Bombay High Court
Shri. Rajendra Bhanudas Andhale And Ors vs State Of Maharashtra And Ors on 28 March, 2024
Author: M.M. Sathaye
Bench: Nitin Jamdar, M.M. Sathaye
JPP 1 401. WP 192.2022 with connected- 28.03.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 2 401. WP 192.2022 with connected- 28.03.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
Mr. Akshay Deshmukh with Mr. Sumit Chaudhary for the
Petitioners in WP 11371/22 and WP 230/23
Dr. Uday Warunjikar for the Petitioners in WP 192/22, WP
4747/22, WP 4549/21
Mr. Ashok Gade with Ms. Riya John for Respondent No.2 with Mr.
Swapnil Salunkhe, Senior Manager (HR) MSETCL in WP 4747/22
and WP 4749/22
Mr. A.Y. Sakhare, Senior Advocate i/b. Ashok Gade and Ms. Riya
John for Respondent Nos. 2 to 5 with Mr. Swapnil Salunkhe, Senior
Manager (HR) MSETCL in CP 479/23 with WP 4749/22 with WP
4747/22
Dr. Birendra Saraf, Advocate General with Mr. P.P. Kakade, Govt.
Pleader with Mr. Jay Sanklecha, 'B' Panel Counsel with Mr. Vikas
Mali, AGP for the State
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JPP 3 401. WP 192.2022 with connected- 28.03.doc
CORAM : NITIN JAMDAR &
M.M. SATHAYE, JJ.
DATE : 28 MARCH 2024 P.C. :-
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 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 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 14/04/2024 18:45:33 ::: JPP 4 401. WP 192.2022 with connected- 28.03.doc 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 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 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 14/04/2024 18:45:33 ::: JPP 5 401. WP 192.2022 with connected- 28.03.doc 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 India2 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 1 (2013) 10 SCC 772 2 (2016) 13 SCC 153 3 (2020) 19 SCC 572 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 14/04/2024 18:45:33 ::: JPP 6 401. WP 192.2022 with connected- 28.03.doc 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 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 4 (2016) 13 SCC 153 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 14/04/2024 18:45:33 ::: JPP 7 401. WP 192.2022 with connected- 28.03.doc 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, 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 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 14/04/2024 18:45:33 ::: JPP 8 401. WP 192.2022 with connected- 28.03.doc 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 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 ::: Uploaded on - 04/04/2024 ::: Downloaded on - 14/04/2024 18:45:33 ::: JPP 9 401. WP 192.2022 with connected- 28.03.doc State Government, then merely because these Petitions are pending, that will not be an impediment to issuing orders of promotion in their favour.
M.M. SATHAYE, J. NITIN JAMDAR, J.
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