Mrs. K. Noorjehan, Administrative Member
This O.A. has come up before us pursuant to the direction of the High Court of Kerala in W.P.No. 25972/2006 remitting the matter to the Tribunal for fresh disposal of the OA. in accordance with law in the light of certain observations made in the W. P.
2. The brief facts of the case are that the applicants are working as Clerks/Typists under the 3rd respondent. They are physically challenged persons having disability above 40%. When the respondents refused to transmit their representations requesting reservation in the cadres of Accountant, Senior Accountant and Group-B Section Officer with retrospective effect from 20.11.1989, the date on which the Government introduced reservation, to the CandAG, New Delhi, they approached this Tribunal by moving O.A. 506/2001 which was disposed of directing the respondents to consider and dispose of the same in accordance with the policy on the matter. Pursuant to the above directions, the representations were considered but rejected by the respondents stating that the benefit of reservation would be applicable to the applicants only w.e.f. 14.9.2001. Aggrieved by the rejection order, the applicants approached the Tribunal through this O.A. claiming the aforesaid reservation in the cadres of Accountant, Senior Accountant and Group-B Section Officer with retrospective effect from 20.11.1989. The Tribunal by its order dated 4.4.2002 held as follows:
"We have heard the learned counsel for the applicants and have perused the materials placed on record. The Government orders in regard to reservation to physically handicapped persons stipulate that reservation can be made towards posts which are identified to be held by physically handicapped persons. The posts of Accountants and Auditors have been identified for reservation to physically handicapped only by order dated 14.9.2001. Therefore, the statement in the impugned order that the reservation would be only prospective cannot be faulted. Since the posts of Section Officer in the IA andAD has not so far been identified to be
reserved for physically handicapped persons, the refusal of the respondents permission to the applicants to appear in the examination granting relaxation also cannot be faulted even prima facie. Under these circumstances, we do not find any legitimate cause of action which calls for admission of the application and its
further deliberations.
4. The application is therefore, rejected under section 19(3) of the Administrative Tribunals Act."
3. The applicants challenged the order through O.P. No. 29952/2002, upon which the High Court set aside the order of the Tribunal and remitted the matter to the Tribunal to be dealt with in accordance with law. The Tribunal heard the matter in detail and disposed of the OA by order dated 6.6.2006 with the following directions:
"In this view of the matter, we direct the respondents to consider the applicants for promotion to the post of Accountant for the reserved quota for physically handicapped for the panel year of 1990 onwards and promote them from the date they become eligible for such promotion as if the post of Accountant had been identified as such for being filled by physically handicapped persons for the purpose of providing reservation in promotion in the year 1990. This exercise shall be completed within a period of three months from the date of receipt of this order. As regards the question of not identifying the post of Section Officer for the purpose of reservation to the physically handicapped persons in promotion, neither the applicants nor the respondents have given any reasons/justification for doing so/not
doing so. The applicants are permitted to make a detailed representation, if they are so advised, in this regard and if it is made, the respondents shall consider the same within a period of three months from the date of receipt of the same and pass a
reasoned and speaking order."
Aggrieved by the order of the Tribunal, the original respondents in the O.A. filed WP(C) No. 25972/06 before the High Court. The High Court while disposing of the same, observed as follows:
"8.............We are of the view that the Comptroller and Auditor General will also be bound by any identification of posts made by the Central Government under Section 32. In other words, the stand of the Writ Petitioners that the identification made by the Comptroller and Auditor General in 2001 alone will bind them cannot be upheld, provided there are orders issued under Section 32 of the Act between the date of enforcement of the Act and 14.9.2001, the date on which Annexure A1 order was issued. To decide the point,there are not sufficient materials before us. So whether retrospectivity can be given to the claim for promotion beyond 14.9.2001 will depend upon the issuance of valid order identifying the post of Accountant or Auditor by the Central Government under Section 32.
9 The learned counsel for the applicants/respondents pointed out that the above posts were already identified by the executive orders issued in 1986 and they were mentioned and incorporated in the subsequent orders issued by the Government,
after the enforcement of the aforementioned Act. Therefore, at least from the date of issuance of such orders, the applicants are entitled to get the benefit of reservation, it is pointed out. We feel that this is a matter which should be considered by the Tribunal having regard to the orders issued by the Central Government after the enforcement of the Act.
For the said purpose, we think the matter should be remitted to the CAT. So, we quash Ext. P-7 and remit the matter to the CAT for fresh disposal of the Original Application in accordance with law in the light of the observations made by us
herein above. The Central Administrative Tribunal shall endeavour to hear and dispose of the matter as expeditiously as possible, preferably within five months from the date of production of a copy of this judgment."
