Union of India and Others v. M. A. Varghese

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940 **OP (CAT).No. 3791 of 2012** AGAINST THE ORDER IN O.A.NO.351/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 09-10-2012 ## **PETITIONERS** : ## 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, (RAILWAY BOARD), RAIL BHAVAN, NEW DELHI-110 001. 2 THE GENERAL MANAGER SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600 003. - 3 THE CHIEF PERSONNEL OFFICER SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600 003. 4 THE DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, TRIVANRUM DIVISION, THIRUVANANTHAPURAM-695 014. BY ADV.SRI.C.S.DIAS,SC, RAILWAYS RESPONDENT: M.A.VARGHESE S/O.M.V.ALIAS, CHIEF TRAVELLING TICKET INSPECTOR (CTTI), GRADE-I, SOUTHERN RAILWAY TRIVANDRUM DIVISION, TRIVANDRUM. RESIDING AT MARATTU HOUSE, ALATHUCHIRA P.O., TRIVANDRUM DISTRICT- 695 607. BY ADV. SRI.T.C.GOVINDA SWAMY BY ADV. SRI.G.SHYAM RAJ THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26-07-2018, ALONG WITH O.P.(CAT)NO.97 OF 2017 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 3791 of 2012 ## APPENDIX ## PETITIONERS' EXHIBITS: - EXT.P1: COPY OF THE ORDER IN O.A.NO.51/2011 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P2: COPY OF THE O.A.NO.351/2012 (WITH ANNEXURES A1 TO A16) FILED BY THE APPLICANT BEFORE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P3: COPY OF REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.NO.351/2012 BEFORE THE C.A.T., ERNAKULAM BENCH. - EXT.P4: COPY OF REJOINDER TO REPLY STATEMENT, FILED BY THE APPLICANT IN O.A.NO.351/2012 BEFORE THE C.A.T., ERNAKULAM BENCH. - EXT.P5: COPY OF THE REPLY TO THE REJOINDER, FILED BY THE RESPONDENTS IN O.A.NO.351/2012 BEFORE THE C.A.T., ERNAKULAM BENCH. - EXT.P6: COPY OF THE ORDER IN O.A.NO.351/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P7: TRUE COPY OF THE NOTIFICATION DATED 28.10.2009. EXT.P8: TRUE COPY OF THE NOTIFICATION DATED 18.2.2011. ## RESPONDENT'S EXHIBITS: - EXT.R1(a):A TRUE COPY OF THE COMMUNICATION BEARING NO.P(G)532/ II/ACM/70% (REGULAR) DATED 29.01.2013, ISSUED BY THE SECOND PETITIONER. - EXT.R1(b):A TRUE COPY OF COMMUNICATION RECEIVED FROM THE RAILWAY BOARD UNDER THE RTI ACT, BEARING NO.RB/RTI/2012/ 010027006/CPIO-39 DATED 24.01.2013 ALONG WITH ITS ENCLOSURE. TKS ## **C.T.RAVIKUMAR & A.M.BABU, JJ.** ------------------------------------------------ O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 -----------------------------------------------Dated 26[th] July, 2018 ## **JUDGMENT** ## **Ravikumar, J.** Successful challenge against the granting of accelerated promotion and consequential seniority to incumbents belonging to reserved communities, working in different cadres under the Southern Railway before the Central Administrative Tribunal, Ernakulam Bench, by the party respondents in the captioned original petitions led to their filing by the official respondents or the party respondents in the Original Applications concerned. The official respondents in O.A.Nos.98, 154 & 1121 of 2014 on the files of the Central Administrative Tribunal, Ernakulam Bench preferred O.P.(CAT)Nos.97, 100, 104, 105, 107 & 118 of 2017 and the party respondents therein filed the rest of the original petitions. The Tribunal, after considering the rival contentions, allowed all the original applications. In fact, the Tribunal had allowed O.A.Nos.98, 154 and 1121 of 2014 as per the common order dated 15.11.2016 and thereafter, the other original applications were decided relying on the said common order dated 15.11.2016. Going by the impugned orders, if the Railway Department intends to grant O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 2 reservation in promotion to Scheduled Caste and Scheduled Tribe communities, they could do so, only after getting quantifiable data showing the backwardness of those communities and inadequacy of representation. It was held that the steps taken by the respondents to grant reservation in promotion to members belonging to SC/ST communities without collecting the quantifiable data could not be sustained and to that extent the orders issued by the official respondents were quashed. Evidently, it was observed that after collecting the quantifying data they may do so in accordance with law, after following such procedures as required in paragraph 123 of the decision of the Hon'ble Apex Court in **M.Nagaraj and others** v. **Union of India and others** reported in **(2006) 8 SCC 212** . At this juncture, it is to be noted that the very case of the petitioners herein is that the provision of law viz., para 319 of the Indian Railways Establishment Manual (IREM) Volume I based on which accelerated promotion and consequential seniority were granted to members of SCs/STs satisfies the triple tests required to be made in terms of paragraph 123 of **Nagaraj's** case. As noticed hereinbefore, following the common order dated 15.11.2016, O.A.Nos.905, 973 and 1136 of 2013 were also allowed. O.P.(CAT)No.3791 of 2012 arises from the order dated 9.10.2012 passed by the Central Administrative Tribunal, Ernakulam O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 3 Bench in O.A.No.351 of 2012. Admittedly, the issue involved in the said original petition is also the same. Since the issues involved and questions to be resolved in all the captioned original petitions are essentially the same they were heard together and are being disposed of by this common judgment. 2. In the light of various decisions, to be referred to hereinafter including the decision in **Nagaraj's** case (supra), according to us, the point of polemics is very narrow. The _raison d'etre_ for the said remark is that after the insertion of Article 16(4) of the Constitution of India and the 77[th] and 85[th] amendments brought to it and in view of the decision in **Nagaraj's** case (supra) the availability of power to provide for reservation in the matter of promotion, with consequential seniority to SC/ST communities cannot be disputed. At the same time, in the light of the decision in **Nagaraj's** case (supra), more particularly, paragraph 123 of the same, though the State is not bound to make reservation for SCs/STs in matters of promotions and to grant consequential seniority in case the State concerned is to grant reservation in promotion with consequential seniority the provisions therefor, should be one which could satisfy the triple tests. Therefore, essentially, when accelerated promotions granted and subsequent conferment of consequential seniority of reserved communities are O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 4 under challenge, consideration of the question whether such actions invite interference would depend upon the question whether those triple tests were satisfied or not. That is why we made the opening remark that the consideration need only be with respect to the question whether the provisions based on which accelerated promotions and consequential seniority was granted would satisfy those triple tests. When the petitioners/the official respondents as also the party respondents before the Tribunal who filed three among the above original petitions contend that those triple tests are satisfied by scrupulous adherence to para 319 of IREM and it is based on such satisfaction that accelerated promotion and consequential seniority were granted to members of reserved categories the learned counsel appearing for the party respondents in the captioned original petitions contend that promotions and consequential seniority were granted without framing rules after collecting the quantifiable data regarding the backwardness of the communities, inadequacy of representation in public employment and also without addressing the question whether the overall administrative efficiency would collapse. In short, according to the learned counsel, the orders of the Administrative Tribunal call for no interference. O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 5 3. We have heard the learned Counsel Sri.S.Radhakrishnan and Adv.Sri.Dias for the Railway, Adv.Sri.Manickaraj for the individual petitioners and Adv.Sri.Elvin Peter, Adv.Sri.Govinda Swami and Adv.Sri.Harikumar G. Nair for the respondents. 