AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
Delivered by: Mr. Anjani Nandan Sharan, Member (A)
Heard Shri Jaswant Singh, learned counsel for the applicant and Shri Subhash Chandra Mishra, learned counsel for the respondents.
The instant Original Application, under section 19 of Administrative Tribunals Act, 1985, has been filed seeking the following reliefs:
“a)The Hon'ble Tribunal may graciously be pleased to hold and declare that the applicants are considered for regular promotion to the post of Superintendent with effect from their due dates as they have completed 8 years of regular service to be considered for promotion as per Service Rules and fix their seniority along-with pay from that period, with consequential benefits.
b)The Hon'ble Tribunal may graciously be pleased to issue a suitable timebound order or direction to the respondents to release the entire arrears of salary and other emoluments payable to the applicants from the date they got promotion to the post of Superintendent.
c)The Hon'ble Tribunal may graciously be pleased to grant such other relief, as the applicants might be found entitled to in the facts and circumstances of the case.
d)That this Hon'ble Tribunal be pleased to award the cost of this Original Application in favour of the applicants throughout.”
The brief facts of the case, as per the applicants, are that the applicant-1, namely, Sanjeev Kumar Chauhan was initially appointed as Inspector, Customs & Central Excise by the Staff Selection Commission, New Delhi under the category of Physically Handicapped (General)-PWDs and joined the department on 29.12.2009 and was eligible to get regular promotion to the post of Superintendent w.e.f. 30.12.2017. Applicant-2, namely, Manohar Lal Meena was initially appointed as inspector through Staff Selection Commission under the category of Physically Handicapped (Scheduled Tribe) (PWD/ST) and joined the department 18.8.2005 and was subsequently promoted to the post of Superintendent on ad-hoc basis vide order dated 17.05.2014 and even after a lapse of 8 years the ad-hoc promotion is not regularized till date. Applicant-3, namely, Surendra Kumar was initially appointed as Inspector under Customs & Central Excise Service Tax Commissioner Meerut-II under the category of Physically Handicapped (General-PWD) and joined the respondents‟ department on 11.09.2006 and he was fully eligible to get regular promotion to the post Superintendent w.e.f. 11.09.2014. Applicant-4, namely, Vikash Kumar was initially appointed as Inspector, Customs Central Commissionerate, Ghaziabad under the category of Physically Handicapped (OBC-PWDs) by the Staff Selection Commission, New Delhi and joined respondents‟ department on 15.02.2010 and was eligible to get regular promotion to the post of Superintendent w.e.f. 14.02 2018.
As per the applicants, Department Promotion Committee (D.P.C.) meetings were conducted from time to time for the promotion of Inspectors to the post of Superintendent but they were not given promotion. The applicants being Persons with Disability (PWD) are eligible for grant of regular promotion to the post of Superintendent. The applicants have relied upon Sections 32 & 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in this regard. The said sections, as has been produced by the applicants, are quoted as under:
"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 Governmentshall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from
(i)blindness or low vision;
(ii)hearing impairment;
(iii)locomotor disability orcerebral 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."
In view of the Section 32 of the aforesaid Act, the Ministry of Social Justice and Empowerment, Government of India, New Delhi had constituted an expert Committee on the 30.12.2010 to identify or review the posts in Group 'A', 'B', 'C' & 'D' suitable for persons with disabilities. The Expert Committee submitted its report on 24.01.2012 recommending a detailed list of Group 'A', 'B', 'C' & 'D' posts to be reserved for persons with disabilities (PWD).
Accordingly, DoPT vide its Office Memorandum dated 29.12.2005 issued the instructions regarding „Reservation for the Persons with Disabilities‟. Relevant portion of the para 2 of the said OM is quoted as under:-
"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) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability."
