Central Administrative Tribunal - Ernakulam
Shaijan A T vs Sree Chitra Tirunal Institute For ... on 19 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00279/2021
Friday, this the 19th day of January, 2024
CORAM:
HON'BLE Mr.JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
1. Shaijan A.T., aged 41 years, S/o Thankappan.A.K.,
Cleaning Attendant - A,
Sree Chitra Tirunal Institute for Medical Sciences &
Technology (SCTIMST), Thiruvananthapuram-695011
Residing at Appathil House, Elavoor.P.O, Elavoor
Angamaly, Ernakulam District-683572.
2. Prakasan P.V., aged 41 years, S/o. Kannan,
Cleaning Attendant - A,
Sree Chitra Tirunal Institute for Medical Sciences &
Technology (SCTIMST), Thiruvananthapuram-695011
Residing at Pakrammar Veettil, Kuningad.P.O, Purameri,
Kozhikode District-673503
-Applicants
(By Advocate : Mr. Elvin Peter P.J)
versus
1. Sree Chitra Tirunal Institute for Medical Sciences &
Technology (SCTIMST) Represented by its Director,
Thiruvananthapuram-695011
2. The President,
Sree Chitra Tirunal Institute for Medical Sciences &
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Technology (SCTIMST), Thiruvananthapuram-695011
3. The Director,
Sree Chitra Tirunal Institute for Medical Sciences &
Technology (SCTIMST), Thiruvananthapuram-695011
-Respondents
(By Advocate : Mr. V.Sajith Kumar)
The application having been heard on 6 th December 2023, the
Tribunal on 19th January, 2024 delivered the following :
ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The O.A has been filed by two applicants who are working as Cleaning Attendants in the Sree Chitra Tirunal Institute for Medical Science and Technology (SCTIMST) in Thiruvananthapuram (referred to as the 'Institute') on 17.06.2021 seeking the following relief.
(i) Call for the records leading to Annexures A7 & A8 notifications dated 20.05.2021 and set aside the same to the extent it did not provide 4% reservation in appointment/promotion to the post of Unit Helper and Assistant Laundry Supervisor-A respectively in the 1 st respondent Institute;
(ii) Issue a direction to the respondents to provide 4% reservation for physically disabled persons and make appointments/promotions in -3- the Institute as mandated by Act 49 of 2016 and also the judgments of the Apex Court;
(iii) Issue a direction to the respondents to promote the 1 st applicant to the post of Assistant Laundry Supervisor-A as envisaged under the provisions of the Act 49 of 2016 and also as directed by the Apex Court reported in 2020 (1) KLT 698;
(iv) Issue a direction to the respondent Institute to give ladder promotions to the applicants to the post of Unit Helper by providing 4% reservation to the said post as mandated in the Act, 49 of 2016;
(v) Grant such other reliefs as this Hon'ble Court deems fit in the interest of justice.
2. It is submitted that the two applicants were appointed as Cleaning Attendant-A in the 3 rd respondent Institute as per an order dated 16.03.2015. It is also submitted that they were not allowed to join duty initially as they had certain physical disabilities and were therefore asked to undergo a medical examination before the Medical Board to assess their fitness for employment in the Institute. After being declared fit by the Medical Board pursuant to the examination, they had joined duty only on 21.05.2015. They moved the Institute later praying to restore their seniority with effect from 16.03.2015. After consideration, the -4- Institute granted seniority to the applicants in the category of Cleaning Attendant-A with effect from 16.03.2015. The applicants further submit that at the time of their joining, the Institute, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (Act 1 of 1996) was in operation. It is submitted by the applicants that Section 33 of the Act which pertains to 'Reservation of Posts' had laid down that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3 percent for persons or class of persons with disability, of which 1 percent each shall be reserved for persons suffering from (i) blindness or low vision (ii) hearing impairment (iii) locomotor disability or cerebral palsy, in the posts identified for each disability.
