Kerala High Court

Union Of India vs P.K.Sadanandan on 27 May, 2024

Author: Amit Rawal

Bench: Amit Rawal

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR. JUSTICE AMIT RAWAL
                              &
           THE HONOURABLE MR. JUSTICE EASWARAN S.
   MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
                  OP (CAT) NO. 79 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 04.01.2022 IN OA NO.403 OF
2020 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:

    1    UNION OF INDIA,
         REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF
         INDIA, DEPARTMENT OF POST, NORTH BLOCK, NEW
         DELHI, PIN - 110001
    2    THE CHIEF COMMISSIONER FOR PERSONS WITH
         DISABILITIES,
         MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT
         GOVERNMENT OF INDIA, NEW DELHI, PIN - 110001
    3    THE CHIEF POST MASTER GENERAL,
         KERALA CIRCLE, THIRUVANANTHAPURAM, PIN - 695033
    4    THE SUPERINTENDENT OF POSTS,
         KANNUR DIVISION, KANNUR, PIN - 670001
         BY ADV CHANDINI G.NAIR
RESPONDENT/APPLICANT:

         P.K.SADANANDAN,
         S/O. M.P.NARAYANAN NAMBIAR, LSG POSTAL
         ASSISTANT(RETD.) RESIDING AT SRUTHILAYA, CHELERI
         P.O., KANNUR., PIN - 670604
         BY ADV.SMT.SUMATHI DANDAPANI (SR)
         SRI. Millu Dandapani
     THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 27.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (CAT) NO. 79 OF 2023

                                2

              AMIT RAWAL & EASWARAN S., JJ.
                ------------------------------------
                   O.P. (CAT) No.79 of 2023
                -------------------------------------
             Dated this the 27th day of May, 2024

                           JUDGMENT

Easwaran, J.

The Union of India aggrieved by the order of the Central

Administrative Tribunal, Ernakulam Bench in O.A.No.403/2020

has come up before this Court under Article 227 of the

Constitution of India raising a question as to whether a person

who was appointed under general category can claim promotion

under the quota reserved under the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation)

Act, 1995.

2. The facts as disclosed from the application before the

Tribunal are as follows:

The respondent/applicant entered service in the year 1981

as Postal Assistant. It is further averred that he was also

granted conveyance allowance in terms of Office Memorandum

dated 31.8.1978 for orthopaedically handicapped employees OP (CAT) NO. 79 OF 2023

with disability of lower extremities. The Postal Assistant comes

within the entry post of Department of Postal Services in

Group-C category. The next promotional avenue for the post of

Postal Assistant is LSG and thereafter HSG-II. According to the

applicant, since he had joined in the year 1981 as Postal

Assistant, he should have been awarded Lower Selection Grade

in the year 1997-2000 and subsequent promotion as HSG-II in

the year 2006 and HSG-I in the year 2015, respectively. As per

the office memorandum dated 18.2.1997 issued by the

Government of India, Ministry of Personal, Public Grievance and

Pensions, Department of Personal and Training, reservation for

physically handicapped candidates in the post filled by

promotion was identified dividing the cycle 100 points into 3

blocks; the first block at 33, second block at 67 and the third

block at 100. This was later superseded by Office Memorandum

No.36035/02/2017-Estt(RES) dated 15.01.2018. Claiming

promotion in the quota reserved for the persons with

disabilities, the petitioner filed Annexures-A7 and A8

representations. According to the applicant, since there was no OP (CAT) NO. 79 OF 2023

practice of maintaining reservation quota in the Postal

Department at Kannur, he applied for the details under the

Right to Information Act on 13.8.2019. The reply to the said

query revealed that the Department had not followed the

percentage of reservation to the physically handicapped

candidates. Under Annexure-A12 representation dated

27.12.2019, the applicant requested the Office of the 2 nd

petitioner/2nd respondent to restore the mandatory promotions

for LSG, HSG-II, HSG-I and HSG-I (NFG) as early as possible.

