Rajeev C. Mathur and Anr. v. Union of India and Ors.

1. The Petitioners herein seek to challenge the judgment and Order dated 05.09.2011, passed by the Central Administrative Tribunal (hereinafter referred to as „the Tribunal‟) in O. A. No.3254/2010.

2. The case of the Petitioners is that they are physically handicapped (PH) persons who come within the definition of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the PwD Act’). It is stated that the Petitioners appeared for the Staff Selection Examination for appointment to the post of Income Tax Inspector in handicapped quota. They were selected and appointed to Group ‘C’ Service on the post of Inspectors on 16.12.1990 and 01.04.1991 respectively. It is stated that the Petitioners were promoted to Group ‘B’ Service on the basis of seniority without being given the benefit of reservation. It is stated that the next promotion available to the Petitioners is in the Group ‘A’ Service on the post of Assistant Commission of Income Tax. The case of the Petitioners is that they are entitled to 3% reservation under the PwD category. It is stated that the Government provided 3% reservation for the vacancies to physically handicapped persons for direct recruitment in Group ‘C’ and Group ‘D’ posts and vide Office Memorandum (OM) dated 18.02.1997 physically handicapped persons were granted 3% reservation in Group ‘A’ and ‘B’ posts which were to be filled through direct recruitment. It is, therefore, stated that reservation is available to a physically handicapped person who seek employment through direct recruitment in Group ‘A’ and ‘B’ posts but not for those Group ‘A’ and ‘B’ posts which are to be filled by promotion.

3. It is stated that Petitioner No.1 herein preferred a representation before the Chief Commissioner, Income Tax, stating that the benefit of reservation for physically handicapped persons must be made available for promotion posts as well. It is stated that the said representation was rejected by the Office of Chief Commissioner of Income Tax vide Order dated 16.08.2010 by stating as under: “3..... a. The contention of the applicant officer is that if the policy of 3% reservation had been implemented by the Department at the time of promotion to the grade of ACIT vide order No.169 of 2001, 27 posts would have been carried forward to next three years. As the applicant was eligible for promotion to the grade of ACIT from 2004 onwards, he would have been benefited out of the same. In the alternative if the reservation policy had been implemented in 2005 when vide order No.31 of CBDT dated 15.02.2005, 122 officers were promoted to the grade of ACIT, he would have been promoted. b. The applicant's contention is essentially based on DOPT's O.M dtd. 16/01/1998, No.36035/7/95-Estt. (SCT). This O.M. according to the applicant seeks to rectify the original O.M. dtd. 18/02/1997 No.36035/16/91-Estt. (SCT) and provides for reservation as claimed by the applicant officer. The contention of the applicant officer has been considered with reference to the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995 and also the O.Ms issued by DOPT on this subject from time to time. The following emerges out of the same.

(i) After the Persons With Disabilities (Equal opportunities, Protection of Rights and Full participation), Act 1995 came into existence, reservation in direct recruitment was extended to Group 'A' and Group 'B' posts vide DOPT OM No.36035/16/91-Estt(SCT) dated But reservation to persons with disabilities was never made available in case of promotions to Group A and Group B posts.

(ii) The existing instructions

(O.M.No.36035/7/95-Estt(SCT) dated 16.01.1998 read with O.M.No.36035/16/95- Estt(SCT) dated 18.02.1997) makes it clear that reservation for persons with disabilities was not available in case of promotion in Group A and Group B posts.

(iii) Further, the DOPT

O.M.No.36035/3/2004-Estt(Res) dated 29.12.2005 issued in supersession of all earlier instructions on the subject, make it abundantly clear that reservation in promotion to persons with disability is available in Group 'C' and 'D' posts only.

4. In view of all the above, the request of Shri Rajeev Charan Mathur, ITO vide his application dated 09.03.2010 addressed to CCIT (CCA), Mumbai for promotion to Group 'A" Post against reservation for persons with disabilities cannot be acceded to and therefore it is disallowed.

