Central Administrative Tribunal - Chandigarh
Adarsh Kumar S/O Shri Atal Krishan ... vs State Of Haryana & Others on 20 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH.
O.A.NO.870-CH-2010 Decided on : 20.07.2012
CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (J)
Adarsh Kumar S/o Shri Atal Krishan Sharma, R/o House No. 1482/4, Sector-29B, Chandigarh.
Applicant. Versus
1. Union of India, Ministry of Finance, Income Tax Department, New Delhi through its secretary
2. Chief Commissioner of Income Tax, Northern Western Region, C.R. Building, Sector-17E, Chandigarh.
3. The Deputy Commissioner of Income Tax, Head Quarters, Vigilance, Chandigarh.
Respondents
ORDER(ORAL)
HONBLE MRS. SHYAMA DOGRA, MEMBER (J) (THIRD MEMBER)
1. In the wake of difference of opinion between two Honble Members of this Bench, the matter was referred to the third member for consideration of the following point :-
Whether the judgment rendered by a Division Bench of the Central Administrative Tribunal carries precedence over the view obtained by a Division Bench of the High Court?
2. The back ground of the case giving rise to file the Original Application is that the DoPT had issued an OM dated 20.11.1989 providing for reservation in promotion from Group C to Group B for Physically Handicapped Category employees. The applicant, a physically handicapped person, joined service as Inspector of Income Tax on 2.1.1990, consequent upon selection through the Staff Selection Commission. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, came into existence on 1.1.1996 providing for reservation for persons with disability in the posts identified for three categories of disabilities namely (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. The Government of India has issued Instructions from time to time for providing reservation for such persons.
3. The applicant herein qualified Departmental Examination for promotion to the post of Income Tax officer in 1999 and his name was mentioned at Sr. No. /Code No. 96 / 0194 as on 1.9.2000 (Annexure A-9). However, the term Physically Handicapped was not mentioned against his name in the seniority list. This prompted the applicant to file a representation dated 10.6.2010 (A-3) to the respondents to mention the category PH against his name in seniority list as on 1.9.2000 and to consider him for promotion to the post of ITO against PH quota. This representation was rejected by the respondents vide order dated 27.7.2010 (A-1) on the ground, inter-alia, that the OM dated 20.11.1989 is not applicable in promotions from Group B to Group A and that his claim is barred by the law of limitation. Quashing of this order was sought by the applicant in the Original Application and for issuance of direction to the respondents to mention relevant category i.e. Physically Handicapped against his name in seniority list (A-9) and then consider his case for promotion to the post of ITO against such category from due date.
4. The learned counsel for the applicant has placed reliance on the decisions given in Jagmohans case (Writ Petition ) No.13627-28 of 2004) decided on 7.12.2007 wherein the question as to whether 3% reservation under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 {hereinafter referred to as the 'Disability Act'} in the public employment provided in favour of the physically handicapped persons would be available to them even for promotions as well, came to be considered. It was held that reservation in promotion is applicable. It was observed that the Memorandum dated 16.1.1998 provides 100 point roster for reserved posts for physically handicapped and point No.1 is reserved for physically handicapped. OM dated 18.2.1997 issued by the Ministry of Personnel provides reservation as per roster to the physically handicapped persons in Group A and B posts and also OM dated 4.7.1997 providing roster points No. 1, 24, 67 in the cycle of 100 vacancies for 100 point roster to be reserved for physically handicapped persons. Thus, the Court held that it is clear from the above that point No. 34 and 67 in the cycle of 100 are now earmarked for reservation for physically handicapped and, thus, reservation is admissible even for Group A and B posts in promotion category and not only at the induction level. The court was of the view that this OM is brought in tune with the letter and spirit behind Section 33 of the Disability Act. On interpretation of such a provision legal position is abundantly clear. This is a benevolent measure introduced to ameliorate the sufferings of persons who are physically disabled. Such a provision is to be given the widest possible interpretation.
