Bombay High Court
Mr. Sanjay Vinayakrao Upadhye vs State Of Maharashtra Thru Chief ... on 4 July, 2024
Author: M.M. Sathaye
Bench: Nitin Jamdar, M.M. Sathaye
JPP 1 2. WP 192.22 with connected.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 192 OF 2022
Milind Sopanrao Waghmare ... Petitioner
V/s.
The State of Maharashtra and Ors. ... Respondents
with
WRIT PETITION NO. 4747 OF 2022
Dhanashree Bharat Acharya ... Petitioner
V/s.
The State of Maharashtra and Ors. ... Respondents
with
WRIT PETITION NO. 4707 OF 2021
Rajendra Bhanudas Andhale and Ors. ... Petitioners
V/s.
The State of Maharashtra and Ors. ... Respondents
with
WRIT PETITION NO. 4549 OF 2021
Vilas Parashram Pawar ... Petitioner
V/s.
The State of Maharashtra and Ors. ... Respondents
with
WRIT PETITION NO. 1343 OF 2023
Sanjay Vinayakrao Upadhye ... Petitioner
V/s.
The State of Maharashtra and Anr. ... Respondents
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JPP 2 2. WP 192.22 with connected.doc
with
WRIT PETITION NO. 11371 OF 2022
Abhishek Goenka ... Petitioner
V/s.
The State of Maharashtra and Anr. ... Respondents
with
CONTEMPT PETITION NO. 479 OF 2023
Vinayak Hanmantrao Gurav ... Petitioner
V/s.
The State of Maharashtra and Anr. ... Respondents
with
WRIT PETITION NO. 230 OF 2023
Dr. Amit Gopaldas Diswal ... Petitioner
V/s.
The State of Maharashtra and Anr. ... Respondents
Dr. Uday Warunjikar with Siddhesh Pilankar for the Petitioners in
WP 192/22, WP 4747/22, WP 4549/21, 4749/22, 1343/22 & CP
479/23
Mr. Akshay Deshmukh with Mr. Sanket Kadam for the Petitioners in
WP 11371/22 and WP 230/23
Mr. Sugandh Deshmukh for the Petitioner in WP 4707/21
Mr. A.Y. Sakhare, Senior Advocate with Ms. Riya John for
Respondent Nos. 2 to 5 in CP 479/23
Ms. Riya John i/b. Ashok Gade for Respondent Nos. 2 in WP
4749/22 with WP 4747/22
Mr. Vikas Mali, AGP for the Respondent - State in all Petitions
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JPP 3 2. WP 192.22 with connected.doc
CORAM : NITIN JAMDAR &
M.M. SATHAYE, JJ.
DATE : 04 JULY 2024 P.C. :-
This group of Petitions pertain to the right of persons with disabilities to promotions. Since we intend to call upon the State to make it's stand clear, we have reproduced the earlier orders for the purpose of easy references. Several orders have been passed in this group of Petitions. It is not necessary to reproduce all of them. Some which are pertinent for the present order are as follows.
2. The first order was passed on 3 November 2020 in Writ Petition No. 13058 of 2018 which reads thus:-
"Heard learned Counsel for the parties.
2. In Writ Petition No. 10955 of 2016, the Petitioner is visually challenged with over 40% disability. The Petitioner is working as Extension Officer (Education), Class III, Grade II with the Respondent - Zilla Parishad, Ratnagiri. The Petitioner sought promotion to the post of Assistant Block Development Officer, Grade II, Group B, which was denied. The Petitioner filed a Writ Petition which was disposed of on 14 July 2015, directing the Authorities to consider his representation. The Authority rejected his request for promotion on the ground that since the Petitioner is seeking promotion under the category of physically challenged, there were no Rules or Government Resolutions which permit ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 4 2. WP 192.22 with connected.doc reservation in promotion. The Petitioner's representation was rejected on 23 March 2016. The Petitioner filed the present Petition on 20 July 2016, and it is pending. The Petitioner, by this Petition, has prayed for suitable directions regarding his promotion.
