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By this common order, we propose to dispose of two connected matters, i.e., Transferred Application No.188/2009 and Original Application No.1343/2009, as common questions of law and facts arise in both the cases. Learned counsel representing the parties would also suggest likewise. Whereas, the Transferred Application was numbered as above on its transfer, primary jurisdiction to deal with the issue having been vested with this Tribunal, vide order dated 21.1.2009 passed by the High court of Delhi, Original Application No.1343/2009 came to be filed directly before this Tribunal. The issue involved in both the Applications is as to whether the applicants who are physically handicapped and are holding Group A or B posts, would be entitled for reservation in promotion, either because of the provisions contained in the Act known as The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter to be referred as the act of 1995), or because of any standing orders/instructions that may have been issued by the Government on that behalf. Inasmuch as, only law point is involved, which needs to be adjudicated by this Tribunal, there would be no need to give facts in detail. Suffice it may be, however, to mention that H. C. Sharma, applicant in TA No.188/2009, employed in New Delhi Municipal Council, the 1st respondent, filed WP (C) No.1241/1997 before the High Court of Delhi under Article 226 of the Constitution of India seeking to quash and set aside two office memoranda of even date, i.e., 18.2.1997, and to declare both the memoranda as illegal, null and void and ultra vires of the Constitution of India. In consequence of setting aside the memoranda aforesaid, the applicant seeks a direction to be issued to the 1st respondent to give benefit of eight years of service rendered by him from 7.5.1985 to 3.5.1990 on deputation as Technical Officer (Works) in Kendriya Vidyalaya Sangathan, and further to direct the respondent to give him benefit of reservation as admissible to physically handicapped persons as per the provisions of the Act of 1995 in the post of Executive Engineer filled by promotion. Pleadings may be there, but there is no argument with regard to any of the issues raised in the Application, but for entitlement of the applicant for reservation in promotion on the post of Executive Engineer. The applicant originally joined service of the 1st respondent as Junior Engineer (Civil) on the basis of selection on merit through direct recruitment on 23.2.1978 in the general category having secured 78% marks and having stood first in his batch of diploma holders. He passed the AMIE examination (equivalent to BE degree) in the year 1984. It is the case of the applicant that on the basis of his qualifications and consistent good record of service, he was selected by the Kendriya Vidyalaya Sangathan for higher post of Technical Officer in the pay scale of Rs.2000-3500 (equivalent to the post of assistant Engineer in the 1st respondent NDMC) on deputation basis. He remained on deputation with the said organization and worked in the higher post of Technical Officer for a period of five years. While he was away on deputation, he was confirmed as Junior Engineer (Civil) in substantive capacity with effect from 9.9.1986, vide order dated 4.5.1987. The applicant because of physical disability, seeks promotion by reservation in the light of the provisions contained in the Act of 1995. The applicant is stated to be having disability to the extent of 54% post polio residual paralysis left lower limb. As mentioned above, there are other facts and issues raised in the Transferred Application, but nothing based thereon at all has been urged during the course of arguments. The relief, i.e., promotion to the next higher post, is being prayed exclusively on the basis of reservation for promotion.

4. Before we may proceed any further in this case, we may mention that in the order passed by us on 26.3.2009 we observed that the learned counsel representing the applicant placed reliance upon a judgment of the Honble High Court of Delhi in Union of India through chairman, Railwa Board v S. Jagmohan Singh [WP(C) No.11818 and 13627-28/2004, decided on 7.12.2007]. We have already observed that the High Court in the said case was dealing with a case which pertained to reservation for physically handicapped persons in Group C and D posts. Even though, instructions in that regard were in existence, the Railway Board denied reservation to handicapped persons. There was no issue with regard to reservation in promotion for physically handicapped persons in Group A and B posts. Learned counsel for the applicant, however, relied upon the observations made by the High Curt. Pertinent reliance was upon paragraph 21of the judgment, which reads as follows:

It is clear from the above that point No.34 and 67 in the cycle of 100 are now earmarked for reservation for physically handicapped and, thus, reservation is admissible even for Group A & B posts in promotion category and not only at the induction level. We are of the opinion that this OM is brought in tune with the letter and spirit behind Section 33 of the Disability Act. During the course of hearing, counsel for the applicant had himself brought to our notice that vide OM dated 22.12.2005 issued by DOP&T with a view to consolidating the existing instructions, bringing them in line with the act of 1995 and clarifying certain issues including procedural matters, a new set of instructions have been issued, and the said instructions would supersede all earlier instructions on the subject so far. The observations made by the High Court as extracted above, came to be made in the context of corrigendum issued by the DOP&T dated 4.7.1997 dealing with reservation for physically handicapped persons whereby points 33, 67 and 100 have been reserved for physically handicapped persons. The said instructions and all other instructions dealing with reservation for physically handicapped, it was the case of the parties, and so is it now as well, have since been superseded. In the instructions emanating from OM dated 22.12.2005, there does not appear to be any provision with regard to reservation in promotion for handicapped persons in Group A and B posts. The observations made by the Division Bench of the High Court with regard to reservation in promotion for handicapped persons in Group A and B posts may not be applicable as the same were based on the earlier instructions which have since been superseded. From the material available on records, insofar as the cases in hand are concerned, it may, however, appear that no earlier instructions had provided any reservation in promotion for physically handicapped persons in Group A and B posts. In that context, we may refer to the reply filed by DOP&T which came on records, as mentioned above, as per directions issued by us, as also the reply filed by NDMC.

5. In the reply filed by DOP&T, position with regard to the instructions has been made clear. It has been inter alia pleaded that reservation in promotion for persons with disabilities in Group C and D posts was introduced by DOP&T vide OM dated 20.11.1989 (annexure R-2). It is pleaded that reservation in promotion for persons with disabilities was never available in case of promotions made to Group A and Group B posts. Consequent upon notification of the Act of 1995, DP&T issued OM dated 18.2.1997 (Annexure R-3) stating that with the enactment of the Act, reservation to physically handicapped persons stood extended to identified Groups A and B posts filled through direct recruitment. The said OM provides that a separate 100 point roster would be maintained to implement the reservation so introduced and points 33, 67 and 100 of the roster would be reserved for physically handicapped. It is then pleaded that the government received representations to the effect that persons with disabilities would have to wait for long to get appointment by reservation in view of the fact that points 33, 67 and 100 had been earmarked reserved, and it was represented that points 1, 34 and 67 should instead be earmarked reserved. On considering the representations, the Government decided to modify the OM dated 18.2.1997 partially to the effect that points 1, 34 and 67 would be earmarked reserved. The modification was carried out by DOP&T vide OM dated 4.7.1997 (Annexure R-4). It is pleaded that that the said OM would show that it only modified the instructions in regard to the reserved points in the roster. The OM, it is pleaded, did not state that reservation would be available in case of promotion, and that had there been an intention of the government to introduce reservation in promotion, it would have stated so in very clear terms, as is done in all cases relating to policy decisions. The OM dated 4.7.1997 rather declared a new decision only with regard to roster points 1, 34 and 67 in place of roster points 33, 67 and 100. Reference is then made to DOP&T OM dated 29.12.2005 (Annexure R-5) which is stated to have superseded all previous OMs issued on the subject. Existing instructions in relation to reservation for persons with disabilities in promotion, as contained in OM dated 29.12.2005, read as follows: