Ramesh Chander vs Uoi & Ors.
2014 Latest Caselaw 4058 Del

$~12&13

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                    DECIDED ON: 01.09.2014

+                            W.P. (C) 6371/2006
       RAMESH CHANDER                                                ..... Petitioner

                             versus

       UOI & ORS.                                                 ..... Respondents

W.P. (C) 7378/2010 B D S KHARB ..... Petitioner

versus

UNION OF INDIA & ORS ..... Respondents

Appearance: Mr. K.K. Sharma, Sr. Advocate with Mr. Rajiv Bakshi, Ms. Bhanita Patowari and Mr. Angshuman Khound, Advocates in both matters.

Mr. Saqib, Advocate for respondents in item no.12. Mr. A.S. Sinha, proxy for Mr. R.V. Sinha, Advocate for Respondent nos.1&3 in item no.13.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)

1. The common questions which arise in these petitions is with regard to the reservation for persons with disabilities to the extent of 3% in terms of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereafter referred to as „Disability Act‟). It is contended that the Central Government‟s Office Memorandum of

W.P.(C)6371/06 & 7378/2010 Page 1 29.12.2005, to the extent it denies promotional reservation to officers in Group A&B, violates the mandates of Section 32 and 33 of the Disability Act and further, results in discrimination within one class of employees, i.e., persons with disabilities who are holding Central Government posts inter se.

2. Both the petitioners are employees of the Central Government. The petitioner in W.P. (C) 7378/2010, B.D.S. Kharb, joined the Central Government as IRS Officer after qualifying through general merit in the Civil Services Examination. The petitioner in W.P. (C) 6371/2006, i.e., Mr. Ramesh Chander joined the Central Government as an Income Tax Officer and was promoted on 18.06.2001. Both of them concededly were issued with disability certificates. With the advent of the Disability Act, the Central Government and other establishments covered by its provisions were obliged to set apart 3% of the vacancies which arise in their establishments/departments to be filled by persons with disabilities. In furtherance of this obligation, the Central Government appears to have issued departmental Circulars and Notifications from time to time. What are in issue are two such Notifications, the first is the Clarification dated 25.02.2003 and the second is Office Memorandum of 29.12.2005. The petitioners had approached the Tribunal, contending that denial of promotion consequent to the interpretation adopted by the Central Government, i.e., that promotional reservations would be available to Group C&D category employees and that such benefits could not be availed of or granted to Group A&B employees and officers, was arbitrary and contrary to the mandate of Section 32 & 33 of the Disability Act. In W.P.(C) No.6371/2006, the grievance made out was in respect of Notification dated 5.11.2001; however, in the other petition, i.e., W.P. (C) 7378/2010, OM of 29.12.2005 was challenged to the extent that it denied

W.P.(C)6371/06 & 7378/2010 Page 2 reservations in promotional vacancies. In both cases, the Tribunal rejected the petitioner‟s contentions holding that the earmarking of reservation at promotional level for different class of officers and employees was a policy issue, and that the Act did not casts any obligation in that regard.

3. Learned counsel for the petitioner relied upon the latest judgment of the Supreme Court in Union of India v. National Federation of the Blind, (2013) 10 SCC 772 and submitted that the Court had specifically set aside a part of the 29.12.2005 Circular; consequently the respondents are bound to consider the petitioners‟ case for promotion after earmarking the vacancies at the relevant point of time. It was highlighted that the petitioner in W.P. (C)7378/2010 has unfortunately not been promoted till date, and that the discriminatory approach adopted by the respondents in extending promotion under 3% quota to only Group C&D has resulted in arbitrariness.

4. Counsel for the respondents submitted that the expansive interpretation of the Supreme Court‟s judgment in National Federation of Blind matter (supra), sought to be urged on behalf of the petitioners, is unwarranted. It was pointed out that at no stage, neither in 2011 nor in 2003 or by the OM of 29.12.2005, were the persons occupying Group A&B posts or belonging to such services entitled to claim promotions through reservations. In other words, argued the counsel for Union of India, that there were no promotional reservations for persons with disability in Group A&B posts. He submitted, secondly, that the adverse comments leading to the setting aside of a part of the 29.12.2005 OM by the Supreme Court in National Federation of Blind matter (supra) only pertained to the method of calculating vacancies and filling them, and not to the principle of reservation whereby a distinction was made between the classes of posts and services. Learned counsel submitted that the latter

W.P.(C)6371/06 & 7378/2010 Page 3 part of paragraph 13 of the OM fell foul of the Supreme Court‟s declaration and that the reference to Indra Sawhney Etc. Etc vs Union Of India And Others, AIR 1993 SC 477 was only with regard to the extent of vacancies; the Supreme Court stated that the cap of 50% did not apply in the case of persons with disabilities.

