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Allahabad High Court · body

2016 DIGILAW 3007 (ALL)

RAJESH KUMAR GUPTA v. STATE OF U. P.

2016-09-01

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a Constable in Civil Police. He is aggrieved by an order passed by the third respondent dated 16th February, 2012, whereby his claim for promotion on the post of Sub-Inspector, Civil Police, has been turned down on the ground that he is differently abled person and for the said reason, he is not qualified to hold the said post. The order further says that there is no provision for giving relaxation in the physical efficiency test to the differently abled persons. 2. A brief reference to the factual aspects would suffice. The petitioner was initially appointed as a Constable in Civil Police. He claims his promotion on the post of Sub-Inspector. The service conditions of the post of Sub-Inspector including recruitment and promotion etc. are regulated by the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (for short, the “Rules, 2008”). The petitioner for promotion to the post of Sub-Inspector appeared in the written test, which he qualified. After the said test, he was asked to participate in the physical efficiency test. The petitioner moved an application for relaxation in the physical efficiency test on the ground that he is differently abled person and has relied on a certificate issued on 16th September, 2006 by the appropriate authority. When no action was taken on the said application, the petitioner preferred a writ petition, being Writ Petition No. 4637 (S/S) of 2011 (Rajesh Kumar Gupta v. State of U.P. and others). The said writ petition was disposed of by this Court on 19th January, 2012 by issuing a direction upon the appropriate authority to consider the grievance of the petitioner. 3. In compliance thereof, the impugned order dated 16th February, 2012 has been passed rejecting the claim of the petitioner on the ground mentioned herein-above. 4. I have heard Sri A.P. Singh, learned counsel for the petitioner, and learned Standing Counsel. 5. It is contended on behalf of the petitioner that the petitioner has sustained injury during the course of duty while complying with an order passed by the superior authority, therefore, he is entitled for the benefit provided under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the “Act, 1995”). It is contended on behalf of the petitioner that the petitioner has sustained injury during the course of duty while complying with an order passed by the superior authority, therefore, he is entitled for the benefit provided under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the “Act, 1995”). It is urged by the learned counsel for the petitioner that the provisions of the said Act, 1995 have not been taken into consideration while passing the order by the third respondent. He lastly urged that under the Rules, 2008 the State Government has power to grant relaxation in case any provision of the said Rules causes hardship to an employee. It is stated that the petitioner has made an application to the State Government on 16th December, 2015 for giving relaxation in respect of the physical efficiency test and extending the benefit provided in the Act, 1995, which is a Central Act. The said application of the petitioner is still pending. 6. Learned Standing Counsel submits that Rule 6 of the Rules, 2008 clearly provides that a differently abled person would not be entitled for any promotion. No other submission was made. 7. In rejoinder, learned counsel for the petitioner submits that Rule 6 of the Rules, 2008 is not applicable in the case of promotion as it would be applicable only in respect of the direct recruitment. 8. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. 9. It is a common ground that the petitioner appeared in the written test for promotion on the post of Sub-Inspector and he qualified the said test. He is unable to participate in the physical efficiency test on the ground that while he was on duty, he has suffered physical disability, therefore, he cannot participate in such test due to the said disability. 10. The disability certificate, which the petitioner has brought on the record, has not been disputed by the State. From a perusal of the impugned order it is evident that the third respondent has not taken into consideration the provisions of the Act, 1995. 10. The disability certificate, which the petitioner has brought on the record, has not been disputed by the State. From a perusal of the impugned order it is evident that the third respondent has not taken into consideration the provisions of the Act, 1995. The object of the said Act provides that to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, the said Act has been enacted by the Parliament. The provisions of the Act, 1995 have been considered recently by the Supreme Court in the case of Jeeja Ghosh and another v. Union of India and others, (2016) 7 SCC 761 . The relevant portion of the judgment, being paragraphs-41 and 42, is extracted below: “41. Earlier the traditional approaches to disability have depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons are viewed as abnormal, deserving of pity and care, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalising the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted in severe isolation for people with disabilities and their families. 