Allahabad High Court
Bhanu Pratap Singh And Another vs State Of U.P. And Others on 20 January, 2012
Bench: Sunil Ambwani, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 15.12.2011 Judgment delivered on 20.01.2012 Civil Misc. Writ Petition No.43146 of 2010 Bhanu Pratap Singh & Anr. v. State of U.P. & Anr. Hon. Sunil Ambwani, J.
Hon. Manoj Misra, J.
1. We have heard Shri Ashok Khare, Sr. Advocate assisted by Shri Siddharth Khare, for the petitioners. Learned Standing Counsel appears for the State respondents.
2. The petitioners are working as Junior Engineer (Civil) in Public Works Department of the State. The petitioner no.1 was initially appointed as Junior Engineer (Civil) in Rural Engineering Service on 15.11.1997. He was, later on appointed as Junior Engineer in Public Works Department on 23.10.2000. By order dated 9.3.2006 passed by the Superintending Engineer, his services rendered in Rural Engineering Services were directed to be counted in the Public Works Department. The petitioner no.2 was selected for appointment through Public Service Commission U.P. in pursuance to Advertisement No.3 of 1998-99 after receiving the benefit of judgment of this Court in Anil Kumar Agrawal v. State of U.P. & Ors. in which directions were given to re-determine and readjust the quotas for physically handicapped candidates as provided in U.P. Public Services (Reservation for Physically Handicapped, Dependent of Freedom Fighters and Ex-Servicemen) Act, 1993 (U.P. Act No.4 of 1993) as amended by U.P. Act No.6 of 1997 and U.P. Act No.29 of 1999.
3. Both the petitioners were appointed on substantive posts and have completed seven years of service. In this writ petition they have challenged the order dated 5.7.2010 passed by the Principal Secretary, Public Works Department-4, Government of U.P., in compliance with the order dated 9.4.2010 passed by Lucknow Bench of this Court in Writ Petition No.426 (SB) of 2010, Bhanu Pratap Singh v. State of U.P. & Anr., rejecting their representation for providing reservation in promotions for physically handicapped persons in Group A and B in public services in the State.
4. The order reiterates that reservation for physically handicapped to the extent of 3% i.e. for blind or low vision at 1%; hearing loss at 1%, and locomotive disability including cerebral palsy for 1% is provided in direct recruitment in all the A, B, C, D categories of posts. In Group C and D, where direct recruitment is not provided for more than 75% posts, the reservation is provided in promotions at 3% for the same categories. For Group A and B posts, the reservation in promotion is not permissible. Since the post of Asstt. Engineer (Civil) is a Group-B post, the reservation is not provided for physically handicapped persons for promotions to Group-A post.
5. Shri Ashok Khare submits that the U.P. Public Services (Reservation for Physically handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (In short, the UP Act No.4 of 1993), was enacted to provide for reservations to physically handicapped persons in direct recruitment to public services, before the Parliament enacted Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short the Act No.1 of 1996). The U.P. Act No.4 of 1993 was amended by U.P. Act No.6 of 1997 to bring it in consonance with the Act of 1995 and to redefine and recategorise the persons with physical disabilities, also known as physically challenged persons or differently abled persons. The U.P. Act No.4 of 1993 was amended by U.P. Act No.29 of 1999, inserting Clause B-1 to define Group A post or Group B post provided for reservation of dependents of freedom fighter and ex-servicemen in public services at 2% by substituting Clause (i) and Clause (i-a) in place of Clause 1 of sub-section (1) of Section 3 of the Act and substituting sub-section (1) and Section 1-A of Section 5 of the Act, clarifying that the Amendment Act, 1997 shall not apply to cases in which selection process has been initiated before the commencement of the Act of 1997.
6. Shri Ashok Khare submits that the Act No.1 of 1996 and the U.P. Act No.4 of 1993 were enacted to adopt a non-discriminatory approach as well as providing for an affirmative action to the physically disabled persons to compete with the able bodied persons. In the Act No.1 of 1996, Chapter VI relates to employment for persons with disability. It contains provisions for identification of posts, which could be reserved for persons with disabilities and formulating schemes for ensuring employment for persons with disabilities. Chapter VII contains provisions for affirmative action by making special schemes to provide aids and appliances to persons with disabilities and making preferential allotment of land for certain purposes. Chapter VIII relates to non-discrimination. Section 44 deals with non-discrimination in transport. Section 45 deals with non-discrimination on the road, Section 46 deals with non-discrimination in the built environment and Section 47 deals with non-discrimination in government employment. Section 47 reads as follows:-
"47. Non-discrimination in Government employments.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that 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.
(2) No promotion shall be denied to a person merely on the ground of his disability;
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, as may be specified in such notification, exempt any establishment from the provisions of this section. (emphasis supplied)"
7. Shri Ashok Khare submits that the State Government has accepted reservation for disabled persons in direct recruitment for different categories in U.P. Act No.4 of 1993. It has also provided for a procedure and applicability of the roster points in the 100 point roster in Office Memorandum dated 29.12.2005 and 26.4.2006. The State Government has also identified the posts and the manner in which the posts are to be filled by direct recruitment in Office memorandum dated 3rd February, 2008. The State Government has, however, accepted the reservation in promotions only in Group-C and D services and has acted arbitrarily in discriminating the physically disabled persons, who are members of Group ''A' and ''B' services in promotions. He submits that the mandate in Section 47 (2), though couched in negative form, that no promotion shall be denied to a person merely on the ground of his disability, is applicable in view of Section 14, 16 (1) of the Constitution of India and the directive principles contained in Section 38 and 41, to provide promotion by way of affirmative action to the disabled persons. He has relied upon judgment of Punjab and Haryana High court in Viklang Sangh, Haryana v. State of Haryana, CWP No.12741 of 2009 decided on March, 18th, 2010, in which Hon'ble Mr. Justice Mukul Mudgal, the then Chief Justice of Punjab High Court sitting with Mr. Justice Jasbeer Singh, found himself in agreement with the judgment of Delhi High Court in Union of India through G.M., Northern Railway v. S. Jagmohan Singh in Writ Petition No.11818 of 2004 dated 7th December, 2005 and the interpretation given by the Supreme Court to the word ''employment' in the U.P. Public Service Commission v. Girish Jayanti Lal Waghela, (2006) 2 SCC 482. In view of the Supreme Court in this judgment the main object of Art.16 to create a constitutional right to equality of opportunity and employment in public offices. The word ''employment' or appointment covered not merely initial appointment but also other attributes of services like promotion and age of superannuation etc. The Punjab and Haryana High Court allowed the writ petition and while quashing the order of the Under Secretary (General Administration) for Chief Secretary, Government of Haryana dated 23.12.2002, directed the respondents to keep 3% posts reserved for promotion for the disabled by giving them promotions in accordance with the guidelines issued by the Ministry of Personnel dated 20.11.1989.
8. Learned Standing Counsel has relied upon the stand taken in the counter affidavit of Shri S.P. Bharti, Asstt. Engineer, Public Works Department, Gorakhpur in which after referring to Office Memorandum dated 3.2.2008 it is stated that the State Government has not accepted reservation for physically disabled persons in promotion in Group ''A' and ''B' services. The reservation in promotion is provided for physically disabled persons only for Group ''C' and ''D' posts, where the reservation for direct recruitment is not above 75%.
9. In Kunal Singh v. Union of India, (2003) 4 SCC 524 the Supreme Court interpreted the language of Section 47 of the Act of 1995 to be plain and simple casting a statutory obligation on the employer to protect an employee acquiring disability during service. In Union of India v. Sanjay Kumar Jain, (2004) 6 SCC 708, the Supreme Court giving a dynamic interpretation to sub-section (2) of Section 47, held that where a physically disabled person working on Group ''C' post in railways applied for promotion to Group ''B' post, qualified in written test and was directed to undergo medical examination, was found to be medically unfit as he was visually handicapped and was not called for viva voce test, that person, who is otherwise eligible for promotion, shall not be denied promotion merely on the ground that he suffers from a physical disability, which does not affect his performance on duties. The deficiency with which a person function on the lower post will be the same while functioning on a higher post. If the disability affects the discharge of the functions or performance of the higher post, or if the disability would pose a threat to the safety of the co-employees, the members of the public, the employee himself or the assets and equipment of the employer, the promotion cannot be denied. The reasons other than the disability namely the safety, security and performance may be a ground to deny promotions and not the disability by itself.