4. We have already observed that in view of the provisions under Article 16(4) of the Constitution of India and the 77[th] and 85[th] amendments brought to it and also in the light of the fact that the constitutional validity of such amendments and provisions were upheld by the Hon'ble Apex Court in **Nagaraj's** case (supra) there cannot be any doubt with respect to the power rather, the discretion to grant reservation in promotion. However, in the light of the decision in **Nagaraj's** case (supra) it is evident that though such a discretion is available it could be exercised only in the manner provided thereunder. To understand what are the procedures to be followed before exercising the discretion to grant promotion rather, accelerated promotion and consequential seniority it is only appropriate to refer to paragraph 123 of the decision in **Nagaraj's** case. The same reads thus:- “ **123.** However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 6 an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.” 5. Thus, the question to be decided in this case is as to whether it was based on provisions which would satisfy the triple tests that promotions and consequential seniority were granted to the members of the reserved communities, by the official respondents. The contention of the learned Counsel Sri.S.Radhakrishnan is that triple tests were undertaken strictly in terms of paragraph 123 of the **Nagaraj's** case. The contention is that the finding of the Tribunal that quantifiable datas were not collected is incorrect as evidently, such datas were furnished along with the additional reply affidavit filed in O.A.No.98 of 2014. It is submitted that the said additional reply affidavit along with data were filed after the interim order passed by this Court in O.P.(CAT)No.84 of 2014. It is further submitted that the Railway would fall within the term `State concerned' employed by the Hon'ble Apex Court in paragraph 123 of the **Nagaraj's** case (supra). It O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 7 is also contended that no sub-classification of SC/ST are possible as there is no question of a classification based on creamy layer among members of SCs and STs. It is the further contention that backwardness is a matter which could not be gone into by the Railway administration and to satisfy the said test what is required was only to look into the question whether different communities are still included in the lists of castes and tribes in the schedule prepared under Articles 341 and 342 of the Constitution of India. It is also submitted that the datas furnished along with the additional reply affidavit would reveal that the question regarding adequacy or otherwise of the representation of the SC/ST were actually looked into for continuing with the reservation policy in promotion. It is also contended that since no relaxation in qualification or concession was granted to members of SCs/STs for granting accelerated promotion to different cadres there would be no question of erosion of efficiency of standard of administration. The learned counsel contended that the accelerated promotion was granted in safety categories only and taking into account the fact that no relaxation or concession are grantable in the matter of promotion to safety categories there is no question of violation of Article 335. In other words, there would be no question of erosion of efficiency of standard of administration. O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 8 6. The learned counsel further contended that the Tribunal ought to have dismissed the original applications under certain other grounds, as well. In that regard, it is mainly contended that the promotions granted to members of SCs/STs viz., accelerated promotion and consequential conferment of seniority were not pointedly challenged in any of the original applications. That apart, it is contended that taking into account the fact that accelerated promotions were effected based on seniority lists and none of the seniority lists where such members of those communities were included are directly challenged in any of the original applications, the Tribunal ought not to have interfered with the accelerated promotion and granting of consequential seniority. It is also contended that though the applicants are fully aware of the impact of a verdict in their favour and that in such eventuality it would adversely affect such promotees they were not made parties in any of the original applications except in O.A.No.905 of 2015 from which O.P.(CAT)Nos.105 and 175 of 2017 arise and in O.A.No.973 of 2015 from which O.P.(CAT)No.107 of 2017 arises. The contention is that in the said circumstances, for non-impleadment of the necessary parties, those original applications except O.A.Nos.905 and 973 of 2015 ought to have been dismissed. We will elaborately consider the said contentions little later. O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 9 7. Per contra, the learned counsel appearing for the party respondents herein/the applicants before the Tribunal contended that the claim that quantifiable datas were collected is not true to facts. It is the submission that after the decision in **Nagaraj's** case (supra) the State concerned, which according to them, the Ministry of Railways, did not collect quantifiable data and enact any enabling provision for granting promotion in reservation. It is the further contention that in such circumstances, even if such datas were collected and a decision was taken to give reservation in promotion by the Railway it could not have been the basis for granting accelerated promotion and consequential seniority in the matter of promotion to members of SC/ST in the light of the decision in **Nagaraj's** case, more particularly, paragraph 123 of the said decision. It is further submitted by the learned counsel for the party respondents that non-impleadment of persons who were granted accelerated promotion and consequential seniority could not be said to be fatal enough to entail dismissal of the original applications taking into account the fact that the challenge in the original applications is against the rule/orders issued by the DoPT and Railway Administration and therefore, impleadment of individuals was absolutely unnecessary. We may hasten to add that the learned counsel for the party respondents Sri.Harikumar G. Nair contended that O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 10 such contention of non-impleadment of necessary parties is not available against the applicants in O.A.Nos.905/2015 and 973/2015 as all the persons likely to be affected were made parties therein. The learned counsel further submitted that the applicants therein had approached the Tribunal much before the granting of the accelerated promotions and in such circumstances, accelerated promotions ought not to have been granted during the pendency of the original applications. In regard to those cases, the admitted fact is that by now the applicants as also the party respondents therein had reached the post of Loco Pilots. Therefore, essentially, the surviving question is only with respect to their inter se seniority as the present position would indicate availability of sufficient number of vacancies for accommodating all of them, it is submitted. 