Thereafter, the Hon‟ble Supreme Court in the case of Rajeev Kumar Gupta vs Union of India in Writ Petition (Civil) No. 521/2008 vide its order dated 30.06.2016 declared Office Memorandum dated 18.02.1997 and 29.12.2005 as illegal and inconsistent with the Act of 1995 and further directed the Government to extend three per cent reservation to PWD in all identified posts in Group „A‟ and Group „B‟ irrespective of the mode of filling up of such posts. The applicants submit that the Hon'ble Supreme Court settled the issue of reservation in promotion in Group 'A&'B' and laid down that once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment. The applicants have also relied upon the Judgment of the Hon‟ble Supreme Court in the case of Siddaraju vs. State of Karnataka passed in Civil Appeal No. 1567 of 2017. Vide order dated 14.01.2020, the Hon'ble Supreme Court of India upheld the judgment passed in the case of Rajeev Kumar Gupta (Supra). Against the aforesaid order Misc. Application No. 2170 of 2020 was filed by the Union of India, whereby the Hon‟ble Supreme Court vide order dated 28.09.2021 held as under:
"5.Having examined the judgments of this Court and the submissions made on behalf of the parties, we are of the opinion that there is no ambiguity in the judgments which warrants any clarification. The Union of India is directed to issue instructions regarding reservation in promotion as provided in Section 34 of the Rights of Persons with Disabilities Act, 2016 within a period of four months from today."
Thereafter, in the light of directions issued by the Hon‟ble Supreme Court in the case of Siddaraju vs State of Karnataka, instruction for “Reservation in promotion to Persons with Benchmark Disabilities (PwBDs)” was issued by the DoPT vide Office Memorandum dated 17.05.2022. The CBIC vide its letter dated 07.07.2022 directed all CCAs to comply with the Office Memorandum No.36012/1/2020-Estt. (Res.-II) dated 17.05.2022. These OM/ instructions were also not withdrawn or superseded by any OM or Order or any other type of communication till 15.01.2018 (i.e. date of OM No.36035/02/2017-Estt (Res.) dated 15.01.2018), hence these instructions shall be applicable to the disabled employees who are covered under the PwD Act, 1995 for the period with effect from 01.01.1996 to till the date of aforesaid OM dated 15.01.2018.
Further, the Chief Commissioner for Persons with Disabilities (Divyangian), Department of Empowerment of Persons with Disabilities (Divyangjan), Ministry of Social Justice and Empowerment, Government of India New Delhi vide its Order dated 18.08.2021 passed in in case No. 12641/1021/2021/R28416 also held as under:
12.In view of the clear directions of the Supreme Court and as fully detailed in the enclosed Orders, this court recommends that the Respondent shall pursue the Order attached herewith and shall give reservation to PwBD in promotion in all groups of posts including Group A and Group B posts in accordance with the judgment of the Hon'ble Supreme Court in Rajeev Kumar Gupta and others Vs Union of India and others."
The applicants have also submitted that as per the Recruitment Rules, 1986 for the post of Superintendent in Central Excise issued vide Notification dated 17.12.1986, the Inspector of Central Excise who have completed 8 years‟ regular service is eligible for promotion to the post of Superintendent of Central Excise. Applicant-2 initially joined the Department as Inspector on 18.08.2005 and completed eight years‟ regular service on 18.08.2013, hence as per aforesaid Recruitment Rules, he was eligible for the post of Superintendent after completion of minimum service i.e. eight years. Further, 'Abstract of the Roster' received from the Cadre Control Authority, Lucknow, under the RTI Act, 2005, revealed that at the beginning of the year 2013-14, total 123 vacancies of the Superintendent, Central Excise were available during the year, out of which only 86 vacancies have been filled up by the Cadre Control Authority, Lucknow without granting the reservation in promotion to the persons with disability. Moreover, applicant-2 was considered for promotion under the category of Schedule Tribe during the year 2014-15 and promoted vide dated 17.05.2014 on ad-hoc basis in spite of the fact that as per "Post Based Roster" for the year 2014-15, total of 303 vacancies of the Superintendent were available during the year, out of which only 257 vacancies have been filled up by the Cadre Control Authority, Lucknow without giving reservation in promotion to persons with disability.
Thereafter, the applicants had filed detailed representations before the respondents with regard to reservation in promotion to the persons with benchmark disabilities. However, the applicants have not been granted regular promotion till date. Feeling aggrieved by the actions of the respondents, the applicants have approached this Tribunal by way of instant Original Application.
Counter affidavit has been filed by the respondents stating therein that the claim of the applicants that promotions made by Cadre Controlling Authority Lucknow (or CCA Lucknow) for vacancy year 2014-15 without granting reservation in promotion persons with disabilities is against the instructions of DoPT and judgment of Hon'ble Apex Court, is baseless. The DoPT vide its OM dated 17.05.2022 issued instructions for grant of reservation in promotion to PwBDs, in the posts and services of the Central Government as defined under Section 2(r) of the Rights of Persons with Disabilities Act,2016 in the light of directions issued by Hon‟ble Supreme Court. In normal course, the Government instructions are effective from the date of their issuance unless otherwise specified in the instructions itself. As the OM dated 17.05.2022 had no specific mention of date of implementation of reservation, the department of Posts referred the matter to DoPT for guidance. The DoPT furnished the clarification vide their ID Note dated 01.08.2022 inter alia stating that "No retrospective date for implementation has been mentioned in the O.M. Hence it is effective from the date it has been issued." Consequently, on the aforesaid clarification of DoPT, the Department of Posts issued instruction dated 14.09.2022 to its subordinate offices intimating prospective implementation of DoPT OM dated 17.05.2022. Additionally, it is a fact that the Hon'ble Supreme Court in its judgment dated 28.09.2021 has also not issued any direction for retrospective implementation of Rights of Persons with Disabilities Act, 2016.
It is further stated that in CGST Zone Lucknow, last promotion in Superintendent grade were made in December 2017. In the year 2018, before the CCA Lucknow could proceed for further promotions in Superintendent grade, the Principal Bench of this Tribunal vide order dated 04.05.2018 passed in OA No. 1652 of 2018 stayed any further DPC in Superintendent grade. Further, this Bench vide interim order dated 05.07.2018 passed in OA No. 449 of 2018 and OA No. 1490 of 2017 (both combined) ordered that no DPC in Superintendent grade shall be conducted till review DPC in inspector grade, as directed by CBIC order dated 24.10.2016 is conducted. The CBIC vide order dated 24.10.2016 had directed CCA Lucknow to conduct review DPC in Inspector grade 382 upgraded posts (in cadre restructuring 2001) as not available for promotion.
Meanwhile, in CCA Lucknow, the Departmental Promotion Committee, during its meeting on 24.03.2022, recommended for re-assignment of promotions from ministerial grade to the grade of Inspector, in light of Hon'ble Supreme Court Judgments, with reference to Establishment Order dated 19.02.2021. Accordingly, several Establishment Orders dated 26.04.2022 were issued.
The aforesaid establishment order dated 19.02.2021 was set aside by this Tribunal vide order dated 27.04.2023 passed in Original Application No. 272/2021 along with connected matters. The respondents have further stated that promotion to the next grade is subject to fulfillment of all the criteria provided in the Recruitment Rules of the respective grade, DoPT instructions and OMs in this respect and also the availability of vacancy in respective quota. It is also stated that in the next DPC convened for recommending promotions in the grade of Superintendent in CCA Lucknow, the present applicants - 1, 3 and 4 shall be considered for fresh promotion to the grade of Superintendent and the ad-hoc status of applicant- 2 shall be considered for regularization in the light of extant DoPT OMs and CBIC guidelines.
The present applicants have been appointed as Inspector of Customs & Central Excise, under the category of 'Person with Benchmark Disabilities' or PwBD, and the applicants-1, 3 and 4 are still working as Inspector and applicant no. 2 has been promoted to the grade of Superintendent on ad-hoc basis. The promotions in various grades are governed by DoPT OM NO. 22011/5/86-Estt. (D) dated 10.04.1989. The DoPT OM No. 22011/2/2002-Extt (D) dated 06.01.2006 provides guidelines for preparation of the „zone of consideration' from where the Departmental promotion committee makes recommendations. Thus, the recommendations of the Departmental Promotion Committee are limited to the extent of consideration zone. However, DoPT‟s OM dated 15.03.2002 clarifies that while making ad hoc promotions, all SC/ST candidates covered in the relevant seniority list should be considered in order of their general seniority as per the gradation list, on the principle of seniority-cum-fitness and if they are not adjudged unfit, they should be promoted on ad hoc basis. Further, Para 4 of DoPT OM dated 30.04.1983 further provides that if the number of SC/ST candidates found fit within the range of actual vacancies is less than the number of vacancies identified as falling to their share if the vacancies filled were on a regular basis, additional SC/ST candidates to the extent required should be located by going down the seniority list, provided they are eligible and found fit for such ad hoc promotion. The CBEC directions in F. No. C 30013/92/2006/Ad.IVA dated 18.04.2007 also instructs for filling all ST posts as per aforementioned DoPT OM dated 15.03.2002. In the instant case, applicant-2 joined this department on 18.08.2005 and completed his eight years‟ regular service on 18.08.2013. Accordingly, in light of aforementioned CBEC direction dated 18.04.2007, the Departmental Promotion Committee recommended his name for promotion to the grade of Superintendent on ad-hoc basis. Consequently, CCA Lucknow vide order dated 17.05.2014 promoted applicant-2 to the grade of Superintendent on ad-hoc basis. It is further stated in the counter affidavit that ad-hoc status of applicant-2 shall be considered for regularization by the Departmental promotion committee if his name appears in the regular or extended zone of consideration as per DoPT OM No. 22011/2/2002-Estt (D) dated 06.01.2006. However, as of now, any further DPC in Superintendent grade is held up due to litigation. Completion of eligibility service is not the sole criteria for promotions. The promotion is subject to availability of vacancies, vigilance and integrity status of the candidate, the fulfillment of norms prescribed by DoPT and CBIC.