3. In Writ Petition No. 13058 of 2018 the Petitioner is working as a Sectional Engineer in the Irrigation Department of State of Maharashtra. The Petitioner is physically challenged with 58% disability. The Petitioner sought promotion to the post of sub-Divisional Officer, which was denied to the Petitioner on the ground that there is no reservation under the Act of 2016 to promotional vacancies. The Petitioner is due to retire on superannuation on 31 May 2021.
4. The Petitioner In Writ Petition No. 13058 of 2018 moved a praecipe on 7 September 2020. Both the Petitions were tagged together. On 15 September 2020, we passed the following order:-
" The hearing of this petition was deferred by order passed on 30 January 2019 in view of the pendency of the Reference to the larger bench made in the Supreme Court on the subject matter. The learned Counsel for the Petitioner states that the decision has now been rendered by the Supreme Court. The learned AGP seeks time to take instructions. Stand over to 29 September 2020."
When the Petition came up on board on 29 September 2020, we passed the following order:-
"Heard.::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 :::
JPP 5 2. WP 192.22 with connected.doc
2. On 15 September 2020, the following order was passed :
" The hearing of this petition was deferred by order passed on 30 January 2019 in view of the pendency of the Reference to the larger bench made in the Supreme Court on the subject matter. The learned Counsel for the Petitioner states that the decision has now been rendered by the Supreme Court. The learned AGP seeks time to take instructions. Stand over to 29 September 2020."
3. Learned AGP States that she had received instructions to take time of six weeks to file reply affidavit.
4. In the present case, a decision on the position of law has been rendered by the Apex Court. This decision, therefore, will have to be considered by the State Government as regards the implementation of the position of law as declared. For that purpose, modalities will have to be worked out. The office of the Government Pleader will place the file of this matter along with the decision of the Supreme Court rendered on 15 January 2020 before the Principal Secretary, General Administration Department, Government of Maharashtra so that the stand of the State is made clear on the next date.
5. Stand over to 27 October 2020."
The reply affidavit filed by the Deputy Secretary, Water Resources Department, Mumbai dated 26 October 2020 was taken on record. It is informed that the proposal for ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 6 2. WP 192.22 with connected.doc providing the reservation in promotion belonging to Group A and Group B (Physically Challenged) is submitted to the Government for placing it before the Cabinet Government for approval.
5. Both these Petitions were pending since the issue was referred to the larger bench in the case of Rajiv Kumar Gupta along with the Review Petition. The Supreme Court has now settled the issue in the case of Siddaraju v/s. State of Karnataka1. The view taken in the case of Rajiv Kumar Gupta is affirmed.
1 2020 SCC OnLine SC 45
6. The Petitioners have filed the additional affidavits placing on record that the Respondent - State is proceeding to fill in the promotional post by initiating the promotion process. In Writ Petition No. 10995 of 2016 the Petitioner has asserted as under:-
" I say that the process for the purpose of appointment by promotion on the B group post is initiated by the Deputy Commissioner (Administration) Konkan Region, Navi Mumbai and written letter to the Chief Executive Officer, Zilla Parishad, Thane Palghar, Raigad, Ratnagiri, Sindhudurg dated 07.09.2020. True copy of the letter dated 07.09.2020 is enclosed herewith and is marked as EXHIBIT-B."
In Writ Petition No. 13058 of 2018 the Petitioner has asserted as under:-
" I say that, in spite of being aware of the law laid down by the Hon'ble Supreme Court, the Respondent No.1 issued the notification on ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 7 2. WP 192.22 with connected.doc 21.10.2020 thereby calling options from their selected officer for the promotion on the post of the Sub-Divisional Officer. Hereto annexed and marked as Exhibit "R-6" is the copy of the Government Notification dated 21.10.2020."
7. The learned AGP states that the matter is pending for consideration before the Cabinet for taking a further decision and seeks six weeks.
