Jharkhand High Court
Vijay Kumar vs Union Of India (Uoi) Through Director ... on 28 November, 2007
Equivalent citations: 2008(56)BLJR968, [2008(2)JCR200(JHR)], 2008 LAB. I. C. (NOC) 589 (JHAR.) = 2008 (1) AIR JHAR R 790, (2008) 63 ALLINDCAS 626 (JHA) 2008 (1) AIR JHAR R 790, 2008 (1) AIR JHAR R 790
Author: M. Karpaga Vinayagam
Bench: M. Karpaga Vinayagam
JUDGMENT M. Karpaga Vinayagam, C.J.
Page 0968
1. Vijay Kumar, the petitioner herein, who was appointed as Assistant (General) in the Central Mining Research Station in handicapped quota, sent a representation on 20.09.2002 seeking for the promotion as a Section Officer (General) in the reservation seat allotted to handicapped quota. The authorities-respondents rejected the claim by the order dated 20.10.2003 on the ground that the reservation quota for handicapped would not apply in promotions to Group 'A' and Group 'B' Page 0969 posts. Aggrieved by this, the petitioner filed O.A. No. 370 of 2003 before the Central Administrative Tribunal, which, in turn, dismissed the same on 14.02.2006. Hence, this writ petition.
2. In this writ petition, the petitioner has asked for two prayers:
(i) To set aside the order dated 14.02.2006 passed by the Central Administrative Tribunal dismissing his application claiming for promotion;
(ii) To issue a direction to the respondents to reconsider the case of the petitioner for promotion to the post of Section Officer (General) under physically handicapped quota with effect from 1998.
3. The brief facts, which are required for disposal of this writ petition, are as follows:
(i) The petitioner is a physically handicapped person.
(ii) An advertisement was issued on 11.04.1987 inviting the application for the post of Assistant (General) in the Central Mining Research Station.
(iii) The petitioner applied for the same. He attended the interview. The Medical Board granted him a certificate declaring him to be a handicapped.
(iv) On that basis, by the letter dated 28.11.1988, the petitioner was appointed as Assistant (General) in the Central Mining Research Station.
(v) He joined duty on 26.04.1989.
(vi) On 16.01.1998 the Government of India issued a Corrigendum intimating the departments that the policy of reservation for Scheduled Casts/Scheduled Tribes including physically handicapped is applicable to all grades of services.
(vii) On 24.08.1998 also the Department of Personnel and Training clarified the procedure for reservation policy. Despite this, petitioner being handicapped was not considered for promotion.
(viii) The petitioner filed several representations before the authorities requesting them to place his case before the Departmental Promotion Committee to consider his case for due promotion on the quota of physically handicapped.
(ix) On 20.12.2001, the petitioner received a letter to the effect that his case is being considered by the duly constituted committee. However, no step was taken to promote him.
(x) Again, on 20.09.2002, petitioner sent a representation reminding for his due promotion on reservation quota. There was no response. Therefore, the petitioner moved before the Central Administrative Tribunal in O.A. No. 176 of 2003 for the necessary reliefs.
(xi) By ah order dated 06.07.2003 the Tribunal directed the respondents to look into the matter and dispose of the pending representation dated 20.09.2002 sent by the petitioner by passing a speaking order in accordance with law.
(xii) As directed, the petitioner filed a detailed representation along with a copy of the order before the respondents.
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(xiii) Thereafter the petitioner received the impugned office memorandum dated 20.10.2003 passed by the respondent rejecting the prayer of the petitioner on the ground that reservation in promotions to the persons with disabilities to Group 'A' and Group 'B' posts is not admissible and it is limited to Group 'D' and Group 'C' posts alone and the post of Section Officer, which the petitioner claims to be promoted, has been classified as Group 'B' post and as such, the benefit of reservation to persons with disabilities for promotion to these posts is not admissible.
