IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25972 of 2006(S)
1. THE UNION OF INDIA,
... Petitioner
2. THE COMPTROLLER AND AUDITOR GENERAL OF
3. THE ACCOUNTANT GENERAL (A&E),
4. THE SR.ACCOUNTS OFFICER,
Vs
1. K.S.GOPAN, S/O.SOMANATHAN NAIR,
... Respondent
2. JACOB K.SAMUEL,
3. N.MANOJ, S/O.O.S.NEELAKANDA PILLAI,
For Petitioner :SRI.JOHN VARGHESE, ASSISTANT SG
For Respondent :SRI.M.R.HARIRAJ
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :06/02/2009
O R D E R
K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ.
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W.P.(C) No.25972 OF 2006
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Dated this the 6th day of February, 2009
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The respondents in O.A.No.201/2002 before the Central
Administrative Tribunal, Ernakulam Bench, are the writ
petitioners. The applicants therein are the respondents herein.
2. The applicants approached the Central
Administrative Tribunal, seeking the following reliefs:
“i) To quash Annexure A1 to the extent it
denies reservation in promotion to the
physically handicapped persons
retrospectively from 20.11.1989.ii) To declare that 3% vacancies in the
cadre of Accountant, Senior Accountant and
Group B Section Officer cadre under the
respondent department are liable to be
reserved for physically handicapped persons
with effect from 20.11.1989 and to direct the
respondents to consider the applicants for
promotion as Accountant and Senior
Accountants on the basis of reservation for
physically handicapped with retrospectiveW.P.(C) No.25972/2006 2
effect from 20.11.1989 with all consequential
benefits including further promotion as
Section Officer against the 3% quota reserved
for physically handicapped.”3. The brief facts of the case are the following:
The applicants are working as Clerks/Typists under the 3rd
petitioner. They are all physically challenged persons, having
disability above 40%. They claimed 3% reservation in the matter
of promotion to the post of Accountant, which is a Group ‘C’ post.
They submitted that the post of Accountant was identified as a
post for the purpose of grant of reservation to physically
challenged persons, as per O.Ms dated 28.2.1986 and
25.11.1986. They submit that those O.Ms were made applicable
for promotion to the post of Accountant under the Central
Government and establishments under it with effect from
20.11.1989. Therefore, they claimed the benefit of reservation
with retrospective effect from that date. Their claim in this
regard was considered by the competent authority and rejected
by Annexure-A1 dated 14.9.2001. It was held that the posts of
Accountant as well as Auditor were identified for the purpose of
reservation to physically handicapped persons in the matter of
W.P.(C) No.25972/2006 3
promotion with effect from 14.9.2001 only. Challenging the said
order, the Original Application was filed.
4. The applicants relied on Section 32 of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1975 (hereinafter referred to as “the
Act”), in support of their claim. According to them, appropriate
Government, as far as the office of the Comptroller and Auditor
General of India is concerned, is the Central Government. The
Central Government have issued orders identifying the posts of
Accountant as well as Auditor for reservation. The said
identification by the Central Government binds the Comptroller
and Auditor General also. Therefore, they claimed the benefit of
reservation with retrospective effect, atleast from 1989.
According to the writ petitioners/respondents, the Comptroller
and Auditor General had identified the aforementioned posts for
the purpose of reservation to physically challenged persons in
the matter of promotion only on 14.9.2001 and with effect from
that date only, the benefit will be granted.
W.P.(C) No.25972/2006 4
5. The Tribunal considered the rival submissions and
disposed of the Original Application in the following manner:
“7. In our considered view, the inaction on
the part of the respondents in implementing
the orders of the Government of India
contained in OM dated 20.11.89 (supra) is
absolutely arbitrary and unconstitutional and
it caused irreparable loss to the applicants
and other similarly placed persons in the
Respondent Department for a long time. The
applicants have been purposely denied their
right for consideration for promotion in terms
of the said OM dated 20.11.89 for nearly 12
years as observed above. Had the
respondents identified the post of
Accountant to be filled up by promotion in
1989 for even in 1990, the applicants could
have been considered during the panel year
1990 itself. It was due to the dereliction of
duty of the concerned officials, such a
consideration was denied to the applicants for
12 years. In this view of the matter, we direct
the Respondents to consider the applicants
for promotion to the post of Accountant for
the reserved quota for physically handicapped
for the panel year 1990 onwards and promote
them from the date they become eligible for
such promotion as if the post of Accountant
had been identified as such for being filled byW.P.(C) No.25972/2006 5
the physically handicapped persons for the
purpose of providing reservation in promotion
in the year 1990. This exercise shall be
completed within a period of three months
from the date of receipt of this order. As
regards the question of not identifying the
post of Section Officer for the purpose of
reservation to the physically handicapped
persons in promotion neither the applicants
nor the Respondents have given any
reasons/justification for doing so/not doing
so. The applicants are permitted to make a
detailed representation if they are so advised
in this regard and if it is made, the
Respondents shall consider the same within a
period of three months from the date of
receipt of the same and pass a reasoned and
speaking order.8. Considering the totality of the matter
and particularly the fact that the applicants
being physically handicapped persons had to
approach this Tribunal for securing their
statutory rights for the second time which
had been denied to them for a long period of
nearly 12 years for no valid reasons by the
respondents, we consider it fit to award a
cost of Rs.1000/- (One thousand) each to the
applicants amount to Rs.3,000/- (Three
thousand) in total which shall be paid by the
respondents within the afore stated period of
three months.”W.P.(C) No.25972/2006 6
The aggrieved respondents in the Original Application have
come up before this Court, by filing this writ petition.
