Punjab-Haryana High Court
Sukhmandar Singh vs Punjab State Power Corporation Ltd And ... on 23 August, 2024
Neutral Citation No:=2024:PHHC:109250
CWP-20174-2023 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
WP-20174-2023 (O&M)
C
Date of decision: 23.08.2024
Sukhmandar Singh
....Petitioner
Versus
Punjab State Power Corporation Limited and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present : Mr. Pawan Kumar, Senior Advocate with Ms. Vidushi Kumar and Ms. Parul Dhingra, Advocates for the petitioner Ms. Sukriti Gupta, Advocate for respondent No.1 and 2 Mr. Manipal Singh Atwal, DAG, Punjab r. R. Kartikeya and Mr. R. Akanksha, Advocates M for the applicant in CM-9113-CWP-2024 ***** AMAN CHAUDHARY, J. 1. The prayer in the present petition is for directing the respondents to consider the petitioner for promotion to the post of Chief Engineer(Electrical)in the4%quotareservedforpersonswithdisabilityasperSection34oftheRightsof Persons with Disability Act, 2016 (hereinafter referred to as '2016 Act'). 2. Asisevident,thepetitionerhadacquiredhearingdisabilitywhich,on getting reverified under directions of the respondent-Corporation by AIIMS, Bathinda, was assessed as 54.275%. In the Departmental Promotion Committee meeting held on 29.07.2023, R1/1, he was considered and approved for promotion. 3. This Court, while issuing notice of motion on 14.09.2023, passed an interim direction not topromoteanyonetothepostinquestionunderthecategory of physicallyhandicapped,duringthependencyofthepresentpetition,whichwas 1 of 33 ::: Downloaded on - 25-08-2024 04:36:46 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 2 modifiedon19.01.2024totheextentthatCorporationwasfreetomakepromotion tothepostofChiefEngineerexceptthatofElectricalindisabledcategorytowhich the petitioner belongs and that his promotion shall be made with effect from the date the others had been promoted, in pursuance of recommendation of the DPC heldon29.07.2023.Thereafter,asisreflectedfromtheorderdated07.05.2024,the learned Advocate General, Punjab had submitted that the promotion of the petitioner considered in DPC to the post of Chief Engineer has not been given effect to due to clarification as sought by the Corporation beingpendingwiththe Government, which shall be finalized immediately on lifting of Model Code of Conductandintheinterregnumheshallbegivenofficiatingchargeofthesaidpost, already kept vacant for him, which this Court directed to be done forthwith. 4. The premise of the respondent-Corporation to not issue orders promoting the petitioner is that the clarification had been sought by it on 20.06.2023, on the following points, response thereto is awaited: "1. Whethertheofficeralreadyworkinginthedepartment,if he becomes disabled during service (while performing duty), can he be promoted on the basis of reservation of disabled category or not? (Instructions should also be made available) 2. Whether the officers already working in the department, if they become disabled in the course ofservice(butnotwhile on duty), can they be promoted on the basis of reservation of disabled category or not? (Instructions should also be made available, please) 3. Whether any disabled officer was appointed in the departmentonhisownmeritbefore1997(i.e.beforereservation ofdisabledcategoryindirectrecruitmentinclassAandB)and 2 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 3 hehadsubmitteddisabilitycertificateatthetimeofrecruitment, inthelightofInstructions-2019(ParaNo.6and7),heshouldbe promoted as Chief Eng./Elec. under reservation of disabled category or not? 4. Whether a disabled officerwasappointedonhismeritin thedepartmentpriorto1997(i.e.beforereservationofdisabled category in direct recruitment in class A and B), but his disability is not identified for further promotion, then such officer can be promoted to the next post on the basis of reservation? It is issued with the approval of the competent authority." 5. In view of the above, it would be apt to also refer to a letter dated 17.04.2023 of Power Department, Annexure P-15, in particular to information sought at Sr.No.1 as relevant to the present case, which reads thus: Sr. Information sought Response / No. Clarification 1. If the employees who are Inthisregard,the already in service acquire a instructions disability during their service issued by the (while doing their duty), then Government of can they be given reservation in India, Personnel promotionornot?(pleasesupply and Training the relevant instructions) Department vide letter 2. If the employees who are 3 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 4 already in service acquire a no.36035/3/2009- disability during their service Estt. (Rules) (but not while doingtheirduty), dated10.06.2009, then can they be given whether to be reservation in promotionornot? adopted or not (please supply the relevant are still pending instructions) consideration. 6. The aforesaidInstructionsdated10.06.2009issuedbyGovernmentof India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training North Block, read thus: "Subject: Benefit of reservation to persons with disability who acquire disability after entering into Govt. service. 1. The undersigned is directed to say that various Ministries/Departmentshavebeenseekingclarificationwhether apersonwhoacquiresdisabilityafterenteringintoGovt.service shallgetthebenefitofreservationinservicesasprovidedinthis Department's OM No.36035/3/2009-Est.(Res.) dated 29.12.2005. 2. It is hereby clarified that the OM dated29.12.2005does not make any distinction between persons acquiring disability beforeorafterenteringintoservice.Anemployeewhoacquires disability after entering into service will be entitled to get the benefit of reservation asapersonwithdisabilityasprovidedin the instructions contained in the above referred OM from the 4 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 5 date he produces a valid certificate of disability. 3. All Ministries/Departments etc. are requested to bring it to the notice of all establishments under their control." 7. The Government of Punjab issued Instructions dated 03.10.2019 in termsofthe2016Act,underwhichthepetitionerisclaiminghisrightofpromotion under the 4% quota ofdisabledgrantedforGroupA,B,CandDposts,hefalling under type-2 i.e. category of deaf and hard of hearing, relevant of which read thus: "Subject:- Instructions regarding four percent reservation under section34oftheRightsofPersonswithDisabilitiesAct, 2016. 1. InsupersessionoftheGovernmentofPunjab,Departmentof Social Security, Women and Child Development (Disability Cell),issuedvideI.D.No.9/23/2015-3DC/506datedthe24th June, 2015 and No.1/1/2017-3DC/1543557/1, dated the 6th August, 2019, the following instructions are hereby issued for the management of reservation indirectrecruitmentand in promotion for the persons with disabilities asdefinedin clause(r)ofsection2readwiththeScheduleappendedtothe Rights of Persons with Disabilities Act, 2016 (Central Act No.49of2016),intheServicesintheGovernmentofPunjab (i.e. in Group-'A', Group-'B', Group-'C' and Group-'D' Services, respectively),in the following manner,namely:- Disability-wise percentage in services 5 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 6 Type of disability Serial (See Schedule appended to the Rights of Persons with Percentage Disabilities Act, 2016) No. 1 Blindness and Low-vision; One percent 2 Deaf and Hard of hearing; One percent 3 ocomotordisability(includingCerebral One percent L palsy, Leprosy cured, Dwarfism, Acid attack victims and Muscular dystrophy); 4 I ntellectual disability (including Autism One percent and Specific learning disability), and Mental illness; OR ultiple disabilities specified in Serial M No. 1 to 4 above, including deaf-blindness. NOTE-1: The reservation in Services specified under these instructions, shall be applicable in all modes of recruitments done in the State of Punjab including the Services filledunder Contract Basis or by Out-sourcing. Note-2:- "Service" for the purposes of these instructions', Service means a post or vacancy in Group-'A', Group- 'B', Group-'C'orGroup-'D'Service,asthecasemaybe,beingfilled up from amongst the persons with disabilities specified above. Note-3:-"Percentage"forthepurposesoftheseinstructions,the percentage means the Service to be offered shall be in the running Roster of hundred vacancies arising in the cadre strength in Group-'A', Group- 'B', Group-'C' or Group-'D' Service, as the case may be." 6 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 7 8. Insofar as the reliance by the respondent-Corporation on the Memorandum of the Government of India dated 17.05.2022, Annexure R3/1, issued on the directions in Siddaraju vs. State of Karnataka1, providing for promotionfromgroupCtogroupBandfromBtothelowestrungofGroupA,is concerned, a reference canbemadetoorderdated15.07.2024,passedbyHon'ble theSupremeCourtinContemptPetition(Civil)-686-2020inCA-1567-2017,which reads thus: "D r. Siddaraju ...Petitioner Versus r. P. Ravikumar, Chief Secretary, ...Alleged Contemnors M State of Karnataka & Ors. OFFICE REPORT "The Contempt Petition (c) No. 686/2020 was listed before the Hon'ble Court on 05.03.2024 alongwith other connected matterwithofficereportdated22.01.2024,whenthe Hon'ble Court was, inter alia, pleased to pass the following Order:- " xxxx CONMT.PET.(C) No. 686/2020 in C.A. No. 1567/2017 The present petition is de-tagged from CONMT.PET.(C) No. 678/2020. LearnedAdditionalSolicitorGeneralappearingfor the Union of India will obtain instructions astowhether the Office Memorandum restricting reservation in 1 2021 SCC OnLine SC 3501 7 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 8 promotion for persons with benchmarkdisabilitiesinthe lowest rung/Junior Scale in Group 'A' posts, will be contrary to provisions of the Rights of Persons with Disabilities Act, 2016, and the judgments of this Court. Let an affidavit, in this regard, be filed by the Union of India within a period of three weeks from today. Thepetitionerwillbeentitledtofilereply/response within a period of two weeks after service of the said affidavit. Re-list in the week commencing 15.04.2024." Contempt Petition No. 686/2020 ItissubmittedthatMr.S.N.Terdal,Advocatehason18.04.2024 e-filedreplyonbehalfofrespondentNo.5.Copyofthesameis included in the contempt paperbooks. It is further submitted that Ms. Rukhsana Choudhary, Advocate has on 01.07.2024 e-filed rejoinder affidavit to the counter affidavit filed on behalf of respondent No. 5. Copy of the same is included in the contempt paperbooks. Service of notice is complete. The contempt petition alongwith interlocutory Applicationabove-mentionedislistedbeforetheHon'bleCourt with this Office Report. Dated this 15th day of July, 2024". 