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PETITIONER: K. MANICKARAJ

       Vs.

RESPONDENT: U O I

DATE OF JUDGMENT:       02/04/1997

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      Delay condoned.      Leave granted.      This appeal  by special  leave is  directed against the judgment of  the  Central  Administrative  Tribunal,  Madras Bench dated  19.9.1995 in  OA No.  267  of  1994.  The  Said application has  been filed by the appellant for a direction to the  railway administration  to promote  the appellant as Welfare Inspector  Grade -  II with  effect from 2.4.1993 as one post was available in the reserved category.      The brief  facts necessary for deciding this appeal are stated as under :      The appellant was appointed as Assistant Station Master in the  scale Rs.  330-560 and was then promoted to a higher post in  the scale of Rs. 425-640 with effect from 8.1.1985. He was  further promoted as Welfare Inspector grade - III in the scale  of Rs.  1480-2300 and  joined the  said  post  on 27.12.1991. The  appellant admittedly  belongs to  Scheduled Caste. The  cadre  of  Welfare  Inspectors  consisted  or  3 categories: namely: Welfare Inspector Grade - I in the scale of Rs.  2000-32000; Welfare Inspector Grade - II in scale of Rs. 1600-2660  and Welfare  Inspector Grade-III in the scale of Rs.  1400-2300. By  Order dated  27th January,  1993  the cadre  strength  of  the  different  categories  of  Welfare Inspectors was  restructured and it was directed that 35% of posts would  be in  Grade -  I, 40%  in Grade-II  and 25% in Grade -  III. In  view of  the change  of percentage  of  he different categories  of posts,  the  appellant  expected  a promotion to  Grade -  II but the same having not been done, he filed the application before the Tribunal. It was averred in the  application filed  before the  Tribunal  that  three posts from  Grade-III having  been upgraded  to grade  - II, total number of posts available in Grade-II is 26 as against the  original number of 23 and since there is reservation of 15% for Scheduled Caste, the total number of posts available for the  Scheduled Caste  in Grade  - II would work out at 4 but factually  only 3  persons belonging  to  the  Scheduled Caste  are  working  in  Grade  -  II,  and  therefore,  the appellant was  entitled to  promotion to  Grade  -  II.  The

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respondent  in   the   counter-affidavit   filed,   however, contended that  there has  been no change in the strength of the post  in grade  - II which remained at 23 but for sports personnel some posts were upgraded from grade-III to grade - II and those upgraded posts cannot be taken into account for determining the  number  of  posts  available  for  reserved category as  such upgradation was temporary in nature and is not a  permanent  addition  to  the  number  of  posts,  and therefore, can’t  be taken  into account for computation 15% reservation in  the said  Grade -  II. The  Tribunal by  the impugned judgment  accepted the  contention  raised  by  the respondent and  came to  hold that the posts which have been upgraded having  been borrowed  from grade  - III  and being specially meant  for sports  personnel cannot be counted for determining the  15%  reserved  quota  meant  for  Scheduled Caste, and therefore, the cadre strength of Grade - II being 23 only 3 persons from the Scheduled Caste would be promoted to the Grade - II and thus three persons having already been there the  claim of  the appellant  cannot be  allowed. With this  conclusion   the   Tribunal   having   dismissed   the application filed  by the  appellant, the present appeal has been preferred.      The question  that arises for consideration, therefore, is whether  the number  of upgraded post from Grade - III to Grade -  II meant  for sports  personnel can  be taken  into account  for   determining  the  number  of  reserved  posts available for  Scheduled Case  in Grade-  II. It is admitted that total  number of  posts is grade- II was 23 and 3 posts from Grade  - III  were upgraded  to that of Grade - II. The upgraded posts  which were  made as early as in August 1987, as per Memorandum dated  24.08.1987, still continues. 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  ra  temporary  period  meant  for sports personnel.  The post  which were upgraded in the year 1988 having  continued still  dated, 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  reserve category people then it would work out at 4 and  admittedly there  are only 3 persons belonging to the Scheduled Caste  in Grade  - II.  In that view of the matter the appellant  was entitled  to be  promoted against the 15% reserved quota  of posts  i Grade  - II  to be  26.  In  our considered opinion  Tribunal was in error in not taking into account the  upgraded posts  which have  been upgraded  from grade -  III to  Grade -  II on the ground that it was meant for sports  personnel. While  computing the  number of  post available for  reserved category,  there is no justification to exclude  the upgrade  post which  had continued from 1988 till date.      In the  aforesaid premises the impugned judgment of the Tribunal is  set aside  and OA  No. 267 of 1944 filed in the Central Administrative  Tribunal, Madras Stands allowed. The respondents are  directed to  consider the case of promotion of the  appellant to  a post in Grade-II, Welfare inspector, with effect  from 1993. The appeal is allowed. There will be no order as to costs.