IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WP(C).No. 25972 of 2006(S) -------------------------- OA.201/2002 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. THE UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PERSONEL AND TRAINING, NEW DELHI. 2. THE COMPTROLLER AND AUDITOR GENERAL OF INDIA, NO.10, BAHADURSHA SAFAR MARG, NEW DELHI. 3. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. 4. THE SR.ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. BY ADV. SRI.JOHN VARGHESE, ASSISTANT SG RESPONDENTS: --------------- 1. K.S.GOPAN, ACCOUNTANT, (FORMERLY CLERK/TYPIST) S/O.SOMANATHAN NAIR, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM, RESIDING AT AMBADI, VETTUROAD, KANIYAPURAM P.O., THIRUVANANTHAPURAM. 2. JACOB K.SAMUEL, CLERK/TYPIST, S/O.K.C.SAMUEL, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM, RESIDING AT EBENEZER, KADAKKAL, KOLLAM. W.P.(C) No.25972/2006 3. N.MANOJ, S/O.O.S.NEELAKANDA PILLAI, CLERK/TYPIST, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM, (NOW AT BRANCH OFFICE, KOTTAYAM) RESIDING AT BEENA BHAVAN, VIZHIKITHODU P.O., KOOVAPATHY, KOTTAYAM. ADV. SRI.M.R.HARIRAJ FOR R1TO3 SMT.REKHA VASUDEVAN SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.K.S.SARATH KUMAR SRI.S.NITHIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON DELIVERED THE FOLLOWING: W.P.(C) NO.25972/2006 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.NO.201/2002 OF THE C.A.T., ERNAKULAM DT.18.3.2002. EXT.P2: COPY OF THE ORDER DT.04.04.2002 IN O.A.NO.201/2002 OF THE C.A.T., ERNAKULAM. EXT.P3: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.29952/2002 DT.04.03.2005. EXT.P4: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.NO.201/2002 DT.22.11.2005. EXT.P5: COPY OF THE REJOINDER FILED BY THE RESPONDENT HEREIN IN O.A.NO.201/2002 DT.18.10.2005. EXT.P6: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.NO.201/2002 DT.04.04.2006. EXT.P7: COPY OF THE ORDER OF THE C.A.T., ERNAKULAM IN O.A.NO.201/2002 DT.06.06.2006. EXT.P8: COPY OF THE O.M.NO.36035/7/95-ESTT(SCT) DT.18.2.1997. EXT.P9: COPY OF THE O.M.NO.36035/8/89-ESTT(SCT) DT.20.11.1989. EXT.P10: COPY OF THE CIRCULAR LETTER NO.329/NGE (APP)/17-2000 DT.16.3.2001. EXT.P11: COPY OF THE O.M.NO.F.36034/4/86-ESTT (SCT) DT.25.11.1986. EXT.P12: COPY OF THE CIRCULAR NO.227/NGE (APP)/6-2003 DT.20.3.2003 EXT.P13: COPY OF THE OM.DT.01.4.1986 ISSUED BY THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE & PENSION. EXT.P14: COPY OF THE O.M.NO.36035/16/91-ESTT(SCT) DT.20.09.1994 ISSUED BY THE MINISTRY OF PERSONNEL P.G. AND PENSIONS. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ---------------------------------------- W.P.(C) No.25972 OF 2006 ---------------------------------------- Dated this the 6th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in O.A.No.201/2002 before the Central Administrative Tribunal, Ernakulam Bench, are the writ petitioners. The applicants therein are the respondents herein. 2. The applicants approached the Central Administrative Tribunal, seeking the following reliefs: “i) To quash Annexure A1 to the extent it denies reservation in promotion to the physically handicapped persons retrospectively from 20.11.1989. ii) To declare that 3% vacancies in the cadre of Accountant, Senior Accountant and Group B Section Officer cadre under the respondent department are liable to be reserved for physically handicapped persons with effect from 20.11.1989 and to direct the respondents to consider the applicants for promotion as Accountant and Senior Accountants on the basis of reservation for physically handicapped with retrospective W.P.(C) No.25972/2006 2 effect from 20.11.1989 with all consequential benefits including further promotion as Section Officer against the 3% quota reserved for physically handicapped.” 3. The brief facts of the case are the following: The applicants are working as Clerks/Typists under the 3rd petitioner. They are all physically challenged persons, having disability above 40%. They claimed 3% reservation in the matter of promotion to the post of Accountant, which is a Group 'C' post. They submitted that the post of Accountant was identified as a post for the purpose of grant of reservation to physically challenged persons, as per O.Ms dated 28.2.1986 and 25.11.1986. They submit that those O.Ms were made applicable for promotion to the post of Accountant under the Central Government and establishments under it with effect from 20.11.1989. Therefore, they claimed the benefit of reservation with retrospective effect from that date. Their claim in this regard was considered by the competent authority and rejected by Annexure-A1 dated 14.9.2001. It was held that the posts of Accountant as well as Auditor were identified for the purpose of reservation to physically handicapped persons in the matter of W.P.(C) No.25972/2006 3 promotion with effect from 14.9.2001 only. Challenging the said order, the Original Application was filed. 4. The applicants relied on Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1975 (hereinafter referred to as “the Act”), in support of their claim. According to them, appropriate Government, as far as the office of the Comptroller and Auditor General of India is concerned, is the Central Government. The Central Government have issued orders identifying the posts of Accountant as well as Auditor for reservation. The said identification by the Central Government binds the Comptroller and Auditor General also. Therefore, they claimed the benefit of reservation with retrospective effect, atleast from 1989. According to the writ petitioners/respondents, the Comptroller and Auditor General had identified the aforementioned posts for the purpose of reservation to physically challenged persons in the matter of promotion only on 14.9.2001 and with effect from that date only, the benefit will be granted. W.P.(C) No.25972/2006 4 5. The Tribunal considered the rival submissions and disposed of the Original Application in the following manner: “7. In our considered view, the inaction on the part of the respondents in implementing the orders of the Government of India contained in OM dated 20.11.89 (supra) is absolutely arbitrary and unconstitutional and it caused irreparable loss to the applicants and other similarly placed persons in the Respondent Department for a long time. The applicants have been purposely denied their right for consideration for promotion in terms of the said OM dated 20.11.89 for nearly 12 years as observed above. Had the respondents identified the post of Accountant to be filled up by promotion in 1989 for even in 1990, the applicants could have been considered during the panel year 1990 itself. It was due to the dereliction of duty of the concerned officials, such a consideration was denied to the applicants for 12 years. In this view of the matter, we direct the Respondents to consider the applicants for promotion to the post of Accountant for the reserved quota for physically handicapped for the panel year 1990 onwards and promote them from the date they become eligible for such promotion as if the post of Accountant had been identified as such for being filled by W.P.(C) No.25972/2006 5 the physically handicapped persons for the purpose of providing reservation in promotion in the year 1990. This exercise shall be completed within a period of three months from the date of receipt of this order. As regards the question of not identifying the post of Section Officer for the purpose of reservation to the physically handicapped persons in promotion neither the applicants nor the Respondents have given any reasons/justification for doing so/not doing so. The applicants are permitted to make a detailed representation if they are so advised in this regard and if it is made, the Respondents shall consider the same within a period of three months from the date of receipt of the same and pass a reasoned and speaking order. 8. Considering the totality of the matter and particularly the fact that the applicants being physically handicapped persons had to approach this Tribunal for securing their statutory rights for the second time which had been denied to them for a long period of nearly 12 years for no valid reasons by the respondents, we consider it fit to award a cost of Rs.1000/- (One thousand) each to the applicants amount to Rs.3,000/- (Three thousand) in total which shall be paid by the respondents within the afore stated period of three months.” W.P.(C) No.25972/2006 6 The aggrieved respondents in the Original Application have come up before this Court, by filing this writ petition. 6. We heard the learned counsel on both sides. Sections 32 and 33 of the Act read as follows: “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; (iii) locomotor disability or cerebral palsy in the posts identified for each disability: W.P.(C) No.25972/2006 7 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.” Appropriate Government is defined in Section 2(a) of the Act, which reads as follows: “2(a) Appropriate Government means:- (i) in relation to the Central Government, or any establishment wholly or substantially financed by that Government or a Cantonment Board constituted under the Cantonments Act, 1924 (2 or 1924), the Central Government; (ii) in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government; (iii) in respect of the Central Co-ordination Committee and the State Executive Committee, the Central Government; (iv) in respect of the State Co-ordination Committee and the State Executive Committee, the State Government.” W.P.(C) No.25972/2006 8 7. The Act was enforced with effect from 7.2.1996. The Comptroller and Auditor General of India is an independent constitutional authority. Service conditions of employees under the Indian Audit and Accounts Department are to be prescribed by the President after consultation with the Comptroller and Auditor General. So, the general orders or the office memorandums issued by the Department of Personnel and Training, it appears, are not automatically applicable to the said Department and the employees working under the Comptroller and Auditor General of India. The provision in this regard is contained in Article 148(5) of the Constitution of India, which reads as follows: “(5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor- General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General.” W.P.(C) No.25972/2006 9 8. But, the above provision is subject to any Act of Parliament. Therefore, after the enactment of the aforementioned Act, any decision of the Central Government under Section 32 will bind the Comptroller and Auditor General of India and be applicable to the offices under him. Unless the executive orders issued by the Government before the enforcement of the above Act are issued in consultation with the Comptroller and Auditor General of India, such orders will not apply to the establishments or the offices under him. But, as mentioned earlier, after the enforcement of the above Act, the situation has changed. We are of the view that the Comptroller and Auditor General will also be bound by any identification of posts made by the Central Government under Section 32. In other words, the stand of the writ petitioners that the identification made by the Comptroller and Auditor General in 2001 alone will bind them cannot be upheld, provided there are orders issued under Section 32 of the Act between the date of enforcement of the Act and 14.9.2001, the date on which Annexure A1 order was issued. To decide the point, there are not sufficient materials before us. So, whether retrospectivity W.P.(C) No.25972/2006 10 can be given to the claim for promotion beyond 14.9.2001 will depend upon the issuance of a valid order identifying the post of Accountant or Auditor by the Central Government under Section 32. 9. The learned counsel for the applicants/respondents pointed out that the above posts were already identified by the executive orders issued in 1986 and they were mentioned and incorporated in the subsequent orders issued by the Government, after the enforcement of the aforementioned Act. Therefore, atleast from the date of issuance of such orders, the applicants are entitled to get the benefit of reservation, it is pointed out. We feel that this is a matter which should be considered by the Tribunal, having regard to the orders issued by the Central Government after the enforcement of the Act. For the said purpose, we think the matter should be remitted to the C.A.T. So, we quash Ext.P7 and remit the matter to the C.A.T. for fresh disposal of the Original Application, in accordance with law, in the light of the observations made by us W.P.(C) No.25972/2006 11 herein above. The Central Administrative Tribunal shall endeavour to hear and dispose of the matter, as expeditiously as possible, preferably within five months, from the date of production of a copy of this judgment. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps