Central Administrative Tribunal - Delhi
Shri Siddharth Prakash Rastogi S/O Shri ... vs The Secretary Personnel, Union Of India ... on 30 March, 2007
ORDER Mukesh Kumar Gupta, Member (J)
1. Validity of Office Memorandum dated 1st March, 2001 is assailed in present OA. Applicant also seeks direction to respondents to consider him for promotion to the post PGT against the quota for blind in terms of order dated 18th July, 2000 passed by this Tribunal in OA No. 1807/1999.
2. Admitted facts are that applicant, a disabled blind, was appointed as TGT (History) in April, 1992. National Federation for the Blind and Anr. TGT filed OA No. 1807/1999 seeking quashing of all orders not continuing reservation to persons with disabilities in promotion from TGT to PGT/Lecturers to the extent of 3% distributed to the extent of 1% each for persons with visual impairment, hearing impairment and persons with locomotor disabilities in terms of Section 33 of The Persons with Disabilities (Equal Opportunities, Full Participation and Protection of Rights) Act, 1995. Said OA was disposed of vide order dated 19th July, 2000 with following observations:
8. This OA is therefore disposed of with a direction to respondents to consider the claim of applicants for providing reservation in promotions from TGTs to PGTs/Lecturer to the extent of 3% distributed to the extent of 1% each for persons with visual impairment, hearing impairment and locomotor disabilities in terms of the judgment order dated 24.12.99 in aforementioned case No. 37/99 and pass appropriate orders in this regard in accordance with law, rules and instructions as expeditiously as possible and preferably within 4 months from this date of receipt of a copy of this order. No costs.
Aforesaid order had also noticed that the issue was examined by Chief Commissioner for Disabilities in case No. 37/99 (Mr. J.L. Kaul v. Services III Deptt., Govt. of NCT of Delhi and Ors.) wherein, inter alia, it was held:
Therefore, in order to maintain elegant of reserving at least 3% posts in every establishment, for persons with disabilities, it is necessary that irrespective of method of appointment such as direct recruitment, promotion etc., the provision of reservation upto 3% at least for persons with disabilities, as per sec.33 of the Disabilities Act, is maintained in letter and spirit by all the establishments covered under the Act.
Vide para-6 of the order, this Tribunal held that aforementioned judgment of Chief Commissioner for Disabilities 'is a valid judicial order'. It was also noticed that nothing had been shown to the Tribunal to establish that aforesaid judicial order dated 24.12.1999 had been stayed, modified or set aside by a court of competent jurisdiction. In the circumstances, it was held that said order is binding on respondents, viz. Government of NCT of Delhi and DOP&T, which was a party before it.
3. Directorate of Education, Government of NCT of Delhi, vide impugned Office Memorandum dated 1st March, 2001 in purported compliance of aforementioned judgment of this Tribunal, communicated that: 'reservation in promotion from TGT to PGT a group 'B' post cannot be given to the Physically Handicapped persons as the same is not provided as per law, rules and instructions'. It also noticed that: 'no provisions exist in the Constitution providing reservation in promotion for persons with disabilities on the lines of Article 16 (4A) of the Constitution'. Similarly, Section 33 of said Act allow reservation for persons with disabilities in direct recruitment and 'not in promotion'.
Furthermore, a Constitution Bench of Hon'ble Supreme Court in Indira Sawhney's case had held that the word 'appointment' under Article 16 (4) of the Constitution does not include promotion.
4. Applicant herein made representation addressed to respondents, pointing out, how a Govt. official could sit in judgment over a judicial order and decide not to implement it, instead of appealing in the judicial hierarchy against such order? Applicant also prayed that his grievance be redressed and be promoted under the Disabilities Scheme. Since no response was emanating, he submitted reminders dated 28.10.2005 and 27.12.2005. Vide communication dated 13.01.2006, he was directed to submit a copy of order of this Tribunal in OA No. 1807/99 for further necessary action. It is stated that on 24.1.2006, necessary compliance was made. A Contempt Petition No. 49/2006 was also filed alleging non-compliance of Tribunal's order dated 18.07.2000, which was withdrawn with liberty to institute appropriate proceedings vide order dated 02.02.2006 (Annexure P/10). In the back-drop of above, present OA has been filed.