5. For a proper appreciation of the controversy, it would be relevant to extract parts of the OM dated 25.02.2003 (which is in the form of clarifications with regard to the reservations of physically handicapped in promotions in the posts of Group C&D). The OM specifically applies only in the cases of Group C&D employees. The relevant part relied upon reads as follows: -

"POINT (III) Whether the following categories should be considered for promotion: -

(a) Employees who are appointed by Direct Recruitment through Quota meant for Handicapped Persons i.e. persons who have the disability above the prescribed limit and who have been selected as per the norms laid down by the Government for appointment under Handicapped quota. This provision was introduced since 1986. As per the said provisions, these persons have to submit the required medical certificate from the Medical Board and also from the Vocational Rehabilitation Centre.

(b) These are employees who are really handicapped as per the norms laid down under Government notification, but they have been appointed on merit.

(c) There are employees who have the disability above the prescribed limit who are working in the department even before the quota was introduced.

(d) There are person who unfortunately become handicapped after the appointment in Government Services and have the disability above the prescribed limit.

W.P.(C)6371/06 & 7378/2010 Page 4 Reply (III) All categories would be eligible for promotion provided the candidates fulfil all other conditions."

6. Relevant part of the OM of 29.12.2005, to the extent it is relied upon by the petitioners, is as follows: -

"13. COMPUTATION OF RESERVATION:

Reservation for persons with disabilities in case of Group C & Group D posts shall be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group „C‟ posts in an establishment shall be computed by taking into account the total number of vacancies arising in group „C‟ posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group D posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in group „C‟ and group „D‟ posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (unidentified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified post may exceed 3 per cent.

14. Reservation for persons with disabilities in Group „A‟ posts shall be computed on the basis of vacancies occurring in direct recruitment quota in all the identified group „A‟ posts in the establishment. The same method of computation applies for group B posts."

As is evident from a bare or textual reading of the above Circulars, reservation was always earmarked only for Group C&D posts. There is no gainsaying that in National Federation of Blind (supra), the Supreme Court

W.P.(C)6371/06 & 7378/2010 Page 5 was categorical in rejecting, as illegal, the practice adopted by various Government establishments and departments, of excluding non-identified posts for the purpose of reckoning 3% vacancies that fell to the share of disabled candidates under the Act. However, at the same time, we see no directions in the nature of what is sought by the present petitioners - that officers of Group A&B posts or service ought to be given reservation in promotions. The reference to Indra Sawhney‟s matter in paragraph nos.52 and 54 of the National Federation of Blind‟s matter is to the effect that "the reservation for persons with disability has nothing to do with the ceiling of 50% and hence Indra Sawhney‟s judgment is not applicable with respect to disabled persons". This is not to say, however, that in other aspects, the decision in Indra Sawhney‟s matter would be inapplicable. To the extent that the Central Government determined that reservation in promotional vacancies for persons with disabilities would be granted only in Group C&D, the declaration of law in National Federation of Blinds (supra) - or for that matter the method of determining the vacancies in the direct recruit quota for all categories - would bind the Central Government and all other State agencies. We see nothing in the judgment directing that reservations in promotional vacancies should be granted in all posts of a cadre, having regard to the fact that Group C&D employees alone are given such benefits. In other words, there is no such mandate or direction in the National Federation of Blind (supra) that Group A&B posts or services must also provide for promotional reservations.

7. In the light of the above discussion and having regard to the fact that both the petitioners have been superannuated during the pendency of these proceedings, the Court is of the opinion that no further directions are called for. In case, the petitioners have not received any ACP benefits, the respondents shall examine their service records and release all such

W.P.(C)6371/06 & 7378/2010 Page 6 entitlements as are admissible to them, according to the prevailing policies applicable to them on the date of their superannuation.

8. The Petitions stand disposed of.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) SEPTEMBER 01, 2014 /vks/

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