3. The Act 1 of 1996 was later replaced by The Rights of Persons with Disabilities Act, 2016 (Act 49 of 2016), Section 33 of this Act deals with 'Identification of posts for reservation'. It has provided that the appropriate Government shall identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34. Further, Section 2(i) of the Act had defined -5- ''establishment'' to include a Government establishment and private establishment. The Section 34 on 'Reservation', provided that every appropriate Government shall appoint in every Government establishment not less than 4 percent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities, of which, 1 percent each shall be reserved for persons with benchmark disabilities under Clauses (a) blindness and low vision (b) deaf and hard of hearing and (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. There was a further 1 percent reservation for people with benchmark disabilities under Clause (d) & (e) dealing with autism, intellectual disability etc, and other multiple disabilities under Clauses
(a) to (d) including deaf-blindness in the posts identified for each disability.
4. It is submitted that for the implementation of the provisions of the Act 1 of 1996, the Governing Body of the Institute had appointed a Committee for identifying the posts in the Institute that have to be reserved for Persons with Disability (PWD) candidates/employees. The Governing Body had approved the implementation of the -6- recommendations of the Committee later. The 3 rd respondent, as per order dated 26.12.2014 produced at Annexure A5 in the O.A, had identified and approved as many as 34 posts in the Institute for implementation of reservation for Persons with Disabilities. It is submitted that the post at Sl.No.34 of this list is the post of Assistant Laundry Supervisor-A, the same post for which the applicant no.1 in this O.A seeks to establish his claim. It is pointed out that the Annexure A5 order had been issued by the Institute as late as 2014, even though the Act which was in force at that time was the Act 1 of 1996 and Section 32 of the Act had mandated the Government to identify posts in a establishment, which can be reserved for Persons with Disability. It is further submitted that, though as per Annexure A5 order the Institute had identified 34 different posts as reserved for Persons with Disabilities in appointment till date not a single post identified in the Annexure A5 Order had been filled up by a person with disability.
5. The applicant submits that the post of Cleaning Attendant-A, to which they had been appointed, is in the Group-C category as per service Conditions/Rules governing this post. There are two avenues for promotion in the Institute ie., by the Flexible Complementing Promotion -7- (FCP) or by Ladder Promotion. The Ladder Promotion it is submitted is a cadre promotion which is made as and when vacancy arises in a sanctioned post. The Flexible Complementing Promotion is a promotion granted on the expiry of a specific period in a post. It is submitted that under the Ladder Promotion, those who are in the Cleaning Attendant-A category are entitled to be promoted as Unit Helper. Further, the rules have laid down that such Ladder Promotions have to be granted after conducting a trade test. Similarly, under the Flexible Complementing Promotion scheme, employees are entitled to be considered for promotion from one grade to another on completion of 7 years of service (which has now been reduced to 5 years).
6. The applicant has relied on a number of decisions of the Hon'ble Supreme Court in making his case for grant of the relief sought for. It is indicated that the Hon'ble Supreme Court in a decision reported in 2013 (10) SCC 772, had laid down the law that the computation of reservation for Persons with Disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., "computing 3% reservation on total number of vacancies in the cadre strength", which was the intention of the legislature. Further, the reservation for Persons with Disabilities -8- was held to have nothing to do with the ceiling of 50% and, hence, the directions of the Hon'ble Court in Indra Sawhney was not applicable with respect to the disabled persons. In addition, in Rajiv Kumar Gupta & Ors. Vs. Union of India [2016 (13) SCC, 153], in paragraphs 21, 24 & 25, it had been held that the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to Persons with Disabilities. Further, it was held that a combined reading of Sections 32 and 33 of the 1995 Act (Act 1 of 1996) explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to Persons with Disabilities (PWD). It was held that once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of post. The Government was directed to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. The Hon'ble Supreme Court once again considered the provisions of Act 1 of 1996 in 2020 (1) KLT 698. It declared the law that persons who are physically disabled are entitled to be granted reservation in promotion. -9-
7. Following all the above decisions, the Division Bench of the Hon'ble High Court of Kerala as per judgment dated 06.02.2020 in WA No.1605/2018 held that, as of now no dispute can be raised regarding the right of the persons with disability for reservation in promotion to the posts identified by them. A copy of the judgment of the Hon'ble High Court dated 06.02.2020 in WA No.1605/2018 was produced at Annexure A6 in the O.A. Thus, it is submitted that, in the light of the above law laid down by the Hon'ble Supreme Court and the Hon'ble High Court, it is beyond dispute that the applicants and other physically disabled persons working in the Institute are entitled for reservation in the matter of promotion. As stated earlier, even though as per Annexure A5 order the Institute had identified 34 posts to be filled up by physically disabled persons, till date not a single physically disabled person had been appointed to the said posts. Further, the Institute had not till date provided the 4% reservation as laid down under Section 34 of the 2016 Act (Act 49 of 2016) for promotion of physically disabled persons working in the Institute. It is also submitted that all these 34 posts that were identified in Annexure A5 were posts in the higher category in terms of scale of pay and in terms of the duties attached to the posts. So far as the 1st applicant is concerned, it is submitted that he is entitled to -10- be considered for promotion as Assistant Laundry Supervisor-A, shown at Sl.No.34 in Annexure A5. Further, both the applicants were also entitled to be considered for promotion as Unit Helper. It is submitted that the respondents are legally bound to provide 4% reservation in the category of Unit Helper as well in the promotion of physically disabled persons. They have however not done so till date by providing the 4% reservation for appointment of physically disabled persons for the 34 posts identified in Annexure A5 or for the post of Unit Helper. Hence, they were abdicating their legal duty and were not obeying the statutory provisions contained in Act 49 of 2016.