8. The learned counsel Sri.Elvin Peter submitted that the existence of a provision for reservation in promotion prior to the decision in **Nagaraj's** case (supra) would not and could not confer right to continue to grant accelerated promotion as also consequential seniority to members of reserved community if no enabling provision was enacted in that regard by the State concerned afresh after looking into the question of backwardness and also addressing the question whether such promotions would erode the efficiency in administration O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 11 after collecting quantifiable datas. At this juncture, the learned counsel for the official respondents Sri.S.Radhakrishnan submitted that the decision in **Nagaraj** 's case cannot be understood to have put inhibition for acting upon provisions enacted prior to the said decision provided, it satisfies the triple tests. Sri.S.Radhakrishnan further submitted that in none of the original applications, paragraph 319 of the Indian Railways Establishment Manual Volume-I, which provides for accelerated promotion and consequential seniority without violating the provisions under Article 16(4-A) of the Constitution, was challenged. 9. In the light of the rival submissions, the question as to what exactly is the meaning ascribable to the expression 'State concerned' and then, the question whether accelerated promotion and consequential seniority assigned to members of SC/ST by the Railway Administration needs interference if the provision based for such actions could withstand the triple tests, are to be considered. Certainly, the question whether such provision, even if satisfies the triple tests, would become inoperative owing to the fact that it was introduced prior to **Nagaraj** 's case also has to be considered besides the question as to the manner in which backwardness is to be ascertained. 10. As noticed hereinbefore, on the question as to how backwardness is to be ascertained the contention of the official O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 12 respondents is that in that matter what is to be looked into is whether a particular caste or tribe is still retained in the schedule under Article 341 or 342 of the Constitution. The party respondents/applicants would contend that the factum of retention of a caste or tribe in the schedule under Article 341 or 342 of the Constitution of India by itself would not be sufficient to satisfy the test of backwardness in terms of the decision in **Nagaraj** 's case and in order to satisfy the said decision, collection of quantifiable data to consider backwardness of such communities is still inevitable in order to grant reservation in promotion. As noticed hereinbefore, in support of the rival contentions, both sides cited a number of decisions. We will deal with the contentions made relying on them appropriately. 11. The learned counsel Sri.Manickaraj drew our attention to the following recital in paragraph 120 of the decision in **Nagaraj** 's case to contend that, it discloses the determinant factor, in regard to the test of backwardness:- "In _**Indra Sawhney** v._ _**Union of India (1992 Supp. (3) SCC 217)**_ this Court has, therefore, accepted caste as determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness. As stated above, we are bound O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 13 by the decision in _Indra Sawhney_ . The question as to the “determinant” of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in _Indra Sawhney_ has evolved numerical benchmarks like ceiling limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination." (emphasis added) In **Nagaraj** 's case the Constitutional Bench held that the question as to the `determinant' of backwardness could not be gone into in view of the binding decision in **Indra Sawhney** v. **Union of India (1992 Supp. (3) SCC 217).** To understand what is the determinant of backwardness as held by the Hon'ble Apex Court in **Indra Sawhney's** case (supra), it is relevant to refer to the following recital from the said decision:- “The above material makes it amply clear that a caste is nothing but a social class-- a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is socially and occupationally homogeneous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 14 but when they return--they do, barring a few exceptions-- they go into the same fold again. It doesn't matter if he has earned money. He may not follow that particular occupation. His, the label remains. His identity is not changed. ## The Apex Court went on to hold:- We are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under Article 16(4) should be both social and educational. The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the purposes of the clause; no one has suggested that they should satisfy the test of social and educational backwardness. It is necessary to state at this stage that the Mandal Commission appointed under Article 340 was concerned only with the socially and educationally backward classes contemplated by the said article. (emphasis added) ## Furthermore, it is held therein thus:- It is not correct to say that the backward class contemplated by Article 16(4) is limited to the socially and educationally backward classes referred to in Article 15(4) and Article 340. It is much wider. The test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression “backward class of citizens”. (emphasis added) In such circumstances, it can be said that the controlling factors in Article 16(4) were not at all altered by the amendments by which O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 15 Article 16 (4-A) and 16(4-B) had been inserted. ## 12. In **Nagaraj** 's case, it was held:- In our view, the field of exercise of amending power is retained by impugned amendments, as the impugned amendments have been introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article - 16(4 B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted. - - Articles 16(4 A) and 16(4 B) are classifications within the principle of equality under Article 16(4). (emphasis added) In such circumstances and also the unambiguous statement in **Nagaraj** 's case that the decision in **Indra Sawhney's** is the binding decision as to the question of `determinant of backwardness' one can only deduce the following:- If any particular community belonged to scheduled caste continues to be in the list under Article 341 and any such community continues to be in the list under Article 342, of the Constitution, it can only be presumed that the said caste or tribe is backward for the purpose of the aforesaid clause. In short, in the light of the decision in **Indra Sawhney** 's case, the said question cannot be gone into any further. There is no case for the party respondents/applicants that someone belonging to any particular caste O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 16 or tribe deleted from the list of Scheduled Caste/Tribe under Article 341/342 of the Constitution of India was given reservation in promotion and consequential seniority. 13. We will now, consider the next less disputatious question regarding the test to ensure non erosion of the efficiency of administration. Essentially, the contention of the learned counsel for the Railway Administration is that the provisions under Article 335 of the Constitution have been scrupulously followed even while granting accelerated promotion to members of scheduled castes/scheduled tribes. Article 335 enjoins that the claims of members of scheduled castes/scheduled tribes shall be taken into consideration, consistent with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with affairs of the Union or State. The provision thereunder reads thus:- **“335. Claims of Scheduled Castes and Scheduled Tribes to services and posts--** The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 17 standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.” 14. As noticed hereinbefore, the precise case of the Railway Administration is that in regard to the promotion to the post of safety categories, no relaxation or concession in eligibility as also qualifying marks is permissible even to the members of the scheduled castes/scheduled tribes. In paragraph 8(a)(2) of O.P.