BHARAT SANCHAR NIGAM LIMITED AND ANOTHERversusG. SARVOTHAMAN

                  [2013] 12 S.C.R. 563


 BHARAT SANCHAR NIGAM LIMITED AND ANOTHER                   A
                           v.
                  G SARVOTHAMAN
             (Civil Appeal No. 8947 of 2013)
                  OCTOBER 04, 2013                          B
     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

   PERSONS      WITH      DISABILITIES (EQUAL
OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL                C
PARTICIPATION) ACT, 1995:

    s. 59 - Chief Commissioner - Functions of - Explained
- Complaint by respondent-physically handicapped (PH)
person for not providing him reservation in promotion - Chief
Commissioner directing to include Telecom Operating D
Assistants (TOA) cadre in the list of notified jobs and to
prepare 100 point reservation register for PH persons and to
consider claim of respondent - Held: Promotion in physically
handicapped quota was limited to certain categories of posts
 as identified by High Powered Committee constituted for the E
purpose -- TOA was not identified for the purpose of
 reservation for physically handicapped persons - Chief
 Commissioner has no power to direct inclusion of one more
 category among the identified categories and to grant the
 benefit - He exceeded the powers conferred on him uls 59 - F
 Order of Chief Commissioner, as confirmed by High Court,
 is set aside - Service law - Reservation in promotion for
 physically handicapped persons.

    The respondent was appointed as a Lower Division
Clerk on compassionate ground in the Post Master G
General's Office in 1973. Later, on bifurcation of the PMT
Department into Departments of Posts and
Telecommunications, the respondent opted for
                            563                             H
    564       SUPREME COURT REPORTS             [2013] 12 S.C.R.


A    Telecommunications Department. The respondent on his
     normal turns was promoted to higher posts and was
     ultimately promoted as Telecom Operating Assistant TOA
    Grade-Ill (Senior Section Supervisor), w.e.f. 01.07.1999. He
    then applied for promotion under the physically
B   handicapped person's quota on the basis of OM
    No.36035/8/89-Estt.(SCT) dated 20.11.1989. The claim was
    declined by the appellant-BSNL. On the complaint filed
    by the respondent, the Chief Commissioner directed to
    include the TOA cadre in the list of identified jobs issued
c   by Department of Telecommunications published in the
    Gazette notification No.178 dated 30.06.2001, to prepare
    a 100 point reservation register for PH persons, and to
    consider the claim of the respondent-complainant for
    promotion under reserved vacancies for the grade(s) as
D   a PH person against reserved vacancies. The writ petition
    filed by BSNL was dismissed by the High Court ordering
    that the benefit of LSG cadre be given to the respondent
    from 01.03.1992.

         In the instant appeal filed by BSNL, the question for
E   consideration before the Court was: "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 Telecommuni-
    cations, while exercising powers under Section 59 of the
F   Persons with Disabilities (Equal Opportunities,
    Protection of Rights and Full Participation) Act, 1995.

          Allowing the appeal, the Court

G         HELD: 1.1. The Department of Personnel and
    Training by OM dated 20.11.1989 introduced reservation
    in favour of physically handicapped persons in posts
    filled by promotion (i) within Group 'D', (ii) from Group 'D'
    to Group 'C', and (iii) within Group 'C'. The promotion in
H   the physically handicapped quota was limited to five
      BHARAT SANCHAR NIGAM LIMITED v. G.               565
               SARVOTHAMAN

categories of posts as identified by the High Powered         A
Committee, namely, JTO, JAO, Stenographers, JE (Civil)
and JE (Electrical). TOA was not identified for the purpose
of reservation for physically handicapped persons. The
Chief Commissioner has no power to direct inclusion of
one more category among the identified categories and         B
to grant the benefit. [Para 6, 9-10 and 12] [568-G-H;570-
D-E, F, H; 571-A; 572-8-C]
    1.2. An employee who chose to join the new cadre
of TOA cannot revert back for claiming any financial or
promotion benefit in both the cadres simultaneously.          C
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. Consequently, the
respondent was working as TOA at the relevant time and,
therefore, his claim for promotion to Grade-IV could not      D
be allowed since the promotion to the Grade was based
on seniority in the basic cadre and in fact there was no
reservation even for SC/ST candidates for promotion to
Grade-IV. [Para 7 and 10] [569-G; 571-8-C]
                                                              E.
     1.3. The Chief Commissioner u/s 59 of the 1995 Act
has got only the power to examine the matters relating
to "deprivation of rights" of persons with disabilities. He
can only examine whether the persons with disabilities
have been deprived of any "rights" for which first it is to
be examined whether the complainant has any "rights"
                                                              F
under the laws. The Chief Commissioner cannot confer
or create any right for the complainant before him. The
respondent could not establish that the Department
denied any right conferred on him. [Para 12) [571-G-H;
572-A-8]                                                      G
   1.4. 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 reservation for
promotion under physically handicapped quota. Further,        H .
    566      SUPREME COURT REPORTS              [2013] 12 S.C.R.


A exclusion of TOA cadre from the promotional post of
  physically handicapped persons is due to a policy
  decision of the Government of India taken by the then
  Department of Telecommunications. In such
  circumstances, the Chief Commissioner has no power u/
B s 59 of the 1995 Act 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
c Grades under TOA. The Chief Commissioner has
  exceeded the powers conferred on him u/s 59 of the Act
  of 1995. Consequently, the order of the Chief
  Commissioner, as confirmed by the High Court is set
  aside. [Para 11-13] [571-D-F; 572-E-F]
D       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8947 of 2013.
        From the judgment and Order dated 19.02.2007 of the
    High Court of Kerala at Ernakulam in WP. (C) No. 30816 of
E   2003.
        Rahul Kaushik, Bhuvneshwari P. Kaushik, Ashok Kumar
    Singh for the Appellants.
          Nidhi for the Respondent.
F         The Judgment of the Court was delivered by
          K.S. RADHAKRISHNAN, J. Leave granted.
       2. We are in this case concerned with the question
  whether the Chief Commissioner has got the powers to order
G regularization of promotion and identification of eligible posts
  in a cadre, in the Department of erstwhile Telecommunications,
  while exercising powers under Section 59 of the Persons with
  Disabilities (Equal Opportunities, Protection of Rights and Full
  Participation) Act, 1995 (for short 'the Act of 1995).
H
     BHARAT SANCHAR NIGAM LIMITED v. G                   567
    SARVOTHAMAN [K.S. RADHAKRISHNAN, J.]

      3. The Respondent was appointed as a Lower Division A
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 B
Respondent then opted for Telecommunications Department.
Nomenclature of posts of Lower Division Clerk/Upper Division
Clerk/Office Superintendent (LDC/UDC/OS in short) was
changed as Telecom Operating Assistants in the Telecom
Department. Telecom Office Assistant (TOA in short) Grade-I c
included LDC/UDC/OS, Grade-II included Section supervisors,
Grade-Ill 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 hoc UDC w.e.f. 1977 and was promoted as
                                                                 0
 UDC on regular basis w.e.f. 04.11.1982 on seniority-cum-
 fitness quota. Later he was placed as TOA Grade-II (Section
 Supervisor) w.e.f. 09.09.1992. The Respondent was again
 promoted as TOA Grade-Ill (Senior Section Supervisor), w.e.f.
 01.07.1999.
                                                                E
     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 F
relaxation/reservation in promotion was permissible under
schemes for physically handicapped persons as in the case 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, G
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) retrospectively w.e.f. 20.11.1989
 and to the upgraded clerical posts of TOA Grade-Ill (Senior H
    568      SUPREME COURT REPORTS                [2013] 12 S.C.R.


A   Section Supervisors) and TOA Grade-IV (Chief Section
    Supervisors) w.e.f. 07 .02.1996. The Chief Commissioner
    entertained the 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
8   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
C jobs in the list of identified jobs issued by Department of
  Telecommunications vide their letter No.1-8/2001/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
D 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 to consider the claim
  of the complainant for promotion under reserved vacancies for
E the grade(s) if he becomes eligible as a PH person against
  reserved vacancies."

