Oral Judgment: (Smt. Vasanti A. Naik, J.)
1. By this petition, the petitioners impugn the order of the Commissioner, Welfare of Disabled, Pune dated 9.10.2007, directing the petitioners to promote the respondent no.3 on the post of Senior Assistant.
2. The respondent no.3 was appointed by the petitioner - New India Assurance Company Limited as Office Assistant in the year 1989. The respondent no.3 completed 17 years of satisfactory service when the petitioner - company notified six posts of Senior Assistants. Of the six posts that were notified, five were earmarked for the open category and one was earmarked for the physically disabled. Admittedly, the respondent no.3 suffers from 80% physical disability inasmuch as she does not have the left arm. The respondent no.3 applied for the post of Senior Assistant. She was considered along with the other physically disabled candidates but the petitioner - company declined to grant promotion to the respondent no.3. Being aggrieved by the action of the petitioner - company of appointing all the six Senior Assistants from the open category, the respondent no.3 filed an application under Section 62 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 before the Commissioner, Welfare of Disabled, Pune. The said application was allowed by the Commissioner by the impugned order dated 9.10.2007. The Commissioner directed the petitioner - company to promote the respondent no.3 on the post of Senior Assistant. The petitioner - company has challenged the order in the instant petition.
3. While issuing Rule in the writ petition, this Court had not granted any interim relief in favour of the petitioner - company. It was, therefore, necessary for the petitioner - company to have promoted the respondent no.3 on the post of Senior Assistant. However, since this was not done, the respondent no.3 approached the Commissioner for seeking implementation of the order dated 9.10.2007. Despite the direction of the Commissioner to immediately promote the respondent no.3 on the post of Senior Assistant, the petitioner - company has failed to promote the respondent no.3 on the post of Senior Assistant.
4. Shri Sudame, the learned Counsel for the petitioner-company submitted that the Commissioner, Welfare of Disabled did not have jurisdiction to direct the petitioner - company to promote the respondent no.3 on the post of Senior Assistant. It is stated that the Commissioner is not empowered to issue such directions and the Commissioner can, under the provisions of the Act of 1995 only take up the matter with the appropriate authorities. The learned Counsel relied on the judgment of the Hon'ble Supreme Court reported in (2010) 4 SCC 368 (State Bank of Patiala and others Versus Vinesh Kumar Bhasin) to substantiate his submission. It is submitted that the Commissioner, Welfare of Disabled, did not have jurisdiction to issue the direction, as issued in the instant case.
5. It is also submitted on behalf of the petitioner - company that the respondent no.3 was rightly denied promotion in view of the instructions in the office memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, dated 29.12.2005. It is submitted that the petitioner - company was entitled to prepare a panel of persons eligible for promotion in terms of the eligibility criterion and the panel in respect of one vacancy for the post of Senior Assistant should have comprised of four candidates. It is submitted that in view of instruction 18(a) of the office memorandum dated 29.12.2005, the respondent no.3 did not fall within the normal zone of consideration though she was eligible to be promoted on the post of Senior Assistant. It is submitted that it is in view of instruction 18(a) of the office memorandum dated 29.12.2005 that the petitioner - company has declined to promote the respondent no.3 on the post of Senior Assistant. It is, however, fairly submitted on behalf of the petitioner that the respondent no.3 is otherwise eligible to be appointed on the post of Senior Assistant and the petitioner - company has no reservations in promoting the respondent no.3.
6. On the other hand, it is submitted on behalf of the respondent no.3 that the Commissioner did have jurisdiction to direct the petitioner -company to promote the respondent no.3 on the post of Senior Assistant. The learned Counsel relied on two decisions of the Hon'ble Supreme Court to substantiate his submission that the Commissioner appointed under the Act of 1996 is empowered to issue such directions to the employer. The learned Counsel relied on the judgments reported in AIR 2010 SC 1542 (State Bank of Patiala and others Versus Vinesh Kumar Bhasin) and AIR 2013 SC 3092 (Geetaben Ratilal Patel Versus District Primary Education Officer) to substantiate his submission. It is submitted that the Hon'ble Supreme Court has held in the judgment reported in AIR 2013 SC 3092 that the Commissioner does have jurisdiction to set aside the order of dismissal, passed by the employer. It is submitted that these judgments have been rendered by the Hon'ble Supreme Court at a subsequent point of time and this Court may consider the same for holding that the Commissioner has jurisdiction to issue directions to the petitioner -company.