(CAT).97/2017, it is stated thus:- “Again with regard to the 3rd condition of compliance with Art.335, i.e. maintenance of standards and efficiency in Administrative service, it is submitted that in Railways, most of the posts fall under “Safety Category” for which there is no relaxation in eligibility and qualifying marks for SC/ST employees. In non-safety posts also, the SC/ST employees with relaxed standards will be filled against reserved posts only to fill up the shortages after taking into account the normal standards. Accordingly, it is very clear that in the entire railway services, efficiency is maintained in accordance with the provisions of Article 335. (emphasis added) In respect of posts where accelerated promotion is granted without granting any relaxation or concession or in other words, only to those persons who are members of Scheduled Caste and Scheduled Tribes possessing the prescribed qualification for promotion to that post, it O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 18 cannot be said that by such promotion erosion of administrative efficiency would occur. In such circumstances, if qualified persons are promoted to safety posts concerned simply because the promotees concerned belong to Scheduled Caste or Scheduled Tribe would not and could not be a reason to hold that with such promotion, efficiency of the standard of administration would erode. According to us, any contra conclusion would definitely violate the provisions under Article 16(2) of the Constitution of India. If such promotions are effected even in respect of non-safety posts where relaxation or concession is grantable and if it was granted against reservation posts for the purpose of filling up the shortfall, that too, after ensuring that such promotees are possessing the minimum standard required to maintain administrative efficiency, the fact that besides such promotees persons belonging to SC/ST obtained promotions to that particular category by virtue of their merit and seniority and not on reservation and thereby the number of persons belonging to SC/ST became more in that particular category cannot be a reason to contend that by virtue of such representation there is excessive percentage of reservation and hence efficiency would decline. The reason is that efficiency is not a matter to be measured by looking into the caste or creed of an employee. If persons are promoted adhering to provisions prescribing the qualification or by O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 19 ensuring the satisfaction of normal standard such promotions would not and could not denude the standard. Identifying a promotee by caste and then holding that by his promotion, ignoring the fact that he was not granted any relaxation or concession for promotion, the standard of administration would be denuded would go against the provisions under Article 16(2) of the Constitution of India. It is to maintain the standard of administration that in each department provisions are enacted to regulate appointment/promotion to its different cadres and qualifications are prescribed therefor. Hence, one can only say that there is chance for denudation of standard of administration only if persons are promoted by relaxing or granting concession by compromising the degree of standard required to maitan administrative efficiency. 15. The next among the triple tests which is to be satisfied going by the decision of the Apex Court in **Nagaraj's** case is the one mandating for assessment of adequacy or inadequacy of representation of the Schedules Castes and Scheduled Tribes. Evidently, Article 16 (4A) itself mandates that granting of accelerated promotion would arise only if there is inadequacy. In such circumstances, essentially any rule or provision permitting promotion with consequential seniority, enacted invoking the enabling provision under Article 16 (4-A) could be acted O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 20 upon only if it is satisfied that the representation of Scheduled Castes and Schedules Tribes is inadequate. Then the question is how that adequacy or inadequacy can be assessed? Can it be by taking into account the number of persons belonging to Scheduled Castes or Schedules Tribes in all the services, rather, all the departments in a State concerned, as contended by the party respondents. The answer can only be in negative, especially in view of the decision of the Apex Court in **Nagaraj's** case itself. In **Nagaraj's** case the Apex Court held thus:- “In our view the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper sealing limit of 50% is not violated. Further, roster has to be posted specific and not vacancy based”. (emphasis added) 16. Thus, in unambiguous terms the Apex Court held that the exercise has to be made with reference to the cadre strength and taking a cadre as a unit. In short, the cadre strength of a particular category can be ascertained only department wise/ establishment wise, in the manner such terms are understood in service parlance. As O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 21 noticed hereinbefore, in opposition to the contention of the applicants/party respondents the contention of the Railway and the individual petitioners is that for that purpose the entire Railway Administration cannot be taken as a unit as regards any particular cadre. It is submitted that altogether there are 17 zones under the Railway Administration. Though all the different cadres are available in all the zones the strength of different cadres are different in different zones. There is no provision for effecting recruitment to all such cadres taking the Railway Administration as a whole and in fact, it is being effected either zonal wise or division wise, as the case may be, in tune with the relevant recruitment rules. When that be the position, reckoning the cadre strength by toting up the number of sanctioned posts in any particular cadre taking the entire zones under Railway Administration for the purpose of ascertaining adequacy or otherwise of the representation of Scheduled Castes or Scheduled Tribes in one particular cadre cannot be the actual test to be conducted. When recruitment is zonal wise and the cadre strength of different zones are different, essentially for applying correctly the decision of the Apex Court in **Nagaraj's** case, more particularly made in paragraph 83 the strength of a particular cadre in a particular zone or division, as the case may be, has to be made. If there is inadequate representation O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 22 going by the relevant provision in that unit and if any provision is framed or enacted by the Railway Administration for effecting accelerated promotion in tune with the enabling provision under Article 16(4-A) of the Constitution certainly it is possible to grant the same with consequential seniority. So also, as regards any particular zone in particular cadre, at a given point of time, there may be adequate representation and by passage of time representation may become inadequate due to various reasons such as retirement, promotion etc. In short, according to us, in an establishment like the Railway taking the strength of a particular cadre treating the entire Railway Administration as a unit would not be the true and correct manner to be followed to ascertain adequacy or inadequacy of representation of Scheduled Castes or Scheduled Tribes in that particular cadre. In short, while considering that question due weight has to be given to the question as to what exactly is the unit as regards that particular cadre. We shall not be understood to have held that if at a given point of time the number of persons belonging to Scheduled Castes or Schedules Tribes are such that it would satisfy the permissible percentage of reservation by itself shall not be a ground for denying accelerated promotion and consequential seniority despite the existence of a provision for accelerated promotion and for assignment of O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 23 consequential seniority at a later point of time when there is inadequacy. To put it differently invoking the enabling provision under Article 16 (4-A) of the Constitution it would be open to the State concerned to enact provisions for granting accelerated promotion and consequential seniority and at the same time, any such provision cannot be put into operation, if there is adequate representation of Scheduled Castes or Scheduled Tribes at a given point of time in that cadre. 