8. The Petitions were pending only because a reference to the larger bench was pending before the Supreme Court on the issue. The same has been decided in favour of the Petitioners by the decision in the case of Siddaraju. The Respondent State is bound by this decision. The matter is now stated to be placed before the Cabinet. This would be for working out modalities. However, if the promotion process continues, it would infringe the rights of the Petitioners, physically challenged, now recognized by the Supreme Court. While acceding to the request of the learned A.G.P for adjournment, it would be necessary, to avoid further complications to pass orders that the promotion process regarding the Petitioner's claims are not taken forward till the State Government takes appropriate action.
9. As and by way of an interim order in Writ Petition No. 10955 of 2016, we direct that the process of appointment by promotion to Group-B post initiated by the Deputy Commissioner (Administration) Konkan Region for the post of Assistant Block Officer shall not be finalized till further orders passed in this Petition.
10. Writ Petition No. 13058 of 2018, as and by way of an interim order we direct that the process for selecting officers for the promotion to the post of Sub-Divisional ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 8 2. WP 192.22 with connected.doc Officer in the Irrigation Department, State of Maharashtra shall not be finalized till further orders.
11. List both these Writ Petitions after six weeks i.e. on 15 December 2020.
12. This order will be digitally signed by the Personal Assistant/ Private Secretary of this Court. All concerned to act on production by fax or email of a digitally signed copy of this order."
3. Thereafter, the State Government sought to vacate the interim order and thereupon further order was passed on 15 December 2020 :-
" In W.P. No.10955 of 2016 and W.P. No.13058 of 2018, we had passed an ad-interim order on 3 November 2020. It was noted that the entitlement of the physically challenged, in respect of reservation in promotion has been upheld by the Apex Court and a proposal for working out the modalities for providing such reservation is placed before the Cabinet for approval. By the ad-interim order we had directed the State in the meanwhile not to finalize the promotions in respect of these departments as it would prejudice the rights of the Petitioners.
2. Three more petitions have been filed by identically situated petitioners. An application is taken out for intervention by those government servants who are not physically challenged and want the promotion process to proceed. An application is filed by the State Government for vacating the ad-interim order.::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 :::
JPP 9 2. WP 192.22 with connected.doc
3. As regards the vacating of the ad-interim order granted earlier is concerned, it is to be noted that the State Government has not disputed the entitlement and right of the Petitioners in respect of reservation in promotions and a proposal for working out modalities is placed before the Cabinet for a decision. Since the petitions were adjourned at the instance of the State Government on various dates and no concrete statement was forthcoming, we had to pass the ad-interim order to protect the rights of the physically challenged Petitioners. The promotion process cannot be allowed to go without securing the rights of the Petitioners. Therefore, if the State Government is desirous of speeding up the promotions then the remedy lies in the State Government working out the modalities at the earliest.
4. The learned Counsel appearing for the State Government states that he has received instructions limited to Writ Petition No.13058 of 2018 that certain percentage of the posts will be kept aside for the physically challenged. On a query to the learned Counsel whether the State Government has taken a general decision to keep aside the posts, the learned Counsel for the State Government states that he will have to take instructions. It is quite obvious that an uniform decision will have to be taken otherwise it will lead to complications and further petitions to be filed.
5. To enable the learned Counsel to take instructions and file affidavit in this regard, hearing of these petitions are deferred to 5 January 2021. The ad-interim order granted earlier to continue. As regards the Writ Petition (St) Nos.97023 of 2020, 97030 of 2020 and 98060 of 2020, the ad-interim arrangement in Writ Petition ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 10 2. WP 192.22 with connected.doc Nos.10955 of 2016 and 13058 of 2018 shall also govern these petitions as well."
Then, on 5 January 2021, again another order came to be passed in this group of Petitions as under:-
"Heard the learned Counsel for the parties.
2. In all these petitions, the Petitioners are claiming their right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as being physically challenged.
3. On 3 November 2020, we had passed an order regarding two of these petitions (Writ Petition No. 13058 of 2018 and Writ Petition No.10995 of 2006) as under:
" Heard learned Counsel for the parties.
2. In Writ Petition No. 10955 of 2016, the Petitioner is visually challenged with over 40% disability. The Petitioner is working as Extension Officer (Education), Class III, Grade II with the Respondent - Zilla Parishad, Ratnagiri. The Petitioner sought promotion to the post of Assistant Block Development Officer, Grade II, Group B, which was denied. The Petitioner filed a Writ Petition which was disposed of on 14 July 2015, directing the Authorities to consider his representation. The Authority rejected his request for promotion on the ground that since the Petitioner is seeking promotion under the category of physically challenged, there were no Rules or Government Resolutions which permit reservation in promotion. The Petitioner's representation was rejected on 23 March 2016.::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 :::
JPP 11 2. WP 192.22 with connected.doc The Petitioner filed the present Petition on 20 July 2016, and it is pending. The Petitioner, by this Petition, has prayed for suitable directions regarding his promotion.
3. In Writ Petition No. 13058 of 2018 the Petitioner is working as a Sectional Engineer in the Irrigation Department of State of Maharashtra. The Petitioner is physically challenged with 58% disability. The Petitioner sought promotion to the post of sub-Divisional Officer, which was denied to the Petitioner on the ground that there is no reservation under the Act of 2016 to promotional vacancies. The Petitioner is due to retire on superannuation on 31 May 2021.
4. The Petitioner In Writ Petition No. 13058 of 2018 moved a praecipe on 7 September 2020. Both the Petitions were tagged together. On 15 September 2020, we passed the following order:-
" The hearing of this petition was deferred by order passed on 30 January 2019 in view of the pendency of the Reference to the larger bench made in the Supreme Court on the subject matter. The learned Counsel for the Petitioner states that the decision has now been rendered by the Supreme Court. The learned AGP seeks time to take instructions. Stand over to 29 September 2020."
When the Petition came up on board on 29 September 2020, we passed the following order:-
"Heard.
2. On 15 September 2020, the following order was passed :::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 :::
JPP 12 2. WP 192.22 with connected.doc " The hearing of this petition was deferred by order passed on 30 January 2019 in view of the pendency of the Reference to the larger bench made in the Supreme Court on the subject matter. The learned Counsel for the Petitioner states that the decision has now been rendered by the Supreme Court. The learned AGP seeks time to take instructions. Stand over to 29 September 2020."
3. Learned AGP States that she had received instructions to take time of six weeks to file reply affidavit.
4. In the present case, a decision on the position of law has been rendered by the Apex Court. This decision, therefore, will have to be considered by the State Government as regards the implementation of the position of law as declared. For that purpose, modalities will have to be worked out. The office of the Government Pleader will place the file of this matter along with the decision of the Supreme Court rendered on 15 January 2020 before the Principal Secretary, General Administration Department, Government of Maharashtra so that the stand of the State is made clear on the next date.
5. Stand over to 27 October 2020."
The reply affidavit filed by the Deputy Secretary, Water Resources Department, Mumbai dated 26 October 2020 was taken on record. It is informed that the proposal for providing the reservation in promotion belonging to Group A and Group B (Physically Challenged) is submitted to the Government for placing it before the Cabinet Government for approval.
::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 :::JPP 13 2. WP 192.22 with connected.doc
5. Both these Petitions were pending since the issue was referred to the larger bench in the case of Rajiv Kumar Gupta along with the Review Petition. The Supreme Court has now settled the issue in the case of Siddaraju v/s. State of Karnataka. The view taken in the case of Rajiv Kumar Gupta is affirmed.
6. Petitioners have filed the additional affidavits placing on record that the Respondent - State is proceeding to fill in the promotional post by initiating the promotion process. In Writ Petition No. 10995 of 2016 the Petitioner has asserted as under:-
" I say that the process for the purpose of appointment by promotion on the B group post is initiated by the Deputy Commissioner (Administration) Konkan Region, Navi Mumbai and written letter to the Chief Executive Officer, Zilla Parishad, Thane Palghar, Raigad, Ratnagiri, Sindhudurg dated 07.09.2020. True copy of the letter dated 07.09.2020 is enclosed herewith and is marked as EXHIBIT-B."
