Central Administrative Tribunal - Allahabad
V V B Singh vs M/O Labour on 11 May, 2022
OA No. 1330 of 2016
Res. on 28.01.2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Original Application No. 1330 of 2016
Allahabad this the 11th day of May, 2022
Hon'ble Mr. Tarun Shridhar, Member-A
Hon'ble Ms. Pratima K. Gupta, Member-J
Vijay Vikram Bahadur Singh, aged about 40 years, son of, Sri Balram
Singh, resident of, E.P.F.O. Campus, Sub-Regional Office, Opposite
Carmel Girls' School, Gorakhpur-273009, U.P. Presently posted as
Regional Provident Fund Commissioner-II, Officer-in-Charge, Sub-
Regional Office, Gorakhpur-U.P.
Applicant
By Advocate: Mr. Shyamal Narain.
Vs.
1. The Union of India through Secretary, Ministry of Labour and
Employment, Government of India, Bhavishya Nidhi Bhawan, 14
Bhikaji Cama Place, New Delhi-110066.
2. The Chairman, Central Board of Trustees, Employees Provident
Trustees, Employees Provident Fund, New Delhi.
3. The Central Provident Fund Commissioner, EPFO Head Quarters,
14, Bhikaji Cama Place, New Delhi-110066.
4. The Secretary, Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel and Training, North Block, New
Delhi.
Respondents
By Advocates: Mr. L.M. Singh (For Res No. 1 and 4)
Mr. Satyajit Mukherji(For Res No. 2 and 3)
ORDER
By Hon'ble Ms. Pratima K. Gupta, Member-J We have joined this Bench online through video conferencing facility.
2. Through the present O.A., the applicant has sought the following relief(s): -
"(a) That this Hon'ble Tribunal be pleased to quash and set aside the impugned order [No. HRM-I/A-10 (27) 03], dated 27.05.2015, conveyed to the applicant vide covering letter dated 19.06.2015 (Annexure No. 1 to Compilation No. I), issued under the signature of Sri Paritosh Kumar, Regional Provident Fund Commissioner-II (HRM-II), rejecting his representation dated 30.03.2015 (given by him as a follow-up reminder to his earlier representation dated 05.02.2014).
(b) That this Hon'ble Tribunal, after quashing the impugned order referred to above, be pleased to issue a time-bound order or direction to the respondents to convene a Review DPC for considering the applicant's claim for promotion to the posts of RPFC-II and RPFC-I, with effect from 22.05.2008 and 22.05.2013, respectively- the date on which he had acquired eligibility for promotion to those posts- in the light, and implementation of, various judicial decisions rendered on the subject of reservation in promotion to Group A posts to Persons with Disabilities, and in case he is found fit for the same, then, to promote him as prayed, along with all consequential benefits.
(c) That this Hon'ble Tribunal be pleased to grant such other relief, as the applicant might be found entitled to in the facts and circumstances of the case.
(d) That this Hon'ble Tribunal be pleased to award the costs of this Original Application in favor of the applicant, throughout."
3. The facts, in brief, are that the applicant is a physically handicapped person with 70% permanent disability in both his lower limbs and his condition stands duly certified as a case of 'Post Polio residual paralysis of both lower limbs', vide a certificate dated 01.12.1999, issued by the Department of Physical Medicine and Rehabilitation, All India Institute of Medical Sciences, New Delhi. Applicant, was appointed to the post of Assistant Provident Fund Commissioner (APFC, for short), in the Employees' Provident Fund Organization (EPFO, for short) on 19.05.2003. The applicant was granted the Senior Time Scale of PB-3, Rs. 15600-39100+ Grade Pay Rs. 6600/- w.e.f. 11.11.2008, however, vide an order dated 08.04.2015, the Senior Time Scale of PB-3, Rs. 15600-39100+ Grade 2 Pay Rs. 6600/, was extended from 22.05.2008. Applicant was promoted to the post of RPFC-II, on ad-hoc basis on 20.10.2010, and thereafter, on regular basis, i.e. 28.06.2011. The entire issue of reservation in promotion for people with Disabilities to Group A and B posts came to be thrashed thread bare in PIL No. 106 of 2010, National Confederation for Development of Disabled and another versus Union of India and others, decided by the Hon'ble Bombay High Court, vide Judgment dated 4.12.2013 wherein it was held that the benefit of reservation was to be given to persons with disabilities in the matter of promotion to posts in the Indian Administrative Services by applying the O.M. dated 29.12.2005 and subsequent O.M.s consistent with the Judgment dated 8.10.2013 of the Honb'le Supreme Court. The respondents therein were accordingly directed to give effect to the benefits of reservation. The SLP filed against the aforesaid Judgment by the Union of India was dismissed by the Hon'ble Apex Court vide an order dated 12.09.2014, followed by the dismissal of the Review Petition vide an order dated 27.02.2015. The Applicant preferred a representation dated 05.12.2014 before the Central Provident Fund Commissioner, praying for grant of the said benefits, He claimed that as the aforementioned judgment squarely applied to him, for the purposes of being considered for promotion, to the posts of RPFC-II and RPFC-I, w.e.f. from 22.05.2008 and 22.05.2013 by being allowed the benefits of reservation for People with Disabilities, which was followed by a reminder representation dated 30.03.2015. The representations were rejected by the respondents by way of cryptic and illegal order dated 27.05.2015 (Annexure No. A-1 to Compilation No.1) , on wholly irrelevant and untenable considerations, without any application of mind to the very basis of his claim, namely, the judicial verdict of the Bombay High Court, as upheld by the Apex Court. The applicant once again preferred yet another representation 3 dated 26.06.2015 on the subject, but, the same has fetched no response. Hence this O.A.
4. The O.A. is mainly contested by Respondents No. 2 and 3 who have filed their counter affidavit. In the counter affidavit, they have submitted that the reservation for persons with disabilities in Group 'A' and 'B' is computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group-A posts or Group-B posts respectively, in the cadre. Thus, reservation on the basis of disability is not applicable to posts to be filled up by promotions from departmental candidates but, is applicable only in the case of direct recruitment and in this regard separate roasters for Group 'A' and 'B' posts shall be maintained. The applicant is claiming reservation on a promotional post because of his physical disability and, therefore, the same is not permissible and hence the claim of the applicant has been rejected vide impugned order dated 27.05.2015. Ld. Counsel for the respondent's No. 2 and 3 claimed that the O.A. is time barred, as there was a delay of five months in filing the O.A. and no delay condonation application has been filed by the applicant. Ld. counsel submits that according to office memorandum of Department of Personnel and Training dated 17.09.1998, regarding eligibility of officers to be considered for promotion by D.P.C., the crucial date of determining eligibility for promotion in case of financial year based vacancy year would fall on January 1st, immediately preceding such vacancy year and in case of calendar year based vacancy year also, the 1st day of the vacancy year, i.e., 1st January itself would be the crucial date. Ld. counsel further submits that para-14 of the O.M. dated 29.12.2005 has been amended vide para-5 of the O.M. dated 03.12.2013 and as per this amendment the reservation for persons with disabilities in Group 'A' and 'B' is 4 applicable only in direct recruitment cases and same is not available for promotion. Ld. Counsel submits that the Department of Personnel and Training has not issued any O.M. in pursuance of the order dated 12.09.2014 of the Hon'ble Apex Court. It was also clarified by the respondents' department that the aforesaid order dated 12.09.2014 and the order of this Tribunal are applicable only to the petitioners/applicants therein and the same would not be treated as general applicability. Ld. Counsel also submits that the posts of RPFC-I and RPFC-II are filled up by promotion and no reservation is permissible under the existing reservation policy of the Government of India. He adds that it is settled law that no PIL can be filed in service matters and it is because of this settled legal position the initial order passed by the Hon'ble Bombay High Court was not given effect to, in case of all those persons who were not party to the litigation. The Hon'ble Supreme Court vide order dated 12.09.2014 has not made any new observation about the implementation of the initial order passed by the Hon'ble Bombay High Court. Ld. Counsel has submitted that the Ministry of Labour & Employment has issued certain clarifications which have been received from the DOP&T that the matter relating to reservation in promotions for persons with disabilities is under consideration before the Hon'ble C.J.I. as per Hon'ble Supreme Court's order dated 03.02.2017. It is also clear that the benefit of reservation to persons with disabilities in the matter of promotion has to be provided to persons who are in the Indian Administrative Services. The applicant has also failed to bring on record the cases of similarly situated persons in the Department who have been granted the benefit of the said judgment. Ld. Counsel for the respondents has claimed that the impugned order is a well reasoned order hence; the O.A. is liable to be dismissed.
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5. In the Rejoinder Affidavit, the applicant has reitered the contentions taken in the O.A. and also denying the contentions of the respondents, made in the counter affidavit.
6. We have heard Shri Shyamal Narain, ld. counsel for the applicant, Shri Satyajit Mukherji, ld. counsel for the respondent's No. 2 and 3 and Shri M.K. Yadav vice Shri L.M. Singh, ld. counsel for the respondent's No. 1 and 4 and also perused the available documents on record.
