B.S.N.L vs. G.SARVOTHAMAN

1 REPORTABLE IN THE SUPREME COURT OF INDIA

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. JUDGMENT 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 Page 1 2 59 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for

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 JUDGMENT 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 Page 2 3 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

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 JUDGMENT 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) Page 3 4 retrospectively w.e.f. 20.11.1989 and to the upgraded clerical posts of TOA Grade-III (Senior Section Supervisors)

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- JUDGMENT 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 Page 4 5 to consider the claim of the complainant for promotion under reserved vacancies for the grade(s) if he becomes eligible as a PH person

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 JUDGMENT 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 Page 5 6 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

7. An employee who chose to join the new cadre of TOA cannot revert back on his own choice for claiming any Page 6 7 financial or promotion benefit in both the cadres simultaneously. The Respondent had opted for 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 JUDGMENT 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) Page 7 8 and TOA Grade-IV (CSS) w.e.f. 07.02.1996, which was rejected by the Department.

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) JUDGMENT 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.” Page 8 9 10. We notice that the cadre of clerks was not identified for the purpose of promotion under the physically

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 JUDGMENT 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 Page 9 10 reservation for promotion under physically handicapped quota. Further exclusion of TOA cadre from the promotional

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 JUDGMENT 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 Page 10 11 could not establish that any right has been conferred on him and such right has been denied to him by the Department.

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 JUDGMENT 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 Page 11 12 sustained and the Commissioner while passing such order has exceeded the powers conferred on him under Section 59 of the Act of 1995.

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. JUDGMENT Page 12