B.D.S.

Kharab S/O Shiv Dhan Singh vs Union Of India Through on 30 April, 2010

Central Administrative Tribunal - Delhi Central Administrative Tribunal - Delhi B.D.S. Kharab S/O Shiv Dhan Singh vs Union Of India Through on 30 April, 2010 PRINCIPAL BENCH NEW DELHI Original Application No. 1343/2009 Misc. Application No.1014/2009 with Transferred Application No.188/2009 This the 30th day of April, 2010 HON BLE SHRI JUSTICE V. K. BALI, CHAIRMAN HON BLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) O.A. No.1343/2009 B.D.S. Kharab s/o Shiv Dhan Singh, Commissioner of Income Tax, Ahmedabad. Applicant

( By Shri S. K. Rungta, Advocate ) Versus 1. Union of India through Secretary, Ministry of Finance, North Block, New Delhi. 2. Chairman, Central Board of Direct Taxes, North Block, New Delhi. 3. Ministry of Personnel, P.G. & Pensions through its Secretary, North Block, New Delhi. Respondents

( By Shri R. N. Singh, Advocate )

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B.D.S. Kharab S/O Shiv Dhan Singh vs Union Of India Through on 30 April, 2010

T.A. No.188/2009 H. C. Sharma, Assistant Engineer (Civil), New Delhi Municipal Council, 84-A, Bharat Nagar, P.O. Shriniwaspuri, New Delhi-110065. Applicant

( By Shri Pradeep Dahiya, Advocate ) Versus 1. Secretary, New Delhi Municipal council, Palika Kendra, Sansad Marg, New Delhi-110001. 2. Union of India through Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi. Respondents

( By Ms. Jyoti Singh with Ms. Shikha Tandon, for Respondent No.1; Shri R. N. Singh, for Respondent No.2, Advocates ) ORDER Justice V. K. Bali, Chairman: By this common order, we propose to dispose of two connected matters, i.e., Transferred Application No.188/2009 and Original Application No.1343/2009, as common questions of law and facts arise in both the cases. Learned counsel representing the parties would also suggest likewise. Whereas, the Transferred Application was numbered as above on its transfer, primary jurisdiction to deal with the issue having been vested with this Tribunal, vide order dated 21.1.2009 passed by the High court of Delhi, Original Application No.1343/2009 came to be filed directly before this Tribunal. The issue involved in both the Applications is as to whether the applicants who are physically handicapped and are holding Group A or B posts, would be entitled for reservation in promotion, either because of the provisions contained in the Act known as The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
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(hereinafter to be referred as the act of 1995), or because of any standing orders/instructions that may have been issued by the Government on that behalf. Inasmuch as, only law point is involved, which needs to be adjudicated by this Tribunal, there would be no need to give facts in detail. Suffice it may be, however, to mention that H. C. Sharma, applicant in TA No.188/2009, employed in New Delhi Municipal Council, the 1st respondent, filed WP (C) No.1241/1997 before the High Court of Delhi under Article 226 of the Constitution of India seeking to quash and set aside two office memoranda of even date, i.e., 18.2.1997, and to declare both the memoranda as illegal, null and void and ultra vires of the Constitution of India. In consequence of setting aside the memoranda aforesaid, the applicant seeks a direction to be issued to the 1st respondent to give benefit of eight years of service rendered by him from 7.5.1985 to 3.5.1990 on deputation as Technical Officer (Works) in Kendriya Vidyalaya Sangathan, and further to direct the respondent to give him benefit of reservation as admissible to physically handicapped persons as per the provisions of the Act of 1995 in the post of Executive Engineer filled by promotion. Pleadings may be there, but there is no argument with regard to any of the issues raised in the Application, but for entitlement of the applicant for reservation in promotion on the post of Executive Engineer. The applicant originally joined service of the 1st respondent as Junior Engineer (Civil) on the basis of selection on merit through direct recruitment on 23.2.1978 in the general category having secured 78% marks and having stood first in his batch of diploma holders. He passed the AMIE examination (equivalent to BE degree) in the year 1984. It is the case of the applicant that on the basis of his qualifications and consistent good record of service, he was selected by the Kendriya Vidyalaya Sangathan for higher post of Technical Officer in the pay scale of Rs.2000-3500 (equivalent to the post of assistant Engineer in the 1st respondent NDMC) on deputation basis. He remained on deputation with the said organization and worked in the higher post of Technical Officer for a period of five years. While he was away on deputation, he was confirmed as Junior Engineer (Civil) in substantive capacity with effect from 9.9.1986, vide order dated 4.5.1987. The applicant because of physical disability, seeks promotion by reservation in the light of the provisions contained in the Act of 1995. The applicant is stated to be having disability to the extent of 54% post polio residual paralysis left lower limb. As mentioned above, there are other facts and issues raised in the Transferred Application, but nothing based thereon at all has been urged during the course of arguments. The relief, i.e., promotion to the next higher post, is being prayed exclusively on the basis of reservation for promotion. 