The 3rd petitioner/3rd respondent was directed to submit the

details of information regarding the number of vacancies filled

since 01.01.1996. Under Annexure-A13 dated 20.01.2020, the

applicant was given a chance to file rejoinder within fifteen days

from the date of receipt of the reply from the 3 rd petitioner,

which accordingly had been filed. By reply dated 15.05.2020

produced as Annexure-A14, the Department took the stand that

since the petitioner was appointed under the quota reserved for

compassionate appointments, he was not entitled to be

considered for promotion under the quota reserved for disabled OP (CAT) NO. 79 OF 2023

persons. This prompted the applicant to approach the Central

Administrative Tribunal seeking the following reliefs:

"i. To call for the records leading to Annexure-A13, 14 and 15 and give a direction to the 2 nd respondent to dispose of the same invoking the provision of Section 77 of the Act.

ii. To direct the 2nd respondent to identify suo moto, for positioning the PWD candidates in promotion in accordance with Annexure-A6 OM.

iii. To direct the 2nd respondent to set apart the post in the Department at Kannur Postal Division in accordance with Annexure-A6 OM.

iv. To direct the 3rd respondent not to fill up 1 post of HSG-I(NFG) at Kannur Postal Division till the benefit of PWD candidates are allocated in tune with the provisions of the Act and Annexure-A6 OM.

v. To grant such other appropriate order or direction as the Tribunal deemed fit and proper in the facts and circumstance of the case."

3. The petitioners/respondents appeared and filed their

reply taking a stand that the applicant never claimed that he is

a disabled person and further that he was appointed under the

Compassionate Scheme and therefore, he is not entitled for

promotion in the quota reserved for physically disabled

persons. It was further contended that merely because the

applicant was given allowances for the physically disabled OP (CAT) NO. 79 OF 2023

persons, that will not entitle him to claim promotion in the

quota reserved for physically disabled persons.

4. Based on the pleadings on record, the Tribunal

proceeded to hold that irrespective of the method of

recruitment, the Department was bound to protect the rights of

disabled persons and was required to reserve certain vacancies

for filling up with persons with disabilities and accordingly, the

Original Application was allowed. The Tribunal proceeded

further to hold that since the applicant had retired, he would be

only entitled for notional fixation from the date of promotion

and also consequential fixation in the pension. Challenging the

said order, the present Original Petition is filed.

5. We have heard Smt.Chandini G.Nair, learned counsel

appearing for the petitioners, and Smt.Sumathi Dandapani,

learned Senior Counsel assisted by Sri.Millu Dandapani,

appearing for the respondent/applicant.

6. The learned counsel for the petitioners submitted that

since the applicant had never claimed for the benefit of persons

with disabilities, he cannot be considered for promotion. She OP (CAT) NO. 79 OF 2023

would further submit that since the original appointment was

under compassionate grounds, for subsequent promotions, the

applicant was not entitled for being considered for promotion to

various posts in the quota reserved for disabled persons. She

would further submit that the order of the Tribunal is patently

erroneous, taking into consideration the fact that the claim of

the applicant was raised belatedly. She further submitted that

it was the duty of the applicant to bring these matters relating

to physical disability by giving necessary representation at the

earliest. However it was only on 6.1.2021 that the applicant

submitted the disability certificate and he retired from service

on 31.5.2021. She would further point out that even when

O.A.No.86/2016 seeking promotion to the cadre of LSG at par

with his juniors in his turn reckoning his seniority from the date

of initial appoint was filed by the applicant, he did not claim

that he was liable to be promoted on the ground of disability.

She would further submit that O.A.No.86/2016 was

subsequently withdrawn during the pendency of the present

Original Application. Learned counsel for the petitioners would OP (CAT) NO. 79 OF 2023

further point out that as per Office Memorandum dated

17.5.2022, the provisions of Right of Persons with Disabilities

Act, 2016 has been implemented in accordance with the

instructions as issued by the appropriate Government from time

to time and that it can have effect only prospectively and

therefore, the claim of the applicant was totally unsustainable.

7. On the contrary, the learned Senior Counsel, Smt.

Sumathi Dandapani, would submit that the claim of the

applicant for promotion in the quota reserved for physically

disabled persons was equally sustainable in the light of the

protection granted to such persons in terms of Sections 32 and

33 of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995. She

would further point out that going by the judgment of the

Hon'ble Supreme Court, which was considered by the Tribunal,

the question as to whether a person who was selected under

the compassionate ground can be considered for promotion

under the persons with disability category was no longer res

integra in the light of the judgment in State of Kerala & Ors. OP (CAT) NO. 79 OF 2023

v. Lessamma Joseph [2021 SCC Online SC 435]. Our

attention was further invited to the decision in Siddaraju v.

State of Karnataka in Civil Appeal No.1567 of 2017

[2020 SCC Online SC 45].

8. We have considered the rival submissions raised

across the bar.

