Himachal Pradesh High Court
Hill vs State Of on 21 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 21st DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.5187 of 2019
Between:
SHRI KARAM CHAND SHARMA, SON OF SHRI
BALDEV RAJ SHARMA, RESIDENT OF
HARSHIT COTTAGE, ANDRI, LOWER SUMMER
HILL, TEHSIL AND DISTRICT SHIMLA,
HIMACHAL PRADESH.
....PETITIONERS
(BY MR. J.L. BHARDWAJ AND MR. SANJAY
BHARDWAJ, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (EDUCATION) TO
THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (PERSONNEL) TO
THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
3. DIRECTOR OF HIGHER EDUCATION,
DIRECTORATE OF EDUCATION, HIMACHAL
PRADESH, SHIMLA, HP.
4. SHRI PARVESH KUMAR SON OF SHRI NOT
KNOWN TO THE APPLICANT, POSTED AS
PRINCIPAL, AT GOVERNMENT SENIOR
SECONDARY SCHOOL, KARYUNGI,
DISTRICT CHAMBA, HP AS PER OFFICE
ORDER DATED 23.12.2014 THROUGH
RESPONDENT NO.3.
....RESPONDENTS
(MR. MR. SUDHIR BHATNAGAR,
ADDITIONAL ADVOCATE GENERAL WITH
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2
MR. SUNNY DHATWALIA, ASSISTANT
ADVOCATE GENERAL)
.
This petition coming on for orders this day, the Court passed the following
ORDER
Petitioner herein was offered appointment as lecturer (school cadre) in the subject of History under the Physically Challenged Category and sequel to aforesaid appointment order, petitioner joined his duties at Government Senior Secondary School, Junga, District Shimla, Himachal Pradesh and till date, he has been serving the respondents in the aforesaid capacity. Since provision contained under the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provided for 3% reservation to persons or classes of persons with disability and the petitioner was having 40% disability permanent in nature, he made a representation to the respondents to grant him benefit of reservation in promotion to the post of Principal. However, fact remains that aforesaid prayer was not paid any heed and as such, has approached this Court by way of Civil Writ Petition 7769 of 2014, titled as Karam Chand Sharma versus State of H.P. and others, which came to be disposed of vide order dated 21.10.2014(Annexure A-4), thereby directing the respondent-State to decide the representation dated 7th October, 2014 filed by the petitioner in time bound manner. Pursuant to aforesaid order passed by Division Bench of this Court, respondent-State passed detailed speaking order dated 25.11.2014 (Annexure A-8), thereby rejecting the representation of the petitioner on the ground that ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 3 there is no provision for providing reservation in promotion to the physical challenged incumbents working in the H.P. Government.
.
2. Being aggrieved and dissatisfied with the aforesaid order dated 25.11.2014 (Annexure A-8), petitioner approached erstwhile H.P. State Administrative Tribunal by way of Original Application No. 1866 of 2015, which now on account of abolishment of erstwhile H.P. Administrative Tribunal, came to be transferred to this Court and stands re-registered as CWPOA No.5187 of 2019, praying therein for following reliefs:-
"i) That respondents No.1 to 3 may kindly be directed to provide 3% reservation for promotion to the post of r Principal (school cadre) from the posts of Lecturer as per Section 33 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 as well as per the decision of the Hon'ble Apex Court and further the application may kindly be promoted to the post of Principal (school cadre) w.e.f.23.12.2014, when other persons have been promoted to the post of Principal (School cadre) and further the applicant may be assigned the seniority above the respondent No.4 and justice be done.
ii). That the impugned order dated 25.11.2014 passed by the respondent No.1, thereby rejecting the representation which is against the decision of the Hon'ble Apex Court may kindly be quashed and set-aside.
iii) That the respondents No.1 to 3 may further be directed to release the all consequential benefits in favour of the applicant w.e.f.. 23.12.2014 on the post of Principal (School cadre) and further the arrears may kindly be directed to the paid to the applicant of the difference of the salary of the lecturer (school cadre) and Principal (school cadre) alongwith interest @9% per annum from ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 4 due date i.e.23.12.2014 till its realization and justice be done."