2. B. D. S. Kharab has filed OA No.1343/2009 under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash the proceedings of DPC held in 2008 for selection to the post of Chief Commissioner Income Tax and consequent promotions made to the said post on the basis of recommendations of DPC vide order dated 5.4.2009, and to direct the respondents to undertake fresh exercise of promotion to fill up the posts of Chief Commissioner Income Tax after giving due consideration to the case of the applicant for appointment to the said post by extending 3% reservation for persons with disabilities in terms of Section 33 of the Act of 1995. The applicant also seeks appropriate directions from this Tribunal to declare that as per Section 33 of the said Act, 3% reservation in favour of persons with disabilities distributed equally among persons suffering from blindness and low vision, hearing impaired and locomotor disability to the extent of 1% each is mandatory in all modes of recruitment including promotion for all groups of posts. The applicant also seeks to declare OMs dated 5.11.2001 and 29.12.2005 as ultra vires and illegal being violative of article 16(1) and Section 33 of the Act of 1995. The applicant suffers from 55% orthopaedic disability being post polio paralysis lower limbs with weakness and wastage of muscles. He was appointed as an IRS officer in the year 1982 in general category. In August, 1984 he was posted as Income Tax Officer and thereafter promoted from time to time and is presently working as Commissioner of Income Tax, Ahmedabad. The applicant seeks promotion only on the dint of his suffering from physical disability and his case too is based upon the provisions of the Act of 1995. Inasmuch as, the instructions, if any, providing reservation in promotion with regard to Groups A and B posts available earlier, have been taken away by the consolidated instructions issued in 2005, challenge is to the instructions as mentioned above as well. 3. We had heard arguments in TA No.188/2009 on 20.3.2009. On 26.3.2009, we recorded a detailed order and directed the matter to be listed for re-hearing. The matter thereafter was being postponed from time to time enabling the DOP&T to file its reply. On 9.9.2009, counsel for DOP&T stated that he would not
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like to file any separate reply as NDMC had been told by DOP&T that their stand is known to them, which may be incorporated in the reply filed by NDMC, or it may file additional reply. We thought that the view of DOP&T would be required to be known by this Tribunal for effectually adjudicating the issue in hand. Therefore, on the same very day, a direction was issued to DOP&T to file its reply. DOP&T has filed its reply. 4. Before we may proceed any further in this case, we may mention that in the order passed by us on 26.3.2009 we observed that the learned counsel representing the applicant placed reliance upon a judgment of the Hon ble High Court of Delhi in Union of India through chairman, Railwa Board v S. Jagmohan Singh [WP(C) No.11818 and 13627-28/2004, decided on 7.12.2007]. We have already observed that the High Court in the said case was dealing with a case which pertained to reservation for physically handicapped persons in Group C and D posts. Even though, instructions in that regard were in existence, the Railway Board denied reservation to handicapped persons. There was no issue with regard to reservation in promotion for physically handicapped persons in Group A and B posts. Learned counsel for the applicant, however, relied upon the observations made by the High Curt. Pertinent reliance was upon paragraph 21of the judgment, which reads as follows: It is clear from the above that point No.34 and 67 in the cycle of 100 are now earmarked for reservation for physically handicapped and, thus, reservation is admissible even for Group A & B posts in promotion category and not only at the induction level. We are of the opinion that this OM is brought in tune with the letter and spirit behind Section 33 of the Disability Act . During the course of hearing, counsel for the applicant had himself brought to our notice that vide OM dated 22.12.2005 issued by DOP&T with a view to consolidating the existing instructions, bringing them in line with the act of 1995 and clarifying certain issues including procedural matters, a new set of instructions have been issued, and the said instructions would supersede all earlier instructions on the subject so far. The observations made by the High Court as extracted above, came to be made in the context of corrigendum issued by the DOP&T dated 4.7.1997 dealing with reservation for physically handicapped persons whereby points 33, 67 and 100 have been reserved for physically handicapped persons. The