42. However, the nations have come a long way from that stage. Real awareness has dawned on the society at large that the problems of differently-abled are to be viewed from human rights perspective. This thinking is reflected in two major declarations on the disability adopted by the General Assembly of the United Nations on 20.12.1971 and thereafter in the year 1975. The position was reiterated in the Beijing Conclave by the Government of Asian and Pacific Countries that was held from 1.12.1992 to 5.12.1992 and in order to convert the resolutions adopted therein into reality, the Indian Parliament also passed the enactment i.e. the 1995 Act.” 11. The position was reiterated in the Beijing Conclave by the Government of Asian and Pacific Countries that was held from 1.12.1992 to 5.12.1992 and in order to convert the resolutions adopted therein into reality, the Indian Parliament also passed the enactment i.e. the 1995 Act.” 11. There is no doubt that the Act, 1995, which is a Central Act, is applicable to all the disabilities which have been defined under Section 2(i) thereof. Sub-section (2) of Section 47 of the Act, 1995 provides that no promotion shall be denied to a person merely on the ground of his disability. 12. In the case of Pradep Kumar Maity v. Chinmoy Kumar Bhunia and others, (2013) 11 SCC 122 , the Supreme Court has held that the Act, 1995 will have overriding effect vis-a-vis all the contrary law of the State. The relevant portion of the judgment reads as under: “13. Since the legal regime applicable to amelioration of the persons suffering from disabilities has been argued before us, we need to dwell upon it briefly. Briefly, because this aspect of the law is so well entrenched in our jurisprudence that only a succinct reiteration is justified. The Constitution of India is the grund norm, demanding meticulous allegiance from all other laws. Statutes, Central/parliamentary or of State Legislatures, must mandatorily comply with our Constitution. We must hasten to emphasise that statutes must also conform with the discipline of the three lists contained in the Seventh Schedule to the Constitution. Most statutes postulate the promulgation of Rules, through delegated legislation, which, if they are not ultra vires the statute inasmuch as they are operational within the parameters of their parent pandects, require adherence. Executive orders or administrative instructions cease to have legal efficacy the moment they are contrary to their superiors i.e. the Constitution, a statute, or any delegated legislation in the form of rules or regulations. This is also referred to as “dominion paramountcy” by some Courts. There is a plethora of precedents on this proposition, as also on the tiers of subservience, including the adumbration in Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab, (1998) 4 SCC 343 and K.P. Sudhakaran v. State of Kerala, (2006) 5 SCC 386 : 2006 SCC (L&S) 1105. This is also referred to as “dominion paramountcy” by some Courts. There is a plethora of precedents on this proposition, as also on the tiers of subservience, including the adumbration in Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab, (1998) 4 SCC 343 and K.P. Sudhakaran v. State of Kerala, (2006) 5 SCC 386 : 2006 SCC (L&S) 1105. The Disabilities Act pays obeisance to the Constitution and had it concerned itself with improving the lot of the disabled by also providing for compulsory relaxation of age stipulations for employment having regard to disability, all other contrary forms of law-making by State Legislatures or State Governments would have fallen foul of it, and consequently would have ceased to command legal authority. Thus, the definition of deafness or hearing impairment contained in the extant Government orders must immediately measure to the definition contained in the Disabilities Act. But since the Disabilities Act postulates age relaxation only as directory or expectant, the Government order will continue to hold the field.” 13. It is an admitted case that the application of the petitioner is still pending before the State Government for grant of relaxation. Hence, in my view, without expressing any opinion with regard to the benefit of the Act, 1995 at this stage, it would be appropriate that the State Government may be directed to pass the order on the application of the petitioner to grant him relaxation in terms of Rule 28 of the Rules, 2008. 14. Accordingly, the writ petition is disposed of by issuing a direction upon the first respondent to consider the application of the petitioner dated 16th December, 2015 and pass the appropriate order in accordance with law expeditiously, preferably within three months from the date of communication of this order. The petitioner is granted liberty to file a fresh representation along a certified copy of this order and it will be open to the petitioner to raise the plea therein, which he wants to place before the State Government. It is made clear that the impugned order dated 16th February, 2012 shall abide by the fresh order passed by the State Government. The State Government shall pass the order independently without being influenced by the order passed by the third respondent dated 16th February, 2012. 15. No order as to costs.