Central Administrative Tribunal - Patna
Nitu Kumari vs Postal on 29 May, 2025
1
OA. No. 051/00878/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH AT RANCHI
OA No. 051/00878 of 2018
MA No. 425/2022
Reserved on:- 21.05.2025.
Pronounced on: 29.05.2025.
CORAM
HON'BLE MR. KUMAR RAJESH CHANDRA, MEMBER [A]
HON'BLE MR RAJVEER SINGH VERMA, MEMBER [J]
1. Neetu Kumari, aged 40 yrs., w/o Ratnesh Kumar Singh,
resident of H.No.250, Road No:-2, Janak Nagar, P.O:-Hehal, & P.S:-
Pandra O.P, District:-Ranchi.
.........Applicant.
Versus
1. Union of India through Secretary, Ministry of communication,
Department of posts, Dak Bhawan, Sansad Marg, New Delhi-
110001.
2. The Sr. Deputy Director General of Posts, F&PA-Admin,
Department of Posts. Dak Bhawan, Sansad Marg, New Delhi-
110001.
3. The Assistant Director General (PA-A), Department of Posts. Dak
Bhawan, Sansad Marg, New Delhi-110001.
4. The Chief Postmaster General, Jharkhand Circle, Department of
Posts, P.O.-Hinoo, P.S.-Doranda, District-Ranchi-834002.
5. The Sr. Superintendent of Post Store Depot, Department of Posts,
P.O.-Hehal, District-Ranchi-834005.
` ........Respondents.
For Applicant:- Shri A. Khan.
For Respondents:-Shri Rajendra Krishna with Shri Amit Sinha.
ORDER
PER:- Rajveer Singh Verma, MEMBER [J]
1. The instant OA has been filed by the applicant for the following relief:-
"(i) For direction upon the respondents to declare the result of the applicant with merit list under physical handicapped quota for the post of Assistant Account Officer(AAO) under Limited Department Competitive Examination (LDCE), 2018 which was conducted on 5th to 8th July 2018.2
OA. No. 051/00878/2018
(ii) To direct the respondents to grant promotion to the applicant as Assistant Account Officer w.e.f 1.10.18 with all consequential benefits.
(iii) Any other order/s, direction/s as Your Lordships may deem fit & proper in the interest of justice."
2. The brief facts of the case of the applicant as narrated in the OA are that:-
i. That applicant was initially appointed as postal assistant on 16.5.2006 in the scale of Rs.38,100/-.
ii. That a notification dated 19.4.18 was issued for the conduction of examination of Assistant Account Officer Cadre under Limited Departmental Competitive Examination (LDCE) for total no. of 1010 vacancies. In the said notification dated 19.4.18 in column-6 there was also a mention for additional category of "PH". The applicant applied the said examination by submitting the prescribed Performa under general category with additional category of physical handicapped quota on 07.05.2018. Admit card was issued and applicant appeared in the said examination held from 5th July-8th July, 2018.
iii. That it is also stated that as per DOPT OM No.36035/7/95 Estt. (SCT), (Annexure-4) 3% of the total vacancies shall be reserved for physically handicapped quota in promotion which means as per notification of examination of AAO, the total no of the vacancies has been declared as 1010 & 3% of the said vacancies came to as 31 no. of posts reserved for physical handicapped quota. It is also stated that as per gazette notification recruitment rules circulated on 02.04.2018, it is evident that there shall not 3 OA. No. 051/00878/2018 be any effect to the incumbents who are getting relaxation as per government notification issued time to time. iv. It is also stated that by O.M dated 15.1.18, the details of the reservation for the persons with bench mark disabilities also circulated in which the quantum of reservation also comes wherein case of the applicant falls & the case of the applicant deserved to be considered for the post of AAO under physical handicapped quota & also enhanced the percentage of handicapped quota from 3% to 4% which means the vacancy position shall be 41.
v. The result of the said LDCE-2018 was published on 01.10.2018 and 949 candidates in all categories were declared successful ignoring the physical handicapped quota.
vi. That being not getting result under "PH" quota, applicant submitted her representation on 05.10.2018 before respondent no.1 with prayer to declare her result under "PH" quota in the LDCE quota of AAO examination 2018 by annexing the copy of the disability certificate of 50% handicapped & the application form in which she has marked the "PH quota". She again submitter representation on 08.10.2018 before respondent no.5 which was forwarded to respondent no.4 vide letter dated 08.10.2018. But no action was taken till date. It is the contention of the applicant that respondent authorities have overlooked the 4 OA. No. 051/00878/2018 reservation policy for persons with disabilities to Group "B" posts. She prays to allow the OA.