said instructions and all other instructions dealing with reservation for physically handicapped, it was the case of the parties, and so is it now as well, have since been superseded. In the instructions emanating from OM dated 22.12.2005, there does not appear to be any provision with regard to reservation in promotion for handicapped persons in Group A and B posts. The observations made by the Division Bench of the High Court with regard to reservation in promotion for handicapped persons in Group A and B posts may not be applicable as the same were based on the earlier instructions which have since been superseded. From the material available on records, insofar as the cases in hand are concerned, it may, however, appear that no earlier instructions had provided any reservation in promotion for physically handicapped persons in Group A and B posts. In that context, we may refer to the reply filed by DOP&T which came on records, as mentioned above, as per directions issued by us, as also the reply filed by NDMC. 5. In the reply filed by DOP&T, position with regard to the instructions has been made clear. It has been inter alia pleaded that reservation in promotion for persons with disabilities in Group C and D posts was introduced by DOP&T vide OM dated 20.11.1989 (annexure R-2). It is pleaded that reservation in promotion for persons with disabilities was never available in case of promotions made to Group A and Group B posts. Consequent upon notification of the Act of 1995, DP&T issued OM dated 18.2.1997 (Annexure R-3) stating that with the enactment of the Act, reservation to physically handicapped persons stood extended to identified Groups A and B posts filled through direct recruitment. The said OM provides that a separate 100 point roster would be maintained to implement the reservation so introduced and points 33, 67 and 100 of the roster would be reserved for physically handicapped. It is then pleaded that the government received representations to the effect that persons with disabilities would have to wait for long to get appointment by reservation in view of the fact that points 33, 67 and 100 had been earmarked reserved, and it was represented that points 1, 34 and 67 should instead be earmarked reserved. On considering the representations, the Government decided to modify the OM dated 18.2.1997 partially to the effect that points 1, 34 and 67 would be earmarked reserved. The modification was carried out by DOP&T vide OM dated
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4.7.1997 (Annexure R-4). It is pleaded that that the said OM would show that it only modified the instructions in regard to the reserved points in the roster. The OM, it is pleaded, did not state that reservation would be available in case of promotion, and that had there been an intention of the government to introduce reservation in promotion, it would have stated so in very clear terms, as is done in all cases relating to policy decisions. The OM dated 4.7.1997 rather declared a new decision only with regard to roster points 1, 34 and 67 in place of roster points 33, 67 and 100. Reference is then made to DOP&T OM dated 29.12.2005 (Annexure R-5) which is stated to have superseded all previous OMs issued on the subject. Existing instructions in relation to reservation for persons with disabilities in promotion, as contained in OM dated 29.12.2005, read as follows: Three percent of the vacancies in case of promotion to Group D and Group C posts in which the element of direct recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. It is then pleaded that reservation for persons with disabilities was never available in case of promotion to Group A and B posts, and it is not available as per existing instructions as well. 6. NDMC, 1st respondent, in its reply which was filed in 1997, when the matter was before the High Court, has also pleaded that reservation to the extent of 3% for physically handicapped persons is applicable to Group C and D posts/services under Central Government, while Executive Engineer (Civil) is a Group A post. There is no rebuttal to the pleadings in the counter affidavits filed on behalf of the two respondents, as mentioned above. 7. From the pleadings of the parties referred to above, it appears that there was never reservation in promotion with regard to Group A and B posts. Reservation in the said Groups was only with regard to direct recruitment. We need not, however, go into this issue to give a final opinion on the matter as the learned counsel representing the parties are ad idem that after the instructions of 2005 came into being, no reservation in promotion is available to Group A and B posts. What clearly emerges thus is that reservation to physically disabled persons in direct recruitment is available across the board, be it Groups A , B , C or D posts. Persons suffering with physical disabilities are also entitled to reservation in promotion insofar as, Group C and D posts are concerned, but it is not available in Group A and B posts. 8. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Whereas, Shri Pradeep Dahiya, in support of the Transferred Application, would contend that the word appoint as mentioned in Section 33 of the Act of 1995, would necessarily include promotion as well, and, therefore, reservation is not only to be in the initial appointment, but promotion as well, Shri S. K. Rungta, representing the applicant in the Original Application, in addition to the contention raised by Shri Dahiya, noted above, would further contend that the OM dated 29.12.2005 is ultra vires of Article 16(1) of the Constitution, inasmuch as, it has been held by the Apex Court in the case of Indira Sawhney v Union of India [1992 Supp. (3) SCC 217] that reservation of persons with disabilities is under Article 16(1), the impugned OM would be ultra vires of the said Article, as the same excludes the posts filled by promotion in group A and B from the scheme of reservation which is under Article 16(1) and duly contained in Section 33 of the act of 1995. Per contra, learned counsel representing the respondents would contend that appointment means initial appointment and it cannot be said to include promotion as well, and that the intention of the legislature while mentioning the word appoint in Section 33 of the Act of 1995 was to provide reservation in initial recruitment, and even though the respondents might have yet provided reservation in promotion to Group C and D posts, if they have not done so with regard to Group A and B posts, no exception can be had to that. She also contends that the provisions of the Constitution providing reservation for various categories are enabling provisions which would clothe the appropriate Government to make reservation. The same, it is however, contended cannot be claimed as a matter of right and, therefore, no court or tribunal would have jurisdiction to direct the Government to make reservation with regard to a category or class of posts. Before we may comment upon the conflicting contentions raised by the learned counsel, as mentioned
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above, it would be appropriate to have a look at the aims and objectives of the act of 1995 and some of its provisions, including Section 33, which may be relevant. 9. In the statement of objects and reasons for bringing about the Act of 1995, it is stated that the meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India being a signatory to the said proclamation, it was felt necessary to enact a suitable legislation to provide for the following: (i) to spell out responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-`-vis non-disables persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream. Accordingly, it was proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development, the appropriate Governments and the local authorities were required to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services etc. The Bill also provided for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of persons with disabilities, was also envisaged. One of the objects of introducing and enacting the Act of 1995 is employment and reservation in identified posts (emphasis supplied). The Act consists of 13 chapters. Chapter VI deals with employment. This chapter alone may be relevant for determining the issues debated before us. As per provisions contained in Section 32, the appropriate Government shall identify posts in the establishments which can be reserved for the persons with disability, and there has to be a periodical review of the list of posts identified and the list has to be up-dated taking into consideration the developments in technology. Section 33, which is the main Section, dealing with reservation of posts reads as follows: 3. Reservation of posts. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from blindness or low vision; hearing impairment; locomotor disability or cerebral palsy, in the posts identified (emphasis supplied) for each disability:
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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. Even though, in Section 33, the Government is enjoined upon to appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disabilities, but the proviso to the said Section clearly mentions that some establishments can be exempted, subject, of course, to such conditions, if any, as may be specified, from provisions of this Section. By virtue of provisions contained in Section 34, the appropriate Government may by notification require that from such date as may be specified, the employer in every establishment shall furnish such information or return as may be prescribed in relation to vacancies appointed for persons with disability that have occurred or are about to occur in that establishment. Section 36 deals with vacancies not filled up to be carried forward. Where in any recruitment year any vacancy under Section 33 cannot be filed up due to non-availability of a suitable person with disability or for any other sufficient reason, such vacancy shall be carried forward. Section 37 enjoins upon every employer to maintain record in relation to the persons with disability employed in his establishment. Section 38 requires