Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 789 (KAR)

Hariram Krishna Iyer v. State Bank of India

2008-12-18

ANAND BYRAREDDY

body2008
ORDER Anand Byrareddy, J.— Heard the Counsel for the parties. 2. The facts as narrated are as follows.- The petitioner had joined the services of the first respondent-Bank as a clerk on 21-4-1980. The petitioner has produced credentials to indicate that he was a highly meritorious student. It is stated that while he was working at Jamakhandi Branch of the Bank, he had developed a form of severe eye allergy called Spring Catarrah. The doctors had prescribed steroid drops. It is claimed that on account of prolonged use of that drug, there was a rise in intra-ocular pressure, resulting in an estrogenic medical case of steroid induced glaucoma, as a result, the petitioner was rendered almost blind. However, by timely surgery, about 60% of the overall vision was saved, in the result, he is blind to the extent of 40%. In that, the petitioner has completely lost vision in the left eye and the normal field of vision in the right eye has diminished. He is classified as a "one-eyed person" in the parlance adopted by the Bank. It is, however, claimed that there is no diminution of the performance of the petitioner or in his professional advancement. It is stated that in the year 1984, the petitioner has passed Part 1 of the CAIIB examination conducted by the Institute of Bankers. The petitioner, however, is treated as a disabled person in terms of a Disability Certificate issued by the District Hospital, Belgaum. It is stated that the petitioner had applied in response to an advertisement issued by the Banking Services Recruitment Board to the post of Probationary Officers in the Bank of India. He had scored well both at the written test as well as the interview. He was however refused appointment on the ground that he has lost vision in the left eye. 3. The respondent-Bank has formulated guidelines which are required to be followed by the Medical Officers carrying out medical examination on candidates seeking appointment or promotions in the Bank, which is at Annexure-F to the writ petition. Clause VII(vii) stipulates that one-eyed candidates are unfit for appointment to the supervisory cadre. The petitioner, therefore, had sought clarification from the respondent-Bank, in view of his earlier experience with Bank of India, of having suffered the ignominy of being refused appointment. Clause VII(vii) stipulates that one-eyed candidates are unfit for appointment to the supervisory cadre. The petitioner, therefore, had sought clarification from the respondent-Bank, in view of his earlier experience with Bank of India, of having suffered the ignominy of being refused appointment. In this regard, the petitioner had approached the Director, Eye Department, Wanless Hospital, Miraj and had placed his case history and the details of his vocation to seek an opinion. The said authority had opined that his work being administrative would not be hampered by the disability that he suffered. A similar opinion was obtained from the District Surgeon, Belgaum as well as from the All India Institute of Medical Sciences, which had incidentally opined that the petitioner may appeal to the Bank to constitute a Board of Specialists to review his case, while holding that the vision was satisfactory though there is loss of visual fields. The petitioner had enclosed these certificates and opinions and made a representation to the respondent-Bank on the footing that as the guidelines framed, on the face of it, indicated that he was prohibited from being promoted as an officer, he was making an appeal that a Board of Specialists be constituted to consider his case. However, the Regional Manager, who in the first instance, did not seem to be aware of the guidelines, had after seeking clarifications, intimated the petitioner that his request could not be considered. It is claimed by the petitioner that this was a reflection of the attitude of the respondent-Bank towards handicapped persons in the employment of the respondent-Bank and has cited the case of at least two employees, who had been promoted, but, immediately reverted on the basis of the medical opinion that they were in some manner handicapped. 4. It is pointed out by the petitioner that till the year 1997, one-eyed candidates were outright considered unfit for promotion to supervisory cadres only on account of their disability. However, by a circular dated 21-1-1997, the norm was modified to state that candidates having one-eye with normal vision could be considered medically fit for promotion, but, the disqualification for direct recruitment to the post of officer continues to operate. Therefore, it is the petitioner's contention that the petitioner could not suffer the disgrace of successfully completing the test for promotion and then being rejected by the Medical Board of the Bank on account of his disability. Therefore, it is the petitioner's contention that the petitioner could not suffer the disgrace of successfully completing the test for promotion and then being rejected by the Medical Board of the Bank on account of his disability. 