9. When we analyse the contentions raised on behalf of

the petitioners with the law as laid down by the Supreme Court,

we have no hesitation in our mind in holding that none of the

contentions raised by learned counsel for the petitioners is

liable to be accepted. Even prior to coming into force of the

Rights of Persons with Disabilities Act, 2016, the Supreme

Court of India in Union of India & Another v. National

Confederation for Development of Disabled & Others

[(2015) 13 SCC 643] was pleased to consider the question as

to whether the provisions of Sections 32 and 33 of the Persons

with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 would apply to the promotion posts

also. Considering the judgment of the Apex Court reported in OP (CAT) NO. 79 OF 2023

Union of India & Another v. National Federation of the

Blind and Others [(2013) 10 SCC 772], the Apex Court

proceeded to hold that irrespective of the method of

recruitment, the benefit of the Act will have to be extended to

the promotional posts also.

10. We are quite aware of the fact that the Ministry of

Personnel, Public Grievances & Pensions, Department of

Personnel & Training has issued Office Memorandum No.

36035/02/2017-Estt (RES) dated 15.01.2018 stating detailed

instructions for granting reservation for persons with

benchmark disabilities. In terms of said office memorandum,

points 1, 26, 51 and 76 of the roster shall be earmarked for

persons with benchmark disabilities. We perfectly agree with

the findings of the Central Administrative Tribunal, Ernakulam

Bench rejecting the contention of the petitioners that merely

because the applicant/respondent herein was appointed as

Postal Assistant on compassionate basis, he would not be

entitled for promotion on the quota reserved for disabled

persons. Such contention cannot be countenanced, in view of OP (CAT) NO. 79 OF 2023

the principles laid down by the Hon'ble Supreme Court in the

judgments referred to above. It has also come out from the

pleadings and the materials on record that the process as per

the procedure of the instructions in the Office Memorandum as

referred to above, has not been followed by the Department.

Therefore, in the light of these provisions, the applicant was

certainly entitled for being considered for promotion in the

quota reserved for disabled persons.

In view of the above discussions, we find no sustainable

ground to interfere with the findings of the Central

Administrative Tribunal in exercise of power of superintendence

under Article 227 of the Constitution of India. Accordingly, the

challenge to Ext.P9 order dated 4.1.2022 in O.A.No.403/2020

fails and the Original Petition is dismissed. No order as to

costs. Sd/-

AMIT RAWAL JUDGE

Sd/-

EASWARAN S. JUDGE jg OP (CAT) NO. 79 OF 2023

APPENDIX OF OP (CAT) 79/2023 PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE DISABILITY CERTIFICATE DT:27.9.2007 ISSUED BY THE ASSISTANT SURGEON OF THE GOVERNMENT HOSPITAL, KANNUR Annexure A2 TRUE COPY OF THE OM NO.19029/1/78-B IV(B) DTD:31.8.1978 Annexure A3 TRUE COPY OF THE OM NO.19029/1/78-E IV(A) DTD:3.12.1979 Annexure A4 TRUE COPY OF THE ORDER NO.EST.49/1/1/04 GRANTING CONVEYANCE ALLOWANCE ISSUED FROM THE OFFICE OF THE CHIEF POST MASTER, TRIVANDRUM DTD;16.5.1985 Annexure A5 TRUE COPY OF THE PAY SLIP ISSUED BY THE DEPARTMENT OF POSTS FOR THE MONTH OF AUGUST 2020 Annexure A6 TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO.36035/02/2017-ESTT(RES) DTD.15.01.2018 Annexure A7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT DATED 27.12.2017 Annexure A8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT DATED 15.07.2019 Annexure A9 TRUE COPY OF THE REQUEST NO.REF.NO.BPEA-GR-C/TVM /2019-20/8-9 MADE UNDER RTI ACT ON 13.8.2019 Annexure A10 TRUE COPY OF THE LETTER NO.12-1/CCD/2018 DATED 12.9.2020 RECEIVED FROM THE OFFICE OF THE 2ND RESPONDENT Annexure A11 TRUE COPY OF THE REPLY GIVEN BY THE DEPARTMENT OF POSTS INDIA, BEARING NO.ST/DA 11/RTI 13/2019 DTD:7.11.2019 Annexure A12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT DATED 27.12.2019 Annexure A13 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT BEARING CASE NO.11706/1021/2020 DT:20.1.2020 Annexure A14 TRUE COPY OF THE REPLY SUBMITTED BY THE 3RD RESPONDENT BEARING NO.ST/5-2/CADRE.RFST/2019 PT DATED 15.5.2020 Annexure A15 TRUE COPY OF THE REJOINDER SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT DATED OP (CAT) NO. 79 OF 2023