In Writ Petition No. 13058 of 2018 the Petitioner has asserted as under:-
" I say that, in spite of being aware of the law laid down by the Hon'ble Supreme Court, the Respondent No.1 issued the notification on 21.10.2020 thereby calling options from their selected officer for the promotion on the post of the Sub-Divisional Officer. Hereto annexed and marked as Exhibit "R-6" is the copy of the Government Notification dated 21.10.2020."::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 :::
JPP 14 2. WP 192.22 with connected.doc
7. The learned AGP states that the matter is pending for consideration before the Cabinet for taking a further decision and seeks six weeks.
8. The Petitions were pending only because a reference to the larger bench was pending before the Supreme Court on the issue. The same has been decided in favour of the Petitioners by the decision in the case of Siddaraju. The Respondent State is bound by this decision. The matter is now stated to be placed before the Cabinet. This would be for working out modalities. However, if the promotion process continues, it would infringe the rights of the Petitioners, physically challenged, now recognized by the Supreme Court. While acceding to the request of the learned A.G.P for adjournment, it would be necessary, to avoid further complications to pass orders that the promotion process regarding the Petitioner's claims are not taken forward till the State Government takes appropriate action.
9. As and by way of an interim order in Writ Petition No. 10955 of 2016, we direct that the process of appointment by promotion to Group-B post initiated by the Deputy Commissioner (Administration) Konkan Region for the post of Assistant Block Officer shall not be finalized till further orders passed in this Petition.
10. Writ Petition No. 13058 of 2018, as and by way of an interim order we direct that the process for selecting officers for the promotion to the post of Sub-Divisional Officer in the Irrigation Department, State of Maharashtra shall not be finalized till further orders.
11. List both these Writ Petitions after six weeks i.e. on 15 December 2020.
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12. This order will be digitally signed by the Personal Assistant/ Private Secretary of this Court. All concerned to act on production by fax or email of a digitally signed copy of this order."
4. Later on 15 December 2020, we had passed an order in Writ Petition (ST) Nos.97023 of 2020, 97030 of 2020 and 98060 of 2020 as follows :
"In W.P. No.10955 of 2016 and W.P. No.13058 of 2018, we had passed an ad-interim order on 3 November 2020. It was noted that the entitlement of the physically challenged, in respect of reservation in promotion has been upheld by the Apex Court and a proposal for working out the modalities for providing such reservation is placed before the Cabinet for approval. By the ad-interim order we had directed the State in the meanwhile not to finalize the promotions in respect of these departments as it would prejudice the rights of the Petitioners.
2. Three more petitions have been filed by identically situated petitioners. An application is taken out for intervention by those government servants who are not physically challenged and want the promotion process to proceed. An application is filed by the State Government for vacating the ad-interim order.
3. As regards the vacating of the ad-interim order granted earlier is concerned, it is to be noted that the State Government has not disputed the entitlement and right of the Petitioners in respect of reservation in promotions and a proposal for working out modalities is placed before the Cabinet for a decision. Since the petitions were adjourned at the instance of the State Government on various dates and no concrete statement ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 16 2. WP 192.22 with connected.doc was forthcoming, we had to pass the ad-interim order to protect the rights of the physically challenged Petitioners. The promotion process cannot be allowed to go without securing the rights of the Petitioners. Therefore, if the State Government is desirous of speeding up the promotions then the / remedy lies in the State Government working out the modalities at the earliest.
4. The learned Counsel appearing for the State Government states that he has received instructions limited to Writ Petition No.13058 of 2018 that certain percentage of the posts will be kept aside for the physically challenged. On a query to the learned Counsel whether the State Government has taken a general decision to keep aside the posts, the learned Counsel for the State Government states that he will have to take instructions. It is quite obvious that an uniform decision will have to be taken otherwise it will lead to complications and further petitions to be filed.
5. To enable the learned Counsel to take instructions and file affidavit in this regard, hearing of these petitions are deferred to 5 January 2021. The ad-interim order granted earlier to continue. As regards the Writ Petition (St) Nos.97023 of 2020, 97030 of 2020 and 98060 of 2020, the ad-interim arrangement in Writ Petition Nos.10955 of 2016 and 13058 of 2018 shall also govern these petitions as well.