5. It is stated that the respondent-Bank published a notification dated 4-12-1999 setting in motion a promotion process to fill up 37 posts of Officers in the Junior Management, Grade Scale I by promotion. Pursuant to which, the petitioner had made a representation requesting the respondent-Bank to permit him to take the test as a candidate to whom the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act') applied and for a consideration of his case for promotion. The Bank had not replied to the same. The petitioner therefore, approached the Chief Commissioner for disabilities under the Act. The respondent-Bank had contended that the petitioner had not participated in the promotion process in the year 1997 and that it proposes to hold a test for promotion shortly and that the petitioner would be permitted to appear for the test. The petitioner's representation was registered as Case No. 259 of 1999 and by an order dated 22-9-2000 directed the respondent-Bank to withdraw all provisions from its policies regarding promotion which are an impediment to career enhancement to employees with disabilities in general and blind employees in particular. The respondent-Bank was also called upon to modify its service Rules to the extent that no employee on account of acquiring disability while in service is dispensed with or reduced in rank or denied promotion. The Bank was directed to consider the case of promotion of the petitioner and all other similarly situated employees of the Bank. The petitioner, therefore, sought for promotion with effect from 22-2-1996. The Bank having failed to do so, the present writ petition is filed. 6. Sri P.S. Rajagopal, Senior Advocate appearing for the petitioner contends that the action of the respondent in not providing for reservations in favour of persons with disabilities in the matter of promotions to officers cadre is contrary to the provisions of the Act and is violative of public policy as well as human rights and the Constitution of India. The guidelines for medical fitness which continued to prevail in the respondent-Bank are archaic anachronic and is an affront to human dignity contrary to learned scientific opinions. The guidelines for medical fitness which continued to prevail in the respondent-Bank are archaic anachronic and is an affront to human dignity contrary to learned scientific opinions. The stubborn refusal of the respondent-Bank to constitute a specialist Medical Board to examine the medical fitness of the petitioner for promotion, is irrational, in that, the petitioner being required to participate in the promotion process as a general candidate, is a deprivation of the petitioner's right to have his case considered for promotion in consonance with the provisions of the Constitution of India. The mechanical process of the respondent-Bank requiring candidates with disabilities to undertake the written test in the first instance and to thereafter declare them unfit for promotion on the ground of their disability, in the face of the directions issued by the Chief Commissioner for Disabilities, is clearly violative of public policy, the Act in particular, apart from various declarations of the United Nations. 7. It is further contended that during the pendency of the writ petition, certain developments have taken place, which have a material bearing on the issues raised in the writ petition. The petitioner has filed additional facts before this Court as on 15-2-2006, to contend that the petitioner comes under the category of persons with disability suffering from blindness or low vision. In terms of Section 33 of the Act, the Government of India not having issued any notification exempting the respondent from the provisions of the section, the same would be binding on the Bank. By a circular dated 11-7-2002, the Bank has initiated promotion process for promotion to Junior Management, Grade Scale I. The circular restricts reservation only to persons with locomotor disability and excludes persons with the disability of blindness or low vision. Further, by a notification published in Employment News dated 6/12th July, 2002, the Reserve Bank of India Services Board had invited applications to fill up 122 posts of officers by direct recruitment. This notification excluded visually handicapped persons from consideration. By a corrigendum published on 10th July, 2002, visually handicapped persons were made eligible. By an advertisement published in Employment News dated 10/16th April, 2004, applications were invited by the Reserve Bank of India Services Board to fill up 100 posts of officers by direct recruitment. The notification made reservation in favour of visually handicapped. By a corrigendum published on 10th July, 2002, visually handicapped persons were made eligible. By an advertisement published in Employment News dated 10/16th April, 2004, applications were invited by the Reserve Bank of India Services Board to fill up 100 posts of officers by direct recruitment. The notification made reservation in favour of visually handicapped. Similarly, Bank of India, while inviting applications to fill up 270 posts by a notification dated 5-12-2003, had reserved 11 posts out of 270 for physically handicapped, including visually handicapped candidates. The respondent-Bank itself, by a notification dated 21-1-2003, had invited applications for filling up 400 posts by direct recruitment. Though 37 posts were reserved for persons with disability, the respondent-Bank specifically excluded visually challenged and hearing impaired persons. The National Association for the Blind had challenged this by way of a writ petition before the Bombay High Court. It was only on the Board's direction that reservation was made for persons with visual disabilities. Attention is drawn to other notifications issued by Punjab National Bank, Canara Bank, Corporation Bank, inviting applications for various posts during the years 2002, 2003 and 2004 whereby, all these Banks have made reservations in favour of visually handicapped persons. However, the respondent-Bank, though had invited applications on more than one occasion making reservation for visually challenged persons, as seen at Annexure-RR and Annexure-SS, it has failed to make reservation in case of promotions. 8. The Counsel would complain that though the respondent seeks to state that the ineligibility of visually handicapped persons from promotion to officers cadre has been removed, it is contended that the same has neither been notified nor given effect to in the State of Karnataka and the petitioner's repeated representations had yielded no results. 9. It is contended that the petitioner became eligible to participate in the promotion process to the cadre of Junior Management, Grade Scale I in the year 1985, though it is true that the petitioner had participated in the promotion process in certain years and had failed to make the grade, that was for the reason that the Bank has not made reservation in favour of visually disabled and therefore, the Counsel would submit that the writ petition be allowed in terms of prayer. It is incidentally pointed out that, by a communication dated 27-3-2008, the promotion of the petitioner to officer in the Junior Management, Grade Scale I, with effect from 13-3-2008, under the seniority channel has been approved by the Competent Authority. Reliance is placed on the following authorities in support of case of the petitioner.- National Federation of Blind Vs. Union Public Service Commission and Others, AIR 1993 SC 1916 ; Union of India v. S. Jagmohan Singh W.P.(C) Nos. 11818 and 13627 and 13628 of 2004, DD: 7-12-2007; Dr. Harkishan Singh Vs. State of Punjab and Others, AIR 1971 SC 1602 ; M. Ramachandran Vs. Govind Ballabh and Ors., AIR 1999 SC 3601 ; Bhagwan Dass and Another Vs. Punjab State Electricity Board, AIR 2008 SC 990 ; Union of India (UOI) Vs. Sanjay Kumar Jain, AIR 2004 SC 4139 ; Ravikumar Arora v. Union of India (2004) 3 AIS L.J. 486. 10. On the other hand, the Counsel for the respondent would contend that before dealing with the contentions raised by the petitioner, it would be necessary to state the recruitment policy of the respondent-Bank. It is contended that the candidates to the clerical cadre are recruited by advertisements, setting out the eligibility norms in regard to age and qualifications. The process of selection consists of a written test, except for the subordinate staff, followed by an interview by a panel formed by the recruitment board. The Bank has reserved vacancies for the physically handicapped persons in the clerical and subordinate cadre to the extent of 1% each for the blind, deaf and orthopedical handicapped candidates. These reservations are carried forward for three recruitments and the candidates are given relaxation in payment of fees and in medical standards. The handicapped are not denied promotions on medical ground if they are otherwise fit for promotions. According to the existing norms, candidates having defect in one-eye with normal vision, that is 6/6, without glasses in the other eye, could be considered medically fit for promotion provided they qualify in the written test and interview. It is hence contended that the provisions of the act do not envisage promotion of employees without ascertaining their suitability and the act does not stipulate any reservation in promotions. 11. It is contended that the petitioner had joined the services of the Bank as a clerk in the year 1980. It is hence contended that the provisions of the act do not envisage promotion of employees without ascertaining their suitability and the act does not stipulate any reservation in promotions. 11. It is contended that the petitioner had joined the services of the Bank as a clerk in the year 1980. He had no disability and was appointed as a general candidate. The promotion policy of the Bank applicable to the employees of Junior Management, Grade Scale I is applicable uniformly and a person with a disability is not discriminated against. Insofar as a person with normal vision in one-eye, and defective or blind in the other, such as the petitioner, would be considered medically fit for purposes of promotion as laid down by the Central Board of the Bank in the year 1996 is if the normal eye without glasses has a vision of 6/6. This is in consonance with Section 47(2) of the Act. The petitioner became eligible for promotion in the year 1997. A call letter was sent to him. He failed to appear for the test conducted on 5-4-1998. He also did not attend the written test for year 1998. The tests for promotion to Junior Management, Grade Scale I from 1-8-1999 and 1-8-2000 under the merit-cum-seniority channel were held on 4-2-2001. The petitioner had appeared for both the tests. However, he did not succeed in the written test. Therefore, the petitioner is precluded from claiming any relief. It is only a presumption on the part of the petitioner that he is eligible for promotion. His contention that he should be permitted to undergo the medical examination first before taking the written test and the interview, on his apprehension that he may be denied promotion on medical grounds, is