Madhya Pradesh High Court
Chandra Sekhar Upreti vs The State Of Madhya Pradesh on 18 September, 2025
Author: Anand Pathak
Bench: Anand Pathak
NEUTRAL CITATION NO. 2025:MPHC-GWL:23848
1 WA-1772-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
ON THE 18th OF SEPTEMBER, 2025
WRIT APPEAL No. 1772 of 2025
CHANDRA SEKHAR UPRETI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prashant Sharma & Shri Siddharth Sharma - Advocates for the appellant.
Shri Vivek Khedkar - Additional Advocate General with Shri Sohit Mishra - Govt.
Advocate for the respondents/State.
ORDER
Per: Justice Pushpendra Yadav This intra-Court appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed by the appellant seeking the following reliefs:-
"i. That, this Hon'ble Court may kindly be pleased to allow this writ appeal, ii. That, the order passed by Hon'ble writ may kindly be modified by issuing specific directions to the respondents to frame a proper roster in accordance with the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rights of Persons with Disabilities Act, 2016, identify year-wise vacancies reserved for persons with disabilities,
111. That, the Hon'ble court may kindly direct the respondents to reconstitute the Review Departmental Promotion Committee (DPC) for considering the petitioner's case for promotion to the posts of Manager, General Manager, and Joint Director from the respective due dates as per his eligibility, iv. That, the Hon'ble court may kindly direct the respondents to grant all consequential benefits including seniority and notional Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848
2 WA-1772-2025 fixation of pay.
v. Issue nay other order as this Hon'ble Court deems fit"
2 It is submitted by counsel for appellant that appellant is suffering from cerebral palsy with involuntary tremer having 60% disability. In the year 1993 appellant was appointed as Industry Inspector against the quota of handicapped persons. Appellant got qualified for promotion on 8/9/2000 after completion of 7 years of service as per Madhya Pradesh State Industries (Gazetted) Services Recruitment Rules 1985. Parliament passed the Act of 1995 and, accordingly, State of Madhya Pradesh framed the rules known as The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules 1997.
3 It is further submitted that Supreme Court in the case of Union of India Vs. National Federation of Blind reported in (2013)10 SCC 772 has held that computation of 3% reservation is based on total number of vacancies and cadre strength and not on the basis of vacancies available in identified posts. Section 32 is not a precondition for computation of reservation of 3% vacancies for persons with disabilities out of which one percent is reserved for persons suffering from blindness or low vision, persons suffering from hearing impairment, persons suffering from locomotor disability or cerebral palsy. The scope of identification comes into picture only at the time of appointment on the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under section 33. It is further submitted that while interpreting the provisions court is only required to interpret law and cannot legislate therefore it is the function of Legislature Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848
3 WA-1772-2025 to amend, modify or repeal it if deemed necessary. 4 Since appellant was not granted promotion, therefore, he filed WP No. 9054 of 2012 which was disposed of with direction to the respondents to consider the case of appellant for promotion. However by order dated 6/2/2017, claim of appellant has been rejected on the ground that the Act of 1995 is applicable to the Central Government employees and as per the provisions of Promotion Rules, 2002 only candidates belonging to Schedule Castes and Schedule Tribes are entitled for reservation and promotion. It was further held that there is provision for reservation at the time of recruitment and not for promotion. Since the action of respondent was contrary to the law laid down by Supreme Court, therefore, appellant filed contempt petition before Supreme Court. Thereafter during the pendency of contempt petition, appellant was granted promotion to the post of Assistant Director / Manager (Industry) by order dated 6.1.2018.
5 It is further submitted that once the posts are reserved, then the posts are required to be filled specifically and carried forward. Even for promotional purposes, the benefit of reservation has to be carried out, the posts are to be identified and roster has to be applied. Therefore, appellant is to be considered for promotion from the date when he became entitled and not from the date of 6.1.2018, on which he was granted promotion. The case of appellant is that since the State Government did not identify the vacancies, did not prepare roster, did not carry forward the vacancies and accordingly they denied promotion to appellant from the date when he became eligible that is in the year 2000 and grant of promotion to appellant from 6.1.2018 Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848 4 WA-1772-2025 requires to be modified.
6 As per the return filed by the respondents in the writ petition, learned counsel for the State stated that appellant was promoted to the post of Manager as a matter of exception because the post of Manager was not identified as suitable for disabled persons and now the appellant is seeking promotion on the basis of reservation on a post which has not been identified under Section 33 of the Act of 2016 and until the post is identified, the appellant cannot be promoted, as prayed for and of-course there arises no question of retrospective promotion.