4. The respondents filed reply and additional reply statement. They opposed the O.A. on non-joinder of persons likely to be adversely affected and submitted that the O.A. is against series of decisions of Apex Court that settled seniority and promotion cannot be unsettled after a decade.
5. On merit, they submitted that the OM dated 20.11.89 envisages identification of PH points to effect promotions made to those posts within Gr.D and Gr. C cadres which are identified as capable of being held by the appropriate category of PH. In the Indian Audit and Accounts Department, six different Group-C and Four Group-D posts have been identified for giving reservation to PH employees. They stated that vide letter No.1045-NGE/(App)48-2001 dated 14.9.2001 the post of Accountant was also identified as suitable for being held by PH persons. This was implemented w.e.f. 2002 onwards. They further stated that reservation can be made only towards posts which are identified to be held by PH persons. They stated that the post of Section Officer is not identified as suitable for being held by persons with disabilities for the purpose of providing reservation in promotion.
6. We have heard the parties and perused the documents produced before us. The learned counsel for the parties were granted liberty to file written arguments within a week. The learned counsel for the respondents filed written arguments.
7. The learned counsel for the applicants argued that denial of the benefit of DOPT OM from the date of its issue is illogical and without jurisdiction. All the persons selected along with them and posted in other departments are enjoying the benefit w.e.f. 1989.
8. The learned counsel for the respondents. submitted that the claim of the applicants is badly barred by limitation as held by Hon'ble Apex Court in the case of Ramesh Chand Sharma Vs. Udham Singh Kamal (1999) 8 SCC 304. It is also argued that settled matters of seniority and promotion cannot be unsettled after a decade. If the applicants are considered for promotion from retrospective dates, promotions ordered during the period from 1989-2001 will have to be reviewed and the seniority of promoted officials during the period of 12 years will have to be re-arranged which will affect them adversely. Such a review of promotion and seniority will have all India repercussion affecting thousands of officials already promoted.
Further the counsel argued that the non-joinder of necessary parties whose rights may be adversely affected, are not before this Tribunal.
9. It is an admitted fact that the Government of India have introduced reservation of physically handicapped persons on promotion vide OM dated 20.11.1989. There was a stipulation that the posts were to be identified by each department. There is no dispute that the identification of posts for reservation of PH candidates is to be made by each Department. The respondents have asserted that the identification of the posts in the office of the CandAG, New Delhi was done w.e.f. 14.9.2001 only. The grievance of the applicants is that they are entitled to reservation w.e.f. 20.11.1989
ie. from the date of introduction of the reservation by the Govt.
10. While the above is the different contentions of the parties, it is to be made clear that vide the judgment of the High Court, the question for consideration is whether there were any orders on identification of post, subsequent to the coming into force of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and 14.09.2001, when certain posts were identified by the C and AG. The observations of the High Court are as under:
"We are of the view that the Comptroller and Auditor General will also be bound by any identification of posts made by the Central Government under Section 32. In other words, the stand of the writ petitioners that the identification made by the Comptroller and Auditor General in 2001 alone will bind them cannot be upheld,
provided there are others issued under Section 32 of the Act between the date of enforcement of the Act and 14-09-2001." (Underlining supplied).
11. Remittance of the case back to the Tribunal has been necessitated by the High Court as in its own words, "to decide the point there are not sufficient materials before us. So whether retrospectivity can be given to the claim for promotion beyond 14-09-2001 will depend upon the issuance of a valid order identifying the post of Accountant or Auditor by the Central Government under Section 32". In addition, the High Court has, taking notice of the submission made by the counsel for the applicants (respondents before the High Court) that such identification had already been made in 1986 and they were mentioned and incorporated in the subsequent orders issued by the Government after the enforcement of the aforementioned Act and thus, at least from the date of issuance of such orders, the applicants are entitled to get the benefit of reservation, felt that this is a matter
which should be considered by the Tribunal, having regard to the orders issued by the Central Government after the enforcement of the Act.
