Gauhati High Court
Rakibul Faruque vs The State Of Assam And 6 Ors on 25 February, 2021
Equivalent citations: AIRONLINE 2021 GAU 139
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/6
GAHC010233342019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7186/2019
RAKIBUL FARUQUE
S/O- A.M FAROOQI, R/O- B.B ROAD, DACCAPATTY, P.S. NAGAON, DIST-
NAGAON, PIN- 782001, ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PERSONNEL
(B) DEPTT.
2:THE COMM. AND SECY. TO THE GOVT. ASSAM
AGRICULTURE DEPTT.
DISPUR
GHY-6
3:THE PRINCIPAL SECRETARY
AGRICULTURE DEPTT.
DISPUR
GHY-06
4:THE DIRECTOR
AGRICULTURE DEPTT.
ASSAM KHANAPARA
GHY-22
5:THE JOINT DIRECTOR OF AGRICULTURE (C/Z)
SHILLONGONI
NAGAON
ASSAM
PIN- 782001
6:THE DISTRICT AGRICULTURE OFFICER
Page No.# 2/6
NAGAON
ASSAM
PIN- 782001
7:THE PERSONNEL DEPTT.
PERSONNEL (B) DISPUR
ASSAM
GHY-0
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 25.02.2021 Heard Mr. R. Mazumdar, learned counsel for the petitioner, Mr. D. Gogoi, learned Govt. advocate appearing for the State respondent nos. 1 and 7 and Mr. S.M.T. Chistie, learned standing counsel for the Agriculture Department, representing respondent nos. 2 to 6.
2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner who is presently posted as Agriculture Development Officer and appointed under physically challenged quota has assailed paragraph 2.1 of the O.M. under Memo No. ABP.180/2017/105 dated 07.01.2019 issued by the Department of Personnel (B) Department, Govt. of Assam. The challenge is made on the ground that the post of Sub-Divisional Agriculture Officer or equivalent post is an identified post for being filled up on promotion by persons in the category of "persons with disability" (PWD for short). However, as per clause 2.1 of the memorandum under challenge, it is provided that the benefits of reservation in promotion of persons with benchmark disabilities will be limited to Grade-III and Grade-IV post only. Therefore, it is projected that in clause 2.1, the fact that the said promotional post is identified for being filled up with PWD was not considered. The relevant para of paragraph 2.1 of the said memorandum is quoted below:
Page No.# 3/6 "2.1 In case of direct recruitment, four percent of the total number of vacancies to be filed up by direct recruitment, in the cadre strength in each group of posts i.e. Grade-I, Grade-II, Grade-III and Grade-IV shall be reserved for persons with benchmark disabilities.
Benefits of reservation in promotion for persons with benchmark disabilities will be limited to the Grade-III and Grade-IV posts only, where four percent of posts shall be reserved for persons with benchmark disabilities of which one percent each shall be reserved for persons suffering from 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 and d) autism, intellectual disability, specific learning disability and mental illness, multiple disabilities from amongst persons under clauses (a) to (d) including blindness."
3. The learned counsel for the petitioner submits that as per paragraph 2.2 of the said office memorandum, it is provided that in respect of the posts identified for each disabilities that one per cent each shall be reserved for persons with benchmark disabilities under clause
(a), (b) and (c) and one per cent under clauses (d) and (e), unless otherwise excluded under the provisions of para 3.
4. It is also submitted that in the affidavit-in-opposition filed by the respondent no. 2, it has been admitted that Class-I post such as "Agriculture Officer" is already identified and included under the list of identified jobs of Government of Assam for PWD. Accordingly, it is submitted that the benefit of reservation has been denied to the petitioner despite having rendered 10 years of service in the post of Agriculture Development Officer. The learned counsel for the petitioner has also referred to the case of Rajeev Kumar Gupta and ors. Vs. Union of India and Ors., (2016) 13 SCC 153.
5. Per contra, the learned counsel for the respondent nos. 2 to 6 has submitted that the said respondents are required to follow office memorandum dated 07.01.2019 and the benefit of promotion to the PWD can only be provided to the employees of Grade-III and Grade-IV posts working under the Government of Assam although some Class-I post such as Page No.# 4/6 Agriculture Officer had been identified and included in the list as identified jobs for Government of Assam for PWD. It is further submitted that in view of the order passed by this Court on 20.09.2019 one post of Sub-Divisional Agriculture Officer has been kept vacant pending further direction of this Court.