(xiv) Being aggrieved by this order, the petitioner filed a petition in O.A. No. 370 of 2003 before the Central Administrative Tribunal for quashing the said order dated 20.10.2003 passed by the authorities rejecting his claim and also for a direction to the respondents to reconsider the case of the petitioner for promotion to the post of Section Officer (General) in physically handicapped quota with effect from 1998.
(xv) This case was contested by the respondents before the Tribunal contending that the post of Section Officer, to which the claim has been made for promotion, has been classified as Group 'B' post and, as such, the benefit of reservation to the persons with physical disabilities to the said post is not admissible.
(xvi) Rejecting the case of the petitioner, the Tribunal upheld the contention of the respondents and gave a finding that the petitioner is not entitled for promotion as the post, he claimed for promotion, is in the Group 'B' and the reservation policy would apply 10 Group 'C' and Group 'D' posts alone and not to Group 'A' and Group 'B' posts.
(xvii) Aggrieved by that the petitioner has filed this writ petition.
4. Mrs. Ritu Kumar, learned Counsel for the petitioner would make the following contentions:
The petitioner has been claiming the benefit of reservation in promotion as per Corrigendum dated 16.01.1998, which prescribes for grant of benefit of reservation in promotion to the physically handicapped persons in all groups of services where element of direct recruitment does not exceed 75%. The petitioner has been fully eligible for being promoted to the next higher post of Section Officer. The finding given by the Central Administrative Tribunal relying upon the office memorandum dated 05.11.2001 is wrong since the petitioner claims for benefit of reservation in promotion as per Corrigendum dated 16.01.1998 which prescribes for grant of benefit of reservation in promotion to physically handicapped persons in all groups of services including Group 'C' and Group 'D'. If the office memorandum dated 16.01.1998 was meant for only Group 'A' and Group 'B' posts, there was no need for making the reservation for promotion to all grades of services as mentioned in office memorandum dated 16.01.1998. The office memorandum dated 05.11.2001 cannot be made applicable to the case of the petitioner for the reason that at the relevant time, the same was not existent, i.e., in the year 1998 when the petitioner had completed nine years of service on the post of Assistant. Therefore, petitioner is entitled for the reliefs sought for by him.
Page 0971
5. The reply by Dr. Jay Prakash Gupta, the counsel appearing for the respondents is as follows:
The petitioner is not entitled for any relief in view of the fact that as per the classification of civil posts the post of Assistant (General) Grade I in the pay scale of Rs. 5500-9000 and the post of Section Officer (General) in the pay scale of Rs. 6500-10000 has been classified as Group 'B' post. According to the office memorandum dated 05.11.2001 in the case for promotion reservations are applicable only when promotion's are made in the Group 'C' and Group 'D' posts and there is no reservation in promotion when promotions are made within Group 'A' and Group 'B' posts. Admittedly, the petitioner wants to claim promotion among the Group 'B' posts. The office memorandum dated 16.01.1998 is only a corrigendum giving a modification to the office memorandum dated 18.02.1997 and 20.11.1989. The words 'all grades' contained in office memorandum dated 16.01.1998 mean Group 'C' and Group 'D' posts only as given in original Office memorandum dated 20.11.1989. None of the circulars provide that reservation is admissible in promotion for Group 'A' and Group 'B' posts also. Therefore, the order passed by the Tribunal is perfectly justified.
6. We have carefully considered the submissions made by the counsel for the parties.
7. The main point urged by the counsel for the petitioner is that the reservation in promotion is permissible within all groups namely 'A', 'B', 'C' and 'D' groups in view of the corrigendum dated 16.01.1998. According to the counsel for the respondents, the corrigendum dated 16.01.1998 is only modification to the earlier circular on certain respects, and it did not include the Group 'A' and Group 'B' posts providing for reservation in promotions to those posts. Having considered these rival contentions, the Tribunal gave a finding that no material is placed to show that the reservation in the promotions is permissible in Group 'B' also, the petitioner is not entitled to the reliefs sought for by him.
