Orissa High Court
Unknown vs Union Of on 27 January, 2020
Author: Biswanath Rath
Bench: Biswanath Rath
W.P.(C) No.15711 of 2005
34. 27.01.2020 Heard Mr. R.K. Bose, learned counsel for the
petitioner and learned counsel for the opposite party.
This Writ Petition involves the following prayer:
"It is therefore, prayed that this Hon'ble
Court would be kind enough to admit the writ
application for hearing, issue notice to the
opposite parties and on their appearance or
non-appearance and filing or non-filing of their
show-cause may allow this writ application by
quashing letter dt.22.11.2003 (Annexure-12)
and dt.12.12.2005 (Annexure-14) declaring
that the petitioner has got promotion to the
post of JMGS-I w.e.f. 1.08.2001 under
Physically Handicapped category with all
consequential benefits."
Short background involved in this case is that
petitioner worked as Cashier, Clerk and Typist since
11.10.1980 under the State Bank of India. While
continuing as such, the petitioner was also promoted to
the post of Teller and then promoted to the post of Special
Assistant. While the petitioner was continuing as such on
29.05.2002 the Bank authority issued a circular for filling
up the post of OJMGS-I w.e.f.01.08.2001/01.08.2002.
The petitioner since was disabled applied for such post
attaching therein the Disability Certificate for
consideration of his case under particular category. Since
the petitioner was fulfilling all the criteria for being
considered to the above post, name of the petitioner was
recommended in the physical handicapped category for
promotion. Written test for the post was held on
18.08.2002. The petitioner being successful in the
Written test, was called to attend the interview. A
selection list was published indicating the name of the
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petitioner at Sl.no.2 vide Annexure-4. It is, at this stage of
the matter, finding Physically Handicapped Certificate
produced by the petitioner remains invalid the petitioner
was directed to produce a fresh medical certificate. On
submission of a fresh medical certificate case of the
petitioner was forwarded to the Head Office for
appropriate consideration. In the meantime the petitioner
was also congratulated in advance by the Assistant
General Manager and other associate members for being
promoted to such post. The petitioner had waited for the
promotion letter from the authority for a long time and for
having no response from the authority he was
constrained to submit a representation to the competent
authority and finding no response thereon again the
petitioner was constrained to file Writ Petition bearing
No.11796 of 2003. In the meantime the petitioner was
communicated that he was ineligible to be promoted to
the post of OJMGS-I for his having 90% hearing impaired
by the order vide Annexure-12. The petitioner made
representation challenging such issue which was rejected
by the order vide Annexure-14.
Challenging the orders vide Annexures-12 & 14
Sri Bose, learned counsel for the petitioner taking this
Court to the provision for having reservation in the
promotion to the post of OJMGS-I and further taking this
Court to the document appended by the Bank authority
through their counter affidavit more particularly at page
44 of the brief, contended that once there is a promise to
have reservation under the Disability Category in the
matter of promotion to higher post, no circular can create
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any obstruction in getting such promotion. Taking this
Court to a decision of the Hon'ble apex Court in the case
of Rajeev Kumar Gupta & Others versus Union of
India & others as reported in (2016) 13 SCC 153
Sri Bose, learned counsel for the petitioner contended
that the action of the authority is not only contrary to the
decision of the Hon'ble apex Court cited supra but also
contrary to the provision at Article 16 of the Constitution
of India and such action is also illegal being contrary to
the protection granted to such persons under the Statute
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 hereinafter in short be called
as "the Act, 1995". It is, in the circumstance, Sri Bose,
learned counsel for the petitioner claimed for allowing
this Writ Petition in setting aside the orders vide
Annexures-12 & 14 and also granting appropriate relief to
the petitioner. It is however admitted by Sri Bose, learned
counsel for the petitioner that the petitioner has been
superannuated in the meantime on attaining the age of
superannuation and therefore the petitioner may only be
entitled to the benefits in the event the case goes in his
favour.
Learned counsel for the opposite party-Bank while
seriously objecting the claim of the petitioner taking this
Court to the counter affidavit filed by Sri Asaf Ali Khan
the Asst. General Manager, State Bank of India and the
stand taken therein more particularly taking this Court to
the document at Annexure-1 at page 44 of the brief
contended that for the clear restriction by the Ministry of
Finance Banking Division through the correspondence
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referred to therein, there is no reservation for this
category in the matter of promotion to the post of
OJMGS-I. It is in the circumstance learned counsel for
the opposite party contended that there is no infirmity in
either of the orders vide Annexures-12 & 14 and thus
claimed that the Writ Petition should be dismissed.
Considering the rival contentions of the parties,
this Court finds, admittedly while continuing in the post
of Special Assistant the petitioner applied for promotion
to the post of OJMGS-I and he was qualified in the
written test. Consequent upon which he was also called
for to attend the interview and for being successful in the
interview the petitioner's name was found place in the
select list meant for OJMGS-I post at Sl.no.2. It is, at this
stage of the matter petitioner's case was again considered
by the Management keeping in view the Physical
Handicapped Certificate submitted by the petitioner.
Basing on the information through such certificate
indicating therein that the petitioner was disabled by 90%
of hearing the Management decided that the petitioner
became unfit to hold such post. This Court finds from
Annexure-1 that there has been restriction in reservation
in the matter of promotion to the Group A & B post and
for being no reservation for the Physically handicapped
persons to such promotional posts, this Court in the first
stage considering the protection granted to the petitioner
through the provision at the Act, 1995 finds, this Act has
been introduced for protection to the physically
handicapped persons in the matter filling up of the post
involving such categories employees by way of promotion
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and the Parliament has brought the legislation called as
the Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 and has provided
protection to such category of employees in the matter of
promotion, which statutory right cannot be taken away
by the authorities bound by it. This apart this Court also
takes into account the decision of the Hon'ble apex Court
vide (2016) 13 SCC 153 where considering a similar
situation and like that of the circular restricting the
promotion of the person therein on the premises of
physically handicappedness the Hon'ble apex Court has
come to hold that depriving such class of employees from
getting promotion is in violation of the provision at Article
16 of the Constitution of India and thus declared the
circular restricting promotion on such ground as
unenforceable. In holding so, further the Hon'ble apex
Court also directed the authorities therein to continue for
filling up the posts by way of promotion with reservation
for such categories of employees. For the protection of the
petitioner through the Act, 1995 and the support of the
decision vide (2016) 13 SCC 153 to the case at hand, this
Court finds, the application of the Circular vide
Annexure-1 to the case at hand becomes illegal. It is, in
the process this Court while interfering with the orders
vide Annexures-12 & 14 sets aside the same and directs
the Bank-authorities to treat the petitioner to have been
promoted to the post of OJMGS-I from the date to which
the other similarly situated persons have been promoted
in terms of the circular dated 29.05.2002 vide
Annexure-1. Further considering that the petitioner has
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already been superannuated in the meantime, this Court
directs the Bank authority to work out this direction by
completing the entire exercise within a period of two
months from the date of communication of a certified
copy of this order by the petitioner. Arrear salary as well
as pension, if any, shall be released in favour of the
petitioner with interest @7% per annum all through.
The Writ Petition succeeds.
Issue urgent certified copy as per rules.
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(Biswanath Rath, J.) Ayas