Union of India & Others v. P.K. Sadanandan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE EASWARAN S. MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` OP (CAT) NO. 79 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 04.01.2022 IN OA NO.403 OF 2020 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH PETITIONERS/RESPONDENTS: ``` - **`1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF POST, NORTH BLOCK, NEW DELHI, PIN - 110001`** - **`2 THE CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES, MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT GOVERNMENT OF INDIA, NEW DELHI, PIN - 110001`** - **`3 THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM, PIN - 695033`** - **`4 THE SUPERINTENDENT OF POSTS, KANNUR DIVISION, KANNUR, PIN - 670001 BY ADV CHANDINI G.NAIR`** ## **`RESPONDENT/APPLICANT:`** ``` P.K.SADANANDAN, S/O. M.P.NARAYANAN NAMBIAR, LSG POSTAL ASSISTANT(RETD.) RESIDING AT SRUTHILAYA, CHELERI P.O., KANNUR., PIN - 670604 ``` ``` BY ADV.SMT.SUMATHI DANDAPANI (SR) SRI. Millu Dandapani ``` ``` THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 27.05.2024, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (CAT) NO. 79 OF 2023 ``` 2 ## **AMIT RAWAL & EASWARAN S., JJ.** ------------------------------------ ## **O.P. (CAT) No.79 of 2023** ------------------------------------- **Dated this the 27[th] day of May, 2024** ## **J U D G M E N T** ## Easwaran, J. The Union of India aggrieved by the order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.403/2020 has come up before this Court under Article 227 of the Constitution of India raising a question as to whether a person who was appointed under general category can claim promotion under the quota reserved under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2. The facts as disclosed from the application before the Tribunal are as follows: The respondent/applicant entered service in the year 1981 as Postal Assistant. It is further averred that he was also granted conveyance allowance in terms of Office Memorandum dated 31.8.1978 for orthopaedically handicapped employees ``` OP (CAT) NO. 79 OF 2023 ``` 3 with disability of lower extremities. The Postal Assistant comes within the entry post of Department of Postal Services in Group-C category. The next promotional avenue for the post of Postal Assistant is LSG and thereafter HSG-II. According to the applicant, since he had joined in the year 1981 as Postal Assistant, he should have been awarded Lower Selection Grade in the year 1997-2000 and subsequent promotion as HSG-II in the year 2006 and HSG-I in the year 2015, respectively. As per the office memorandum dated 18.2.1997 issued by the Government of India, Ministry of Personal, Public Grievance and Pensions, Department of Personal and Training, reservation for physically handicapped candidates in the post filled by promotion was identified dividing the cycle 100 points into 3 blocks; the first block at 33, second block at 67 and the third block at 100. This was later superseded by Office Memorandum No.36035/02/2017-Estt(RES) dated 15.01.2018. Claiming promotion in the quota reserved for the persons with disabilities, the petitioner filed Annexures-A7 and A8 representations. According to the applicant, since there was no ``` OP (CAT) NO. 79 OF 2023 ``` **==> picture [7 x 9] intentionally omitted <==** practice of maintaining reservation quota in the Postal Department at Kannur, he applied for the details under the Right to Information Act on 13.8.2019. The reply to the said query revealed that the Department had not followed the percentage of reservation to the physically handicapped candidates. Under Annexure-A12 representation dated 27.12.2019, the applicant requested the Office of the 2[nd] petitioner/2[nd] respondent to restore the mandatory promotions for LSG, HSG-II, HSG-I and HSG-I (NFG) as early as possible. The 3[rd] petitioner/3rd respondent was directed to submit the details of information regarding the number of vacancies filled since 01.01.1996. Under Annexure-A13 dated 20.01.2020, the applicant was given a chance to file rejoinder within fifteen days from the date of receipt of the reply from the 3[rd] petitioner, which accordingly had been filed. By reply dated 15.05.2020 produced as Annexure-A14, the Department took the stand that since the petitioner was appointed