Punjab-Haryana High Court
Reserved On:25.03.2014 vs Central Administrative Tribunal on 16 May, 2014
Author: Arun Palli
Bench: Sanjay Kishan Kaul, Arun Palli
CWP No.18185 of 2010 & Ors. [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CWP No.18185 of 2010
Reserved on:25.03.2014
Date of Decision:16.05.2014
Tulsi Ram
... Petitioner
Versus
Central Administrative Tribunal, Chandigarh and others
... Respondents
2. CWP No.11592-CAT of 2006
Tulsi Ram
... Petitioner
Versus
Union Territory, Chandigarh and others
... Respondents
3. CWP No.12793-CAT of 2006
The Director, Transport, Union Territory, Chandigarh
... Petitioner
Versus
The Central Administrative Tribunal, Chandigarh and others
... Respondents
4. CWP No.4507 of 2011
The Divisional Manager, Chandigarh Transport Undertaking-
cum-Director Transport and another
... Petitioners
Versus
The Central Administrative Tribunal, Chandigarh and others
... Respondents
CORAM:HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present:Mr. Anil Rathee, Advocate,
for the petitioner(s) in CWP No.18185 of 2010 and
CWP No.11592-CAT of 2006;
for respondent No.2 in CWP No.12793-CAT of 2006;
for respondent No.4 in CWP No.4507 of 2011.
Rajan Kumar
2014.05.20 10:20
I attest to the accuracy and
integrity of this document
Chandigarh
CWP No.18185 of 2010 & Ors. [2]
Mr. I.P.S. Doabia, Advocate,
for the petitioners in CWP No.4507 of 2011.
Mr. Yogesh Putni, Advocate,
for respondents No.2 and 3 in CWP No.18185 of 2010
and CWP No.4507 of 2011.
Mr. Vishal Sodhi, Advocate,
for the petitioner in CWP No.12793-CAT of 2006;
for respondents No.1 to 3 in CWP No.11592-CAT of
2006; and
for respondents No.4 to 6 in CWP No.18185 of 2010.
*****
1.Whether reporters of local papers may be allowed to
see the judgment?
2.To be referred to the reporters or not?
3.Whether the judgment should be reported in the
digest?
*****
ARUN PALLI, J.
Vide this judgment, we shall decide four writ petitions bearing Nos.18185 of 2010, 12793-CAT of 2006, 11592-CAT of 2006 and 4507 of 2011. The issue involved for consideration being common in all four, the facts are being culled out from Civil Writ Petition No.18185 of 2010.
The petitioner, namely, Tulsi Ram is 100% visually handicapped by birth. He completed his Graduation and thereafter, acquired a degree of Bachelor of Education (B.Ed.) in the year 1982. The petitioner was selected for the post of Clerk against the reserved category of 'Physically Handicapped'. He was promoted to the post of Senior Assistant, on his turn, on the basis of his seniority, on 12.03.2003. He approached the Central Administrative Tribunal, Chandigarh (for short, 'the Tribunal') vide OA No.759-CH of 2003. Since his promotion as Senior Assistant Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [3] was against a general point in the roster, whereas, he being in the category of physically handicapped, ought to have been considered against a reserved point meant for the said category. The said OA was disposed of by the Tribunal, vide order dated 15.04.2004, with a direction to the respondents to take a final decision. On a consideration of the matter, the respondents passed an order dated 18.06.2004, vide which the petitioner was granted promotion w.e.f. 31.05.1988 i.e. the date on which a post of Senior Assistant reserved for a person in the physically handicapped category became available in the department. The petitioner still assailed the said order i.e. dated 18.06.2004, vide OA No.781-CH of 2004. In short, the grievance of the petitioner was that he was entitled to be considered for promotion w.e.f. 01.09.1987 rather than w.e.f. 31.05.1988. He amended his OA so as to claim promotion to the post of Senior Assistant w.e.f. 01.09.1987 and further to the post of Superintendent w.e.f. 01.09.1990 and subsequent promotions to the post of Traffic Manager and General Manager under the reserved quota. While the matter was still pending before the Tribunal, the department after issuing a show cause notice and soliciting reply of the petitioner, vide order dated 12.01.2006, withdrew even the earlier order dated 18.06.2004, vide which the petitioner was promoted as Senior Assistant w.e.f. 31.05.1988. It was clarified that his promotion as Senior Assistant w.e.f. 12.03.2003, effected vide order dated Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [4] 12.03.2003, shall continue to remain in force. The petitioner further amended his OA and assailed the order dated 12.01.2006. In nutshell, the case set out by the petitioner was that being a person from a physically handicapped category, he ought to have been considered against a reserved point between 1 to 34 in the roster. This, as so stated, was in breach of the Government instructions, as also the provisions of Persons with Disability (Equal Opportunities, Protection of Human Rights and Full Participation) Act, 1995 [for short, 'the 1995 Act']. It is averred, that the respondents in their earlier reply had admitted that the question for determination of roster point for physically handicapped persons in a block of 33 each was yet to be determined. The department arbitrarily fixed 33rd, 67th and 100th position for the category of physically handicapped. Whereas, it is the 1st, 34th & 67th vacancies, which are required to be reserved for persons from the said category.
The department filed two sets of replies, one before amendment of the OA on 04.11.2004 and the other post- amendment on 25.10.2005. In a short reply filed by the department on 04.11.2004, it was pleaded, inter alia, that the petitioner became eligible for promotion as Senior Assistant on 01.09.1987, after completion of five years of service as a Clerk. However, the first vacancy became available thereafter and was filled up on 31.05.1988 when Sh. Laxmi Narayan Yadav was Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [5] promoted. Accordingly, it was resolved to consider the petitioner for promotion w.e.f. 31.05.1988 against roster point No.3 reserved for physically handicapped persons, however, without arrears of pay till he was actually promoted to the post of Senior Assistant on his turn as per seniority w.e.f. 12.03.2003. Resultantly, the department vide order dated 18.06.2004 had promoted the petitioner against a reserved point meant for a person from the physically handicapped category.
However, when subsequently the OA was amended, the department in its reply dated 25.10.2005, pleaded, inter alia, that reservation in promotion for persons from the physically handicapped category was introduced w.e.f. 01.01.1986, however, no instructions as to which roster point is to be fixed for the persons from the said category, was never prescribed by the Ministry of Personnel, Government of India. The order dated 12.01.2006, vide which the promotion granted w.e.f. 31.05.1988 was withdrawn, was sought to be justified on the analogy that a cycle of 100 points roster was divided in three blocks of 33 each i.e. 1-33, 34-67, 68-100. The reserved point for consideration of a person from the category of physically handicapped was 33rd. The petitioner was promoted on his turn on the basis of his seniority on 12.03.2003. Roster point No.33 was filled up on 05.11.2003, when Sh. Nanak Chand was promoted as Senior Assistant from a general Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [6] category. Since the petitioner was promoted much prior to, when roster point No.33 matured, the notional promotion given to him w.e.f. 31.05.1988 was reviewed vide order dated 12.01.2006. In short, the case set out by the department was that the first roster point which could be reserved for a person in the category of physically handicapped was 33rd and the said point became available on 05.11.2003 and thus, the petitioner was not entitled to notional promotion w.e.f. 31.05.1988.
The Tribunal on a consideration of the matter and its analysis found that the department in its short reply as well as their detailed response to the amended OA sought to maintain that a roster of 100 points under the rules was not being maintained. The Tribunal repelled the said stance, as it was of the view that, if indeed that was the case, the department would not have stated that the first vacancy that became available in the cadre of Senior Assistant was assigned to Sh. Laxmi Narayan Yadav on his promotion. Not just that, roster point No.3 was stated to be reserved for a person in the category of physically handicapped and was assigned to the petitioner. The department, justified its stand by passing an order dated 18.06.2004, vide which the benefit of promotion as Senior Assistant was afforded to the petitioner w.e.f. 31.05.1988. The Tribunal also referred to the detailed reply filed by the department to the amended OA, wherein it was Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [7] admitted that even though reservation for promotion of persons from the category of physically handicapped was introduced w.e.f 01.01.1986 but no instructions regarding fixing the requisite roster points for the persons from the said category were received by the department. That being so, the Tribunal was of the view that as to how suddenly the department could fix roster point No.33 in the first block of 33 vacancies for the persons in the said category and similarly points No.67 and 100 in the other blocks. The operative part of the said order reads as thus:
"10. A perusal of the stand taken by the respondents in their short reply as well as detailed reply to the amended OA show that the respondents were not maintaining roster of 100 points as required under the rules. If that was the case, they would not have stated that the first vacancy which became available was given by promotion to Shri Laxmi Narayan Yadav and applicant was given roster point No.3 reserved for physically handicapped persons. The respondents justified their stand by passing order dated 18.6.2004 giving the benefit of promotion to the applicant w.e.f. 31.5.1988. Even in the detailed reply filed by the respondents to the amended OA, they have admitted that even though reservation for promotion of handicapped was