7 Heard learned counsel for the parties and perused the record. 8 An Act has been enacted known as the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with an object to give effect to the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. As per Section 2 (a) appropriate Government means in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, the Central Government and in relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government. Section 32 provides identification of posts which can be reserved for persons with disabilities where appropriate Government (State Government in the present case) shall identify posts, in the establishments, which can be reserved for the persons with disability and at periodical intervals not Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848 5 WA-1772-2025 exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. As per Section 33, 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 (i) blindness or low vision; (ii) hearing impairment;
(iii) locomotor disability or cerebral palsy.
9 It is noteworthy to mention here that the Act of 1995 has been replaced by the Rights of Persons with Disabilities Act, 2016 and the Act of 2016 has now taken care of how to deal with the aspect of reservation in promotion. Section 33 prescribed the procedure for identification of posts for reservation and Section 34 provides for reservation for physically disabled persons provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. 10 The Hon'ble Supreme Court in the case of State of Kerala and others vs. Leesamma Joseph reported in (2021) 9 SCC 208 in the light of provisions contained in the Act of 1995 has considered the issue regarding reservation in promotion for persons with disabilities. The Hon'ble Supreme Court framed the issues and answered the same. The extract of the relevant para is as under :-
"I. Whether the 1995 Act mandates reservations in promotions for persons with disabilities?
14. .......17
18. On examination of the aforesaid plea we find that there is merit in what the learned Amicus Curiae contends and we are of the view that really this issue is no more res integra in view of the judgments of this Court in Union of India v. Ravi Prakash Gupta [Union of India v. Ravi Prakash Gupta, (2010) 7 SCC 626 : (2010) Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848 6 WA-1772-2025 2 SCC (L&S) 448] and Union of India v. National Federation of the Blind [Union of India v. National Federation of the Blind, (2013) 10 SCC 772 : (2014) 2 SCC (L&S) 257] opining that reservation has to be computed with reference to the total number of vacancies in the cadre strength and no distinction can be made between the posts to be filled by direct recruitment and by promotion. Thus, total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination as well as by promotion. In fact, this was the view adopted by the Bombay High Court discussed aforesaid in National Confederation for Development of Disabled v. Union of India [National Confederation for Development of Disabled v. Union of India, 2015 SCC OnLine Bom 5112] with the challenge raised to the same in a SLP being rejected in Union of India v. National Confederation for Development of Disabled [Union of India v.
National Confederation for Development of Disabled, (2015) 13 SCC 643 : (2016) 1 SCC (L&S) 276] . We may note the observations in Rajeev Kumar Gupta v. Union of India [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153 : (2017) 2 SCC (L&S) 605] in para 24 to the effect : (Rajeev Kumar Gupta case [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153 :
(2017) 2 SCC (L&S) 605] , SCC p. 162) "24. ... Once the post is identified, it must be reserved for PwD irrespective of the mode of recruitment adopted by the State for filling up of the said post."
(emphasis supplied) and a direction was issued to the Government to extend 3% reservation to PwD in all identified posts in Group A and Group B "irrespective of the mode of filling up of such posts". 19 to 20 ........
II. Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?
21. On a plea of the learned Amicus Curiae, which we unhesitatingly accept, there can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. In fact, identification of posts for purposes of reservation had to take place immediately after the 1995 Act. A resistance to such reservation is obvious from the delaying tactics adopted by most of the Government authorities in truly implementing the intent. It thus shows that sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset which would endeavour to find ways and means to defeat the intent of the Act enacted and Section 32 was a classic example of the same. In Union of India v. Ravi Prakash Gupta [Union of India v. Ravi Prakash Gupta, (2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] also, this Court mandated the identification of Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848 7 WA-1772-2025 posts for purposes of reservation. Thus, what is required is identification of posts in every establishment until exempted under proviso to Section 33. No doubt the identification of the posts was a prerequisite to appointment, but then the appointment cannot be frustrated by refusing to comply with the prerequisite. This view was affirmed by a larger Bench of three Judges in Union of India v. National Federation of the Blind [Union of India v. National Federation of the Blind, (2013) 10 SCC 772 : (2014) 2 SCC (L&S) 257] .
