Lal Sahab Jha Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. the applicant is physically handicapped, being blind, belonging to general category and as such had been appointed to a group 'c' post against 3% quota reserved for handicapped persons, in the railways. he was firstly appointed as substitute waterman in group 'd' but subsequently he was made regular by order dated 15.11.1980. the applicant, qualified for a group 'c post, thereafter had represented for his appointment as such, reserved for the handicapped persons and by order dated 01.07.1985 (annexure-a/2) he was appointed in the post of announcer, temporarily. since there was no regular post of announcer in the required pay scale of rs. 260-400, on his giving joining report on 01.12.1985 he was directed to work as inquiry clerk which was in higher pay scale (rs. 330-560). though another handicapped person, with blindness, one brij lal was appointed against the temporary post of clerk by order dated 04.07.1988, the applicant was denied that privilege, hence he represented again before the authorities to post him in the higher post of inquiry clerk at least w.e.f. 01.07.1985.2. it has also come in the o.a. that while working as such, vide order dated 25.05.1990 his increment for six months was stopped (annexure-a/4).3. the applicant, vide order dated 17.12.1992 was promoted to the higher post of tte in the scale of rs. 330-560/1200-2040 (revised) w.e.f. that date which was equivalent to the post of inquiry clerk. he was given that scale w.e.f. the date of promotion as such and not from 01.07.1985 for which he again filed a representation.4. due to restructuring in the year 1996, 40 higher posts of tte gr.'a' in the scale of rs. 1400-2300 fell vacant in the samastipur division of railway out of which 3% was reserved for handicapped persons. in blind category the applicant was the sole handicapped person and was eligible for promotion to that post, hence he duly applied for the same.5. the applicant has claimed that the method for selection of a handicapped person for promotion was to be made on the basis of proficiency test followed by interview as per requirement of a particular category of post. there is a committee competent to decide the methodology for making such selections amongst the handicapped persons. the applicant was directed to appear before the selection committee sometime in march, 1996 which he did. but on such appearance he found that he was to appear in a written test along with other general category candidates who were not handicapped and was to produce a training certificate undergone against the post of tte. the applicant pointed out that being a blind, he could not be forced to appear in the written test in which he, in any case, could not compete with general candidates who were not handicapped and as he could not work as tte, he had all along worked as inquiry clerk who was not required to move in trains for checking tickets, hence there was no question of his going for training, or producing a training certificate as in the case of other physically normal ttes.6. further case of the applicant is that senior officials had taken his thumb impression on a paper which he gave in anticipation that the same would facilitate his promotion to the higher grade. but the applicant is not aware as to what was that document on which thumb impression was taken.7. though the applicant appeared before the authorities in the year 1996 but no separate test was taken as applicable to handicapped blind employees for which also he again represented praying therein to promote him to the post of tte gr. 'a'.8. in august, 2000 the applicant came to know that those physically normal persons who had appeared in the 1996 test were declared successful and were promoted as tte gr. 'a' but no such order was passed about the applicant.9. as per seniority list dated 10.04.1999 the applicant's name found place at sl. no. 18 along with other general candidates but some of the juniors had also been considered for promotion to the post of tte gr.'a' without taking into consideration the case of the applicant.10. the applicant again submitted a representation dated 09.09.2000 (annexure-a/9) for promotion to tte gr. 'a' at least w.e.f. 31.08.2000, i.e., w.e.f. the date the juniors were so promoted.11. though several reliefs have been sought but in course of hearing the learned counsel for the applicant made it clear that he was pressing relief in para 8(ii) which is for issuance of a direction to the respondents for this promotion to the next higher grade post of tte gr. 'a' w.e.f. 31.8.2000, if necessary after following the due methodology of selection which are applicable in the case of a physically handicapped persons particularly in the case of a blind one.12. in the written statement following submissions and admissions have been made: (i) the applicant was blind and was regularised in service in a group 'd' post w.e.f. 15/17.11.1980. (ii) he was appointed as announcer against handicapped (blind) quota vide order dated 30.05.1985. (iii) post of announcer in the scale of rs. 260-400 was merged with that of ticket checking cadre which had the same initial scale, w.e.f. 05.07.1980. (iv) the applicant was promoted as tte in the scale of rs. 1200-2040. (v) in due course posts of tte gr. 'a' in the revised scale of rs. 5000-8000 fell vacant, which was a selection post. since the applicant's seniority fell within the consideration zone, he was invited to appear in the selection test which was held on 18.08.2001. (vi) the applicant then intimated the administration his inability to appear in the said selection test vice his application dated 24.08.2001. his application aforesaid is annexure-r/2 in which he had stated that he neither had taken training as tte nor he was performing the actual work of tte, hence he was incapable of appearing in the written test, also informing that since 01.12.1985 he was working at the inquiry counter. (vii) as per the respondents, the applicant not being able to read and write, could not be entitled for promotion to the post of tte gr. 