17. The learned counsel appearing for the party respondents in the captioned Original Petitions submitted that the question to be looked into is whether such an enabling provision, if at all it is there, is one framed after the decision in **Nagaraj** 's case (supra). The line of contention is that even if provision is already in existence, it cannot be put into operation to give accelerated promotion and consequential seniority, unless it is one framed subsequent to the decision in **Nagaraj's** case and one which could stand the triple tests. 18. The learned counsel appearing for the Railway Administration submitted that after the decision of the Apex Court in **R.K.Sabharwal v. State of Punjab ((1995) 2 SCC 745)** , post based roster system was introduced in the Railways. It is the submission that, upon its introduction whenever a reservation/slot becomes vacant, that O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 24 alone would be filled up. In short, it is stated there that in such circumstances at no point of time, a situation of excessive representation would arise. The learned counsel appearing for the Railways contended that in the contextual situation it is relevant to refer to the following recital in paragraph 5 of the decision in **R.K.Sabharwal** 's case (supra). “......In other words, in a cadre of 100 posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The “running account” is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their populations. The numerical quota of posts is not shifting boundary by represents a figure with due application of mind. Therefore the only way to assure equality of opportunity to the Backward Classes and the Genral category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the “running account” must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example, the Scheduled Casts persons O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 25 – holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Casts. Similarly if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there - shall be neither be short fall nor excess in the ” percentage of reservation. (emphasis added) 19. We will, now proceed to consider the question, what is the meaning of the expression 'state concerned' employed by the Apex Court in **Nagaraj** 's case and whether it would take in 'Railway Administration”. Going by the said decision, the exercise to identify and collect the data showing backwardness of the class or category of representation of that class in public employment, keeping in mind, the maintenance of efficiency in administration is to be done by the 'State concerned'. Going by the definition in Article 12, Part III of the Constitution, unless the context otherwise requires the term 'State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and local or other authorities within the territory of India or under the control of the Government of India. Going by Article 366(15), 'Indian State' means any territory which the Government of the Dominion of India recognised as such a State. In such circumstances, the question is whether the expression O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 26 'state concerned' should be understood as the State which the Government of the Dominion of India recognised as such a State. 20. Admittedly in the case of Southern Railway, the jurisdictional limits extend within the territorial limits of the State of Kerala, the State of Tamil Nadu and some parts of the State of Karnataka. Therefore, it cannot be said that one among or all the States should be treated as the 'State concerned' as regards Southern Railway. We are of the considered view that in view of the ratio of the decision of the Apex Court in such a contingency as regards the entire Railway Administration, the Ministry of Railways should be treated as the 'state concerned'. In fact, that exactly is the contention made by all the parties. Therefore, the question is whether such a provision for accelerated promotion and consequential seniority has been enacted by the Ministry of Railways. Power to frame rules is available with the Railway Board under Rule 123 of Indian Railway Establishment Code Vol.1 (for short 'IREC'). It reads thus : “The Railway Board have full powers to make rules of general application to Group C & Group D railway servants under their control”. 21. The Railway Board have full powers to make rules of the general applications to group 'C' and group 'D' Railway servants under their control. Since the post concerned in the cases on hand, falls O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 27 either under group 'C' or group 'D', essentially the question is whether Rules have been framed by the Railway Board invoking the power under Rule 123 of the IREC. Rule 220 of IREC provides for special reservations. The said rule reads thus : “The recruitment to Railway Services shall be subject to the reservation of vacancies in favour of Scheduled Castes and Scheduled Tribes as laid down by the Government of India from time to time”. 22. The recruitment to Railway services shall be subject to the reservation of vacancies in favour of Scheduled Castes and Scheduled Tribes as laid down by the Government of India from time to time. Rule 205 of IREC deals with the method of recruitment. The Indian Railway Establishment Manual Volume-I contains rules essentially framed under Article 309 of the Constitution of India. Rule 123 of `IREM' authorises the Railway Board, as permissible under Article 309, to have full powers to make rules of general applications to group C and group D railway servants under their control. Essentially, in invocation of the powers under Rule 123 the Railway Board used to issue circulars/letters and the codification of such letters and circulars is the Indian Railway Establishment Manual (IREM). The question is what is the binding force of such letters and circulars. In the contextual situation, it is relevant to refer to paragraph 27 of the O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 28 ## decision in **Union of India and Others** v. **Virpal Singh Chauhan** **((1995) 6 SCC 684).** As held therein, the circulars/letters providing for reservation in favour of the Scheduled Caste/Scheduled Tribe candidates, rosters and their operation on the subject of seniority as between general candidates and reserved category candidates, being in the nature of special rules and it will prevail over the general instructions contained in Volume I of the Indian Railway Establishment Manual including those contained in paragraphs 306, 309 and 319 et al. Further, it is stated therein that the Railway Board's circulars, considered by the Apex Court, could not be said to be violative of the constitutional provisions and therefore, the Apex Court held that they must prevail and are to be given effect too. Further, it was held thus:- “It is not brought to our notice that the said instructions are inconsistent in any manner with any other statutory provisions or rules relevant in this behalf.” 23. Obviously, the Apex Court was actually referring to the circulars/letters providing for reservation in favour of Scheduled Castes/Scheduled Tribes, rosters etc., in Railway service. In this context, the decisions of the Apex Court in **General Manager, North West Railway** v. **Chanda Devi** reported in **(2008) 2 SCC 108** and **Union of India** v. **Devaram** reported in **(2009) 16 SCC 381** also O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 29 assume relevance. The Apex Court held in **Chanda Devi's** case thus:- “In the absence of any statutory rules framed, executive instructions can be issued in relation to the matter governed by the constitutional provisions. In **Khem Chand** (supra) this court had noticed the relevant constitutional provisions and opined that the Railway Manual was an amalgam of various circulars issued from time to time. Such executive instructions or rules framed would be statutory in nature.” (emphasis added) This view was virtually reiterated by the Apex Court in the decision in **Devaram's** case (supra). Thus, it is obvious from the aforesaid decisions that the circulars and letters issued by the Railway Board which were codified in the form of a Manual, namely, the Indian Railway Establishment Manual carries rules in the form of circulars and letters and such circulars and letters would be statutory in nature. 