Central Administrative Tribunal - Jaipur
Yograj Sharma vs D/O Post on 26 April, 2022
1
OA No. 655/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 655/2018
Order reserved on 18.04.2022
DATE OF ORDER: 26.04.2022
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Yograj Sharma S/o Sh. Suraj Narayan Sharma, age
around 41 years, R/o Plot No. 5, Shiv Shakti Bad Ke
Balaji, Ajmer Road, Jaipur-302042. At present posted
as Supervisor, CPC, PLI, GPO, Jaipur (Raj.).
....Applicant
Shri Mukesh Agarwal, counsel for applicant.
VERSUS
1. Union of India through the Secretary,
Government of India, Ministry of Communications
and Information Technology, Department of
Posts, Dak Bhawan, Sansad Marg, New Delhi-
110001.
2. The Secretary, Govt. of India, Ministry of
Communications, Department of
Telecommunications, New Delhi-110001.
3. Deputy Director General (PAF), Office of DG
(Posts) Dak Bhawan, Postal Accounts Wing, New
Delh-110001.
4. Chief Post Master General, Rajasthan Circle,
Postal Department, Jaipur (Rajasthan) - 302007.
5. Controller of Communication Accounts, Ministry
of Communications, Department of
Telecommunications, Govt. of India, Sanchar
Lekha Bhawan, 4, Mahatma Gandhi Road,
Jhalana Doongari, Jaipur-302004.
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OA No. 655/2018
6. Senior Superintendent of Post Offices, Jaipur City
Postal Division, Jaipur-302006.
.... Respondents
Shri N.C. Goyal, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"(i) By an appropriate order or direction, the impugned action of the respondents denying reservation to physically challenged (PH) persons as per the provisions under Section 33 and 34 of the Rights of Persons with Disabilities Act, 2016 in recruitment to the post of AAO cadre of IP & TAFS (Group B) for the year 2018-19 in pursuance of notification dated 19.04.2018 be declared illegal and arbitrary.
(ii) By an another appropriate order or direction, the respondents be directed to provide 4% reservation to the benchmark disable persons as per provisions of Section 33 and 34 of the Act of 2016 in the selection / recruitment to the post of AAO cadre of IP & TAFS (Group B) dated 19.04.2018 and consider the case of applicant under OH category of disabled persons and in case he found suitable, by modifying the merit list issued vide letter dated 01.10.2018, he should be appointed / promoted on the post of AAO from the date of other similarly situated employees with all consequential benefits.3 OA No. 655/2018
(iii) By an another appropriate order or direction, Clause 15 of the notification which ousted the jurisdiction of this bench by conferring the jurisdiction to the Courts/Tribunal, New Delhi regarding the dispute arising out of the process be declared illegal being against the statutory provisions contained under Section 6 of the CAT (Procedure Rules, 1987), which provides that an application shall ordinarily filed within whose jurisdiction, the applicant is posted for the time being.
(iv) Any other order, direction or relief may be passed in favour of the applicant which may be deemed fit, just and proper under the facts and circumstances of the case.
(v) That the costs of this application may be awarded."
2. The brief facts of the case, as stated by the applicant, is that he is a person with disability of Orthopedically (PH) 60% permanent disability. The competent authority vide order dated 14.03.2000 (Annexure A/4) appointed the applicant to the post of Postal Assistant under OC/PH quota in the Department of Posts and at present he is posted as Supervisor CPC, PLI, Jaipur in the office of Senior Post Master, GPO. The respondents had issued a Notification dated 19.04.2018 (Annexure A/6) for recruitment to the AAO Cadre of IP & TAFS, Group 'B' for the year 2018- 19 through Limited Departmental Competitive 4 OA No. 655/2018 Examination (LDCE) and the applicant with 60% permanent disability had applied for the same under General / Physically Handicapped category. The applicant appeared in the written examination and also qualified the same by obtaining more than 40% marks in each subject, which were necessary for qualifying the same. However, in case of SC/ST category, 30% marks were necessary in each subject. Applicant further states that out of total 1010 posts advertised, 151 were reserved for SC and 82 were reserved for ST but no posts were reserved for PH category. It was, however, mentioned that reservation will be given effect as per the Govt. of India policy and in application form also, there is additional category of Ex-serviceman/PH. As per provisions of Section 32 and 33 of the Persons with Disabilities (Equal Opportunity Protection of Rights with Full Participation) Act, 1995, which has been replaced by Section 33 and 34 of the Rights of Persons with Disabilities Act, 2016, the Govt. of India has identified the posts to be reserved for persons with disabilities under Group 'B' and the post of Assistant Accounts Officer has been identified by persons with disabilities and 4% reservation for the persons with benchmark disabilities has been provided. Thus, as the applicant 5 OA No. 655/2018 is OH with one arm, he is entitled for reservation under OH category as per provisions of Section 34 of the Act of 2016, but since the respondents have not provided any reservation to OH category, name of the applicant has not been included in the merit list issued vide letter dated 01.10.2018. The Hon'ble Supreme Court in the case of Rajeev Kumar Gupta & Ors. vs. Union of India & Ors., reported in (2016) 13 SCC 153, has considered the said issue and as per the law laid down in the said case, respondents are bound to provide reservation to the persons with disability against the identified posts, but the respondents have failed to do so. Thus, being aggrieved by the impugned action of the respondents, the applicant has approached this Tribunal for redressal of his grievance.
