//
you're reading...
legal issues

Service matter – Section 59 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995= Bharat Sanchar Nigam Limited and another …. Appellants Versus G. Sarvothaman …. Respondent = published in judis.nic.in/supremecourt/filename=40851

Service matter – Section  59   of   the   Persons   with   Disabilities   (Equal

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

 

 

 Opportunities, Protection of Rights and Full Participation) Act,  1995 the powers of chief commissioner =

 

 

 

whether  the

 

      Chief Commissioner has got  the  powers  to  order  regularization  of

 

      promotion and identification of eligible posts  in  a  cadre,  in  the

 

      Department of erstwhile Telecommunications,  while  exercising  powers

 

      under  Section  59   of   the   Persons   with   Disabilities   (Equal

 

      Opportunities, Protection of Rights and Full Participation) Act,  1995

 

      (for short ‘the Act of 1995).  =

 

 

 

the Chief Commissioner has

 

      no power under Section 59 of the Act of 1995 to direct  the  inclusion

 

      of TOA cadre in the  list  of  identified  posts  and  then  to  order

 

      preparation of reservation register for physically handicapped persons

 

      and to consider the claim of the respondent for  promotion  under  the

 

      reserved vacancies for the various Grades under TOA.

 

 

 

 

 

      12.   The Chief Commissioner under Section 59 of the Act of  1995  has

 

      got only the power to examine the matters relating to “deprivation  of

 

      rights” of persons  with  disabilities.   

 

The  Commissioner  can  only

 

      examine whether the persons with disabilities have  been  deprived  of

 

      any “rights” for which the Commissioner has to first  examine  whether

 

      the complainant has any “rights” under  the  laws.  

 

 The  Commissioner

 

      cannot confer or create any right for the Appellants.  

 

The  respondent

 

      could not establish that any right has been conferred on him and  such

 

      right has been denied to him by the Department.  The Respondent wanted

 

      conferment of a  right  which  was  extended  only  to  specific  five

 

      categories of posts on the  basis  of  the  report  of  a  High  Power

 

      Committee.  

 

The Chief Commissioner has no power to direct inclusion of

 

      one more category among the identified categories  and  to  grant  the

 

      benefit. 

 

 Under Section 59(b) the Chief Commissioner has got the power

 

      to look into the complaints with respect to the  matters  relating  to

 

      non-implementation of laws, rules,  bye-laws,  regulations,  executive

 

      orders, guidelines or instructions made or issued by  the  appropriate

 

      Government and the local authorities for the welfare and protection of

 

      rights or persons with disabilities.  

 

 It  is  not  the  case  of  the

 

      respondent that the Department has  failed  to  implement  either  any

 

      laws, rules  or  regulations.   

 

The  Respondent  prayed  for  positive

 

      direction, claiming certain rights, which had not  been  conferred  on

 

      him either by any law,   regulations  or  orders.   

 

Consequently,  the

 

      directions given by the Chief Commissioner for the  inclusion  of  TOA

 

      cadre among the identified categories  cannot  be  sustained  and  the

 

      Commissioner  while  passing  such  order  has  exceeded  the   powers

 

      conferred on him under Section 59 of the Act of 1995.

 

 

 

 

 

      13.   We, for the reasons mentioned above, allow this appeal  and  set

 

      aside the order of the Chief Commissioner, as confirmed  by  the  High

 

      Court.  There shall be no order as to costs.

 

 

 

REPORTABLE

 

 

 
IN THE SUPREME COURT OF INDIA

 
CIVIL APPELLATE JURISIDCITION

 

CIVIL APPEAL NO. 8947 OF 2013
((Arising out of S.L.P. (Civil) No.24120 of 2007)

 

 

 
Bharat Sanchar Nigam
Limited and another …. Appellants

 
Versus

 
G. Sarvothaman …. Respondent

 

 

 
J U D G M E N T

 

 

 
K.S. Radhakrishnan, J.

 

 

 
Leave granted.

 
2. We are in this case concerned with the question whether the
Chief Commissioner has got the powers to order regularization of
promotion and identification of eligible posts in a cadre, in the
Department of erstwhile Telecommunications, while exercising powers
under Section 59 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
(for short ‘the Act of 1995).

 
3. The Respondent was appointed as a Lower Division Clerk on
compassionate ground in relaxation of normal recruitment rules,
including upper age limit and typing test, in the Post Master
General’s Office Trivandrum on 23.01.1973 in the PMT Department, which
was later bifurcated into Departments of Posts and Telecommunications.
The Respondent then opted for Telecommunications Department.
Nomenclature of posts of Lower Division Clerk/Upper Division
Clerk/Office Superintendent (LDC/UDC/OS in short) was changed as
Telecom Operating Assistants in the Telecom Department. Telecom
Office Assistant (TOA in short) Grade-I included LDC/UDC/OS, Grade-II
included Section supervisors, Grade-III included Senior Section
Supervisors, Grade-IV included Chief Section Supervisors. The above
categorization was done w.e.f 09.09.1992. The Respondent was later
promoted as ad hoc UDC w.e.f. 1977 and was promoted as UDC on regular
basis w.e.f. 04.11.1982 on seniority-cum-fitness quota. Later he was
placed as TOA Grade-II (Section Supervisor) w.e.f. 09.09.1992. The
Respondent was again promoted as TOA Grade-III (Senior Section
Supervisor), w.e.f. 01.07.1999.