8. It is to be noted that the two applicants filed this O.A because they were aggrieved by the notifications issued at Annexures A7 & A8. Vide Annexure A7 dated 20.05.2021, a notice was issued calling for applications by 30.05.2021 from permanent employees with specific prescribed qualifications who were interested in being considered for the current promotion vacancies and expected vacancies in the Unit Helper post (Level-2 of Pay Matrix). It is submitted by the applicants that, as per the provisions of rules governing the service conditions of the applicants, the next promotion category from Cleaning Attendant-A -11- under ladder promotion is to the category of Unit Helper. In the light of the declaration of law by the Apex Court, it is submitted that the respondent Institute was bound to promote persons with physical disability, who were working in the category of Cleaning Attendant-A to the post of Unit Helper in the reserved vacancies earmarked for physically disabled persons. Hence, the action of the respondents in issuing Annexure A7 notification for promotion to the post of Unit Helper, without reserving even a single post for the disabled category for promotion, is submitted as illegal, improper, arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India. Similarly, the Institute had issued another notification dated 20.05.2021, produced at Annexure A8, calling for appointments to the post of Assistant Laundry Supervisor. Only 1 unreserved promotion vacancy has been notified in the Annexure A8 notification. Since the A-5 order dated 26.12.2014 had reserved at Sl.No.34 the post of Assistant Laundry Supervisor-A as one of the posts for Persons with Disabilities, the respondents ought to have reserved in Annexure A8 the said post for Persons with Disabilities. The notification however, called for application for the post ignoring physically disabled persons for whom the 4% reservation had been mandated under the Act 49 of 2016. It is submitted that the Institute is -12- not authorized to proceed with the appointment to the post of Assistant Laundry Supervisor without specifying the number of these posts earmarked for physically disabled persons as provided in the Annexure A5 order.