9. Therightofpersonswithdisabilityforpromotionhasbeeninterpreted in umpteen number of judgments, to which a beneficial reference can be made. 8 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 9 Hon'bletheSupremeCourtinKunalSinghvs.UnionofIndia2 observedandheld thus: "6. Short question that arises forconsiderationinthisappealis whethertheappellantisentitledforthebenefitofSection47of the Act. 7. From the facts, which are not in dispute. It is clear that the disabilitysufferedbytheappellantiscoveredbySection2(i)(v) read with Section 2(o) of the Act. It is also not in disputethat this disability was acquired bytheappellantduringhisservice. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment.Section32dealswithidentificationofpostswhich can be reserved forpersonswithdisabilities.Section33speaks ofreservationofsuchpercentageofvacanciesnotlessthan3% forpersonsorclassofpersonswithdisabilityofwhich1%each shallbereservedforpersonssufferingfrom(i)blindnessorlow vision; (ii) hearing impairment and (iii)locomotordisabilityor cerebralpalsy.Section38requirestheappropriateGovernments and local authorities to formulate schemes for ensuring employment ofpersonswithdisabilities.Section47isincluded in Chapter VIII of the Act. Chapter VIdealswithemployment relating to persons with disabilities including identification of posts and reservation of vacanciesforsuchpersons.Underthis chapter, reservation ofvacanciesforpersonswithdisabilitiesis 2 (2003) 4 SCC 524 9 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 10 made for initialappointments.Section47inChapterVIIIdeals withanemployeeofanestablishmentwhoacquiresadisability during his service. 8.Theneedforacomprehensivelegislationforsafeguardingthe rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realise objective that people with disabilities should have equal opportunities and keepingtheirhopesandaspirationsinviewameetingcalledthe 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatorytothesaidProclamationandtheyagreedtogiveeffect tothesame.PursuanttheretothisActwasenacted,whichcame into force on 1st January, 1996. TheActprovidessomesortof succor to the disabled persons. 9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section47,whichfallsinChapterVII,dealswithanemployee, who is already in service and acquires a disability during his service. It must be borne in mind thatSection2oftheActhas given distinct and different definitions of "disability" and 10 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 11 "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they mustbeunderstoodaccordinglyinterms of the definition.Itmustberememberedthatapersondoesnot acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to beprotected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate itsmandatorynature.TheveryopeningpartofSection reads "no establishment shall dispense with, or reduce inrank, an employee who acquires a disabilityduringhisservice".The Section further provides 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 payscaleandservice benefits; if it isnotpossibletoadjusttheemployeeagainstany post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whicheverisearlier.Addedtothisnopromotionshallbedenied to a person merely on the groundofhisdisabilityasisevident from sub-section (2) of Section 47. Section 47containsaclear directive that the employershallnotdispensewithorreducein rank an employee who acquires a disability duringtheservice. Inconstruingaprovisionofsocialbeneficialenactmentthattoo dealing with disabled persons intended to give them equal 11 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 12 opportunities, protection of rights and full participation, the view that advances the objectoftheActandservesitspurpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plainandcertaincastingstatutoryobligationontheemployerto protect an employee acquiring disability during service." 10. In Siddaraju vs. State of Karnataka3, it was observed that persons with disabilities are entitled for promotion in all Group of posts, under the reservation for the said category, the relevant paras whereof read thus: "5. InUnionofIndiaandAnotherv.NationalFederationof theBlindandOthers,(2013)10SCC772,thisCourtwentinto the provisions of the aforesaid Act in some detail and, in particular, Sections 32 and 33. The Court considered Office Memorandum dated 29.12.2005 of the Government of India, which stated that the quantum of reservation would be as follows:- "2. QUANTUM OF RESERVATION (i) Three percent of the vacancies in case of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which one per cent each shall bereservedforpersonssufferingfrom(i) blindness or low vision, (ii) hearingimpairmentand(iii) locomotor disability or cerebral palsy in the posts identified for each disability; (ii)Threepercentofthevacanciesincaseofpromotionto 3 (2020) 19 SCC 572 12 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 13 Group D, and Group C posts in which the element of direct recruitment, if any, does not exceed 75%,shallbe reserved for persons with disabilities of which one per cent each shall bereservedforpersonssufferingfrom(i) blindness or low vision, (ii) hearingimpairmentand(iii) locomotor disability or cerebral palsy in the posts identified for each disability. 