3. Precisely, the question which has fallen for adjudication in the .
case at hand is that "whether person having physical disability is entitled to the benefit of reservation in promotion or not?" Aforesaid question formulated by this Court is no more res-integra, rather stands duly adjudicated by the Hon'ble Apex Court in case of Siddaraju versus State of Karnataka and others (2020) 19 Supreme Court Cases 572, wherein direction came to be issued to the States to provide reservation to the Persons with Disability in the matter of promotion. However, order passed by the Hon'ble Apex Court could not be given effect immediately for want of certain clarification. Vide order dated 25.09.2020, this Court directed the respondents to have fresh instructions with regard to implementation of aforesaid judgment passed by Hon'ble Apex Court.
On 13.10.2020, learned Additional Advocate General placed on record communication dated 8th October, 2020 received from the Joint Secretary (Personnel) to the Government of Himachal Pradesh, perusal whereof revealed that State Government did not identify any promotional posts of Class-I, II, III & IV to be kept reserved for Persons with Disabilities and as such, not issued any instructions under proviso to Section 34(a) of the Rights of the Persons with Disabilities Act, 2016 with regard to provision of reservation in promotion to the persons with benchmark disabilities, after passing of judgment by Hon'ble Apex Court in Siddaraju case(supra). In the aforesaid communication, respondents stated that State Government vide Department of Personnel's letter No. PER(AP-C-F(4)-1/2020) dated 22.06.2020, has issued detailed instructions for ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 5 computation of reservation in direct recruitment for Persons with Disabilities in Class-I, II, III & IV posts in an identical manner. On 19.11.2020, while placing .
on record communication dated 13.11.2020, issued under the signatures of Joint Secretary (Personnel) to the Government of Himachal Pradesh, learned Additional Advocate General apprised this Court that State Government intends to consult the Government of India and a few States, particularly the Northern States and as such, this Court adjourned the matter. Again on 9.8.2021, this Court was informed that the Department has filed an application for clarification in the Hon'ble Apex Court on 28.09.2020 in the matter of Siddaraju case (supra).
4. Today, during the proceedings of the case, learned Additional Advocate General placed on record communication dated 11th July, 2022 received from Deputy Secretary (Personnel) to the Government of Himachal Pradesh enclosing therewith instructions issued by the Chief Secretary to the Government of Himachal Pradesh vide communication dated 6th July, 2022 for providing quantum of 3%reservation to the persons with benchmark disabilities.
Aforesaid communication is taken on record, perusal thereof reveals that Government of Himachal Pradesh while accepting the mandate issued by Hon'ble Apex Court in Siddaraju case (supra) has issued guidelines providing therein fixed quota of reservation in promotion for the persons with benchmark disabilities.
5. Learned Additional Advocate General after having perused the aforesaid communication though fairly admitted that person with benchmark disabilities is entitled for reservation in promotion, but claimed that such benefit ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 6 should be given from the date of notification dated 6th July, 2022 issued by the Government of Himachal Pradesh in this regard. However, aforesaid .
submission made on behalf of learned Additional Advocate General deserves outright rejection. Prior to pronouncement of judgment in Siddaraju case (supra), similar issue was decided by Hon'ble Apex Court in case titled Rajeev Kumar Gupta & others versus Union of India and others (2016)13 SCC 153, wherein Hon'ble Apex Court had already held that reservation to the person with benchmark disabilities would be applicable in promotion also.
Lateron, matter came to be referred to the larger Bench expressing an opinion that this would go against the larger bench decision in Indira Sawhney vs. Union of India, 1992 Supp (3) SCC 217. A three Judges Bench in Siddaraju versus State of Karnataka and others (2020) 19 Supreme Court Cases 572, affirmed that such reservation is applicable to the promotions.
