Central Administrative Tribunal - Madras
S Thavamani vs M/O Defence on 30 July, 2024
1 OA No.310/00322/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00322/2017
Dated this the 30th day of July, Two Thousand Twenty Four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI,MEMBER(A)
AND
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
S. Thavamani,
Machinist HS I,
HTP T.No.22094/764,
Engine Factory, Avadi (EFA). .. Applicant
By Advocate M/s R. Rajesh Kumar
Vs.
1.The General Manager,
Enginer Factory Avadi (EFA),
Avadi, Chennai.
2.Asst Works Manager,
Enginer Factory Avadi (EFA),
Avadi, Chennai. .. Respondents
By Advocate Mr. G. Dhamodaran
2 OA No.310/00322/2017
ORDER
(Pronounced by The Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A) Through this original application the applicant sought the following relief "may pleased to quash the Impugned order dated 17.01.2017 bearing No. EFA/A/ADMIN/014/REPN and direct the respondent to grant promotion to the applicant to the post of HS from 20.05.2003 instead 05.03.2005 with all consequential financial and attended benefit in lieu it and to pass such or other order as this Hon'ble court may deem fit and proper in the circumstance of the case and thus render justice".
2. Brief facts of the case, as submitted by the applicant are as follows:
On 31.12.1997, the applicant was appointed in the respondent organization as Machinist, under Persons with Disability (PWD) quota. The applicant submits that he ought to have been promoted to the post of HS on 20.05.2003, itself, under the PWD Quota, but the reservation for physically disabled was not followed by the respondents and, finally, the applicant was promoted as HS, on 05.03.2005. The applicant was promoted to the post of HS-1 during grade restructuring. The applicant gave representation on 01.07.2006 to grant him promotion on 20.05.2003 itself, after implementation of reservation for PH Quota, but the same was not responded to by the respondent. The applicant has made representations to the respondent on 07.04.2016 & 14.11.2016. The applicant submits that, finally, the respondent passed the impugned order, 3 OA No.310/00322/2017 on 17.01.2017, stating that the request of the applicant cannot be considered. Aggrieved by the same, the applicant has filed this present Original Application.
3. The learned counsel for the applicant, Mr. R. Rajesh Kumar, contended that the applicant has been making representations to consider his name on merits and to consider his HS promotion on 20.05.2003, the actual date on which the applicant ought to have been promoted to HS, as per the Reservation Roster for PWD, instead of 05.03.2005. He submitted that the respondents even after admitting that the Reservation Roster for the Disabled was not followed from 01.01.1996 to 01.01.2005, declined to give promotion to the applicant from the date on which the reservation for the Disabled fell due.
4. He further contended that the respondent ought to have implemented the reservation policy for Physically Handicapped as per Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and the DOPT OMs No.36035/3/2004/ESTT (RES), dated 29.12.2005, and OM, dated 18.02.1997, bearing No.36035/7/95-Estt(SCT). He further contended that because of non-
consideration of the application for promotion from 20.05.2003 instead of 05.03.2005, the applicant has lost an opportunity to be promoted to HS-1 4 OA No.310/00322/2017 earlier and the emoluments, in lieu of MACP were curtailed. He further contended that even though the applicant had made representations, the same had been rejected by the impugned order, which was cryptic.
5. He relied on the following decisions in support of his contentions and pleaded for the relief sought in the OA:
(i) Judgment, dated 07.07.2010, of the Hon'ble Apex Court in SLP (C) No.14889 of 2009 (Para No.15)
(ii) Judgment, dated 28.06.2021, of the Hon'ble Apex Court in Civil Appeal No.59 of 2021 (Para No.12, 13, 19 & 20)
6. Per contra, the learned counsel for the respondents, Mr. G. Dhamodaran, vehemently opposed the submission of the applicant. He contended that, as per the applicant's eligibility, he was promoted to HS-1 grade, under the PWD reservation, superseding his seniors in the normal category, with effect from 01.07.2006, and, thus, the contention of the applicant that the respondent suddenly changed the promotion date of the applicant, from 01.01.2006 to 01.07.2006 is totally false. As regards promotion of Master Craftsman/Chargeman Technical/Mechanical, there is no reservation for PWD category since these posts are categorized as Group 'B'. As per DoPT OM No.36035/3/2004/ESTT (Res), dated 29.12.2005 (R-2), reservation in promotion to PH employees is available only in Group 'C' & 'D'. Therefore, no reservation can be extended to the applicant for promotion to a Group 'B' post.