24. Before dealing with the question as to whether the relevant provision applicable to the railway service for giving accelerated promotion to the Scheduled Castes/Scheduled Tribes and also to assign consequential seniority would satisfy the triple tests, we are of the view that it is necessary to consider the question, especially in view of a contention raised on behalf of some of the respondents, as to whether such provision should be one framed subsequent to the decision of the Apex Court in **Nagaraj's** case in order to become operative. The learned counsel appearing for the petitioners countered O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 30 the contention of the party respondents that in order to be operative the rules should be one subsequent to the decision in **Nagaraj's** case is not sustainable and the said position is obtained from the decision in **Nagaraj's** case itself. Since the entire question is regarding the manner in which accelerated promotion and consequential seniority could be given subsequent to the decision in **Nagaraj's** case, we are of the view that even for answering this question it is only proper to look into the said decision itself. 25. In order to answer the aforesaid question it is only proper to refer to paragraphs 83 and 102 in **Nagaraj's** case. We have already quoted paragraph 83 and it can be seen from there that the appropriate Government had to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. Obviously, the Apex Court held that to ascertain the said question Government had to apply the cadre strength as a unit in the operation of the roster. The words 'in the operation of the roster' itself would undoubtedly indicate that in case of existence of a roster it could be operated, for the aforesaid purpose. In paragraph 102 therein, the Apex Court held that in case of failure of the State concerned to identify and measure backwardness, inadequacy and overall administrative efficiency, then, O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 31 the provision for reservation would be invalid. This would also go to show that a provision for reservation already in existence could be operated provided, it satisfies the triple tests of backwardness, inadequacy and overall administrative efficiency. Paragraph 102 of the decision in **Nagaraj's** case (supra) reads thus:- “Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in **Virpal Singh Chauhan, Ajith Singh 1, Ajith Singh 11 and Indra Sawhney** were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature”. Having made such observations the Apex Court evidently upheld the 77[th] and 85[th] constitutional amendments. 26. Having identified the manner in which the court should satisfy itself regarding the compliance of the triple tests and also taking note of the fact that any provision which is already in existence, it could stand triple tests of backwardness, inadequacy and overall administrative efficiency, in order to be valid and operative, we will proceed to consider the question whether in railway service such a provision for granting accelerated promotion to Scheduled Castes/Scheduled Tribes and also for granting consequential seniority, is in existence. O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 32 27. Obviously, the contention of the applicants/party respondents in the captioned original petitions is that no specific provision for granting accelerated promotion and consequential seniority was framed by the Ministry of Railways invoking the enabling provision under Article 16(4-A) of the Constitution of India. But, the learned counsel appearing for the Railway submitted that the existence of such a provision for accelerated promotion is very much evident from the decision in **Virpal Singh Chauhan's** case (supra), itself. We have already extracted the relevant recital from paragraph 27 of the said decision which is a pointer to the said position. In that contextual situation, the recital in paragraph 13 also assumes relavance. It reads thus:- “So far as the rule of reservation is considered, it has been made applicable to Railway service by orders issued by the Railway Board from time to time pursuant to and in obedience to the policy decisions of the Ministry of Home Affairs. The decision of this Court in Akhil **Bharatiya Soshit Karamchari Sangh (Rly)** v. **Union of India ((1981) 1 SCC 246** refers to the several orders issued from time to time in this behalf. They are also found at pp.4 to 6 (Chapter I) and PP.59 to 89 (Chapter III) of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Railway Services (3[rd] Edn., 1985).” True that, after making such reference the Hon'ble Apex Court went on to hold that it did not think it necessary to deal with the rule of O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 33 reservation as it was not concerned with the validity of rule of reservation but only with its nature and its effects upon the question of seniority. Further, in paragraph 15 of the said decision it is stated thus:- “Indeed, the Railway Board's letter dated 19.1.1972 (pp.194-195-Chapter VIII dealing with promotion to selection posts - of the Brochure) shows that even in the case of promotions made on the basis of merit, the same principle applies.” 28. The letter referred to by the Apex Court in paragraph 15 is the Railway Board's letter No.E(SCT) 68CM 15/10 dated 19[th] January, 1972. It was issued in supersession of the clarification contained in paragraph (3) of its letter of even number dated 23[rd] October, 1969. It is stated therein that once the panel is formed, promotions are to be made in the order of panel position except in the case of Scheduled Castes and Scheduled Tribes who are to be adjusted against reserved points. An illustration was also given thereunder in paragraph 2. We have already referred to the decision of the Hon'ble Apex Court in **R.K.Sabharwal's** case (supra). Railway Board's letter R.B.E.No. 114/97 dated 21.8.1997 would reveal that it introduced post based reservation rosters in Group `C' and Group `D' posts of promotion. The said letter would also reveal that it was issued in implementation of the decisions of the Apex Court in **R.K.Sabharwal's** case, **Virpal** O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 34 ## **Singh Chauhan's** case (supra) and also the decision in **Union of India** ## v. **J.C.Malik (1996(1) SLJ 114)** . Paragraph 3 of the said letter reads as follows:- “With a view to bringing the policy of reservation in line with the law laid down by the Supreme Court, it has been decided that the existing 40 point vacancy based rosters of promotional categories shall be replaced by post based rosters. All the Zonal Railways, Production Units and Associated Offices of the Railway Board should therefore, prepare the rosters for Groups C and D posts based on principles elaborated in the Explanatory Notes given in Annexure-I and illustrated in the Model Roster as given in Annexure-II and Annexure-III.” In paragraph 4, the principles for preparing the rosters were elaborately given. Paragraph 10 is also relevant in the context. It reads thus:- “At any given point of time, the rule of maximum 50% quota will be followed on the cadre as a whole and not on the basis of individual recruitment where it may happen that all posts may be falling in share of Scheduled Castes/Scheduled Tribes due to application of post based reservation as the posts may be vacated by these segments only.” Paragraph 13 of