 
4. The Respondent then applied for promotion under the physically
handicapped person’s quota after availing all facilities of
restructured Cadre on the basis of the OM No.36035/8/89-Estt.(SCT)
dated 20.11.1989, which was considered and rejected by BSNL on the
ground that no relaxation/reservation in promotion was permissible
under schemes for physically handicapped persons as in the case of
Scheduled Caste/Scheduled Tribe (SC/ST in short) officials. Further,
it was also noticed that the respondent’s appointment was not under
physically handicapped quota. The Respondent, aggrieved by the
rejection order passed by the BSNL filed a complaint before the
Commissioner, praying that he should be given promotion to the post of
Lower Selection Grade (LSG in short) (Section Supervisors)
retrospectively w.e.f. 20.11.1989 and to the upgraded clerical posts
of TOA Grade-III (Senior Section Supervisors) and TOA Grade-IV (Chief
Section Supervisors) w.e.f. 07.02.1996. The Chief Commissioner
entertained the complaint and registered case No.1109/2001 under
Section 59 of the Act of 1995. The Commissioner after hearing parties
and examining various contentions passed the following order on
26.12.2002. The operative portion of the same reads as under:
“The respondents are, therefore, directed to include the TOA
cadre which is required to do clerical work and other such jobs
in the list of identified jobs issued by Department of
Telecommunications vide their letter No.1-8/2001/AO(SNG) dated
18.10.01 to be inconformity with the list of identified jobs
published in the Gazette notification No.178 dated 30.06.2001
referred to above. Upon identification of the cadre for PH
persons, the respondents are directed to prepare a 100 point
reservation register for PH persons as required under the
existing instructions of Department of Personnel &
Training/Department of Telecommunications and to consider the
claim of the complainant for promotion under reserved vacancies
for the grade(s) if he becomes eligible as a PH person against
reserved vacancies.”

 
5. BSNL, aggrieved by the above-mentioned order approached the
Kerala High Court by filing Writ Petition No.30816 of 2003 which was
dismissed by a learned Single Judge vide order dated 19.02.2007,
ordering that the benefit of LSG cadre be given to the respondent from
01.03.1992. Aggrieved by the same, this appeal has been preferred by
special leave.

 
6. The Department of Personnel and Training vide its OM dated
20.11.1989 introduced reservation in favour of physically handicapped
persons in posts filled by promotion in (i) within Group ‘D’ (ii) from
Group ‘D’ to Grup ‘C’ and (iii) within Group ‘C’. Reservation was
provided for three categories of persons namely, visually
handicapped, hearing handicapped and orthopedically handicapped. The
applicability of reservation was, however, limited to the promotion
being made to those posts that were identified as being capable of
being filled/held by these appropriate categories of handicapped
persons. On 09.09.1992, a new cadre was created under restructuring
scheme of erstwhile Department of Telecommunications. A choice was
given to the employees working in the clerical stream to opt for the
new cadre of TOA or to remain in the clerical cadre. The posts in the
clerical cadre became redundant as the majority of the employees had
chosen to join the new cadre due to the difference in pay scale
advantageous to them. Names of cadre and pay scales are given below
for ready reference:
| |Name of The|Pay scale |Name of cadre |Pay scale |
| |erst-while |(Rupees) |under TOA |(Rupees) |
| |cadre | |pattern w.e.f. | |
| | | |09.09.1992 | |
|1 |LDC |950-1400 |TOA-GR-1 |975-1660 |
|2 |UDC |1200-1800 |TOA GR-II |1400-2300 |
| | | |[SS(O)] | |
|3 |LSG |1400-2300 |TOA GR-III |1600-2550 |
| | | |[Sr.SS(O)] | |
|4 |OS |1600-2600 |TOA GR-IV (CSS) |1640-2900 |

 
7. An employee who chose to join the new cadre of TOA cannot revert
back on his own choice for claiming any financial or promotion benefit
in both the cadres simultaneously. The Respondent had opted for
restructured cadre of TOA. Consequently, he was placed as TOA-Grade-II
(Section Supervisor) w.e.f. 09.09.1992 when restructured scheme was
implemented on 09.09.1992.

 
8. The Department of Telecommunications formed a High Power
Committee for identification of posts in group ‘C’ from ‘D’ for the
purpose of 9% reservation for physically handicapped persons. The
Committee identified 5 cadres, namely, JTO, JAO, Stenographers, JE
(Civil) and JE (Electrical), which was circulated for compliance vide
letter No.226-07/96-STN dated 12.05.1997. The Respondent in the
meanwhile was promoted as TOA Grade-III (Senior Supervisor) w.e.f.
01.07.1999. He later applied for promotion under the physically
handicapped quota after availing of all the facilities of restructured
cadre. In fact, he claimed promotion to the post of LSG (SS) with
retrospective effect w.e.f.20.11.1989 and to the upgraded clerical post
of TOA Grade-III (Sr. SS) and TOA Grade-IV (CSS) w.e.f. 07.02.1996,
which was rejected by the Department.

 
9. We notice that the promotion in the physically handicapped quota
was limited to certain categories of posts as identified by the High
Powered Committee constituted for the purpose of identification of the
cadre. The High Power Committee was constituted by the erstwhile
Telecommunication Department for identifying the post to which
physically handicapped persons could be promoted under the physically
handicapped reservation quota. The High Power Committee had identified
five cadres for promotion and they were JTO, JAO, Stenographers, JE
(Civil) and JE (Electrical). The operative portion of the Circular
dated 1.5.1997 reads as follows:
“Now, it has been decided to have a reservation of 1.5% each for
partially hearing impaired which can be improved with hearing
aid and for locomotive disability effecting one leg or limb only
in the vacancies in the cadre of JTO, JAO, JE (Civil), JE
(Electrical) and Stenographers for direct recruitment quota as
well as department quota.”

 
10. We notice that the cadre of clerks was not identified for the
purpose of promotion under the physically handicapped
reservations. Since the respondent was a TOA, he could not be
considered for physically handicapped quota in Sr. TOA cadre. TOA
cadre was introduced in the circle office w.e.f. 09.09.1992 and the
Respondent had opted for TOA pattern with effect from the said date
and it was with his own consent. Consequently, the respondent was
working as TOA at the relevant time which was not identified for the
purpose of reservation for physically handicapped persons and hence
his claim for promotion to Grade-IV could not be allowed since the
promotion to the Grade was based on seniority in the basic cadre and
in fact there was no reservation even for SC/ST candidates for
promotion to Grade-IV.

 
11. We are of the view that the Chief Commissioner as well as the
High Court have failed to appreciate that the respondent was working
in a cadre in which there was no reservation for promotion under
physically handicapped quota. Further exclusion of TOA cadre from the
promotional post of physically handicapped persons is due to a policy
decision of the Government of India taken by the then Department of
Telecommunications. In such circumstances, the Chief Commissioner has
no power under Section 59 of the Act of 1995 to direct the inclusion
of TOA cadre in the list of identified posts and then to order
preparation of reservation register for physically handicapped persons
and to consider the claim of the respondent for promotion under the
reserved vacancies for the various Grades under TOA.

 
12. The Chief Commissioner under Section 59 of the Act of 1995 has
got only the power to examine the matters relating to “deprivation of
rights” of persons with disabilities. The Commissioner can only
examine whether the persons with disabilities have been deprived of
any “rights” for which the Commissioner has to first examine whether
the complainant has any “rights” under the laws. The Commissioner
cannot confer or create any right for the Appellants. The respondent
could not establish that any right has been conferred on him and such
right has been denied to him by the Department. The Respondent wanted
conferment of a right which was extended only to specific five
categories of posts on the basis of the report of a High Power
Committee. The Chief Commissioner has no power to direct inclusion of
one more category among the identified categories and to grant the
benefit. Under Section 59(b) the Chief Commissioner has got the power
to look into the complaints with respect to the matters relating to
non-implementation of laws, rules, bye-laws, regulations, executive
orders, guidelines or instructions made or issued by the appropriate
Government and the local authorities for the welfare and protection of
rights or persons with disabilities. It is not the case of the
respondent that the Department has failed to implement either any
laws, rules or regulations. The Respondent prayed for positive
direction, claiming certain rights, which had not been conferred on
him either by any law, regulations or orders. Consequently, the
directions given by the Chief Commissioner for the inclusion of TOA
cadre among the identified categories cannot be sustained and the
Commissioner while passing such order has exceeded the powers
conferred on him under Section 59 of the Act of 1995.

 
13. We, for the reasons mentioned above, allow this appeal and set
aside the order of the Chief Commissioner, as confirmed by the High
Court. There shall be no order as to costs.

 

 

 

 

 
………………………………..J.
(K.S. Radhakrishnan)

 

 

 

 

 
…..…………………………….J.
(A.K. Sikri)
New Delhi,
October 04, 2013.

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,763,154 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,855 other followers

Follow advocatemmmohan on WordPress.com