8. In the light of the above finding given by the Tribunal, it would be worthwhile to refer to the order impugned passed by the authority on 20.10.2003, which is as follows:
Council of Scientific & Industrial Research Anusandhan Bhavan, Rafi Marg, New Delhi - 110001.
No. 3-33(1)2001-E.1 Dated: 20th October, 2003 Office Memorandum
In pursuance of directions of the Hon'ble Central Administrative Tribunal, Patna Bench, Ranchi, in OA No. 178/2003 dated 6.7.2003, Shri Vijay Kumar, Assistant (Gen.), Central Mining Research Institute, Dhanbad is informed that his representation dated 20.9.2002 for promotion to the post of Section Officer (Gen.) under the DPC quota has been considered by the Joint Secretary (Admn.), CSIR with reference to the instructions issued fn this regard from time to time by the Department of Personnel & Training, Govt. of India.
Page 0972 As per Govt. of India instructions, reservation in promotion for persons with disabilities is limited to Group 'D' to Group 'C' posts and within Group 'C' posts. This benefit is, however, not admissible for promotions to Group 'A' and Group 'B' posts.
As per classification of civil posts decided by the Govt. of India/CSIR, the post of Assistant (Gen.) in the pay scale of Rs. 5500-9000 and the post of Section Officer (Gen.) in the pay scale of Rs. 6500-10500 in CSIR have been classified as Group 'B' posts. Therefore, the benefit of reservation to persons with disabilities for promotion to these posts is not admissible.
The representation of Shri Vijay Kumar, who is holding the post of Assistant (Gen.), for promotion to the post of Section Officer (Gen.) has been considered, by the competent authority, however, it is regretted that his request for grant of benefit of reservation of promotion to the post of Section Officer (Gen.) cannot be agreed to being not covered under the rules.
(R.S. Antil) Sr. Deputy Secretary
9. The perusal of the above order would clearly indicate that the post of Section Officer as well as Assistant (General) Grade I belongs to Group 'B', and the circulars issued by the Government of India earlier would provide for reservation in promotion for persons with disabilities which is limited to (i) within Group 'D' posts, (ii) Group 'D' to Group 'C' posts and (iii) within Group 'C' posts and this is not admissible for promotion to Group 'A' and Group 'B' posts.
10. Admittedly, the post of Assistant (General) in the pay scale of Rs. 5500-9000 and post of Section Officer (General) in the pay scale of Rs. 6500-10500 in CSIR have been classified as Group 'B' posts.
11. As pointed out by the Tribunal, no circulars provide for reservation in promotion to the Group 'A' and Group 'B' posts. The 16.01.1998 memorandum is only a corrigendum, which is a mere modification of the office memorandum dated 18.02.1997, which lays down the procedure to be adopted for effecting reservation to the physically handicapped persons in the case of promotion as provided for in office memorandum dated 20.11.1989.
12. The office memorandum dated 20.11.1989 provides for reservation in promotions to persons with disabilities when promotions are made (i) within Group 'D' posts (ii) from Group 'D' to Group 'C' and (iii) within Group 'C' posts. This is further clarified by office memorandum dated 05.11.2001.
13. According to the counsel for the petitioner, the promotion in all groups is applicable to all grades of services, means inclusive of Groups 'A', 'B', 'C' and 'D'. On the other hand, the learned Counsel for respondents submitted that this cannot be correct because the office memorandum dated 16.01.1998 is in continuation of office memorandum dated 20.11.1989, mentioning the Groups 'C' and 'D' alone. As such, there is no circular which would provide for the reservation in promotion for the handicapped persons as far as Group 'A' and Group 'B' posts are concerned. The circulars issued on 20.11.1989, Page 0973 18.02.1997, 16.01.1998 and 05.11.2001, all provide for the reservation which would apply to promotions only in cases of (a) Group 'D' posts, (b) from Group 'D' to Group 'C' and (c) within Group 'C' posts, and there is no reservation provided to the handicapped persons when the promotions are made to Group 'A' and Group 'B' posts or among the Group 'B' posts. For considering the above contention in depth, it would be necessary to quote the wordings contained in various office memorandums providing for the reservation:
(i) Let us first see office memorandum dated 05.11.2001. According to this, reservation is not applicable to Group 'A' and Group 'B' posts and it is applicable to all posts only as regards recruitment:
...While in case of direct recruitment such a reservation is available in all Groups, viz., Groups 'A', 'B', 'C' & 'D' in case of promotion, reservation is available only when promotions are made (i) within Group 'D' (ii) from Group 'D' to Group 'C' and (iii) within Group 'C' posts. There is no reservation in promotion for the persons with disabilities when promotions are made to or within Group A and Group B posts.
