Himachal Pradesh High Court
Bharat Bhushan vs State Of H.P. & Others. on 24 November, 2022
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
Bharat Bhushan Vs State of H.P. & others.
.
CWP No. 8150 of 2022 24.11.2022 Present: Mr. Adarsh Kumar Vashista, Advocate, for the petitioner.
Mr. Yudhvir Singh Thakur, Deputy Advocate General, for respondent Nos. 1 to 3.
Mr. J.S. Bagga, Advocate, for respondent Nos. 4 & 5. CWP No. 8150 of 2022 The petitioner is stated to be a disabled person belonging to the Scheduled Caste community having locomotor disability to the extent of 80% and is employed with respondent No. 4- Kangra Central Co-operative Bank.
2. It is the case of the petitioner that he is being denied promotion to the post of Grade-I from the post of Grande-II against roster point for persons with benchmark disability under the Rights of Persons with Disabilities Act under which reservation is provided to the extent of 4%. It is contended that the exercise of promotion is presently being carried out in the respondent No. 4-Kangra Central Co-
operative Bank, without any reservation to the persons with benchmark disability and without adhering to the mandate of Sections 33 & 34 of the Rights of Persons with Disabilities Act, 2016. Sections 33 & 34 of the said Act read as follows:
"33. Identification of posts for reservation.- The appropriate Government shall-
(i) identify posts in the establishments which can be held by respective category of persons ::: Downloaded on - 25/11/2022 20:32:37 :::CIS with benchmark disabilities in respect of the .
vacancies reserved in accordance with the provisions of section 34;
(i) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years.
34. Reservation. (1) Every appropriate Government r shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent, each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and
(e), namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-
blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such ::: Downloaded on - 25/11/2022 20:32:37 :::CIS instructions as are issued by the appropriate .
Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:"
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.
(3) The appropriate Government may, by notification, provide for such relaxation of ::: Downloaded on - 25/11/2022 20:32:37 :::CIS upper age limit for employment of persons with .
benchmark disability, as it thinks fit."
3. Notice. Mr. Yudhvir Singh Thakur, learned Deputy Advocate General, accepts notice on behalf of respondent Nos.
1 to 3 and Mr. J.S. Bagga, Advocate, accepts the same on behalf of respondent Nos. 4 & 5.
4.
5.
r to Let respondents file reply before the next date.
Stand over for three weeks.
CMP No. 16416 of 20226. We direct that no promotions shall be made unless leave of the Court is obtained. The application to stand disposed of accordingly.
( A.A. Sayed )
Chief Justice
November 24, 2022 ( Jyotsna Rewal Dua )
(hemlata) Judge
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