the said letter is also worthy for reference and it reads thus:- “The existing orders on the subject are deemed to have been amended to the extent herein.” Going by paragraph 14 therein the orders in the said letter would take effect from 10.2.1995. A perusal of the Annexures therein would reveal O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 35 that for promotion, post based model roster for 15 posts above and for group `C' and `D' posts, were given thereunder. The learned counsel appearing for the Railway submitted that in the light of the decision in **R.K.Sabharwal's** case (supra) there cannot be any impediment for granting reservation for promotion and also in that regard to operate a roster indicating reserved points. It is submitted that the Apex Court in the said decision held that such rosters could be operated only till all the roster points in the cadre are filled and the quota prescribed by the instructions is achieved and not thereafter. At that point of time, what was in vogue was vacancy based roster and it was also a 14 points roster. At the same time, it is submitted that it is in the said circumstances that the roster system which was in force was modified and virtually, converted into post based roster system. In such circumstance, it will be applicable to the entire cadre strength and there would be absolutely no question of granting excess reservation as whenever a reservation post as per the roster becomes vacant the said post alone will be filled up. Therefore, when that be the manner in which vacancies occurring are to be filled up in post based roster the question of granting excess promotion to reserved communities would not and could not arise, it is submitted. That apart, it is contended that in the light of the decision of the Apex Court in **R.K.Sabharwal's** case O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 36 (supra) holding that the operation of rosters indicating reservation points could be operated, the post based roster could be operated and it cannot be said that operation of the post based roster would go against the dictum laid down by the Apex Court in various decisions including the decision in **Nagaraj's** case (supra). In **R.K.Sabharwal's** case, as noticed hereinbefore, the Apex Court held that in case the roster system is followed there would not be any short-fall or excess in the percentage of reservation. with approval. In short, it is the contention that in the Railway service the provision for granting accelerated promotion is available under the post based roster and it has been in operation and its operation would not cause, at any point of time, excessive promotion of reserved community. 29. Now, the question is whether there is any provision for granting consequential seniority on accelerated promotion in the Railway Service. The learned counsel for the Railways submitted that this is permissible in view of paragraph 319 of IREM. It is submitted that earlier, to implement the Rule, that is to make a provision enabling an incumbent in the general category who was superseded by a reserved candidate, to regain seniority in the promoted post paragraph 319A was introduced in IREM. Essentially, it was introduced so as to enable such a superseded candidate in the general category to regain O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 37 his seniority which he lost by virtue of the grant of accelerated promotion to a member of service belonging to the reserved community. It was introduced as per Railway Board's letter No.E(NG)I97/SR6/3 dated 28.2.1997. Later, as per Ministry of Railways letter No.E(NG)I-97/SR6/3 (Vol.III) dated 8.3.2002, which is produced as Annexure-A5 in O.P.(CAT)No.118 of 2017 and Anneuxre-A10 in O.P. (CAT)No.97 of 2017), paragraph 319A of IREM was deleted with effect from 17.6.1995. Thus, from 17.6.1995 what is to be looked into, in that regard, is paragraph 319 of IREM. Paragraph 319 deals with seniority on promotion to non-selection posts. Sub paragraph (a) thereunder to the extent it is relevant reads thus:- ## “ **319. SENIORITY ON PROMOTION TO NONSELECTION POSTS.** (a) Promotion to non-selection posts shall be on the basis of seniority-cum-suitability, suitability being judged by the authority competent to fill the post by oral and/or written test or a departmental examination or a trade test or by scrutiny of record of service as considered necessary. The only exception to this would be in cases where for administrative convenience, which should be recorded in writing, the competent authority considers it necessary to appoint a railway servant other than the senior most suitable railway servant to officiate purely in ad hoc capacity in a short term vacancy not exceeding two months as a rule and four months in any case. This will, however, not give the junior railway servant any advantage not otherwise due to him and will not confer on him any right to continue in that post in preference to his senior who are found suitable. A railway servant, once O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 38 promoted in his turn after being found suitable against a vacancy, which is non-fortuitous, should be considered as senior in that grade to all others who are subsequently promoted after being found suitable. The suitability of a railway servant for promotion should be judged on the date of the vacancy in the higher grade, ” or as close to it as possible. (emphasis added) Thus, it is evident that in Railway service as per the letter R.B.E.No. 114/97 dated 21.8.1997 post based roster system was introduced so as to enable the Railway Administration to grant accelerated promotion to persons belonging to Scheduled Castes/Scheduled Tribes and paragraph 319 of the Manual provides for granting seniority on promotion to nonselection posts. 30. We have already found, in the light of the decision in **Nagaraj's** case (supra) itself, that it is not necessary that such provisions ought to be provisions introduced subsequent to the decision in **Nagaraj's** case. In other words, a provision for granting accelerated promotion and consequential seniority in Railway service would not become invalid solely because it was introduced prior to **Nagaraj's** case. But at the same time, in the light of the decision in **Nagaraj's** case, relevant portion which we have extracted hereinbefore, in order to become valid it could stand the triple tests. O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 39 31. In such circumstances, having identified the provisions which enable granting of accelerated promotion to Scheduled Castes/Scheduled Tribes and also to grant consequential seniority in Railway service the next question to be considered is whether those provisions are capable of withstanding the triple tests laid down by the Apex Court in **Nagaraj's** case. 32. We have already considered in detail in what manner the Courts could take the triple tests as satisfied. As regards the first test that is, backwardness, we have already found, in the light of the decision of the Hon'ble Apex Court in **Indra Sawheny's** case (supra), what exactly is the determinative factor in that regard. We have already considered _in extenso_ the said issue and we have ultimately come to the conclusion that the State concerned viz., Railway Administration can arrive at a conclusion on the question regarding the backwardness only by looking into the question whether any particular caste belonging to scheduled caste or a tribe belonging scheduled tribe still finds a place in the list prepared either under Article 341 or 342 of the Constitution of India, as the case may be. In other words, in the light of the decision by the Constitutional Bench in **Indra Sawheny's** case (supra) once it is found that a particular case is included either in the list of scheduled castes or in the list of scheduled tribes existence of O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 40 backwardness of that caset/tribe is to be presumed. There is absolutely no question of any other authority holding otherwise as the said power of inclusion/exclusion is vested only with the Parliament. Going by the provisions under Articles 341 and 342 and especially in the light of the decision of the Apex Court decision in **Indra Sawheny's** case (supra) we have carefully gone through the pleadings in all the original applications from which the captioned original petitions arose. There is absolutely no contention in any of them, that any non-scheduled caste or non-scheduled tribe was granted accelerated promotion. Thus, it is obvious that if accelerated promotion is granted to a person belonging to scheduled caste/scheduled tribe and if the particular caste to which such a promotee belongs still finds a place in the list of scheduled castes/scheduled tribes there can be no scope for contending that he/she does not belong to a community which is not suffering from backwardness. 