IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WA.No. 1756 of 2006(A) ---------------------- AGAINST THE JUDGEMENT IN WPC.19415/2005 Dated 21/06/2006 ................... APPELLANT : PETITIONER -------------------------------------- M.G.PRABHAKARA PANICKER, 39/180A, PISHARIKOVIL ROAD, EROOR NORTH, TRIPUNITHURA PRESENTLY WORKING AS SUB DIVISIONAL ENGINEER, MARKETING, BSNL MOBILE, 40/597, SWAMI CHINMAYANANDA ROAD, KOCHI-16. BY ADV. MR. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MR. A.R.DILEEP MS. KAVITHA GANGADHARAN RESPONDENTS: ----------------------- 1. THE CHAIRMAN-CUM-MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED, NEW DELHI. 2. THE CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, THIRUVANANTHAPURAM. 3. BHARAT SANCHAR NIGAM LIMITED, NEW DELHI, REPRESENTED BY ITS CHAIRMAN-CUM- MANAGING DIRECTOR. 4. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA IN THE MINISTRY OF COMMUNICATIONS, NEW DELHI. R1 TO R3 BY ADV. MS. I.SHEELA DEVI,SC,BSNL R4 MR. P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON 23/09/2011 DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 1756 OF 2006 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 23rd day of September, 2011 JUDGMENT Ramachandra Menon J. Denial of promotion to a physically handicapped person in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Act in short), despite the existence of identified posts in Group B & A cadres (Sub-divisional Engineer and Divisional Engineer respectively) is the issue involved in this appeal. 2. The appellant, a physically handicapped person with 50 % of orthopaedic disability as certified in Ext. P4, got appointed as Telegraph Assistant in the Telecom Department in the year 1983 and promoted as Junior Telecom Officer in June 1991, on the basis of merit, as a general candidate. It W.A. No. 1756 of 2006 : 2 : is a Group C post and feeder category to the Group B post of Sub Divisional Engineer (formerly Assistant Engineer). Method of recruitment is solely by way of promotion as stipulated in Ext. P1 Recruitment Rules. In the meanwhile, the Department got converted as a Company (BSNL), who notified Ext. P2 Recruitment Rules for the post of Sub - Divisional Engineer (Telecom) on 28.02.2002, which also shows that the method of recruitment to the said post is solely by promotion, though 75 % is earmarked on the basis of seniority - cum - fitness; while 25 % is by way of competitive examination. In short, no direct recruitment is there to the post. 3. As per Ext. P3 order dated 02.04.2002, the appellant was promoted as Sub-Divisional Engineer w.e.f 12.03.2002, in the general category, on regular basis. Case of the appellant is that he was eligible to be appointed against the '3 % reservation quota' earmarked to physically W.A. No. 1756 of 2006 : 3 : handicapped persons in respect of the identified posts, by virtue of Sections 32 and 33 of the aforesaid Act, more so, since the above posts of Sub - Divisional Engineer in Group B and the next promotion post of Divisional Engineer in Group A stand declared as identified posts, as revealed from Exts. P15 and P16 O.Ms. issued by the Ministry of Personnel, P.G. & Pensions and Ministry of Social Justice and Empowerment, Government of India. It is stated that the appellant is fully qualified as per Exts. P1 and P2 Recruitment Rules and as such, he was eligible to be promoted accordingly, to any such vacancies which arose after the commencement of Ext. P1 Recruitment Rules brought into force from 23.07.1996. 4. The sequence of events narrated in the proceedings reveals that the appellant had pursued different rounds of litigation, seeking for retrospective promotion as aforesaid, after the W.A. No. 1756 of 2006 : 4 : above enactment. The appellant had earlier approached the CAT Ernakulam, by filing O.A. No. 1551 of 1997, which was disposed of, directing the Department to consider the claim, leading to Ext. P9 order dated 24.03.1998 rejecting the same, holding that 3 % reservation is applicable only in respect of 'direct recruitment' and further that the existing orders contemplated promotional reservation to handicapped persons only in Group C and D cadres, while no such benefit is available in respect of Group A & B posts. Though the said order was challenged by filing O.A. No. 800 of 1998, the same was disposed of as per Ext. P10 verdict, referring to the submission made from the part of the appellant / petitioner, based on Ext. P8 corrigendum issued, in clarification of Ext. P7, whereby reservation was stated as available for promotion to all grades and services as well, where the element of direct recruitment did not exceed 75 %. The W.A. No. 1756 of 2006 : 5 : appellant preferred Ext. P11 representation claiming for the benefit accordingly, which was directed to be considered as per Ext. P12 judgment passed by a learned Single Judge of this Court in W.P.