the appropriate Government and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 35, 39, 40 and 41 may not be relevant and, therefore, there would be no need to make a mention of the same. What appears from the statement of objects and reasons for legislating and thus enacting the Act of 1995, is that in addition to other things, there has to be reservation in identified posts. The object further appears to be to give equal opportunities to persons with disabilities. It appears that the Act of 1995 came into being with an aim to provide equal opportunities and for protection of rights and full participation of disabled persons so that they may not lag behind the able-bodied persons only because of the ill fate that they were born with or have become handicapped. The idea is to make them equal to able-bodied persons and not to provide opportunities to them for being better than able-bodied persons. The very name of the Act suggests that persons with disabilities would need equal opportunities and protection of rights and full participation. Reservation is to be in identified posts, as surely, there may be many such posts duties whereof persons with disabilities may not be able to perform. To illustrate, it may not be desirable to appoint a person as pilot in a passenger plane, having such disability which may put in danger not only his own life, but hundreds of those who may be boarding the plane of which he is the pilot. The identification can also be with regard to such posts where duties and responsibilities are very high in nature, but the efficiency cannot be compromised. Even claim of SC/ST has to be considered while taking into consideration the maintenance of efficiency of administration, as may emanate from the provisions contained in Article 335 of the Constitution. Making no provision for reservation in promotion in higher posts in Group A and B can well be said to be consistent with maintenance of efficiency of administration. 10. From the scheme of the Act, insofar as it relates to reservation, dealt with in Chapter VI, it further appears that reservation is to be in the initial appointment. Section 33 states that the appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons who may have disabilities. Section 34 also deals with vacancies appointed for persons with disabilities. Section 36 deals with vacancies that may be carried forward, where in any recruitment year the vacancy could not be filled under Section 33. Section 37 enjoins upon the employer to maintain records in relation to persons with disabilities employed in his establishment. On a joint reading of relevant Sections contained in Chapter VI, as mentioned above, it may appear that the mandate of law is to necessarily make reservation for persons with disabilities in the matter of appointment. There is no command to make reservation in promotion. Despite the fact that there is no provision for reservation in promotion in the Act of 1995, the Government may itself provide the same. The question, however, debated before us is as to whether if reservation in promotion has not been provided, can the same be sought as a matter of right and the judicial fora would have jurisdiction to command the respondents to do so. As mentioned above, the respondents have indeed provided reservation in promotions insofar as Group C and D posts are concerned. The same may be permissible as well, but what we are told is that such reservation must also be applicable in case of Group A and B posts, and in that context, learned counsel representing the applicant would urge that the word appoint as used in Section 33 of the Act of 1995, would necessarily include promotion as well,
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and for that contention would place reliance upon a judgment of the Hon ble Supreme Court in Harkishan Singh v State of Punjab & Others [(1971) Supp. SCR 223 = (1971) 2 SCC 58]. Without referring to the facts of the said case, we may straightway refer to the rules on which the contention came to be raised that the term appoint would include promotion as well. Rules 5 and 9 of the Punjab Civil Medical Service, Class I (Recruitment and conditions of Service) Rules, read as follows: . Appointment to the service shall be made either by promotion from the Class II service or by direct recruitment in India or in England and when any vacancy occurs or is about to occur. Government shall determine in what manner such vacancy shall be filled. 9. (1) A member of the service shall on appointment be entitled to pay of a scale rising from Rs.600 a month by an annual increment of Rs.40 a month to Rs.800 a month and then by an annual increment a Rs.50 a month to Rs.900 a month with an efficiency bar at Rs.800 a month. In addition a member if he is of non-Asiatic domicile shall be entitled to receive such overseas pay a may be prescribed by Government from time to time. (2) Members of the service shall be eligible for promotion to a selection grade and on such promotion shall be entitled to a pay of Rs.1000/- a month: Provided that promotion to the selection grade shall be made strictly by selection and no member of the service shall be entitled as of fight to such promotion. (3) The number of appointments in the selection grade shall not exceed 25 per cent of the total number of appointments in the service. On the basis of provisions contained in rule 9(2) as extracted above, which state that members of the service would be eligible for promotion to the selection grade, it was contended on behalf of the appellant that the same would mean that only members of class I service could be promoted to selection grade and there could be no direct appointment to selection grade, and direct appointment to the selection grade was termed as infraction of rule 9(2). The contention of the appellant with regard to rule 5 was that it spoke of appointment to the service either by promotion from class II or by direct recruitment and, therefore, there could be direct recruitment only to class I service and not to the selection grade. It was emphasized that rule 5 did not specifically provide for direct appointment to selection grade. The said argument was repelled by observing as follows: Rule 9(2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9(2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9(2) and 9(3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9(2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9(3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2(c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9(3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade Once, rule 5 dealt with appointment both by promotion and direct recruitment, this indeed had to be interpreted. This judgment, in the context of the facts of present case, in our view, is not at all relevant. Observations from the judgment as extracted above have been relied upon without even first ascertaining the reference and context in which the same came to be made. We are unable to appreciate the contention raised by Shri Rungta that OM dated 29.12.2005 would be ultra vires of Article 16(1) of the Constitution. All that is urged in support of the contention aforesaid is that the Hon ble Supreme Court in the case of Indira Sawhney (supra) held that reservation in promotion would be covered under Article 16(1). How the OM dated 29.12.2005 not providing reservation in promotions for physically handicapped persons in Group A and
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B posts would be ultra vires only if the reservation in promotion can be made under provisions of Article 16(1), is not understandable to us at all. 11. Reservation in promotion was even earlier not admissible under Article 16(4) to any backward class of citizens. The word appointment in Article 16(1) could not be interpreted to mean promotion as well. Reservation yet made in promotion was frowned upon in number of judicial precedents. The Government, with a view to provide reservation in promotions, had to insert clause (4A) in Article 16 by the Constitution (77th Amendment) Act, 1995, w.e.f. 17.6.1995. It is thereafter only that reservation in promotion may be permissible even to Scheduled Castes and Scheduled Tribes, and that too if in the opinion of the State, such categories are not adequately represented in the service under it. It needs to be emphasized that SC/ST could have also no reservation in promotion, even though reservation for appointment is provided in the Constitution. This became admissible only by amending the Constitution. Shri Rungta may be right in contending that reservation for physically disabled persons may arise from the provisions of Article 16(1), but if no reservation in promotion is provided either by virtue of provisions contained in Article 16 or by any rules, orders or instructions issued on that behalf by the Government, we are of the firm view that the applicants cannot seek such reservation from any judicial fora. We are in agreement with the contention raised by Ms. Jyoti Singh, learned counsel representing the respondents that provisions regarding reservation provided in the Constitution are enabling provisions, clothing the State with the right to make reservations, but the same cannot be demanded as a matter of right. Government servants have only right to safeguarding rights or benefits already earned, acquired or accrued but they cannot challenge the authority of the State to make such amendments or alterations in rules. Reference in this connection be made to the judgment of the Hon ble Supreme Court in P. U. Joshi & others v Accountant General, Ahmedabad & others [(2003) 2 SCC 632]. We may also refer to another judgment of the Hon ble Supreme Court in Mallikarjuna Rao & others v State of Andhra Pradesh & others [(1990) 2 SCC 707], wherein it has been held that courts or tribunals cannot direct the Government to frame statutory rules or amend existing statutory rules under Article 309 in a specific manner. 12. Finding no merit in the Transferred Application and the Original Application, the same are dismissed, leaving, however, the parties to bear their own costs. ( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman

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