33. The next point to be considered is, owing to the grant of accelerated promotion whether the efficiency of the standard would adversely affect. In that context, we have already referred to Article 335 of the Constitution of India. Thus, it is obvious that even before the decision of the Apex Court in **Nagaraj's** case (supra) by virtue of the amended Article 335 of the Constitution whenever relaxation or O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 41 concession is granted to members belonging to scheduled castes/scheduled tribes it is incumbent on the authority concerned to ensure that by virtue of such concession or relaxation efficiency of administration would not erode. We have also taken note of the fact that Railway Administration have prescribed qualifications in respect of posts borne in its various cadres. This is essentially to ensure quality in administration. We have already taken into account the fact that the learned counsel for the Railway Administration in categoric terms submitted that no relaxation or concessions have been granted to scheduled castes or scheduled tribes in safety categories and that accelerated promotion was granted mainly in posts belonging to safety category. In such circumstances, when only qualified persons are promoted to such categories merely because such a promotee belongs to scheduled caste or scheduled tribe cannot be a reason to attribute that by such promotion efficiency of administration would erode. But at the same time, the question is whether in respect of any other categories of posts relaxation or concession were granted. The assertion on the part of the Railway Administration is to the effect that taking into account the mandate in Article 335 of the Constitution of India concessions by the Railway Administration were granted invariably in such a manner to ensure that such promotions would not adversely O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 42 affect the efficiency of the administration. In fact, upon scanning the contentions raised in all the Original Applications from which the captioned Original Petitions arose we could not find any specific contention that the Railway Administration granted concessions rather, relaxations while effecting accelerated promotions in such a manner to adversely affect the efficiency of the administration. In such circumstances, the contention of the Railway Administration that even in categories where concessions were granted it was granted by ensuring maintenance of efficiency in administration is to be accepted, unless the contrary is established. 34. Then comes the crucial aspect, that is, whether datas were collected to find out adequacy or inadequacy. This is essentially one of the triple tests laid down by the Apex Court. In the impugned orders passed by the Tribunal the finding is to the effect that nothing is on record which would reveal that such datas were collected by the Railway Administration for arriving at a conclusion of inadequacy in the matter of representation of Scheduled Castes/Scheduled Tribes. In that regard, it is to be noted that the learned counsel appearing for the petitioners contended that the Tribunal had overlooked the fact that virtually such details were furnished and available on record. In that context, it is to be noted that earlier, the applicant in O.A.No.98 of 2014 O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 43 approached this Court by filing O.P.(CAT).No.84 of 2014. In that original petition, this Court passed an interim order on 2.04.2014 granting liberty to the establishment to place on record the data before the Tribunal which the Railway Administration stated before this Court as available. Obviously, availing the opportunity granted by this Court as per the said order, the Railway Administration produced the data before the Tribunal as Annexure R2 in O.A.98 of 2014. O.P.(CAT).97 of 2017 is the one arising from the order pertaining to O.A.98 of 2014. The said datas are produced as Annexure R2 in Ext.P4 in O.P. (CAT)No.97 of 2017. It is available from page 176 to 372 of the said original petition. As noticed hereinbefore, the Tribunal obviously did not consider the availability of such datas on record though such datas were produced before the Tribunal pursuant to an order of this court in O.P. (CAT).84 of 2014 arising from O.A.No.98 of 2014. It is submitted by both sides and it is also a fact discernible from the impugned orders that the Tribunal had not actually looked into the datas thus furnished. Since datas were furnished by the Railways pursuant to an order passed by this Court as noticed hereinbefore, the Tribunal ought to have considered the said datas and without properly bestowing attention to such datas it could not have arrived at the conclusion on the question of adequacy or inadequacy in the matter of representation of scheduled O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 44 castes and scheduled tribes in different categories of posts under the railway service and also before arriving at a finding as to whether such promotions called in question in the original applications were effected in excess of the quota. In that context, we may hasten to add that, the said question is to be looked into based on the observation of the Apex Court in **Nagaraj** 's case. 35. In such circumstances, the original applications require to be remanded solely for the purpose of considering Annexure R2 in O.A.No.98 of 2014 carrying relevant datas for considering contentions regarding adequacy or inadequacy of representation of SC/ST. To enable the Tribunal to consider the matter on that issue, the impugned orders passed by the Tribunal in the abovementioned original applications are set aside and the O.As are remanded to the Tribunal for that sole purpose. Since we have already considered the question whether the other two out of the triple tests are satisfied and answered them, the fate of the original applications would depend upon the finding of the Tribunal on the last among the triple tests viz., the adequacy or otherwise of the representation of SC/ST. Since this is a question to be answered in all the O.As, Annexure-R2 in O.A.No.98 of 2014 shall be considered as the basis for resolving the said issue. We also make it clear that on this aspect, it will be open to all parties O.P.(CAT)Nos.3791 of 2012, 97, 100, 104, 105, 107, 118, 144, 145 & 175 of 2017 45 before the Tribunal to raise their rival contentions and to let in further pleadings, if they so desire. After considering such rival contentions and after considering Annexure R2, the Tribunal shall arrive at a conclusion with respect to the question of adequacy or otherwise of the representation of SC/ST in the posts concerned. It is made clear that these Original Applications are remanded solely for the aforesaid purpose and in other words, in all other respects, this judgment would be conclusive. Since the O.As are filed long ago, it will only be befitting for the Tribunal to dispose of the O.As as expeditiously as possible. Original petitions are disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **A.M.BABU Judge** TKS/spc/sks/Mrcs