(C) 28538 of 2004. A supplementary representation was also preferred as borne by Ext. P13 and after considering the same, it was rejected as per Ext. P14, stating that, the appellant was not eligible for promotion to Group B, 'w.e.f 07.02.1996', in view of the then existing rules, which insisted 'test qualification' for appointment to the post in question. The Writ Petition was filed challenging Exts. P9 and P14, raising various grounds. 5. The prayer of the appellant / writ petitioner is resisted by the respondents by filing three different proceedings; the first one a counter affidavit dated 18.02.2006 in the Writ Petition, then a counter affidavit dated 05.01.2007 filed in the present appeal and thereafter, a statement dated W.A. No. 1756 of 2006 : 6 : 17.06.2011 preferred through the standing counsel appearing for the respondents in the Writ Appeal. It was contended in the counter affidavit filed in the Writ Petition that, for promotion to Group B post, 'test qualification' was mandatory, which was taken away only w.e.f. 23.07.1996 as per Ext. P1 Rules and as such, the appellant/writ petitioner was not qualified as on 07.02.1996 - the date of commencement of the 'Act'. It was further stated that the reservation under the Act was applicable only in respect of 'direct recruitment' and that the existing rules did not provide for any provision for reservation for promotion to Group A / B posts. It was also added that the vacancies in Group B occurred prior to 1996, could be filled up only as per the earlier Recruitment Rules of 1981 and that the petitioner / appellant became eligible to be promoted to Group B only in '2001', who was promoted accordingly; as per Ext. P1 Recruitment W.A. No. 1756 of 2006 : 7 : Rules of 1996. 6. The appellant filed a reply affidavit rebutting the averments in the counter affidavit, asserting that, the reason given in Ext. P9 as to the absence of 'test qualification' had lost significance after Ext. P1 Recruitment Rules brought into force w.e.f. 23.07.1996. So also, the reason stated in Ext. P9 order to deny the benefit got vanished and a 'new ground' was raised for rejecting the claim in Ext. P14. However, without any discussion as to the reasons stated in Ext. P14, the learned Single Judge, merely referring to the contents of the counter affidavit held that no rules were there, for reservation in promotion to Group A and B posts and the Writ Petition was dismissed, which is under challenge in this Appeal. 7. Heard Adv. Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellant and Adv. Smt.I. Sheela Devi, the W.A. No. 1756 of 2006 : 8 : learned standing counsel appearing for the respondents at length. 8. Obviously, the claim is mooted by the appellant, for the benefits flowing from the 'Act'. Sections 32 and 33 which are relevant for effective adjudication of this case, are extracted below : 32. Identification of posts which can be reserved for persons with disabilities - Appropriate Governments shall - (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. 33. Reservation of posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one percent each shall be reserved for persons suffering from - (i) blindness or low vision (ii) hearing impairment W.A. No. 1756 of 2006 : 9 : (iii) locomotor disability or cerebral palsy in the posts identified for each disability. Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. The specific case of the appellant is that, the post of Sub-Divisional Engineer and Divisional Engineer (Group B and A respectively) stand declared as identified posts under Section 32 of the Act as discernible from Exts. P15 and P16 O.Ms. issued by the Government and this being the position, the reservation to an extent of 3 % as stipulated under Section 33 is automatic, which benefit is consciously being denied by the respondents. It is also asserted that, totally inconsistent case / pleading has been set forth by the respondents at different points of time and admittedly since there W.A. No. 1756 of 2006 : 10 : is no direct recruitment to the above posts, if the reservation contemplated under the'Act' is denied in respect of filling up the posts by promotion, the very purpose of the 'Act' will be defeated. The stand of the respondents has to be analysed and appreciated in the above background. 9. First of all, it is to be noted that the claim was rejected earlier, as per Ext. P9, stating that, there was 'no enabling provision' to provide for reservation in the matter of promotion to Group A & B posts and that the existing orders provided for such an exercise only in respect of Group C & D posts. It is contended that the change in roster effected as per Ext. P6 O.M. in modification of Ext. P7 (whereby the roster points in respect of 3 % reservation against the identified posts stipulated at 33, 67 & 100 - in a cycle / unit of 100 was changed as 1, 34 & 67) cannot advance the case of the employee, as the same pertains only to Group C & W.A. No. 1756 of 2006 : 11 : D posts. When the matter was ordered to be reconsidered as per Ext. P12 judgment passed by this Court, the claim was rejected as per