3. After issue of notices, the respondents have filed their reply raising preliminary objection about jurisdiction that as per para 15 of the Notification dated 19.04.2018, it was clear that all disputes arising out of the process shall fall under the jurisdiction of Court/Tribunal at New Delhi. Therefore, since the present O.A. has been filed at Jaipur, the same deserves to be dismissed being devoid of jurisdiction. 6 OA No. 655/2018
On facts, respondents state that the applicant in the present O.A. has raised his grievance relating to non-inclusion of provision for reservation for physically handicapped employees in the LDCE Notification dated 19.04.2018. It is stated that the instructions on reservation for the persons with benchmark disability, were issued by Govt. of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, the nodal authority, vide OM dated 15.01.2018. Since, in the present case, it is only a case of promotion through Departmental examination, the ibid orders are not applicable. It is further stated that as there was neither mention of category of vacancies other than the same mentioned in para 6 of the OM dated 19.04.2018, the application of the applicant was admitted under the General Category candidate. Thus, securing qualifying marks as provided in para 4 of the said OM by the applicant does not ensure that the applicant has secured position in the merit list. Since reservation has been given as per Govt. of India policy and, thus, submissions of the applicant is not tenable as the same is baseless and meritless. Therefore, in a nutshell arguments raised by the applicant that there should be reservation for physically handicapped 7 OA No. 655/2018 employees in the LDCE-2018 for recruitment of AAO in DoP and DoT does not hold good. Accordingly, Annexure A/1 order dated 01.10.2018 and Annexure A/2 order dated 08.11.2018 are in order and legal. Under these circumstances, the relief sought for by the applicant is not acceptable as well as interim relief is also not tenable at all. Thus, O.A. filed by the applicant being devoid of merits deserves to be dismissed.
4. The applicant has filed a rejoinder denying the contentions of the respondents. He further stated that as submitted in para 5.4 of the O.A., Hon'ble Rajasthan High Court at Principal Seat, Jodhpur vide judgment dated 10.08.2015 in DB CWP No. 11709/2013, (Union of India & Ors. vs. Hargovind Sharma), has observed that in the case of appointment through LDCE on the post of Postal Assistant, the respondents/original applicants faced an examination, may be a limited examination i.e. nothing but direct recruitment. Thus, as per provisions of the Act of 2016, the applicant is entitled to get reservation in selection of AAO. Therefore, action of respondents denying such benefits to him deserves to be set aside. He further stated that similar 8 OA No. 655/2018 controversy has already been considered by the Hon'ble Supreme Court in the case of Rajeev Kumar Gupta & Ors. vs. Union of India & Ors., reported in (2016) 13 SCC 153, wherein it has been clearly held that once a post is identified as suitable for being filled up by the persons with disabilities, it must be reserved for persons with disabilities irrespective of the mode of recruitment adopted by the State for filling up of the said post, whether, by direct recruitment or the promotion. Therefore, in view of law laid down by Hon'ble Apex Court, the OM issued by the DOPT dated 15.01.2018 is null and void. Further, this controversy has also been considered by the Division Bench of Hon'ble High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 13575/2016, 13577/2016 and 14094/2016, decided vide judgment dated 07.03.2019 in the light of the judgment passed by the Hon'ble Supreme Court in the case of Rajeev Kumar Gupta. Thus, claim of the applicant is that as per the provisions of the Rights of Persons with Disabilities Act of 2016, he is entitled to get reservation in selection of AAO. Therefore, action of the respondents for denying such benefits to the applicant is not justified.
9OA No. 655/2018
5. We have heard learned counsels for the parties at length and examined the pleadings minutely including the judgments relied upon by the parties.
