IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH SEPTEMBER 2007 / 2ND ASWINA 1929 WP(C).No. 8822 of 2006(S) ------------------------- AGAINST THE ORDER DATED 21/11/2005 IN OA.908,912/04,374/05 IN OA.711/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ 1. UNION OF INDIA, REPRESENTED BY THE CHAIRMAN, RAILWAY BOARD, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI-1. 2. GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. 3. DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM-14. 4. DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM-14. 5. CHIEF PERSONEL OFFICER, SOUTHERN RAILWAY, CHENNAI-3. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENTS: ------------- 1. P.A.SURENDRANATH, S/O.P.ANANDAPADMANABHAN, CHIEF COMMERCIAL CLERK/GRADE-II, ERNAKULAM NORTH RAILWAY STATION, SOUTHERN RAILWAY, ERNAKULAM. 2. JOSEMON.K.O, S/O.K.C.KOCHUMMEN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, QUILON. 3. K.G.UNNIKRISHNAN, S/O.K.S.GOPALAN, TRAVELLING TICKET EXAMINER, TRIVANDRUM, SOUTHERN RAILWAY, QUILON. 4. JOSEPH BAKER FENN, S/O.J.B.BENN, TRAVELLING TICKT EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM NORTH. 5. SUNIL THOMAS, S/O.T.Y.THOMAS, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, QUILON. 6. K.P.UMESH, S/O.K.L.PURUSHOTHAMAN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, QUILON. 7. MOHANDAS.M, S/O.T.P.VIJAYAN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM. 8. K.AJAYAKUMAR, S/O.K.KRISHNA PILLAI, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM. 9. R.DEVARAJAN, S/O.N.RAGHAVAN PILLAI, CHIEF TRAVELLING TICKET INSPECTOR/II, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR/GRADE-III, SOUTHERN RAILWAY, TRIVANDRUM. 10. R.S.MANI, S/O.T.P.RAMASWAMI, CHIEF TRAVELLING TICKET INSPECTOR/GRADE-II, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, QUILON. 11. M.K.RAJASEKHARA KURUP, S/O.KARUNAKARA KURUP, CHIEF TRAVELLING TICKET INSPECTOR/GRADE-II, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, TRIVANDRUM. 12. G.RAMACHANDRAN NAIR, S/O.GANGADHARA KURUP, CHIEF TRAVELLING TICKET INSPECTOR/GRADE-II, OFFICE OF THE CHIEF TRAVELLING INSPECTOR, SOUTHERN RAILWAY, TRIVANDRUM. 13. G.ANTONY, S/O.A.GEORGE LOUISE, TRAVELLING TICKET INSPECTOR, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM. 14. R.RAMESH, S/O.RAGHAVAN NAIR, SENIOR GOODS GUARD, OFFICE OF THE STATION MASTER, SOUTHERN RAILWAY, QUILON. 15. K.REGHURAMAN, TRAVELLING TICKET INSPECTOR, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM. 16. V.VIJAYAN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, TRIVANDRUM. 17. K.SUBRAMANIAN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, NAGERCOIL. 18. K.ANANDAN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, QUILON. 19. P.K.KARTHIAYANI, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, THRISSUR. 20. K.SHIBU, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, QUILON. 21. P.H.JOHNSON, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM NORTH. 22. SAJUMON DANIEL, TRAVELLING TICKET INSPECTOR, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM. 23. M.NAGARAJAN, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM. 24. SARISH.P.SANKAR, TRAVELLING TICKET INSPECTOR, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, ERNAKULAM NORTH. 25. K.S.JAMES, TRAVELLING TICKET EXAMINER, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, KOTTAYAM. 26. K.MURUGAIAH, CHIEF TRAVELLING TICKET INSPECTOR/GRADE-II, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, NAGERCOIL. 27. K.V.RAGHAVAN, CHIEF TRAVELLING TICKET INSPECTOR/GRADE-II, OFFICE OF THE CHIEF TRAVELLING TICKET INSPECTOR, SOUTHERN RAILWAY, TRIVANDRUM. BY ADV. SRI.K.A.ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 24/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF OA 711/2004 FILED BEFORE THE TRIBUNAL/ERNAKULAM BENCH EXT.P2-TRUE COPY OF REPLY STATEMENT IN OA 711/2004 EXT.P3-TRUE COPY OF THE COMMON ORDER DATED 21.11.2005 OF DO. IN DO. EXT.P4-TRUE COPY OF ORDER DATED 4.10.04 OF DO. LUCKNOW BENCH IN OA 356/2004 EXT.P5-TRUE COPY OF ORDER DATED 24.10.2005 OF THE TRIBUNAL, MADRAS BENCH IN OA 122/2005 EXT.P6-TRUE COPY OF JUDGMENT DATED 18.11.2005 OF THE HIGH COURT OF NEW DELHI IN WPC 21625/2005 EXT.P7-TRUE COPY OF JUDGMENT DATED 14.12.05 OF THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH IN WPC 9467/2005 EXT.P8-TRUE COPY OF ORDER OF THE TRIBUNAL, NEW DELHI DATED 29.11.2005 IN MA 17770/2005 OA 1173/2004 & MA 1313/2005 EXT.P9-TRUE COY OF ORDER OF SUPREME COURT DATED 17.1.06 IN IA 1 TO 3 IN CIVIL APPEAL NOS.6934-6946 OF 2005 IN UOI & OTHERS V. PUSHPA RANI & OTHERS. EXT.P10-TRUE COPY OF ORDER DATED 17.5.2007 OF THE APEX COURT IN TP (CIVIL) NO.367/2007 EXT.P11-TRUE COPY OF LETTER DATED 21.5.2007 EXT.P12-TRUE COPY OF LETTER DATED 29.3.2007 RESPONDENTS' EXTS: EXT.R1(A)-PHOTO COPY OF ORDER DT.8.12.87 IN SLP NO.11001/87 EXT.R1(B)-PHOTO COPY OF ORDER DT.31.8.98 IN SLP 9628-30/88 EXT.R1(C)-PHOTO COPY OF ORDER DATED 19.11.1988 IN CA NO.3622/1995 EXT.R1(D)-PHOTO COPY OF ORDER DT. DO. IN CA NO.1481/96 EXT.R1(E)-PHOTO COPY OF SUPREME COURT ORDER DT.31.1.2001 IN CP(C) 304./99 EXT.R1(F)-PHOTO COPY OF THE SUPREME COURT ORDER DT.13.5.05 IN SLP(C) 11588/03 EXT.R1(G)-PHOTO COPY OF ORDER DT.22.8.06 IN RP NO.326/06 EXT.R1(H)-PHOTO COPY OF THE CIRCULAR DATED 21.12.2006. // TRUE COPY // P.S. TO JUDGE K. Balakrishnan Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NO.8822 of 2006-S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2007 JUDGMENT Balakrishnan Nair J. The petitioners are the respondents in O.A. Nos.711, 908 and 912 of 2004 and 374 of 2005 of the Central Administrative Tribunal, Ernakulam. Several applications were disposed of by Ext.P3 common order of the Tribunal. The point that arose for decision in all those Original Applications was regarding the implementation of the Railway Board's order dated 9.10.2003 which was produced as Annexure A1 along with Ext.P1 O.A.No.711/2004. As per Annexure C to Annexure A1, certain posts at the Groups C and D level in the Commercial Department of the Railways were restructured. Without disturbing the total number of posts, the distribution in the different grades was changed, so that those working in the lower grades will get an upgradation and are able to draw higher scale of pay in the higher grade. Certain number of posts in the lower grades were reduced and corresponding number of posts were increased in the higher grades. The point that arose for decision was whether the additional number of posts created in the higher grades as a result of such upgradation, WPC 8822/2006 2 should be filled up according to seniority or by applying the rules of reservation also. Para 14 of Annexure A1 provided that “the existing instructions with regard to the reservation of SC/ST wherever applicable, will continue to apply.” Relying on the said provision, rules of reservation were attempted to be applied while filling up the additional posts created in the higher grades. So, a batch of Original Applications were filed challenging such steps. Those applications were allowed relying on certain orders of the Apex Court and also a Full Bench decision of the Tribunal. It was held that rules of reservation are not applicable while filling up the posts arising as a result of upgradation. The Tribunal also quashed para 14 of Annexure A1 order which enabled application of rules of reservation wherever applicable. The writ petitioners attack the said order of the Tribunal on the ground that additional posts created in every grade should be filled up applying the rules of reservation. Now after the 85th amendment, reservation in the matter of promotions is also permissible. So, the additional posts arising in the higher grades as a result of restructuring and upgradation are also liable to be filled up following the rules of reservation, it is contended. 2. We heard learned counsel for the respondents also, who WPC 8822/2006 3 pointed out that the upgradations introduced earlier in similar circumstances were the subject matter of decisions of the Apex Court and every time the Apex Court has held that rules of reservation are not applicable while filling up the additional posts in higher grades arising out of restructuring and upgradation. 3. We notice that the Tribunal has followed the orders of the Apex Court to hold in favour of the applicants before it. One of the said decisions is produced as Annexure A3 along with Ext.P1 O.A. The relevant portion of the said order reads as follows: “It appears from all the decisions so far that if as a result of reclassification or readjustment, there are no additional posts which are created and it is a case of upgradation, then the principle of reservation will not be applicable. It is on this basis that this Court on 19.11.1998 had held that reservation for SC and ST is not applicable in the upgradation of existing posts and Civil Appeal No.1481 of 1996 and the connected matters were decided against the Union of India. The effect of this is that where the total number of posts remained unaltered, though in different scales of pay, as a result of regrouping and the effect of 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 not a case of additional vacancy or post being created to which the reservation principle would apply. It is only if in addition 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 case. The present case is restricted to all existing employees who were redistributed into different scales of pay as a result of the said upgradation.” (emphasis supplied) WPC 8822/2006 4 It is not in dispute that the above order was concerning the upgradation of post ordered by the Railways in 1993 in similar circumstances. Going by this order which is passed in similar circumstances, we feel that the decision of the Tribunal is liable to be upheld. Learned counsel for the applicants who are respondents herein, also referred to some earlier decisions of the Apex Court in the case of upgradations ordered earlier. In those orders also, the Apex Court held that additional vacancies created in higher grades as a result of upgradation can be filled up without applying the rules of reservation. We are bound by the order of the Apex Court quoted above and therefore the challenge against the impugned order of the Tribunal is repelled and the writ petition is dismissed. (K. Balakrishnan Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/