Ext. P14, on a totally different ground, alleging lack of test qualification 'as on 07.02.1996'. However, the case was sought to be improved by supplementing the grounds / reasons in the counter affidavit, which course is not permissible, in view of the settled position of law on the point. The judgment under challenge is based on the said counter affidavit, whereby it has been held that the relevant O.Ms. dated 20.11.1989 (Annexure R (1) produced along with counter affidavit dated 05.01.2007 in the Writ Appeal) and paragraph 1.2 of the O.M. dated 04.06.1998 [Annexure R (3)] expressly make clear that no reservation for physically handicapped person is available in respect of Group A & B posts, which position is stated as followed in the subsequent O.M. dated 28.08.1998 [Annexure R (2)] as W.A. No. 1756 of 2006 : 12 : well. It has been held that Exts. P15 and P16 also do not suggest any reservation as permissible for promotion to Group A & B posts. Sections 32 and 33 of the Act are also seen referred to, as not the enabling provisions, so as to provide for reservation in the matter of appointment to the identified posts, by promotion and the writ petition was dismissed accordingly. Nothing is stated as to the 'sole reason' contained in Ext. P14, to reject the claim of the petitioner holding that, it was for the absence of test qualification 'as on 07.02.1996'. 10. The respondents have now come up with some what 'different version' in the counter affidavit dated 05.01.2007 filed in the Writ Appeal. The relevant portion in paragraph 4 reads as follows: 4......Meanwhile the P.W.D. Act 1995 was implemented. O.M. No. 36035/14/98-Estt. (Res) dated 28.08.1998 issued by Government of India, Dept. Per. & Trg. took note of the said Enactment and provided separate W.A. No. 1756 of 2006 : 13 : reservation roster to be maintained for each identified post to be filled through direct recruitment for the physically handicapped persons in Groups 'A' & 'B' posts/service. A true copy of the said O.M. dated 28.08.1998 is produced herewith and marked as Annexure R2. Some slight modification is made, when it comes to paragraph 7, which reads as follows: 7. With regard to the averments in paragraphs 16 to 19 of the appeal memorandum it is submitted that the roster system provided in Exhibit P6 is applicable only in the case of promotions (i) within Group 'D' (ii) form Group 'D' to Group 'C' and (iii) within Group 'C'. The roster system for the Group 'A' and Group 'B' posts are for the first time introduced by Annexure R2. But this is intended only for the purpose of filling the identified posts through direct recruitment. In the circumstances the rejection of Exhibit P13 representation as per Exhibit P14 order cannot be faulted with. What is more important is discernible from paragraph 8, which reads as follows : W.A. No. 1756 of 2006 : 14 : 8. With regard to the averments in paragraphs 20 to 25 it is submitted that the BSNL is strictly complying with the various provisions contained in the PWD Act and the executive orders passed by the Government in this regard. The BSNL is endeavoring to maintain 3 % vacancies of identified posts to be filled up by physically disable persons. Whenever direct recruitment is made to the identified posts in Group 'A' and Group 'B' the BSNL is providing 3 % reservation to physically handicapped persons. When the selection to these posts is made only by promotion, then also the statutory % can be maintained by regular promotion from the feeder category on the basis of Merit and seniority. Going by the contents of the said counter affidavit filed in the appeal, it stands now admitted by the respondents that, Annexure R2 O.M. dated 28.08.1998 has been issued by the Government (giving effect to the provisions of the Act), providing separate reservation roster to be maintained for direct recruitment, to the physically handicapped persons W.A. No. 1756 of 2006 : 15 : in Group A & B posts and that, whenever direct recruitment is made to the identified posts in Group A & B, the BSNL is providing 3 % reservation to physically handicapped persons. As conceded in paragraph 8, it is further stated that when the selection to these posts is made only by promotion, then also statutory ' % ' can be maintained by regular promotion from the feeder category on the basis of merit and seniority. This being the position, the only question is, whether the appointment to the posts in question is to be made only by promotion or otherwise. Exts. P1/P2 Recruitment Rules clearly say that the posts are to be filled up solely by promotion (75 % on the basis of seniority cum fitness and remaining 25 % on the basis of the competitive examination in the department). When the respondents admit that, the method of recruitment is solely by promotion, under which circumstance the benefit of reservation can be W.A. No. 1756 of 2006 : 16 : extended as stated in paragraph 8, why a contrary stand is taken elsewhere in the pleadings filed by the respondents and also in passing Exts. P9/P14 turns to be a matter of mystery. 