RAMESH CHANDER Vs. UOI

JUDGEMENT

(1.) THE common questions which arise in these petitions is with regard to the reservation for persons with disabilities to the extent of 3% in terms of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereafter referred to as 'Disability Act'). It is contended that the Central Government's Office Memorandum of 29.12.2005, to the extent it denies promotional reservation to officers in Group A and B, violates the mandates of Section 32 and 33 of the Disability Act and further, results in discrimination within one class of employees, i.e., persons with disabilities who are holding Central Government posts inter se.

(2.) BOTH the petitioners are employees of the Central Government. The petitioner in W.P. (C) 7378/2010, B.D.S. Kharb, joined the Central Government as IRS Officer after qualifying through general merit in the Civil Services Examination. The petitioner in W.P. (C) 6371/2006, i.e., Mr. Ramesh Chander joined the Central Government as an Income Tax Officer and was promoted on 18.06.2001. Both of them concededly were issued with disability certificates. With the advent of the Disability Act, the Central Government and other establishments covered by its provisions were obliged to set apart 3% of the vacancies which arise in their establishments/departments to be filled by persons with disabilities. In furtherance of this obligation, the Central Government appears to have issued departmental Circulars and Notifications from time to time. What are in issue are two such Notifications, the first is the Clarification dated 25.02.2003 and the second is Office Memorandum of 29.12.2005. The petitioners had approached the Tribunal, contending that denial of promotion consequent to the interpretation adopted by the Central Government, i.e., that promotional reservations would be available to Group C and D category employees and that such benefits could not be availed of or granted to Group A and B employees and officers, was arbitrary and contrary to the mandate of Section 32 and 33 of the Disability Act. In W.P.(C) No.6371/2006, the grievance made out was in respect of Notification dated 5.11.2001; however, in the other petition, i.e., W.P. (C) 7378/2010, OM of 29.12.2005 was challenged to the extent that it denied reservations in promotional vacancies. In both cases, the Tribunal rejected the petitioner's contentions holding that the earmarking of reservation at promotional level for different class of officers and employees was a policy issue, and that the Act did not casts any obligation in that regard.

(3.) COUNSEL for the respondents submitted that the expansive interpretation of the Supreme Court's judgment in National Federation of Blind matter (supra), sought to be urged on behalf of the petitioners, is unwarranted. It was pointed out that at no stage, neither in 2011 nor in 2003 or by the OM of 29.12.2005, were the persons occupying Group A and B posts or belonging to such services entitled to claim promotions through reservations. In other words, argued the counsel for Union of India, that there were no promotional reservations for persons with disability in Group A and B posts. He submitted, secondly, that the adverse comments leading to the setting aside of a part of the 29.12.2005 OM by the Supreme Court in National Federation of Blind matter (supra) only pertained to the method of calculating vacancies and filling them, and not to the principle of reservation whereby a distinction was made between the classes of posts and services. Learned counsel submitted that the latter part of paragraph 13 of the OM fell foul of the Supreme Court's declaration and that the reference to Indra Sawhney Etc. Etc vs. Union Of India And Others, : AIR 1993 SC 477 was only with regard to the extent of vacancies; the Supreme Court stated that the cap of 50% did not apply in the case of persons with disabilities.