IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 22947 of 2004 Between: K. Ammanna reddy S/o Ramanujulu (O), Colony, Near Srinivasa Convent Sarangadharametla, Rajahmundry, East Godavari District ..... PETITIONER AND 1 The GEneral Manager, Telecom District, BSNL, Rajahmundry 2 The Chief General Manager, Telecom. A.P. Circle, BSNL, Hyderabad 3 The Chairman & Managing Director, BSNL, 20 Ashoka road, New Delhi .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction more in the nature of mandamus declaring that the petitioenr is entitled for promotion under bienniel cadre Review Scheme for 16-X-90 with all consequentialbenefits including promotion against 10% quota of vacanncies unde rBCR on par with his juniors in the scale of Rs. 6500- 10500 form 1-1-1998 with all consequential benefits such as fixation of pay arrears and other attendant benefits including revision of pension, commutetion of volue of pension gratutity leave encashment of volue of pension, gratuity leave encashemnt and other attendant benefits by olding the actionof the respondnets by promoting him to BCR from 1-7- 2003 instead of from 16-10-1990 the date on which scheme came into force vide Lr. No. E-11/BCR/99-2000/12 dated 1-7-2003 read with LR. No. E-11/BCR/PRom/97-98./KW/113, dt 10-8-2004 issued by the General Manager, Telecom District, BSNL Rajahmundry is illegal, arbitrary unjust and discriminatory and violative of Aticles 14,16 and 21 of the Constitution besides opposed to all principle sof equity, justice and fairplay and also the dictum of law laid down by the N Apex Court and pass such other order or orders Counsel for the Petitioner:MR.K.VENKATESWARA RAO Counsel for the Respondent No.: MR.B.NARASIMHA SARMA The Court made the following : ORDER: Heard the learned counsel on either side and perused the material on record. This writ petition has been filed seeking to issue a Writ of Mandamus declaring that the petitioner is entitled to promotion under Biennial Cadre Review Scheme from 16-10-1990 with all consequential benefits including promotion against 10% quota of vacancies under BCR on par with his juniors in the scale of Rs.6500-10500 from 01-01-1997 with all consequential benefits such as fixation of pay arrears and other attendant benefits including revision of pension, commutation of value of pension, gratuity, leave encashment and other attendant benefits by holding that the action of the respondents by promoting him to BCR from 01-07-2003 instead of from 16-10-1990 the date on which scheme came into force vide letter No.E- 11/BCR/99-2000/12, dated 01-07-2003 read with letter No.E.11/BCR, Prom/97-98/KW/13, dated 10-08-2004 issued by the General Manager, Telecom District, BSNL, Rajahmundry is illegal and arbitrary. The case of the petitioner is that originally he was appointed as a Time Scale Clerk on 15-01-1963 and on passing the requisite examination he was promoted to 1/3rd Lower Selection Grade on 31-01- 1977 and on completion of 26 years of service he became eligible for promotion under BCR Scheme with effect from 16-10-1990. However, in the meanwhile, he was issued Rule 14 charge sheet under CCS (CCA) Rules, 1965 on 17-08-1990 on the untenable ground of poor vision and inability to perform the duties from 22-05-1990. In view of the above reason his case for BCR promotion was passed over from time to time and later on inquiry was conducted and issued proceedings dated 10-12-1992 imposing punishment of compulsory retirement from service with immediate effect against which he preferred an appeal wherein punishment of compulsory retirement was set aside. In view of the above circumstances, his claim is that he is entitled to promotion under BCR Scheme with effect from 16-10-1990 from which date the scheme was introduced and ultimately he was promoted to BCR Scheme in the cadre of TOA (G) with effect from 01-07-2003. It is also submitted that he was not given BCR from that date on the untenable ground of poor vision. In this connection, he referred Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short ‘the Act’). Further it is also submitted that the 1st respondent issued letter dated 10-08-2004 intimating that his request to implement BCR promotion with effect from 16-10-1990 is regretted and the earlier date on which BCR promotion given with effect from 01- 07-2003 was confirmed by the DPC. This letter is issued in reply to the representations dated 01-02-2004 and 09-06-2004 to review the order dated 01-07-2003. Assailing the same, the petitioner has come up with the instant petition. On behalf of the respondents counter has been filed wherein, inter alia, denying the allegations made in the affidavit submitted that the said promotion of the petitioner with effect from 01-07-2003 is legal and valid and the contention of the petitioner at this stage for promotion with effect from 16-10-1990 is without any merit. Learned counsel appearing for the petitioner submitted that though the petitioner is entitled to the promotion with effect from 16-10-1990 the petitioner was given promotion with effect from 01-07-2003. He also submitted that the stand taken by the respondents is not in conformity with the preferred social values accepted by the Government. He further submitted that according to Section 47 (2) of the Act no promotion shall be denied to a person merely on the ground of his disability. Further it is also submitted that the order dated 10-08-2004 passed by the Sub Divisional Engineer (Administration) is not a speaking order except intimating that the request of the petitioner to implement BCR promotion with effect from 16-10-1990 is regretted and the earlier date on which BCR promotion given on 01-07-2003 only was confirmed by the DPC. From a perusal of the record, it is obvious that though the counter has been filed narrating the facts the impugned order does not contain any reason except intimating that the request of the petitioner to implement BCR promotion with effect from 16-10-1990 is regretted and the earlier date on which BCR promotion given with effect from 01-07-2003 was confirmed by the DPC. Further, Section 47 of the Act states as under: “47. Non-discrimination in Government employment:- (1) No establishment shall dispense with, or reduce in rank an employee who acquires a disability during his service: Provided that, if any employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (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.” A perusal of Section 47 (2) of the Act goes to show that no promotion shall be denied to a person merely on the ground of his disability. In view of the above, I am of the opinion that the writ petition can be disposed of directing the 1st respondent to pass speaking order. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel this Writ Petition is disposed of directing the 1st respondent to pass speaking order, taking into consideration Section 47 of the Act, in accordance with law, within a period of four weeks from the date of receipt of a copy of this order and the impugned order dated 10-08-2004 is set aside. There shall be no order as to costs. _________________________ JUSTICE G. CHANDRAIAH Date: 24-06-2008 Note: Issue C.C. in one week. B/o. LSK.