5. The learned counsel for the applicant further supported his contentions while citing the decision of the Honble Punjab and Haryana High Court, in the case of Viklang Sang, Haryana Vs. State of Haryana & Others, CWP No. 12741 of 2009 decided on 18.3.2010. The Court has agreed with and reiterated the view taken by the Delhi High Court in the case of Jagmohan (supra) and held that reservation in promotion is applicable. Thus, he submits that once reservation is provided in promotion, it cannot be confined to a particular group of posts. Therefore, decision of the High Court would prevail upon the decision of the co-ordinate Bench of the Tribunal.
6. The learned counsel for the respondents has placed reliance on the decision of the Principal Bench of the Tribunal in Original Application No. 1343/2009 titled B.D.S. Kharab vs Union Of India decided on 30 April, 2010, in which it has been held that reservation in promotion in Group A and B posts to physically handicapped employee is not available. It has been held that if no reservation in promotion is provided either by virtue of provisions contained in Article 16 or by any rules, orders or instructions issued on that behalf by the Government, one cannot seek such reservation from any judicial fora.
7. The defence of respondents was that judgment dated 7.12.2007 is not applicable to the case of applicant as in that case issue was for promotion from Group C to Group B posts. It was also submitted that issue as to whether reservation for PH category in promotion is restricted to Group C and D is also settled in O.A.No.494-PB-2009 titled Radhey Shyam Sharma & Ors. Vs. Union of India & Others, decided on 11.2.2011 in which it was held that as per instructions, reservation for PH category is available only upto Group C posts. They thus plead that Reservation in promotion for persons with disabilities was never available in case of promotion made to Group A and Group B posts. Therefore, High Court judgment has no precedence over the judgment of the Principal Bench of this Tribunal.
8. The Honble Mr. Justice S.D. Anand, Member (J) has taken a view that decision of Delhi High Court in the case of Jagmohan (supra) being of a higher fora, has to be given preference over the view taken by the Principal Bench of C.A.T. in the case of B.D.S. Kharab (supra). However, finding that claim of applicant was rejected in 2000 and as such the Original Application has been dismissed being time barred.
9. The Honble Mrs. Promilla Issar, Member (A) while agreeing with the conclusion leading to dismissal of the O.A. on the ground of delay and laches, has disagreed with the view taken in para 8 of the order. It was observed that the reliance can be placed on the decision in the case of B.D.S. Kharab (supra) on the ground that decision in this case was rendered after the decision in the case of Jagmohan (supra) and decision of Jagmohan Singh (supra) has been taken note of in the case of B.D.S. Kharab (supra). The Principal Bench has basically held that the observations made by the Division Bench of the High Court with regard to reservation in promotion for handicapped persons in Group A and B posts may not be applicable as the same were based on the earlier instructions which have since been superseded in 2005. From the records, it may, appear that no earlier instructions had provided any reservation in promotion for physically handicapped persons in Group A and B posts.
10. In the background of above facts, the question referred to me is whether the judgment rendered by a DB of the Central Administrative Tribunal carries precedence over the view recorded by the Delhi High Court. To my mind the issue involved in this case boils down to the principle of judicial discipline. In the facts and circumstances of this case, it is to be seen whether Honble Member (J) is right in holding the view taken by the Honble Delhi High Court in the case of Jagmohan Singh (supra) would prevail upon the decision of a Co-Ordinate Bench of this Tribunal or the view taken by the Honble Member (A) is a correct view?.
11. The learned counsel for the parties have vehemently argued the case before me (Third Member Bench) and put their rival claims for consideration fully supported with case law. Learned counsel for the respondents drew my attention to the office Memorandum dated 29th December, 2005 in which para 2 (ii) provides that three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direct recruitment, if any, does not exceed 75%, shall be reserved or persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision (ii) hearing, impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. He further placed reliance on decision in the case of Davinder Singh and Others Vs. State of Punjab & Others, (2010) SCC 88, in regard to ratio decidendi in which it was held that a judgment is authority for the proposition which decides and not what can logically be deduced therefrom. Similar view has been taken in Fida Hussain and Others Vs. Moradabad Development authority, (2011) 12 SCC 615, that what is based on specific facts does not constitute precedents for future cases. Only principles of law that emanates from the judgment of the Supreme Court which has aided the Court in reaching the conclusion of the problem, are binding precedents. He also cited decision rendered in the case of Union of India & Another Vs. Major Bahadur Singh, (2006) 1 SCC 368, in which it was held that Court should not placed reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. One additional or difference fact may make a world of difference between conclusions in two cases.
12. After hearing the learned counsel for the parties, I have given deep consideration to the matter. The point involved in the matter before me is with regard to judicial discipline and hierarchy of judicial decorum with respect to dictums of the courts. Lamenting the lack of judicial discipline, the Court in Official Liquidator v. Dayanand, (2008) 10 SCC 1 has held as under :-
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
13. By now it is well settled law that a precedent established by higher courts must be followed by the lower courts unless there is a good reason for departure having some distinguishing features. The doctrine of binding precedent is known as stare decisis. All subordinate courts are bound by the decisions of the High courts to which they are subordinate. The High courts can bind only those inferior courts which are within their territorial jurisdiction. In other words, the Central Administrative Tribunal, Delhi Bench is bound to follow the precedent set by the Delhi High Court. The Honble Supreme Court in the case of Indo Swiss Time Ltd. vs. Umrao AIR 1981, P&H, 213 (F.B.) has held that the authority must be considered on the basis of rationale view and logic expressed therein and not merely on fortuitous circumstances. A perusal of decision in the case of B.D.S. Kharab (supra) would show that the co-ordinate Bench of this Tribunal has recorded finding that unless there is a provision under some constitutional provision or rules or instructions, reservation for PH category in promotion cannot be done through judicial fora but in regard to decision in the case of Jagmohan Singh (supra), the High Court in the said case was dealing with a case which pertained to reservation for physically handicapped persons in Group C and D posts. But on the other hand, the Honble Delhi High Court, on the basis of instructions of DoPT duly reproduced therein, has held that there is a provision for promotion in Group A & B and that even though, instructions in that regard were in existence, the Railway Board denied reservation to handicapped persons. There was no issue with regard to reservation in promotion for physically handicapped persons in Group A and B posts.
14. No doubt, there was no such issue with regard to reservation in promotion to P.H. persons in Group A & B but the ratio decidendi of the issue can be culled out from paras 21 & 24 thereof in aforesaid case of Jag Mohan Singh (supra), being relevant are reproduced as under :
21. It is clear from the above that point No. 34 and 67 in the cycle of 100 are now earmarked for reservation for physically handicapped and, thus, reservation is admissible even for Group A & B posts in promotion category and not only at the induction level. We are of the opinion that this OM is brought in tune with the letter and spirit behind Section 33 of the Disability Act. On interpretation of such a provision legal position is abundantly clear. This is a benevolent measure introduced to ameliorate the sufferings of persons who are physically disabled. Such a provision is to be given the widest possible interpretation. The objective is to achieve the purpose for which such a provision is introduced by the Parliament.
22 & 23. xxx
24. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. - Nokes v. Doncaster Amalgamated Collieries Ltd (1940) A.C. 1014. Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, fiction or confusion into the working of the system.- Shannon Realities Ltd v. Ville de St Michel (1924) A.C. 185. [Maxwell pg. 45].
15. It is noticed that in the case of Viklang Sangh Haryana (supra), the Honble High Court has taken note of the instructions dated 29.12.2005 which were discussed in the decision rendered in Kharabs case (supra) and the court has also discussed the wide applicability of the Disability Act. Paras 11, 12, 14 and 15 of the aforesaid judgment in the case of Viklang Sangh Haryana (supra) are relevant to be quoted herein below :-
11. In the light of the above, it is evident that the purpose of the Act would be defeated by giving it the meaning adopted by the State of Haryana. It is a settled principle of law that the word ''employment'' includes promotion. The Hon'ble Supreme Court in the case of Ajit Singh and others (ii) Vs. State of Punjab and others 1999(7) SCC 209 vide para 22 has defined the word ''employment'' to include promotions within its ambit:-
''It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in matters of employment and appointment to any office under the State. The word 'employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion" based on equal opportunity and 'seniority' attached to such promotion are facets of fundamental right under Article 16(1). (Emphasis supplied).
12. Similarly in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others 2006(2) SCC 482, the Hon'ble Supreme Court again interpreted the word ''employment'' as under:-
''Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc.'' (emphasis supplied).