9. Hence, it is submitted that even though the applicants and other similarly situated physically disabled persons were entitled for reservation in the matter of promotion and even though the Institute had identified 34 posts vide Annexure A5 order to be filled up by physically disabled persons, the Institute has not yet appointed or proceeded to consider even a single physically disabled person for these posts. The Institute had also not provided for the 4% reservation, as mandated under Section 34 of Act 49 of 2016, for promotion of physically disabled persons working in the Institute or in the appointment in the entry cadre. The action of the persons in not providing 4% reservation as mandated in the Act 49 of 2016 and as declared by the Apex Court in various decisions cited earlier, was therefore against the law. Hence, the Annexure A7 notification as well as the Annexure A8 notification, which had not provided for this reservation were liable to be set aside. -13-
10. The respondents (ie. 3rd Respondent, Institute) filed a reply statement on 08.11.2021 in the O.A. It was submitted by them at the outset the 2nd applicant in the O.A, Shri. Prakasan P.V had already since been appointed as a Unit Helper, vide order dated 30.06.2021. The relief claimed by him was, therefore, infructuous. A copy of the order dated 30.06.2021 was provided by the respondents at Annexure R1(b). It was also submitted that, unlike what has been mentioned by the applicants, there was no ladder promotion for the 'hospital staff' of the Institute. The ladder promotion was available only to the staff from the 'administrative wing', which had been abolished with effect from 01.07.2012. The promotional avenues available to the employees in Group C like the applicants were the Modified Flexible Complementing Promotion (MFCP) and the Vacancy Oriented Promotion (VOP). The residency period for MFCP is 7 years and for VOP is 5 years. The two applicants had been appointed in the Institute as per the Rules and Regulations in force at the relevant time in the General quota, from the list of candidates provided by the Employment Exchange. They were restored seniority with effect from 16.03.2015. At the time of their appointment the 1995 Act (Act 1 of 1996) was in force. The Committee constituted by the Institute under the directions of the Department of Personnel and -14- Training had identified 34 posts for Persons with Disability. This was approved by the order of the Institute dated 26.12.2014 produced at Annexure A5. It is submitted that even though notifications were issued for appointment to three categories, namely (a) Medical Records Assistant-A (low vision), (b) Library-cum documentation Assistant-A (hard of hearing) and (c) Jr. Social Worker-A/Rec-cum Te. Operator-A (locomotor disability), no persons could be appointed due to the non- availability of the candidates. It is also accepted that Assistant Laundry Supervisor-A was also among the 34 posts identified in terms of the 1995 Act (Act 1 of 1996).
11. The Act 1 of 1996 was superseded by The Rights of Persons with Disabilities Act, 2016 (Act 49 of 2016). It is submitted that pursuant to the mandate under the provisions laid down in Section 33(ii) of the Act, the Ministry of Social Justice and Empowerment had issued a notification dated 04.01.2021 identifying the posts suitable for persons with disabilities mentioned in clause (a), (b), (c), (d), and (e) of Section 34 of the Act 49 of 2016. It is submitted that the notification issued on 04.01.2021 by the Ministry of Social Justice and Empowerment as per the 2016 Act supersedes all the earlier notifications with respect to the -15- identification of posts for persons with benchmark disabilities, including the notification at Annexure A5. A copy of this notification has been produced at Annexure R1(a). It is submitted therefore that, only the posts identified as per the notification dated 04.01.2021 are earmarked for PWD candidates. It is also submitted by the respondents that a Committee constituted by the Institute on 17.01.2020 to study and implement the provisions of the 2016 Act, had identified that there were already 25 Persons with Disabilities employed in the Institute under the Group C category. These include 6 Visually Handicapped employees , 1 Hearing Handicapped employee and 18 Orthopaedically Handicapped employees. These recruitments were made during the period between 2007 and 2015 from the list of Persons with Disabilities provided by the Employment Exchange. Thus, since the total representation of disabled employees in Group C in the Institute was 25, the 3% requirement under the 1995 Act was fully satisfied. The Institute had implemented all the provisions of the 1995 Act by identifying the posts in Annexure A5 as early as 2014. However, now, in view of Annexure R1(a), none of the contentions made by the Applicants placing reliance on Annexure A5 was sustainable in law.
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12. The respondents submit that the Institute has complied with the provisions of the 1995 Act as well as the 2016 Act. Further, pursuant to the judgment of the Hon'ble Apex Court in the Rajiv Kumar Gupta (supra) case, the Government of India, in the Department of Personnel & Training had also issued a O.M on 15.01.2018, which provided guidelines regarding the reservation for persons with benchmark disabilities. A copy of the O.M dated 15.01.2018 has been produced at Annexure R1(c). The respondents draw attention to Para 6.1 and Para 7 of the guidelines in Annexure R1(c). It is submitted that Para 7 of Annexure R1(c) provided the procedure for effecting reservation and maintenance of roster. From these provisions it was clear that all the vacancies in an identified category of post need not be reserved for PWD Candidates. The appointment has to be based on a 100 point vacancy based reservation roster mentioned in sub-para 7.1. of Exhibit R1(c). It is submitted that the Institute had employed 25 persons suffering from various disabilities and, hence, there was no merit in any of the averments raised in the Original Application. Further more, with respect to the reservation in promotions as mandated by the Hon'ble Apex Court in 2021 (1) KHC 609, the promotional posts, in addition to Annexure A5 order issued by the Institute, have already been identified by the -17- Central Government vide Annexure R1(a) order. The claim of the Applicants for promotion to the higher posts was therefore, considered in accordance with their merit. As noted, the 2 nd Applicant had already been promoted to the post of Unit Helper. It is submitted that the applicants can be considered on promotion only if they satisfy the requirements and qualifications laid down by the Annexure A8 notification for recruitment to the post of Assistant Laundry Supervisor. Further, the total number of 25 persons having different disabilities already appointed by the Institute comes to 9% of the total Group C posts in the Institute. This satisfies the requirement of 4% reservation provided under the 2016 Act and thus any contention to the contrary is false and denied.
