ORDER : Whether post of Superintendent Grade-II against which respondent No. 4 (Neelam Patial) was promoted on 31.10.2014 fell at roster point No. 5 or 7 of the 13 point roster followed by the respondents, is the question to be determined in these two petitions. In case the post in question fell at roster point No. 7, then it was to be filled up by promotion from an eligible person belonging to scheduled caste category. In that eventuality, the petitioner in CWPOA No. 6450 of 2019 (Man Singh) would succeed. However, if it was roster point No. 5, then promotion of respondent No. 4 (petitioner in CWPOA No. 5342 of 2019) as Superintendent Grade-II on 31.10.2014 belonging to general category would be saved. Both these writ petitions involve overlapping facts and common issues, hence, are taken up together for decision. For convenience, facts and documents from CWPOA No. 6450 of 2019 are being referred hereinafter. 2. Facts 2(i) The petitioner (Man Singh) was promoted to the post of Senior Assistant in the year 1999. The next promotional post from the post of Senior Assistant is that of Superintendent Grade-II. 2(ii) Admittedly, the respondents are following 13 point roster for filling up the posts of Superintendent Grade-II, which is a cadre consisting of total two posts. It is not in dispute that 5th post as per 13 point roster is to go to an eligible person belonging to general category, whereas the 7th post as per the roster has to go to an eligible person belonging to scheduled caste category. 2(iii) A post of Superintendent Grade-II became available in the respondent department on 11.9.2014. The respondents treated this post at roster point No. 5. The Departmental Promotion Committee (in short ‘DPC’) was convened on 17.9.2014 for filling up this vacancy. The DPC recommended name of respondent No. 4 belonging to general category for promotion to the post of Superintendent Grade-II. The recommendations were implemented by the respondents. Respondent No. 4 was accordingly promoted as Superintendent Grade-II on 31.10.2014. 2(iv) Aggrieved against the promotion of respondent No. 4 as Superintendent Grade-II, the petitioner preferred this petition on 23.4.2015 for the following substantive reliefs:- “i) That the Office Order dated 31.10.2014 (Annexure A-5) whereby the private respondent has been promoted to the post of Supdtt. Grade-II may kindly be quashed and set aside. 2(iv) Aggrieved against the promotion of respondent No. 4 as Superintendent Grade-II, the petitioner preferred this petition on 23.4.2015 for the following substantive reliefs:- “i) That the Office Order dated 31.10.2014 (Annexure A-5) whereby the private respondent has been promoted to the post of Supdtt. Grade-II may kindly be quashed and set aside. (ii) That the respondents may further be directed to consider the case of applicant for promotion to the post of Supdtt. Grade-II and promote him to the post of Supdtt. Grade-II.” The case put up by the petitioner is that the vacancy which became available on 11.9.2014 fell at roster point No. 7 and was thus reserved for candidate belonging to scheduled caste category. That the petitioner was an eligible feeder cadre personnel belonging to scheduled caste category and was required to be considered for promotion to the post of Superintendent Grade-II. 2(v) In reply filed to the petition, respondent-State conceded its mistake in having wrongly treated the vacancy in question at roster point No. 5. It was submitted that the vacant post in question actually fell at roster point No. 7 and therefore, eligible person belonging to scheduled caste category was required to be considered for promotion against the said roster point. During pendency of the petition, the respondents convened review meeting of the DPC on 16.6.2015. The review DPC concluded that the post in question actually fell at roster point No. 7 and not at roster point No. 5. Petitioner Man Singh belonging to scheduled caste cateory was recommended for promotion against this roster point No. 7. The DPC also recommended that “the DPC held in 2014 in which the name of Km. Neelam Patial is recommended against point No. 5 erroneously is set aside after reviewing the DPC and her demotion to her substantive post of Sr. Assistant be done as point No. 7 is meant Schedules Caste as per 13 point roster of reservation. Before issuing demotion orders, her personal hearing be fixed by the Appointing authority and decision be conveyed as per instructions as referred in the Memorandum.” 2(vi) Based upon the above recommendations of the review DPC, notice was issued by the respondent department to respondent No. 4 on 16.6.2015 for giving her an opportunity of hearing in this regard. At this stage, respondent No. 4 filed CWPOA No. 5342 of 2019 assailing the notice dated 16.6.2015. At this stage, respondent No. 4 filed CWPOA No. 5342 of 2019 assailing the notice dated 16.6.2015. Substantive relief prayed by respondent No. 4 in her petition, runs as under: “i) That the impugned communication dated 16th June, 2015 may kindly be quashed and set aside and both the Original Applications may be tagged together with and may be heard at an early date in the interest of justice and fair play.” Pursuant to a status quo order passed by learned erstwhile H.P. Administrative Tribunal on 26.6.2015 in CWPOA No. 5342 of 2019, respondent No. 4 continued to work as Superintendent Grade-II in terms of her earlier promotion dated 31.10.2014. In view of the interim order, no further action was taken by the respondent department on the basis of recommendations of review DPC dated 16.6.2015 and the notice dated 16.6.2015. 