6. The Court then held as follows: "39)Ithasalsobeensubmittedonbehalfoftheappellants hereinthatsincereservationofpersonswithdisabilitiesin Group C and D has been in force priortotheenactment and is being made against the total number ofvacancies in the cadre strength according to the OM dated 29.12.2005 but the actual import of Section 33 is that it has to be computed against identified posts only. This argument is alsocompletelymisconceivedinviewofthe plain language of the said Section, as deliberated above. Even for the sake of argument, if we accept that the computation of reservation in respect of Group C andD posts is against the total vacancies in the cadre strength because of the applicability of the schemeofreservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservationbetweenGroupAandBpostsorGroupCand D posts respectively. As such, one statutory provision cannotbeinterpretedandapplieddifferentlyforthesame 13 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 14 subject-matter. 40) Further, if we accept the interpretationcontendedby the appellants that computation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has shown that identificationhasneverbeenuniformbetweentheCentre and the States and evenbetweentheDepartmentsofany Government. Forexample,whileapostofmiddleschool teacher has been notified as identified assuitableforthe blind and low vision by the Central Government, it has notbeenidentifiedassuitablefortheblindandlowvision insomeStatessuchasGujaratandJ&K,etc.Thishasled to a series of litigations which have been pending in variousHighCourts.Inaddition,Para4oftheOMdated 29.12.2005 dealing with the issue of identification of jobs/posts in sub clause (b) states that list of the jobs/posts notified by the Ministry of Social Justice & Empowerment is notexhaustivewhichfurthermakesthe computation of reservation uncertain and arbitraryinthe event of acceptance of the contention raised by the appellants. 42) A perusal of Indra Sawhney would reveal that the ceiling of 50% reservation applies only to reservation in favour of other Backward classes under Article 16(4) of the Constitution of India whereas the reservation in 14 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 15 favour of persons withdisabilitiesishorizontal,whichis underArticle16(1)oftheConstitution.Infact,thisCourt in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 812 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rostersofreservedcategoryoropencategoryrespectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%. Para 812 is reproduced as follows:- "812. ......all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservationsinfavourofScheduledCastes,theScheduled Tribes and the other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] canbereferredtoashorizontal reservations. Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically 15 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 16 handicapped persons; this would be a reservation relatabletoClause(1)ofArticle16.Thepersonsselected against this quota will be placed in the appropriate category;ifhebelongstoS.C.categoryhewillbeplaced inthatquotabymakingnecessaryadjustments;similarly, ifhebelongstoopencompetition(O.C.)category,hewill be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class ofcitizensremains-andshouldremain- the same......" 7. Having concluded thus, the Court then held: "50)Employmentisakeyfactorintheempowermentand inclusion of people with disabilities. It is an alarming realitythatthedisabledpeopleareoutofjobnotbecause their disability comes in the way of their functioning rather it is social andpracticalbarriersthatpreventthem from joining the workforce. As a result, many disabled peopleliveinpovertyandindeplorableconditions.They aredeniedtherighttomakeausefulcontributiontotheir own lives and to the lives of their families and community. 51)TheUnionofIndia,theStateGovernmentsaswellas the Union Territories have acategoricalobligationunder the Constitution of India and under variousInternational treatiesrelatingtohumanrightsingeneralandtreatiesfor 16 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 17 disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today. 52) Thus, after thoughtful consideration, we are of the viewthatthecomputationofreservationforpersonswith disabilities has to becomputedincaseofGroupA,B,C and D posts in an identical manner viz., "computing3% reservation on total number of vacancies in the cadre strength" which is the intention of the legislature. Accordingly,certainclausesintheOMdated29.12.2005, which are contrary to the above reasoning are struck down and we direct theappropriateGovernmenttoissue new Office Memorandum(s) consistent withthedecision rendered by this Court. 53) Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney is not applicable with respect to the disabled persons." xxx xxx xxx 10.Thenextimportantjudgmentthatneedstobeadvertedtoin thisbehalfisthejudgmentinNationalFederationoftheBlind v. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611, in para 10 of which para 51 of the earlier judgment was clarified as follows:- "10. Para 51 of the order on which reliance has been 17 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 18 placed by Shri Rungta must be viewed in the context of the questions arising for answer before theCourti.e.the mannerofcomputationofvacanciesincaseofGroupsA, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in paragraph 51 of the Courts' order as aforesaid." 