'a' and in this regard no exemption could be granted to him.13. these submissions have to be read with the provisions under section 47(2) of "the persons with disabilities (equal opportunities, protection of rights & full participation) act, 1995 (for short, "the disabilities act") which runs as follows: (2) no promotion shall be 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.therefore, it is clear that a handicapped person including a blind one cannot be denied to promotion when he comes within the consideration zone, on the ground of his disability.14. the blindness of the applicant did not come in his way to work an announcer which post when was merged with the post of tte, he was designated as tte though he was never required to work as tte. still the applicant received the pay and emoluments of a tte which indeed is not one of the posts identified for appointment of a blind person (vice annexure-a/13 to the rejoinder to the written statement of the respondents). this being so, it is not understood as to what came in the way of granting him further promotion in the same post, though in gr. 'a' if such facility could be given to the applicant earlier (though posted as tte but not required to work as such), we fail to understand as to why the same facility cannot be granted to him in future also. obviously, the applicant is totally blind with 100% loss of eye sight, hence he cannot be expected to compete with those persons who are not handicapped, at least not blind. the applicant is matriculate and if his qualification allows him to be further promoted, then the railway administration has to think for some special method for screening such handicapped persons by specific tests. such handicapped persons cannot be asked, nor they can, to compete with physically normal other employees. had they been supposed to do so, there had not been any need to reserve 3% posts for them in the matter of employment and promotion.15. in this regard an office memorandum issued from the govt. of india in the ministry of personnel, public grievances and pensions, department of personnel and training, dated 18.02.1997 relating to reservation for the physically handicapped in the posts filled by promotion may be seen as per which the different departments, for providing reservation to the physically handicapped in promotion, have to reserve 3% of such posts for them, maintaining a separate register of 100 points for posts identified to be manned by the physically handicapped in which point nos. 33, 67 and 100 would be reserved for the physically handicapped.here in this case, the applicant in his own seniority had come within the consideration zone.16. 14. this bench asked the learned counsels for the applicant as well for the official respondents to place before tribunal any document issued from the railway board which stipulates as to what would be the standard of screening test, for a selection post, for differently handicapped persons, for example, for a blind, hearing impaired or orthopaedically handicapped.17. from the written statement of the respondents it appears that simply because the applicant by a written application had stated that he could not sit in the written examination being so handicapped, had assumed that he was incapable of writing. a blind may not write as a normal person but there are methods to teach him reading and writing through 'braille'. if he is not able to write as per the required standard, on account of blindness, that cannot be made to be a ground of denying him the promotion as that would violate provisions under section 47(2) of the disabilities act. nothing has been brought on the record to show that the central govt. had exempted the railways from the rigours of section 47(2) of the disabilities act.18. if no such criteria for assessing a physically handicapped in a selection test has yet been prepared, it is high time that the railway administration should consider this question and lay down clear-cut instruction in this regard so that a physically handicapped person may not be superseded in the matter of promotion because of his inabilities on account of his being physically handicapped.19. assuming that no such clear cut instructions have been issued by the railway board in this regard, as neither party could produce any such instruction, this tribunal would direct the railway board to consider the matter and issue clear cut instructions as to how, for promotion to a selection post, for different categories of handicapped employees, such as on account of blindness, hearing impaired, orthopaedically handicapped, etc., their suitability should be assessed. for example, if a person is so handicapped like being blind, who could not compete with other general candidates in writing, whether he should be considered for promotion on the basis of interview alone.this is just by way of example but it would be for the railway board to lay down any such criterias. this should preferably be done within three months of receipt of a copy of this order. once this is done, the eligibility of the applicant would be immediately considered by the concerned officials for his promotion to the next grade in accordance with the procedure of test so laid down, and order relating to his promotion may thereafter be issued, if he is found eligible.20. but if such criterias are already laid down which the learned counsels for either side could not produce before the tribunal, then the respond'ents would stand directed to test the eligibility of the applicant under such laid down procedure applicable to a physically handicapped, i.e., a blind employee. if he is found fit for promotion, also keeping in view provisions under section 47 (2) of the disabilities act, then the applicant's promotion to the next higher grade may be considered w.e.f. the date he ought to have been so promoted with juniors to him, or from the date such procedure of testing eligibility of a handicapped person was laid down by the concerned authorities, whichever may be later.with the aforesaid directions, this application is disposed of. no costs.

