UNION OF INDIA Vs. JAGMOHAN SINGH
LAWS(DLH)-2007-12-126
HIGH COURT OF DELHI
Decided on December 07,2007

CHAIRMAN, RAILWAY BOARD,Union of India (UOI) thru G.M. Northern Railway Appellant
VERSUS
JAGMOHAN SINGH,Northern Railway Physically Handicapped Employees Welfare Association Respondents

JUDGEMENT

A.K. Sikri, J. - (1.) THE question that arises for consideration in these cases is as to whether 3% reservation under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 {hereinafter referred to as the 'Disability Act'} in the public employment provided in favor of the physically handicapped persons would be available to them even for promotions as well. The Tribunal has, vide the impugned judgment, decided this question in the affirmative. Not satisfied with this opinion of the Tribunal, in these writ petitions the said judgment was assailed by the Government. It would be advisable to take note of the factual matrix under which the aforesaid question arises for consideration from WP (C) No. 11818/04.
(2.) THE respondent herein is an Orthopedically handicapped person having 55% disability. He was appointed as LDC in the Northern Railways on 16.6.1972. He got promotions from time to time and has risen to the rank of Office Superintendent Grade -I (OS -I). Next promotion is to the post of Chief Office Superintendent (COS). Two posts of COS were created by the petitioner on the recommendations of the Fifth Central Pay Commission vide letter dated 10.5.1998. They are to be filled up as a one time relaxation following the process of modified selection as per the Railway Board's communication dated February 1999. It is not in dispute that the existing instructions with regard to reservations of SC/ST have been observed to be continued in the new grades. Even before the Disability Act came into force in the year 1996, the Government of India, Department of Personnel & Training vide OM dated 28.2.1986 had provided for reservations in jobs for physically handicapped persons in Group C & D posts. The posts on which such reservation was to be applied were identified by the Railway Board on 10.7.1987. As many as 253 jobs in Group C and 17 in Group D were identified where physically handicapped persons could be appointed. The post in question, namely, Chief Office Superintendent is a Group C post. The Government of India, Ministry of Personnel issued a memorandum on 20.11.1989 providing reservation for physically handicapped in the posts filled by promotion. This has to be implemented by all Ministries and Departments. By Disability Act coming into force on 7.2.1996, a mandatory requirement of providing 3% reservation in appointments has been made, which included handicap in vision, hearing and locomotion. However, this is with a rider that having regard to the type of work in any establishment, the appropriate Government by way of a notification exempt any department or establishment from reserving the posts for disabled persons. Memorandum dated 16.1.1998 provides 100 point roster for reserved posts for physically handicapped and point No. 1 is reserved for physically handicapped. OM dated 18.2.1997 issued by the Ministry of Personnel provides reservation as per roster to the physically handicapped persons in Group A & B posts and also OM dated 4.7.1997 providing roster points No. 1, 24, 67 in the cycle of 100 vacancies for 100 point roster to be reserved for physically handicapped persons.
(3.) THE respondent herein wanted that for appointment to the post of COS reservation for physically handicapped persons be also made in tune with such reservations having provided for SC/ST candidates. We may, however, note that prior to the enactment of the Disability Act, the Ministry of Railways had taken a decision on 5.12.1995 that for the posts which are to be filled by promotion, reservations for physically handicapped persons would not be given keeping in view the special nature of job and safe carriage of goods and passengers. However, after the Disability Act came into force, the respondent made representations, both individually as well as through his Association i.e. Northern Railway Physically Handicapped Employees Welfare Association, to provide such reservation even when the posts are to be filled by promotion. These representations were not responded to by the Railway Authorities. The respondent thus, filed OA No. 3108/2002 which was disposed of with the directions to consider the representation of the respondent in the light of OM dated 20.11.1989. The Department considered the representation and turned down the same vide its decision dated 26.4.2002 and 25.3.2003. As the authorities did not accede to the respondent's demand, he filed second OA being OA No. 2633/2003 before the Central Administrative Tribunal, Principal Bench, New Delhi. That is how the question posed at the outset came for consideration before the Tribunal.;


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