11.WenowcometotheDivisionBenchjudgmentofthisCourt reportedasRajeevKumarGupta&Othersv.UnionofIndia & Others - (2016) 13 SCC 153. In thisjudgment,thepostsin Prasar Bharati were classified into four Groups-A to D. The precise question that arose before theCourtissetoutinpara5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on thenine-Judgebenchin Indra Sawhney v.UnionofIndia,1992Supp(3)SCC217,this Court held: "14. Wenowexaminetheapplicabilityoftheprohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railwayv.Rangachari,AIR1962 18 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 19 Supreme Court 36. IndraSawhneyspecificallyoverruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reservations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme. 15. The respondent argued thattheanswertoQuestion7 in Indra Sawhney squarely covers the situation on hand and thereasonsoutlinedbythemajorityopinioninIndra Sawhneyatpara828mustalsoapplytobarreservationin promotions to identified posts of Group A and Group B. 16. We do not agree with the respondent's submission. IndraSawhneyrulingaroseinthecontextofreservations in favour of backward classes of citizens falling within the sweep of Article 16(4). xxx xxx 21. The principle laid down in Indra Sawhney is applicable only when the State seeks togivepreferential treatment in thematterofemploymentundertheStateto certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such 19 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 20 preferential treatment under law, consistent with the mandateofArticle16(1),theStatecannotchooseanyone of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservationforPWDisphysicaldisabilityandnotanyof the criteria forbidden under Article 16(1). Therefore,the ruleofnoreservationinpromotionsaslaiddowninIndra Sawhney has clearly and normatively no application to PWD. The Court then concluded: 24. A combined reading of Sections 32 and 33 of the 1995 Actexplicatesafineanddesignedbalancebetween requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed inthefirstpartofouranalysis,theidentification 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 reservedforPWDirrespectiveofthemodeofrecruitment adopted by the State for filling up of the said post. 25. In light of the preceding analysis, we declare the impugnedmemorandaasillegalandinconsistentwiththe 1995 Act. We further direct the Government to extend 20 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 21 threepercentreservationtoPWDinallidentifiedpostsin GroupAandGroupB,irrespectiveofthemodeoffilling up of such posts. This writ petition is accordingly allowed." 12.Afterhearinglearnedcounselappearingonbehalfofallthe parties including the learned Additional Solicitor General, we areoftheviewthatthejudgmentofthisCourtcannotbefaulted whenitstatedthatIndraSawhneydealtwithadifferentproblem and, therefore, cannot be followed. 13. We may alsonotethatreviewpetitionswerefiledandhave sincebeendismissedagainstboththe2013and2016judgments. Consequently, the reference standsansweredbystatingthatthe 2013 judgment as clarified in National Federation of theBlind v.SanjayKothari,Secy.Deptt.ofPersonnelandTraining,2015 (9) Scale 611 and the judgment in Rajeev Kumar Gupta & Others v. Union of India & Others - (2016) 13 SCC 153 case will bind the Union and the State Governments and must be strictlyfollowednotwithstandingtheOfficeMemorandumdated 29.12.2005,inparticular.Sincethereferencehasbeendisposed of by us today, contempt petitions be listed for hearing. xxx xxx xxx 15. This matter arises out of the order of the Central Administrative Tribunal, Bangalore Bench, Bangalore dated 24.07.2015 in which the 2005 O.M has been followed without reference to any ofthejudgmentsofthisCourt.Awritpetition from the aforesaid judgment was dismissed by the Karnataka 21 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 22 High Court on 23.03.2016, stating that the precise question of law that arises in this case was kept open.Accordingly,weset aside the judgment of the CAT and consequently that of the HighCourt.Thecaseistobegovernedbythethreedecisionsof thisCourtoutlinedabove,whichjudgmentshavetobefollowed by theUnionofIndiaandtheStates.Itisnotnecessarytopass any further directions. The appeal is disposed of accordingly" 11. In Poonam Manchanda vs. Union of India4, the petitioner therein, who was physically handicapped, appointed as also promoted under the General category, requestedreservedpromotiontoGroupApost,whichwasdenieddueto Rules against disability reservations for the same, howevertheDivisionBenchof this Court allowed it, against which the SLP filed came to be dismissed on 14.01.2020, alongwith the case of Siddaraju (supra). The relevant paras thereof read thus: "4.ThepetitionerfiledtheOriginalApplicationchallengingthe aforesaid order, which has been dismissed by the impugned order. The learned Tribunal considered the various office memorandums, particularly those issued after the enactmentof thePersonswithDisabilities(EqualOpportunities,Protectionof Rights and Full Participation) Act, 1995 (for short 'the 1995 Act') and concluded that various office memorandums and instructionsissuedsince1989haveprovidedfor3%reservation of thevacanciesincaseofpromotiontoGroupCandGroupD postsinwhichdirectrecruitmentdoesnotexceed75%.Thereis noprovisionforanyreservationinGroupAandBpostsincase 4 2019 SCC OnLine P&H 2710 22 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 23 of promotion. 