6. We heard the learned counsel on both sides. Sections
32 and 33 of the Act read as follows:
“32. Identification of posts which can be
reserved for persons with disabilities:-Appropriate Governments shall-
(a) identify posts, in the
establishments, which can be reserved for
the persons with disability;(b) at periodical intervals not
exceeding three years, review the list of
posts identified and up-date the list taking
into consideration the developments in
technology.33. Reservation of posts:- Every
appropriate Government shall appoint in every
establishment such percentage of vacancies
not less than three percent for persons or
class of persons with disability of which one
percent each shall be reserved for persons
suffering from –(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or
cerebral palsy in the posts
identified for each disability:W.P.(C) No.25972/2006 7
Provided that the appropriate
Government may, having regard to the type of
work carried on in any department or
establishment, by notification subject to such
conditions, if any, as may be specified in such
notification, exempt any establishment from
the provisions of this section.”Appropriate Government is defined in Section 2(a) of the
Act, which reads as follows:
“2(a) Appropriate Government means:-
(i) in relation to the Central Government,
or any establishment wholly or substantially
financed by that Government or a Cantonment
Board constituted under the Cantonments
Act, 1924 (2 or 1924), the Central
Government;(ii) in relation to a State Government or any
establishment wholly or substantially financed
by that Government, or any local authority,
other than a Cantonment Board, the State
Government;(iii) in respect of the Central Co-ordination
Committee and the State Executive
Committee, the Central Government;(iv) in respect of the State Co-ordination
Committee and the State Executive
Committee, the State Government.”W.P.(C) No.25972/2006 8
7. The Act was enforced with effect from 7.2.1996. The
Comptroller and Auditor General of India is an independent
constitutional authority. Service conditions of employees under
the Indian Audit and Accounts Department are to be prescribed
by the President after consultation with the Comptroller and
Auditor General. So, the general orders or the office
memorandums issued by the Department of Personnel and
Training, it appears, are not automatically applicable to the said
Department and the employees working under the Comptroller
and Auditor General of India. The provision in this regard is
contained in Article 148(5) of the Constitution of India, which
reads as follows:
“(5) Subject to the provisions of this
Constitution and of any law made by
Parliament, the conditions of service of
persons serving in the Indian Audit and
Accounts Department and the administrative
powers of the Comptroller and Auditor-
General shall be such as may be prescribed by
rules made by the President after
consultation with the Comptroller and
Auditor-General.”
W.P.(C) No.25972/2006 9
8. But, the above provision is subject to any Act of
Parliament. Therefore, after the enactment of the
aforementioned Act, any decision of the Central Government
under Section 32 will bind the Comptroller and Auditor General
of India and be applicable to the offices under him. Unless the
executive orders issued by the Government before the
enforcement of the above Act are issued in consultation with the
Comptroller and Auditor General of India, such orders will not
apply to the establishments or the offices under him. But, as
mentioned earlier, after the enforcement of the above Act, the
situation has changed. We are of the view that the Comptroller
and Auditor General will also be bound by any identification of
posts made by the Central Government under Section 32. In
other words, the stand of the writ petitioners that the
identification made by the Comptroller and Auditor General in
2001 alone will bind them cannot be upheld, provided there are
orders issued under Section 32 of the Act between the date of
enforcement of the Act and 14.9.2001, the date on which
Annexure A1 order was issued. To decide the point, there are
not sufficient materials before us. So, whether retrospectivity
W.P.(C) No.25972/2006 10
can be given to the claim for promotion beyond 14.9.2001 will
depend upon the issuance of a valid order identifying the post of
Accountant or Auditor by the Central Government under
Section 32.
9. The learned counsel for the applicants/respondents
pointed out that the above posts were already identified by the
executive orders issued in 1986 and they were mentioned and
incorporated in the subsequent orders issued by the
Government, after the enforcement of the aforementioned Act.
Therefore, atleast from the date of issuance of such orders, the
applicants are entitled to get the benefit of reservation, it is
pointed out. We feel that this is a matter which should be
considered by the Tribunal, having regard to the orders issued
by the Central Government after the enforcement of the Act.
For the said purpose, we think the matter should be
remitted to the C.A.T. So, we quash Ext.P7 and remit the matter
to the C.A.T. for fresh disposal of the Original Application, in
accordance with law, in the light of the observations made by us
W.P.(C) No.25972/2006 11
herein above. The Central Administrative Tribunal shall
endeavour to hear and dispose of the matter, as expeditiously as
possible, preferably within five months, from the date of
production of a copy of this judgment.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.L.JOSEPH FRANCIS, JUDGE)
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