3.6.2020 Annexure A16 TRUE COPY OF THE MEMORANDUM BEARING NO.F.NO.14014/02/2012-ESTT.(D) ISSUED BY THE DOPT DATED 16.1.2013 Annexure A17 TRUE COPY OF THE INVOICE PERTAINING TO THE ABOVE PROCEDURE NO.ST/3-3/DIG 2017 PT DATED 11.8.2020 Annexure A18 TRUE COPY OF THE CIRCLE GRADUATION LIST OF POSTAL ASSISTANT AS ON 1.7.2008 Annexure A19 TRUE COPY OF THE ORDER BEARING MEMO NO.ST/3-3/DIG/2014 DTD:12.2.2018 ISSUED BY THE OFFICE OF CHIEF POST GENERAL Annexure R1 TRUE COPY OF THE OM NO.36035/3/2004-ESTT.(RES.) DATED 29.12.2005 Annexure R2 TRUE COPY OF THE OM NO.36035/3/2004-ESTT.(RES.) DATED 10.6.2009 Annexure R3 TRUE COPY OF THE OM NO.5/1/60-ESTT.(D.) 28.6.1960 AND OM NO.5/1/62-ESTT.(D) DATED 31.07.1962 Annexure A20 TRUE COPY OF THE PROCEEDINGS OF THE MEDICAL BOARD DATED 16.12.2020 & 31.12.2020 Annexure A21 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL BOARD DATED 6.01.2021 WHICH HAD BEEN DULY ATTESTED ON 12.01.2021 Annexure A22 TRUE COPY OF THE ORDER ISSUED BY THE COURT OF CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES (DIVYANGAN) DATED 15.12.2020 Annexure A23 TRUE COPY OF THE LETTER DATED 12.01,2021 SEND TO THE 3RD RESPONDENT Annexure TRUE COPY OF THE POSTAL RECEIPT OF ANNEXURE A23 A23(a) Annexure R4 COPIES OF CERTAIN PAGES OF 100 POINT RESERVATION ROASTER MAINTAINED IN RESPECT OF THE PHYSICALLY HANDICAPPED POINTS REMARKED FOR DIRECT RECRUITMENT Annexure R5 COPIES OF CERTAIN PAGES OF 100 POINT RESERVATION ROASTER MAINTAINED IN RESPECT OF THE PHYSICALLY HANDICAPPED POINTS REMARKED FOR PROMOTION Annexure R6 LETTER NO.12/10/2017-SCT DATED 01.04.2019 Annexure R7 RELEVANT PAGE OF GRADUATION LIST ISSUED DURING 2017 UNDER THE DIRECT SIGNATURE OF THE APPLICANT Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.403/2020 FILED BY THE RESPONDENT Exhibit P2 TRUE COPY OF THE DAILY ORDER WAS PASSED BY THE OP (CAT) NO. 79 OF 2023

TRIBUNAL DT:28.8.2020 Exhibit P3 TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE RESPONDENTS ON 13.10.2020 Exhibit P4 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT/ APPLICANT Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS Exhibit P6 TRUE COPY OF THE ADDL. REJOINDER FILED BY THE RESPONDENT/APPLICANT WITHOUT ANNEXURES Exhibit P7 TRUE COPY OF THE ADDL. REPLY STATEMENT TO THE ADDL.REJOINDER FILED BY THE PETITIONERS/RESPONDENTS Exhibit P8 TRUE COPY OF THE ADDL. REPLY STATEMENT TO THE ADDL.REJOINDER Exhibit P9 TRUE COPY OF THE ORDER IN OA.NO.180/00403/2020 DATED 04.01.2022 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH Exhibit P10 TRUE COPY OF THE OM NO.36012/1/2020 ESTT.(RES.-

II) DT:17.5.2022 Exhibit P11 TRUE COPY OF THE LETTER F.NO. SC -1219/2022-SCT-

DOP DT. 14.09.2022 ISSUED BY THE DEPARTMENT OF POSTS RESPONDENT EXHIBITS Exhibit R(a) THE TRUE COPY OF THE OM OF MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS DEPARTMENT OF PERSONNEL & TRAINING, DATED 28.12.2023. Exhibit R(b) TRUE COPY OF THE COMMUNICATION SENT BY ASSISTANT DIRECTOR TO THE POSTAL GENERAL, DATED 09.01.2024