11. The picture gets some clarity, when it comes to Annexure R4 O.M. dated 29.12.2005 produced along with the counter affidavit dated 05.01.2007 filed by the respondents in the Writ Appeal, though the same is not complete (the full text having been produced by the respondents as Annexure R2 (b) along with the statement dated 17.06.2011 filed through the learned standing counsel). The said O.M. has been issued with a view to consolidate the existing instructions, bringing them in line with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and to clarify certain issues including procedural matters with regard to the reservation for persons with disabilities W.A. No. 1756 of 2006 : 17 : (physically handicapped persons) in the posts and services under the Government of India, making it clear that, the said instruction shall supersede all previous instructions issued on the subject so far. Paragraph 2 of the said O.M. is the crucial one, which is extracted below : 2. QUANTUM OF RESERVATION : (i) Three percent of the vacancies in case of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability; (ii) Three percent of the vacancies in case of promotion to Group D and Group C posts in which the element of direct recruitment, if any, does not exceed 75 % shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. W.A. No. 1756 of 2006 : 18 : 12. The averments of the respondents in the counter affidavit filed in the Writ Petition that the writ petitioner got qualified as per Ext. P1 Recruitment Rules of 1996 only in the year 2001 does not appear to be correct; as the requisite experience is only 3 years' regular service in the feeder category for promotion to the post of Sub- Divisional Engineer (Group B) and six years thereafter to the post of Divisional Engineer (Group A). Similarly, the contents of the statement dated 16.07.2011 as to the amendment of the Recruitment Rules in the subsequent years do not have any bearing or relevance to the case in hand, as the issue pertains to the period after the commencement of Ext. P1 Recruitment Rules and the claim is in respect of the vacancies in the posts, which occurred till 2001 when the petitioner was given regular promotion as Sub - Divisional Engineer, vide Ext. P3 order dated 02.04.2002 w.e.f 12.03.2002. W.A. No. 1756 of 2006 : 19 : There is also a specific contention for the appellant, as stated in the reply affidavit, that since several vacancies had arisen after 1996 and the qualification is only 3 years regular service in the feeder category, the contention of the respondents that the petitioner was given promotion on becoming qualified as per Ext. P1 Recruitment Rules in the year “2001”, is not correct. 13. The pleading raised by the appellant, that the posts have been identified as borne by Ext. P15 and P16, is not specifically and successfully rebutted. If there is no dispute with regard to the factum of identification of posts in Group A & B categories, to which promotion is claimed and when the respondents admit that the method of recruitment is solely by promotion (without any direct recruitment) as per Ext. P1/P2 Recruitment Rules and above all, when it is conceded in paragraph 8 of the counter affidavit dated 05.07.2007 filed in the W.A. No. 1756 of 2006 : 20 : Appeal that the benefit of reservation to the requisite extent can be provided even in the matters where the method of recruitment is solely by way of promotion, this Court finds that the reasoning given in Ext. P9/P14 and in the judgment under challenge cannot stand as it is and the matter requires to be reconsidered more meticulously, with reference to the relevant facts and figures as aforesaid. This is more so, in view of the reservation provided to Group A & B posts as well (as in Group C & D posts), in tune with the relevant provisions of the Act, as per O.M. dated 29.12.2005, a full extract of which has been produced by the respondents as Annexure R2 (b) along with the Statement dated 17.06.2011 filed through the standing counsel appearing for the respondents. In the above circumstances, the judgment under challenge is set aside, simultaneously setting aside the impugned orders produced as Ext. P9 and P14. W.A. No. 1756 of 2006 : 21 : The second respondent is directed to reconsider the matter and pass a 'speaking order' in the light of the above observations and in accordance with law, of course after giving an opportunity of hearing to the appellant, which shall be done as expeditiously as possible, at any rate within three months from the date of receipt of a copy of the judgment. Taking note of the particular facts and circumstances, this Court orders that, if the appellant is found as eligible to have retrospective promotion, the same needs to be given only on a notional basis and that the monetary benefits, if any, will flow only prospectively. The Writ Appeal is disposed of as above. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd