ARUN PALLI, J. - (1.) VIDE this judgment, we shall decide four writ petitions bearing Nos.18185 of 2010, 12793 -CAT of 2006, 11592 -CAT of 2006 and 4507 of 2011. The issue involved for consideration being common in all four, the facts are being culled out from Civil Writ Petition No.18185 of 2010.
(2.) THE petitioner, namely, Tulsi Ram is 100% visually handicapped by birth. He completed his Graduation and thereafter, acquired a degree of Bachelor of Education (B.Ed.) in the year 1982. The petitioner was selected for the post of Clerk against the reserved category of 'Physically Handicapped'. He was promoted to the post of Senior Assistant, on his turn, on the basis of his seniority, on 12.03.2003. He approached the Central Administrative Tribunal, Chandigarh (for short, 'the Tribunal') vide OA No.759 -CH of 2003. Since his promotion as Senior Assistant was against a general point in the roster, whereas, he being in the category of physically handicapped, ought to have been considered against a reserved point meant for the said category. The said OA was disposed of by the Tribunal, vide order dated 15.04.2004, with a direction to the respondents to take a final decision. On a consideration of the matter, the respondents passed an order dated 18.06.2004, vide which the petitioner was granted promotion w.e.f. 31.05.1988 i.e. the date on which a post of Senior Assistant reserved for a person in the physically handicapped category became available in the department. The petitioner still assailed the said order i.e. dated 18.06.2004, vide OA No.781 -CH of 2004. In short, the grievance of the petitioner was that he was entitled to be considered for promotion w.e.f. 01.09.1987 rather than w.e.f. 31.05.1988. He amended his OA so as to claim promotion to the post of Senior Assistant w.e.f. 01.09.1987 and further to the post of Superintendent w.e.f. 01.09.1990 and subsequent promotions to the post of Traffic Manager and General Manager under the reserved quota. While the matter was still pending before the Tribunal, the department after issuing a show cause notice and soliciting reply of the petitioner, vide order dated 12.01.2006, withdrew even the earlier order dated 18.06.2004, vide which the petitioner was promoted as Senior Assistant w.e.f. 31.05.1988. It was clarified that his promotion as Senior Assistant w.e.f. 12.03.2003, effected vide order dated 12.03.2003, shall continue to remain in force. The petitioner further amended his OA and assailed the order dated 12.01.2006. In nutshell, the case set out by the petitioner was that being a person from a physically handicapped category, he ought to have been considered against a reserved point between 1 to 34 in the roster. This, as so stated, was in breach of the Government instructions, as also the provisions of Persons with Disability (Equal Opportunities, Protection of Human Rights and Full Participation) Act, 1995 [for short, 'the 1995 Act']. It is averred, that the respondents in their earlier reply had admitted that the question for determination of roster point for physically handicapped persons in a block of 33 each was yet to be determined. The department arbitrarily fixed 33rd, 67th and 100th position for the category of physically Whereas, it is the 1st, 34th & 67th vacancies, handicapped. Which are required to be reserved for persons from the said category.
(3.) THE department filed two sets of replies, one before amendment of the OA on 04.11.2004 and the other post - amendment on 25.10.2005. In a short reply filed by the department on 04.11.2004, it was pleaded, inter alia, that the petitioner became eligible for promotion as Senior Assistant on 01.09.1987, after completion of five years of service as a Clerk. However, the first vacancy became available thereafter and was filled up on 31.05.1988 when Sh. Laxmi Narayan Yadav was promoted. Accordingly, it was resolved to consider the petitioner for promotion w.e.f. 31.05.1988 against roster point No.3 reserved for physically handicapped persons, however, without arrears of pay till he was actually promoted to the post of Senior Assistant on his turn as per seniority w.e.f. 12.03.2003. Resultantly, the department vide order dated 18.06.2004 had promoted the petitioner against a reserved point meant for a person from the physically handicapped category.;