under the quota reserved for compassionate appointments, he was not entitled to be considered for promotion under the quota reserved for disabled ``` OP (CAT) NO. 79 OF 2023 ``` 5 ## persons. This prompted the applicant to approach the Central ## Administrative Tribunal seeking the following reliefs: “i. To call for the records leading to Annexure-A13, 14 and 15 and give a direction to the 2[nd] respondent to dispose of the same invoking the provision of Section 77 of the Act. ii. To direct the 2[nd] respondent to identify suo moto, for positioning the PWD candidates in promotion in accordance with Annexure-A6 OM. iii. To direct the 2[nd] respondent to set apart the post in the Department at Kannur Postal Division in accordance with Annexure-A6 OM. iv. To direct the 3[rd] respondent not to fill up 1 post of HSG-I(NFG) at Kannur Postal Division till the benefit of PWD candidates are allocated in tune with the provisions of the Act and Annexure-A6 OM. v. To grant such other appropriate order or direction as the Tribunal deemed fit and proper in the facts and circumstance of the case.” 3. The petitioners/respondents appeared and filed their reply taking a stand that the applicant never claimed that he is a disabled person and further that he was appointed under the Compassionate Scheme and therefore, he is not entitled for promotion in the quota reserved for physically disabled persons. It was further contended that merely because the applicant was given allowances for the physically disabled ``` OP (CAT) NO. 79 OF 2023 ``` **==> picture [7 x 9] intentionally omitted <==** persons, that will not entitle him to claim promotion in the quota reserved for physically disabled persons. 4. Based on the pleadings on record, the Tribunal proceeded to hold that irrespective of the method of recruitment, the Department was bound to protect the rights of disabled persons and was required to reserve certain vacancies for filling up with persons with disabilities and accordingly, the Original Application was allowed. The Tribunal proceeded further to hold that since the applicant had retired, he would be only entitled for notional fixation from the date of promotion and also consequential fixation in the pension. Challenging the said order, the present Original Petition is filed. 5. We have heard Smt.Chandini G.Nair, learned counsel appearing for the petitioners, and Smt.Sumathi Dandapani, learned Senior Counsel assisted by Sri.Millu Dandapani, appearing for the respondent/applicant. 6. The learned counsel for the petitioners submitted that since the applicant had never claimed for the benefit of persons with disabilities, he cannot be considered for promotion. She ``` OP (CAT) NO. 79 OF 2023 ``` **==> picture [7 x 9] intentionally omitted <==** would further submit that since the original appointment was under compassionate grounds, for subsequent promotions, the applicant was not entitled for being considered for promotion to various posts in the quota reserved for disabled persons. She would further submit that the order of the Tribunal is patently erroneous, taking into consideration the fact that the claim of the applicant was raised belatedly. She further submitted that it was the duty of the applicant to bring these matters relating to physical disability by giving necessary representation at the earliest. However it was only on 6.1.2021 that the applicant submitted the disability certificate and he retired from service on 31.5.2021. She would further point out that even when O.A.No.86/2016 seeking promotion to the cadre of LSG at par with his juniors in his turn reckoning his seniority from the date of initial appoint was filed by the applicant, he did not claim that he was liable to be promoted on the ground of disability. She would further submit that O.A.No.86/2016 was subsequently withdrawn during the pendency of the present Original Application. Learned counsel for the petitioners would ``` OP (CAT) NO. 79 OF 2023 ``` **==> picture [7 x 9] intentionally omitted <==** further point out that as per Office Memorandum dated 17.5.2022, the provisions of Right of Persons with Disabilities Act, 2016 has been implemented in accordance with the instructions as issued by the appropriate Government from time to time and that it can have effect only prospectively and therefore, the claim of the applicant was totally unsustainable. 