3. Respondents have filed WS wherein they have stated that:-
1. That applicant has raised the issue relating to non-inclusion of provision for reservation for physically handicapped employees in the LDCE Examination notification dated 19.04.2018. In this regard, instructions were issued by Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training vide OM dated 15.01.2018 with enactment of "THE RIGHT OF PERSONS WITH DISABILITIES ACT, 2016 from 19th April 2017 and notification of "THE RIGHTS OF PERSONS WITH DISABILITIES RULES, 2017 on 15th June 2017.
2. That it is stated that as per Schedule of Recruitment Rules of AAO-2018, which is statutory, 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 the 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."
3. It is also stated that as per above orders of DoPT the reservation percentage for disabilities are applicable to inducting through 5 OA. No. 051/00878/2018 direct recruitment only. Since, in the present case it is only a case of promotion through the department examination this orders are not applicable. Therefore, the claim of the applicant that there should be reservation for physically handicapped employees in the LDCE-2018 for recruitment of AAO in DoP and DoT is not correct.
4. The respondents also disputed the issue of jurisdiction and submitted that this matter comes under the jurisdiction of Tribunal at New Delhi.
5. It is submitted that the DoP&T OM No. 36035/7/95- Estt. (SCT) dated 18th February 1997, mentioned in the OA is with reference to DoP&T OM No. 36035/8/89- Estt. (SCT) dated 20.11.1989, wherein the manner of calculating the vacancies under 3% reservations in the physically handicapped for the Group 'C' & 'D' cadre was elaborated. In a nut shell the OM dated 18.2.1997 is to be read with the OM dated 20.11.1989.
DOP&T OM dated 20.11.1989 has specifically mentioned that reservation for the physically handicapped in the posts filled by promotion for Group 'D' and Group 'C' posts. All the earlier orders issued by the nodal ministry on the subject were superseded by DoP&T OM No. 36035/3/2004- Estt(Res) dated 29 December 2005 thereby mentioning the quantum of reservation under Para 2 (i) & (ii) for the relevant cadres under DR and promotion quota wherein also vide Para 14 6 OA. No. 051/00878/2018 (computation of reservation) the same for Group "B" cadre was restricted to vacancies occurring in direct recruitment quota in all the identified posts in the Establishment whereas vide Para 13 the same is for Direct Recruitment as well as promotional posts in respect of Group 'C' and Group 'D'. Thus, the argument made by the applicant that there was reservation for Group 'B' cadre in the promotion post is not correct since the OMs referred to by the applicant was for reservation of Group 'C' and 'D' cadre only and not for the Group 'B' cadre.
6. Therefore, the claim of the applicant that there should be reservation for physically handicapped employees in the LDCE- 2018 for recruitment of AAO (Group 'B' Gazetted) in the Dop and DoT is not correct and the DoP&T the nodal authority on the matter OM No. 36035/02/2017-Estt(Res) dated 15.01.2018 the reservation for disabilities are applicable to inducting through direct recruitment only in case of Group B cadre and not for promotion through departmental examination to the cadre of Assistant Accounts Officer, Group 'B'.
4. Heard the parties and perused the records and also considered the submissions made by the rival parties.
5. The rights of persons with Disabilities Act, 2016 came in force from 19th April 2017 and notification of The Right of Persons with Disabilities Rules 2017 was issued on 15th June 2017, in line with the provisions made therein regarding reservation for Persons with Bench 7 OA. No. 051/00878/2018 Mark Disabilities, the DoPT has issued an OM dated 15th January, 2018 on the subject: Reservation for the Persons with Bench Mark Disability. The same is self-explanatory.
6. The Hon'ble Supreme Court in the case of Rajeev Kumar Gupta and others Vs Union of India & others (2016) 13 SCC 153 has held as under:-
"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.
25. In the light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three per cent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed."
7. The Hon'ble Supreme Court in National Federation of Blind Vs Sanjay Kothari, Secretary, Department of Personnel and Training, 2015 (9) Scale 611 arrived at following conclusion:-
(i) "8. The contention of the learned Attorney General was that except for sub-section 2 of Section 47, there was no other 8 OA. No. 051/00878/2018 provision under the Disabilities Act dealing with the promotions and, therefore, on the strength of sub-section 2 of Section 47 of the Disabilities Act, it cannot be contended that the Act provides for reservation in the matter of promotion. In paragraphs 9 and 10 of the judgment and order dated 1st September, 2015, the Apex Court has dealt with issue of reservation in promotion. In paragraph 10 of the judgment and order dated 1st September, 2015, the Apex Court has explained paragraph 51 of the earlier judgment and order dated 8th October, 2013 by observing that what is observed in paragraph 51 is about the manner of computation of vacancies in case of all the Groups viz. A, B, C and D posts. That is the reason why the Apex Court declined to initiate any action for contempt on the basis of allegations that there is no provision made for the reservation of persons with disabilities in promotion. In terms the Apex Court observed that what is held in] paragraph 51 of the judgment and order dated 8th October, 2013 cannot be construed to mean that there is a direction issued to provide for the reservation for the persons with disabilities even in the promotional posts.