7. It is then submitted on behalf of the respondent no.3 that the petitioner - company had prepared an eligibility list and the name of the respondent no.3 is included in the eligibility list of 71 candidates. It is stated that only two candidates, including the petitioner were eligible from the category of physically disabled. It is pointed out by placing reliance on the eligibility list annexed to the petition that of the two eligible candidates, the respondent no.3 had secured 46 marks, whereas the other eligible candidate had only secured 28 marks. It is stated that since the post was notified for a physically disabled employee and since only two physically disabled employees were eligible for appointment on the post of Senior Assistant, it was necessary for the petitioner - company to have promoted the respondent no.3 on the post of Senior Assistant, as she is admittedly more meritorious than the other eligible candidate from the category of physically disabled. It is submitted that it is clear from the perusal of the provisions of the Act of 1995 that it is necessary for an employer to appoint and promote a person from the physically disabled category and when two candidates were available from the said category in the instant case, the petitioner - company ought to have promoted the petitioner who had secured 46 marks as compared to 28 marks secured by the other physically disabled candidate. It is submitted that the respondent no.3 fell within the zone of consideration as could be seen from the list of eligible candidates, annexed to the writ petition. It is submitted that the name of the respondent no.3 fell within the normal zone of consideration and the preparation of panel, as provided in the policy for promotion and relied on by the Counsel for the petitioner, has no applicability to the case in hand. The learned Counsel sought for the dismissal of the writ petition.
8. Shri Doifode, the learned Assistant Government Pleader appearing on behalf of the Commissioner, Welfare of Disabled supported the order passed by the Commissioner and submitted that on a consideration of the provisions of the Act of 1995 and the Instructions dated 29.12.2005, the Commissioner had rightly directed the petitioner -company to promote the respondent no.3 on the post of Senior Assistant.
9. On hearing the learned Counsel for the parties and on a perusal of the decisions of the Hon'ble Supreme court as also the provisions of the Act of 1995, it appears that it would not be necessary for this Court in the peculiar facts and circumstances of this case to consider whether the Commissioner had jurisdiction to direct the petitioner - company to promote the respondent no.3 on the post of Senior Assistant. Admittedly, the respondent no.3 suffers from a physical disability and the disability is up to the extent of 80%. It is also admitted on behalf of the petitioner -company that the performance of the respondent no.3 is not hampered due to the physical disability of the respondent no.3. The petitioner - company does not have any grievance, whatsoever, in regard to the performance of the duties by the respondent no.3. The petitioner - company had declined to promote the respondent no.3 only by placing reliance on the instructions in the office memorandum dated 29.12.2005. Admittedly, as on today a post of Senior Assistant is vacant in the petitioner - company. It is not disputed by the petitioner - company that the respondent no.3 is eligible for being appointed on the post of Senior Assistant. While preparing the list of eligible candidates for promotion to the post of Senior Assistants, the petitioner - company had included the name of the respondent no.3 in the list. It appears that the respondent no.3 was much senior than several eligible candidates and had good academic and technical qualifications. Admittedly, there were only two candidates eligible for being appointed on the post reserved for the physically disabled. Of the two candidates, the respondent no.3 has secured 46 marks, whereas the other eligible candidate has secured only 28 marks.