13. Coming up with more details regarding the specific case of the applicants, it is submitted that the claim of the 1 st Applicant for being promoted under the PWD quota to the post of Assistant Laundry Supervisor has to be considered in the light of the requirements and qualifications laid down for the post in the Annexure A8 notification. The Annexure A8 notification has ,inter alia, laid down 7 year individual or combined experience as Unit Helpers/Cleaning Attendants/Office -18- Attendants in the Institute, of which 3 year experience in Laundry as required. Further, an ITI Trade certificate acquired before joining as Cleaning Attendant as possessed by the 1 st Applicant, cannot also be taken as a qualification for promotion to the post. Further, considering the qualification of 7 year individual or combined experience it is submitted that the 1st Applicant had joined the Institute only on 16.03.2015. Hence, he would have acquired the requisite experience of 7 years only with effect from 15.03.2022. The Annexure A8 notification was issued on 20.05.2021 inviting applications from those fulfilling the requirements as on 30.06.2021. Thus, he was not satisfying the requirement/qualifications/experience provided in the Annexure A8 notification. The respondents thus submit that the 1 st Applicant was not satisfying the Qualification/experience laid down in Annexure A8 for the post of Assistant Laundry Supervisor. Further, the 2 nd Applicant had already been appointed to the post of Unit Helper. Hence, they were not entitled to the reliefs prayed for, in the present experimental litigation filed by them.
14. This matter first came up before this Tribunal on 28.06.2021. At that stage this Tribunal ordered that a vacancy be kept in the post of -19- Assistant Laundry Supervisor as well as in the post of Unit Helper. M.A No.780/2021 was filed to vacate the interim order which was considered by the Tribunal exactly a year later on 28.06.2022. The M.A applicants contended that the 2nd Applicant had already got promotion and the 1st Applicant was not eligible for consideration since he has not completed 7 years service. However, no other orders were passed by the Tribunal and the interim order has been continued till date. We must note that it has been submitted by the respondents that in the O.A the interim order has been affecting their recruitment for the posts concerned. However, in a rejoinder filed by the applicants, they have contested these contentions. They have reiterated their position that even though Annexure A5 was issued identifying 34 posts, not even a single post had been actually filled up by appointing a Person with Disability to the post. Hence, the attitude of the respondents to the issue of giving appointments/promotions to Persons with Disabilities is fully revealed by their non observation of the provisions of the Act. It is clearly against the provisions of the Act 1 of 1996.
15. It is submitted by the applicants in the rejoinder that the contention made by the respondents that the promulgation of the Rights of the -20- Persons with Disabilities Act 2016 has required a fresh identification of posts and that the Annexure A5 order was no longer in existence, is completely baseless. This contention of the respondents only reveals that they are still not ready to promote the applicants under the PWD category and that they are just inventing and trying to find reasons to deny this right to them. It is further pointed out that the Section 102 (2) of chapter XVII of the 2016 Act (Act 49 of 2016) has a provision for 'Repeal and Savings'. It has provided that notwithstanding the repeal of the 1995 Act (Act 1 of 1996), anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act (2016 Act). Hence, it is submitted by the applicants that the Annexure A5 order is to be taken to be still in force and the posts identified as per that order have to be filled up from among the PWD candidates available in the Institute. It is also reiterated that the post of Assistant Laundry Supervisor was one among the 34 posts identified in terms of the 1995 Act by the Annexure A5 order. In other words, any identification of new posts on the basis of the 2016 Act should only be added to the existing Annexure A5 list of posts. The Annexure A5 list of posts thus cannot be superceded as per the 2016 Act, as is been contended by the respondents.
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16. It is further submitted by the applicants that the Committee which had been constituted by the 3rd respondent Institute on 17.01.2020 has not identified any further posts to the best of their knowledge. The applicants are in the dark as to the report of the Committee. It is also contended that while there may be 25 Persons with Disabilities employed in the Institute under the Group C categories, these 25 employees had not been initially appointed under the provisions of the existing right to disabilities Act at that time. They had been given appointment on the basis of merit in the general quota. It is contended that there is no meaning in claiming that these 25 employees are to be considered to be fulfilling the requirement of PWD appointments under the provisions of The Persons with Disabilities Act, 2016. The Institute is duty bound to reserve 4% vacancies over and above these 25 employees, who had joined service on the basis of their merit in the general category. Hence, their other averment that the 3% requirement under the 1995 Act (Act 1 of 1996) was satisfied is also baseless.
17. Drawing from these above contentions, the applicants have submitted that the averment made by the respondent to the effect that in view of of Annexure R1(a), all the arguments made by them (applicants) -22- in relation to Annexure A5 are no longer sustainable in law, is not at all correct. The action taken under the prior Act will have to be continued as an action under the Act of 2016 as stated earlier. Further, the averment that there is no Ladder Promotion for the hospital staff is also not correct. The Vacancy Oriented Promotion is very much in existence in the Institute and at least one post of Assistant Laundry Supervisor is in existence. Though the 1 st applicant is qualified to be appointed to the said post, the respondents have not taken any steps to do so. The said post is being given 'in charge' to the senior most Unit Helper for the last many years. In other words, the Assistant Laundry Supervisor, which was a post in existence before 2016, and was also a post identified as per Annexure A5 has to be filled up by a Person with Disabilities. The 1 st applicant, even though he was available, was not appointed to the post. The conduct of the Institute is thus against the principles of the Act of 2016.
18. It is also contended in the rejoinder by the applicants that while the averment made by the respondent, that the 2 nd Applicant since been appointed as Unit Helper as per Annexure R1(b) order dated 30.06.2021 is correct, it is to be noted that the said promotion was on the basis of his -23- seniority in the category of Cleaning Assistant-A. It is not a promotion on the basis of his disability. Hence, the said appointment cannot be considered to be in accordance with the Act of 2016. In other words, to contend that the 2nd applicant being promoted to the post of Unit Helper establishes that the Institute has been following the provisions of the 2016 Act is absolutely baseless. Any promotion in accordance with seniority and merit cannot be considered as a promotion under the 2016 Act. Further, the contention that identified category of posts and appointments have to be made as per the 100 point vacancy based reservation roster under sub-para 7.1 of Annexure R1(c) is also denied. Since the Institute itself has admitted that the 2 nd applicant was promoted to the higher post in accordance with merit, it shows that he was not promoted on the basis of this roster or on the basis of the 2016 Act.
19. The rejoinder states that if there is a rule in the Institute that an ITI certificate acquired before joining as Cleaning Assistant will not be reckoned as a qualification for promotion to the post of Laundry Supervisor (as is being contended in relation to the 1 st applicant) then it is absolutely baseless and makes no sense. Further, the averment that for Assistant Laundry Supervisor, 7 years individual or combined experience -24- as Unit Helper/Cleaning Attendants/Office Attendant is required is also not 'fully' correct. As far as PWD candidates are concerned it is submitted that the requirement of experience should be relaxed. They should be considered for promotion in the spirit of the provisions of the Act of 2016. Further, it is also contended that by the time of filing the rejoinder on 22.03.2022, the 1st applicant had attained the requisite experience of 7 years on 15.03.2022. Hence, even though the required experience should not have been insisted for giving promotions to differently able candidates, it should also be noted that in any case the 1 st applicant has since satisfied the said requirement. Thus he is eligible to be appointed to the post of Assistant Laundry Supervisor.
20. The respondents have countered the above points by filing a series of documents and judgments. As regards the contention made that the 25 Persons with Disabilities were engaged on merit, it is clarified that the Institute had provided 25 posts in the Group C cadre for engaging persons with disabilities by extending age relaxation for them in period between 2005 and 2014. The number of Persons with Disabilities has now become 9% of the total cadre strength, which is well in excess of the 3%/4% provided under the statute. The applicants and other Persons -25- with Disability listed by the Employment Exchange were all granted the relaxation in age, based on their disability at the time of selection. Thus, it is contended that the applicants cannot be compared with candidates appointed under the general quota who one selected purely on merit ie., without any relaxation as to age, qualification, marks etc. Therefore, once a relaxation in age is granted to the Persons with Disabilities before recruitment, they can no longer be considered as being recruited under the general quota/merit. The contention that no relaxation was extended to any of the physically handicapped candidates is thus baseless.
21. It is also contended by the respondents that necessary steps were taken by the Institute to fill the shortfall vacancies of PWD candidates under Group C category. As already indicated, 3 posts were advertised for PWD candidates as early as 2019. However, this could not be finalised for want of eligible candidates. A copy of the advertisement issued on 25.02.2019 in this connection is produced at R1(b). The Institute even recently issued an addendum to the general notification for filling up the vacancies earmarking many vacancies in the PWD category in the posts of Nursing Officer-A, Speech Therapist, Technical Assistant (Instruments) etc. This addendum dated 23.03.2022 has been produced -26- at Annexure R1(e). It is submitted that the Annexure R1(d) and Annexure R1(e) together invalidate the allegation made by the applicants about taking no steps to comply with the provisions of Act 1 of 1996 as well as the Act 49 of 2016 and the judgments of the Hon'ble Apex Court. The documents produced provide evidence that the Institute had complied with the mandate of 4% reservation as declared by the Hon'ble Apex Court in Govt. of India v. Ravi Prakash Gupta & Ors., [(2010) 7 SCC 626], Union of India v. National Federation of the Blind, [(2013) 10 SCC 772] and Rajeev Kumar Gupta v. Union of India, [(2016) 13 SCC 153].
22. The respondents further further submit that the litigation is an experimental one, solely made to prolong the selection process, so that the 1st applicant acquires the necessary experience qualification for being considered for the Annexure A8 vacancy. It is submitted that the 2 nd applicant having already been promoted against the vacancy notified at Annexure A7 and the 1st applicant not having the necessary qualifications for being considered against the vacancy notified at Annexure A8, the O.A is devoid of any merit and needs to be dismissed. In addition to this, the respondents have provided at Annexure R1(f) a copy of the report of -27- the Expert Committee set up consequent to the 2016 Act which was referred to by the applicant. It is submitted that the earlier Annexure R1(a) order had already identified certain posts of which the post of 'Laundryman' may be seen at Sl.No.252. The Institute had initiated the process of identifying more posts suitable for Persons with Disability within the Institute. The above Committee, had given a detailed report identifying these posts. It has now been sent to Government of India for approval. The copy of the report produced at R1(f) shows that a number of posts have been identified. It is reiterated that the two applicants without the minimum eligibility for the post have no legal right to insist that the Assistant Laundry Supervisor post shall be reserved for them.
23. The respondents also submit that it is not necessary always to provide reservation against all identified posts. Reservation is provided only to the extent of 4% of vacancies even though more than 4% of posts are identified for persons with disabilities. The Institute had strictly followed the 4% reservation now in the notifications impugned by the original applicant. Further, the respondents also produce a copy of the judgment passed on 07.02.2023 in WPC No.13950/2022 passed by the Hon'ble High Court of Kerala in the matter of All India Differently Abled -28- Federation (Kerala State Committee) vs. Directorate of Social Justice Kerala, Director Sree Chitra Tirunal Institute for Medical Science and Technology (SCTIMST) and Ors. As per the respondents, the Hon'ble High Court after having gone through the averments made by the Institute had confined its directions in the matter of recruitment and promotion of PWD candidates to the extent only that the Institute fill up posts in conformity with statutory provisions. It was directed that the Commissioner for Persons with Disabilities, Ministry of Social Justice & Empowerment, Govt. of India would monitor the effective implementation of the decision of the Court.
24. After a careful hearing of all the contentions and also after perusal of all the records, we are of the view that the applicants in this O.A have failed to make their specific case that there has been illegality or malafide in the decisions made by the Institute, specifically in regard to the posts being sought for by both of them. Clearly the Applicant No.1 was not eligible at the relevant point of time of the notification at Annexure A8 for being considered for the post of Assistant Laundry Supervisor due to the various factors that have been mentioned. Even if the Applicant No.2 had been promoted to the post of Unit Helper on the basis of his -29- seniority, the fact remains that he has got the promotion that he sought for in the O.A whatever be the basis for the same. This Tribunal is not supposed to deal with the more general issue of whether the Institute has strictly followed the provisions of Persons with Disabilities Act in terms of actual filling up all the posts under the 2016 Act. As noted even the Hon'ble High Court of Kerala left this monitoring to the Commissioner for Persons with Disabilities as that is the correct formula for the same. No other employee is in front of us in this regard and it is clear, as was mentioned earlier, that the applicants herein were not considered for the post for which they had applied as they did not fulfill the required qualifications. The rest of the documents provided in relation to whether the Institute has followed the procedures for recruitment or reservation for promotion therefore, are only academic and not relevant for consideration in further detail in the light of this specific finding.
25. We also note that the Institute has stoutly defended its action by producing a series of documents to establish that they have followed every single relevant Office Memorandum or direction by Govt. of India. As noted, the Hon'ble High Court in WPC No.13950 solely gave directions to the Commissioner with Persons with Disability to monitor -30- the filling up of the posts. Hence we are not passing any more orders in this regard.
26. The O.A is accordingly dismissed. We make no order as to costs.
(Dated this the 19th day of January, 2024)
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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List of Annexures
1. Annexure A-1 - True copy of the Notification
No.P&A.II/328/UH/SCTIMST/2021 dated 20.05.2021 issued by the 3 rd respondent Institute.
2. Annexure A-2 - True copy of the Disability Certificate issued to the 1st applicant dated 02.11.2010 by the Medical Board.
3. Annexure A-3 - True copy of the Disability Certificate dated 30.10.2004 issued to the 2nd Applicant by the Medical Board.
4. Annexure A-4 - True copy of the communication No.P & A.II/80/SCTIMST/2013 dated 06.05.2015 issued by the Institute to the 1st applicant.
5. Annexure A-5 - True copy of the Order P&A.I/X/57/SCTIMST/2014 dated 26.12.2014 issued by the Director of the 3rd respondent Institute.
6. Annexure A-6 - True copy of the Judgment in WA No.1605/2018 dated 06.02.2020 of the Hon'ble High Court of Kerala.
7. Annexure A-7 - True copy of the Notification No. P&A.II/328/UH/SCTIMST/2021 dated 20.05.2021 issued by the 3 rd respondent Institute.
8. Annexure A-8 - True copy of the Notification No. P&A.II/361/Asst. Laundry Supvr./SCTIMST/2021 dated 20.05.2021 issued by the 3rd respondent Institute.
9. Annexure A-9 - True copy of the Representation No.DEWASERO-6/2021 dated 04.06.2021 submitted by the Association representing the applicants to the Institute.
10. Annexure A-10 - True photocopy of the proceeding No. P&A.I/188/SCTIMST/2020 dated 06.07.2020 issued by the Administrative Officer Grade-I to the applicants.
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11. Annexure A-11 - True photocopy of the communication No. P&A.VI/SCTIMST/2020 dated 29.08.2020 issued by the Administrative Officer Grade-I to the Liaison Officer.
12. Annexure R-1(a)- A true copy of the relevant pages of the notification No. 38-16/2020-DD-III dated 04.01.2021 issued on behalf of the Ministry of Social Justice and Empowerment.
13. Annexure R-1(b)- A true copy of the Order No. P&A/II/328/UH/SCTIMST/2021 dated 30.06.2021 issued on behalf of the 1st Respondent.
14. Annexure R-1(c) - A true copy of the O.M. No.36/035/02/2017- Estt (Res) dated 15.01.2018 issued by the DoPT.
15. Annexure R-1(d)- A true copy of the Advertisement No. P&A/II/11/JSSC/SCTIMST/2019 dated 25.02.2019 issued on behalf of the Institute.
16. Annexure R-1(e) - A true copy of the Addendum issued as per Advt. No. P&A.II/472/JSSC/SCTIMST/2022 dated 23.03.2022 by the Institute.
17. Annexure R-1(f) - A true copy of the report on the right of persons with disability by the committee constituted by the Director.
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