ORDER : 1. Petitioners have preferred this writ petition aggrieved by the order dated 16th February, 2021, whereby the Original Application (OA), preferred by the respondents, was allowed and the petitioners were directed not to count the promotion from Junior Accounts Assistant (for short ‘JAA’) to Accounts Assistant (for short ‘AA’) as promotion and consider the same as up-gradation due to restructuring. 2. It is contended by learned counsel, appearing for the petitioner-Union of India, that Central Administrative Tribunal, Jaipur Bench, Jaipur placed reliance on the order passed by the Central Administrative Tribunal, Madras Bench, which order was upheld by the Division Bench of Madars High Court and SLP, preferred against the said order, was dismissed by the Apex Court. 3. It is contended that Central Administrative Tribunal, Madras Bench and Madras High Court did not consider the relevant Rules while deciding the application. 4. Learned counsel for the petitioners contends that the respondents were working as Junior Accounts Assistant. They were promoted as Accounts Assistant and in the order itself, it was mentioned that they are being promoted. It is also contended that there was a change in pay-scale on promotion from JAA to AA. It is further contended that there were certain requisites for being considered as promoted i.e. they were required to complete three years’ service in the grade and they were also required to pass Appendix-II Examination. 5. It is argued that under the MACP Scheme, no one, who has been given three promotions, was entitled to MACP benefit. 6. Learned counsel for the petitioners has drawn attention of this Court to Indian Railways Establishment Manual, wherein in Para 171(5), it is provided that the posts in the grade of AA, in scale Rs.1400-2600 will be filled by promotion of JAA in scale Rs.1200-2040, after they have completed three years service in the grade and passed Appendix-II Examination. 7. Learned counsel for the petitioner has placed reliance on the judgments of the Apex Court in the case of Rama Nand & Ors. Vs. Chief Secretary, Govt. of NCT of Delhi & Ors. AIR 2020 SC 199, The Railway Board and Ors. Vs. P.R. Subramaniyam & Ors. AIR 1978 SC 284 . The reliance is also placed on the judgment of the Apex Court in the case of Tarsem Singh & Ors. Vs. State of Punjab & Ors. AIR 1995 SC 384 . 8. Chief Secretary, Govt. of NCT of Delhi & Ors. AIR 2020 SC 199, The Railway Board and Ors. Vs. P.R. Subramaniyam & Ors. AIR 1978 SC 284 . The reliance is also placed on the judgment of the Apex Court in the case of Tarsem Singh & Ors. Vs. State of Punjab & Ors. AIR 1995 SC 384 . 8. It is contended that the order passed by the Apex Court was merely dismissal of SLP and the same cannot be said to be laying down of law. Reliance in this regard has been placed on the judgment in the case of Kunhayammed & Ors. Vs. State of Kerala & Anr. (2000) 6 SCC 359 , wherein the Apex Court held that mere dismissal of SLP does not amount to upholding of the order, from which, leave to appeal is sought. 9. It is contended that Central Administrative Tribunal, Calcutta Bench was also seized with the matter, wherein Central Administrative Tribunal, Calcutta Bench, while dealing with the OA No. 335/2007 of Central Administrative Tribunal, Madras Bench, held it to be per incuriam, as Central Administrative Tribunal, Madras Bench had not considered the Rules, which are framed by Railways and are treated to be Rules under Article 309 of Constitution of India. 10. Learned counsel, appearing for the applicants-respondents, has vehemently opposed the writ petition. It is contended that no promotion orders were passed, rather there was restructuring of the post and out of 100 posts of JAA, 80 posts were reconstituted as AA. 11. It is also contended that benefit of MACP Scheme cannot be withdrawn as appointment of the respondents, on the post of AA, cannot be treated as promotion. 12. It is further contended that judgment passed by Central Administrative Tribunal, Madars Bench was confirmed by the Division Bench of Madras High Court and SLP, preferred by Union of India was dismissed by the Apex Court and the case of the applicants is akin to the case before the Central Administrative Tribunal, Madras Bench, therefore, learned Tribunal has not committed any error in allowing the OA, filed by the respondents. 13. We have considered the contentions. 14. As to whether promotion of the respondents as AA would be treated as promotion or should be treated as restructuring of the post is the question in issue before us. 15. 13. We have considered the contentions. 14. As to whether promotion of the respondents as AA would be treated as promotion or should be treated as restructuring of the post is the question in issue before us. 15. The Apex Court in the case of Rama Nand & Ors. (supra) in Para Nos. 15, 17 & 18 held as under: “15. Learned counsel in the aforesaid context, while turning to the factual matrix of the present case, submitted that there are three aspects which are material in the present case: (i) prequalification of minimum of 5 years of service. (ii) higher financial emoluments. (iii) rigorous of a specialised training. These make a candidate eligible. It was, thus, a submission that if all these three are considered together, there can be no doubt that the present case is one which should be considered as the promotion for the purpose of ACP Scheme. 17. The reasons for coming to this conclusion is based on the principles set out in the BSNL case (supra). 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 re-description 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 (supra), 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. On applying the test in BSNL case (supra), 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). 18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is “to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.” 16. The Apex Court, in the case of Rama Nand & Ors. (supra), held that for ascertaining whether there is promotion or not, the factual situation and triple criteria rule has to be applied. The Apex Court also held that there was requirement of minimum five years of service, specialised training and higher financial emoluments, therefore, the same was to be considered as promotion. 17. In the present case in hand, as per Railway Board Circular, the posts in the grade of AA, in scale Rs.1400-2600 is to be filled by promotion of JAA in scale Rs.1200-2040 after they have completed three years service in the grade and passed Appendix-II Examination. Thus, minimum requirement for being promoted on the post of AA was three years service as JAA and passing of Appendix-II Examination. Thus, minimum requirement for being promoted on the post of AA was three years service as JAA and passing of Appendix-II Examination. It was thus a promotional post as it was higher in grade and there was minimum requisite number of years of service in the lower grade with passing of requisite examination. The order itself, by which, the respondents were promoted, specifies that as a result of up-gradation of the posts of CG-I (re-designated as JAA) scale Rs.1200-2040 to that of SH now re-designated as AA scale Rs.1400-2600, promotion order was issued. Thus, there was re-designation of post but at the same time, promotional avenues were kept open and the earlier post was not abolished. 18. The Central Administrative Tribunal, Jaipur Bench has not referred to the relevant Rule i.e. 1313 (FR 22), which deals with pay fixation pursuant to the promotions. The Central Administrative Tribunal, Calcutta Bench had dealt with the entire matter and had held that the judgment passed by Central Administrative Tribunal, Madras Bench was per incuriam, as they have not referred to the relevant Rules. In the present case, the Central Administrative Tribunal, Jaipur Bench has not referred to the Rules and has passed the order in consideration of the order passed by Central Administrative Tribunal, Madras Bench. 19. We are of the considered view that the respondents have been promoted from JAA to AA, which was a higher pay-scale. Thus, as per the judgment of Apex Court also, it has to be treated as a promotion. Since the respondents have been promoted, they were not entitled to MACP Scheme and withdrawal of MACP by the petitioners cannot be said to be de hors the Rules. 20. Consequently, we deem it proper to allow the writ petition while setting aside and quashing the order dated 16th February, 2021, passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur. 21. Accordingly, the writ petition is allowed.