introduced w.e.f. 1.1.1986 but till date they had no instructions Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [8] regarding fixing of roster point for the physically handicapped persons. It is not clear how suddenly they became aware that the roster point to be given to the handicapped persons in the first block was at 33 point and similarly in other blocks at 34 and 100 point respectively. It appears that when applicant claimed still further retrospective promotion with effect from 1.9.1987, on the basis of roster point for physically handicapped person, of which he became aware from the short reply of respondents dated 4.11.2004, the respondents decided to even withdraw the promotion given to the applicant w.e.f. 31.5.1988 by order dated 18.6.2004 and passed the impugned order dated 12.1.2006 (Annexure P-18). Had they been maintaining 100 point roster from the beginning and had given the applicant even 33rd point in that roster, the applicant certainly would have got promotion earlier than he got on his turn. In the absence of any instructions specifying the specific point in a block of thirty three reserved for physically handicapped person, it cannot be accepted that the reserved point is to be taken as 33rd. Under these circumstances the respondents were not justified in withdrawing the promotion given to the applicant vide orders dated 1.6.2004. Even otherwise, we find that all the case of the applicant is covered by the decision of the Apex Court in the case of Balbir Singh vs. State of H.P., (2000) 10 SCC 166 wherein it Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [9] has been held as under:-
"It is surprising to note that prior to disposal of the writ petition, the applicant was reverted allegedly on the ground that he had been promoted erroneously under a mistaken belief.
The records reveal that Government had taken a conscious decision to promote the applicant and was, therefore, not justified in reverting him allegedly on the ground of non availability of reservation.
Government cannot be permitted to blow hot and cold in the same breath inasmuch as against the writ petition, they justified appellant's promotion but when the question of appellant's promotion came, Government took the plea that appellant was promoted under mistaken belief. Under peculiar circumstances of this case appeal is allowed and order dated 2.7.1988 by which appellant was reverted, is set aside."
11. In view of the above discussion, the order dated 12.1.2006 (Annexure A-18) whereby the order dated 18.6.2004 promoting the applicant w.e.f. 31.5.1988 has been withdrawn, is quashed. The earlier orders dated 18.6.2004 (Annexure A-10) passed by the respondents shall continue to remain in force. However, claim of the applicant for Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [10] grant of financial benefits with effect from the date of notional promotion or promotion w.e.f.
a date prior to the date as mentioned in Annexure A-10, is rejected as not tenable under the law. His claim for further promotions may be considered by the respondents under the rules.
12. O.A. stands disposed of in the above terms but with no order as to costs."
Being aggrieved against the order dated 02.05.2006, reproduced above, both sides i.e. the petitioner as well as the department preferred two separate writ petitions. The petitioner filed Civil Writ Petition No.11592-CAT of 2006 with a prayer of promotion w.e.f. 01.09.1987 along with all consequential benefits. Civil Writ Petition No.12793-CAT of 2006 was filed by the department assailing the same order i.e. dated 02.05.2006. Both the petitions were admitted on 13.12.2007 and consequently remained pending without any interim orders.
As the department did not comply with the order dated 02.05.2006, rendered by the Tribunal, the petitioner filed a contempt petition and as a result the order dated 12.06.2006 was withdrawn and the order dated 18.06.2004, whereby the petitioner was promoted as Senior Assistant w.e.f. 31.05.1988 was restored. Still further, vide order dated 06.07.2007, the department re-fixed the seniority of Senior Assistants and the petitioner was placed above Uttam Chand and Harjinder Singh Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [11] (respondents No.2 & 3 in CWP No.18185 of 2010). With passage of time, the petitioner was considered for further promotion and pursuant to the recommendations of the Departmental Promotion Committee, he was promoted to the post of Superintendent Grade-II in the scale of `6400-10640.
Uttam Chand and Harjinder Singh, being aggrieved against the placement of the petitioner and proforma respondent No.7-Yash Pal (SC) in the seniority list above them and also the petitioner's further promotion to the post of Superintendent Grade-II, filed OA No.566-CH of 2008.