6. During the course of hearing, we have observed that in the present matter, a P.T. No. 224/2019 was filed by the respondents in the present O.A., before the Principal Bench of this Tribunal for transfer of the present matter stating that on the same issue a batch of OAs (OA No. 2134/2018 and OA No. 2275/2018) are pending for adjudication before the Principal Bench, and unless the OA pending before the Jaipur Bench is transferred, there is every likelihood of conflicting judgment being rendered on the same issue. The respondent (applicant in OA) opposed the PT stating that the apprehension expressed by the respondents in OA is without any basis and if the matter is decided before the Principal Bench, there is no reason as to why the same be not cited before the Jaipur Bench of this Tribunal. The Principal Bench has observed that the only ground pleaded by the applicants (respondents in OA) seeking transfer of this OA was that on the same issue, a batch of OAs is pending before the Principal Bench and, even if that is true, the same, which is pending, can be taken up for 10 OA No. 655/2018 hearing at the earliest and Jaipur Bench can be requested to defer the hearing for some period. Therefore, vide order dated 10.01.2020, Principal Bench of this Tribunal has disposed of the PT with a direction that Jaipur Bench shall defer the hearing of OA No. 655/2018 for two months. We have seen that after the said order passed by the Principal Bench, more than two years have elapsed and still the said OAs (OA No. 2134/2018 and OA No. 2275/2018) are pending for adjudication before the Principal Bench. It is also seen that OA No. 2134/2018 is scheduled to be listed on 22.09.2022 and OA No. 2275/2018 is scheduled to be listed on 17.08.2022 before the Principal Bench of this Tribunal. It is also observed that the Principal Bench has deferred the hearing of the present OA for two months only and there is no indication that the present matter be kept pending till the decision in batch of OAs pending before the Principal Bench. In view of the above position, we are of the view that no purpose would be served if the present matter is kept pending any further. Therefore, in the interest of justice, the present matter is finally heard on 18.04.2022, and for that a request was also made on behalf of the applicant herein. 11 OA No. 655/2018
7. Coming to Clause 15 of the Notification dated 19th April, 2018, which has provided that all disputes arising out of the process shall fall under jurisdiction of courts/tribunals at New Delhi. The applicant stated that the subject matter of this O.A. is within the jurisdiction of this Bench of the Tribunal as per provisions contained under Rule 6 of the Central Administrative Tribunal (Procedure) Rues, 1987. Rule 6 of the Central Administrative Tribunal (Procedure) Rues, 1987, reads as under:
"[6. Place of filing applications.-- (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction--
(i) the applicant is posted for the time being, or
(ii) the cause of action, wholly or in part, has arisen:
Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.
(2) Notwithstanding anything contained in sub-rule (1) persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application]."12 OA No. 655/2018
It is seen that while filing the present O.A., the applicant was posted as Supervisor, CPC, PLI, GPO at Jaipur, therefore, the applicant had liberty to file this application before the Registrar of the Bench, i.e. Jaipur Bench, within the jurisdiction where the applicant was posted, as per Rule 6(1)(i) of the Central Administrative Tribunal (Procedure) Rues, 1987. Therefore, this Bench of the Tribunal has jurisdiction to try and entertain the present Original Application.
8. The factual matrix of the case is that the applicant with 60% permanent disability (PH) was appointed on the post of Postal Assistant under OC/PH quota vide order dated 14.03.2000 in the Department of Posts. Pursuance to the Notification dated 19.04.2018 regarding LDCE for recruitment to the AAO Cadre of IP & TAFS, Group 'B' for the year 2018-19 and those satisfying the eligibility conditions as mentioned in the Recruitment Rules upto 21st May 2018, applicant submitted his application form to the controlling authority/Head of Division on 14.05.2018 under the General/Physically Handicapped category. Respondents have advertised total 1010 posts and among these posts, 777 posts were reserved for 13 OA No. 655/2018 General category, 151 posts were reserved for SC category, 82 posts were reserved for ST category, but no posts were reserved for physically challenged persons. In the said notification, it has been mentioned that the number of vacancies mentioned above is not final and is subject to change. Reservation will be given effect as per Government of India policy.
9. The provisions under Sections 33 and 34 of the Rights of Persons with Disabilities Act, 2016, read as under:-
"33. Identification of posts for reservation.- The appropriate Government shall--
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with
representation of persons with
benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years.
34. Reservation. - (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and 14 OA No. 655/2018
(c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst
persons under clauses (a) to (d)
including deaf-blindness in the posts
identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may 15 OA No. 655/2018 be interchanged among the five categories with the prior approval of the appropriate Government.
(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit."
10. It is the claim of the applicant that as he belongs to PH/OH category with one arm and belongs to category of disabled persons, thus, as per Section 33 and 34 of the Act of 2016, he is entitled for reservation under PH/OH category. Though he has acquired more than 40% marks in each subject, his name has not been included in the merit list issued vide letter dated 01.10.2018.
11. On the other hand, respondents have relied upon para 2.1 and 6.2 of Office Memorandum No. 36035/02/2017-Estt (Res) dated 15th January, 2018 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, New Delhi, which read as under:-
"2. QUANTUM OF RESERVATION xxxxx 2.1 In case of direct recruitment, four per cent of the total number of vacancies to be filled up by 16 OA No. 655/2018 direct recruitment, in the cadre strength in each group of posts i.e. Groups A, B and C shall be reserved for persons with benchmark disabilities.
6. COMPUTATION OF NUMBER OF POSTS TO BE RESERVED:
xxxxx 6.2 Reservation for persons with benchmark 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 the cadre in all the Group 'A' posts or Group 'B' posts respectively, and the computation of total vacancies shall include vacancies arising in the identified and non-identified category of posts."
12. Coming to the Schedule of Recruitment Rules of AAO-2018, which is mandatory, the mode of promotion as prescribed in Column 10 is "by promotion failing which by deputation failing both by direct recruitment." Further Column 11 of ibid schedule described promotion as "departmental candidates who have passed the subordinate Accounts Service Examination or equivalent examination conducted by Department of Posts and Telecommunications or Competent Authority specified by the Department."
13. Thus, as per the stand of the respondents, the ibid reservation percentage for disabilities are applicable to 17 OA No. 655/2018 induction through direct recruitment only. Respondents state that the present case is only a case of promotion through Departmental examination wherein the ibid orders are not applicable. Therefore, the respondents do not agree with the arguments of the applicant that there should be reservation for physically handicapped persons in LDCE-2018 for recruitment of AAO in DoP and DoT. They also stick to the stand that as the reservations have been given as per Government of India policy, applicant has no case and that its submissions are baseless and meritless.
14. We do not agree with the stand of the respondents as we are in agreement with the judgment of the Hon'ble Apex Court passed in the case of Rajeev Kumar Gupta & Ors. vs. Union of India & Ors., reported in (2016) 13 SCC 153 : AIR 2016 SC 3228, relied upon by the applicant, wherein the Hon'ble Apex Court in para 13 and 24 has observed as follows:-
"13. For some of these IDENTIFIED POSTS in Group A and Group B, the mode of recruitment is only through promotions. The purpose underlying the statutory exercise of identification under Section 32 of the 1995 Act would be negated if reservation is denied to those IDENTIFIED POSTS by stipulating that either all or some of such posts are to be filled up only 18 OA No. 655/2018 through the mode of promotion. It is demonstrated before us that PWD as a class are disentitled to some of the IDENTIFIED POSTS in Groups A and Group B because of the impugned memoranda and the relevant regulations, under which the only mode of appointment to those IDENTIFIED POSTS is through promotion. Once posts are identified under Section 32, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. It would be a device to defraud PWD of the statutory benefit under Section 33 of the 1995 Act.
24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post."
It is relevant to note that the provisions under Sections 33 and 34 of the Act of 2016 are para materia to the provisions under Sections 32 and 33 of the Act of 1995.
15. We are also in agreement with the judgment of the Hon'ble Apex Court passed in the case of Siddaraju vs. State of Karnataka & Ors., (Civil Appeal No. 1567/2017), decided on 14-15 January 19 OA No. 655/2018 2020, relied upon by the applicant, wherein the Hon'ble Apex Court has considered the judgment passed in the cases of Rajeev Kumar Gupta & Ors. vs. Union of India & Ors., (2016) 13 SCC 153, Union of India & Anr. vs. National Federation of the Blind & Ors., (2013) 10 SCC 772, National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) SCALE 611, and has observed at para 13 of the judgment that the case is to be governed by the three decisions of the Court outlined above, which judgments have to be followed by the Union of India and the States.
16. We have also considered the judgment of the Hon'ble Supreme Court passed in the case of All India Association of Postal Supervisors (GL) & Anr. vs. Union of India & Ors. [Special Leave to Appeal (C) No. 12037/2020] decided on 22.01.2021, relied upon by the respondents, wherein the Hon'ble Apex Court has dismissed the Special Leave Petition and refused to interfere with the impugned order. It is the case of the respondents that in the said SLP, various aspects like the validity and propriety of the Gazette Notification dated 02.04.2018 (Recruitment Rules), examination notification dated 19.04.2018 and 20 OA No. 655/2018 quashing of the OM dated 01.10.2018 (Result of LDCE Exam 2018 for recruitment of AAO through LDCE, 2018) along with the issue of not allowing HSG-II level-6 and above Group 'B' in the AAO LDCE 2018 were also under challenge. Relying on the said judgment, respondents state that the present O.A. has become infructuous and deserves to be dismissed.
