following the process of selection, the policy of res-
ervation 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 B
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 con-
tained in Article 16(4-A) cannot be relied upon by the appel-
lants to justify implementation of the policy of reservation at the c
stage of restructuring of Group C and D cadres because the
members of Scheduled Castes and Scheduled Tribes are ad-
equately represented in those cadres and efficiency of the ad-
ministration will be adversely affected by giving double benefit
to them. He then argued that even if para 14 of letter dated D
9.10.2003 is held to be constitutionally valid, the policy of res-
ervation should be made applicable only qua posts which be-
come 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 E
reservation. Shri Sushi! Jain and Smt. Kiran Suri, 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 appoint-
ment against the upgraded posts should not be disturbed be- F·
cause the same has been substantively approved by this Court
in VK. Sirothia's case and VK. Agarwal's case. In the written
submissions filed by him, Shri Sushi! Jain has highlighted the
difference between the scheme of restructuring resulting in
upgradation of the posts and the policy of promotion and con- G
tended 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 vi res para 103 of the Code H
450 SUPREME COURT REPORTS [2008] 11 S.C.R.

A because the effect of statutory rules framed by. the Board can- '1
not be nullified by an administrative decision.
6. 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
B 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.

c 7. We have considered the respective arguments/submis-
sions and examined the records, The Railway Establishment
Code (hereinafter referred to as"the Code") was first published
in September 1940. It was revised from time to time. The 1985
edition of the Code was issued under the authority of the Presi-
D dent of India under proviso to Article 309 o_f the Constitution of
India. Paragraphs 103(7), 119, 120, 123 and 124 of the Code
which have bearing on the decision of these cases are as un-
der:-
103(7) 'Cadre' means the strength of a service or a part
E · of a service sanctioned as a separate unit. ...

119. In the Railway Board and attached offices ~ The
number and character of Group C & D posts in the office
of the Railway Board and other offices, projects,
organizations immediately under its control shall be such
F as may be determined by the Railway Board. The Director
General, Research, Designs and Standards Organisation
or any other authority to whom the powers may be
specifically delegated by the Railway Board may create
temporary posts on the conditions prescribed in their
G respective schedules of power.
120. On Railways, Production Units or other Establishment
- The number and character of Group C & D posts may
be determined by the General Managers or the authority
in whom such powers are delegated, provided that the
H
UNION OF INDIA v. PUSHPA RANI 451
& OTHERS [GS. SINGHVI, J.]

prior sanction of the Railway Ministry is necessary for the A
introduction of a new category not already obtaining on a
Railway.
123. The Railway Board have full powers to make rules of
general application to Group C & Group D railway servants
under their control. B
124. The General Managers of Indian Railways have full
powers to make rules with regard to Railway servants in
Group C & D under their control provided they are not
inconsistent with any made by the President or the Ministry c
· of Railways."
Para 103(i), (ii) and (iii) of the Railway Establishment
Manual (Volume I), which too is relevant for these cases
reads as under:-
0
103. Definitions - For the purpose of these rules, unless
there be anything repugnant in the subject or context -
(i) A "Group" means a series of classes which form a
normal channel of promotion.
(ii) A "Class" comprises all appointments in the same E
branch or department bearing the same designation.
(iii) "Grades" are sub-divisions of a class, each bearing
a different scale of pay. An intermediate grade is any
grade in a class, higher than the lowest." F
8. Till 1997, the rosters framed for giving effect to the policy
--...\
of reservation were vacancy based. In R.K. Sabharwal's case,
this Court held that the rosters must be operated with reference
to the posts and not the vacancies. Thereafter, the Government
of India, Ministry of Railways (Railway Board) issued revised G
instructions vide Circular R. B. E. No.113/97 and prescribed post
based roster. These instructions were circulated vide letter
No.95-E(SCT)1/49/5(1) dated 21.8.1997, the relevant portions
of which are extracted below: -
H
452 SUPREME COURT REPORTS [2008] 11 S.C.R.

A Circular No.113197 --1-

"Under the existing instructions, vacancy based rosters
have been prescribed in order to implement the
Government's Policy relating to the reservation of jobs for
the Scheduled Castes, Scheduled Tribes and other
B Backward Classes (OBCs). The application of reservation
on the basis of these rosters was called in the question
before the courts. The Constitution Bench of the Supreme
Court in the case of R.K. Sabharwal vs. State of Punjab as
well as Union of India vs. J.C. Malik has held that the
c reservation of jobs for Backward Classes SC/ST/OBCs ""
should apply to the posts and not to the vacancies. The
Court further held that the vacancy based rosters can·
.operate only till such time as the representation of the
persons belonging to the reserved categories, in a cadre,
D reaches the prescribed percentage of reservation.
Thereafter, the rosters cannot operate and vacancies
released by retirement, resignation, promotion etc. of the
persons belonging to the general and the reserved
categories are to be filled by the appointment of the person
E from the respective category so that the prescribed
percentage of reservation is· maintained.
The courts also held that persons belonging to reserved
categories, who are appointed on the basis of merit and
not on account of reservation are not be counted towards
F the quota meant for reservation.
With a view to bring the policy of reservation. in line with ).__-

the law laid down by the Supreme Court, it has been
decided that the existing 200 point and 100 point vacancy
based rosters of direct recruitment shall be replaced by
G
post based rosters. All the Zonal Railways, Production
Units and Associated Officers of the Railway Board should
therefore, prepare the rosters for Group C posts (where
y-
the minimum of scale of pay is Rs.1400 (RPS) and above)
based on principles elaborated in the Explanatory notes
H
UNION OF INDIA v. PUSHPA RANI 453
& OTHERS [G.S. SINGHVI, J.]
~ given in Annexure I and illustrated in the Model Roster as A
given inAnnexure II andAnnexure Ill. Similarly the concerned
authorities may prepare rosters to replace the existing
100 point rosters in respect to local recruitment to Gr. C
and Gr. D posts where the minimum of scale of pay is less
than 1400 (RPS) and normally attracting candidates from B
a locality/region on the basis of the same principles.
-{
The principles for preparing the rosters elaborated upon
in Explanatory notes are briefly recapitulated below:-

(a) The number of points in the roster shall be equal to c
the number of posts in the cadre. In the case there is
any increase or decrease in the cadre strength in
future, the rosters shall be expanded or contracted
correspondingly.
(b) <;adre, for the purpose of roster, shall mean a D·
particular grade and shall comprise the number of
-'i posts to be filled by a particular mode of recruitment
in terms of the codallmanual provisions of Railway
Board's instructions issued from time to time. Thus,
in a cadre of say 200 posts where the recruitment E
rules prescribed a ratio of 50:50 for direct recruitment
and promotion, 2 rosters one for direct recruitment
and another for promotion (where reservation in
promotion applies) each comprising 100 points shall
be drawn ·up on the lines of the respective model F
rosters. The cadre also means the sanctioned
-~
temporary posts, work charged posts, supernumerary
posts, shadow posts in the grade."
[Emphasis added]
G
9. The relevant paragraphs of Railway Board's Circular
No.181/85 which was issued vide letter NO.PClll/84/UPG/19 dated
--~
· 25.6.1985 and was considered in various cases read as under:-

Letter dated 25. 6. 1985
H
454 SUPREME COURT REPORTS [2008] 11 S.C.R.

...,_
A "1. Restructuring of certain Group 'C' & 'D' cadres have
been under consideration in consultation with the Staff
Side in the Committee of the Departmental Council of the
JCM (Railways) for sometime. The Ministry of Railways
have
-· decided.
with. the approval of the President
' .
to
B restructure certain categories of Group 'C' & 'D' as detailed
in the Arinexure enclosed.
'r
2. While implementing these orders specific instructions
given in the footnot~ under the" different categories should
be strictly and carefully adhered to.
c
3. For the purpose of restructuring the cadre strength as
on 1.1.1984 will be taken. into account and will include
Rest Giver and Leave Reser\te posts.
5.1 The existing classification of the posts covered by
D these restructuring orders, as "Selection" and "Non-
Selection", as the case may be, remains unchanged.
Howeve.r, for the purpose of implementation of these r
orders, if ari individuai.Railway servant becomes due for
promotion to only one grade above the grade of the post
E held by him, at present, on a regular basis, and such higher
grade post is classified as a "Selection" post, the existing
selection procedure will stand modified in such a case to
the extent that the selection will be basect only on scrutiny
of service records without holding any written and/or viva-
F voce test. Under this procedure, the categorization
'Outstanding' will not exist.
)--..-
6.1 The existing rules and orders in regard to reservation
for SC/ST will continue to apply while filling up additional
vacancies in the higher grades arising as a result of
G restructuring.
9. In all the categories covered by this letter even though
more posts, in higher scales of pay have been introduced as a
'f-
result of restructuring, the basic functions, duties and responsi-
bilities, attached to these posts at present will continue, to which
H
UNION OF INDIA v. PUSHPA RANI 455
& OTHERS [G.S. SINGHVI, J.]

may be added such other duties and responsibilities as con- A
sidered appropriate.
10. The Board desire that restructuring and posting of staff
after due process of selection as provided for in these orders,
should be completed expeditiously."
B
The percentage of upgraded posts is indicated in Annex-
ure I appended to letter dated-25.6.1985, which reads as un-
der:-
ANNEXURE-1
c
Subject: Statement indicating restructuring of certain
Group 'C' and 'D' cadres on Railways.
No.PClll/84/UPG/19, dated 25.6. 1985

I Loco Running Staff All PassengE:r Train Drivers 'A' D
~ 1. Passenger Driver having a run of 250 kms. And
'A' (Rs.550-700) above to be upgraded from
Driver 'A' (Rs.550-700) to
Driver 'A' Spl. (Rs.550-750)
All Leave Reserve for 'A' Spl. E
and 'A' Drivers to be kept in
Grade only.
Revised
2. (i) Goods Driver Goods Driver Percentage
~ Gr.'B' (Rs.425- Gr. 'B' Rs. 425- 60 F
640 - 40%) 640
(ii) Goods Driver Goods Driver Gr. 40
Gr.'C' (Rs.330- 'C' Rs. 330-560
560-60%) (10% of
Selection Grade G
the Gr. 'C' posts
Rs. 425-600 to be
-")- operated as
discontinued
Selection Grade
posts in Rs.425-
600)
H
456 SUPREME COURT REPORTS · (2008] 11 S.C.R.