It was necessary for the petitioner - company to have promoted the respondent no.3 on the post of Senior Assistant as she has secured much higher marks than the other eligible candidate and was more meritorious. It appears that the petitioner - company has wrongly denied promotion to the respondent no.3 by placing reliance on instruction 18 (a) of the Instructions in the office memorandum dated 29.12.2005. It appears form the eligibility list, prepared by the petitioner - company that the respondent no.3 was placed within the normal zone of consideration for promotion. If that is so, the petitioner - company ought to have considered the comparative merit of the two eligible candidates from the physically disabled, and promoted the respondent no.3 on the post of Senior Assistant. We do not find anything in instruction 18 (a) which entitles the petitioner - company to decline promotion to the respondent no.3. In fact, the instructions in the office memorandum dated 29.12.2005 are issued with a view to fulfill the object of the Act of 1995. The office memorandum mentions that the instructions in the said office memorandum dated 29.12.2005 would supercede all the previous instructions issued on the subject. There is nothing in the office memorandum dated 29.12.2005 which entitles the petitioner - company to decline promotion to the respondent no.3 on the ground that she did not fall within the normal zone of consideration. The Counsel for the petitioner is not able to point out anything in the office memorandum dated 29.12.2005 that defines the 'normal zone' of consideration.
We find that the petitioner - company had prepared the list of eligible candidates and had found the respondent no.3 and one other candidate to be eligible for promotion on the post of Senior Assistant from the physically disabled. We find that the petitioner - company has while considering instruction 18(a) of the office memorandum dated 29.12.2005 also considered the promotion policy of the petitioner - company while declining promotion to the respondent no.3. The petitioner - company has wrongly relied on clause 16 of the promotion policy as amended on 17.3.1998 along with the office memorandum dated 29.12.2005. In the facts of the case, we find that the petitioner - company wrongly denied promotion to the respondent no.3 though she was eligible for promotion on the post of Senior Assistant and had secured much higher marks than the other physically disabled candidate. Since the petitioner - company has no reservations in promoting the respondent no.3 on the post of Senior Assistant, but for instruction 18(a) of the Instructions in the office memorandum dated 29.12.2005 it would be necessary for the petitioner - company to promote the respondent no.3 on the post of Senior Assistant as we find nothing in instruction 18(a) of the Instructions in the office memorandum dated 29.12.2005, which entitles the petitioner - company to decline promotion to the respondent no.3.
Even assuming that the Commissioner did not have jurisdiction to direct the petitioner - company to promote the respondent no.3 on the post of Senior Assistant, we find nothing wrong in the conclusion or decision of the Commissioner, Welfare of Disabled that the respondent no.3 was entitled to be promoted on the post of Senior Assistant. In view of the provisions of the Act of 1995, it was necessary for the petitioner - company to have promoted the respondent no.3 on the post of Senior Assistant when one post was earmarked for the physically disabled. The action on the part of the petitioner - company to fill the post earmarked for the physically disabled, by an open category candidate, is clearly illegal.
10. Hence, for the reasons aforesaid, we dispose of the writ petition by directing the petitioner - company to promote the respondent no.3 on the post of Senior Assistant w.e.f. 29.9.2006 within a period of two weeks.
11. At this stage, the learned Counsel for the respondent no.3 seeks a direction to the petitioner-company to pay at least 10% of the difference of arrears of salary for the period from 29.9.2006 till the date on which the respondent no.3 would be actually promoted. It is stated that the petitioner - company has delayed the implementation of the order of the Commissioner, Welfare of Disabled.
12. Shri Sudame, the learned Counsel for the petitioner-company strongly opposes the prayer made by the Counsel for the respondent no.3 and states that in a matter of promotion this Court would be slow in granting the difference in arrears of salary, specially when the respondent no.3 has not worked on the post of Senior Assistant. At the most, it is submitted that since the respondent no.3 is physically disabled, some notional amount as compensation may be directed to be paid by the petitioner - company.
13. We uphold the objection raised on behalf of the petitioner -company and decline to direct the petitioner - company to pay the difference in arrears of salary to the respondent no.3. We, however, direct the petitioner - company to pay Rs.10,000/- (Rupees Ten Thousand Only) to the respondent no.3 towards litigation charges. In the facts of the case, there would be no order as to costs.