The department, in response filed to the said OA, inter alia, clarified that the retrospective promotion and seniority was afforded to the petitioner subject to the outcome of CWP No.12793-CAT of 2006. It was averred that the seniority of Senior Assistants was finalized after affording personal hearing to all effected members of service.
As is discernible from the records, the issue which the Tribunal formulated for its consideration in the said OA was as to whether the persons, who have promoted by virtue of rule of reservation to the higher posts, can also be assigned benefit of accelerated seniority. Reference was made to certain decisions of Hon'ble the Supreme Court including the judgment rendered in Ajit Singh v. State of Punjab, 1996(2) SCC 715. On a consideration of the matter, the Tribunal was of the view that there was no conscious decision taken by the competent Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [12] authority for granting seniority to persons like Tulsi Ram and Yash Pal (proforma respondent No.7), who were given accelerated promotion and also the seniority on the basis of said promotion to the higher post. The Tribunal was of the view that the theory of "catch-up principle" would apply to restore the seniority of the applicants before the Tribunal in the feeder cadre of Senior Assistants. Resultantly, the OA was allowed vide order dated 11.08.2010.
Being aggrieved against the order dated 11.08.2010, reproduced above, two petitions were preferred before this Court. Petitioner Tulsi Ram filed CWP No.18185 of 2010 and the department also filed CWP No.4507 of 2011, assailing the same order and thus, these two petitions were ordered to be heard with the other two writ petitions which were already pending consideration before this Court i.e. CWP Nos.12793- CAT of 2006 and 11592-CAT of 2006.
We have heard learned counsel for the parties and perused the records.
Mr. Anil Rathee, learned counsel for the petitioner, submits that Tulsi Ram was entitled to roster point No.1 at every stage of his promotion because he was only the physically handicapped person in the department when the first vacancy arose in 1987. In any case, the department, pursuant to the directions issued by the Tribunal, by a conscious decision had promoted the petitioner as Senior Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [13] Assistant w.e.f. 31.05.1988 against roster point No.3, reserved for physically handicapped persons. Under these circumstances, the department was not justified to withdraw even the said order passed on 18.06.2004. He further submits that subsequent decision by the Tribunal dated 11.08.2010, vide which the order dated 06.07.2007, whereby he was assigned seniority and the order of his further promotion to the post of Superintendent Grade II has been set aside, is wholly erroneous and unsustainable in law. He asserts that the Tribunal while passing the aforesaid order did not consider the findings recorded by the Tribunal in an earlier decision dated 02.05.2006. It is maintained, that in the given situation, the Tribunal should have adjourned the subsequent matter, i.e. OA No.566-CH of 2008, sine die to await the decision of this Court in the earlier two writ petitions. He also disputes the applicability of "catch-up" theory to the present case.
Learned counsel appearing for the department, simply reiterates the factual matrix of the case and seeks to justify the order dated 12.01.2006, vide which the order granting promotion to the petitioner as Senior Assistant w.e.f. 31.05.1988 was withdrawn. He submits that it was the 33rd point in the first block of 1-33, in the roster, that was reserved for a person from the category of physically handicapped. The said roster point became available on 05.11.2003. Whereas, the petitioner stood promoted on his turn on the basis of his Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [14] seniority on 12.03.2003 i.e. much prior to 05.11.2003. Thus, the only date from which he could be awarded promotion as Senior Assistant was 12.03.2003. He prays that both the orders passed by the Tribunal i.e. dated 02.05.2006 and 11.08.2010 be set aside.
Learned counsel appearing for respondents No.2 and 3 (CWP No.18185 of 2010) contends that the order dated 18.06.2004, granting promotion to the petitioner w.e.f. 31.05.1988, was rightly withdrawn by the department as no post was available in the physically handicapped quota. He submits that the department circulated the seniority list of Senior Assistants, wherein, the petitioner was placed at serial No.2 and respondents No.2 and 3 at serial Nos.8 and 9, respectively. Whereas, Yash Pal (proforma respondent No.7) was placed at serial No.6. He contends that the department promoted the petitioner as Superintendent Grade-II in ignorance of claim of respondents No.2 and 3. He supports the order passed by the Tribunal dated 11.08.2010 vide which the promotion of the petitioner and his seniority qua respondents No.2 and 3 was set aside.
With the nature of the dispute in mind, it is deemed apposite to first deal with the set of two writ petitions i.e. CWP No.11592-CAT of 2006 and CWP No.12793-CAT of 2006, as the decision in these would have a bearing on the other two.
Concededly, the petitioner became eligible for Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [15] promotion to the post of Senior Assistant on 01.09.1987 after completion of five years of service as a Clerk. Indisputably, he was the only physically handicapped person in the department at the time when the first vacancy arose in 1987. Despite this, he was not considered for promotion against a reserved point meant for physically handicapped category. He was promoted to the said post on his turn on the basis of his seniority on 12.03.2003 against a general point. Being choiceless, he approached the Tribunal and vide order dated 15.04.2004, the department was directed to take a final decision vis-a-vis his grievance. Consequently, the Departmental Promotion Committee recommended promotion of the petitioner as Senior Assistant against reserved point No.3 for physically handicapped persons w.e.f. 31.05.1988. The logic assigned in support of the said decision was that although the first vacancy in the cadre of Senior Assistant became available in September, 1987, however, the same was filled by promoting Sh. Laxmi Narayan Yadav on 31.05.1988. Resultantly, a conscious decision was taken, vide order dated 18.06.2004, to promote the petitioner as Senior Assistant w.e.f. 31.05.1988 with notional fixation of pay w.e.f. 31.05.1988 without arrears of pay till the date when he was actually promoted to the post of Senior Assistant w.e.f. 12.03.2003.
It's just, the petitioner happened to assail the order dated 18.06.2004, vide OA No.781-CH of 2004, before the Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [16] Tribunal as he was seeking promotion w.e.f. 01.09.1987.
A short reply filed by the department in the said proceedings, would be extremely crucial to be referred to, at this juncture, and the same reads as thus:
"That the applicant was promoted as Senior Assistant vide order dated 12.3.2003 on is turn as per seniority. The applicant became eligible for promotions as Sr. Assistant on 1.9.1987 after putting in 5 years of service as clerk but the 1st vacancy of Senior Assistant which became available thereafter was filled up on 31.5.1988 by promoting Shri Laxmi Narayan Yadav. Accordingly, it was decided to consider the application for promoting as Sr. Assistant w.e.f. 31.5.1988 against roster point No.3 reserved for physically handicapped persons. The Departmental Promotion Committee recommended promotion of the applicant as Senior Assistant against reserved point No.3 for physically handicapped person w.e.f. 31.5.1988 with notional fixation of pay w.e.f. 31.5.1988 without arrears of pay till the date he was actually promoted to the post of Sr. Assistant on his turn as per seniority i.e. w.e.f. 12.3.2003. Resultantly by way of order memo No.185/ECM/HOD/ CTU/2004 dated 18.6.2004 (Annexure P-10) with the OA) the applicant has been promoted as Sr. Assistant meant for Handicapped quota became available."
Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [17]
It is axiomatic so to say, the department fully justified its order dated 18.06.2004 and consequently, the promotion of Tulsi Ram w.e.f. 31.05.1988.
Strange though, during the pendency of the aforesaid matter, the department chose to withdraw even the said order (dated 18.06.2004) after a period of almost 1½ years, vide order dated 12.01.2006. The justification put-forth by the department to withdraw its earlier order is, that in a cycle of 100 point roster, it was the 33rd, 67th and 100th position which was reserved for physically handicapped category. The 33rd position became available on 05.11.2003, whereas, the petitioner already stood promoted on the basis of his seniority on 12.03.2003. Thus, he could not be promoted w.e.f. 31.05.1988.
To our minds, the reason being assigned by the department to justify its position and the order dated 12.01.2006 is palpably erroneous and preposterous.
Before we proceed, we deem it expedient to refer to the provisions of Section 33 of the 1995 Act, which provides that the Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy. Vide Government instructions dated 18.02.1997 (Annexure R1 Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [18] in CWP No.11592-CAT of 2006), it was clarified that for effecting reservation for physically handicapped in Group A & B posts, all Heads of Departments shall maintain a separate 100 points register for this purpose, in which each cycle of 100 points shall be divided into three blocks, comprising point No.1 to point No.33, 1st block; point No.34 to point No.67, 2nd block; and point No.68 to point No.100, 3rd block. Roster point Nos.33, 67 and 100 were reserved for persons in the category of physically handicapped. It was further observed that each Head of the Department may start the point No.33 with any category of disability. However, certain representations were made to the Government of India that reserving the last vacancy in each of the blocks for the physically challenged, would only prolong their right for consideration for promotion. Resultantly, vide office memorandum dated 04.07.1997 (Annexure R2 in Civil Writ Petition No.11592-CAT of 2006), the position vis-a-vis the reserved points for physically challenged was changed and fixed at roster points No.1, 34 and 67. It would be apposite, at this stage, to refer to the said office memorandum in extenso and the same reads as thus:
"The undersigned is directed to invite attention to this Department's O.M. No.36035/7/95-Estt.(SCT) dated 18-02-1997 on the above subject and to say that it has been represented before the Government that the earmarking of points No.33, 67 & 100 in Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [19] the prescribed register for reservation for the physically handicapped candidate may have to wait for a long time to get their turn for promotion. The suggestion has been considered and it has now been decided, in partial modification of the O.M. cited above, that the points number 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 O.M. remain unchanged.
2. It is also clarified that the manner of calculation of the vacancies for the physically handicapped shall be as laid down in this Department's O.M. No.36035/9/89-Estt. (SCT) dated 20-11-1989 so far as Group-C and 'D' posts are concerned."
It appears, Secretary Social Welfare-cum-
Commissioner for Persons with Disability, Chandigarh Administration, vide letter dated 17.03.2004 (Annexure R-3 in CWP No.11592-CAT of 2006), addressed to all Head of the Departments/Boards/Corporation of the Chandigarh Administration, expressed his concern that due reservation to the persons with disability as provided under Section 33 of the 1995 Act, was not being adhered to. A reference was made to the instructions issued by the Government of India dated 04.07.1997 to reiterate the methodology to work the Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [20] reservation in a 100 point roster envisaged for physically challenged. It was asserted that points No.1, 34 and 67 are the reserved points in a 100 point roster.
As demonstrated above, it was the 1st, 34th and 67th vacancy in a 100 point roster, that were reserved for the persons from the physically handicapped category. So much so, the department on the recommendations made by the Departmental Promotion Committee, promoted the petitioner w.e.f. 31.05.1988 against roster point No.3, since first vacancy was filled with the appointment of Laxmi Narayan Yadav on that date. Even in a detailed reply filed on 25.10.2005, it was pleaded that although reservation and promotion for the handicapped was introduced w.e.f. 01.01.1986 but no instructions fixing roster points for physically challenged were prescribed by the Government of India. If that was the case, then how and on what basis the department could perceive the 33rd point in a roster as reserved for physically challenged. Thus, the Tribunal setting aside the order dated 12.01.2006, in our view, quite justifiable so.
Vis-a-vis the grievance of the petitioner against the order rendered by the Tribunal dated 02.05.2006 we are of the view that since the vacancy in the cadre of Senior Assistants was filled up for the first time by promoting Sh. Laxmi Narayan Yadav on 31.05.1988, the department rightly promoted to the petitioner as Senior Assistant from the same date, against Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [21] roster point No.3. The aspect duly examined by the Tribunal. Thus, we are unable to persuade ourselves to interfere with the order passed by the Tribunal, dated 02.05.2006, to an extent it denied the petitioner the monetary benefits w.e.f. the date of his notional promotion etc. That being so, the Civil Writ Petition No.12793-CAT of 2006 filed by the department against the order dated 02.05.2006, is dismissed and so shall be the fate of civil writ petition filed by the petitioner i.e. CWP No.11592-CAT of 2006. The order passed by the Tribunal dated 02.05.2006 is affirmed.
We cannot resist writing a bit further. He was 100% visually challenged by birth but still had a vision. Throughout his career, he was considered in the category of physically handicapped but his spirits and resolve suffered none. Post- order dated 02.05.2006, he was promoted as Superintendent Grade-II and we are informed that during the pendency of the writ petition he has retired on 31.12.2010.
We may now advert to the other two writ petitions i.e. CWP No.18185 of 2010 and CWP No.4507 of 2011.