Rejoinder has been filed on behalf of the applicants reiterating their submissions made in the OA. It has also been stated that the Hon'ble Supreme Court vide its Order dated 18.07.2023 passed in the case of S. S. Sundaram vs. CBIC/ Shri Vevek Johri & Anr in Contempt Petition (Civil) No. 873/2023 in W.P.(C) No. 521/2008 had directed the Government/CBIC to consider of giving at least notional promotion to Person with Disability who are eligible from an earlier date under the provisions of the Persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation) Act, 1995. For better understanding the relevant portion of the order dated 18.07.2023 is quoted as under:
"Though it is pointed out that the judgment of this Court of which breach is alleged, has been complied with w.e.f. from 15.07.2023, the fact remains that the judgment is of 30.06.2016 directing the respondents to implement the 1995 Act, therefore, the respondent will have to consider of giving at least notional promotion to those who are eligible from an earlier date."
In the light of the Hon‟ble Supreme Court‟sorder dated 18.07.2023, the DoPT has issued O.M. No.36012/1/2020-Estt.(Res.II) dated 28.12.2023 directing all the ministries /departments to grant notional promotions to the Person with Disabled candidates w.e.f. 30.06.2016. Thereafter, Directorate General of Human Resource Development, New Delhi issued a letter dated 29.12.2023 directing all CCAs to comply with the O.M. dated 28.12.2023 issued by the DoPT.
Thereafter, in compliance of the Hon'ble Supreme Court Orders, the CBIC, New Delhi vide its Order dated 09.03.2024 granted promotion only to S. S. Sundaram from post of Inspectors to the next higher two position of Superintendents/ Assistant Commissioners under the category of Person with Disabilities. The CBIC has granted promotion to Shri S. S. Sundaram under the provisions of the Persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation) Act, 1995 and also granted regular promotion from the earlier dates i.e. 01.04.2014.
Further, the Cadre Controlling Authority, CGST, Hyderabad vide Estt. Order dated 06.06.2024 has implemented the direction issued from time to time by the Hon'ble Supreme Court by way of granting the promotion to PwBD persons on regular/ notional basis. It is the contention of the applicants that the counter reply has been filed without considering the provisions of Office Memorandum (Res) dated 29.12.2005 & Ο.Μ. dated 28.12.2023 issued by the DoPT and without considering the directions of the Hon'ble Supreme Court issued vide its Order dated 18.07.2023 in the case of S S Sundaram v/s CBIC/ Shri Vevek Johri &Anr in Conmt. Petition (Civil) No.873/2023 in W.P.(C) No.521/2008 wherein it was directed to the Government/ CBIC to consider giving at least notional promotion to Person with Disabled who are eligible from an earlier date under the provision of the Persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation) Act, 1995.
It is further stated in the rejoinder affidavit that the Hon'ble Supreme Court settled the issue of reservation in promotion in Group 'A' & 'B' posts in the judgment of Rajeev Kumar Gupta vs Union of India reported in (2016) 13 SCC 153, whereby Hon'ble court laid down that once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment, further Government was directed to extend reservation under the Persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation) Act 1995 to PWD in all identified posts in Group A and Group B irrespective of mode of filling up of such vacancies. It is also stated that the Hon'ble Supreme Court vide its Order dated 28.09.2021 has directed to the Union of India to implement the judgments of this Court in Rajeev Kumar Gupta & Ors. v. Union of India & Ors. (supra).