5. The judgement of the Tribunal cannot beupheldinthelight ofthesubsequentdecisionofHon'bleSupremeCourtinRajeev KumarGuptav.UnionofIndia,(2016)13SCC153inwhichit hasbeenheldthatonceapostisidentifiedassuitableforbeing filledbyupbypersonswithdisabilities,itmustbereservedfor personswithdisabilitiesirrespectiveofthemodeofrecruitment adopted by the State for filling up of thesaidpost,whetherby direct recruitment or by promotion. xxx xxx xxx 8.Theofficememorandumdenyingthebenefitofthreepercent reservationinappointmenttoGroupAandGroupBpostswere quashed. 9.ItisnodoubttruethatinSpecialLeavetoAppeal(C)No(s). 24994/2016 Siddaraju v. State Of Karnataka And Ors the question whether persons, governed under "The persons with Disabilities (Equal Opportunities, ProtectionofRightsandFull Participation)Act,1995"canbegivenreservationinpromotion has been referred to a larger bench and the matter is pending consideration before a three judge bench of Hon'ble Supreme Court. However, there is no final determination of theissueso far. 10. Pending the said decision there is no reason why the petitioners should be denied the benefit of the decision of Hon'ble Supreme Court in Rajeev Kumar Gupta's case. 11. Consequently, these petitions are allowed. The orderofthe 23 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 24 Tribunal is quashed. The respondents are directed to consider the case of the petitioners for promotion being persons with disability under the three per cent reservation provided for persons with disability." 12. In State of Keralavs.LeesammaJoseph5,itwasobservedandheld that,"Nowcomingtothequestionoftherespondentnotbeinginitiallyappointedin the quota for PwD in the feeder cadre, we note that there is no dispute aboutthe benchmarkdisabilityoftherespondent.Itwouldbediscriminatoryandviolativeof the mandate of the Constitution of India if the respondent is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed,sheistobeidenticallyplacedasothersinthePwDcadre.Theanomaly whichwouldarisefromthesubmissionoftheappellant-Stateisapparent-aperson whocameinthroughnormalrecruitmentprocessbutsuffersdisabilityafterjoining service would on a pari materia position bealsonotentitledtobeconsideredtoa vacancy in a promotional post reserved for a PwD.Thisistheconsequenceifthe entry point is treated as determinative of the entitlement to avail of the benefits. Sourceofrecruitmentoughtnottomakeanydifferencebutwhatismaterialisthat the employee is a PwD atthetimeforconsiderationforpromotion.The1995Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having enteredtheservice.Similarly,thesamepositionwouldbewiththepersonwhomay have entered service on a claim of a compassionate appointment. The mode of entry in service cannot be a ground to make out a case of discriminatory promotion." 13. A controversy similar to the present matter was adjudicated upon in 5 (2021) 9 SCC 208 24 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 25 Reserve Bank of India vs. A.K. Nair6, wherein it has been held that: "33. Appearing in support of the appeal presented by theRBI, Mr. Jaideep Gupta, learned senior counsel, contended that the High Court erred in making the directions it did. Accordingto him, the circulars issued by the RBI restricted promotion of physically handicapped persons only to Group ̀C' posts and within Group ̀D' posts, and did not permit reservation in promotion in Group ̀A' posts. That apart, OM dated 29th December, 2005 relied on by Mr. Nair did not extend any benefit of the nature claimed by Mr. Nair despite its modification by OM dated 3rd December, 2013. Thus, from whichever angleonelooksatthecirculars,resolvingMr.Nair's grievancebyconsideringhimfitforpromotionfromthedateof issuance of OM dated 29thDecember,2005,asdirectedbythe HighCourt,wasnotcalledfor.Healsocontendedthatafterthe GoI issued OM dated 17th May, 2022,theRBIhasalsoissued the circular dated 8th December, 2022, whereby requisite vacancies in Group ̀A' posts have also been reserved for promotion of persons with disabilities. This circular dated 8th December, 2022 contemplates promotion of persons with disabilities upon qualifying in a departmental examination. xxx xxx xxx 37. Ms. Madhavi Divan, learned Additional Solicitor General appearing for the GoI, placed OM dated 17th May, 2022 and contended thatpursuanttoordersofthisCourtmadefromtime 6 2023 SCC OnLine SC 801 25 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 26 to time and in particular after the order dated 28th September, 2021 (supra), instructions have been issued to make available reservationinpromotionforpersonswithdisabilitiesfromposts inGroup̀B'tothelowestrunginGroup̀A',however,withthe rider that reservation in promotion shall be applicable in the cadres in which the element of direct recruitment, if any, does not exceed 75%. She further submitted that since therewasno specific post identified for promotional appointment in Group ̀A' when Mr. Nair participated in the process andalsothatthe shortfall in marks could be condoned onlyinrespectofSC/ST candidates, coupled with the fact that Mr. Nair elected to stay away from the recent promotional process,thedirectionsmade in the impugned judgment and order that paragraph 14 of OM dated 29th December, 2005, since modified by OM dated 8th December,2013,shouldbeappliedwithretrospectiveeffect,do not call for being sustained. Accordingly, she too joined Mr. Gupta in urging that the appeal of the GoI be disposed of granting liberty to Mr. Nair to participate in the fresh process, whenever conducted. xxx xxx xxx 47. We have noticed that in the appeals, the RBI and the GoI haveeachraised3(three)questionsoflawwhichtheyclaimare