10. In Union of India v. Devendra Kumar Pant, (2009) 14 SCC 546, a colour blind person having lack of colour perception promoted as Senior Research Assistant in the Research Designs and Standards Organisation (RDSO), Ministry of Railways was denied promotion as he was not given B-1 medical category ''fit' certificate on the ground of colour blindness. The CAT dismissed the claim petition. The High Court found favour with the contention based on Section 47 (2) of the Act and allowed the writ petition holding that in view of Union of India v. Sanjay Kumar Jain (Supra) no person could be denied promotion on the ground of disability. The Supreme Court allowed the appeal on the ground that the medical standards for Senior Research Assistants were fixed in the interest of public safety. The prescription of minimum medical standards of promotion cold not be viewed as denial of promotional opportunity. Section 47 (2) only provides that person, who is otherwise eligible for promotion shall not be denied promotion merely on the ground that he suffers from disability, does not mean that if the disability comes in the way of performing the higher duties and functions associated with the promotional post, the promotion shall not be denied.
11. The Punjab and Haryana High Court in Viklang Sangh, Haryana v. State of Haryana (Supra) relied upon Ajeet Singh & Ors. v. State of Punjab, (1997) 7 SCC 207 and Jayanti Lal Waghela's case (Supra) in which the Supreme Court has held that the words ''employment' or ''appointment' will cover promotion and that in view of Art.38, requiring the State to secure social order for the promotion of welfare of the people and Art.41 the right to work, to adequate and to public assistance in certain cases, held that if the plea of the State for not providing for reservation in promotions to disabled persons is accepted and benevolent legislation is given a restricted meaning, it could lead to stagnation of the disabled at the initial recruitment level and would virtually lead to uncalled for frustration. It was held that the Parliament did not intend to give a token initial representation to the disabled but intended to provide employment with full affluence in career progression by way of promotion.
12. A learned Single Judge of this Court in Shivanand Verma v. State of U.P., Writ Petition No.53801 of 2006 considered the question of reservation in promotions in a different perspective. After considering the object and reasons of the U.P. Act No.4 of 1993 and the Act of 1995 made after adopting the proclamation on the full participation and equality to people with disabilities in Asia and Pacific region in a meeting to launch the Asia and Pacific Decade of Disabled persons, 1993-2002 convened by Economic and Social Commission for Asian and Pacific Region held at Beijing on 1st to 5th December, 1992, after which the Parliament found it necessary to enact a legislation to provide for the social welfare obligation of the State towards prevention of disabilities, protection of right, provisions of medical are, education, training, employment and rehabilitation of persons with disabilities to create barrier free environment to remove any discrimination to counteract in situation of the abuse and exploitation, to lay down strategies for comprehensive development of programme and services and equalization of opportunity for persons with disabilities and to make special provisions for the integration of persons with disabilities into social mainstream, and the relevant provisions of the Act. Upholding validity of both the U.P. Act No.4 of 1993 as well as the Act of 1995, which was also upheld in Full Bench of this Court in Sarika v. State of U.P., (2005) 3 UPLBEC 2217, he held that the Office memorandum dated 18.2.1999 and 20.11.1999 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, cannot override the statutory rules nor can it curtail the content and scope of this substantive provisions of the Act. Consequently once U.P. Act No.6 of 1997 is there, providing for reservation for physically handicapped category candidates, at the stage of direct recruitment, the executive guidelines cannot be permitted to prevail and make way of promotion, which has not been provided.
13. The reservation for physically handicapped persons falls within Clause (1) of Art.16 of the Constitution of India. It has nothing to do with the object and purpose sought to be achieved by reasons of clause (4), thereof. The horizontal reservation to physically disabled persons, provided in U.P. Act No.4 of 1993 and Act No.1 of 1996, in the direct recruitment, is provided with a view to fulfill the constitutional obligation of the State, as also its commitment to the international community. The question of making any further reservation for disabled on the basis of caste, creed or religion ordinarily may not arise as they constitute special class.
14. In Indra Sawhney v. Union of India, (1992) 3 SCC 217 the Supreme Court did not agree with the opinion expressed in General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36, that 'employment' or 'appointment' are wide enough to include the matter of promotion. The nine judge bench held that promotion is not covered by appointment and consequently in order to restore the earlier interpretation a new Clause 4-A was inserted by Constitution (77th Amendment) Act, 1995. The amendment, however, has been confined to class or post in services under the State in favour of Scheduled Castes and the Scheduled Tribes, which, in the opinion of the State, are not adequately represented in the services under the State.
15. In M. Nagraj v. Union of India, (2006) 8 SCC 212 it was held that equality of opportunity has different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action, under which the State is obliged to prove a level playing field to the oppressed classes. The affirmative action in that sense seeks to move beyond the concept of non-discrimination towards equalising results with respect to various groups. Both the concepts constitute 'equality and opportunity'.
16. In Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors., (2011) 1 SCC 467 the Supreme Court held that in respect of reservations in promotions under Art.16 (4-A) and Art.16 (4-B) in respect of Scheduled Castes and Scheduled Tribes candidates, the extension of reservation would depend upon the facts of each case. In paragraphs 62 and 64 the Supreme Court observed:-
"62. The Constitution Bench went on to observe that the Constitutional equality is inherent in the rule of law. However, it's reach is limited because its primary concern is not with efficiency of the public law, but with its enforcement and application. The Constitution Bench also observed that the width of the power and the power to amend together with its limitations, would have to be found in the Constitution itself. It was held that the extension of reservation would depend on the facts of each case. In case the reservation was excessive, it would have to be struck down.
64. Ultimately, after the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution."
17. In the present case there is no empirical data placed on record to demonstrate, nor it appears that any study has been carried out by the State, regarding the representation of physically handicapped persons in various classes of services in the State. In the circumstances, in view of M. Nagraj (Supra), the claim of the physically handicapped persons for reservation in promotion is not sustainable.
18. Sub-section (2) of Section 47 of the Act No.1 of 1996 is couched in negative terms, namely, that no promotion shall be denied to a person merely on the ground of his disability. This would mean that where a person is otherwise found eligible and suitable for promotion, the State shall not deny him promotion on the ground of his disability. In our view the protection given in sub-section (2) of Section 47, cannot be claimed as a right in a positive manner, for reservation for persons suffering with disabilities for promotion.
19. We further find that the consideration for affirmative action, providing reservation for physically handicapped persons under U.P. Act No.1 of 1996 in direct recruitment cannot be extended, interpreting these Acts, to claim a right for reservation, in promotions.
20. The provisions for reservation in promotions, may be provided by the State as a matter of policy. The Courts do not either make policy, or ordinarily interfere with the policy decisions of the State. The Courts would not by interpreting the provisions providing for reservations, provide or cull out a policy favouring reservation for physically handicapped persons for promotion in public services.
21. The demand for reservation in promotions, in such event, will not be confined to the physically handicapped persons. It may be taken up by other disadvantaged groups such as women and privileged groups of dependents of freedom fighters claiming rewards of freedom struggle and ex-army personnel seeking rehabilitation, who have been provided horizontal reservation in public services on the posts to be filled up by direct recruitment.
22. We do not find the reasons given by the Delhi High Court and Punjab and Haryana High Court in directing the reservations to be provided to physically handicapped persons in public services in promotions to be constitutionally permissible, to issue a writ of mandamus to the State Government. The reliance upon Art.14, 16 (1), 38 and 41 is not valid in as much as the fundamental rights under Articles 14 and 16 (i) and Directive Principle of State Policy, do not give any right to claim reservation in promotions by way of affirmative action to the disabled persons. We cannot infer any such rights or obligations within the ambit and the extended scope of the reach of these provisions.
23. The Courts do not interfere and keep away from policy decisions, taken by the State, on the grounds that such considerations, include the empirical study of the representation; the extent of representation and its effect on other groups claiming such rights. The policy matters are left at the discretion of the State, to be considered taking into account the needs of various sections of the society and the balancing to be done between the competing groups.
24. The State Government has provided reservation for physically handicapped persons in promotion to Group- 'C' and 'D' services, which constitute a class by themselves. The reservation provided to them would not, in our opinion, discriminate the physically disabled persons, who are members of Group 'A' and 'B' services. There is no material placed before us to evaluate the allegations of hostile and invidious discrimination with the employees in Group 'C' and 'D' services.
25. The writ petition is dismissed with liberty to the petitioner to make appropriate representation to the State Government.
Dt.20.01.2012 SP/