(ii) The office memorandum dated 18.02.1997 would prescribe the procedures to be followed for reservation to the physically handicapped in case of promotion in reference to office memorandum dated 20.11.1989. The relevant observations are as follows:
(ii) in the cases where the percentage of posts filled by Direct Recruitment is 75% or more, no reservation will be provided for any category including the physically Handicapped while filling up the posts by promotion.
(iii) The office memorandum dated 20.11.1989 introduced first time the reservation for physically handicapped in posts to be filled up by promotion applicable to Group 'C' and Group 'D' posts alone. The paragraph 1 of the above said office memorandum is as follows:
The undersigned is directed to say that the Government has under consideration a proposal to introduce reservation in favour of the physically handicapped persons in posts filled by promotion. The matter has been examined and it has been decided that when promotions are being made-
(i) Within Group 'D'
(ii) From Group 'D' to Group 'C'
(iii) Within Group 'C' Reservation will be provided for the three categories of the physically handicapped persons namely, the visually handicapped, the hearing handicapped and the orthopaedically handicapped.
The applicability of the reservation will, however, be limited to the promotions being made to those posts that are identified as being capable of being filled/held by the appropriate category of physically handicapped.
Page 0974
(iv) Another office memorandum is 04.07.1997, which modifies the office memorandum dated 18.02.1997, providing promotions for Group 'C' and Group 'D' posts alone, which is reproduced below:
The undersigned is directed to invite attention to this Department's O.M. No. 36035/7/95Estt.(SCT), dated 18.2.1997 on the above subject and to say that it has been represented before the Government that the earmarking of point Nos. 33, 67 and 100 in the prescribed register for reservation for the physically handicapped would mean that the physically handicapped candidates may have to wait for a long time to get their turn for promotion. The suggestions has been considered and it has now been decided in partial modification of the OM cited above, that the point numbers 1, 34 & 67 in cycle of 100 vacancies in the 100-point register may be earmarked for reservation for physically handicapped. The other instructions contained in the aforesaid OM remain unchanged.
2. It is also clarified that the matter of calculation of vacancies for physically handicapped shall be as laid down in the Department's OM No. 36035/8/89-Estt.(SCT) dated 20.11.1989 so far as Groups 'C' and 'D' posts are concerned.
(v) As indicated above, the office memorandum dated 16.01.1998 is only corrigendum to the office memorandum dated 18.02.1997 which the clarification to the original office memorandum dated 20.11.1989.
14. On a reading of the above office memorandums it is clear that there was never any policy or decision for reservation for physically handicapped in posts to be filled up by promotion from Group 'C' to Group 'B' or within Group 'B' or from Group 'B' to Group 'A' or within Group 'A'. This means reservation for physically handicapped candidates in posts to be filled up by promotion only within Group 'D', from Group 'D' to Group 'C' and within Group 'C' posts and not to other groups.
15. Further it is now pointed out that the petitioner has been given regular promotion by the office memorandum dated 09.10.2006 and he is now working in the promoted post. Even then, the petitioner claims promotion with effect from 1998 on the basis of the corrigendum dated 16.01.1998. This claim, in our view is not justified.
16. In view of the above reasoning, we do not find any ground to hold that the finding by the Tribunal is wrong, as in our view, it is perfectly justified.
17. This writ petition is dismissed. However, there is no order as to costs.