5. Today, Writ Petition (ST) No.98876 of 2020 has been added to the group.
6. The learned "A" Panel Counsel for the State Government in WP No.13058 of 2018 WP No.10955 of 2016 and learned AGP appearing in WP(ST) Nos.98876 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 17 2. WP 192.22 with connected.doc of 2020, 97023 of 2020, 97030 of 20 and 98060 of 2020 submitted that the policy matter is still under consideration of the Cabinet and also guidance from the Central Government is sought. It is also informed that application for vacation of ad-interim order has been moved in the Apex Court. The learned "A" Panel Counsel and learned AGP upon instructions from the Administration Department have informed that it is not possible at this stage to keep any specifically earmarked percentage of posts aside, however, with the vacancy position as it is, the right of the Petitioners would not be jeopardized.
7. The learned counsel for the Petitioners in Writ Petition No.10955 of 2016 submitted there is no question of the matter being placed before the Cabinet for taking policy decision as the law has already been declared and only modalities have to be worked out. Learned Counsel has drawn our attention to the order passed by the Division Bench of this Court in Writ Petition No. 10955 of 2016 on 18 April 2018 wherein the statement of the learned Advocate General was recorded that the State Government would initiate process of identifying promotional posts of Group A and Group B in the State Service subject to the outcome of the order passed by the Supreme Court in the case of Siddaraju vs. State of Karnataka and Others.1 The Learned counsel submitted that despite this assurance and that directives have been issued from time to time as per provisions of law, modalities have not been worked out by the Government.
8. Learned counsel for the intervenor submitted that because of the ad-interim order promotion have not been given effect to and some intervenors have retired on superannuation.
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9. We have clarified it in our order dated 15 December 2020 that it is because of the circumstances stated therein , to protect the rights of the physically challenged we had to pass an ad-interim order. We had expected the State Government to file an affidavit to place before us to show how the right of the physically challenged in promotion, now recognized by the Apex Court ,will be protected. No such affidavit is forthcoming. The learned Counsel for the Petitioner is right in contending that there is no question of taking any policy decision but only modalities have to be worked out. In spite assuring the Court in the year 2018 that the modalities will be worked out, nothing has been done. Till the time a positive statement on oath assuring that right of the physical challenged will not be jeopardized and in what manner it will secured, it is not possible to vary the ad- interim order. We had also indicated that an uniform decision will have to be taken as more petitions are being filed raising identical grievances from different departments.
10. As regards the Writ Petition (ST) No.98876 of 2020 which is listed on board today, the ad-interim order /direction granted on 3 November 2020 and 15 December 2020 in the other Petitions not to finalize the promotion process for the post claimed by the Petitioner, shall operate in this Petition as well.
11. We give one more opportunity to the State Government to place on record how it intends to protect the rights of the physically challenged in respect of promotions of Group A and Group B. We expect the State Government to positively place on record by way of an affidavit the steps that the State Government intends to take to ensure that the rights of the physically ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 19 2. WP 192.22 with connected.doc challenged for promotion are not jeopardized or frustrated. Once such an affidavit is placed on record the Court may consider whether to continue the ad-interim order or not.
12. Stand over to 19 January 2021."
4. In all these Petitions, the State's request to vacate the ad- interim order was noted, and the Court had called upon the State to place on record how the right of the Petitioners under physically challenged in respect of promotions will be secured when the State was intending to give promotions to other. When no commitment was forthcoming, the Court declined to vacate the ad-interim order. Thereafter, by further orders passed and the learned Advocate General had appeared, the ad-interim orders were varied, and the further development is noted in the orders passed in the present group of Petition on 28 March 2024, which reads thus:-
" Heard the learned Counsel for the parties.
2. These Writ Petitions raise common questions of law regarding reservation in promotion with benchmark disabilities. The Petitions have been heard from time to time, and various orders have been passed. The State Government has also issued the Government Resolutions. In the order dated 8 February 2024 upon the Petitioners' arguments, we had crystalized the issue to be considered.
3. Broadly, there are three issues. First, the promotion reservation should be based on cadre strength ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 20 2. WP 192.22 with connected.doc or on vacancies at the relevant time of filling up the post. Second, the Government Resolution dated 20 April 2023 should be made retrospective. Third, the action of the State Government in providing promotions to the persons with benchmark disabilities only to the lowest rung of Group' A'.