We have examined the order dated 11.08.2010, rendered by the Tribunal (OA No.566-CH of 2008). In our view, the Tribunal failed to appreciate that vide order dated 02.05.2006, the Tribunal in an earlier proceeding i.e. OA No.781/CH of 2004 had restored the order dated 18.06.2004, Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [22] vide which the petitioner was promoted as Senior Assistant w.e.f 31.05.1988. So much so, in a contempt proceeding initiated by the petitioner before the Tribunal, the order dated 12.01.2006 was withdrawn by the department and the order dated 18.06.2004 was restored. As a result, the department while finalizing the seniority in the cadre of Senior Assistants, placed the petitioner at serial No.2 subject to the decision by this Court in CWP No.12793-CAT of 2006, as the same was pending before this Court. Still further, on the recommendation of the Departmental Promotion Committee, with afflux of time, the petitioner was promoted to the post of Superintendent Grade-II, vide order dated 14.01.2008. His promotion was also subject to the decision of this Court in CWP No.12793-CAT of 2006.
As is discernible from the records, this position in entirety was duly set out before the Tribunal. That being so, we are of the view that it would have been just and expedient to adjourn the matter sine die to await the decision by this Court in the writ petitions which were pending consideration. Needless to assert, vide order dated 11.08.2010, the Tribunal set aside the order dated 06.07.2007 assigning seniority to the petitioner as a consequence of his promotion as Senior Assistant w.e.f. 31.05.1988 and also the order dated 14.01.2008 vide which he was further promoted to the post of Superintendent Grade-II. Said orders (06.07.2007 & Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [23] 14.01.2008) were passed as a consequence of the order of the Tribunal dated 02.05.2006, vide which the rights of the petitioner vis-a-vis the department were determined, preceded by due adjudication. But, still being conscious of the pendency of the petition before this Court and possible ramifications of a decision therein, the Tribunal observed "Needless to say that our order will be subject to final outcome of CWP filed by the respondent No.5. No costs."
We deem it necessary to refer to a crucial paragraph of the said order and the same reads as thus:
"18. After giving thoughtful consideration to the rival contentions of the parties and legal position discussed above, we are of the considered opinion that since there is no conscious decision by the competent authority for grant of seniority to persons like private respondents who have got accelerated promotion, to have the benefit of seniority also on the basis of such accelerated promotion in higher post. The 'catch-up principle' has to be applied to restore the seniority to the applicants in the feeder cadre of Senior Assistants as their another matter relates to the period prior to 1995."
The petitioner seriously disputes the applicability and relevance of the 'catch-up principle' vis-a-vis the matter in hand. In paragraph 23 of the petition, it is stated "How catch up point will come into picture now in 2007 after the amendment in the Constitution, particularly Article 4(b) which came in Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [24] existence with effect from 09.06.2000. How catch up point having any relevance after amendment in the Constitution is not understandable by the petitioner and as such the order dated 11.08.10 is liable to be set aside." Per contra, counsel appearing for respondents No.2 and 3 states to the contrary and supports the order passed by the Tribunal. We are also mindful of the fact even the department has assailed the order dated 11.08.2010, rendered by the Tribunal, by filing a separate writ petition. Be that as it may. We do not propose to examine this issue at this stage in these proceedings. We may notice that this Court stayed the operation of the order dated 11.08.2010 vide its order dated 06.10.2010 and the same continues till date.
In the interregnum, unfortunately, Uttam Chand has since died on 23.07.2011. Tulsi Ram has retired on 31.12.2010 from the post of Superintendent Grade-II. Yash Pal (SC) is not before us, since he never preferred any petition against the order dated 11.08.2010.
Thus, in the wake of the position that has emerged, as indicated above, we deem it just and expedient to set aside the order dated 11.08.2010 and remit the matter to the Tribunal to decide the same afresh on merits and in accordance with law. However, being cognizant of the fact, that in the interregnum, a considerable time has elapsed, we deem it expedient to request the Tribunal to decide the matter within a period of six months Rajan Kumar 2014.05.20 10:20 I attest to the accuracy and integrity of this document Chandigarh CWP No.18185 of 2010 & Ors. [25] from the date of receipt of the certified copy of this order.
Resultantly, CWP No.18185 of 2010 filed by the petitioner and CWP No.4507 of 2011 preferred by the department, are disposed of in the above terms.
(SANJAY KISHAN KAUL) (ARUN PALLI)
CHIEF JUSTICE JUDGE
May 16, 2014
Rajan
Rajan Kumar
2014.05.20 10:20
I attest to the accuracy and
integrity of this document
Chandigarh