on his imagination. Therefore, the petitioner having failed at the written test cannot claim promotion on the basis of the provisions of the Act. 12. It is contended that the petitioner having failed to appear for the test conducted for promotion, cannot claim such promotion on the basis of the Act. It is not correct that the Bank has treated the petitioner as an one-eyed person. His case was considered as per the eligibility criteria for promotion to Junior Management, Grade Scale I in the year 1997 and thereafter. The petitioner has not undertaken the written test. It is not correct that the Bank has treated the petitioner as an one-eyed person. His case was considered as per the eligibility criteria for promotion to Junior Management, Grade Scale I in the year 1997 and thereafter. The petitioner has not undertaken the written test. Insofar as the written test held on 4-2-2001, for the years 1999 and 2000, the petitioner had failed. Annexure-F produced by the petitioner are guidelines issued insofar as the visual acuity is concerned or for ascertaining the standard of fitness. These guidelines were revised in September 1996 and a circular was issued in terms of Annexure-R5 and this would disclose that handicapped persons are not denied promotion on medical grounds, if they are otherwise found fit for promotion. 13. The petitioner's insistence that medical examination be conducted in the first instance before he is called upon to undertake a written test and an interview, is a hybrid procedure suggested by the petitioner, which is not tenable. In this regard, the respondent-Bank had made its stand clear in terms of Annexure-P, dated 17-11-1988. The sustained effort of the petitioner to compel the respondent-Bank to accede to his request between the period 1978 to 1988 is wholly irrelevant in considering the present writ petition. 14. Insofar as the disqualification for one-eyed candidates for appointment or for promotion, in the supervisory cadre, in Annexure-V, has been amended to provide that candidates having normal vision in one-eye would be considered medically fit provided, they qualify the written test and the interview. The reference to Sections 32 and 33 of the Act would indicate that it is at the entry level that there should be reservations and that there should be no denial of promotion merely on the ground of disability vide Section 47(2) of the Act. If these provisions are implemented, it is not possible for the petitioner to claim reservation in promotional posts. 15. The contention of the petitioner that by denying him reservation, the Bank had violated Section 33 of the Act and that he has failed to make it to Junior Management, Grade Scale I on account of the fact that there is no reservation in promotion to Junior Management, Grade Scale I in favour of the visually disabled, is not tenable. The contention of the petitioner that by denying him reservation, the Bank had violated Section 33 of the Act and that he has failed to make it to Junior Management, Grade Scale I on account of the fact that there is no reservation in promotion to Junior Management, Grade Scale I in favour of the visually disabled, is not tenable. The Bank has, on the other hand, acted in terms of the Official Memorandum of the Government of India dated 25-10-2002, Annexure-R6, whereby it is made clear that there is no reservation for persons with disabilities when promotions are made to Group 'A' or Group 'B' posts. The Bank, in turn, has issued a circular dated 12-3-2003 to state that the post of officer in Junior Management, Grade Scale I is on par with Group 'A' service of the Government of India and no reservation in promotion from clerical grade to Junior Management, Grade Scale I is provided for the physically handicapped persons. The same is at Annexure-R7. In any event, persons with disability are not denied promotions on medical grounds alone, if they are otherwise fit for promotions. Promotion is always on ascertainment of an employee's suitability. It is a fallacy to assume that the Act stipulates reservation in promotions in the face of want of suitability. Hence the petitioner's primary contention that he is entitled to promotion only on the ground of disability is wholly untenable and irrational. The petitioner has not been denied promotion on the ground of disability alone. The petitioner has never succeeded in the written test which he has attended. The circulars, the official memorandum or the provisions of the Act do not contemplate to bypass the basic concept in providing promotion. The same has to be earned and cannot be claimed as a matter of right de hors the prevailing promotional policy. 16. The further contention of the petitioner that the circular dated 11-7-2002 has restricted reservations only to persons with locomotor disability and excluded persons with disability of blindness or low vision is denied. The circular does not stipulate any reservation in promotion either for persons with locomotor disability or with the disability of blindness. Insofar as the other notifications issued by various Banks at Annexures-FF to SS, wherein reservation has been provided for persons with disability, pertains to direct recruitment and not promotion. The circular does not stipulate any reservation in promotion either for persons with locomotor disability or with the disability of blindness. Insofar as the other notifications issued by various Banks at Annexures-FF to SS, wherein reservation has been provided for persons with disability, pertains to direct recruitment and not promotion. Hence, there is no substance in the contention of the petitioner that the Bank has violated the provisions of the Act or has failed to apply guidelines or directions issued by the Government of India and hence, the Counsel would submit that the petition be dismissed with costs. 