UNION OF INDIA Vs. PUSPA RANI

JUDGEMENT

(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 undertaken pursuant to letter No. PC-III/2003/ crc/6 dated 9. 10. 2003 issued by the railway Board is the question which arises for determination in the above noted appeals filed against the orders of Punjab and Haryana high Court which upheld the decision of chandigarh Bench of the Central administrative Tribunal (hereinafter referred to as 'the Tribunal') to quash para 14 of the said letter and the direction given for making appointments de hors the policy of reservation. The special leave petition 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.

(2.) FOR the sake of convenience, we have taken the facts from the record of Civil appeal Nos. 6934-6946 of 2005. The same are :-

(3.) 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 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 applied at the stage of restructuring of Group C and D cadres then the same would amount to giving double benefit to the members of scheduled Castes and Scheduled Tribes, who had already been given out-of turn promotions. Dr. Dhawan relied on the larger Bench judgment of this Court in Indra Sawhney and others us. Union of India and Others, [1992 supp. (3) SCC 217] and of the Constitution bench in M. Nagaraj and Others vs. Union of india and Others, [2006 (8) SCC 212] and argued that even if the upgraded posts are required to be filled by promotion after following the process of selection, the policy of reservation 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 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 contained in Article 16 (4-A) cannot be relied upon by the appellants to justify implementation of the policy of reservation at the stage of restructuring of Group C and D cadres because the members of Scheduled Castes and Scheduled tribes are adequately represented in those cadres and efficiency of the administration will be adversely affected by giving double benefit to them. He then argued that even if para 14 of letter dated 9/10/2003 is held to be constitutionally valid, the policy of reservation should be made applicable only qua posts which become 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 reservation. Shri Sushil Jain and Smt. Kiran Sun, 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 appointment against the upgraded posts should not be disturbed because the same has been substantively approved by this Court in V. K. Sirothia's case and V. K. Agarwal's case. In the written submissions filed by him, Shri Sushil Jain has highlighted the difference between the scheme of restructuring resulting in upgradation of the posts and the policy of promotion and contended 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 vires para 103 of the Code because the effect of statutory rules framed by the Board cannot be nullified by an administrative decision.