Judgment:
1. The applicant is physically handicapped, being blind, belonging to general category and as such had been appointed to a Group 'C' post against 3% quota reserved for handicapped persons, in the Railways. He was firstly appointed as substitute waterman in Group 'D' but subsequently he was made regular by order dated 15.11.1980. The applicant, qualified for a Group 'C post, thereafter had represented for his appointment as such, reserved for the handicapped persons and by order dated 01.07.1985 (Annexure-A/2) he was appointed in the post of Announcer, temporarily. Since there was no regular post of Announcer in the required pay scale of Rs. 260-400, on his giving joining report on 01.12.1985 he was directed to work as Inquiry Clerk which was in higher pay scale (Rs. 330-560). Though another handicapped person, with blindness, one Brij Lal was appointed against the temporary post of clerk by order dated 04.07.1988, the applicant was denied that privilege, hence he represented again before the authorities to post him in the higher post of Inquiry Clerk at least w.e.f. 01.07.1985.

2. It has also come in the O.A. that while working as such, vide order dated 25.05.1990 his increment for six months was stopped (Annexure-A/4).

3. The applicant, vide order dated 17.12.1992 was promoted to the higher post of TTE in the scale of Rs. 330-560/1200-2040 (revised) w.e.f. that date which was equivalent to the post of Inquiry Clerk. He was given that scale w.e.f. the date of promotion as such and not from 01.07.1985 for which he again filed a representation.

4. Due to restructuring in the year 1996, 40 higher posts of TTE Gr.

'A' in the scale of Rs. 1400-2300 fell vacant in the Samastipur Division of Railway out of which 3% was reserved for handicapped persons. In blind category the applicant was the sole handicapped person and was eligible for promotion to that post, hence he duly applied for the same.

5. The applicant has claimed that the method for selection of a handicapped person for promotion was to be made on the basis of proficiency test followed by interview as per requirement of a particular category of post. There is a committee competent to decide the methodology for making such selections amongst the handicapped persons. The applicant was directed to appear before the Selection Committee sometime in March, 1996 which he did. But on such appearance he found that he was to appear in a written test along with other general category candidates who were not handicapped and was to produce a training certificate undergone against the post of TTE. The applicant pointed out that being a blind, he could not be forced to appear in the written test in which he, in any case, could not compete with general candidates who were not handicapped and as he could not work as TTE, he had all along worked as Inquiry Clerk who was not required to move in trains for checking tickets, hence there was no question of his going for training, or producing a training certificate as in the case of other physically normal TTEs.

6. Further case of the applicant is that senior officials had taken his thumb impression on a paper which he gave in anticipation that the same would facilitate his promotion to the higher grade. But the applicant is not aware as to what was that document on which thumb impression was taken.

7. Though the applicant appeared before the authorities in the year 1996 but no separate test was taken as applicable to handicapped blind employees for which also he again represented praying therein to promote him to the post of TTE Gr. 'A'.

8. In August, 2000 the applicant came to know that those physically normal persons who had appeared in the 1996 test were declared successful and were promoted as TTE Gr. 'A' but no such order was passed about the applicant.

9. As per seniority list dated 10.04.1999 the applicant's name found place at Sl. No. 18 along with other general candidates but some of the juniors had also been considered for promotion to the post of TTE Gr.

'A' without taking into consideration the case of the applicant.

10. The applicant again submitted a representation dated 09.09.2000 (Annexure-A/9) for promotion to TTE Gr. 'A' at least w.e.f. 31.08.2000, i.e., w.e.f. the date the juniors were so promoted.

11. Though several reliefs have been sought but in course of hearing the learned Counsel for the applicant made it clear that he was pressing relief in Para 8(ii) which is for issuance of a direction to the respondents for this promotion to the next higher grade post of TTE Gr. 'A' w.e.f. 31.8.2000, if necessary after following the due methodology of selection which are applicable in the case of a physically handicapped persons particularly in the case of a blind one.

12. In the written statement following submissions and admissions have been made: (i) The applicant was blind and was regularised in service in a Group 'D' post w.e.f. 15/17.11.1980.

(ii) He was appointed as Announcer against handicapped (blind) quota vide order dated 30.05.1985.

(iii) Post of Announcer in the scale of Rs. 260-400 was merged with that of ticket checking cadre which had the same initial scale, w.e.f. 05.07.1980.

(iv) The applicant was promoted as TTE in the scale of Rs. 1200-2040.

(v) In due course posts of TTE Gr. 'A' in the revised scale of Rs. 5000-8000 fell vacant, which was a selection post. Since the applicant's seniority fell within the consideration zone, he was invited to appear in the selection test which was held on 18.08.2001.