4. Regarding the first aspect, the learned Advocate General points out that the Petitioner's arguments that the State is not providing four per cent reservation in the vacancies on the cadre strength in each group of posts are entirely misplaced. The Government Resolution dared 20 April 2023 specifically states that it is provided based on cadre strength. The learned Advocate General has also drawn our attention to paragraph 10 and paragraph 17 of the affidavit in reply filed on behalf of the State of the Joint Secretary, General Administration Department. The learned Advocate General reiterates that the Roster is prepared as per Clause 10 of the Government Resolution for the entire cadre, and promotion is to be done accordingly.
5. As regards the second issue regarding the retrospective effect of the Government Resolution, the learned Counsel for the Petitioners has placed on record the latest Office Memorandum issued by the Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Government of India, dated 28 December 2023. The Petitioners point out that the Government of India itself has given the benefit with retrospective effect. The learned Advocate General submitted that the State Government is also in the process of considering a similar retrospective effect as far as the State of Maharashtra is concerned He states that the process and final decision would take some time. We note that in the reply affidavit filed, the State ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 21 2. WP 192.22 with connected.doc Government has primarily relied upon the stand of the Central Government not only on this issue but on other issues as well to follow the same methodology as adopted by the Central Government. That being the position, we find no reason why the State Government should not give retrospective effect in a similar manner as is done by the Union of India.
6. The third issue is on the provision in the Government Resolution dated 20 April 2023, which provides for promotion to the persons with benchmark disabilities till the lowest rung of Group-A post. On this aspect learned counsel have advanced their arguments.
7. The learned Counsel for the Petitioners submitted that in the decisions of the Supreme Court in the cases of Union of India vs. National Federation of the Blind and Ors.1 Rajeev Kumar Gupta vs. Union of India 2 and Siddaraju vs. State of Karnataka & Ors.3 where the Supreme Court has considered the aspect of reservation in promotion for persons with disabilities. It is submitted that the law laid down is clear that the reservation in promotion is a mandate of the statute that is the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The learned Counsel for the Petitioners submitted that it is not contemplated either in the statute or in the law laid down by the Hon'ble Supreme Court that the reservation in promotion should be restricted only to lower rung Group-A posts. It is submitted that in the reply affidavit filed by the Stare Government, there is no rational provided as to why it should be till only the lower rung of Group-A post. Relying on the decision of Rajeev Kumar Gupta vs. Union of India4, the learned Counsels for the 1 (2013) 10 SCC 772 2 (2016) 13 SCC 153 3 (2020) 19 SCC 572 4 (2016) 13 SCC 153 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 22 2. WP 192.22 with connected.doc Petitioners contend that the reason given in the reply affidavit of the State Government equating the reservation in promotion for the persons with disabilities with reservation in promotion for the Scheduled Caste and Scheduled Tribe is wholly incorrect. They submitted that both these reservations are fundamentally different and because certain reservations are not provided for the members of Scheduled Caste and Scheduled Tribe cannot be a basis for denying the same to persons with physical disabilities.
8. The learned Advocate General on the other hand submitted that the decisions relied upon by the Petitioners are based on the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and there is a complete change in the policy with the advent of the Right of Persons with Disabilities Act, 2016. The learned Advocate General submitted that in the reply affidavit, the State Government has justified why the reservation is provided only for the lowest rung of Group-A post. Reference is made to the Miscellaneous Application which the Union of India filed to seek clarification of the judgment in the case of Siddaraju. The learned Advocate General submitted that the State adopts the same reasoning in the Miscellaneous Application No. 2171 of 2020 filed by the Union of India in the Supreme Court for clarification. Copy of the Miscellaneous Application is placed on record.
9. The Miscellaneous Application was considered by the Hon'ble Supreme Court and the same was disposed of by order dated 20 September 2021 stating that there is no ambiguity in the earlier judgment which warrants any clarification and the Union of India is directed to issue instructions regarding reservation in promotion as provided in Section 34 of the Act of 2016. Thereafter, ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 23 2. WP 192.22 with connected.doc the Union of India has issued the office memorandum.
10. The learned Advocate General has placed before us an order passed in Contempt Petition No. 678 of 2020 by the Hon'ble Supreme Court on 5 March 2024 adjourning the proceedings for the learned Additional Solicitor General appearing for the Union of India to obtain instructions on whether the memorandum restricting reservation in promotion to the persons with benchmark disabilities in the lower rung of Group -A post would be contrary to the provisions of the Act of 2016 and the judgments of the Supreme Court.
11. Section 34 of the Act of 2016 contains a proviso that the reservation in promotion for persons with disabilities would be as per the instructions issued by the appropriate government from time to time. We note that the Central Government had first sought clarification and thereafter, has issued an office memorandum and the Hon'ble Supreme Court is seized with the issue of whether providing reservation up to the lower rung of Group-A post alone would be contrary to the Act of 2016 and the judgment of the Hon'ble Supreme Court. The learned Counsel for the parties have not placed before us that the Hon'ble Supreme Court has considered the validity of this stand on the touchstone of the proviso to Act of 2016 and that any definitive decision is rendered. The issue is now under consideration in the above- mentioned proceedings. We note that the Contempt Petition is adjourned till 15 April 2024.
12. Considering the wider implications of the issue, we are of the opinion that at this stage it would be appropriate to defer the hearing. Accordingly, stand over to 27 June 2024 under the caption "For Directions".
13. By the next date we expect that there would be ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 24 2. WP 192.22 with connected.doc progress on the part of the State Government to issue necessary clarifications regarding retrospectivity of the Government Resolution dated 20 April 2023.
14. We also make it clear that if any of the Petitioners are entitled and eligible for promotion as per the present policy of the State Government, then merely because these Petitions are pending, that will not be an impediment to issuing orders of promotion in their favour."
5. As noted in paragraph 13 of the order dated 28 March 2024, it was expected that the State would issue necessary clarification and there would be progress. On 27 June 2024, the learned AGP made a request on instructions to seek a longer time. At that time, the learned Counsel for the Petitioners made a grievance that the promotions were being given to others. Thereupon, an affidavit is tendered by the learned AGP sworn by Sumant Namdevrao Bhange, Secretary (SDC), General Administration Department, wherein various reasons are given, seeking a longer time of two months. Firstly, it states that there was a Model Code of Conduct from 6 June 2024 to 1 July 2024, and it is taking time to make this policy decision. Input from other departments is noted. In short, the general administrative reasons are being put forth.
6. The learned Counsel for the Petitioner has placed before us that on 2 July 2024, the State Government granted promotions in ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 04:41:48 ::: JPP 25 2. WP 192.22 with connected.doc the Public Works Department to almost fifty persons, and none of them are from the physically challenged class. Serious grievances were made that, again, the State Government was bringing back the position, which was noted in the earlier orders in the year 2021, where the rights of the physically challenged were being ignored, and regular promotions were going on. It has been repeatedly stressed by this Court in the earlier order, as above, that a stay to the promotion process in general was granted because no concrete commitment was coming forth from the State.
7. Two issues arise today. First, the request of the State for grant of time to take a decision. Second, the grant of promotions to the others in the meantime. On the first aspect, an affidavit is filed setting out the reason for seeking longer time, but there is no reference as to the promotions being given to others in the meanwhile and how the State Government intends to protect the rights of the physically challenged, such as the Petitioners. Therefore, if the State Government is seeking a longer time, as stated by the Secretary, the Secretary must also state, in the meanwhile how the State will secure the interest of the physically challenged employees who are seeking promotions and how the promotions granted to others will not affect the Petitioners claim. This concrete commitment must come forth from the State, and then we will consider the prayer of the State Government to grant a longer time. Let the affidavit be filed by the Secretary.
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8. Stand over to 11 July 2024 under the caption "For Directions". The affidavit will also address the position as on today because the annexures to the affidavit refers to the position of 24 June 2024.
M.M. SATHAYE, J. NITIN JAMDAR, J.
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