6. In Siddaraju case (supra) law laid down in Union of India versus National Federation of Blind (2013) 10 SCC 772 and Rajiv Kumar Gupta and others versus Union of India and others came to be reiterated and as such, claim of the petitioner, if otherwise eligible, is required to be considered from the date of passing of the judgment in Union of India versus National Federation of Blind.
7. During the proceedings of the case, learned counsel representing the petitioner invited attention of this Court to the judgment passed by Kerla High Court in Leesamma Joseph versus State of Kerala and others, decided on 9th March, 2020, wherein similar issue with regard to date of applicability arose and High Court of Kerala taking note of earlier judgment ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 7 rendered by Hon'ble Apex Court in Rajiv Kumar Gupta's case(supra) ruled that applicant should be considered for promotion based on the disability at the .
time when his/her claim originally arose; subject to her seniority with reference to other physically challenged candidates entitled for such reservation.
Aforesaid judgment subsequently came to be laid challenge before the Hon'ble Apex Court by way of Civil Appeal No.59 of 2021, titled as The State of Kerala and others versus Leesamma Joseph reported in (2021) 9 Supreme Court Cases 208, wherein Hon'ble Apex Court while upholding the judgment passed by Kerala High Court took strong exception for non-implementation of the judgments passed in Rajeev Kumar Gupta's and Siddaraju's case (supra), issued direction to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts within a period of three months.
It would be profitable to reproduce para Nos. 8,19,22, 28 to 31 of the aforesaid judgment hereinbelow:-
"8. The Tribunal took into account the judgment of this Court in Union of India vs. National Federation of the Blind (2013) 10 SCC 772 to opine that the issue dealt with thereunder was whether 3% reservation was to be applied in reference to vacancies in a particular post arising from time to time, or the cadre strength of that post. In that context, it was opined by this Court that reservation was to be applied with reference to vacancies. The absence of any observations regarding reservation in promotion was noticed. The judgment of the Bombay High Court in National Confederation for Development of Disabled and Anr. vs. Union of India, 2015 SCC online Bom.5112, which directed benefit of reservation in matters of promotion was also examined; but it was opined that the rules of recruitment in the State of Kerala, General ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 8 Rules and other orders issued by the Government under Section 32 of the 1995 Act did not provide for any reservation in promotions. Thus, the application before the Tribunal was .
dismissed.
19. Learned Amicus Curiae has rightly pointed out the two preliminaries for operationalising the said provision, i.e. there has to be rules providing for promotion from the feeder cadre to the provisional post as there cannot be promotions even for the PwD de hors the rules as a singular benefit. The requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre.
22. The aforesaid issue was raised by 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's and Siddaraju's cases (supra).
28. If we may say so, this was the most crucial issue which persuaded us to grant leave in the SLP. The direction in the impugned order was for the respondent to be considered for the ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 9 promotion based on disability at the time when the claim originally arose, but subject to her seniority with reference to other PwD candidates entitled to such reservation. She was also held entitled .
to the notional benefits of her promotion from the date she was so found entitled. In the factual context, it has been pointed out by learned Amicus Curiae that the respondent had claimed a promotion to the post of UDC with effect from 1 st July, 2002 and further to the post of Cashier with effect from 20 th May, 2012. The endeavour of the Amicus Curiae was to obtain necessary information from the appellant-State and to seek their response. In this behalf, it has been pointed out that The Ministry of Social Justice and Empowerment in the Department of Empowerment of Persons with Disabilities (Divyang), Government of India has undertaken a very comprehensive exercise of identifying posts which can be reserved for PwD and the list of such posts are available on the website. From that it appears that the post of UDC/Cashier would be amenable to reservation for PwD and thus there can be little doubt that the respondent has been capable of discharging functions of the promotional post and thus could not be denied the benefit of reservation (even if Rules do not provide for any reservation in promotion) as repeatedly observed by us that Section 32 of the 1995 Act is to facilitate but not to impede the legislative mandate.