(ii) In view of the clarification issued by the Apex Court under the order dated 1st September, 2015 in Contempt Petition (Civil) No. 499 of 2014, now the directions contained in paragraph 13 of the judgment and order dated 4th December, 2013 cannot be implemented insofar as the same deal with giving benefit of reservation to the persons with disabilities in the matter of promotion to the posts in the Indian Administrative Service by applying the Office Memorandum dated 29th December, 2005. Consequently, the High Court held that no action can be initiated in the contempt petition on the ground that reservation had not been provided in the matter of 9 OA. No. 051/00878/2018 promotion. We may hasten to add that this is not a correct reading of the law laid down by this Court. National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 was a judgment in a contempt petition in which the contention taken up by the petitioner was repelled by stating that para 51 of the 2013 judgment has held that the manner of identification of posts of all groups must be uniform and nothing beyond. After the declaration of the law in Rajeev Kumar Gupta & Others v.Union of India & Others (2016) 13 SCC 153 it is now clear beyond doubt that the O.M. of 2005 cannot be given effect to when it is in the teeth of the 2016 judgment. On the basis of this judgment. the impugned judgment is set aside and the contempt petition is restored to the file. The petition be disposed of on merits. The appeal is disposed of accordingly."
8. The Hon'ble Supreme Court judgment dated 14th January 2020 passed in Review Petition No. 36/2017 in Civil Appeal No. 5389 of 2017 in the case of Siddaraju Vs. State of Karnataka centers on the issue of reservation in promotions for persons with Disabilities (CPWs) and addressed the question of whether PWDs have the right to reservation in promotions under Article 16(4) of the Constitution of India. The Hon'ble Court affirmed the right of PWDs to reservation in promotions, high lighting the obligation of Governments to implement such policies. Further the Hon'ble Supreme Court in its order dated 28.09.2021 passed in Civil Appeal No. 1561/2017 in Siddaraju Vs. State of Karnataka 10 OA. No. 051/00878/2018 directed the Government to issue instructions on "Reservation in Promotion" as provided in Section 34 of the Act of 2016.
9. DoPT vide its OM No. 36012/1/2020-Estt (Rest-11) dated 17th May 2022 has already issued instructions on the subject:
Reservation in promotion to Persons with Bench Mark Disabilities. The same are self-explanatory.
10. It is relevant that the Department of Post, Ministry of Communications have not taken into consideration the statutory provisions of the Act of 2016, DopT's OM as mentioned above and the Hon'ble Supreme Court's judgment with respect to reservation in favour of PWB in promotion while issuance of notification/Result of Limited Departmental Competitive Examination for Promotion to the Cadre of Assistant Accounts Officer (LDCE 2018) for the reasons best known to the Department of Posts.
11. In para 7 of the WS, the respondents stated that:-
"That the department has sought for application for LDCE-2018 vide OM dated 19th April 2018 specifically mentioning the categories under the Para 6 of the ibid OM as General, SC and ST. There was neither any mention of category of vacancies other than the same mentioned in Para 6 of the OM dated 19th April 2018. Further, the qualifying marks are also specifically mentioned in Para 4 of the ibid OM as for general category and SC & ST category candidates. Thus, the application of the applicant was admitted under the General Category candidate."11
OA. No. 051/00878/2018
12. No reply to the representations of the applicant was ever given by the respondents.
13. From the above discussions, we have arrived on a conclusion that the respondents have committed an error by not providing reservation in LDCE 2018 in favour of PWDs as they have not followed the relevant provision of act of 2016 as well as the instructions issued by DoPT from time to time on the subject and also violated the law declared by the Hon'ble Supreme Court in catena of cases.
14. In view of above the OA is disposed of with following directions to the respondents:-
(i) To provide adequate reservation on the post of LDCE-2018 to PWDs in consultation with DoPT, M/O Social Justice & Empowerment so that statutory rights of the persons with Disabilities to be accorded to them as mandated under the provisions of the Rights of Persons with Disabilities Act, 2016 and the Rules 2017 on the subject including the instructions issued by the DoPT and to implement the directions of Hon'ble Supreme Court passed in catena of judgment on this issue.
(ii) After taking an administrative decision on the issue of providing reservation in promotion in LDCE 2018 in respect to PWDs, a sympathetic consideration need to be given to provide due benefit to the applicant.12
OA. No. 051/00878/2018
(iii) This order shall be implemented by the respondents within 6 months of receipt of the copy of this order.
15. No order as to costs.
(Rajveer Singh Verma ) (Kumar Rajesh Chandra)
Member (J) Member (A)
bp/-