PwBD employees are entitled to consideration for notional promotion from their eligibility dates, subject to prescribed conditions.

The four applicants were Inspectors in the Central GST/Central Excise Department and persons with benchmark disabilities. Applicant No. 1 joined on 29 December 2009 and claimed eligibility for promotion as Superintendent from 30 December 2017; Applicant No. 2 joined on 18 August 2005, completed eight years of service, and was promoted as Superintendent on an ad hoc basis on 17 May 2014; Applicant No. 3 joined on 11 September 2006 and claimed eligibility from 11 September 2014; and Applicant No. 4 joined on 15 February 2010 and claimed eligibility from 14 February 2018.

The applicants contended that, although they had completed the requisite qualifying service under the applicable Recruitment Rules, they were not granted regular promotion against vacancies reserved for persons with disabilities.

The respondents maintained that promotion depended not merely on completion of qualifying service but also on availability of vacancies, the zone of consideration, vigilance clearance, suitability, and compliance with applicable Department of Personnel and Training (DoPT) instructions.

During the proceedings, the applicants relied on the DoPT Office Memorandum dated 28 December 2023, issued following the Supreme Court’s order in S.S. Sundaram v. CBIC, which provided for notional promotion of eligible PwBD employees with effect from 30 June 2016, subject to review DPCs and fulfilment of eligibility conditions.

Whether the applicants, being persons with benchmark disabilities, were entitled to consideration for reservation-based notional promotion to the post of Superintendent under the applicable statutory provisions, Supreme Court judgments, and DoPT instructions.

Whether the applicants could claim consideration for notional promotion from the respective dates on which they became eligible, subject to fulfilment of the prescribed eligibility and suitability conditions.

Whether the respondents were required to conduct the necessary review exercise and consider the applicants’ cases under the DoPT Office Memorandum dated 28 December 2023.

The Tribunal applied Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, concerning identification of posts and reservation of vacancies for persons with disabilities.

It also relied on Section 34 of the Rights of Persons with Disabilities Act, 2016, which provides for reservation in promotion for persons with benchmark disabilities in accordance with governmental instructions.

In Rajeev Kumar Gupta v. Union of India, the Supreme Court directed that reservation for persons with disabilities extend to identified Group ‘A’ and Group ‘B’ posts irrespective of the mode of recruitment.

The principle was affirmed in Siddaraju v. State of Karnataka, following which the Supreme Court directed the Government to issue instructions on reservation in promotion.

The DoPT Office Memorandum dated 17 May 2022 prescribed the framework for reservation in promotion for PwBD employees, while the Office Memorandum dated 28 December 2023 directed that eligible PwBD employees be considered for notional promotion with effect from 30 June 2016, or from the later date on which they became eligible, subject to eligibility, suitability, review DPC proceedings, and other prescribed conditions.

The Tribunal also considered the Supreme Court’s direction in S.S. Sundaram v. CBIC that at least notional promotion be considered for eligible persons with disabilities from an earlier date.

The Tribunal found that the applicants were PwBD employees and that their grievance concerned denial or non-consideration of promotion benefits rather than an unconditional right to automatic promotion.

Although the respondents argued that the 17 May 2022 DoPT Office Memorandum was prospective, the Tribunal held that the subsequent Office Memorandum dated 28 December 2023 specifically implemented the Supreme Court’s directions by providing for notional promotion from 30 June 2016, or from the later date on which an employee became eligible.

The Tribunal recognised that completion of the qualifying service alone did not establish an absolute entitlement to promotion; the applicants remained subject to vacancy position, eligibility, suitability, vigilance clearance, zone of consideration, and other applicable conditions.

Nevertheless, the respondents were required to consider the applicants’ cases through the prescribed review process and could not reject consideration merely because the 17 May 2022 instructions were not retrospective.

The respondents were directed to extend the benefit of the 28 December 2023 Office Memorandum and consider each applicant for notional promotion to the post of Superintendent against the relevant vacancies, with effect from the respective date on which the applicant became eligible, subject to fulfilment of all prescribed conditions.

The exercise was directed to be completed within three months from receipt of a certified copy of the order. The Original Application was disposed of without any order as to costs, and the interim order, if any, was discharged.