substantialquestions.Inessence,thequestionsarecommonbut obviously differently worded and not inthesamesequence.To put the matter in the proper perspective, the appellants essentially have sought for answers in the negative to the 26 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 27 following questions: (i) Whether themodificationmadebyparagraph5ofthe Office Memorandum dated 3rd December, 2013 to paragraph 14 of the Office Memorandum dated 29th December, 2005 is to be applied retrospectively with effect from 29th December, 2005? (ii) Whether the High Courtwasjustifiedinholdingthat theRBIhastoapplyreservationinpromotionforpersons with disabilities in respect of Group ̀A' and Group ̀B' posts?And (iii) Whether the High Court is justified in holding that thedecisioninNationalConfederationofDevelopmentof Disabled (supra) is applicable to the present case? xxx xxx xxx 56. Having held thusandinthechangedcircumstances,weare tasked to decide two other questions, viz.: (a) whether the RBI by failing to consider Mr. Nair for promotion, a right guaranteed by Article 16 of the Constitution, on application of relaxed standards committed an illegality? and (b)providedtheanswertotheaforesaidquestionisinthe affirmative, to what extent relief can legitimately be extended to Mr. Nair? 57. Our answers to the aforesaid questions should be prefaced byabriefreferencetothesupremelawoftheland.Theresolve 27 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 28 inthePreambletotheConstitutionandtheprovisionsinPartIV thereof, are considered relevant. Our preambular promise is to secure ̀social justice' to all. The Directive Principles of State Policy, though not enforceable, aredeclaredinArticle37tobe "fundamental in the governance of the country" and the State has a duty to apply these principles in making laws. The immediately next article commands the State to strive to promotethewelfareofthepeoplebysecuringandprotecting,as effectively as it may, a social order in which justice ~ social, economic and political ~ shall inform alltheinstitutionsofthe national life and endeavor to eliminate inequalities in status, facilitiesandopportunities.Article41requirestheState,within the limits of its economic capacity and development, to make effective provision for securing the right to work, inter alia, in cases of disablement. Inthesocietywelivein,whichisindeed class-ridden, ̀social justice' should mean justice to the weaker and poorer section of the society, particularly when the people of the nation have resolved in thePreambletosecurèequality of status and opportunity'. The underlying idea isthatsecuring justice to the weaker and the poorer section could make them equal with the rest of the society. In a case where the weaker sectionisinvolvedinacombatwiththestrongersectionandthe scales are even, to rise to the challenge for securing ̀social justice', the Courtsoflawoughttoleaninfavouroftheformer so thatjusticeisensured.Ifpersonswithdisabilitiesaredenied the rights and privileges conferred by law of equal 28 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 29 opportunities, protection of rights and full participation, inter alia, in the field of public employment, the disservice to such persons would inevitably be grave causing erosion of constitutional idealism and respect forhumanrightsapartfrom extreme mental agony and pain of the deprived. Where such situationsemerge,thecourtsshouldnotremainmuteanddumb. No court, far less this Court, should condone the breachesand violations by employers/establishments arising out of treading of the illegal path by them. 58.ItisnotedthattheversionoftheRBIbeforetheHighCourt was that there is no provision for reservation in promotional postsinGrade-̀A'forpersonswithdisabilities;hence,benefit ofpromotiononareservedvacancycouldnotbegrantedtoMr. Nair. This was indeed the ostensible reason for which the relaxed standardsofassessmentavailableforSC/STcandidates was not extended to persons with disabilities, a fortiori, toMr. Nair. In other words, Mr. Nair's claim for promotion on a reserved vacancyforpersonswithdisabilities,uponapplication of relaxed standards, could not have been considered in the absence of any identified Group ̀A' post. That the appropriate Government must make available reservation in the matter of appointment of persons with disabilities in identified posts of Group ̀A' and Group ̀B' had been conclusively and authoritatively decided by this Court in Ravi Prakash Gupta (supra)andNationalFederationoftheBlind(supra)bythetime theimpugnedjudgmentandorderwasrendered.Thatbeingthe 29 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 30 position, no valid contention could have been advanced that reservation for persons with disabilities is not available for appointment onGroup-̀A'posts.Whatremainedwaswhether reservation for persons with disabilities is available for promotional appointment on Group - ̀A' posts. That issue has also been given a quietus by Rajiv Kumar Gupta (supra), Siddaraju (supra) and Leesamma Joseph (supra). The two big impediments in the path of Mr. Nair, thus, stand removed by reason of apragmaticandreasonableinterpretationofthePwD Act, 1995 by this Court. xxx xxx xxx 69. We direct RBI to grant notional promotion to Mr. Nair on the post of AssistantManagerGrade-̀A',tobeeffectivefrom the date of presentation of the writ petition before the High Court, i.e., 27th September, 2006 and actual promotion