Delhi High Court

H.C. Sharma vs Ndmc And Anr. on 15 May, 2014

$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 6828/2010
%                                 Date of decision: 15th May, 2014

       H.C. SHARMA                                  ..... Petitioner
                         Through:       Mr.Shankar Raju and
                                        Mr.Nilansh Gaur,
                                        Advocates.
                         versus

       NDMC AND ANR.                          ..... Respondents

                         Through:       None for R-1.
                                        Mr.R.V.Sinha, Adv. for R-2.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MS. JUSTICE DEEPA SHARMA
       GITA MITTAL, J. (ORAL)

1. The writ petitioner challenges the order dated 30th April,

2010 dismissing Transfer Application no.188/2009 with Original

Application no.1343/2009 passed by the Central Administrative

Tribunal, Principal Bench. The petitioner had filed the writ

petition no. 3917/1996 before this court seeking benefit under The

Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 being extended for

promotion to the post of Executive Engineer, a Group A post with

the New Delhi Municipal Corporation

2. The writ petition was transferred for consideration to the

Central Administrative Tribunal, Principal Bench wherein it was

registered as T.A.188/2009. The respondents place reliance on an

Office Memorandum dated 29th December, 2005 which provided

for reservation for persons with disabilities in case of direct

recruitment as well as promotion for posts in Group C and D only.

The application was dismissed by the Tribunal placing reliance on

the aforesaid O.M. dated 29th December, 2005 on the ground that it

did not prescribe reservation for promotion for physically

handicapped persons to Group A posts. This decision of the

Tribunal has been assailed by the petitioner by way of the instant

writ petition.

3. It is not disputed that during the pendency of the writ

petition before this court, this issue has been considered by the

Supreme Court and authoritatively adjudicated by a decision

reported in (2013) 12 SCALE 588 Union of India & Another vs.

National Federation of the Blind and Others. The Supreme Court

has inter alia held as follows:

"51) Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., "computing 3% reservation on total number of vacancies in the cadre strength" which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court."

Further directions have been made in para 54 of the

pronouncement inter alia directing the respondent no.2 herein to

issue an appropriate order modifying the Office Memorandum

dated 29th December, 2005 and subsequent Office Memorandums

as well as to make them consistent with the courts‟ order. The

above directions of the Supreme Court bind the respondents in the

instant case as well.

In view of the above, the challenge raised by the petitioner

stands concluded by the adjudication by the Supreme Court in

UOI and Anr. Vs. National Federation of the Blind and ors.

(Supra). The respondents are bound to ensure that they abide by

the direction made by the Supreme Court.

4. Mr.Shankar Raju, learned counsel for the petitioner has

drawn our attention also to a decision of this court in W.P.(C)

2821/2010 dated 4th August, 2010 entitled Municipal Corporation

of Delhi vs. Manoj Gupta. This court has placed reliance on an

earlier decision dated 7th December, 2007 in W.P.(C)

No.11818/2004 entitled Union of India through G.M.Northern

Railway Chairman, Railway Board vs. S.Jagmohan Singh wherein

the Division Bench has held thus:

5. In para 20 and 21 of the decision, the Division Bench has held as under:

"20. As noticed above, prior to the Disability Act coming into force, the Government had, by administrative instructions, provided reservation for physically handicapped persons in Group C & D posts. After the Disability Act came into force, such a reservation is now permissible even for Group A & B posts. This led the DoPT to issue OM dated 18.12.1997. Referring to Section 33 of the Disability Act, this OM mentions that the reservation stands extended to identified Group A & B posts filled through direct recruitment. In this OM, however, it is stated that such reservation would be termed as horizontal reservation in contradistinction to the reservation of SC/ST candidates where reservation is available at horizontal as well as vertical level with the principle of interlocking of vertical and horizontal

reservations, as laid down by the Supreme Court in the case of Indira Sawhney vs. Union of India & Ors., AIR 1993 SC 477. Though as per this OM for Group A & B posts the reservation was only at induction level, significantly corrigendum was issued by the DoPT vide OM dated 4.7.1997, which reads as under :-

"Subject: Reservation for the physically handicapped persons in Group A and B Posts/Services under the Central Government.

The undersigned is directed to invite attention to this department's O.M. No. 36035/169/91-Estt.(SCT) dated 18.2.97 on the above subject and to say that it has been represented before the Government that the earmarking of points no. 33, 67 and 100 in the prescribed register for reservation for the physically handicapped would mean that the physically handicapped candidates may have to wait for a long time to get their turn for promotion. The suggestion has been considered and it has now been decided in partial modification of the O.M. cited above that the point number of 34 and 67 in cycle of 100 vacancies in the 100 point register and be marked for reservation for physically handicapped. The other instructions contained in the aforesaid O.M. remains unchanged.

Sd/-

(Y.G. Parande) Director"

21. It is clear from the above that point No.34 and 67 in the cycle of 100 are now earmarked for reservation for physically handicapped and, thus, reservation is admissible even for Group A & B posts in promotion category and not only at the induction level. We are of the opinion that this OM is brought in tune with the letter

and spirit behind Section 33 of the Disability Act. On interpretation of such a provision legal position is abundantly clear."

(Emphasis supplied)

5. Relying on these decisions, in MCD vs. Manoj Gupta (supra)

this court accepted the claim of the respondent for reservation

under the category of Physically Handicapped Person while

seeking promotion to the next post as well i.e. from Group B to

Group A. The Municipal Corporation of Delhi assailed the

decision of this court by way of SLP No.9473/2011 which was

dismissed by the Supreme Court vide order dated 10th December,

2003 directing as follows:

"Heard Mr.Sanjib Sen, Learned counsel for the petitioner.

The controversy raised in the present special leave petition stands concluded by a recent decision of this Court in Union of India & Anr. Vs. National Federation of the Blind & Ors., 2013 (12) SCALE 588.

Special leave petition is dismissed."

6. In view of the above, it cannot be disputed that reservation

would govern promotions from one group to another, be it

promotion to posts in Group A, B, C or D.

7. Mr.R.V.Sinha, learned counsel for respondent no.2 submits

that an Office Memorandum dated 3rd December, 2013 has been

issued by the respondent in purported compliance of the judgment

of the Supreme Court in Union of India & Anr. Vs. National

Federation of the Blind & Ors. (Supra). The relevant extract of the

Office Memorandum dated 3rd December, 2012 reads as follows:

"Keeping in view the directions of the Hon‟ble Supreme Court, Para 14 of the OM dated 29.12.2005 is modified to the following extent:

"Reservation for persons with disabilities in Group „A‟ or Group „B‟ posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group A posts or Group „B‟ posts respectively, in the cadre."

A reading of the office memorandum dated 3rd December,

2013 would show that it makes no reference to reservations in

promotion posts directed by the Supreme Court and this court. The

Office Memorandum thus does not comply with the judgement of

this court in MCD vs. Manoj Gupta and the directions made by the

Supreme Court dismissing Special Leave Petition on 10 th

December, 2013. It is certainly violative of the principles laid down

in Union of India & Anr. Vs. National Federation of the Blind &

Ors. (supra).

8. In view of the above discussion, impugned order dated 30th

April, 2010 so far as it pertains to the present petitioner is hereby

set aside and quashed. It is held that the petitioner would be