6. However, the learned Govt. advocate appearing for respondent nos. 1 and 7 submits that he has recently received written instruction vide forwarding letter dated 12.02.2021 wherein the stand of the Personnel (B) Department is to the effect that although the benefit of reservation and promotion of persons with benchmark disabilities is limited to Grade-III and Grade-IV posts only as per the provisions of O.M. dated 07.01.2019, there is no bar for considering a person with benchmark disabilities on merit basis for promotion to the Grade-I and Grade-II posts also if such person is otherwise eligible as per the relevant Service Rules. However, as per the said instruction, it is clarified that the matter of benefit of reservation in promotion for persons with benchmark disabilities to the identified post only of different cadres in all grades and all posts (where the direct recruitment does not exists 75%) is under process. The photocopy of such instructions as produced by the learned Govt. advocate is kept as a part of record.
7. From the stand taken in the affidavit-in-opposition by the respondent nos. 2 to 6 and the document annexed to this writ petition, there is no doubt that for the promotional post of Sub-Divisional Agriculture Officer or equivalent post, Senior Agriculture Development Officer and/ or Agriculture Development Officer is the feeder post. It is also not in dispute that the post of Sub-Divisional Agriculture Officer is equivalent to Grade-I post. It appears from the Section 33 of the Rights of Persons with Disabilities Act, 2016 that the appropriate government is mandatorily required to identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34. The provisions of Section 34 of the said Act indicates the nature of disability and it is also indicated that persons with such benchmark disabilities would be provided reservation in promotion. It would now be relevant to refer to paragraph 15 and 24 of the case of Rajeev Kumar Gupta (supra), decided by the Page No.# 5/6 Supreme Court of India which is as follows:
"15. The respondent argued that the answer to Q.7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at para 828 must also apply to bar reservation in promotions to IDENTIFIED POSTS of Group A and Group B.
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."
8. In light of the proviso appended to Sub-Section (1) of Section 34 of the 2016 Act, it is seen that the mandate of law is to provide reservation in promotion by providing that it shall be in accordance with such instruction which are issued by the appropriate government from time to time. Therefore, once the post of Sub-Divisional Agriculture Officer or equivalent post is identified to be filled up by promotional amongst PWD, the impugned paragraph 2.1 of the O.M. dated 07.01.2019 limiting the benefit of reservation in promotion to only PWD or Grade- III and Grade-IV would be ultra vires in provisions of Section 34 of the 2016 Act. Hence, in view of the instruction vide forwarding letter dated 12.02.2021, whereby the Personnel (B) Department has instructed to the learned Govt. advocate that there is no bar for considering a person with benchmark disabilities on merit basis for promotion to the Grade-I and Grade-II posts petitioner is otherwise eligible as per the relevant Service Rules appears to be the correct interpretation of Section 34 of the 2016 Act.
9. Accordingly, the Court is of the opinion that if the benefit of reservation in promotion for persons with benchmark disabilities is extended to Grade-I and Grade-II employees along with Grade-III and Grade-IV in respect of identified posts by reading it into the paragraph 2.1 of the O.M. under Memo No. ABP.180/2017/105 dated 07.01.2019, the same would be in consonance with the object of Section 34 of the 2016 Act. Therefore, it is provided that the Sub-paragraph appended to paragraph 2.1 of the O.M. No. ABP.180/2017/105 dated Page No.# 6/6 07.01.2019 would be deemed to allow reservation in promotion for Grade-I and Grade-II posts also, notwithstanding that the challenge is limited in respect of the petitioner for being promoted to Grade-I post.
10. Accordingly, in light of the discussion above, this writ petition stands allowed to the extent as indicated above.
11. Resultantly, the respondent no.2, the Commissioner and Secretary to the Govt. of Assam, Agriculture Department shall now dispose of the representation dated 16.03.2019 (Annexure-6) by passing appropriate order in light of observation made in this order. The said exercise shall be done within a period of 2(two) months from the date of receipt of the certified copy of the order.
12. Needless to say that if the petitioner is found to be entitled to such benefit, steps for granting the consequential benefits to the petitioner shall be initiated forthwith.
JUDGE Comparing Assistant