I My understanding, the reservation in promotion doesn't exist for persons with disabilities. Thus this judgement is in line with that understanding. In case of SC and ST, such reservation in promotion was to be issued through legislative amendment, I am not aware if this was actually done or not.
This matter is not of judgement but of getting change in our law and policy on this issue. Court judgement seem to be in line with our current law and policy. Thanks Dipendra -----Original Message----- From: AccessIndia [mailto:[email protected]] On Behalf Of srinivas.karnati Sent: 10 March 2013 14:59 To: [email protected] Subject: [AI] Negative judgement by a CAT on the issue of reservation in promotion to disabled employees Dear accessindian friends: good afternoon to all of you. Kindly go through the negative judgement on the subject forwarded by a well wisher of the disabled. I request you to highlight the issue where ever possible and to see that justice is done to disabled. With regards, karnati srinivas Email: [email protected] vs - on 5 September, 2011 Principal Bench OA No.3254/2010 New Delhi this the --------05th day of September, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) 1. Rajeev C. Mathur, working as Income Tax Officer, Ward 20 (2)(4) Mumbai, R/o Wing B Flat No.602, Shiv Om Apartments, Adjacent to Chandivali Film Studio, Powai, Mumbai-400072. 2. Virbhadra S. Mahajan, Working as Income Tax Officer, CIB Mumbai, R/o Flat No.304/A, Bhairavi, Doordarshan Employees, Cooperative Housing Society Ltd., Gokuldham, Goregon (E), Mumbai. -Applicants (By Advocates Shri Vikrant Yadav) -Versus- 1. Union of India through theSecretary, Ministry of Finance Department of Revenue, Central Board of Direct Taxes, North Blcok, New Delhi. 2. The Secretary, Ministry of Personnel & Training, Shastri Bhavan, North Block, New Delhi-110001. 3. Chief Commissioner of Income Tax, Ayakar Bhavan, New Marine Lines, Mumbai-400020. 4. Dr. K. Shyam Prasad, Dy. Commissioner of Income Tax (HQ) Administration Mumbai, Office of the Chief Commissioner of Income Tax, 3rd Floor Ayakar Bhavan, Maharshi Karve Road, Mumbai-400020. 5. Mr. K.J. Verma, Director (Reservations), DOPT, North Block, New Delhi. 6. Director (A.D. VI), C.B.D.T, North Block, New Delhi. -Respondents (By Advocate Shri V.P. Uppal) O R D E R Mr. M.L. Chauhan, Member (J): Applicants have filed this OA, thereby praying for the following reliefs: i) This Honble Tribunal may graciously be pleased to quash and set aside the impugned orders dated 16.08.2010. ii) This Honble Tribunal further be pleased to direct the respondents to apply the policy of reservation of 3% vacancies for physically handicapped for promotion in Group B and Group A services during the period 1998 to 2005. iii) This Honble Tribunal may further be pleased to direct the respondents to reserve 3% vacancies filled up by promotion in Group B and Group A posts, during the period 1998 to 2005 and thereafter grant the applicants the benefit of the said Reservation by anti-dating their promotions to Group B Service and granting them promotion to Group A service, as per their turn, with all consequential benefits. iv) Cost of this Original Application be provided for. v) Any other relief/rules may be granted to the applicant which deemed to be proper and reasonable in the eye in law. 2. As can be seen from the relief clause, grievance of the applicants is that reservation of 3% vacancies for physically handicapped (PH) persons in Group B and A services should also be made applicable in the case of promotion. The relief is being sought on the basis of the judgment rendered by the Principal Bench of this Tribunal in the case of Smt. Dropadi Seth v. Union of India & Others [OA No.1952/2003, decided on 17.12.2003] and the judgment of the High Court of Delhi in Writ Petition (C) No.11818 and 13627-2004 in the case of Union of India through G.M. Northern Railway and Chairman Railway Board v. Jagmohan, decided on 07.12.2007 (Annexures A-13 and A-14 respectively). 3. During the course of arguments learned counsel of applicants has also placed reliance upon two judgments of the Apex Court in the case of National Federation of Blind v. Union Public Service Commission and others, (1993) 2 SCC 411 and Amita v. Union of India and another, (2005) 13 SCC 721. We fail to understand how applicants can draw assistance from these judgments. In the case of National Federation of Blind (supra) the Apex Court has directed the Union of India and Union Public Service Commission to permit the visually handicapped (blind and partially blind) eligible candidates to compete for Indian Administrative Service and the Allied Services in Braille-script or with the help of scribe. Govt. of India also commended to decide the question of providing preference/reservation to the visually handicapped persons in Groups A and B posts in Govt. and Public Sector undertakings expeditiously. Similarly the issue involved in the case of Amita (supra) was to make adequate arrangement of a scribe for the petitioner during the entrance test for the post of Probationary Officer in Indian Overseas Bank. It was in the factual background that the observation was made by the Apex Court. Be that as it may, there is no dispute that the reservation in respect of physically disabled persons in direct recruitment is available to all categories, including Group B and A posts, whereas no such reservation has been made in promotion qua Group A and B posts. Thus, the judgments cited by the applicants do not deal with the point that even in promotion in Group A and B reservation should be provided to physically disabled candidates. 4. At the outset, it may be submitted that the applicants cannot draw any assistance from the judgment rendered by this Tribunal in the case of Smt. Dropadi Seth (supra), as in the said judgment OM dated 18.02.1997, as modified by corrigendum dated 16.01.1998 and OM dated 08.07.2003 were considered and the OM dated 29.12.2005, which has superseded all previous OMs regarding reservation to the PH category, was not under consideration. 5. Insofar as judgment of the Delhi High Court in the case of Jagmohan (supra) and other connected matters are concerned, as can be seen from para-5 of the judgment that was a case pertaining to reservation for PH persons in Group C and D posts and the post of Chief Office Superintendent, for which reservation has to be provided for, was a Group C post and the question of reservation in Group B and A posts was not in issue, as such the applicants cannot draw any assistance from this judgment also. 6. That apart, the issue regarding reservation to PH persons in Group B and A posts vis-`-vis provisions contained in Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was considered by the Coordinate Bench of this Tribunal in OA-1343/2009, decided on 30.04.2010 in B.D.S. Kharab v. Union of India & Others. This Tribunal not only considered the issue whether applicants, who were PH persons and were holding Group A and B posts, would be entitled for reservation in promotion, in the light of the provisions contained in the Persons with Disabilities Act, 1995 or in the light of the Standing Order/instructions issued by the (DoP&T) Personnel & Training on that behalf, but also considered the validity of the OM dated 05.11.2001 and 29.12.2005, being ultra vires and violative of Article 16 (1) and Section 33 of the Act of 1995. Ultimately, this Tribunal held that persons suffering with physical disabilities are entitled to reservation in promotion insofar as Group C and D posts are concerned but it is not available to Group A and B posts and also upheld the validity of the aforesaid instructions issued by the DoP&T. At this stage, it will be useful to quota paras 4-11 of the judgment, which thus reads: 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 Honble 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 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 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: 33. 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: 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, and for that contention would place reliance upon a judgment of the Honble 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: 5. 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 Honble 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 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 Honble 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 Honble 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. 7. The ratio, as laid down by this Tribunal in B.D.S. Kharab (supra) is squarely applicable in the facts and circumstances of this case. Thus, we are of the view that the applicants have not made out any case for grant of relief, which is accordingly dismissed, with no order as to costs. (Smt. Manjulika Gautam) (M.L. 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