5 OA No.310/00322/20177. He further contended that regarding reservation in direct recruitment or promotion for PWD category, the DoPT has issued consolidated instructions vide its OM No.36035/3/2004/Estt (Res), dated 29.12.2005. As per that all establishments shall maintain separate 100- point Reservation Roster Registers, in the prescribed format, for determining/effecting reservation for the disabled. Since the consolidated instructions on mainttenane of reservation roster for PWD was received during the year 2005, and promotions under PWD reservations were operated during the year 2005. He further contended that the DoPT instructions cited supra have not given any specific direction to operate the promotion, retrospectively.
8. He further submitted that the representations made by the applicant was considered and a speaking order was passed by the respondents.
Therefore, he pleaded for dismissal of the OA.
9. We have heard the learned counsel for the applicant Mr. S. Rajesh Kumar and the learned counsel for the respondent Mr. G. Dhamodaran, perused the pleadings, materials on records and the citations cited by the applicant.
10. The issue involved in the present case is that "whether the applicant 6 OA No.310/00322/2017 is entitled to promotion to HS, from 20.05.2003 instead of 05.03.2005, even though the reservation roster was not maintained by the respondent prior to 2005
11. The issue is no more res integra and the Hon'ble Apex court has dealt this issue in an elaborate manner in the judgment reported in AIRONLINE 2021 SC 315, dated 28.06.2021, the relevant portion of which is extracted below:
12. Mr. Gaurav Agrawal, learned Amicus Curiae, submitted an exhaustive written note setting forth the judicial pronouncements and set out four issues which would arise for consideration. We now proceed to discuss each of the four aspects hereinafter:
I. Whether the 1995 Act mandates reservations in promotions for persons with disabilities?
13. A broad aspect sought to be submitted before us is that Sections 32 and 33 of the 1995 Act had to be interpreted in juxtaposition and consonance with Section 47 of that Act which reads as under:
"47. Non-discrimination in Government employment. --
(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. 7 OA No.310/00322/2017 (2) No promotion shall he denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
14. The legislative mandate has to be understood in the aforesaid context as it provides for equal opportunity for career progression, including promotion. Thus, it would be negation of the legislative mandate if promotion is denied to PWD and such reservation is confined to the initial stage of induction in service. This would in fact result in stagnation of the disabled in a consequential frustration.
XXXXX XXXXXX XXXXXX II. Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?
19. On a plea of the learned Amicus Curiae, which we unhesitatingly accept, there can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. In fact, identification of posts for purposes of reservation had to take place immediately after the 1995 Act. A resistance to such reservation is obvious from the delaying tactics adopted by most of the government authorities in truly implementing the intent. It thus shows that sometimes it is easier to bring a legislation into force but far more difficult to change the social mind set which would endeavour to find ways and means to defeat the intent of the Act enacted and Section 32 was a classic example of the same. In Government of India & Anr. vs. Ravi Prakash Gupta & Anr.(supra) also, this Court mandated the identification of posts for purposes of reservation. Thus, what is required is identification of posts in every establishment until exempted under proviso to Section
33. No doubt the identification of the posts was a 8 OA No.310/00322/2017 prerequisite to appointment, but then the appointment cannot be frustrated by refusing to comply with the prerequisite. This view was affirmed by a larger Bench of three Judges in Union of India vs. National Federation of Blind (supra).
III. Whether in absence of a provision in the Rules for reservation in promotion for PWD, whether promotion can be denied to a PWD?
20. The aforesaid issue was raised by learned Amicus Curiae in the context of the plea of the appellant State that the State does not provide for any reservation in promotion for PWD. Thus, a person with disability would be considered for promotion along with other persons working in the feeder cadre. We have no doubt that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PWD and such posts have to be reserved for PWD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PWD. There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PWD who have been promoted. The absence of rules to provide for reservation in promotion would not defeat the rights of PWD to a reservation in promotion as it flows from the legislation and in our view, this is the basis of the mandate of this Court in Rajeev Kumar Gupta's and Siddaraju's cases (supra).
IV. Whether the Respondent can be promoted by giving benefit of reservation as she is a PwD, despite the fact that she was not appointed in the PwD quota?
26. If we may say so, this was the most crucial issue which persuaded us to grant leave in the SLP. The direction in the impugned order was for the respondent to be considered for the promotion based on disability at the 9 OA No.310/00322/2017 time when the claim originally arose, but subject to her seniority with reference to other PwD candidates entitled to such reservation. She was also held entitled to the notional benefits of her promotion from the date she was so found entitled. In the factual context, it has been pointed out by learned Amicus Curiae that the respondent had claimed a promotion to the post of UDC with effect from 1st July, 2002 and further to the post of Cashier with effect from 20th May, 2012. The endeavour of the Amicus Curiae was to obtain necessary information from the appellant-State and to seek their response. In this behalf, it has been pointed out that The Ministry of Social Justice and Empowerment in the Department of Empowerment of Persons with Disabilities (Divyang), Government of India has undertaken a very comprehensive exercise of identifying posts which can be reserved for PwD and the list of such posts are available on the website. From that it appears that the post of UDC/Cashier would be amenable to reservation for PwD and thus there can be little doubt that the respondent has been capable of discharging functions of the promotional post and thus could not be denied the benefit of reservation (even if Rules do not provide for any reservation in promotion) as repeatedly observed by us that Section 32 of the 1995 Act is to facilitate but not to impede the legislative mandate.
27. Now coming to the question of the respondent not being initially appointed in the quota for PwD in the feeder cadre, we note that there is no dispute about the benchmark disability of the respondent. It would be discriminatory and violative of the mandate of the Constitution of India if the respondent is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed, she is to be identically placed as others in the PwD cadre. The anomaly which would arise from the submission of the appellant-State is apparent - a person who came in through normal recruitment process but suffers disability after joining service would on a pari Materia position be also not entitled to be considered to a vacancy in a promotional post reserved for a PwD. This is the consequence if the entry point is treated as determinative of the entitlement to avail of the benefits. Source of recruitment ought not to 10 OA No.310/00322/2017 make any difference but what is material is that the employee is a PwD at the time for consideration for promotion. The 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service. Similarly, the same position would be with the person who may have entered service on a claim of a compassionate 17 appointment. The mode of entry in service cannot be a ground to make out a case of discriminatory promotion.
12. In view of the decision of the Hon'ble Court Apex Court in the judgment cited supra, we conclude that the applicant will be entitled to the promotion from the earlier date, even though the respondent is not maintaining the reservation roster.
13. For the foregoing reasons and in terms of the decision cited supra we are convinced that the applicant has made out a case and is entitled to the relief sought in the present OA. In view of the same, the impugned order, dated 17.01.2017 is liable to be set aside and it is accordingly, quashed and set aside. We direct the respondents to grant the applicant the consequential benefits within three months from the date of receipt of this order.
14. In the result the OA is allowed. No order as to costs.
(M. SWAMINATHAN) (VARUN SINDHU KUL KAUMUDI)
MEMBER(J) MEMBER(A)
mas 30 . 07. 2024
11 OA No.310/00322/2017