from 15th September, 2014, i.e., the last date for compliance of the orderoftheHighCourt.Thisexercisemustbecompletedwithin a period of 2 (two) months from date. The monetary benefits accruing to Mr. Nair with effect from 15th September, 2014 shall be computed and released by 4 (four) months from date." 14. The premise of not giving effect to the approval grantedbytheDPC for promoting the petitioner being the lack of clarity in the Instructions viz. entitlement to benefit to the onewhoacquireddisabilityafterappointmentasalso quathepostinquestion,ismisconceived,inwakeoftheunequivocalelucidationof law, that the employeeisdisabledatthetimeofconsiderationforpromotionisall that matters, source ofrecruitmentnotwithstandingandenforceablewithregardto 30 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 31 GroupAandBposts,whichcameaboutinAKNair(supra)whereintheOMdated 17.05.2022 of Government of India had been dealt with. The dictum has binding nature under Article 141 of the Constitution, on not only the Government but Courts across board. 15. There being no distinction between disabled before appointment or thereafter was conveyed by the Government of India, as far as back in 2009, however, this also, for reasons best known, is pending adoption with the Corporation, but on the other hand, the OM dated 17.05.2022, is heavily being relieduponinpara3ofthewrittenstatementtoopposetheclaimofthepetitioner, bywhichabenefitofpromotionislimitedtothelowestrungofGroupAposts,by a misplaced interpretation of the judgment of Hon'ble the Supreme Court, which without doubt has to be followed in letter and spirit. The Instructions are to be issuedinaidofthejudgmentandcannotruncountertoit.Evenotherwise,itwould not be bindingontheCourts,thataretoeffectuatetheimplementationthereof.As isnowratherapparent,theInstructionsthatarerestrictiveinnaturearesoughttobe pressed into service. 16. The resistance offered by the Corporation that paras 6 and 7 of the Instructions of 2019 require clarity, is mislaid in light of para 1 thereof, wherein StateofPunjabitselfhasdecidedtogrant4%reservationunderSection34of2016 Act regarding Group A, B, C and D services. However, para 6 relates to appointmentofapersonwithdisabilitynotbeingdebarredfromcompetingagainst unreservedservice,while7,toasituationwheresuchperson,ifappointedonmerit, would not be entitled to claim promotion against reserved service. 17. Therightofpromotionofthepetitionerissoughttobeeclipsed,onthe anvil of an alleged ambiguity in the Instructions ibid, which if indeed had truly existed, the respondent-Corporation would not have even granted promotions to 31 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 32 similarly situated, such as Bhupinder Khosla, who was promoted on 04.12.2020, P-36, likewise was Arvinder Pal Singh, vide order dated 31.12.2021, P-16, in remarks whereof it was mentioned that the same had been made against the reservedquotapostmeantforPH&SCcategoryandSatwinderSinghSehmbi,vide orderdated29.05.2019,P-17,atserialNo.14,which,asperNote8intheorderwas clarifiedtohavebeenmadeagainstthereservedquotapostmeantforPHcategory officer. Even in PWD (B & R), Harinder Singh Dhillon, who though was in Generalcategory,waspromotedinthephysicallyhandicappedcategoryvideorder dated01.11.2022,bygrantingthebenefitofdisability.Itisalsonotacasethatthe postinquestionhadbeentakenoutofthepurviewofthe2016Act.Thesalubrious objective behind enactment thereof, cannot be permitted to be defeated under the garb of awaiting instructions, asadministrativeipsedixitcannotinfiltrateontoan arena which stands covered by judicialorders,aswasheldinAnilRatanSarkar vs. State of West Bengal7. 18. The case of the petitioneriscoveredonallfoursbytheexpositionof lawasreferredtohereinbeforeandtheInstructionsibid,whilstalsoatparwiththat of the abovementioned employees, there being a positive approval as well of the DPCheldasfarbackason29.07.2023,stilltherespondent-Corporationisdragging its feet. At one stage, even the shelter of Model Code of Conduct, being in operation was taken, which though cannot come in the way ofimplementationof Court orders and as such it was stated by the learned Advocate General that officiating charge will be given to him, but instead of honouring the same, additional charge was granted on a post in the office of the CMD, depicting the adamant attitude. 19. Notably,muchwaterhasflowedintermsoftheinterimorderspassed 7 (2001) 5 SCC 327 32 of 33 ::: Downloaded on - 25-08-2024 04:36:47 ::: Neutral Citation No:=2024:PHHC:109250 CWP-20174-2023 (O&M) 33 in this case from time to time, but the Corporation has stuck to its guns nevertheless, the more than evidentundercurrentistostallordelaythepromotion of the petitioner, the reasons put forth therefor are not plausible in view of the accentuating facts of the case at hand and the time being of essence herein. 20. On a conspectus evaluation of the matter, the petition deserves to be andisherebyallowed.Therespondentsaredirectedtopromotethepetitionerfrom the date that of others, who were promoted based on therecommendationsofthe DPCdated29.07.2023.Heshallbeentitledtoalltheconsequentialbenefitsarising therefrom. The petitioner being on the cusp of retirement, the needful be done within a month. 21. Pending applications also stand disposed of. (AMAN CHAUDHARY) JUDGE 2 3.08.2024 Hemant/ashok hether speaking/reasoned W : es Y Whether reportable : Yes 33 of 33 ::: Downloaded on - 25-08-2024 04:36:47 :::