Bombay High Court
Ravindra S/O Shankar Ukey vs Union Of India, Through Its Under ... on 9 July, 2020
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, S.M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.5632 of 2019
Petitioner : Ravindra S/o Shankar Ukey,
Aged about 50 Years,
Occu : Service as Extension Officer (Panchayat),
R/o Warthi, Tah. Mohadi, District Bhandara.
-- Versus --
Respondents : 1] Union of India,
through its Under Secretary,
General Administration Department,
New Delhi.
2] The State of Maharashtra,
through its Secretary,
General Administration Department,
Mantralaya, Mumbai - 400 032.
3] The State of Maharashtra,
through its Secretary,
Rural Development Department, Mantralaya,
Mumbai : 400 032.
4] The Divisional Commissioner,
Nagpur Division, Nagpur.
5] The Chief Executive Officer,
Zilla Parishad, Nagpur.
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Shri A.R. Ingole, Advocate for the Petitioner.
Shri U.M. Aurangabadkar, A.S.G.I. for Respondent No.1.
Shri A.M. Deshpande, Additional Public Prosecutor for Res. Nos.2 to 4.
Shri V.D. Raut, Advocate for Respondent No.5.
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CORAM : SUNIL B. SHUKRE & S.M. MODAK, JJ.
DATE : 9th JULY, 2020.
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ORAL JUDGMENT :- (Per Sunil B. Shukre, J.)
Rule. Rule made returnable forthwith. Heard finally by consent. All the parties are present before the Court. 02] Heard the learned Counsel for the petitioner, who claims benefit of reservation in promotion to Group-B posts, presently he is in Group-C post, which is of Extension Officer, Panchayat Samiti under Zilla Parishad, Nagpur, on the basis of minimum of 3% reservation prescribed for persons with disabilities under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act, 1995' for short). The petitioner places heavy reliance upon the law laid down by the Hon'ble Apex Court in the case of Rajeev Kumar Gupta & others vs. Union of India & others - (2016) 13 SCC 153. Therefore, according to the petitioner, the petitioner is entitled to be promoted to Group-B post on the basis of minimum of 3% reservation as created under Section 33 of the Act, 1995. The learned Counsel for the petitioner submits that this right of the petitioner is being denied to him by the respondents.
03] The claim made in this petition has been opposed by the respondents. Respondent No.4, the Divisional Commissioner, Nagpur ::: Uploaded on - 10/07/2020 ::: Downloaded on - 11/07/2020 02:52:12 ::: wp.5632.19.jud 3 has filed a reply in the matter resisting the petition, in which it is stated on oath that as per the present policy, 3% minimum reservation quota is not available in promotions to the posts falling in Group-A and Group-B categories. Shri Deshpande, learned Additional Government Pleader also invites our attention to the averments made in Paragraph 5 of the reply of respondent No.4, wherein it has been stated that although presently there is no policy of reservation in promotions, an appropriate decision in the matter will be taken in consultation with the Central Government as regards providing for reservation in promotions to the persons with disabilities in Group-A and Group-B categories of posts.
04] We have carefully gone through the law laid down by the Hon'ble Apex Court in the case of Rajeev Gupta (supra), which has been reiterated by the Hon'ble Apex Court in the case of Siddaraju vs. State of Karnataka & others in Civil Appeal No.1567/2017, decided on 14-15th January, 2020. In Rajeev Gupta's case, the Hon'ble Supreme Court has held that before the reservation under Section 33 to an extent of not less than 3% came into operation, there must be completion of the identification exercise under Section 32 of the Act, 1995. Section 32 of the Act, 1995 mandates that appropriate Government shall identify posts in the establishment, which can be ::: Uploaded on - 10/07/2020 ::: Downloaded on - 11/07/2020 02:52:12 ::: wp.5632.19.jud 4 reserved for the persons with disabilities and it further mandates the appropriate Government to review the list of posts so identified and update the list periodically in a span not exceeding three years. So, it is clear that unless the identification exercise as prescribed under Section 32 of the Act, 1995 is over, the mandate of Section 33 providing for reservation of not less than 3% in various posts for persons with disabilities cannot come into operation. For the sake of convenience, we reproduce the law laid down by the Hon'ble Apex Court in the aforestated judgment of Rajeev Gupta as under :
"24. A combined reading of Section 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."
05] Now let us turn to the pleadings made in the petition, as it is necessary for us to know as as to whether or ::: Uploaded on - 10/07/2020 ::: Downloaded on - 11/07/2020 02:52:12 ::: wp.5632.19.jud 5 not the petitioner is sure regarding completion of the identification exercise under Section 32 by the appropriate Government. After all, the petitioner is claiming benefit of the reservations provided for the persons with disabilities under Section 33 of the Act, 1995. On going through the petition, with the assistance of the learned Counsel for the petitioner and also Shri Deshpande, learned Additional Government Pleader, we find that there is absolutely no such pleading made in the petition.
06] Shri Ingole, learned Counsel for the petitioner, at this juncture, has brought our attention to the averments made in Paragraph 17, although he admits that these averments nowhere indicate that identification exercise was completed by the appropriate Government, as required under Section 32 of the Act, 1995. In this paragraph, it is only stated that the petitioner has established an unimpeachable case both on facts and in law, that for the last three years, the petitioner is making all efforts to ensure reservations for physically handicapped candidates in the process of promotions and that the petitioner is suffering in these peculiar circumstances. These pleadings would not support ::: Uploaded on - 10/07/2020 ::: Downloaded on - 11/07/2020 02:52:12 ::: wp.5632.19.jud 6 the case of the petitioner. The mandate of law as laid down by the Hon'ble Supreme Court is quite clear. In order that the reservation under Section 33 of the Act, 1995 come into operation, there must be completion of identification exercise under Section 32 of the Act, 1995. From the reply of respondent No.4 filed on record, it appears that now the State Government has embarked upon some process of taking an appropriate decision on this issue in consultation with the Central Government.
07] If there is no pleading specifically made by the petitioner regarding completion of identification exercise as required under Section 32 of the Act, 1995, we do not think that the petitioner could so emphatically claim that he has established an unimpeachable case of grant of benefit of reservation to him, as provided under Section 33 of the Act, 1995, both on facts and in law. In a case like this, the petitioner ought to have first sought a direction to the Government for completion of identification exercise under Section 32 of the Act, 1995. If the result of such an exercise had been identification of posts suitable to be filled up in Group-B category by persons with disabilities, the petitioner ::: Uploaded on - 10/07/2020 ::: Downloaded on - 11/07/2020 02:52:12 ::: wp.5632.19.jud 7 would have been further entitled to claim a relief, which he has made in the present petition, albeit prematurely. After all, it is not necessary that each and every post falling in Group-B category or for that matter in Group-A category, would be identified by the appropriate Government as suitable for being filled up through promotion by a person with disability. As such, we find that, at this stage, the petitioner would not get any benefit of law as laid down by the Hon'ble Apex Court. In this view of the matter, we find that the petition is devoid of merit and it deserves to be dismissed.
08] The petition stands dismissed. No costs. Rule is discharged.
09] This order be communicated to the learned Counsel appearing for the parties, either on the email address or on WhatsApp or by such other mode, as is permissible in law.
(S.M. Modak, J.) (Sunil B. Shukre, J.)
*sandesh
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