5. Shri Krishan Mahajan, learned Counsel vehemently contended that impugned Memorandum dated 01.03.2001 violates Article 14 of the Constitution of India. Respondents' action was arbitrary and illegal. Instead of considering the direction of the Tribunal in its right perspective, a lower functionary in the Government virtually reversed the findings of judicial order. Impugned Memorandum ignores that even disabilities constitute a separate statutory class and the Office Memorandum is presumptuously ignorant and arrogant to the extent it assumes the power to change binding judgments of the Tribunal without approaching appropriate judicial forum for effectuating such changes. The legal principles of rational classification, nexus of the classification to the object(s) and all this being done in a fair, just and reasonable manner stand violated by impugned Office Memorandum. Reliance was placed on Madras High Court judgment in Mottur Hajee Abdul Rahman & Co. v. Dy. Commercial Tax Officer , wherein it had been held thus:
No officer of the Government however high or exalted he may be, can take upon himself the responsibility of judging the correctness or validity of an order of any Court and if he honestly and bona fide in the discharge of his functions feels that the order is erroneous or requires any modification, the only remedy open to him is to approach that Court by way of review of modification or a higher Court by way of appeal or otherwise. Apart from that, it is not open to him to take upon himself the responsibility of judging the order and take any action contrary to or inconsistent with the same on the basis of his own judgment. If once an officer is permitted or allowed to do any such thing, that will mean the end of the very principle of rule of law on the basis of which the entire fabric of our democratic society has been constructed.
Aforesaid law has been reiterated by Bombay High Court in Adarsh Toddy Kamgar Shakari Sanstha v. Maharashtra 1977 Mah. L.T. 508 at pages 518/520, paras 20 & 22.
6. Respondents contested the claim laid stating that on disposal of OA No. 1807/1999 vide order dated 18.07.2000, matter was taken up with DOP&T and clarification was received from them vide letter dated 08.09.2000, to the effect that no provision exists in the Constitution to provide reservation in promotion to persons with disabilities. Therefore, unless a suitable provision is inserted in the Constitution on the lines of Article 16 (4-A), reservation in promotion cannot be provided to persons with disabilities. After considering all issues, a speaking order was passed vide impugned OM dated 01.03.2001 and the National Federation of Blind was also informed. Said order is final and had not been challenged in appeal. PGT is a Group 'B' post and reservation being not applicable, he cannot be promoted. Though respondents vide reply para-3 stated that OA is hopelessly barred by time, we may note neither said plea was pressed nor it was explained as to how the OA was hopelessly barred by time, particularly when contention raised that he had made various representations and respondents sought certain information in January 2006, remains undisputed.
7. We heard learned Counsel for parties and perused the pleadings on record carefully.
8. Shri Krishan Mahajan, learned Counsel, drew our attention to Annexure R-1 communication, issued by DOP&T addressed to Secretary, Education Department, Government of NCT of Delhi & pointed out that Govt. of NCT of Delhi was advised to file an appeal in Delhi High Court against Tribunal's order dated 18.07.2000. Instead of taking legal steps, it adopted a short cut method by issuing the impugned Memorandum, which cannot be sustained in law, particularly in view of law noticed hereinabove. Learned Counsel also raised a question of greater importance to the effect that DOP&T OM dated 29.12.2005 outlined 3% reservation in case of direct recruitment to Group A, B, C and D posts for persons with disabilities of which 1% each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Similarly, sub para (ii) of the OM provides for reservation in case of promotion to Group D and Group C posts. Once reservation is applicable for all grades in direct recruit & promotion for Group C & Group D, how Group B and Group A could be left out from the purview of reservation in the given circumstances?
9. As aforementioned issue has not been urged in specific, in the pleadings, we refrain from addressing ourselves on the said issue and leave it open to adjudicate in an appropriate proceeding. However, the question remains is that whether OM dated 01.03.2001 is legally tenable or not?
10. On bestowing our careful consideration to all aspects of the matter, we may note that orders passed by the Chief Commissioner for Disabilities on 24.12.1999 has been held to be a valid judicial order wherein emphasis was laid that irrespective of method of appointment, direct recruitment or promotion, the provisions of reservation be maintained. The said order has been recognized by the Tribunal on 18.07.2000 while disposing of OA No. 1807/1999. It is not the stand of respondents that in terms of DOP&T communication dated 07.09.2000, they preferred any Writ Petition challenging either of aforesaid orders. Once such are admitted facts, we are unable to comprehend as to how a judicial order could be set at naught and over ruled by an administrative order. A judicial order can be over-ruled, modified or varied only by appellate court(s) and not by an executive functionary. In the circumstances, we have no hesitation to hold that OM dated 01.03.2001 is illegal and arbitrary and cannot be sustained in law. Accordingly impugned order is quashed and set aside with all consequential benefits. There shall be no order as to costs.