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Himachal Pradesh High Court · body

2010 DIGILAW 1252 (HP)

Partap Singh v. State of H. P.

2010-12-04

DEEPAK GUPTA

body2010
JUDGMENT : Deepak Gupta, J. 1. By means of this petition, the petitioner has prayed for the grant of the following amongst other reliefs:- “A.) This Hon’ble Court may be pleased to quash orders dated 14th July, 2007 Annexure P-9 and dated 17.1.2008 Annexure P-12 vide which respondents have rejected the representations of the petitioner for grant of reservation in promotional posts in respondent number 2 department in favour of petitioner under the category of Physically handicapped persons. B.) Direct the respondent State to grant reservation in promotional posts in respondent number 2 department in favour of petitioner under the category of Physically handicapped persons, who has been initially 1 Whether the reporters of the local papers may be allowed to see the Judgment? . appointed as a Clerk against category of Physically handicapped in accordance with the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with all consequential benefits.” 2. The petitioner after completing his matriculation was appointed as clerk in the Divisional Forest Officer, Renuka Division, against a vacancy reserved for physically handicapped person. Now, the petitioner claims that the respondent-State should be directed to grant reservation even while making promotion to the next higher post. 3. Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 reads as follows:-“33. Reservation of posts.-Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-(i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability; Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 4. It is contended by Shri Ajay Mohan Goel, learned counsel for the petitioner that since establishment under Section 33 means the entire cadre strength of the entire department including all category of posts, reservation has necessarily to be granted even in the promotional posts. He has also made reference to instructions of the Govt. It is contended by Shri Ajay Mohan Goel, learned counsel for the petitioner that since establishment under Section 33 means the entire cadre strength of the entire department including all category of posts, reservation has necessarily to be granted even in the promotional posts. He has also made reference to instructions of the Govt. of India wherein three percent of the vacancies in case of promotion to group “D” and group “C” posts in which the element of direct recruitment, if any, does not exceed 75% shall be reserved for persons with disabilities. He submits that a direction be issued to the State Government to make similar provisions in the State of Himachal Pradesh. 5. I am afraid that this contention cannot be accepted. Section 33, quoted hereinabove, clearly provides that every appropriate Government in every establishment shall fill in such percentage of vacancies not less than 3% from persons suffering from disabilities. . The question which arises is, whether the State is duty bound to grant such reservation in promotional posts also. In my view, the answer has to be in the negative. The purpose of the Act is to help the disabled by providing them employment. This Court in a number of cases including CWP No. 192 of 2004 Ankush Dass Sood vs. State of H.P. and other decided on 22.6.2007 and CWP No.1762 of 2010 Munish Dulta vs. H.P.University decided on 28.10.2010 has discussed in detail the ambit of the Act and directions have been issued from time to time to the State and various authorities to make provisions for filling up at least three percent posts in the establishment from persons suffering with disabilities. But the moot question which arises is whether any such person who is granted employment on the basis of reservation for physical disability can claim, as a matter of right, that in promotion also such benefit should be given. 7. In Indra Sawhney and others vs. Union of India and others, 1992 Supp (3) SCC 217 the Apex Court clearly held that even in cases of scheduled castes and scheduled tribes candidates there could be no reservation in promotion. The Apex Court held that Article 16(4) does not permit provision for reservation in the matter of promotion. 7. In Indra Sawhney and others vs. Union of India and others, 1992 Supp (3) SCC 217 the Apex Court clearly held that even in cases of scheduled castes and scheduled tribes candidates there could be no reservation in promotion. The Apex Court held that Article 16(4) does not permit provision for reservation in the matter of promotion. It was only by amending the Constitution by the 85th amendment of the Act and brining in Article 16(4)(A) that now a provision has been made for reservation in promotion for the categories dealt therein. It is well established law that whereas there is need to provide reservation for the under privileged and those suffering from disabilities administrative efficiency should also be taken into consideration and provisions of Article 335 of the Constitution of India cannot be given a go by. In this behalf reference may be made to M.Nagaraj and others vs. Union of India and others, (2006) 8 SCC 212. 8. A bare reading of Section 33 of the Act, in my opinion, clearly shows that reservation for the disabled has to be given only at the initial stage of appointment and no party has a right to claim reservation at a later stage. As far as the instructions of the Central Government are concerned it is for the State or the Central Government to decide whether reservation has to be given in promotion and if so in which category of posts. These are factors which the State must decide by balancing the provisions of Article 335 of the Constitution of India and the provisions of the Persons with Disabilities Act. However, I am absolutely clear that this Court cannot issue any direction directing the State Government to actually make such provision for reservation in promotions. 9. Even the Central Government instructions relied upon by Shri Ajay Mohan Goel, learned counsel for the petitioner, only provide for reservation in promotion to class-III posts where the direct recruitment does not exceed 75%. The petitioner here-in is already working on a post which is equivalent to group “C”, therefore, he cannot derive any benefit under this notification. 10. In view of the above discussion, the petition is rejected. No order as to costs.