Written submission has also been submitted on behalf of applicants. While reiterating their earlier averments it has also been stated that in pursuance of the Board's letter 22.02.2016, the Review DPC was held on 17.08.2016 in CCA, Cadre Control, Lucknow Zone, Lucknow for the Year 2014-15 & 2015-16. Estt. Order dated 19.08.2016 was issued by which total 167 Superintendents, who were promoted on ad-hoc basis earlier, were considered for regular promotions against the vacancies for the aforesaid Years, but the ad-hoc promotion of applicant-2 (Shri Manohar Lal Meena), was not considered for regular promotion. The CBIC order dated 24.10.2016 and Tribunal's Order dated 04.05.2018 & 07.05.2018 were issued after Review DPC was held on 17.08.2016 in which benefits to PwBD were not granted. The Department is trying to hide its mistake. Applicant-2 fulfilled all the criteria for promotion. Applicants - 1, 3 and 4 have also fulfilled all the criteria of promotion under PwBD category and they have been promoted on ad-hoc basis vide order dated 14.11.2025. They were not considered for notional promotion as per direction of Hon‟ble Supreme Court.
The applicant has also relied upon the judgment of Principal Bench of this Tribunal passed in Ο.Α. No.1005/2004, which vide its judgment dated 02.05.2006 has directed the respondents to conduct a detailed enquiry in the matter and also directed to consider the applicants for promotion to the Inspector post "by continuing the ad-hoc service with regular" as consequential benefits and costs. The said order has been upheld by the Hon'ble Delhi High Court, which vide order dated 27.07.2010 has ordered that if there exist a regular vacancy and the candidate was eligible for promotion and the procedure to be followed for promotion was followed, there is no reason to accord ad-hoc promotion and not regular promotion. The aforesaid order of the Hon‟ble High Court has also been accepted by the respondents and a letter for implementation of the direction of the High Court was also issued.
Submissions of learned counsel for the parties have been heard and records have been gone through.
As the basic facts of the case have already been narrated above and are not in dispute, the same are not reiterated for the sake of brevity. The grievance of the applicants is that they have not been promoted to the post of Superintendent on regular basis, although they fulfill all the criteria for the same. All the applicants were appointed under the category of Persons with Disabilities with their respective categories. It is stated in the Original Application that Applicant-2 was promoted on ad-hoc basis on 17.05.2014 but was not granted promotion on a regular basis. From the perusal of the written submissions filed by the applicants, it is seen that all the applicants have been granted ad-hoc promotion. The main contention of the applicants is that in the light of direction of the Hon‟ble Supreme Court in the case of Rajiv Kumar Gupta (Supra), Government was directed to provide reservation in promotion to the Persons with Disabilities. The Government subsequently issued an OM dated 17.05.2022 for providing reservation in promotion to the Persons with Disabilities (PwD). For better understanding the relevant portion of the said OM is quoted as under:
“No. 36012/1/2020-Estt.(Res.-II) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training North Block, New Delhi. Dated, the 17thMay, 2022.
OFFICE MEMORANDUM
Subject: - Reservation in promotion to Persons with Benchmark Disabilities (PwBDs).
The undersigned is directed to say that the matter regarding reservation in promotion for Persons with Benchmark Disabilities (PwBDs) had been under litigation before various courts of law for quite some time, and the Honble Supreme Court, in its order, dated 28.9.2021, delivered in the 'Application for Clarification' in the matter of 'Siddaraju vs. State of Karnataka', Civil Appeal No. 1567/2017, directed the Government to issue instructions on 'Reservation in Promotion', as provided in Section 34 of the Rights of Persons with Disabilities Act, 2016.
1.2Accordingly, the following instructions are issued for grant of reservation in promotion to PwBDs, in the posts and services of the Central Government, as defined under Section 2(r) of the said Act, notified by the Department of Empowerment of Persons with Disabilities (DEPwD). …..
6. RESERVATION IN POSTS IDENTIFIED FOR ONE OR TWO CATEGORIES
6.1If in a Ministry/Department/Organization, a post is identified suitable only for one category of disability, reservation in promotion in that post shall be given to persons with that category of benchmark disability only. However, reservation of 4% for PwBDs shall not be reduced in such cases and total reservation in the cadre will be given to PwBDs for which it has been identified. Likewise, in case the post is identified suitable for two categories of disabilities, reservation shall be distributed between persons with those categories of disabilities equally, as far as possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the PwBDs, as far as possible, get equal/fair representation. The points used in the 100-point Roster after a gap of 25 points shall be used to give reservation. In other words, it will be given only at the points reserved for PwBDs, and not in a bunched manner.”