29. Now coming to the question of the respondent not being initially appointed in the quota for PwD in the feeder cadre, we note that there is no dispute about the benchmark disability of the respondent. It would be discriminatory and violative of the mandate of the Constitution of India if the respondent is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed, she is to be identically placed as others in the PwD cadre. The anomaly which would arise from the submission of the appellant-State is apparent - a person who came in through normal recruitment process but suffers disability after joining service would on a pari materia position be also not ::: Downloaded on - 28/09/2022 20:01:31 :::CIS 10 entitled to be considered to a vacancy in a promotional post reserved for a PwD. This is the consequence if the entry point is treated as determinative of the entitlement to avail of the benefits.
.
Source of recruitment ought not to make any difference but what is material is that the employee is a PwD at the time for consideration for promotion. The 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service. Similarly, the same position would be with the person who may have entered service on a claim of a compassionate appointment. The mode of entry in service cannot be a ground to make out a case of discriminatory promotion.
SOME VIEWS OF THE HIGH COURT
30. Mr. Gaurav Agrawal, learned Amicus Curiae through the note also pointed out different views of the High Court 30.1. Poonam Manchanda vs. Union of India 2019 SCC online P&H 2710- The Punjab and Haryana High Court while dealing with the case of the petitioner having 70% disability noticed that she had been appointed as Assistant Accounts Officer in 1999 and promoted as Accounts Officer in 2007. On both occasions she did not claim reservation but was considered in general category. The next post was that of Senior Accounts Officer and she claimed promotion on roster No. 1 earmarked for PwD. The Rules did not provide for reservation for PwD in promotion to Group A and Group B posts. The High Court granted relief relying upon Rajeev Kumar Gupta's case (supra) and directed that the petitioner be considered for promotion under 3% reservation provided for PwD.
30.2 Union of India vs. Poonam Manchanda, Civil Appeal 6092 of 2019- An appeal was filed before this Court was dealt with along with a batch of matters of which judgment was delivered in Siddaraju's case (supra).
::: Downloaded on - 28/09/2022 20:01:31 :::CIS 1130.3 Kamla Chanyal vs. State of Uttarakhand, 2016 SCC onlilne Utt.2496:- The Uttarakhand High Court once again relying upon the judgment in Rajeev Kumar Gupta's case (supra) quashed an OM to .
the extent that it ruled out reservation for PwD in Group A and B posts and directed the Government to consider the issue relating to the availability of benefit of reservation to the petitioner therein in the capacity as PwD. We may note that as per the solution of learned Amicus Curiae, the Chief Commissioner for Persons with Disabilities [Divyangjan], Government of India receives a number of complaints regarding non-grant of promotion to PwD in Group A and B posts by denying them benefit of reservation in promotion. In B. Uma Prasad vs. Chief Executive Officer, EPFO, the Chief Commissioner noticed that the complainant was not being given reservation in promotion to Group B post and recommended that the respondent may give promotion to persons with benchmark disabilities in all posts, including Group A and Group B posts.
CONCLUSION
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 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's and Siddaraju's cases(supra). 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 exercises should 14 A case before the Chief Commissioner for Persons with Disabilities (Divyangjan), Govt. of India 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.
::: Downloaded on - 28/09/2022 20:01:31 :::CIS 128. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in .
the present petition and same is allowed and impugned order dated 25.11.2014 is quashed and set-aside and respondents are directed to consider the candidature of the petitioner for promotion to the post of Principal against 3% quota reserved for promotion to the person with benchmark disabilities expeditiously, preferably within a period of four weeks. Needless to say, the claim of the petitioner shall be considered from the due date i.e. 23rd December, 2014 alongwith all consequential benefits. Pending applications, if any, also disposed of.
21st September, 2022 (Sandeep Sharma),
(shankar) Judge
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