B.S.N.L Vs G.SARVOTHAMAN
Bench: K.S. RADHAKRISHNAN,A.K. SIKRI
Case number: C.A. No.-008947-008947 / 2013
Diary number: 27769 / 2007
Advocates: ASHOK KUMAR SINGH Vs
K. SARADA DEVI
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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
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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
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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)
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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
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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
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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 erst- while cadre
Pay scale (Rupees)
Name of cadre under TOA pattern w.e.f. 09.09.1992
Pay scale (Rupees)
1 LDC 950-1400 TOA-GR-1 975-1660 2 UDC 1200-1800 TOA GR-II
[SS(O)] 1400-2300
3 LSG 1400-2300 TOA GR-III [Sr.SS(O)]
1600-2550
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
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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)
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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.”
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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
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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
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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
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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.