Hitesh Kumar Sahu Vs Coal India Limited

Challenge in the instant Writ Petition is to the orders dated 15/05/2021 & 03/09/2021 (Annexure-P/1) passed by the Respondents, whereby, the Authority concerned without adhering to the statutory scheme for

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providing reservation of 4% to persons with disability, debarred the petitioner from promotion to the post Deputy Manager (Finance) in E-4 Grade.

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(a) Case of the petitioner, in brief, is that the Petitioner is a differently abled person suffering from locomotor disability. A certificate in this regard has been issued by the appropriate authority. The Petitioner was initially appointed as Management Trainee (Finance) in the Respondent Department on 03/10/2015. After successful completion of the training period, he has been designated as Assistant Manager (F) on 15/05/2017.

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(b) The grievance of the petitioner is that the respondents’ authorities while promoting Assistant Manager (F) in E-3 Grade¹ to the post of Deputy Manager (F) in E-4 Grade² , did not follow the mandatory provision of the Rights of Persons with Disabilities Act, 2016³ , and left out the case of the petitioner by not promoting him on the post of Deputy Registrar (F) in E-4 Grade. Further case of the petitioner is that in the promotion process 15% reservation provided to SC Category employees and 7.5% reservation provided to ST Category, whereas, 3% reservation benefit has not been extended employees of PwD stating that the same will be applicable only in the recruitment process and not for the purpose of promotion, therefore, the said act of the authorities is contrary to guidelines issued by the Ministry of Personnel, Public Grievances and Pension.

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Learned counsel for the Petitioner submits that the Petitioner has

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2 E-4

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3 The Act, 2016

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1 E-3

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completed 3 years of Service in E-3 category on 28/11/2019 and as such he was eligible for promotion from E-3 to E-4. But, the respondents’ authorities without complying the guidelines issued by the Govt. of India for reservation upto 3% to the PwD employees, left the petitioner for promotion and promoted juniors of the petitioner, which is clear violation of the guidelines issued by the Govt. of India. The respondents’ authorities in a discriminating manner followed the promotion policy partially by only giving reservation to SC and ST category employees in the said promotion, as such, the illegal, arbitrary action of the respondent authorities is not only affecting the fundamental rights of the petitioner, but also other PwD employees of the respondent organization. He would next submit that prior to the notification, as the law stood that the posts were to be identified by the respondents which has already been done by them while giving effect to the notification dated 04/01/2021 (Annexure-P/7) wherein already the posts have been identified and there has been no such exemption granted for a particular group by a separate notification, and as such in absence of any such exemption notification specifically exempting a particular group or designation or category, it was always obligatory on the part of the respondents to give benefits of the reservation to the petitioner, whereas the respondents’ authority while taking a shelter of the Office Memorandum dated 17/05/2022 issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, New Delhi, denying the promotion to the petitioner, which cannot be given retrospective effect as the promotions were made in the year 2021.

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4. Per Contra , learned counsel for the respondent would submit that the claim of reservation in promotion by the petitioner as PwDs/PwBDs is totally erroneous and unfounded because the reservation is not applicable in cases of promotion in the executive cadre between E-2 to E-9 as per Office Memorandum dated 17/05/2022 of Ministry of DoPT, which clearly in Clause 2.1 states that in case of promotion, four per cent of the total number of vacancies in the cadre strength within Group C, from Group ‘C’ to Group ‘B’, within Group ’B’ and from Group ‘B’ to lowest rung of Group ‘A’, shall be reserved for PwBDs, therefore, the promotional post on which the petitioner is seeking reservation is E-4 and the petitioner was working on E-3 Grade which are above the lowest rung of the Executive Cadre, therefore, he is not entitled for reservation in promotion.

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I have heard learned counsel for the parties and perused the pleadings as well as the documents annexed with the writ petition.

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It is an undisputed fact that the petitioner completed 03 years of service in E-3 Grade at the time of DPC commencement. As per the respondent, the petitioner was considered in the DPC for promotion, but he was not given promotion due to non-availability of vacancies. It is also apparent from the record, that reservation in promotions were given to SC/ST Categories and several employees juniors to the petitioner, were promoted to E-4. Meaning thereby, according to respondent, the reservation was not there for PwD category for the post to which the petitioner is claiming reservation at the relevant time when the DPC was commenced.

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7. The Rights of Persons with Disabilities Act, 2016⁴ has been enacted to give effect to provide equality of opportunity and to give respect for difference and acceptance of persons with disabilities as part of human diversity and humanity. Sections 33 & 34 of the Act, 2016 provides thus:-

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“33. Identification of posts for reservation .- The appropriate Government shall-

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(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

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(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

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(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

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Reservation . (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:-

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(a) blindness and low vision;

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(b) deaf and hard of hearing;

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(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

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(d) autism, intellectual disability, specific learning disability and

4 The Act, 2016

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mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

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Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

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Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

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(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

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Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

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(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.

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According to the Act, 2016, the reservation in promotion shall be in

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accordance with such instructions as are issued by the appropriate Government from time to time. The Act, 2016 further states that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

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In the instant case, the petitioner has come up with a notification (Annexure-P/7) issued by the Ministry of Social justice and Empowerment on 04/01/2021 i.e. prior to commencement of DPC. As per the said notification, the posts have been identified and there has been no such exemption granted for a particular group by a separate notification. Though, the respondent has emphasized on the Office Memorandum dated 17/05/2022, Ministry of DoPT and submitting that there is no reservation for PwD Cadre in E-4 Cadre as the lowest rung of Group A is E-2, but the Office Memorandum has been issued on 17/05/2022, whereas the promotions were made in the year 2021. Thus, the Office Memorandum, which the respondent is taking shelter of, cannot be given retrospective effect.

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The Supreme Court in the matter of Punjab State Cooperative Agricultural Development Bank Limited v. Registrar Cooperative Societies and Others⁵ after taking note of the earlier view on the subject in Railway Board v. C.R. Rangadhamaiah⁶ has held as under:-

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5 (2022) 4 SCC 363

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6 (1997) 6 SCC 623

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“20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

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24. In many of these decisions in K.C. Arora v. State of Harayana⁷ , P.D. Aggarwal v. State of U.P.⁸ , K. Narayanan v. State of Karnataka⁹ , T.R. Kapur. V. State of Harayana¹⁰ , Union of India v. Tushar Ranjan Mohanty¹¹ and K. Ravindranath Pai v. State of Karnataka¹² the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon v. Union of India, B.S. Vadera v.

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7 (1984) 3 SCC 281

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8 (1987) 3 SCC 622

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9 1994 Supp (1) SCC 44

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10 1986 Supp SCC 584

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11 (1994) 5 SCC 450

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12 1995 Supp (2) SCC 246

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Union of India & and State of Gujarat v. Raman Lal Keshav Lal Sonils.

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25. In these cases we are concerned with the pension payable to the employees after their retirement. The respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in futuro. The amendments apply to employees who had already retired and were no longer in service on the date the impugned notifications were issued.

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33. Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they a 1 have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule that were in force at the time of their retirement.”

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(Emphasis supplied)

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It has been held by the Supreme Court in umpteen number of cases that such an amendment/further notification having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

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The memorandum dated 17/05/2022 relied by the respondent while

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rejecting the claim of the petitioner, has substantively modified the position governing earlier by reviving the earlier notification dated 04/01/2021, and supersedes the said notification, which were holding the field for more than years. Therefore, giving retrospective effect to the memorandum dated 17/05/2022 would have catastrophic effect on the claim of the petitioner.

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Having considered the entire facts and circumstances of the case and particularly considering the fact that the promotions took place in the year 2021, wherein there has been no such exemption granted for a particular group by a separate notification, the respondent authorities are directed to consider the case of the petitioner under the PwD quota and grant him promotion by ignoring the Office Memorandum dated 17/05/2022, if he is found suitable. The petitioner is entitled for the benefit of notional seniority, however, is not entitled for any monetary benefits.

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Accordingly, the Writ Petition is allowed. There shall be no order as to cost(s).

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Sd/-

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(BIBHU DATTA GURU) JUDGE

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Rahul

Hitesh Kumar Sahu v. Coal India Limited

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Hitesh Kumar Sahu v. Coal India Limited

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