12. Thus, the claim from 20-11-1989 is to be outrightly rejected and the case has to be analyzed from the angle as to whether there were any orders on identification of posts subsequent to the date of enforcement of the PWD Act, 1995, i.e. between 01-01-1996 upto 14-09-2001 in respect of identification of posts to be reserved for Physically Handicapped candidates. The same are as under:-
(i) DOPT OM No. 36035/5/84-Estt. (SCT) dated 28.2.86. First orders of Government of India on the subject. The Government of India reserved 3% vacancies against identified posts in Group-C and Group-D for the physically handicapped persons vide DOPT OM No. 36035/5/84-Estt. (SCT) dated 28.2.86. The relevant portion is extracted below:
"........In order to implement reservation orders, Ministries/Departments were requested to identify the jobs which can be performed by the physically handicapped persons without loss of productivity. Subsequently, on the
recommendations of the Occupational Information Unit of the DEGandT, two consolidated lists of jobs in Group-C and Group-D posts suitable for each of these categories of handicapped persons were circulated to all the Ministries and Departments for their information and guidance..... However, it has been felt that the earlier exercise was not adequate and that identification of jobs should be made a continuous process according to the changing needs and requirements. Inadequate identification of jobs is recognised as one of the limiting factors in providing jobs to handicapped person. Thus, in pursuance of the decision of the Central Advisory Committee meeting held on 20.3.84 a sub committee under the chairmanship of the Joint Secretary in the Ministry of Social Welfare was set up by
that Ministry to review identification of jobs to analyse the identification done by the various Ministries/Departments......
3. The Ministry of Finance etc. are therefore, requested to bring these instructions to the notice of all the appointing authorities under their administrative control of, that handicapped persons are given their due share in the matter of employment against identified jobs.
(ii) OM No. 36035/7/95-Estt dated 18.2.1997. On receipt of DOPT OM, reserving 3% posts for the physically challenged, the effort in all the Ministries was to identify posts suitable for the PH category. This involved categorisation of posts, like indoor, outdoor, highly skilled, continuous usage of computer, etc. which itself consumed quite a bit of time. Later the endeavour was to get PH candidates inducted through the direct recruitment in Group-D and Group-C cadres where per centage through direct recruitment ranges from 100 to 50. Perhaps only with the enactment of the
Persons with Disabilities (Equal Opportunities Protection of Rights and full Participating) Act on 1.1.1996, work in right earnest started in the 100 point roster, to earmark slots to effect promotion from Group-D to Group-C cadres and to higher posts within Group-C. This fact is borne out by the clarificatory OMs issued by DOPT
vide its OM No. 36035/7/95-Estt dated 18.2.1997 and OM No.36025/03/97-Estt (Res)dated 4.7.97. In the OM dated 18-021997, reservation point No. 33, 67 and 100 had been identified for Physically Handicapped. Again, it was stipulated that where the element of D.R. is 75% or above, there shall be no reservation
for PH under Promotion quota.
(iii) G.I. Dept. of Per. and Trg. OMNo. 36025/03/97-Estt.(REs) dated 4.7.1997 reads as under:
Partial modification to OM dated 18.2.97 regarding reservation to the physically handicapped in promotion The undersigned is directed to invite attention to this
Department's OM No. 36035/7/95-Estt.(SCT), dated 18.2.1997 on the above subject and to say that it has been represented before the Government that the earmarking of point Nos. 33, 67 and 100 in the prescribed register for reservation for the physically handicapped would mean that the physically handicapped candidates may have to wait for long time to get their turn for promotion. The suggestion has been considered and it has now been decided in partial modification of the OM cited above, that the point numbers 1, 34, and 67 in cycle of 100 vacancies in the 100 point register may be earmarked for reservation for physically handicapped. The other instructions contained in the aforesaid OM remain unchanged.
2. It is also clarified that the manner of calculation of the vacancies for the physically handicapped shall be as laid down in this Department's OM No. 36035/8/89-Estt.(SCT) dated 20-.11.1989 so far as Groups C and D posts are concerned.
(iv) The next OM on the subject is OM No. 36035/02/98-Estt (Res) dated 04-06-1998. This order redefined the term - Persons with disabilities - creating four groups in each category of disability, and reiterating that the minimum degree of disability in order for a person to be eligible for any concessions/benefits would continue to be 40%.
(v) Subsequently OM No. 36025/3/97-Estt (Res) dated 24-07-1998 had been issued, wherein emphasis has been given to follow the instructions for reservation in promotion for the physically handicapped persons in Government jobs in letter
and spirit.
(vi) OM No. 43019/28/86-Estt (D) dated 01-02-1999 which is the next communication, provides for upper age limit to physically handicapped for appointment through Open Competitive examinations.
(vii) Still further clarification about 3% reservation in Group-D, C and B posts which is extracted below:
G.I Dept. of Per and Trg. OM NO. 36035/4/99-Estt.(Res) dated 29.3.2000 Clarification as to whether 3% reservation for persons with disabilities would be with reference to identified posts only or to the total sanctioned strength in the cadre The undersigned is directed to invite a reference to this Department's OM No. 36035/17/85-Estt (SCT) dated 1.4.1986 according to which 3% of the vacancies are required to be reserved for physically handicapped persons in Group-C and D posts with reference to total strength of the cadre. However, according to the instruction contained in this Department's OM No. 36035/16/91-Estt.(SCT) dated 18.2.1997, 3% of the vacancies are required to be reserved for persons with disabilities in Groups-A and B posts with reference to the identified posts in a cadre.