7. On the contrary, the learned Senior Counsel, Smt. Sumathi Dandapani, would submit that the claim of the applicant for promotion in the quota reserved for physically disabled persons was equally sustainable in the light of the protection granted to such persons in terms of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. She would further point out that going by the judgment of the Hon’ble Supreme Court, which was considered by the Tribunal, the question as to whether a person who was selected under the compassionate ground can be considered for promotion under the persons with disability category was no longer _res integra_ in the light of the judgment in **State of Kerala & Ors.** ``` OP (CAT) NO. 79 OF 2023 ``` 9 **v. Lessamma Joseph [2021 SCC Online SC 435]** . Our attention was further invited to the decision in **Siddaraju v.** **State of Karnataka in Civil Appeal No.1567 of 2017 [2020 SCC Online SC 45]** . 8. We have considered the rival submissions raised across the bar. 9. When we analyse the contentions raised on behalf of the petitioners with the law as laid down by the Supreme Court, we have no hesitation in our mind in holding that none of the contentions raised by learned counsel for the petitioners is liable to be accepted. Even prior to coming into force of the Rights of Persons with Disabilities Act, 2016, the Supreme Court of India in **Union of India & Another v. National** **Confederation for Development of Disabled & Others** **[(2015) 13 SCC 643]** was pleased to consider the question as to whether the provisions of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 would apply to the promotion posts also. Considering the judgment of the Apex Court reported in ``` OP (CAT) NO. 79 OF 2023 ``` 10 **Union of India & Another v. National Federation of the Blind and Others [(2013) 10 SCC 772]** , the Apex Court proceeded to hold that irrespective of the method of recruitment, the benefit of the Act will have to be extended to the promotional posts also. 10. We are quite aware of the fact that the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training has issued Office Memorandum No. 36035/02/2017-Estt (RES) dated 15.01.2018 stating detailed instructions for granting reservation for persons with benchmark disabilities. In terms of said office memorandum, points 1, 26, 51 and 76 of the roster shall be earmarked for persons with benchmark disabilities. We perfectly agree with the findings of the Central Administrative Tribunal, Ernakulam Bench rejecting the contention of the petitioners that merely because the applicant/respondent herein was appointed as Postal Assistant on compassionate basis, he would not be entitled for promotion on the quota reserved for disabled persons. Such contention cannot be countenanced, in view of ``` OP (CAT) NO. 79 OF 2023 ``` 11 the principles laid down by the Hon’ble Supreme Court in the judgments referred to above. It has also come out from the pleadings and the materials on record that the process as per the procedure of the instructions in the Office Memorandum as referred to above, has not been followed by the Department. Therefore, in the light of these provisions, the applicant was certainly entitled for being considered for promotion in the quota reserved for disabled persons. In view of the above discussions, we find no sustainable ground to interfere with the findings of the Central Administrative Tribunal in exercise of power of superintendence under Article 227 of the Constitution of India. Accordingly, the challenge to Ext.P9 order dated 4.1.2022 in O.A.No.403/2020 fails and the Original Petition is dismissed. No order as to costs. Sd/- ## **AMIT RAWAL JUDGE** Sd/- **EASWARAN S. JUDGE** ``` jg ``` ``` OP (CAT) NO. 79 OF 2023 ``` 12 ## **`APPENDIX OF OP (CAT) 79/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure A1TRUE COPY OF THE DISABILITY CERTIFICATE DT:27.9.2007 ISSUED BY THE ASSISTANT SURGEON OF THE GOVERNMENT HOSPITAL, KANNUR Annexure A2TRUE COPY OF THE OM NO.19029/1/78-B IV(B) DTD:31.8.1978 Annexure A3TRUE COPY OF THE OM NO.19029/1/78-E IV(A) DTD:3.12.1979 Annexure A4TRUE COPY OF THE ORDER NO.EST.49/1/1/04 GRANTING CONVEYANCE ALLOWANCE ISSUED FROM THE OFFICE OF THE CHIEF POST MASTER, TRIVANDRUM DTD;16.5.1985 Annexure A5TRUE COPY OF THE PAY SLIP ISSUED BY THE DEPARTMENT