Case: 1. B.D.S. Kharab S/o Shiv Dhan Singh, Commissioner of Income Tax, 2. H.C. Sharma, Assistant Engineer (Civil), New Delhi Municipal Council Vs 1. Union of India (UOI) through Secretary, Ministry of Finance, Chairman, Central Board of Direct Taxes and Ministry of Personnel, P.G. and Pensions through its Secretary, 2. Secretary, New Delhi Municipal Council and Union of India (UOI) through Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions. Central Administrative Tribunal
| Judges | V.K. Bali, J. (Chairman) and L.K. Joshi, Vice-Chairman (A) |
| Issue | Service |
| Judgement Date | April 30, 2010 |
| Court | Central Administrative Tribunal |
Order:
V.K. Bali, J. (Chairman), (Principal Bench, New Delhi)
1. 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.
2. B.D.S. Kharab has filed OA No. 1343/2009 under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash the proceedings of DPC held in 2008 for selection to the post of Chief Commissioner Income Tax and consequent promotions made to the said post on the basis of recommendations of DPC vide order dated 5.4.2009, and to direct the respondents to undertake fresh exercise of promotion to fill up the posts of Chief Commissioner Income Tax after giving due consideration to the case of the applicant for appointment to the said post by extending 3% reservation for persons with disabilities in terms of Section 33 of the Act of 1995. The applicant also seeks appropriate directions from this Tribunal to declare that as per Section 33 of the said Act, 3% reservation in favour of persons with disabilities distributed equally among persons suffering from blindness and low vision, hearing impaired and locomotor disability to the extent of 1% each is mandatory in all modes of recruitment including promotion for all groups of posts. The applicant also seeks to declare OMs dated 5.11.2001 and 29.12.2005 as ultra vires and illegal being violative of Article 16(1) and Section 33 of the Act of 1995. The applicant suffers from 55% orthopaedic disability being post polio paralysis lower limbs with weakness and wastage of muscles. He was appointed as an IRS officer in the year 1982 in general category. In August, 1984 he was posted as Income Tax Officer and thereafter promoted from time to time and is presently working as Commissioner of Income Tax, Ahmedabad. The applicant seeks promotion only on the dint of his suffering from physical disability and his case too is based upon the provisions of the Act of 1995. Inasmuch as, the instructions, if any, providing reservation in promotion with regard to Groups ''A' and ''B' posts available earlier, have been taken away by the consolidated instructions issued in 2005, challenge is to the instructions as mentioned above as well.
3. We had heard arguments in TA No. 188/2009 on 20.3.2009. On 26.3.2009, we recorded a detailed order and directed the matter to be listed for re-hearing. The matter thereafter was being postponed from time to time enabling the DOP&T to file its reply. On 9.9.2009, counsel for DOP&T stated that he would not like to file any separate reply as NDMC had been told by DOP&T that their stand is known to them, which may be incorporated in the reply filed by NDMC, or it may file additional reply. We thought that the view of DOP&T would be required to be known by this Tribunal for effectually adjudicating the issue in hand. Therefore, on the same very day, a direction was issued to DOP&T to file its reply. DOP&T has filed its reply.
4. Before...
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