(vi) The applicant then intimated the administration his inability to appear in the said selection test vice his application dated 24.08.2001. His application aforesaid is Annexure-R/2 in which he had stated that he neither had taken training as TTE nor he was performing the actual work of TTE, hence he was incapable of appearing in the written test, also informing that since 01.12.1985 he was working at the inquiry counter.

(vii) As per the respondents, the applicant not being able to read and write, could not be entitled for promotion to the post of TTE Gr. 'A' and in this regard no exemption could be granted to him.

13. These submissions have to be read with the provisions under Section 47(2) of "The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (for short, "The Disabilities Act") which runs as follows: (2) No promotion shall be 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.

Therefore, it is clear that a handicapped person including a blind one cannot be denied to promotion when he comes within the consideration zone, on the ground of his disability.

14. The blindness of the applicant did not come in his way to work an Announcer which post when was merged with the post of TTE, he was designated as TTE though he was never required to work as TTE. Still the applicant received the pay and emoluments of a TTE which indeed is not one of the posts identified for appointment of a blind person (vice Annexure-A/13 to the rejoinder to the written statement of the respondents). This being so, it is not understood as to what came in the way of granting him further promotion in the same post, though in Gr. 'A' If such facility could be given to the applicant earlier (though posted as TTE but not required to work as such), we fail to understand as to why the same facility cannot be granted to him in future also. Obviously, the applicant is totally blind with 100% loss of eye sight, hence he cannot be expected to compete with those persons who are not handicapped, at least not blind. The applicant is matriculate and if his qualification allows him to be further promoted, then the Railway Administration has to think for some special method for screening such handicapped persons by specific tests. Such handicapped persons cannot be asked, nor they can, to compete with physically normal other employees. Had they been supposed to do so, there had not been any need to reserve 3% posts for them in the matter of employment and promotion.

15. In this regard an office memorandum issued from the Govt. of India in the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, dated 18.02.1997 relating to reservation for the physically handicapped in the posts filled by promotion may be seen as per which the different departments, for providing reservation to the physically handicapped in promotion, have to reserve 3% of such posts for them, maintaining a separate register of 100 points for posts identified to be manned by the physically handicapped in which Point Nos. 33, 67 and 100 would be reserved for the physically handicapped.

Here in this case, the applicant in his own seniority had come within the consideration zone.

16. 14. This Bench asked the learned Counsels for the applicant as well for the official respondents to place before Tribunal any document issued from the Railway Board which stipulates as to what would be the standard of screening test, for a selection post, for differently handicapped persons, for example, for a blind, hearing impaired or orthopaedically handicapped.

17. From the written statement of the respondents it appears that simply because the applicant by a written application had stated that he could not sit in the written examination being so handicapped, had assumed that he was incapable of writing. A blind may not write as a normal person but there are methods to teach him reading and writing through 'Braille'. If he is not able to write as per the required standard, on account of blindness, that cannot be made to be a ground of denying him the promotion as that would violate provisions under Section 47(2) of the Disabilities Act. Nothing has been brought on the record to show that the Central Govt. had exempted the Railways from the rigours of Section 47(2) of the Disabilities Act.

18. If no such criteria for assessing a physically handicapped in a selection test has yet been prepared, it is high time that the Railway Administration should consider this question and lay down clear-cut instruction in this regard so that a physically handicapped person may not be superseded in the matter of promotion because of his inabilities on account of his being physically handicapped.

19. Assuming that no such clear cut instructions have been issued by the Railway Board in this regard, as neither party could produce any such instruction, this Tribunal would direct the Railway Board to consider the matter and issue clear cut instructions as to how, for promotion to a selection post, for different categories of handicapped employees, such as on account of blindness, hearing impaired, orthopaedically handicapped, etc., their suitability should be assessed. For example, if a person is so handicapped like being blind, who could not compete with other general candidates in writing, whether he should be considered for promotion on the basis of interview alone.

This is just by way of example but it would be for the Railway Board to lay down any such criterias. This should preferably be done within three months of receipt of a copy of this order. Once this is done, the eligibility of the applicant would be immediately considered by the concerned officials for his promotion to the next grade in accordance with the procedure of test so laid down, and order relating to his promotion may thereafter be issued, if he is found eligible.

20. But if such criterias are already laid down which the learned Counsels for either side could not produce before the Tribunal, then the respond'ents would stand directed to test the eligibility of the applicant under such laid down procedure applicable to a physically handicapped, i.e., a blind employee. If he is found fit for promotion, also keeping in view provisions under Section 47 (2) of the Disabilities Act, then the applicant's promotion to the next higher grade may be considered w.e.f. the date he ought to have been so promoted with juniors to him, or from the date such procedure of testing eligibility of a handicapped person was laid down by the concerned authorities, whichever may be later.

With the aforesaid directions, this application is disposed of. No costs.