17. We have seen that the Hon'ble Apex Court in the case of Rajeev Kumar Gupta (supra) has held that once a post is identified as suitable for being filled up by the persons with disabilities, it must be reserved for persons with disabilities irrespective of the mode of recruitment adopted by the State for filling up of the said post, whether by direct recruitment or by promotion. We have also seen that the Hon'ble Apex Court has laid down law in the said matter that once posts are identified under Section 32, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. The same view has also been taken by the Hon'ble Supreme Court in the case of Siddaraju (supra).
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18. The Hon'ble Supreme Court in the case of Union of India & Anr. vs. National Federation of the Blind & Ors. (supra), has held as under:-
"49) Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.
50) The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today.
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."
The Hon'ble Supreme Court in the case of National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training 22 OA No. 655/2018 (supra), in para 10 of which para 51 of the earlier judgment was clarified as follows: -
"10. Para 51 of the order on which reliance has been placed by Shri Rungta must be viewed in the context of the questions arising for answer before the Court i.e. the manner of computation of vacancies in case of Groups A, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in paragraph 51 of the Courts' order as aforesaid."
19. We are also in agreement with the judgment passed by the Hon'ble Apex Court in the case of State of Kerala & Ors. vs. Leesamma Joseph, (Civil Appeal No. 59 of 2021), decided on 28th June, 2021, relied upon by the applicant. The Hon'ble Apex Court in the case of Leesamma Joseph (supra), at para 29 and 30 has held as under: -
"29. We are of the view that the course of action followed by the High Court in the impugned order is salutary and does not call for any interference. We have also answered various questions which have arisen in the present proceedings assisted by learned Amicus Curiae. In fact, what seems to emerge is that the appellant-State has not implemented the judgment of this Court in Rajeev Kumar Gupta's and Siddaraju's cases (supra). Thus, we consider it appropriate to issue directions to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. We are making it time bound so that the mandate of 23 OA No. 655/2018 the Act is not again frustrated by making Section 32 as an excuse for not having identified the post.
30. We may also note that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. The view aforesaid was required to be propounded as a large number of cases may still arise in the context of the 1995 Act."
20. On the other hand, the judgment of the Hon'ble Supreme Court passed in the case of All India Association of Postal Supervisors (GL) (supra), relied upon by the respondents, cannot be applied to the present case as facts of the said case has nothing to do with the present issue in hand as the same does not deal with the issue of granting reservation to physically challenged persons. The issue in the case referred by respondents pertains to persons belonging to Level-6 in Group 'B' in pay scale of Rs. 35400- 112400/- whether they can be denied opportunity to appear in examination when Recruitment Rules permit them to appear.
21. Coming to the grounds raised by the applicant, we find that the same are sustainable on the basis of the law laid down by the Hon'ble Apex Court in the cases of Rajeev Kumar Gupta (supra), National 24 OA No. 655/2018 Federation of the Blind & Ors. (supra), Siddaraju (supra) and Leesamma Joseph (supra) on the said issue wherein, it is clear that the respondents are bound to provide reservation to the benchmark disabled persons in the selection of AAO cadre of IP & TAFS (Group 'B') by modifying the merit list issued vide letter dated 01.10.2018. Also as per the provisions of the Rights of Persons with Disabilities Act, 2016, applicant is entitled to get reservation in selection of AAO.
22. In view of the discussions and observations made herein-above, as the action of the respondents is illegal and arbitrary, the respondents are directed to identify and extend 04% reservation to the benchmark disabled persons as per provisions of Sections 33 and 34 of the Rights of Persons with Disabilities Act, 2016 in the selection/recruitment to the post of AAO cadre of IP & TAFS (Group 'B') for the year 2018-19 in pursuance to the Notification dated 19.04.2018. Thereafter, the respondents shall consider the case of such benchmark disabled persons including the applicant as per rules and procedure. If the applicant is found otherwise suitable then the merit list issued vide letter dated 01.10.2018 be 25 OA No. 655/2018 modified and the applicant be appointed /promoted on the post of AAO cadre of IP & TAFS (Group 'B') for the year 2018-19.
23. With these observations and directions, the present Original Application is disposed of. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/