2(vii) Man Singh (petitioner in CWPOA No. 6450 of 2019) and Neelam Patial (petitioner in CWPOA No 5342 of 2019) superannuated on 31.3.2016. 3. I have heard learned counsel for the petitioners in both the petitions and have also heard learned Additional Advocate General and gone through the case files as well as the record produced by the respondent-department during hearing of the case. 4. Contentions 4(i) Case of petitioner Man Singh is that six incumbents had already been promoted to the post of Superintendent Grade-II prior to 11.9.2014. Names of these six incumbents are as under: A. Sh. S.N. Vij B. Smt. Nirmal C. Sh. B.R. Verma D. Smt. Aruna Sood E. Sh. Rajesh Sawant F. Sh. Ramesh Thakur Simple case of petitioner Man Singh is that since six persons had already been promoted as Superintendent Grade-II, therefore, the next vacancy in the cadre of Superintendent Grade-II which became available on 11.9.2014 fell at roster point No. 7. In terms of 13 point roster which is admittedly applicable in the instant case, the 7th vacancy had to be filled in by promotion of an eligible Senior Assistant belonging to Scheduled Caste category. The petitioner Man Singh serving as Senior Assistant w.e.f. the year 1999 was eligible to be considered for promotion to the post of Superintendent Grade-II. He belongs to scheduled caste category, therefore, was required to be considered and promoted as Superintendent Grade-II. The petitioner Man Singh serving as Senior Assistant w.e.f. the year 1999 was eligible to be considered for promotion to the post of Superintendent Grade-II. He belongs to scheduled caste category, therefore, was required to be considered and promoted as Superintendent Grade-II. 4(ii) The case of the petitioner Neelam Patial in CWPOA No. 5342 of 2019 is that Shri S.N. Vij and Smt. Nirmal [at points A & B of para 4(i) above] were promoted as Superintendent Grade-II against the up-graded posts. Therefore, reservation roster cannot be applied qua these two upgraded/created posts. According to petitioner Neelam Patial, the roster will have to be applied only from Shri B.R. Verma onwards [at point C of para 4(i) above]. In case the roster is applied from Shri B.R. Verma onwards, then the vacancy which became available on 11.9.2014 would fall at roster point No. 5. Admittedly, vacancy at roster point No. 5 had to be filled-in by promotion of a eligible person belonging to general category. Another submission made on behalf of petitioner Neelam Patial is that at the time of up-gradation of posts held by Shri S.N. Vij and Smt. Nirmal, the Recruitment and Promotion Rules (in short ‘R&P Rules’) for the posts of Superintendent Grade-II had not been finalized. The R&P Rules were finalized on 12.9.2008. Therefore, 13 point roster cannot be applied to the posts which were filled up prior to the finalization of the R & P Rules. 5. In my considered view, the petition filed by Man Singh (CWPOA No. 6450 of 2019) deserves to be allowed and CWPOA No. 5342 of 2019 (filed by Neelam Patial) deserves dismissal for the following reasons: 5(i) On 1.10.2007 government accorded its sanction to upgrade two posts of Senior Assistants in the respondent department to Superintendent Grade-II in the pay scale of Rs. 6400-10640 with Grade pay of Rs. 4800/-. Shri S.N. Vij and Smt. Nirmal were promoted on ahoc basis as Superintendent Grade-II for a period of six months or earlier vide office order dated 4.1.2008. Later a meeting of DPC was convened for filling-in the upgraded posts. The memorandum before the DPC stated that the posts were upgraded by the government and the administrative department & the department of Personnel were of the opinion that there was no requirement to look into the R & P Rules at that time. Later a meeting of DPC was convened for filling-in the upgraded posts. The memorandum before the DPC stated that the posts were upgraded by the government and the administrative department & the department of Personnel were of the opinion that there was no requirement to look into the R & P Rules at that time. That the posts being ‘non-selection posts’ will be filled up by promoting the senior most officials and 13 point roster of reservation will be applied whereunder point Nos. 1 and 2 are unreserved. On the basis of recommendations of DPC held on 9.4.2008, the ad-hoc promotions of these two officials (Sh. S.N. Vij and Smt. Nirmal Thakur) were regularized vide office order dated 11.4.2008. Subsequently, the R & P Rules for the posts of Superintendent Grade-II were notified on 12.9.2008. In terms of these Rules, the cadre of Superintendent Grade-II consisted of two posts which were to be filled up 100% by promotion from amongst Senior Assistants with six years regular service or regular combined with continuous ad-hoc service in the grade. 