17. On a consideration of these rival contentions and the material placed on record, the petitioner having been promoted, notwithstanding his grievance in the present writ petition, in the usual course under the seniority channel, with effect from 13-3-2008, the relief that the petitioner seeks to claim is for retrospective promotion from 7-2-1996 to the Junior Management, Grade Scale I when he became eligible for promotion and for consequential benefits. The petitioner has become disabled to the extent of 40% while in the service of the Bank due to the unfortunate circumstance of prolonged use of steroid drugs for an eye condition that he had developed. Though at Annexure-F, the guideline prescribed stipulated that one-eyed candidates are unfit for appointment or promotion to supervisory cadre, this has been amended as clarified by the respondent. The petitioner's apprehension that the respondent-Bank was blatantly discriminating against disabled persons as it had done in the case of two others, as narrated by the petitioner, who had successfully completed the written test and interview, but were reverted from their promotional post only on the ground of disability and that he did not want to suffer this ignominy and has been requesting the Bank to constitute a Medical Board to certify that the petitioner was eligible to hold a supervisory post before he could take the written test or face an interview has been negated. The first question, therefore, would be whether the Bank was obliged to devise such a hybrid procedure for the petitioner on the basis of his apprehensions. From the grounds urged and the material produced there is no substance in the petitioner's contention that a special procedure, as contemplated, ought to be devised insofar as the petitioner is concerned. The first question, therefore, would be whether the Bank was obliged to devise such a hybrid procedure for the petitioner on the basis of his apprehensions. From the grounds urged and the material produced there is no substance in the petitioner's contention that a special procedure, as contemplated, ought to be devised insofar as the petitioner is concerned. Hence, the stubborn insistence of the petitioner in this regard that he has failed to take the written test at various points of time only on account of this impasse and that it would not be available for the Bank to deny promotion on the ground that he had not undertaken the written test etc., cannot be pleaded by the petitioner to claim reliefs retrospectively at this point of time. 18. The further question that would require consideration by this Court is whether, the respondent-Bank was obliged, with reference to the provisions of the Act and the several notifications and circulars that have been referred to in the course of these proceedings to provide for reservation in promotion in favour of disabled persons as it had done in the case of direct recruitment at the entry level. 19. Though Senior Advocate Sri P.S. Rajagopal has argued extensively, while taking this Court through the several judgments that are cited and in seeking to interpret the language of the notifications and circulars, to urge that there can be no restriction on reservation for disabled persons in promotion, the positive direction issued by the Government of India as pointed by the Counsel for the respondent that there shall be no reservation for persons with disabilities when promotions are made to Group 'A' or Group 'B' posts, in terms of the memorandum dated 25-10-2002 read with the circular of the respondent-Bank dated 12-3-2003 that the post of Officer in Junior Management, Grade Scale I is on par with the Group A services of the Government of India, no reservation in promotion can be provided, would militate against the argument canvassed with much vehemence by the Senior Counsel. There is no indication that the respondent-Bank has denied promotion on medical grounds when persons with disability are otherwise fit for promotion. There is no indication that the respondent-Bank has denied promotion on medical grounds when persons with disability are otherwise fit for promotion. It is to be accepted that notwithstanding the suitability of a candidate, there ought to be reservations in promotion only on the ground of disability without anything more is neither contemplated under the provisions of the Act or any notification or circular which are placed on record. It is also not acceptable that there is a restricted reservation only to persons with locomotor disability and exclusion of persons with disability of blindness. This is not evident from a reading of the circular at Annexure-EE nor can it be said that Annexures-FF to SS contemplate reservation being provided for persons with disability for promotion. Therefore, it cannot be accepted that the Bank has violated the provisions of the Act or the express guidelines or directions issued in this regard insofar as persons with disabilities are concerned. 20. Hence there is no merit in this writ petition and the same is dismissed.