7. The controversoy in the present OA came up before the Hon'ble High Court at Bombay in PIL No 106 /2010. The relevant paragraphs of the aforesaid order reads as under: -
"4. In the affidavit-in-reply filed by Under Secretary in the Union Public Service Commission on 1 March 2011 and in the affidavit-in-reply dated 20 April 2012 filed by Under Secretary in the Department of Personnel and Training, Government of India, it was contended that provisions of Section 33 of PWD Act provides for reservation for the persons with disabilities only in the matter of appointment to the vacancies in the establishment. It does not provide for reservation in the matter of promotion. It was further contended that such reservation is applicable for persons with disabilities in Group "C" and Group "D" as provided in the Office Memorandum dated 20 November 1989 and in the subsequent Office Memorandum dated 29 December 2005. It is provided that 3% of the vacancies in case of promotion to Group "C" and Group "D"
posts in which the element of direct-recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities. It is, therefore, submitted that reservations for persons with disabilities were never available in Group "A" and Group "B" posts. It is further contended that the whole scheme of the cadre management of officers appointed by promotion to the promotion quota of an All India Service is quite different in nature from the scheme of things as are generally prevailing in the matter of promotion within the same service from a Group "B/Group "A" post to a Group "A" posts.
7. In view of the above, we have to proceed on the basis that the reservation is available for Group A and Group B posts as well and the same would, therefore, include posts in the Indian Administrative Services.
11. In view of the aforesaid decision of the Supreme Court, it is clear that reservation has to be computed with reference to total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion. Total number of 6 vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion.
12. The Supreme Court has given following direction to the Government of India to ensure proper implementation of the reservation policy for the disabled and to protect their rights: -
"54. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29-12-2005 and the subsequent Oms consistent with this Court's Order within three months from the date of passing of this judgment.
(ii) We hereby direct the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default.
(iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default."
13. In view of the above directions, it is clear that the respondents will have to give benefits of reservation to persons with disabilities in the matter of promotion to posts in the Indian Administrative Services by applying the Office Memorandum dated 29 December 2005 and subsequent Office Memorandum consistent with the aforesaid judgment dated 8 October 2013 of the Supreme Court and accordingly give benefits of the reservation with effect from the date of issuance of the said Office Memorandum dated 29 December 2005." The aforesaid order stood confirmed as the SLP as well as the review petition against the said judgement were dismissed by the Hon'ble Apex court on 12.09.2014 and 27.02.2015 respectively.
8. The issue involved is no more resintgra in view of the judgement and the law laid down in the Judgement of the Apex Court in Siddaraju 7 vs State of Karnataka and Ors 2020 SCC Online 45 wherein while deciding the Civil Appeal No 1567/2017 the Honble Apex court has held as follows: - (Relevant paragraphs are Para 1, 6, 7, 13, 14) "1) This batch of cases before the Court has come to us on a reference made by a Division Bench of this Court dated 03.02.2017. The reference order reads as follows: "Delay condoned. Leave granted. 2 Question which has arisen in this case is whether persons, governed under "The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995", can be given reservation in promotion. A view has been taken by this Court in Rajiv Kumar Gupta & Others v. Union of India & Others - (2016) 6 SCALE 417 in the affirmative. Mr. Ranjit Kumar, learned Solicitor General, points out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney & Others v. Union of India & Others - (1992) Supp. 3 SCC 215 applies not only to Article 16(4) but also 16(1) of the Constitution of India and inference to the contrary is not justified. Persons suffering from disability certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion. Section 33 of the 1995 Act is required to be read and construed in that background. We find merit in the contention that the matter needs to be considered by the larger Bench. Accordingly, we direct the matter be placed before Hon'ble the Chief Justice for appropriate orders. Union of India is at liberty to file its affidavit within one week from today."
6) Certain directions were then made in the end of the judgment to ensure proper implementation of the reservation 8 policy for the disabled and to protect their rights.
7) We may mention that, pursuant to this Court's judgment, the Union of India issued Office Memorandum dated 03.12.2013 in which it made only one change in the Office Memorandum dated 29.12.2015 as follows:- "5. Keeping in view the directions of the Hon'ble Supreme Court, Para 14 of the OM dated 29.12.2005 is modified to the following extent: "Reservation for persons with disabilities in Group 'A' or Group 'B' posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group 'A' posts or Group 'B' posts respectively, in the cadre." Contempt petitions were filed stating that the directions contained in this judgment have not been carried out, which is not the subject-matter before us. These petitions have been ordered to be listed after the decision in these cases.
13) This matter arises out of the order of the Central Administrative Tribunal, Bangalore Bench, Bangalore dated 24.07.2015 in which the 2005 O.M has been followed without reference to any of the judgments 8 of this Court. A writ petition from the aforesaid judgment was dismissed by the Karnataka High Court on 23.03.2016, stating that the precise 12 question of law that arises in this case was kept open. Accordingly, we set aside the judgment of the CAT and consequently that of the High Court. The case is to be governed by the three decisions of this Court outlined above, which judgments have to be followed by the Union of India and the States. It is not necessary to pass any further directions. The appeal is disposed of accordingly. Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of 2016:
14) Delay is condoned."
9. While considering the arguments of the ld. counsel for the respondents firstly we feel it is a fit case where the delay should be condoned as the delay may not be allowed to come in the way of the legitimate claim of the Applicant. Secondly we cannot agree with the view of the Department of Personnel and Training in there clarfication dated 19.06.2015 that the orders of CAT and Supreme Court are applicable only to the petitioners/parties and not be treated as general applicability. The subject matter of the same reads as under: -
"Subject: Forwarding of representation dated 30.03.2015 of Shri V.V.B. Singh, RPFC-II regarding representation for appointment to the post of RPFC-II on regular basis w.e.f. 22.05.2008 - regarding.
Madam, Please refer to you letter No. 20676/EPF/UP/Adm-I/AC-RC/Repre dated 23.04.2015 on the subject cited above.
2. Shri Vijay Vikram Bahadur Singh, RPFC-II, SRO, Gorakhpur has requested to provide him reservation benefits in promotion to the post of RPFC- II. He has submitted that Hon'ble Supreme Court vide judgment dated 12.09.2014 in the matter of UOI & Ors. Vs National Confederation for Development of Disabled & Anr [Special Leave to Appeal No. (C) 13344/2014] has upheld the judgment dated 04.12.2013 of Hon'ble High Court of Bombay in the matter of National Confederation for Development of Disabled and another vs. UOI & Ors [PIL no. 106/2010] which provides for benefits of reservation to persons with disabilities in the matter of promotion in Group A posts also w.e.f. 29.12.2005 i.e. date of issuance of OM No. 36035/3/2004-Estt (Res) of DOPT.9
3. As per DOPT OM No. 36035/3/2004-Estt (Res) dated 29.12.2005, the quantum of reservation for the persons with disabilities is as under:
(i) Three percent of the vacancies in case of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which one percent 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;
(ii) 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 for 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.
4. As per para 3 (ii) above, as per DOPT OM dated 29.12.2005, no promotion is applicable in case of promotion is applicable in Group A and B posts. Further, as per clarification received from DOPT, vide ID note dated 19.02.2015 received through MoL&E letter dated 17.04.2015 (copy enclosed), DOPT has taken a view that the orders of the CAT and Supreme Court is applicable only to the petititoners/parties and not be treated as general applicability. Further, also find enclosed a copy of Cabinet Note No. 501/2/4/2014-CA-V dated 07.04.2015 in this regard.
5. Further, consequent to the above judgment dated 12.09.2014 of Hon'ble Supreme Court, no OM was issued by DOPT conveying the implementation of the abovesaid judgment dated 12.09.2014. Hence, as clarified DOPT vide their ID note dated 19.02.2015, the request of Shri Vijay Vikram Bahadur Singh, RPFC-II to provide him reservation benefits in promotion to the posts of RPFC- II cannot be acceded to.
6. The officer may be informed accordingly.
{This issues with the approval of ACC (HQ)}"
10. The aforesaid note shows that the same has been incorrectly made applicable to the present case. Further, the question of cut off date shall also arise in this case as the applicant can only be considered for promotion, once he acquires eligibility for promotion. Lastly the Applicant cannot be put to disadvantage for the reason that the Respondent No 4 DoPT choose not to issue any office memorandum implementing the judgement dated 12.09.2014. We feel it was 10 incumbent upon the respondent no 4 to issue an OM in this regard and they have failed to do so.
11. However, we are conscious of the fact that the respondents number 1 to 3 are in a peculiar position. On the one hand there are directions of the Hon'ble Apex Court, on the other is their obligation to follow in letter and spirit, the rules and guidelines issued by DoPT, the respondent No. 4.
12. Therefore, in light of the judicial pronouncements by the Hon'ble Apex court and the discussion herein, the impugned order dated 27.05.2015 bearing No. HRM-I/A-10 (27) 03 conveyed to the applicant vide covering letter dated 19.06.2015 (Annexure No. 1 to Compilation No. I) is quashed and set aside. The respondent number 4 is directed to issue comprehensive O.M. in the light of various judicial decisions rendered on the subject of reservation in promotion to Group 'A' post to persons with Disabilities. Thereafter the respondents shall consider the applicant's claim for promotion in accordance with the said O.M. read with other relevant rules and instructions on the subject.
12. The O.A. stands disposed of with the aforesaid directions. No order as to costs.
(Pratima K. Gupta) (Tarun Shridhar)
Member - J Member - A
/M.M/
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