13. xxx
14. In view of the above position of law laid down by the Hon'ble Supreme Court, the Court must adopt a liberal interpretation which advances the achievement of the object of the Act. The interpretation which is sought to be suggested by the State for denying reservation of 3% in the promotional avenues would obviously defeat the object of the Act. This would also be contrary to the mandate of Directive Principles contained in Articles 38 and 41 of the Constitution of India which read as under:-
Article:- 38- State to secure a social order for the promotion of welfare of the people.- (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.) Article 41.- Right to work, to education and to public assistance in certain cases.- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
15. Keeping in view the findings in this judgment, the writ petition is allowed. The letter dated 23.12.2002 issued by the Under Secretary General Administration, for Chief Secretary to Government of Haryana is accordingly quashed and set aside. We also direct the respondents to keep 3% posts reserved for promotion for the disabled by giving them promotions as per directions and guidelines issued by the Ministry of Personnel dated 20.11.1989 (Annexure P-5) not later than six months from today. The petitioner shall be entitled to costs quantified at Rs. 20,000/- today.
16. It is undisputed fact that the reservation in appointment or promotion to handicapped persons were made effective after promulgation of the Disability Act, therefore, taking note of the provisions of the Disability Act, the Honble High Court in Viklang Sanghs case has held its view while making its applicability in a wider sense for the purpose of reservation in promotion irrespective of a person holding A, B or C post. In the present case, the difference of opinion has happened to be resolved of the views given by the Honble Members of the Chandigarh Bench, which falls within the territorial jurisdiction of the Punjab and Haryana High Court. Therefore, undoubtedly, the decision given by the Honble Punjab and Haryana has binding effect on this Bench to decide the case involving relevant issue in dispute in absence of any other decision either rendered by any other High Court or by the Honble Apex Court.
17. While holding this view I am fully supported with the decision of the Full Bench of the Circuit Bench at Jammu of the Chandigarh Bench of the Tribunal rendered in the case of Piran Ditta & 25 Others Vs. Union of India & Others, 2005 (1) ATJ 430. In Paras 37 & 38 thereof, controversy with regard to binding effect of judgment of Higher Court, coordinate Bench etc. have been set at rest as under :-
37. There is another way of looking at the matter. From the either end, there can be no dispute about the binding nature of the decisions of the different High Courts and of the Supreme Court. The full Bench of this Tribunal (Principal Bench) in the case of DR. A. K. DAWAR v. UNION OF INDIA & ANR O.A.NO.555/2001 decided on 16.4.2004 in unambiguous terms observed that since the Central Administrative Tribunal is an all India Tribunal, all decisions of different High Courts would bind. The Full Bench concluded :
17. Consequently, we hold :
1. that if there is a judgment of the High Court on the point having territorial jurisdiction over this Tribunal, it would be binding.
2. that if there is no decision of the High Court having territorial jurisdiction on the point involved but there is a decision of the High Court anywhere in India, this Tribunal would be bound by the decision of that High Court;
3. that if there are conflicting decisions of the High Courts including the High Court having the territorial jurisdiction, the decision of the Larger Bench would be binding, and
4. that if there are conflicting decisions of the High Courts including the one having territorial jurisdiction then following the ratio of the judgment in the case of Indian Petrochemicals Corporation Limited [(2001) 7 SCC 469] (supra) , this tribunal would be free to take its own view to accept the ruling of either of the High Court rather than expressing third point of view.
38. It is in this backdrop that since the Central Administrative Tribunal is an all India Tribunal, all decisions of different High Courts and of Supreme Court would bind.
18. In the given facts and circumstances of the case, the case law cited by the learned counsel for the respondents has no direct bearing on the issue involved in the present case, therefore, the same are distinguishable.
19. Thus, taking into account the legal and factual matrix of the case as above, I fully agree with the view taken by the Honble Member (J) in para 8 of the order under reference in which it is held that a view obtained by a High Court in judicial review challenge is entitled to constitutionally compulsive priority, as against a view obtained by the Tribunal.
20. With these observations as above, the point referred to me for adjudication is answered accordingly.
(MRS. SHYAMA DOGRA) MEMBER (J) Place : Chandigarh.
Dated: 20.07.2012 HC* 1