2 A question has been raised as to whether the per centage of vacancies not less than 3 are required to be reserved for persons or class of persons with reference
to the total strength of establishment of each Ministry/Department/Office or only in the posts identified for each disability, subject of course to the exemption of any establishment from the provisions of the Act, if felt necessary.
3. The matter has been examined in consultation with the Ministry of Law, Department of Legal Affairs. In accordance with the clarification given by that Ministry, 3% of the vacancies would continue to be reserved for persons or class of persons with a disability with reference to total strength of the cadre in Group-C and D
posts as per the instructions issued vide this Department's OM No. 36035/17/85-Estt(SCT) dated 1.4.1986, keeping in view the provisions of the Section 72 of the PWD Act. However, in so far as Group-A and B posts are concerned, 3% reservation as laid own in terms of this Department's OM NO. 36035/16/91-Estt.(SCT)dated 18.2.1997 which were issued after the provisions of PWD Act came into force, would be with reference to only the identified posts in a cadre in accordance with Section 33 of the said Act and not the total strength of a cadre.
4. All the Ministries/Departments, etc. are requested to bring the instructions on pre-page to the notice of all the Heads of Departments and appointing authorities under
their control for necessary compliance.
13. The claim of the applicants for promotion has to be examined in the light of the clarification by DOPT in 1997. The applicants and others who had filed representations are those who have either orthopaedically challenged or with hearing impairment. Visually handicapped persons do not appear to be recruited. The DOPT instructions are to allot 1% each to the three distinct disabilities and as such, those who have orthopaedical disability or hearing impairment would have to be considered for promotion only against their percentage of reservation, which constitutes two percent, the third one is meant for visually handicapped. It is seen that reservation only in respect of orthopaedically and hearing handicapped is done in the Audit and Accounts department. Therefore, the issue whether eligibility is for 2% and not entire 3% PH points needs further examination. DOPandT OM only envisages exchange of PH points among the permissible 3% depending on availability of eligible types of disabled employees at the required point of time.
14. The Committee set up for identification of jobs in the various inistries/Departments was no doubt circulated by the DOPT. However, the OM states that the list of jobs identified by the Committee is by no means exhaustive and Ministries/Departments etc. may have to further supplement the same. Therefore, the Departments, in addition to the posts identified by the Sub Committee, on their own have to identify posts that are capable of being filled/held by the appropriate category of PH. In so far as C and AG is concerned, it appears that no post had been identified by the Sub Committee. At least, no material has been produced before us to show that any post in the office of the CandAG was identified by the Committee. Thus, identification of posts in C and AG had been done for the first time when the post of Accountant was identified as suitable for giving reservation to PH employees as per Annexure A-1 circular dated 14.9.2001. and, this order is effective from the date of its issue. Accordingly while preparing the panel for promotion to the post of Accountant during the panel year 2002 onwards, 3% reservation for physically handicapped persons on the basis of total number of vacancies in both identified and non-identified Group-C posts and followed the procedure for reservation to the physically handicapped in OM dated 20.11.89. They also submitted that as per DOPT OM dated 18.2.97 no reservation was to be provided in promotion to any pots for any category including PH which had direct recruitment quota 75% or more. Therefore, the reservation of PH in promotion to the post of Clerk was subsequently withdrawn. They further submitted that the posts of Accountants and Auditors have been identified for reservation to PH. But the posts of Section Officer has not so far been identified to be reserved for PH persons in the respondents Department. We do not find any infirmity with the stand of the respondents. It is true that there is some delay in issuing the orders in the office of the CandAG identifying the posts to be reserved for PH persons. The OM issued by the DOPT also gives liberty to identify posts which can be given reserved for PH category in the organisation. The organisational set up in the office of the CandAG is different from Departments of Govt. Of India. As far as the office of the CandAG is concerned, the orders of the Govt. of India are implemented by issuing separate orders with the approval of the CandAG. Such an order according to the respondents were issued in the office of the CandAG only by Annexure A-1 order dated 14.9.2001.
15. Thus, even when viewed from the angle that the orders on identification of posts issued by DOPT after the enforcement of the PWD Act would be made applicable to the office of the Respondents, as no such orders were produced by the parties, and as the identification of post by the sub committee had not been made in respect of C and AG, and as the identification by C and AG has been in accordance with the suggestion by the DOPT that the Departments/Ministries could identify such post for
reservation for PH quota, the earliest order of identification in C and AG being that issued on 14.09.2001, we do not find any infirmity with the Annexure A1 order. The O.A fails and accordingly is dismissed. No costs.