The respondents have submitted that the promotion is subject to availability of vacancies, vigilance and integrity status of the employees and fulfillment of other norms as prescribed by DoPT and CBIC. The respondents have further submitted that the OM dated 17.05.2022 of DoPT was not effective from any retrospective date and the applicants were seeking their promotions from 2014-2018 respectively after completing 8 years of service. In this regard, the respondents sought a clarification from the DoPT, which clarified that this OM is effective from the date it has been issued.
The applicants have further relied upon the OM issued on 28.12.2023 by DoPT wherein it has been stated that it was decided to grant notional promotions to the PwD candidates w.e.f. 30.6.2016. For better understanding the relevant portion of the said OM is quoted as under:
“No.36012/1/2020-Estt (Res-II) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel and Training North Block, New Delhi Dated 28 December, 2023
OFFICE MEMORANDUM
Subject:- Reservation in promotion to Persons with Benchmark Disabilities (PwBDs) regarding. ****
The undersigned is directed to say that the Hon‟ble Supreme Court, vide its Judgement dated 30.6.2016, in the WP(C) No.521/2008, titled „Rajeev Kumar Gupta Vs. UOI‟, had directed the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. However, subsequently the Hon‟ble Supreme Court, vide its Order dated 3.2.2017, in the Civil Appeal No. 1567/2017 titled „Siddaraju Vs. State of Karnataka & Ors.‟ referred to the prohibition made against reservation in promotion as laid down by the majority in Indra Sawhney & Others v. Union of India & Others (1992) and observed and held that its Judgement dated 30.6.2016 in Rajeev Kumar Gupta needed to be considered by a larger Bench. However, the Hon‟ble Supreme Court finally disposed of the Siddaraju matter vide its Judgement dated 14.1.2020 and held that its Judgement in Rajeev Kumar Gupta would bind the Union and State Governments and it must be strictly followed.
2.However, the Union of India needed some clarification with regard to the implementation of the Hon‟ble Supreme Court Judgement dated 30.6.2016 and 14.1.2020, and, therefore, Application for Clarification was filed by the UOI before the Hon‟ble Supreme Court seeking clarification which inter alia included whether the vacancies for promotion for PwDs would be computed only on the basis of the vacancies against the identified posts or against the vacancies in both identified and non-identified posts and whether the judgement dated 14.1.2020 needs to be implemented on the basis of PwD Act, 1995 or RPWD Act, 2016. Hon‟ble Supreme Court disposed of this Application for Clarification vide its Order dated 28.9.2021 directing the Government of India to issue instructions regarding reservation in promotion as provided in Section 34 of the RPwD Act, 2016.
3.Proviso to Section 34 of the RPWD Act, 2016 provides that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. Accordingly, DoPT vide its OM of even number dated17.5.2022 issued detailed instructions for extending the benefit of reservation in promotion to PwDs up to the lowest rung of Group `A‟ in posts and services under the Central Government. This OM is effective with effect from the date of its issue i.e. 17.5.2022.
4.However, in a Contempt Petition (Civil) No.873/2023 filed by Shri S. S. Sundaram against Department of Revenue, the Hon‟ble Supreme Court vide its order dated 18.7.2023 has directed “Though it is pointed out that the judgement of this Court of which breach is alleged, has been complied with effect from 15.7.2023, the fact remains that the judgement is of 30.6.2016 directing the respondents to implement the 1995 Act. Therefore, the respondent will have to consider of giving at least notional promotion to those who are eligible from an earlier date”.
