CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH
NEW DELHI

O.A. NO1952/2003

This the 17th day of December 2004.

HON’BLE SHRI V. K. MAJOTRA, VICE-CHAIRMAN (A)

HON’BLE SHRI SHANKER RAJU, MEMBER (J)

Smt. Dropadi Seth W/O S. K. Seth,

R/O B-133, Kidwai Nagar (East),
New Delhi. Applicant

(By Shri S. K. Gupta, Advocate)

Versus

1. Union of India through

Secretary, Ministry of Finance,
Department of Revenue,
North Block, New Delhi.

2. Chairman,
Central Board of Excise and Customs,
Department of Revenue, Ministry of finance,
North Block, New Delhi.

3. Director/Collector,
Directorate of Data Management,
DLF Centre, Greater Kailash-II,
New Delhi. Respondents

(By Shri M. K. Bhardwaj, Advocate)

O R D E R (ORAL)

Hon’ble Shri V.K.Majotra, Vice-Chairman (A):

1. Applicant is aggrieved by the action of respondents in not conferring the

benefit of reservation for physically handicapped persons on the post of Assistant
Director (Official Language) - a Group B post - on the ground that such
reservation is not admissible for Group A and Group B posts under the
promotional quota.

2. Applicant was promoted to the post of Senior Hindi Translator in scale

Rs.1600-2660 in the Office of Commissioner, Central Excise, Delhi w.e.f.
14.3.1991. The next post in the channel of promotion is that of Assistant Director

Page 1 of 3
(Official Language). Applicant had earlier on filed OA No.324/2001 which was
disposed of on 13.2.2002 with a direction to the respondents to notify the post of
Assistant Director (Official Language) for being filled up by disabled person within
three months and also to make selection within the same period in accordance
with the rules and instructions. Thereafter, applicant filed another OA
No.3226/2002 and also CP No.6/2003 in OA No.324/2001, which were disposed
of on 25.7.2003 by a common order. The OA was partly allowed setting aside
the impugned order dated 28.11.2002 by which applicant’s promotion to the post
of Senior Hindi Translator was reviewed though the same had been effected
twelve years earlier, on the ground that the DPC at the time of promotion in 1991
did not follow the superseded rules. Respondents were directed to treat the
applicant as Senior Hindi Translator from the date of her original promotion.
Applicant was also accorded liberty to pursue the remedy in accordance with law
regarding her claim for promotion on reservation as a disabled person to the post
of Assistant Director (Official Language). Status quo was directed to be
maintained with regard to her continuation as Assistant Director (Official
Language) for a period of two weeks. Hence, this OA.

3. The learned counsel of the applicant referred to DOP&T OM

No.36035/7/95-Estt.(SCT) dated 18.2.1997 (Annexure A-2) relating to procedure
to be followed for reservation for the physically handicapped in cases of
promotion. This OM states:

“(ii) In the cases where the percentage of posts filled by Direct Recruitment
is 75% or more, no reservation will be provided for any category including the
physically handicapped while filling up the posts by promotion.”

The learned counsel then referred to DOP&T OM No.36035/7/95-Estt.

(SCT) dated 16.1.1998 which is a corrigendum to OM of even number dated
18.2.1997 regarding reservation for physically handicapped in the posts filled by
promotion. Through this corrigendum sub-para (ii), which has been quoted
above, has been replaced as under:

“(ii) The existing policy of reservation for SCs/STs, including for the
physically handicapped in promotion in all Groups is applicable to all grades and
services, where the element of direct recruitment does not exceed 75%.”

The learned counsel maintained that while the respondents have declined
to consider the applicant for promotion on the basis of reservation for physically
handicapped on the ground that no such reservation is available to handicapped
persons in identified Group A and Group B posts in cases of promotion,
according to them such promotion is available only for direct recruitment. He
pointed out that corrigendum dated 16.1.1998 states a different policy where
reservation for physically handicapped in promotion in all Groups, grades and
services, wherever the element of direct recruitment does not exceed 75%, is
available.

4. On the other hand, the learned counsel of the respondents relied on

DOP&T OM No.36035/4/2003-Estt.(Res) dated 8.7.2003 stating that reservation
for persons with disabilities is available in case of direct recruitment to identified
Group A, B, C and D posts and also in cases of promotion when promotions are

Page 2 of 3
made within Group D, from Group D to Group C and within Group C posts. Thus,
the learned counsel maintained that no reservation is available for promotion to
Group A and B posts.

5. We have considered the respective contentions of the parties and also

perused the material on record.

6. True that instructions dated 18.2.1997 prohibited reservation for

physically handicapped persons while filling up the posts by promotion where the
percentage of posts filled by direct recruitment is 75% or more. However,
corrigendum dated 16.1.1998 with reference to instructions dated 18.2.1997
made the existing policy of reservation for SCs/STs including physically
handicapped, applicable for promotion in all groups, grades and services where
the direct recruitment does not exceed 75%. As per this corrigendum, reservation
for handicapped is available in promotion to the post being held by the applicant
on ad hoc basis, particularly in terms of Tribunal’s orders dated 13.2.2002 in OA
No.324/2001. By Annexure A-12, which is respondents’ reply affidavit in CP
No.6/2003 in OA No.324/2001, respondents have stated that they had notified
the vacancies of Assistant Director (Official Language) including one vacancy to
be filled in by a physically handicapped person on 17.10.2002 to the UPSC. In
the same reply affidavit, respondents have stated that a revised proposal has
been sent to UPSC vide letter dated 25.2.2003 to fill three vacant posts including
one reserved for physically handicapped. OM dated 8.7.2003 being relied upon
by the respondents to the effect that reservation is not available in case of
promotion in Group A and B, does not state that it has been issued in
supersession of corrigendum dated 16.1.1998 in respect of OM dated 18.2.1997.
It only means that OM dated 18.2.1997 as modified by corrigendum dated
16.1.1998 has not been superseded. If it were, it would have been stated in OM
dated 8.7.2003. We are, therefore, not convinced by the contention of the
respondents to the effect that reservation for physically handicapped personnel is
not available for promotion to Groups A and B. In the case of the applicant, lot of
litigation has already taken place wherein applicant’s continuance in Group B
since 25.7.2003 has been protected and respondents have been directed to
consider applicant’s case. Even at this stage, respondents have not satisfied us
that the corrigendum dated 16.1.1998 to OM dated 18.2.1997 has been
superseded by any decision. Thus, it is held that reservation for SCs/STs
including for the physically handicapped in promotion in all groups is available to
all grades and services where the element of direct recruitment does not exceed
75%. A post of Assistant Director (Official Language) has also been reserved for
this category in respondents’ communications to UPSC referred to above.

7. In the light of the facts and circumstances of this case as discussed

above, this OA is disposed of with a direction to the respondents to consider
applicant’s claim for benefit of reservation for physically handicapped persons on
the post of Assistant Director (Official Language) - Group B, by passing a detailed
and speaking order within a period of one month from the date of availability of
recommendations of UPSC. Till then, applicant shall be allowed to hold the post
of Assistant Director (Official Language) on the basis of the present arrangement.

(Shanker Raju) (V. K. Majotra)

Member (J) Vice-Chairman (A)

Page 3 of 3