III. Whether in absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD?
22. The aforesaid issue was raised by the learned Amicus Curiae in the context of the plea of the appellant State that the State does not provide for any reservation in promotion for PwD. Thus, a person with disability would be considered for promotion along with other persons working in the feeder cadre. We have no doubt that the mandate of Section 32 of the 1995 Act enjoins the Government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD. There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. The absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation and in our view, this is the basis of the mandate of this Court in Rajeev Kumar Gupta [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153 : (2017) 2 SCC (L&S) 605] and Siddaraju [Siddaraju v. State of Karnataka, (2020) 19 SCC 572 :
2020 SCC OnLine SC 45] cases.
23. The only caveat to the aforesaid would be if the Government is of the view that the posts in the promotional cadre cannot be reserved for PwD category due to functional or other reasons and that should not be a ruse to defeat the reservation in promotion. We are conscious of the fact that such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability as submitted by the learned Amicus Curiae, more often than not, the disability comes in the way of meeting the requirements for promotion. In such a situation, we would require the Government to explore methods to address the issue of stagnation of PwD.
24. In the aforesaid eventuality, the learned Amicus Curiae has suggested some solutions i.e. (a) to provide promotional avenues in other departments/establishments (where posts are identified for PwD at a higher level), or (b) grant of higher pay in the same post. This is stated to be an obligation flowing from Section 47 of the 1995 Act.
Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:23848 8 WA-1772-2025
25. In the recent judgment of this Court in Vikash Kumar v. UPSC [Vikash Kumar v. UPSC, (2021) 5 SCC 370 : (2021) 2 SCC (L&S) 1] while dealing with the latter 2016 Act, an expansive interpretation has been given to Section 20 read with Section 2(y). The said provisions read as under:
"20. Non-discrimination in employment.--(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.
(3) No promotion shall be denied to a person merely on the ground of disability.
(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:
Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities." "2. Definitions-- * * * (y) "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;"
26.A reading of the aforesaid provisions shows that non- discrimination in employment is a mandate of the legislature. In the context of sub-section (2) of Section 20, where the expression used is "reasonable accommodation" as an aspect to be provided by the Government establishments, this expression has been defined in Section 2(y) to mandate necessary and appropriate modifications and adjustments to ensure that the PwD enjoy or exercise their rights equally with others.
27. We see no reason why a clue cannot be taken from such a line of interpretation and reasoning to carry out the intent of the legislation. Even under the 1995 Act, the rights of PwD, and how they would attain an equal opportunity has been an ongoing exercise blocked by a greater impediment of a social mindset change and the 2016 Act is the result thereof.
After answering all the questions, the Hon'ble Supreme Court Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848 9 WA-1772-2025 concluded in para 31 as under :-
"31. We are of the view that the course of action followed by the High Court in the impugned order is salutary and does not call for any interference. We have also answered various questions which have arisen in the present proceedings assisted by the learned Amicus Curiae. In fact, what seems to emerge is that the appellant State has not implemented the judgment of this Court in Rajeev Kumar Gupta [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153 : (2017) 2 SCC (L&S) 605] and Siddaraju [Siddaraju v. State of Karnataka, (2020) 19 SCC 572 : 2020 SCC OnLine SC 45] cases. Thus, we consider it appropriate to issue directions to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. We are making it time-bound so that the mandate of the Act is not again frustrated by making Section 32 as an excuse for not having identified the post."
1 1 In view of the settled legal position by the Hon'ble Supreme, no distinction can be made between the posts to be filled by direct recruitment and by promotion. Therefore, the State Government is under an obligation to carry out the procedure prescribed under the Act of 1995 as well as under the Act of 2016. Act of 1995 and Act of 2016 are beneficial peace of legislation, therefore, the same has to be acted upon by the State Government with letter and spirit.
1 2 In the present case, the respondents have stated in the reply that the appellant is seeking promotion on the basis of reservation on a post which has not been been identified under Section 33 of the Act of 2016 and until the post is identified, the appellant cannot be promoted. This approach of the respondents is highly insensitive and deplorable. At the one hand, they are not acting upon the provisions contained in the Act of 1995 or the Act of 2016 and on the other hand, denying the relief to the appellant by saying that Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 9/27/2025 2:58:37 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:23848 10 WA-1772-2025 post has not been identified till date and without identification, no relief can be extended.
13 The State Government is under an obligation to comply the Act of 1995 and also Act of 2016 with letter and spirit.
14 In view of the same, we hereby modify the order of learned Writ Court with direction to the State Government to implement the provisions of the Act of 1995 and Act of 2016 in its letter and spirit and while implementing the same, case of the appellant be also considered in accordance with law from due date. The said process be completed by the State Government within a period of four months.
15 With the aforesaid, the writ appeal stands disposed of.
(ANAND PATHAK) (PUSHPENDRA YADAV)
JUDGE JUDGE
ms/-
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 9/27/2025
2:58:37 PM