        5. BSNL, aggrieved by the above-mentioned order
    approached the Kerala High Court by filing Writ Petition
F   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.

G        6. The Department of Personnel and Training vide its OM
    dated 20.11.1989 introduced reservation in favour of 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
H   namely, visually handicapped, hearing handie;apped and
      BHARAT SANCHAR NIGAM LIMITED v. G.               569
     SARVOTHAMAN [K.S. RADHAKRISHNAN, J.]
orthopedically handicapped. The applicability of reservation A
was, however, limited to the 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 B
choice was given to the employees working in the clerical
stream to opt for the new cadre of TOA or to remain in the
clerical cadre. The posts in the clerical cadre became redundant
as the majority of the employees had chosen to join the new
cadre due to the difference in pay scale advantageous to them. C
Names of cadre and pay scales are given below for ready
reference:

     Name     Pay scale      Name of cadre     Pay scale
     of The   (Rupees)       under TOA         (Rupees)       D
     erst-                   pattern w.e.f.
     while                   09.09.1992
     cadre

 1   LDC      950-1400        TOA-GR-1          975-1660
                                                              E
 2   UDC      1200-1800       TOAGR-11          1400-2300
                              [SS(O)]
 3   LSG      1400-2300       TOAGR-111         1600-2550
     - -                      [Sr.SS(O)]                       F
 4   OS       1600-2600       TOA GR-IV         1640-2900
                              (CSS)
     7. An employee who chose to join the new cadre of TOA
cannot revert back on his own choice for claiming any financial G
or promotion benefit in both the cadres simultaneously. The
Respondent had opted for restructured cadre of TOA.
Consequently, he was placed as TOA-Grade-II (Section
Supervisor) w.e.f. 09.09.1992 when restructured scheme was
implemented on 09.09.1992.                                      H
    570       SUPREME COURT REPORTS               [2013] 12 S.C.R.

A        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
B   (Electrical), which was circulated for compliance vide letter
    No.226-07/96-STN dated 12.05.1997. The Respondent in the
    meanwhile was promoted as TOA Grade-Ill (Senior Supervisor)
    w.e.f. 01.07.1999. He later applied for promotion under the
    physically handicapped quota after availing of all the facilities
C   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-Ill (Sr. SS) and TOA
    Grade-IV (CSS) w.e.f. 07 .02.1996, which was rejected by the
    Department.
D
          9. We notice that the promotion in the physically
    handicapped quota was limited to certain categories of posts
    as identified by the High Powered Committee constituted for
    the purpose of identification of the cadre. The High Power
E   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,
F   JAO, Stenographers, JE (Civil) 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
G   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."

H         10. We notice that the cadre of clerks was not identified
       BHARAT SANCHAR NIGAM LIMITED v. G.                  571
      SARVOTHAMAN [K.S. RADHAKRISHNAN, J.]

 for the purpose of promotion under the physically handicapped A
 reservations. Since the respondent was a TOA, 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. B
 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 seniority in the basic C
 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 D
 respondent was working in a cadre in which there was no
 reservation for promotion under physically handicapped quota.
 Further exclusion of TOA cadre from the promotional post of
 physically handicapped persons is due to a policy decision of
 the Government of India taken by the then Department of E
 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 F
 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 1995 has got only the power to examine the matters relating
   to "deprivation of rights" of persons with disabilities. The G
   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
                                                                  H
    572       SUPREME COURT REPORTS                  [2013] 12 S C.R.


A   confer or create any right for the Appellants. The respondent
    could not establish that any right has been conferred on him
    and such right has been denied to him by the Department. The
    Respondent wanted conferment of a right which was extended
    only to specific five categories of posts on the basis of the
B   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-
e   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 with disabilities. It is not the
    case of the respondent that the Department has failed to
D   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
E   identified categories cannot be sustained and the
    Commissioner while passing such order has exceeded the
    powers conferred on him under Section 59 of the Act of 1995.

         13. We, for the reasons mentioned above, allow this
F   appeal and set aside the order of the Chief Commissioner, as
    confirmed by the High Court. There shall be no order as to
    costs.
    R.P.                                              Appeal allowed,