OF POSTS FOR THE MONTH OF AUGUST 2020 Annexure A6TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO.36035/02/2017-ESTT(RES) DTD.15.01.2018 Annexure A7TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT DATED 27.12.2017 Annexure A8TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT DATED 15.07.2019 Annexure A9TRUECOPYOFTHEREQUEST NO.REF.NO.BPEA-GR-C/TVM /2019-20/8-9 MADE UNDER RTI ACT ON 13.8.2019 ``` ``` Annexure A10TRUE COPY OF THE LETTER NO.12-1/CCD/2018 DATED 12.9.2020 RECEIVED FROM THE OFFICE OF THE 2ND RESPONDENT Annexure A11TRUE COPY OF THE REPLY GIVEN BY THE DEPARTMENT OF POSTS INDIA, BEARING NO.ST/DA 11/RTI 13/2019 DTD:7.11.2019 Annexure A12TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT DATED 27.12.2019 ``` ``` Annexure A13TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT BEARING CASE NO.11706/1021/2020 DT:20.1.2020 Annexure A14TRUE COPY OF THE REPLY SUBMITTED BY THE 3RD RESPONDENT BEARING NO.ST/5-2/CADRE.RFST/2019 PT DATED 15.5.2020 ``` ``` Annexure A15TRUE COPY OF THE REJOINDER SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT DATED ``` ``` OP (CAT) NO. 79 OF 2023 ``` 13 ## **`3.6.2020`** ``` Annexure A16TRUECOPYOFTHEMEMORANDUMBEARING NO.F.NO.14014/02/2012-ESTT.(D) ISSUED BY THE DOPT DATED 16.1.2013 ``` - **`Annexure A17 TRUE COPY OF THE INVOICE PERTAINING TO THE ABOVE PROCEDURE NO.ST/3-3/DIG 2017 PT DATED 11.8.2020`** ``` Annexure A18TRUE COPY OF THE CIRCLE GRADUATION LIST OF POSTAL ASSISTANT AS ON 1.7.2008 ``` - **`Annexure A19 TRUE COPY OF THE ORDER BEARING MEMO NO.ST/3-3/DIG/2014 DTD:12.2.2018 ISSUED BY THE OFFICE OF CHIEF POST GENERAL`** - **`Annexure R1 TRUE COPY OF THE OM NO.36035/3/2004-ESTT.(RES.) DATED 29.12.2005`** ``` Annexure R2TRUE COPY OF THE OM NO.36035/3/2004-ESTT.(RES.) DATED 10.6.2009 ``` ``` Annexure R3TRUE COPY OF THE OM NO.5/1/60-ESTT.(D.) 28.6.1960 AND OM NO.5/1/62-ESTT.(D) DATED 31.07.1962 Annexure A20TRUE COPY OF THE PROCEEDINGS OF THE MEDICAL BOARD DATED 16.12.2020 & 31.12.2020 ``` - **`Annexure A21 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL BOARD DATED 6.01.2021 WHICH HAD BEEN DULY ATTESTED ON 12.01.2021`** - **`Annexure A22 TRUE COPY OF THE ORDER ISSUED BY THE COURT OF CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES (DIVYANGAN) DATED 15.12.2020`** - **`Annexure A23 TRUE COPY OF THE LETTER DATED 12.01,2021 SEND TO THE 3RD RESPONDENT`** - **`Annexure TRUE COPY OF THE POSTAL RECEIPT OF ANNEXURE A23`** - **`A23(a) Annexure R4 COPIES OF CERTAIN PAGES OF 100 POINT RESERVATION ROASTER MAINTAINED IN RESPECT OF THE PHYSICALLY HANDICAPPED POINTS REMARKED FOR DIRECT RECRUITMENT`** - **`Annexure R5 COPIES OF CERTAIN PAGES OF 100 POINT RESERVATION ROASTER MAINTAINED IN RESPECT OF THE PHYSICALLY HANDICAPPED POINTS REMARKED FOR PROMOTION`** - **`Annexure R6 LETTER NO.12/10/2017-SCT DATED 01.04.2019 Annexure R7 RELEVANT PAGE OF GRADUATION LIST ISSUED DURING 2017 UNDER THE DIRECT SIGNATURE OF THE APPLICANT`** - **`Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.403/2020 FILED BY THE RESPONDENT`** - **`Exhibit P2 TRUE COPY OF THE DAILY ORDER WAS PASSED BY THE`** ``` OP (CAT) NO. 79 OF 2023 ``` 14 ## **`TRIBUNAL DT:28.8.2020`** ``` Exhibit P3TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE RESPONDENTS ON 13.10.2020 ``` - **`Exhibit P4 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT/ APPLICANT`** - **`Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS`** - **`Exhibit P6 TRUE COPY OF THE ADDL. REJOINDER FILED BY THE RESPONDENT/APPLICANT WITHOUT ANNEXURES`** - **`Exhibit P7 TRUE COPY OF THE ADDL. REPLY STATEMENT TO THE ADDL.REJOINDER FILED BY THE PETITIONERS/RESPONDENTS`** - **`Exhibit P8 TRUE COPY OF THE ADDL. REPLY STATEMENT TO THE ADDL.REJOINDER`** - **`Exhibit P9 TRUE COPY OF THE ORDER IN OA.NO.180/00403/2020 DATED 04.01.2022 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH`** - **`Exhibit P10 TRUE COPY OF THE OM NO.36012/1/2020 ESTT.(RES.II) DT:17.5.2022`** - **`Exhibit P11 TRUE COPY OF THE LETTER F.NO. SC -1219/2022-SCTDOP DT. 14.09.2022 ISSUED BY THE DEPARTMENT OF POSTS`** ## **`RESPONDENT EXHIBITS`** - **`Exhibit R(a) THE TRUE COPY OF THE OM OF MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS DEPARTMENT OF PERSONNEL & TRAINING, DATED 28.12.2023.`** - **`Exhibit R(b) TRUE COPY OF THE COMMUNICATION SENT BY ASSISTANT DIRECTOR TO THE POSTAL GENERAL, DATED 09.01.2024`**