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4. The Respondent then applied for promotion under the physically handicapped person’s quota after availing all facilities of restructured Cadre on the basis of the OM No.36035/8/89-Estt.(SCT) dated 20.11.1989, which was considered and rejected by BSNL on the ground that no relaxation/reservation in promotion was permissible under schemes for physically handicapped persons as in the case of Scheduled Caste/Scheduled Tribe (SC/ST in short) officials. Further, it was also noticed that the respondent’s appointment was not under physically handicapped quota. The Respondent, aggrieved by the rejection order passed by the BSNL filed a complaint before the Commissioner, praying that he should be given promotion to the post of Lower Selection Grade (LSG in short) (Section Supervisors) retrospectively w.e.f. 20.11.1989 and to the upgraded clerical posts of TOA Grade-III (Senior Section Supervisors) and TOA Grade-IV (Chief Section Supervisors) w.e.f. 07.02.1996. The Chief Commissioner entertained the complaint and registered case No.1109/2001 under Section 59 of the Act of 1995. The Commissioner after hearing parties and examining various contentions passed the following order on 26.12.2002. The operative portion of the same reads as under:

01.07.1999. He later applied for promotion under the physically handicapped quota after availing of all the facilities of restructured cadre. In fact, he claimed promotion to the post of LSG (SS) with retrospective effect w.e.f.20.11.1989 and to the upgraded clerical post of TOA Grade-III (Sr. SS) and TOA Grade-IV (CSS) w.e.f. 07.02.1996, which was rejected by the Department.

9. We notice that the promotion in the physically handicapped quota was limited to certain categories of posts as identified by the High Powered Committee constituted for the purpose of identification of the cadre. The High Power Committee was constituted by the erstwhile Telecommunication Department for identifying the post to which physically handicapped persons could be promoted under the physically handicapped reservation quota. The High Power Committee had identified five cadres for promotion and they were JTO, JAO, Stenographers, JE (Civil) and JE (Electrical). The operative portion of the Circular dated 1.5.1997 reads as follows:

“Now, it has been decided to have a reservation of 1.5% each for partially hearing impaired which can be improved with hearing aid and for locomotive disability effecting one leg or limb only in the vacancies in the cadre of JTO, JAO, JE (Civil), JE (Electrical) and Stenographers for direct recruitment quota as well as department quota.”

10. We notice that the cadre of clerks was not identified for the purpose of promotion under the physically handicapped reservations. Since the respondent was a TOA, he could not be considered for physically handicapped quota in Sr. TOA cadre. TOA cadre was introduced in the circle office w.e.f. 09.09.1992 and the Respondent had opted for TOA pattern with effect from the said date and it was with his own consent. Consequently, the respondent was working as TOA at the relevant time which was not identified for the purpose of reservation for physically handicapped persons and hence his claim for promotion to Grade-IV could not be allowed since the promotion to the Grade was based on seniority in the basic cadre and in fact there was no reservation even for SC/ST candidates for promotion to Grade-IV.

11. We are of the view that the Chief Commissioner as well as the High Court have failed to appreciate that the respondent was working in a cadre in which there was no reservation for promotion under physically handicapped quota. Further exclusion of TOA cadre from the promotional post of physically handicapped persons is due to a policy decision of the Government of India taken by the then Department of Telecommunications. In such circumstances, the Chief Commissioner has no power under Section 59 of the Act of 1995 to direct the inclusion of TOA cadre in the list of identified posts and then to order preparation of reservation register for physically handicapped persons and to consider the claim of the respondent for promotion under the reserved vacancies for the various Grades under TOA.