5.The aforesaid directions dated 18.7.2023 of the Hon’ble Supreme Court has been considered in consultation with the Department of Legal Affairs and it has been decided to grant notional promotions to the PwD candidates w.e.f. 30.6.2016 as under:
(i)PwD employees in posts and services of the Central Government, will be considered for grant of the benefit of reservation in promotion up to the lowest rung of Group „A‟ on notional basis w.e.f. 30.6.2016 subject to their fulfilment of the eligibility conditions as laid down in the DoPT OM of even number dated 17.5.2022 regarding reservation in promotion to PwDs. However, the extent of reservation in promotion may be in accordance with the relevant provisions contained in the PwD Act 1995 and RPWD Act 2016. Further, this benefit may be extended after holding Review DPC as per the extant instructions issued by DoPT on the subject. In case the PwD employees are found eligible and suitable for promotion from any date subsequent to 30.6.2016, then the benefit of reservation in promotion may be extended to them from the date they become eligible for promotion. This promotion on notional basis includes promotion on seniority quota as well as Departmental Examination/Departmental Competitive Examination. In case of Departmental Examination/Departmental Competitive Examination, which has already been held during the period from 30.6.2016 to 16.5.2022, the eligibility of the PwD candidates may be assessed on the basis of their performance in the said examination. The concerned Administrative Authorities are given discretion to consider holding of special examination for assessing the suitability or eligibility of PwD employees for such Departmental Competitive Examination.
(ii)Any such promotion during the period from 30.6.2016 till the PwD employee actually assumes the charge of the post will be only on notional basis and the actual financial benefit of promotion will be effective to them with effect from the date they actually assume charge of the promoted post, meaning that no financial arrear will be admissible to them for the period from the date on which they get the benefit of notional promotion and the date on which they actually assume or have already assumed the charge of such promoted post.
(iii)Extending the benefit of reservation in promotion to the PwD employees on notional basis between 30.6.2016 and actual assumption of the charge of the post may affect the inter-se-seniority of the officials in various grades. Due to this, there may be cases in which some officials may have to be placed in a select list/seniority list, subsequent to the year of their existing/present seniority list/select list. This may have a chain effect as it may result in revision in seniority lists in subsequent years in many cases which may cause administrative inconvenience. In order to avoid such situation, supernumerary posts may be created to adjust the lien of such PwD employees with effect from the date on or after 30.6.2016, when they become eligible to get the benefit of reservation in promotion, till the availability of vacancy in which the promotion is to be made or till they vacate the post on their retirement, further promotion etc. whichever is earlier.
(iv)The creation of supernumerary post, as stated above, will be personal to the PwD employee who is given the benefit of reservation in promotion on notional basis and such supernumerary post will stand abolished on the date when such PwD employee is adjusted against available vacancy in the grade in which the promotion is given or when that PwD employee vacates the post on his/her retirement, further promotion etc., whichever is earlier.
(v)Ministries/Departments are advised to undertake an exercise to ascertain the requirement of supernumerary posts required by them and submit the proposal for creation of posts to the Department of Expenditure through DoPT. Such proposal shall contain the proposal in respect of the entire Department/Ministry and the proposal in piecemeal shall not be accepted. A certificate to the effect that the proposal is complete in all respects and the requirement of creation of supernumerary posts has been projected in respect of the entire Department may also be furnished along with the proposal. Further, each proposal shall have the concurrence of the Liaison Officer for PwDs of the Department/Ministry concerned and shall be forwarded with the approval of the Secretary of the Administrative Department/Ministry.
(vi)It is clarified that the benefit of notional promotion, as proposed above, shall not adversely affect those PwD candidates who have already been granted the benefit of reservation in promotion in personam in pursuance of the Orders/judgements of various Courts of Law.
6.This issues with the approval of Department of Expenditure conveyed vide their ID Note No.7(1)/E. Coord.I/2017 Part (V) dated 12.12.2023. Debabrata Das Under Secretary to the Government of India
The applicants have stated that the above circular has not been considered by the respondents while taking a decision in the case of promotion of the applicants. Para 5 of the aforesaid circular clearly deals with the grant of notional promotion in the light of the directions issued by the Hon‟ble Supreme Court.
In view of the above, this Tribunal finds that the applicants, being PwBDs, are entitled to consideration for notional promotion in accordance with the directions of the Hon‟ble Supreme Court in the case of Rajeev Kumar Gupta (Supra) as well as subsequent instructions issued by DoPT vide its O.M. dated 28.12.2023. Accordingly, the respondents are directed to extend the benefit of DoPT OM dated 28.12.2023 to the applicants and to consider their case for notional promotion to the post of Superintendent against the relevant vacancies, with effect from their respective dates on which they became eligible, subject to fulfilment of other prescribed conditions. The exercise shall be completed within three months from the date of receipt of a certified copy of this order.
The instant Original Application stands disposed of with the above directions. No order as to costs.
Interim Order, if any, stands discharged.
All the related MAs stand disposed of.