A 3. Shunters (Rs. 290- 30% of Shunters to be .up-
400) graded as .Shunting Drivers
Rs.330-560

4. Fireman 'A'/Disel 30% of posts to be given spe-
8 Asstt./ Asstt. Elec. cial pay @ Rs. 15 p.m. 'y
Leco Driver (Rs.
290-350)

5. Fireman '8' (Rs. Leave reserve posts for Fireman
260-350) 'A' hitherto kept in Fireman 'B' to
c be upgraded to Fireman 'A'

6. Fireman 'C' (Rs. 30% of Fireman 'C' to be up-
210-270) graded to scale Rs. 260-350 (L)
(L) Note: 30% of Fireman 'C' scale Rs.210-270
D who are upgraded to scale Rs.260-350 will remain
designated as Fireman 'C' and utilized as far as
possible on Mail, Express arid Passenger Trains.
The further avenue of promotion of Fireman 'C' in
scale Rs.210-270 and Rs.260-350 will remain
E unaltered.
7. Motormen on EMU 50% on Western Railway and
Trains (Rs. 550- 40% on Central, Northern,
700) Estern, Southern and S.E. Rail-
ways to be upgraded as Driver
F 'A' Spl. in scale Rs. 550-750. }'---

II. Traffic Running Staff (i) All Passenger Train
. Guards having a run of
250 kms. and above to be
upgraded to Guard 'A'
G
Spl. Rs. 425-640
(ii) Leave Reserve for 'No Spl. -r-
and 'A' Guard to be kept
in 'A' Grade only.
H
UNION OF INDIA v. PUSHPA RANI 457
.'if' & OTHERS [G.S. SINGHVI, J.]

Revised A
--.,
f 2. (i) Goods Guard Goods Guard Gr. Percentage
Gr. 'B' (Rs.330- 'B' Rs. 330-560 60
560-40%)

~'
(ii) Goods Guard Goods Guard Gr. 40 B
Gr. 'G' (Rs.330- 'C' Rs. 330-530
60%)
\
==? m. Account Staff
Clerks Grade I to be aggregated with Selection Grade
-t Clerks Grade I, Sub-heads and Selection Grade Sub- c
Heads and placed in the following Percentages:-
Clerk Grade I 55%
I (Rs. 330-560)
I
' Sub-Heads 45% D
(Rs. 425-700)
""""
Note:
1. Posts of Selection Grade Clerks Grade I Rs. 425-700
to be discontinued. E
2. Selection Grade Sub-Heads will continue as per extant
--I orders.
3. Sub-Heads to work as Clerical hands as required by
by Administration F
'~
Ill. Account Staff
The cadre of Shroffs to be placed in the following
Percentages:-
(a) Head-Shroff Rs. 425-640 20% G
Senior Shroff Rs. 330-560 40%
' -"" Junior Shroff Rs. 260-400 40%
' (b) Cashiers to be placed in the following Percentages:-
Rs. 455-700 40%
""""
H
458 SUPREME COURT REPORTS [2008] 11 S.C.R.
1
A Rs. 425-640 40%
Rs. 330.-560 20% .
(c) Upgradation effected to posts in Supervisory Cadre )
'
as under:-
Scale (Rs.) Existing Revised
8 700-900 . 55 107 y
550-750 134 146
455-700 37 Nil
Total 226 253 (+27 posts
upgraded
c from Head
Shroff
Scale Rs.
425-640)
The detailed distribution of Supervisory Cadre Railway-
D wise is given in Annexure-11.
v. Tool Checkers
>-
1. CLW & DLW: The existing cadre of Tool Checkers
in CLW & DLW will be ·restructured as under:-
E
Scale (Rs.) Revised Percentage
260-400 40%
330-560 30%
1--
'425-700 20%
F 550-750 10%
,:....._
The CLW and DLW Administration should take ·action for
introducing direct recruitment in the cadre of Tool Checkers
on the standard pattern applicable to other Ministerial
cadres and merge with the .appropriate .Ministerial cadre.
G
2. Eastern Railway: The Tool Checkers on Eastern
Railway will also have the grades Rs.425-700 and Rs.550-
-f- '
750 .and the same percentage structure as laid down for ~

CLW arid DLW in Item I above with the proviso that
upgradation of posts to scale Rs.550-750 forming part of
H
UNION OF INDIA v. PUSHPA RANI 459
& OTHERS [G.S. SINGHVI, J.]
,
10% of the cadre will be effected only after the existing A
staff promoted to scale Rs.425-700 in terms of these
restructuring orders complete one year of service in that
grade from the date of physical promotion. The Railway
should take action to merge the cadre of Tool Checkers
with the appropriate Ministerial cadre and introduce direct B
recruitment as per existing pattern applicable to the
Ministerial cadre.
--Vl. Tracers (Rs.260-430)
The existing regular incumbents of the post of Tracers in c
all the four disciplines of the Engg. Departments viz. Civil
Engg, Mechanical Engg., Signal & Telecommunication
Engg. and Elec. Engg. Departments will be promoted in
the following manner:-
(i) Those who possess the diploma in Draftsmanship D
from recognized institutions will be upgraded as
Junior Draftsman scale Rs.330-560.
(ii) Those who dCi not possess the diploma in
Draftsmanship but have completed 5 years of service
as on 1.1.84 will be upgraded as Junior Draftsman E
in scale Rs.330-560.
(iii) The balance non-qualified Tracers will be
progressively promoted by upgradfng their posts as
Junior Draftsman (Rs.330-560) as and when they F
complete 5 years of service or acquire the necessary
qualification. The review will be done every six months
commencing from 1.7.1986.
(iv) The vacancies which occur in the normal course in
scale Rs.330-560 will continue to be filled as per G
existing pattern.
(v) After the entire cadre of the Tracers has been fully
accommodated in the higher grade post of Junior
Draftsman in scale Rs.330-560, future vacancies in H
460 SUPREME COURT REPORTS [2008] 11 S.C.R.

'j
A scaleRs.330-560 will be filled cent-per-cent by direct
recruitment of diploma holders in Draftsmanship.
Detailed instructions will follow.
Note:

B The existing cadre of Tracers is to be frozen and actual
requirements reviewed and determined with Board's r
approval within six months. In this connection, reference is
invited to Ministry of Railways letter No.E(NG) 11-85/RC-2/
7 dated 27.2.1985. Once the cadre of the Junior Draftsman
c in scale Rs.330-560 is fixed finally, it will be taken into
account for percentage distribution appllcable to the
drawing office staff vide item 6 of the Annexure to this
Ministry's letter No.PClll/84/UPG/9, dated 16.11.1984 in
the subsequent annual cadre reviews.
D Vii. Permanent Way Mates to Permanent Way Mistries
(i) 20% of posts of Permanent Way Mates in scale )>-
Rs.260-400 to be upgraded to Permanent Way
Mistries in scale Rs.380-560.
'
E (ii) 50% of vacancies arising on or after 1.1.85 in scale
Rs.380-560 should be filled by candidates who have
passed 12th Standard with Maths and Science.
(iii) Direct recruitment of PWI Grade Ill in scale Rs.425- ~
700 will be reduce from 75% to 66-2/3% for vacancies
F arising in that category after the date of restructuring
as proposed in item Vll(i) above. For promotion of )I....
directly recruited PW Mistries scale Rs.380-560 to
PWI Grade Ill in scale Rs.425-700, a minimum of
three years service as PW Mistries will be required
G including training period.
,.
VIII Message Checkers (for Central Western & Eastern
Railways only) r~\
/

Message Checkers will be restructured as under:-
H
UNION OF INDIA v. PUSHPA RANI 461
& OTHERS [G.S. SINGHVI, J.]

Grade Central Western Eastern A
(Rs.) Extg. Revd. Extg. Revd. Extg. Revd.
cadre cadre cadre cadre cadre cadre
260-430 5 4 8 7 4 3
330-560 4 3 6 5 3 3 B
.......
425-640 1 2 1 2 2 2
550-750 1 1 1 1
700-900 1
Total 10 10 16 16 9 9
10. The relevant paragraphs of policy contained in letter
- c
dated 9.10.2003 which is subject matter of this litigation, also
read as under:-
"The Ministry of Railways have had under review cadres
of certain Group ·c· & ·o· staff in consultation with the staff D
side with a view to strengthening and rationalizing the
staffing pattern on Railways. As a result of the review
undertaken on the basis of functional, operational and
administrative requirements, it has been decided with the
approval of the President that the Group · C' & 'D' E
categories of staff as indicated in the Annexures to this
letter should be restructured in accordance with the revised
percentages indicated therein. While implementing these
orders the following detailed instructions should be strictly
and carefully adhered tp: F
xxx :xxx :xxx
1. Date of effect (hereinafter referred to -as cut-off date):
This restructuring of cadres will be with reference to
ttie sanctioned cadre strength as on the date following G
the date on which the cadres in the headquarter
offices of new Zonal Railways/New Divisions are
closed. The benefit of restructuring will be restricted
to the persons who are working in a particular cadre
on the cut-off date.
H
462 SUPREME COURT REPORTS (2008] 11 S.C.R.
·-y

A 3. Pay Fixation (Rule 1313 (FR 22)- RI/). Staff selected
and posted against the additional higher grade posts
as a result of restructuring will have their pay fixed
under Rule 1313 (FR-22)(1)(a)(1 )-Rll on proforma
basis w.e.f. the cut-off date with the usual option for
B pay fixation as per extant rules. Actual payment based
on the pay so fixed should be made from the date of
taking over the charge of the higher grade post
arising out of these restructuring orders. The benefit
under this rule will, however, no longer be available
c in the case of movement from lower grade to higher
grade in the non-functional situations where there is
no change in duties as in the case of movement from
Goods Guards to Sr. Goods Guards and Goods
Drivers to Sr. Goods Drivers etc. In the case of such
movement, the pay will be fixed under Rule 1313
D
(FR 22) (l)(a)(2)-Rll. However, the benefitof fixation )..._
of pay under Rule 1313 (FR-22)(1)(a)(1) R-11 will now
be admissible in the cases of functional promotions
such as promotion from Sr. Goods Guards to
Passenger Guards and Sr. Goods Drivers to
E Passenger Drivers etc. though in identical scale of
pay.
4. Existing classification and filling up of the vacancies.
The existing classification of the posts covered by
F these orders as 'selection' and 'non-selection', as
)-...-
the case may be, remains unchanged. Action should
be taken to position the employees on the basis of
selection/non-selection/suitability/Trade Test, as the
case may be. However, the instructions contained in
Para 13.2 should be followed in case of placement
G
of Supervisors (erstwhile Mistries) to grade Rs.5000-
8000.
-r-
5. Extant instructions for D&ANigilance clearance will
be applicable for effecting promotions under these
H orders with reference to the cut-off date.
UNION OF INDIA v. PUSHPA RANI 463
& OTHERS [G.S. SINGHVI, J.]

6. Minimum years of service in each grade. While A
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. B
7. Basic functions, duties and responsibilities. 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 C
should include the duties and responsibilities of
greater importance.
8. Adjustment of excess number of posts. If prior to
issue of these instructions the number of posts D
existing in any grade in any particular cadre exceeds
the number admissible on the revised percentages,
the excess be allowed to continue to be phased out
progressively with the vacation of the posts by the
existing incumbents.
E
11. Introduction of Direct recruitment (i)Ministerial Staff
(excluding Accounts staff) (ii)Personne/ Inspectors.
(iii) Depot Material Superintendents.
The implementation of restructuring scheme in the
categories of Ministerial· staff, Personnel Inspectors F
and Depot Material Superintendents is .subject to ·
the introduction of direct recruitment in these
categories. After implementation of the restructuring
in accordance with the revised percentage· ·
distribution of posts indicated in the annexures G
enclosed, the vacancies arising in these categories
on or after the cut-off date should be filled through
direct recruitment in the manner indicated hereunder:-

11.1 An element of direct recruitment of graduates with H
464 SUPREME COURT REPORTS [2008) 11 S.C.R.

~
A not less than 50% marks shall now be introduced at
the level of Office Superintendent Gr.II in the pay scale
· Rs.5500-9000 in the Ministerial categories
(Establishment & other than Establishment but
excluding Accounts) to the extent of 20% of the posts.
B' The remaining 80% of the posts in grade Rs.5500-
9000 shall continue to be filled by promotion of staff
.from. the lower grade Rs.5000-8000 as per the r
procedure in force. ·

- -11.2 20o/oof the posts in grade Rs.6500-10500 in the
c · category of Personnel Inspectors shall be filled by
direct recruitment from amongst the candidates
possessing Bachelor degree with Postgraduate
Diploma in Personnel Management, labour laws, etc.
as mentioned in Board's letter No.E(NG)l-2002/PM4/
D 1 dated 12-07-2002. The remaining 80% of the posts
sh~ll continue to be filled by promotion of staff from
t~e lower grade of Rs.5500-9000 as per the ,...
procedure in force.

- 11.3 20% of the posts in grade Rs.6500-10500 in the
E category of Depot Material Superintendents should
be filled by direct recruitment from amongst the
candidates possessing qualifiqation of degree in
_.,..-::
Engineering in any discipline. the remaining 80% of
;the posts· shall continue to be filled by promotion of
F . i ~.
staff from the lower grade of Rs.5500-9000 as per
- i ~ -procedure in force. ·
:· :'

)...._-

. 1,2. . Gatemen (Engg.)As a result of implementation of this
restructuring, more number of additionai posts will
be available in the highest grade of this category.
G
Henceforth, therefore, the posts of Gatemen (Engg.)
~hould be operated in grade Rs.2.750-4400. In order
to ensure the full availabilityof .Gatemen (Engg.) and
rotation of the existing staff specially those who are r
. working, as such, for a long period, .the Trackmen
H
UNION OF INDIA v. PUSHPA RANI 465
& OTHERS [G.S. SINGHVI, J.]
y ..._.
etc. at the time of their'promotion to grade Rs.2750- A
4400 should be posted as Gateman (Engg.) subject
to their fulfilling the requirement of prescribed medical
standard and literacy level etc. as per extant
instructions.
13(a) Upgradation of the posts of Supervisor (erstwhlle B
Mistries) Subject to provisions of Para-13.2 below,
all the posts of Supervisors (erstwhile Mistries) in
grade Rs.4500-7000 + Rs.100 Special Allowance
(excluding Supervisors (P.Way) should enbloc be
upgraded to the posts of Junior Engineer Gr.II in the c
pay scale of Rs.5000-8000 and merged with the
respective cadre of Technical Supervisors with its
spread effect in higher grades Rs.5500-9000, 6500-
10500 & 7450-11500 as per the revised percent?tge
distribution of posts prescribed for Technical D
Supervisors in these orders.
13(b) In case of Supervisor (P.Way), the posts being held
by the erstwhile PWMs supervising more than one
gang upto a maximum of 17.26% of the sanctioned
cadre of PWMs shall be upgraded to and merged E
with the posts of Junior Engineer (P.Way) Gr.II in the
pay scale of Rs.5000-8000 with its spread effect in
higher grades of JE-1, SE & SSE in grades Rs.5500-
9000, 6500-10500 & 7450-11500 respectively, as.
per the revised percentages prescribed for Technical F
-~ Supervisors in these orders.
13.1 The financial implications involved in the upgradation
covered by (a) & (b) above should be off set by surrender
of posts of Supervisors of equivalent money value.
G
13.2 Procedure for fitment. The placement of the
existing incumbents will be regulated as per the
procedure given below:-

(a) The existing regular incumbents of the posts of
H
466 SUPREME COURT REPORTS [2008] 11 S.C.R.

'Y
A Supervisors (including Supervisors/P.Way to the
extent of upgradation of posts) will be placed in grade '.

Rs.5000-8000 without subjecting them to normal
selection procedure. Their suitability shall be
adjudged by following modified selection procedure
B according to which the selection will be based on
scrutiny of service records and confidential reports
only.
(b) The Supervisors (other than P.Way) who do not get
promoted to grade Rs.5000-8000 shall continue to
c hold the post in the existing grade Rs.4500-7000 +
Rs.100 SA as personal to them. To this. extent, the
posts upgraded to grade Rs.5000-8000 will be
operated in the lower grade Rs.4500-7000 + Rs.100
SA till the existing incumbents vacate the same by
D way of promotion, retirement etc. On vacation of the
posts, the same shall. automatically be operated in
grade Rs.5000-8000.
13.3 Specific provisions for Supervisor (P Way) The
remaining posts of Supervisors (P.Way), erstwhile
E PWMs which ,are not to be. upgraded and shall
continue to be operated in. the existing scale of pay,
should be redesignated as 'Track Supervisor'.
13.4 While the ~xisting incumbents of the post of
F Supervisor (P.Way) redisignated as 'Track
Supervisor' shall continue to draw the scale of pay
Rs.4500-7000 + Rs.100 SA as personal to them, >--
the _future incumbents to the post of 'Track Supervisor'
will .be in the pay scale of Rs.4500-7000 without the
Special Allowance of Rs.100/-.
G
13.5 The upgradation of posts of Supervisor (P.Way) as
indicated hereinabove should not result in creation
-t"-
of posts of Trolleymen. In other words under no
circumstances, additional posts of Trolleyman would
H be created.
UNION OF INDIA v. PUSHPA RANI 467
& OTHERS [G.S. SINGHVI, J.]
y
14. Provisions of reservation. The existing instructions A
with regard to reservation of SC/ST wherever
applicable will continue to apply.
15. Direct recruitment percentages: Direct recruitment
percentages will not be applicable to the additional
posts arising out of these restructuring orders as on B
the cut-off date. The direct recruitment percentage
will apply for normal vacancies arising on or after the
date following the cut-off date. Also the direct
recruitment quota as on the date preceding the cut-
off date will be maintained. c
16. Pin pointing of posts. The administration should take
steps to pin-point the additional posts arising out of
this restructuring as per administrative requirements.
18. Matching Savings. Entire scheme of restructuring is D
to be a self-financing and expenditure neutral
proposition. Financial implications should be worked
out taking into account the mid points of the scales
of pay of the respective posts (mean of the minima
and maxima of the scale), existing number of posts E
and revised number of posts in the grade on the
basis of the revised percentage of distribution of
posts. After working out the financial implications,
the matching savings should be effected from the
category itself. Wherever it is not possible to do so F-.
from the category itself, the matching savings should
be arranged from the department at the divisional/
zonal level. But before restructuring the cadre as per
the revised percentage distribution of posts, matching
savings will have to be ensured and if the
G
Department/Railways are not able to provide the
matching savings, the particular category/department
will not be restructured. VVhile effecting surrender of
posts of equivalent financial value, the existing vacant
posts available in the categories on the cut-off date
H
468 SUPREME COURT REPORTS [2008] 11 S.C.R.

A should be considered for the purpose of off-setting
the cost of restructuring/financial effects of
restructuring. Board desire that the General
Managers should ensure that the restructuring is
implemented expeditiously with matching savings
B without any exception and difficulty. There would be
no restructuring without matching savings by
surrender of posts."
19. Re-organizati0n of Zonal Railways/Divisions: Due
to re-organization of Zonal Railways/Divisions cadres
C are in a fluid situation. It may, therefore, take some
time for the c:~dres in the headquarter offices of New
Zones and Divisions to stabilize. In the
circumstances, new Zonal Railways are required to
ensure that the staff transferred to headquarter offices
D of new Zonal Railways/new Divisions are not
extended the double benefit of restructuring. In case
an employee has been given the benefit of
restructuring on the old (parent) railway in terms of
these orders, he will not be allowed the benefit of
E restructuring again on the headquarter offices of new
Zonal Railways/new Divisions. In other words, no
railway servant will be considered for double
promotion as a result of this restructuring."
;~ ,.
1 The existing and revised percentage of posts in different
~.\It cadres are indicated in Annexures 'A' to 'K' appended to letter
dated 9.10.2003. For the sake of reference Annexure 'A'(i) ap-
pended to that letter is reproduced below:-
ANNEXURE 'A'(i)
G STATEMENT REGARDING RESTRUCTURING OF
GROUP
'C' & 'D' STAFF OF TRANSPORTATION TRAFFIC
DEPARTMENT

H
UNION OF INDIA v. PUSHPA RANI 469
& OTHERS [G.S. SINGHVI, J.]

Annexure to Board's letter No.PC l/112003/CRC/6 dated 9-10-2003 A
CATEGORY GRADE EXISTING REVISED
(Rs.) %AGE %AGE
Station Masters/Assistant 7450-11500 6.5
Station Masters* 6500-10500 22
5500-9000 30
5000-8000 33
4500-7000 8.5
Train Clerks 5500-9000 20 30
5000-8000 30 36
4000-6000 25 17
c
3050-4590 25 17

Traffic Controllers 7450-11500 30 37
6500-10500 55 48
,
5500-9000 15 15 D
Shunting Masters/ 5000-8000 25 50
Jamadars 4000-6000 75 50
Pointmen /levermen I 3050-4590 75 83
Shuntmen 2650-4000 25 17
E
Cabin men 4000-6000 25 50
3050-4590 75 50

Foot Note: The revised percentage distribution of posts
will be made applicable in the unified cadre as per the F.
provisions contained in Para-10.1 of the covering letter.
11. The nature and scope of the Railway Board's power
to make rules was considered by the Constitution Bench of this
Court in B. S. Vadera vs. Union of India and Others [1968 (3)
SCR 575]. The facts of that case were that the petitioners, who G
joined service as Lower Division Clerks, were first promoted
as Upper Division Clerks and then as Assistants (on ad-hoc
basis). In June 1967, they were reverted to the posts of Upper
Division Clerks. It was ~rgued on their behalf that the Railway
Board does not have the power to frame the Scheme or amend H
470 SUPREME COURT REPORTS [2008) 11 S.C.R.

A the same with retrospective effect. This Court referred to the '1
provisions of the Indian Railway Board Act, 1905, Article 309 of
the Constitution and Rules 157 and 158 of the Code (these
rules are pari material to paras 123 and 124 of 1985 edition of
the Code) and held that the Railway Board's Secretariat Cieri-
B cal Service (Re-organisation) Scheme was statutory in charac-
ter and that the Railway Board could amend the same with ret-
respective effect. Paras 21 to 25 of the judgment which contain r
its ratio are extracted below:-
"21. There is no controversy that the Indian Railway
c Establishment Code has been issued, by the President,
in exercise of the po-.-vers, vested in him, by the proviso to
Article 309, of the Constitution. Only two rules require to
be noted, and they are Rules 157 and 158, occurring in
Chapter I, under the sub-heading "Power to frame rules".
D They are as follows:
"157. The Railway Board have full powers to make rules
of a general application to non-gazetted railway servants
under their control.

E 158. The General Managers of Indian Railways have full
powers to make rules with regard to non-gazetted railway
servants under their control, provided they are not
inconsistent with ·any rules made by the President or the
Railway Board."
F We are not concerned, really in this matter, with Rule 158,
because the Scheme, Annexures 4 and 7, in particular,
~-
and the various orders, have been passed· by the 2nd
respondent, the Railway Board. The Railway Board, as
will be seen from Rule 157, have full powers to make rules
G of general application, to non-gazetted railway servants
under their control. The question is whether the 2nd
respondent, has, while acting under Rule 157, power to
make a rule (in this case, the Scheme), havir.g effect from -r
an anterior date.
H
UNION OF INDIA v. PUSHPA RANI 471
y & OTHERS [GS. SINGHVI, J.]

22. The matter must be considered, in the light of the A
provisions of Article 309, of the Constitution. That Article
provides:
"309. Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may regulate the
,__,., B
recruitment, and conditions of service of persons
appointed, to public services and posts in connection
with the affairs of the Union or of any State:
Provided that it shall be competent for the President
or such person as he may direct in the case of c
services and posts in connection with the affairs of
the Union, and for the Governor of a State or such
person as he may direct in the case of services and .
posts in connection with the affairs of the State, to
make rules regulating the recruitment; and the
D
conditions of service of persons appointed,_ to, such
~
services and posts until provision in that behalf is made
by or under an Act of the appropriate Legislature under
this article, and any rules so made shall have effect
subject to the provisions of any such Act."
E
We may emphasize the words "and any rules so made
shall have effect subject to the provisions of any such Act,"
which must receive their due weight. To that aspect, we '
shall come, presently.
23. We have already pointed out, that Annexure 4 was F
issued on February 5, 1957, and Annexure 7, on March
30, 1963, and that the initial constitution of the Service
was to be from December 1, 1954, and it is, on that basis,
that the promotions, or appointments, to the Service, are
to be made. In this case, there is no Act of the appropriate G
Legislature, regulating the recruitment and conditions of
----r service, under the 2nd respondent and, therefore, the main
part of Article 309 is not attracted. But, under the Proviso
therein, the President has got full power to make rules,
regulating the recruitment, and conditions of service, of H
472 SUPREME COURT REPORTS [2008] 11 S.C.R.

A persons, under the 2nd respondent. Further, under the
Proviso, such person, as may be directed by the President,
can also make rules, regulating the recruitment and
conditions of service, of persons, under the 2nd respondent.
The rules so made, either by the President, or such person,
B · as he may direct, will have currency, until provision, in that
behalf, is made by or under an Act, of the appropriate
Legislature, under Article 309.
24. It is also significant to note that the proviso to Article
309, clearly lays down that 'any rules so made shall have
c effect, subject to the provisions of any such Act'. The
. clear and unambiguous expressions, used in the
Constitution, must be given their full and unrestricted
meaning, unless hedged-in, by any limitations. The rules,
which have to be 'subject to the provisions of the
D Constitution, shall have effect, 'subject to the provisions
of any such Act'. That is, if the appropriate legislature
has passed an Act, under Article 309, the rules, framed
under the proviso, will have effect, subject to that Act;
but, in the absence of any Act, of the appropriate
E legislature, on the matter, 'in our opinion, the rules, made
by the President, or by such person as he may direct,
are to have full effect, both prospectively, and,
retrospectively. Apart from the limitations, pointed out
above, there is none other, imposed by the proviso to
F Article 309, regarding the ambit of the operation of such
rules. In other words, the rules, unless they can be
impeached on grounds such as breach of Part Ill, or any
other Constitutional provision, must be enforced, if made
by the appropriate authority.
G 25. In the case before us, the Indian Railway
Establishment Code has been issued, by the President,
in the exercise of his powers, under the proviso to Article
309. Under Rule 157, the President has directed the
Railway Board, to make rules, of general application to
H non-gazetted railway servants, under their control. The
UNION OF INDIA v. PUSHPA RANI 473
& OTHERS [G.S. SINGHVI, J.]
)'
rules, which are embodied in the Schemes, framed by A
the Board, under Annexures 4 and 7, are within the
powers, conferred under Rule 157; and, in the absence
of any Act, having been passed by the 'appropriate'
Legislature, on the said matter, the rules, framed by the
Railway Board, will have full effect and, if so indicated, B
~ retrospectively also. Such indication, about retrospective
effect, as has already been pointed out by us, is clearly
there, in the impugned provisions."
12. In view of the pronouncement of the Constitution Bench,
there cannot be any doubt that the Railway Board and General c
Managers are empowered to frame rules for regulating the re-
cruitment and conditions of service of the employees.
13. We shall now consider whether the posts created with
reference to different grades in Group C and D can be treated
D
as independent cadres and the policy of reservation can be
---"' applied while making appointment to these cadres.
14. A conjoint reading of paragraph 103(7) of the Code,
103(iii) of the Railway Establishment Manual and Circular R.B.E.
No.113/97 makes it clear that in the railways, the term 'cadre' E
generally denotes the strength of a service or a part of a ser-
vice sanctioned as a separate unit. However, for the purpose of
roster, a wider meaning has been given to the said term so as
to take within its fold the posts sanctioned in different grades.
The reason for giving this enlarged meaning to the term "cadre" F
is that posts in the railway establishment are sanctioned with
- '""" reference to grades. Even temporary, work charged, supernu-
merary and shadow posts created in different grades can con-
stitute part of the cadre.
15. In the service jurisprudence which has developed in G
our country, no fixed meaning has been ascribed to the term
' _....,. "cadre". In different service rules framed under proviso to Ar-
ticle 309 of the Constitution as also rules framed in exercise of
the powers of delegated legislation, the word "cadre" has been
given different meaning. H
474 SUPREME COURT REPORTS [2008] 11 S.C.R.

~
A 16. In AK. Subraman and Others vs. Union of India and
Others [1975 (1) SCC 319], a three Judges Bench of this Court
·-•
while interpreting the provisions contained in Central Engineering
Service, Class I, Recruitment Rules, 1954, observed as under:
"The word "grade" has various shades of meaning in the
B service jurisprudence. It is sometimes used to denote a ~
y
pay scale and sometimes a cadre. Here it is obviously
used in the sense of cadre. A cadre may consist only of
permanent posts or sometimes, as is quite common these \-
days, also of temporary posts."
c I
17. In Or. Chakradhar Paswan vs. State of Bihar and 0th- 1--

ers [1988 (2) sec 214] it was observed as under:-
"In service jurisprud~nce, the term 'cadre' has a definite
legal connotation. It is not synonymous with 'service'. It is
D open to the Government to constitute as many cadres in
any particular service as it may choose according to the I

administrative convenience and expediency and it cannot >- j'
be said that the establishment of the Directorate i-
constituted the formation of a joint cadre of the Director
E and the Deputy Directors because the posts are not
interchangeable and the incumbents do not perform the
same duties, carry the same responsibilities or draw the
same pay. The posts of the Director and those of the
Deputy Directors constitute different cadres of the Service.
F The first vacancy in the cadre of Deputy Directors was
that of the Deputy Director (Homoeopathic) and it had to ~
be treated as unreserved, the second reserved and the II--
third unreserved. Therefore, for the first vacancy of the
Deputy Director (Homeopathic), a candidate belonging
to the Scheduled Caste had therefore to compete with
G
others."
18. In State of Maharashtra vs. Purshottam and Others ,
..,.--.- '
[1996 (9) sec 266], it was held that the "cadre" means unit of
strength of a service or a part of it as determined by the em-
H player.
UNION OF INDIA v. PUSHPA RANI 475
& OTHERS [G.S. SINGHVI, J.]
)"
19. The argument of Shri Sushi! Jain that para 4(b) of Cir- A
cular RBE No.113/97 dated 21.8.1997 is ultra vires the defini-
tion of the word "cadre" contained in para 103(7) of the Code
completely ignores the stark reality that in the railway establish-
ment the posts are sanctioned with reference to grades which
term means sub-division of a class, each bearing a different B
scale of pay. Therefore, the posts sanctioned in different grades
would constitute independent cadres and we see no reason
why a restricted meaning should be given to the term 'cadre' for
.the purpose of implementing the roster.
·20. The next question which merits consideration is c
whether the policy of reservation can be applied at the stage of
restructuring of Group C and D cadres in the railways and
whether para 14 of letter dated 9 .10 .2003 is violative of doc-
trine of equality enshrined in Articles 14 and 16 of the Constitu-
tion. D
21. A cursory reading of the relevant extracts of letters dated
25.6.1985 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 dissimi-
larities:-
E

(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 F
-- ....; 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
G
to be taken for making appointment on the basis of
selection/non-selection/suitability/Trade Test and in
..........,.._
para 5, the requirement of D&ANigilance clearance
has been made mandatory for effecting promotion
with reference to the cut off date.
H
)
476 SUPREME COURT REPORTS [2008] 11 S.C.R.
"'(.

A (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 and
B also declares that residency period prescribed for
promotion to various categories should not be "'J
relaxed.
(iii) Para 9 of letter dated 25.6.1985 postulated retention ,,.
'·
'·-
of basic functions, duties and responsibilities and
c 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
D 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
E provision was made in the policy circulated vide letter
dated 25.6.1985.
(v) The instructions contained in letter dated 25.6.1985
did nc:>t prqvide for direct recruitment against
~
F 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.
G
(vi) Para 18 of letter dated 9.10.2003 shows that the
scheme of restructuring is a self-financing and "f.........
. expenditure neutral proposition. There was no such
provision in the earlier policy.
H
UNION OF INDIA v. PUSHPA RANI 477
& OTHERS [G.S. SINGHVI, J.]
~
i (vii) Annexure 1 appended to letter dated 25.6.1985 A
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 to4o. As against this, the percentage of additional B
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. c
22. 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 en-
visaged in the first policy was in the nature of upgradation of
substantial number of posts in different cadres and the upgraded D
~
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're-
suited in creation of additional posts in some cadres with du- E
ties 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, de-
monstrative of the difference between simple upgradation of F
~~ posts in the cadre.of Supervisors which are required to be filled
without subjecting the incumbents of the posts to normat-selec-
tion procedure whereas the additional posts becoming ayail-
able in other cadres are required to be filled by promotion.
23. In legal parlance, upgradation of a post involves the G
transfer of a post from the lower to the higher grade and place-
ment of the incumbent of that post in the higher grade. Ordi-
narily, such placement does not involve selection but in some of
the service rules and/or pol!cy framed by the employer frr
upgradation of posts, provision has been made for denial of H

·'-
478 SUPREME COURT REPORTS [2008] 11 S.C.R.

A higher grade· to an employee whose service record may con-
tain adverse entrie~ or whc) may· h.ave suffered punishment -
D.P Upadhyay vs. GM., N.R. Baroda House and Others [2002
(1 o) sec 258]. · · ·

24. The word 'promotion' means "advancement or prefer-
s ment in honour,. dignity, rank, or grade.". 'Prom.otion' thus not
·--..--- '
only covers advancement to higher position or rank but also
implies advancement to. a higher grac;fe,. In servi_ce law the ex-
pression 'promotion' has- been understood in the wider sense
and it ha's been held that "promotion can .be either to a higher
C pay scale or to a higher post" - State of Rajasthan vs. Fateh
Chand Soni [1996 (1) SCC 562]. -
'· . .
25. Once it is recognized thatthe additional posts becom-
ing available as a result of restructuring of different cadres qre
required to be filled by promotion from amongst the employees
D who satisfy the conditions of eligibility and pre _adjudged. ~uit
able, there can be no rational justification to exclude the appli-
cability of the policy of res;ervation. while effecting promoti~n~.
more ·so because-it has not been shown that the pr.pcedure for
making appointment by promotion against such additional posts
E ·is·different than the one-prescribed for normal prol'l1otion .. In
Fateh Chand Soni's case,Jhis Court interpreted the provisions
contained in the· Rajasthan PoHce S~rvice Rules, 19541 which
regulate appointment to the Selection Scale. in the se.rvice and
held -that such appointment constitutes promotion. The Co.urt
F then considered two earlier judgments .in La/it Mohan Deb V$.
Union of India [197~ (3) SCC 862] and Union of India vs. S.S.
Ranade [1995 (4) SCC 462] and declared that the High Court
was.in error in holding that appointment to the Selection Scale
does not constitute. promotion.
G
-26. In RamPrasad and Others vs. D.K. Vijay and Others
[1999 (7) sec .251]; it was submitted that the view taken in
Fateh Chand Soni's case requires re-consideration because
the same. is inconsistent with the latter judgments .in Ajit Singh
Januja vs. state of Punjab [1996 (2) SCC 715] and Ajit Singh
H
UNION OF INDIA v. PUSHPA RANI 479
& OTHERS [G.S. SINGHVI, J.]
)-
II vs. State of Punjab [1999 (7) SCC 209]. While rejecting this A
plea, the Constitution Bench observed:-
"The contention of Shri Gopal Subramanium for the general
candidates that _appointment from senior scale to selection
scale is not a promotion and that Fateh Chand Soni
re_quires reconsideration in view of the judgments in Union B
~-t

of India vs. S.S. Ranade and La lit Mohan Deb vs. Union
of India cannot be accepted. We are unable to agree. We
find that both these cases have been referred to and
explained in Fateh Chand Soni case. Therefore, the
reserved candidates are entitled to be promoted to the c
selection scale by way of the roster points. But this has
to be done in the manner mentioned in R.K. Sabharwal
vs. State of Punjab. The appeal of the general candidates
· has to fail."
D
27. 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,
operatignal and administrative requirement of the Railways. This
exercise was intended to improve the efficiency of administra- E
tion by providing incentives to the existing· employees in the
form of better promotional avenues and at the same time re-
quiring the promotees to discharge more one.cous duties. The
policy envisaged that additional posts becoming available in
the higher grades as a sequel to restructuring of some of the F
-__., ca'dres 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 G
the existing incumbents in the higher grade without subjecting
~ .;-~.,.. them to the rigor of selection.

28. In view of the above discussion, we hold that the
Railway Board did not commit any illegality by directing that the
H
480 SUPREME COURT REPORTS [2008] 1.1 S.C.R.

A 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.
B 29. Before parting with this aspect of the case, we con-
sider it necessary to reiterate the settled legal position that
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,
C evaluation of service records of the employees fall within the
.;. . exclusive domC!in of the employer. What steps should be taken
for improving efficiency of the administration is also the pre-
serye of the employer. The power of judicial review can be ex-
ercised in such matters only if it is shown that the action of the
D employer is contrary to any constitutional or statutory provision
or is patently arbitrary or is vitiated due to mala tides. The Court
cannot sit in appeal over the judgment of the employer and or-
dain th01t a particular post be filled by direct recruitment or pro-
motion or by transfer. The Court has no role in determining the
E methodology of recruitment or laying down the criteria of selec-
tion. It is also not open the Court to make comparative evalua-
tion of the merit of the candidates. The Court cannot suggest
the manner in which the employer should structure or restruc-
ture the cadres for the purpose of improving efficiency of ad-
F ministration.
30. We may now deal with an ancillary question whether
the policy of reservation of posts for Scheduled Castes and
Scheduled Tribes can be applied in the matter of promotion.
G 31. The framers of the Constitution were very much con-
scious and aware of the widespread inequalities and dispari-
ties in the social fabric of the country as also of the gulf between
. rich and poor and this is the reason why the goal of justice -
social, political and economic was given the place of pre-emi-
nence in the Preamble. The concept of equality enshrined in
H
UNION OF INOIA v. PUSHPA RANI 481
& OTHERS [G.S. SINGHVI, J.]
~
Part Ill and Part IV of the Constitution has two different dimen- A
sions. It embodies the principle of non-discrimination [Articles
14, 15(1 ), (2) and 16(2)]. At the same time it obligates the State
to take affirmative action for ensuring that unequals (downtrod-
den, oppressed and have-nots) in the society are brought at a
level where they can compete with others (haves of the society) B
'-f (Articles 15(3), (4), (5), 16(4), (4A), (48), 39, 39A and 41 ).
32. The legislative and administrative measures taken by
the State for providing reservation of seats and posts in the
field of education and employment are reflective of the affirma-
tive action taken for achieving the goal of real equality. However, c
implementation and execution of such actions have continuously
faced roadblocks at several stages. Those who had been ben-
efited by the existing system cried foul and created the bogy of
violation of their legal and constitutional rights. Almost all the ac-
tions taken by the State and its agencies for ameliorating the D
conditions of have-nots of the society by providing reservation
were subjected to periodical judicial scrutiny. By and large, the
Courts approved the affirmative actions of the State but on some
occasions the policy of reservation or implementation thereof was
found to be faulty and actions taken by the government have been E
nullified or sliced by judicial intervention.
33. Article 16(1) ensures that there shall be equality of
opportunity in matters relating to employment or appointment.
Clause (2) thereof declares that no citizen shall be treated ineli'-
gible or discriminated in respect of any employment or office F
~_...._

under the State on the ground only of religion, race, caste, sex,
descent, place of birth, residence or any of them. Clause (4)
enables the State to make provision for reservation in favour of
any backward class of citizens which, in the opinion of the State,
is not adequately represented in the services under the State. G
In General Manager, Southern Railway vs. Rangachari [AIR
1962 SC 36], the Constitution Bench made comparative' analy-
..--t-
sis of Articles 16 (1), (2) and (4) and held that reservation can
be made not only at the stage of initial appointment, but also
while making appointment against selection post. H
482 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 34. The ratio of Rangachari's case was reiterated in State
of Punjab vs. Hira Lal and Others [1970 (3) SCC 567]. In that
case, the Court considered whether the Government of Punjab.
couid. provide for .re~ervation of 10% of posts for Schedul.ed
Castes and Scheduled Tribes at the stage of promotion. While·
B. reversing the judgment of Punjab & Haryana High Court yvhkh
had quashed th.e policy of the State Government, this CoLJrt re.:
ferred to the judgment in Rangachari's case and held:-
"The reservation must be only for the purpose of giving
adequate representation in the services to-the Scheduled
C . Castes, Scheduled Tribes and Backward Cla.sses. The
exception provideci in Article 16(4) sh9uld not make fhe
rute embodied in Article 16(1) meaningless. But the burden
of/e.stablishing that a particular reservation made by the
: State js offensive to Article 16(1) is on the person, who
D takes the plea. The mere fact that the reservatipn mad,e
may give extensive benefits to some of the persons who
have the benefit of the reservation doe_s not by itself mak·e
the reservation bad .
. It is true that every reservation under Article 16(4) does
E introduce an element·of discrimination particularly when
. the question of promotion arises. It . is an inevitable
·consequence of any reservation of posts that junior officers
are allowed to take a mare~ over their seniors. This
circumstance js bound to displease t.he senior offi"cers. It
F may also be that some of them will get frustrated but then
the Constitution makers have thought fit in the interests of
the society as a whole that the backward class of citizens
of this country should be afforded certain protection."
G . 35. In Akhil Bharatiya So$hit Karamchari Sangh (Rail-
way) vs. Union of India and Others (1981 (1) SCC 246],
Chinnappa Hedy, J. in his concurring judgment observed as
under:-
...Reservation of posts and all other measures designed to
H promote the participation of the.Scheduled Ca~tesa.nd
UNION OF INDIA v. PUSHPA RANI 483
& OTHERS [G.S. SINGHVI, J.]

-- the Scheduled Tribes in the Public Services at all levels A
are ne·cessary consequences flowing from the
Fundamental Right guaranteed by Article 16(1 ). This very
idea is emphasized further by Article 16(4). Therefore,
when posts whether at the stage of initial appointment or
at the stage of .promotion are reserved or other preferential B
treatment is accorded to members of the Scheduled
Castes, Scheduled Tribes and other socially and
economically backward classes, it is not a concession or
privilege extended to them; it is in recognition of their
undoubted Fundamental Right to Equality of Opportunity c
and in discharge of the constitutional obligation imposed
upon the State to secure to all its citizens 'Justice, social,
economic and political' and 'Equality of status and
opportunity', to assure 'the dignity of the individual' among
all citizens, to 'promote with special care, the educational
0
and economic interests of the weaker section of the
people;, to ensure their participation on equal basis in the
administration of the affairs of the country and generally to
foster the ideal of a 'Sovereign, Socialist, Secular,
Democratic Republic'. Every lawful method is permissible
to secure the due representation of the Scheduled Castes E
and Scheduled Tribes in the Puhlic Services~ There is no
fixed ceiling to reservation or preferential treatment in
favour of the Scheduled Castes and Scheduled Tribes
though generally reservation may not be far in excess of
fifty per cent. There is no rigidity abo~t the fifty per cent F
rule which is only a convenient guide-line laid down by
judges. Every case must be decided with reference to the
present practica_I results yielded by the application of the
particular rule of preferential treatment and not with
reference to hypothetical results which the application of G
the rule may yield in the future."
36. In Indra Sawhney's case, the larger Bench considered
whether Clause (4) of Article 16 was confined to initial appoint-
ment or the same can be applied at the stage of promotion.
H
484 SUPREME COURT REPORTS [2008] 11 S.C.R.

A After elaborate discussion, the majority of the larger Bench held
that Article 16(4) is confined to initial appointment and cannot
extend to providing reservation in the matter of promotion. At
-
the same time it was held that the promotions already made by
applying the policy of reservation will not be affected and the
B policy may continue to operate for a period of 5 years.
37. The judgment ln Indra Sawhney's case led to seventy-
seventh amendment of the Constitution. The Statement of Ob-
jects and Reasons incorporated in the bill introduced, which
led to the passing of Constitution (Seventy-seventh Amendment)
C Act, 1995 reads ·as under:-
"Statement of Objects and Reasons.- The Scheduled
Castes and the Scheduled Tribes have been enjoying the
facility of reservation in promotion since 1955. The
Supreme Court in its judgment dated 16.11.1992 in the
D
case of Indra Sawhney vs. Union of India (1992 Supp. (3)
SC 217], however, observed that reservation of
appointments or posts under Article 16(4) of the
Constitution is confined to initial appointment and cannot
extend to reservation in the matter of promotion. This ruling
E of the Supreme Court will adversely affect the interests of
the Scheduled Castes and the Scheduled Tribes. Since
the representation of the Scheduled Castes and the
Scheduled Tribes in services in the States has not reached
the required level, it is necessary to continue the existing
F dispensation of providing reservation in promotion in the
case of the Scheduled Castes and the Scheduled Tribes.
In view of the commitment of the Government to protect
the interests of the Scheduled Castes and the Scheduled
Tribes, the Government has decided to continue the
G existing policy of reservation in promotion for the Scheduled
Castes and the Scheduled Tribes. To carry this out, it is
necessary to amend Article 16 of the Constitution by
inserting a new clause (4-A) in the said article to provide
for reservation in promotion for the Scheduled Castes
H and the Scheduled Tribes."
UNION OF INDIA v. PUSHPA RANI 485
& OTHERS [G.S. SINGHVI, J.]

Clause (4-A) which was inserted by the aforesaid A
amendment reads as under:-
"Nothing in this article shall prevent the State from making
any provision for reservation in matters of promotion to
any class or classes of posts in the services under the
State in favour of the Scheduled Castes and the Scheduled B
Tribes which, in the opinion of the State, are not adequately
represented in the services .under the State."
38. The constitutionality of the above reproduced clause
has been upheld in M. Nagaraj's case. c
39. We shall now advert to the decisions of different
-benches of the Tribunal and orders passed by this Court in the
context of the actions taken by the competent authority for giv-
ing effect to the policy of restructuring envisaged in letter dated
25.6. 1985 for reservation of posts for Scheduled Castes and D
~ Scheduled Tribes.
40. The policy contained in Railway Board's letter dated
25.6.1985 was considered by Allahabad Bench of the Tribunal
in case bearing registration No.384 of 1986, VK. Sirothia vs.
Union of India and Others. Some of the peculiar features of E
VK. Sirothia's case are:-
(i) Prior to 1.6.1981 there were 3 categories of guards
in grades 'A', 'B' and 'C' in Jhansi Division of Central
Railway. F
--A.
(ii). On 1.6.1981 a fourth category was created, which
was called as guards grade 'A' (Special).
(iii) Originally 69 posts of guards grade 'A' were
upgraded and re-designated as guards grade 'A'
G
(Special).
(iv) 109 posts of guards grade 'B' were upgraded to guards
grade ·~ and 182 posts of guards grade 'C' were
upgraded to that of guallds grade 'B'. Consequently,
272 posts of guards remained in grade 'C'. H
486 SUPREME COURT REPORTS [2008] 11 S.C.R.

A (v) The above redistribution of posts was done as a
result· of restructuring of cadre of guards in Jhansi
Division by the Railway Division manager.

'
(vi)
.'
There was redistribution among various grades of
gliards on 1.1.1984. 69 posts of guards grade 'A'
a ...,
whi.ch'were upgraded. to grade 'A' (Special) (15 _,.,
post~) and grade 'A' (Special-II) (54 posts). Some
more posts of guards in grade 'C' were upgraded to
grade 'B'. Out of 109 posts of grade 'A' 32 were
upgraded as grade 'A' (Special-II) and 77 were left
c as guards grade 'A'.
(vH) Similarly in grades 'B' and 'C' the percentage of
distribution was interchanged and instead of 182,
272 posts were upgraded to that of grade 'B' leaving
out 182 posts in grade 'C'.
D
4·1. The Tribunal noted that as per Railway Boardis. letter
No.E9(P&A)-11-SCT/3 dated 2.8.1983, the policy of reservation
for Scheduled Castes and Scheduled Tribes is not applicable
where cadre restructuring results in mass upgradation of posts
E and held:
"6. In this connection Railway Board's letter No.E9(P&A)-
ll-SCT/3 dated 2.8.1983, which is placed atAnnexure-1 of
the petition; refers Board have clarified in this letter that
where cadre restructuring results in mass up-gradation of
F. posts in a particular category reservation for SC/ST is not
to be provided. However, in cases where restructuring
results in partial up-gradation on the basis of percentage
distribution the existing rules should be applied against
the additional number of higher grade posts which become
G available as a result of cadre restructuring. The first
important aspect of this letter is 'mass up-gradation'. What
does the term 'mass' signify and how it should be
interpreted? Does it mean that if all the posts in a category
are upgraded en-block, $UCh an up-gradation will justify
H for being called 'mass up-gradation' or is it that if a major
UNION OF INDIA v. PUSHPA RANI 487
& OTHERS [G.S. SINGHVI, J.]

-- ("
percentage is up-graded then it will be called 'mass up-
gradation'? The dictionary meaning of the word 'mass' is
large quantity or number. 'It can not be said that the large
A

quantity will only mean all the posts being upgraded. Large
quantity should mean what the word signifies i.e. a large
number of posts should be involved in the exercise. The B
petitioner Guard grade 'C' there were 454 posts. By an
up-gradation made on 1.6.81 40% of these posts got
upgraded to grade 'B' while on 1.1.84 the percentage
was changed to 60%. Out of total 454 posts 40%works
out to 182 posts to a 60% to 272 posts. This is sizeable c
number and it cannot be said that the figure is in any way
small. This should fall within the meaning of mass up-
gradation.
7. The second condition enunciated in the Board's letter
leads us to the question whether this up-gradation has D
resulted in additional posts. The restructuring of posts
was done to provide relief in terms of promotional
avenues. No additional posts were created? Some posts
out of existing total were placed in higher grade to provide
these avenue to the staff who were stagnating. The E
placement of these posts in the higher grade cannot be
termed as creation of additional posts. There were definite
.number of posts and total remained the same. The only
difference was that some of these were now in a higher
grade. It was a deliberate exercise or re-distribution with F
the primary object of betterment of chances of promotion
and removal of stagnation. Additional posts could only be
created if there were additional requirements. There
should have been justification for their creation and proper
sanction. We find no such situation here. It was a simplicitor
G
exercise of d_ividing the total number in ratios. It was done
on 40:60 first and later it was made 60:40 the number
-remained same.

8. It would be different matter if in a fixed cadre the
promotion are made on occurrence of vacancies in h.igher H
488 SUPREME COURT REPORTS _[2008] 11 S.C.R.

A grades. Such vacancies arise due to promotion, attrition
or creation of additional posts. It is in such situations that
reservation percentages apply and have to be foUowed.
Up-gradation of cadres by redistribution of posts will lose
-
its primary objective if it is taken as generation of additional
B posts in the up-graded posts which it rightly is not.
.There has to be rationality in the implementation of
direction .and instructions. The criteria has also to for
cumulated keeping the aims and as regards in view. The
key note thought behind the exercise should not be lost
c sight of. It is to improve prospects, remove stagnation and
provide avenue:.s. The very purpose is defeated if the end
result is anything also. The ambiguity in the Railway Board's
letter of 2.8.83 needs to be clarified and correctly
interpreted. There cannot be any additional posts as result
D of restructuring up-gradation. The so called promotion as
a result of redistribution of posts is not promotion attracting
reservation. The 454 posts in grade 'C' had already been
subject to reservation, a second reservation tantamount
to giving unintended benefits."
E 42. The appeal preferred against the aforementioned or-
der [Union of India vs. VK. Sirothia-(supra)] was dismissed by
this Court in the following terms:-
"Heard counsel on both sides. The finding of Tribunal that
F "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 reasonings.
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
G
ground to interfere with the order of the Tribunal."
43. The same issue was considered by Jabalpur Bench ,.Y

of the Tribunal in T.A. No.139of1986, Ashok Kumar Shrivastava 1""11
vs. Union of India decided on March 24. 1987. That case in-
H vdlved upgradation of 380 posts of Assistant District Medical
UNION OF INDIA v. PU$HPA RANI 489
& OTHERS [G.S. SINGHVI, J.]

Officers to those of District Medical Officers in accordance with A
the directions issued by the Railway Board vide circular dated
31. 7 .1981. Ashok Kumar Shrivastava and another challenged
the applicability of reservation to the upgraded posts and
pleaded that they were entitled to the higher post without re-
quiring to undergo any selection. The Tribunal referred to the B
... -t orders passed by Allahabad Bench in VK. Sirothia's case and
judgment of the Full bench of Kera la High Court in N. G Prabhu .
v. Chief Justice, Kera/a High Court (1973 Labour Industrial
Cases 1399) and .held :
"24. Railway Board in their letter No.81/E (GR) 11/7/7/30, C
dated 16.5.1981, to UP SC which recommending only 5
per cent direct recruitment to the posts of DMOs informed
the Secretary, UPSC as under :
However, the situation has since changed in that the
0
justification for direct recruitment of Divisional Medical
Officers no long exists. Many Assistant Divisional Medical
Officers are not postgraduates. There has been
considered demand for scrapping of direct recruitment.
The Ministry of Railways have an in-depth study of the
problem and have corn~ to the conclusion that there is no E
justification to continue direct recruitment in senior scale
for the following reasons, etc.
It is also clear from the following extract of subsequent
order of upgradation dated 31. 7.1981 (Annexure 'A') that F
the proc~ss was only to give better pay to same ADMOs.
An over all view of the organizational and medicare
structure of the Indian Railways has been taken keeping
in view the basic objectives of improving effectivepess
and quality of service. As a result of the review, it has been G
decided that 300 existing posts of Assistant Divisional
Medical Officers in Indian Railway Medical Service should
be placed in the senior scale as Divisional Medical Officer.

·we also find that posts of ADMOs have been just H
490 SUPREME COURT REPORTS [2008] 11 S.C.R.

A upgrad~d and placed in the higher scale of OMO to give
relief to AOMOs who were stagnating. Persons so
upgraded ·~ue riot going to occupy any new posts as the
total number of posts remains· unchanged and the-- total
streng~h of AOMOs and OMO remains the same. No new
B ·post has been created as pedhe Indian RailwayMedical
Services (GMO. Addi. CMO, MS and ·Qiv./Sr. MO)
Recruitment Rules, 1978 (AnnexLire 'R-2') or Order 81/
EGRlll/7/30, dated 16.5.1981. The placement of same
posts in higher grc.;de is not creation of additional posts.
c 25. Under these circumstances this Tribunal is of the view
that this_'rnass ·upgradation of 300 AOMOs to the exactly
eq'uivalent number of posts of OMOs is a casra·-of their
being simply placed inthe higher senior scale of the grade
·and as admittedly also no selectto.n is involved, Gqpnot be
considered to·involve any proce;!ss of promotion or fresh
appointment and therefore no fresh reservation o.f SC and
STs in terms of the prescribed percentage, can be made
to the upgraded posts a_nd to the existing incumbents
· ·holding the posts of AOMOs which were upgraded. What
E is applicable to this situation is not Railway Board's Circular
· No.X/78/E(SCT)/15/13/P & II, dated 22.2.1982 (Annexure
'E') but Railway Board's Circular No .. E(P&A) II, 83/RS/8,
~ated 2.8.1983 an extract of which is reproduced below:

In supE?rsession of instructions contained in -Board's Letter
F .. No.8t/E(SCT) 15/83 dated.16.1.,1982 and 5.5.1.982 the
Board desires to clarify that where cadre rE~structuring
results in on mass upgradation of posts in a particular
category, the question of providing for reservation to SC/
ST ·according to the extent rules and orders in such a
G situation should riot ordinarily arise since reservations have
already been made in the lower grade. However, if cadre
restrucfuiing results in particular upgradation of a Cadre/
Category on the basis of percentage distribution, the
existing rules and orders governing reservation for SC/
H STs will apply against the additional number of higher
UNION OF INDIA v. PUSHPA RANI 491
......._ & OTHERS [G.S. SINGHVI, J.]

grade posts which become available as a res~lt of cadre A
restructuring on the basis of existing rules and order
providing for reservation for SC/STs.
The respondent has not stated that the above instructions
have been superseded.
8
~y 26. In similar circumstances, a Full Bench of Kerala High
Court in N.G. Prabhu v. Chief Justice, in para 16 observed
as under:
In other words, if the upgradation relates to all the posts in
a category naturally there is no sense in calling it a c
promotion of all the person in that category. That is because
there is no question of appointment from one post to
another. Parties continue to hold the same posts but get
a higher scale of pay. It may be that it is not all the posts
in a particular category that are so upgraded but only a D
part of it. Normally, the benefit of such upgradation would
go to the seniors in the category. They would automatically
. get a higher scale of pay. That is because though their .
posts continue in the same category, a higher scale of pay
is fixed for those posts. It is appropriate then to say that E
the seniors have been nominated to the higher grade which
has been so created by the upgradation. The phenomenon
does not differ from the case where. all the posts are
upgraded, and it appears to us that those who get the
higher grade cannot be said to· have been 'promoted; F
because here again there is no question of appointment
I • """
from one post to another. They continue to hold the same
post, but because of seniority in the same post they are
given a higher scale of pay.
On the same analogy thus, this upgradation of 300 posts G
of ADMOs in present case is not an appointment of a
member of the service by promotion to a post in the service
~
on a higher scale of pay and therefore does not attract the
reservation principle. Allahabad bench of CAT in its
decision in OA 384of1986 V.K. Sirothia v. Union of India H
492 SUPREME COURT REPORTS [2008] 11 S.C.R.

A has held in the case of upgradation of railway guards as
follows:
The restructuring of posts was done to provide _relief in
terms of promotional avenues. No additional posts were
created. Some posts out of existing total were placed in
B higher grade to provide these avenues to the staff who
were stagnating. The placement ofthese posts canriot be
termed as creation of additional posts. There were definite
number of posts and the total remained the same. The
only difference was that some of these were in a higher
c grade. ltwas deliberate exercise of redistribution with the
primary object of betterm.ent of chance of promotion and
removal of stagnation."
44. The Union of India unsuccessfully appealed against
the order of the Tribunal inas'much as ·st.P No.11801 of 1987
0
filed by it was dismissed by this Court on 8.12: 1987 in the fol-
lowing terms: · · · -

"We have heard the learned counsel for qoth the parties and
we have g6n~ through the judgment of the· Central
E Administrative Tribunal at Jabalpur Bench in Ashok Kumar
Shrivastava & Ors. v. Union of India & Ors. (T.A. No.139/86)
decided on 24th March, 1987 against which the special leave
petition is filed. We agree with the reasons given by the Central
: Administrative Tribunal for the.conclusion it has reached. We
F hereby affirm the judgment of the Central Administrative
·Tribunal. The Special Leave Petition is dismissed."
45. In O.A. No.414 of 1987, N.K. Saini & Others vs. The
Director General, ROSO & Others, the applicant challenged the
question of application of policy of reservation in the matter of
G promotion to the upgraded posts becoming available as. a re-
sult of restructuring of cadres in Research Design &-Standards
Organization. Allahabad Bench of the Tribunal reforred to the I

orders passed in V.K. Sirothia's case and A.K. Srivastava's -+--·
case. and held that the upgraded posts could not have been
H offered to the reserved category candidates. . ~
UNION OF INDIA v. PUSHPA RANI 493
& OTHERS [G.S. SINGHVI, J.]
,_~

46. S.L.P. (C) No.9628-30 of 1988, Govind Sahai & Ors. A
vs. N.K. Saini & Ors., was dismissed by the Supreme Court by
a short order which reads as under:-
"Heard learned counsel for the petitioners at length and
also heard learned counsel for the Central Government. In
our opinion, we see no reason to entertain this special B
~y

leave petition. It is, therefore, dismissed.
47. In All India Non SC/ST Employees Association (Rail-
way), Bikaner &Anothervs. Union of India & Others, 0.A. No.326
of 1989, Jodhpur Bench of the Tribunal ruled that the reserva- c
tion for Scheduled Castes and Scheduled Tribes is not appli-
cable in the case of upgradation of the existing posts.
48. Petition for special leave to appeal filed by the Union
of India against the afore-mentioned order which was converted
as Civil Appeal No.1481of1996 was dismissed by this Court D
on 19th November, 1998 in the following terms:-
"Special Leave granted in S.L.Ps. Heard counsel on both
sides. This court on 3.1.96 granted special leave but limited
to the proposition that the reservation for SC and ST is not
applicable in the case of upgradation of existing posts. E
This issue we have decided today in Civil Appeal No.3622/
95 etc. In the light of that decision, these appeals are
dismissed with no order as to costs."

49. The Association which was respondent before this F
~ --', Court, filed Contempt Petition (C) No.304 of 1999. During the
pendency of the Contempt Petition, the railway administration
filed I .A. No.2 of 2000 for clarification of order dated 19th No-
vember, 1998 by claiming that there was a lot of confusion. The
same was disposed of vide this Court's Order dated 31.1.2001.
G
The relevant portions of which read as under:-
__,_ "It appears from all the decisions so far that if as a result
of reclassification or readjustment 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 H
494 SUPREME COURT REPORTS [2008] 11 S.C.R. '.~
.f~
'-

A on this basis that this Court on 19th November, 1998 had t
held that reservation for SC and ST is not applicable in
the upg radation of existing posts and Civil Appeal No.1481 /
1996 and the connected matters were decided against
the Union of India. The affect of this is that where the total
B number of posts remained unaltered, though in different
scales of pay, as a result of regrouping and the effect of -r ·
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 no_t a case
c of additional vacancy or post being created to which the
reservation principle would apply. It is only if in additional
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
D
case. The present case is restricted to all existing
employees who were re-distributed into- different scales
of pay as a result of the said upgradation."
50. In K. Manickaraj's case the Court considered whether
E the benefit of reservation could be extended to the appellant
while making appointment on the post of Welfare Inspector
Grade II. The Court noted that as a result of restructuring, the
number of posts available in cadre of Welfare Inspector Grade
II increased from 23 to 26 and if reservation of 15% of promo-
F tion was given to Scheduled Castes, 4 posts would be avail-
able for reserved category. On behalf of the respondents, it was ~-4
pleaded that there has been no change in the strength of the
posts in Grade II which remained 23 and the upgraded posts
were meant only for sport persons. The Tribunal accepted the
contentions raised by the respondents and negatived the claim
G
of appellant. This Court reversed the order of the Tribunal and
observed:-
t-
"It is admitted that the total r:iumber of posts in Grade II ....
was 23 and 3 posts from Grade 111 were upgraded to that '
H of Grade 11. The upgraded posts which. were made as
UNION OF INDIA v. PUSHPA RANI 495
& OTHERS [G.S. SINGHVI, J.]

early as in August 1987, as per Memorandum dated 24- A
8-1987, still continue. It is, therefore, not possible for us to
accept the contention of the learned counsel for the
respondent that the alleged upgradation was made for a
temporary period meant for sports personnel. The posts
which were upgraded in the year 1988 having continued B
till date, the cadre strength of Grade II Inspectors must be
held to have become 26 and not 23 as contended by the
respondent. If 15% of the cadre is meant for reserved
category people then it would work out at 4 and admittedly
there are only 3 persons belonging to the Scheduled C.
Castes in Grade 11. In that view of the matter the appellant
was entitled to be promoted against the 15% reserved
quota of posts in Grade II treating the total number of
posts in Grade II to be 26. In our considered opinion the
Tribunal was in error in not taking into account the upgraded
0
posts which have been upgraded from Grade Ill to Grade
II on the ground that it was meant for sports personnel.
While computing the number of posts available for reserved
category, there is no justification to exclude the upgraded
posts which had continued from 1988 till date."
E
51. 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 with-
out subjecting them to the process of selection. Different F
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 restructur-
ing results in mass upgradation of posts and held that the ad-
ministration was required to make appointment/placement G
against tbe upgraded posts without reserving posts for'Sched.:.
uled Castes and Scheduled Tribes. This Court repeatedly em-
phasized that the restructuring exercise did not result in cre-
ation of new posts/additional posts which could be filled by pro-
motion by following the procedure of selection. Therefore, these
H
496 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 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 re-
sulted in creation of additional posts in most of the cadres cov-
ered by the policy and the government had taken a conscious
B decision to fill up such posts by piOmotion from amongst eli-
gible and suitable employees and the promotees were burdened
with duties and responsibilities of greater importance. There-
fore, the Tribunal and High Court were not justified in treating it
as a case of upgradation of posts simplicitor. Consequently,
c 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.
52. The arguments made by learned counsel in the con-
text paras 11 and 15 need not detain us because none of the
of
D issues decided by the Tribunal and High Court relate to direct
recruitment against future vacancies. ·
53. The point remains to be considered is whether the
order of the Tribunal, which has been confirmed by the High
E Court, can be maintained by applying the ratio of M. Nagaraj's
case. Dr. Rajiv Dhawan, learned senior counsel appearing for
some of the respondents, made strenuous efforts to convince
us that the policy of reservation cannot be applied at the stage
·of making promotions because the Railway Administration did
not produce any evidence to show that Scheduled Castes and
F Scheduled Tribes were not adequately represented in different
cadres and that the efficiency of administration will not be jeop-
ardized by reserving posts for Scheduled Castes and Sched-
uled Tribes, but we have not felt persuaded to accept this sub-
mission. In the applications filed by them, the respondents did
G not plead that the application of the policy of reservation would
lead to excessive representation of the members of Scheduled
Castes and Scheduled Tribes, or that the existing policy of res-
ervation framed by the Government of India was not preceded
by an exercise in relation to the issue of adequacy of their rep-
H resentation. Rather; the thrust of their claim was that restructur-
UNION OF INDIA v. PUSHPA RANI 497
& OTHERS [G.S. SINGHVI, J.]

ing of different cadres in Group C and D resulted in upgradation A
of posts and the policy of reservation cannot be applied qua
upgraded posts. Therefore, the Union of India and the Railway
Administration did not get opportunity to show that the employ-
ees belonging to Scheduled Castes and Scheduled Tribes did
>- y
not have adequate representation in different cadres; that the B
outer limit of reservation i.e. 50% will not be violated by apply-
ing the policy of reservation and that the efficiency of adminis-
tration will not be jeopardized by applying the policy of reserva-
tion. Therefore, it is neither possible nor desirable to entertain
a totally new plea raised on behalf of the respondents, more so, c
because adjudication of such plea calls for a detailed investi-
gation into the issues of facts.
Civil Appeal No.· 4712@ S.L.P. (C) No.5045 OF 2007
54. Leave granted.
D
55. In this appeal, Union of India and two others have chal-
lenged order dated 5.4.2006 passed by Allahabad Bench of
the Tribunal and order dated 6. 7.2006 passed by High Court of
Allahabad in Writ Petition No.34662 of 2006. The facts culled
out from the record of the appeal show that as a result of cadre E
restructuring exercise undertaken pursuant to the policy con-
tained in letter dated 9.10.2003, two posts of Personal lnspec-
tor Grade I (Rs.6500-105001-) became available in Varanasi
Division of Northern Railway. One of these posts was earmarked
__ .... for general category and the other for the reserved category. F
The respondent who was holding the post of Senior Personal
Inspector represented for appointment against the unfilled post
earmarked for reserved category by contending that she fulfils
the conditions of eligibility. Her claim was rejected by the com-
petent authority on the premise that the reserved post cannot
G
be offered to general category candidate. She then filed O.A.
No.509 of 2005. The Allahabad Bench of the Tribunal relied on
the order passed by this Court in VK. Sirothia's case and the
one passed by the Full Bench of the Tribunal fn O.A. No.933 of
2004 (PS. Rajput and two others v. Union of India and Others)
H
498 Sl)PREME COURT REPORTS [2008) 11 S.C.R.

A and held that the applicant (respondent herein) is entitled to be
considered for the second post. The High Court also relied on
the order passed in VK. Sirothia's case and dismissed the writ
petition filed by the Union of India and others.
;r
56. We have heard learned counsel for the parties. In view
B of the findings recorded by us in civil appeals that policy of res-
ervation is applicable to the cadre restructuring exercise un-
dertaken pursuant to the policy contained in letter dated
9.10.2003, the orders impugned in civil appeal arising out of
Special Leave Petition (Civil) No.5045 of 2007 are liable to be
C set aside.
57. In the result, the appeals are allowed and the impugned
orders are quashed. As a consequence, the original applica-
tions filed by the respondents in all the cases shall stand dis-
D missed. However, parties are left to bear their own costs.
K.K.T. Appeals allowed.