5(ii) After retirement of Shri S.N. Vij & Smt. Nirmal, Sh. B.R. Sharma & Smt. Aruna Sood and thereafter Sh. Rajesh Sawant & Sh. Ramesh Thakur were promoted to the posts of Superintendent Grade-II. Total six incumbents have been promoted as Superintendent Grade-II. Whether the roster would be applicable against the upgraded post of Superintendent Grade-II or not is a question which has been highlighted by learned counsel for the petitioner Neelam Patial. Hon’ble Apex Court in (2011) 9 SCC 510 , titled Bharat Sanchar Nigam Limited versus R. Santhakumari Velusamy and Others elaborated the distinction between ‘upgradation’ and ‘promotion’. It was held that if there is mere up-gradation of posts, then the reservation provisions would not apply but in case there is promotion, then the reservation provisions would be applicable. The Apex Court further held that upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibility. Where the process is an upgradation simplicitor, there is no need to apply the rules of reservation but where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibility. Where the process is an upgradation simplicitor, there is no need to apply the rules of reservation but where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply. It was also held by the Hon’ble Apex Court that where there is restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service will attract rules of reservation. The relevant paras encapsulating the principles formulated by the Hon’ble Apex Court relating to promotion and upgradation are as under: “26. In view of the decisions in Dayaram Asanand Gursahani, Fateh Chand Soni and Ram Prasad, the position that emerges is that even where the upgradation does not involve appointment to a different or higher post, but is as a result of a promotional process involving selection, then the principles of reservation are attracted. 29. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge : (i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is advancement to a higher position and advancement to a higher pay scale - are described by the common term ‘promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences. (ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale. (iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale. (iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay-scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay-scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simplicitor can be said to be a promotion in its wider sense that is advancement to a higher pay scale. (iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simplicitor. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simplicitor. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation. (v) Where the process is an upgradation simplicitor, there is no need to apply the rules of reservation. But where the upgradation involves selection process and is therefore a promotion, the rules of reservation will apply. (v) Where the process is an upgradation simplicitor, there is no need to apply the rules of reservation. But where the upgradation involves selection process and is therefore a promotion, the rules of reservation will apply. (vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation.” The above judgment was relied upon in (2020) 9 SCC 208 , titled Rama Nand and Others versus Chief Secretary, Government (NCT of Delhi) and Another. In Rama Nand’s case the Apex Court also considered 2008 (9) SCC 242 , titled Union of India versus Pushpa Rani, wherein it was held that the scheme in question (therein) provided for restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill-up such posts by promotion from all eligible and suitable employees and therefore, it was a case of promotion and consequently, reservation rules were held to be applicable. The relevant paras from the judgment in Rama Nand’s case are as under: “14. The posts in Pushpa Rani was held to be promotion for the reasons set out in para 28. “28. In Pushpa Rani, this Court while considering a scheme contained in the Letter dated 9-10-2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill up such posts by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the reservation rules were applicable.” 18. The reasons for coming to this conclusion are based on the principles set out in the BSNL case. No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The reasons for coming to this conclusion are based on the principles set out in the BSNL case. No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere redescription of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all Telephone Operators would not automatically be eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re- description or reorganisation of the cadre. On applying the test in BSNL case as per sub-para (i) of para 29, promotion may include an advancement to a higher pay scale without moving to a different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself, so as to cover it under sub-para (iv).” 5(iii) In the instant case two posts of Superintendent Grade-II were upgraded/created in the respondent department in the year 2007. Against these two upgraded posts, Senior Assistants Shri S.N. Vij and Smt. Nirmal Thakur were promoted on ad-hoc basis on 4.1.2008. Their ad-hoc promotions were regularized on 11.4.2008 on the basis of recommendations of the DPC. The posts of Superintendent Grade-II involve higher responsibilities and duties than that of Senior Assistant. Post of Senior Assistant is Class-III post with grade pay of Rs. 4200/-, whereas post of Superintendent Grade-II is Class-II post with grade pay of Rs. 4800/-. The posts of Superintendent Grade-II are ‘non-selection’ posts. Accordingly, Sh. The posts of Superintendent Grade-II involve higher responsibilities and duties than that of Senior Assistant. Post of Senior Assistant is Class-III post with grade pay of Rs. 4200/-, whereas post of Superintendent Grade-II is Class-II post with grade pay of Rs. 4800/-. The posts of Superintendent Grade-II are ‘non-selection’ posts. Accordingly, Sh. S.N. Vij & Smt. Nirmal Thakur were promoted against these two upgraded/created posts of Superintendent Grade-II initially on ad-hoc basis & later on regular basis. The 13 point reservation roster was applied while filling up the upgraded posts. Point Nos. 1 & 2 of this roster were unreserved and were accordingly filled in. Even after framing of R&P Rules the nature of the posts remains as ‘non-selection’. The senior most Senior Assistants belonging to general category were, therefore, considered against the upgraded/created posts of Superintendent Grade-II. It is on that basis that Shri S.N. Vij and Smt. Nirmal Thakur were promoted on ad-hoc basis on 4.1.2008 and later on regularized as such on 11.4.2008. In accordance with the principles formulated by the Hon’ble Apex Court in above extracted judgments, it has to be construed that Shri S.N. Vij and Smt. Nirmal Thakur were actually promoted as Superintendent Grade-II. The upgraded posts carried higher emoluments and higher responsibilities. These posts were Class-II posts. Since it was a case of promotions of Shri S.N. Vij and Smt. Nirmal Thakur, therefore, reservation roster had to be applied to the posts occupied by them. On applying the reservation roster from the first roster point occupied by Shri S.N. Vij, the vacancy which became available on 11.9.2014 would fall at roster point No. 7. Respondents No. 1 to 3 realized their mistake in wrongly considering this vacancy at roster point No. 5 and thereafter correctly took steps for rectification of the mistake committed by them by holding the review DPC on 16.6.2015. Because of the status quo order passed in the petition filed by respondent Neelam Patial, no further action could be taken in the matter. Neelam Patial continued to work as Superintendent Grade-II till her retirement on 31.3.2016. However, as held earlier the post in question which became available on 11.9.2014 fell at roster point No. 7 of the 13 point roster and, therefore, was required to be filled in by promotion of an eligible person from the feeder category belonging to scheduled caste category. Neelam Patial continued to work as Superintendent Grade-II till her retirement on 31.3.2016. However, as held earlier the post in question which became available on 11.9.2014 fell at roster point No. 7 of the 13 point roster and, therefore, was required to be filled in by promotion of an eligible person from the feeder category belonging to scheduled caste category. The review meeting of DPC held on 16.6.2015 correctly recommended for rectification of mistake. 5(iv) For all the aforesaid reasons, CWPOA No. 6450 of 2019 is allowed and CWPOA No. 5342 of 2019 is dismissed. Following directions are further issued in the matter: (a) Respondents/competent authority will implement the recommendations of the review DPC held on 16.6.2015 within a period of three weeks from today. In the review DPC, Man Singh (petitioner in CWPOA No. 6450 of 2019) has been recommended for promotion as Superintendent Grade-II against vacancy which became available on 11.9.2014, therefore, promotion order in accordance with law shall be issued in his favour within this period. Petitioner Man Singh has retired on 31.3.2016 without discharging the duties as Superintendent Grade-II, therefore, consequential benefits due to him shall be worked out notionally from the date of his promotion till the date of his retirement. However, all actual monetary benefits in form of retiral dues and pension etc. shall be payable to him w.e.f. date of his retirement i.e. 31.3.2016. This exercise be also completed within the aforesaid period of three weeks. (b) Since pursuant to an interim order passed in CWPOA No. 5342 of 2019, Neelam Patial (petitioner in CWPOA No. 5342 of 2019) had worked as Superintendent Grade-II w.e.f. 31.10.2014 till her retirement on 31.3.2016, therefore, emoluments paid to her as Superintendent Grade-II during this period shall not be recovered from her. However, on her superannuation, she would get the benefits (retiral dues pension etc.) admissible to her in accordance with recommendations of the review DPC dated 16.6.2015. Both the writ petitions are disposed of in above terms. Pending miscellaneous application(s), if any, shall also stand disposed of.