Uttarakhand High Court
Dr. Smt Kamla Chanyal vs State Of Uttarakhand And Another on 29 November, 2016
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 126 of 2015 (S/B)
Dr. (Smt.) Kamla Chanyal ......Petitioner.
Versus
State of Uttarakhand and another ...... Respondents.
Present:
Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mahra, Advocate for the
petitioner.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / respondent Nos.
1 and 2.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
Dated: 29th November, 2016 K.M. JOSEPH, C.J. (Oral) Petitioner has approached this Court seeking the following prayers :-
"i) declare withholding of benefit of reservation to physically disabled persons in the matter of appointment / promotion to posts in department of Higher Education, as arbitrary and illegal.
i-a) issue writ, order or direction in the nature of certiorari for quashing the directives issued vide O.M. dated 10.11.2010 (Annexure No.2 to the writ petition) in so far as it denies benefit of reservation to disabled persons for promotion to Group A & B posts.
i-b) to declare the artificial classification made between Group A & B posts vis-à-vis Group C & D posts for the purpose of reservation in promotion under Section 33 of Act No. 1 of 1996, by Uttarakhand Government vide O.M. dated 10-11-2010, as arbitrary and illegal.
ii) issue a writ, order or direction in the nature of mandamus commanding respondent No.1 to give reservation to disabled persons in promotions in terms of Section 33 of the Parliamentary Act No.1 of 1996 and office memorandum dated 10.11.2010 issued by Government of Uttarakhand.
iii) issue a writ, order or direction in the nature of mandamus commanding respondent No.1 to consider and promote the petitioner to the post of Principal Post Graduate College against a post reserved for physically disabled persons under Section 33 of the Parliamentary Act No. 1 of 1996.
iv) issue a writ, order or direction in the nature of mandamus commanding respondent no.1 to promote the petitioner as Principal Post Graduate College notionally from 12.08.2009, when two Junior persons belonging to SC category were promoted as Principal P.G. College."
2. Briefly put, the case of the petitioner is that petitioner belongs to Scheduled Caste community. She possessed M.A. (Sanskrit) Degree besides Ph.D. in the same subject. She was selected as Lecturer on 01.02.1982 in the Higher Education Department. On 20.04.2000, she came to be promoted as Principal, Government Degree College. The next higher post was Principal of Post Graduate Degree College which is equivalent to the post of Joint Director. Further higher post which is the last post which a person can aspire is the post of Director. The Government of Uttarakhand has issued Office Memorandum dated 10.11.2010. Reference is made particularly to para 14 (H), which deals with the reservation in promotion to Group A & B posts. Petitioner also is physically handicapped person and her left hand is crippled. She can neither move left hand nor can do any work with the said left hand. Reliance is placed on the certificate issued by the Chief Medical Officer, Pithoragarh certifying disability is to the extent of 90%. Seventeen persons were promoted as Principal, Post Graduate College in the year 2009. There were further promotions again in 2014. Petitioner made a representation seeking reservation.
3. We heard Sri Manoj Tiwari, Senior Advocate assisted by Sri Alok Mahra, Advocate for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand.
4. The point which is canvassed before us is the legality of the Memorandum, in so far as it provides that benefit of reservation for physically handicapped will not be available for Group A and Group B posts when it is by way of promotion to the said post. He would submit that matter is no longer res integra as the Apex Court has pronounced on the issue. He relied upon the recent judgment of the Apex Court in Civil Appeal No. 5389 of 2016. Therein, the petitioners were employed with Prasar Bharati Corporation as disabled persons. Therein, the posts were classified into four groups A to D. Each group consists of a number of classes of posts and in each class there were a number of posts. Certain posts were identified by Government of India as posts suitable for being filled up by physically handicapped persons. However, a problem arose in the following fashion :
"5. Memorandum II provides for reservation in favour of PWD to the extent of three per cent in all the IDENTIFIED POSTS in Prasar Bharati, when these are filled up by direct recruitment. However, it provides for three per cent reservation in IDENTIFIED POSTS falling in Groups 'C' and 'D' irrespective of the mode of recruitment i.e. whether by direct recruitment or by promotion. As a consequence, the statutory benefit of three per cent reservation in favour of PWD is denied insofar as IDENTIFIED POSTS in Groups 'A' and 'B' are concerned, since these posts, under relevant regulations of Prasar Bharati are to be filled up exclusively through direct recruitment."
5. The Apex Court proceeded to consider the issue and noted the distinction between reservation under Article 16 (4) of the Constitution of India for backward classes, which is a case of vertical reservation and reservation for the physically handicapped which is horizontal reservation. The Court proceeded to inter alia hold as under :-
"22. The 1995 Act was enacted to fulfill India's obligations under the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region'. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress. The intent is to turn PWD into 'agents of their own destiny'. PWD are not and cannot be equated with backward classes contemplated under Article 16(4). May be, certain factors are common to both backward classes and PWD such as social attitudes and historical neglect etc.
23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act.
24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. 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.
25. In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all IDENTIFIED POSTS in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed."
6. From the aforesaid judgment, we notice the following features. It was a case where the Court was dealing with the action of the Government which had identified certain posts but in terms of Memorandum which was impugned successfully before the Court, 3% reservation was made for the identified posts falling in Group C and D category irrespective of mode of recruitment, namely, whether it is to be filled up by way of direct recruitment or promotion. There was denial of statutory benefit of 3% reservation under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for persons falling in the Group A and B category. It was, in the said context that the Court has proceeded to further hold that irrespective of the mode of recruitment adopted by the State, once a post is identified, it must be reserved for and the Court directed reservation for Group A and B identified posts irrespective of the mode of filling of such posts.
7. If the said dicta is applied to the facts of the case, here also under the impugned Memorandum, in so far as promotion is the mode of recruitment to the post falling in Group A and B and there is denial of reservation to the physically disabled person, it cannot be sustained. The Memorandum, in question, does not square with the law laid down by the Apex Court. We may notice that in the case of Union of India and Another Vs. National Federation of the Blind and others reported in (2013) 10 SCC 772, the Court inter alia has held as follows :
"30) The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In the aforementioned case, the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the inter-dependence of Sections 32 and 33 viz., identification of posts and the scheme of reservation, rejected this contention and held as follows:
"25. .....The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A' and `B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance.
26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.
27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strike sat the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.
* * *
29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
* * *
31. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court."
31. In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Govt. of India Vs. Ravi Prakash Gupta (2010) 7 SCC 626 that Section 32 of the Act is not a precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33. "
8. Accordingly, we quash the impugned Memorandum to the extent that it rules out reservation for physically disabled persons in Group A and B posts for the reason that it is to be filled up by way of promotion. We, also direct the 1st respondent to consider the issue relating to the availability of benefit of reservation to the petitioner in the capacity as physically disabled person in the light of quashing of the order of Memorandum as aforesaid and the law laid down by the Apex Court which we have adverted to within a period of two months from the date of production of certified copy of this judgment.
9. The writ petition stands disposed of accordingly.
(Alok Singh, J.) (K.M. Joseph, C. J.)
29.11.2016 29.11.2016
Shiv