5. The representation dated 09.03.2010 of Shri Rajeev Charan Mathur, ITO is disposed off accordingly.”

4. The abovementioned Order was the subject matter of challenge in O.A. No.3254/2010. The Tribunal placed reliance on the judgment dated 30.04.2010, passed by the Co-ordinate Bench of the Tribunal in O.A No.1343/2009, titled as B.D.S. Kharab v. Union of India &Ors. In the said judgment, the Coordinate Bench of the Tribunal took a view that the reservation under the PwD Act for Group ‘A’ and ‘B’ posts has to be in view of the O.Ms issued by the Government and has to be restricted only to direct appointment and cannot be extended to promotions. The relevant portions of the said judgment reads as under: “9....... Even though, in Section 33, the Government is enjoined upon to appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disabilities, but the proviso to the said Section clearly mentions that some establishments can be exempted, subject, of course, to such conditions, if any, as may be specified, from provisions of this Section. By virtue of provisions contained in Section 34, the appropriate Government may by notification require that from such date as may be specified, the employer in every establishment shall furnish such information or return as may be prescribed in relation to vacancies appointed for persons with disability that have occurred or are about to occur in that establishment. Section 36 deals with vacancies not filled up to be carried forward. Where in any recruitment year any vacancy under Section 33 cannot be filed up due to non-availability of a suitable person with disability or for any other sufficient reason, such vacancy shall be carried forward. Section 37 enjoins upon every employer to maintain record in relation to the persons with disability employed in his establishment. Section 38 requires the appropriate Government and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 35, 39, 40 and 41 may not be relevant and, therefore, there would be no need to make a mention of the same. What appears from the statement of objects and reasons for legislating and thus enacting the Act of 1995, is that in addition to other things, there has to be reservation in identified posts. The object further appears to be to give equal opportunities to persons with disabilities. It appears that the Act of 1995 came into being with an aim to provide equal opportunities and for protection of rights and full participation of disabled persons so that they may not lag behind the able-bodied persons only because of the ill fate that they were born with or have become handicapped. The idea is to make them equal to able-bodied persons and not to provide opportunities to them for being better than able-bodied persons. The very name of the Act suggests that persons with disabilities would need equal opportunities and protection of rights and full participation. Reservation is to be in identified posts, as surely, there may be many such posts duties whereof persons with disabilities may not be able to perform. To illustrate, it may not be desirable to appoint a person as pilot in a passenger plane, having such disability which may put in danger not only his own life, but hundreds of those who may be boarding the plane of which he is the pilot. The identification can also be with regard to such posts where duties and responsibilities are very high in nature, but the efficiency cannot be compromised. Even claim of SC/ST has to be considered while taking into consideration the maintenance of efficiency of administration, as may emanate from the provisions contained in Article 335 of the Constitution. Making no provision for reservation in promotion in higher posts in Group 'A' and 'B' can well be said to be consistent with maintenance of efficiency of administration. 10....... On a joint reading of relevant Sections contained in Chapter VI, as mentioned above, it may appear that the mandate of law is to necessarily make reservation for persons with disabilities in the matter of appointment. There is no command to make reservation in promotion. Despite the fact that there is no provision for reservation in promotion in the Act of 1995, the Government may itself provide the same. The question, however, debated before us is as to whether if reservation in promotion has not been provided, can the same be sought as a matter of right and the judicial for a would have jurisdiction to command the respondents to do so. As mentioned above, the respondents have indeed provided reservation in promotions insofar as Group 'C and 'D' posts are concerned. The same may be permissible as well, but what we are told is that such reservation must also be applicable in case of Group 'A' and 'B' posts, and in that context, learned counsel representing the applicant would urge that the word 'appoint' as used in Section 33 of the Act of 1995, would necessarily include 'promotion' as well, and for that contention would place reliance upon the judgment of the Hon'ble Supreme Court in Harkishan Singh v State of Punjab & Others [(1971) Supp. SCR 223 = (1971) 2 SCC 58].........

11. Reservation in promotion was even earlier not admissible under Article 16(4) to any backward class of citizens. The word 'appointment' in Article 16(1) could not be interpreted to mean 'promotion' as well. Reservation yet made in promotion was frowned upon in number of judicial precedents. The Government, with a view to provide reservation in promotions, had to insert clause (4A) in Article 16 by the Constitution (77th Amendment) Act, 1995, w.e.f. 17.6.1995. It is thereafter only that reservation in promotion may be permissible even to Scheduled Castes and Scheduled Tribes, and that too if in the opinion of the State, such categories are not adequately represented in the service under it. It needs to be emphasized that SC/ST could have also no reservation in promotion, even though reservation for appointment is provided in the Constitution. This became admissible only by amending the Constitution. Shri Rungta may be right in contending that reservation for physically disabled persons may arise from the provisions of Article 16(1), but if no reservation in promotion is provided either by virtue of provisions contained in Article 16 or by any rules, orders or instructions issued on that behalf by the Government, we are of the firm view that the applicants cannot seek such reservation from any judicial fora. We are in agreement with the contention raised by Ms. Jyoti Singh, learned counsel representing the respondents that provisions regarding reservation provided ''in the Constitution are enabling provisions, clothing the State with the right to make reservations, but the same cannot be demanded as a matter of right. Government servants have only right to safeguarding rights or benefits already earned, acquired or accrued but they cannot challenge the authority of the State to make such amendments or alterations in rules..........” (emphasis supplied) The Tribunal, in the judgment impugned herein, has simply followed the judgment in B.D.S. Kharab (supra).

5. The relevant provisions which are necessary to be extracted from the PwD Act are as under: