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2024 DIGILAW 1696 (KER)

SHOYAB K. A. S/O K. I. ALI v. STATE OF KERALA

2024-12-20

N.NAGARESH

body2024
JUDGMENT : N. NAGARESH, J. 1. The petitioners are persons who are working as Section Officers in M.G. University. They belong to differently abled category with benchmark disability of more than 40%. The petitioners are before this Court aggrieved by rejection of their request for further promotion in the quota earmarked for differently abled candidates. 2. The petitioners state that they joined service as Lab Assistants. As per Section 34(1) of the Rights of Persons with Disabilities Act, 2016, the Government shall appoint Persons with Benchmark Disabilities in every Government Establishment, not less than 4% of the total number of vacancies in the cadre strength. The first proviso to Section 34(1) states that reservation in the promotion shall be in accordance with such inspection as issued by the appropriate Government from time to time. The petitioners would submit that the Hon’ble Apex Court has held that Persons with Disabilities are entitled to be given reservation in the matter of promotions in the light of the provisions of the Rights of Persons with Disabilities Act, 2016. 3. The petitioners pointed out that in the judgment of the Hon’ble Apex Court in State of Kerala v. Leesamma Joseph, 2021 (9) SCC 208 , it was held that legislative mandate was to provide equal opportunities of career advancement to Persons with Disabilities and the same will bind Union and State Governments. Furthermore, as per Section 33(i) and (ii) of the Act, 2016, the appropriate Government shall identify posts in the Establishments which can be held by Persons with Benchmark Disabilities. 4. The petitioners state that the question of reservation in promotion to employees who are Persons with Disabilities in the service was considered by the Central Government. The Central Government has issued Office Memorandum dated 17.05.2022. Clause 2.1 of the Office Memorandum provided that in case of promotion, 4% of the total number of vacancies in the cadre strength within Group ‘C’ from Group ‘C’ to Group ‘B’ within Group ‘B’ and from Group ‘B’ to the lowest rung of Group ‘A’ shall be applicable for PwBDs. Reservation in promotion shall be applicable in the cadres in which the element of direct recruitment, if any, does not exceed 75%. 5. Reservation in promotion shall be applicable in the cadres in which the element of direct recruitment, if any, does not exceed 75%. 5. The Office Memorandum further provides that while filling up the vacancies by promotion by non-selection, the eligible candidates with benchmark disabilities within the normal zone of consideration shall be considered for promotion against the reserved vacancies. Clause 13.3 ordered to ensure that cases of lapse of reservation are kept to the minimum, any recruitment of the PwBD candidates shall first be counted against the vacant posts brought forward from previous years, if any, in the chronological order. If candidates are not available for all the vacancies, the older carried-forward posts shall be filled first and the current vacancies shall be carried forward, if not filled up, provided that in every recruitment, the number of vacancies reserved for PwBD, including the carried forward vacancies shall be announced beforehand, for the information of all aspirants. 6. The petitioner pointed out that as per Government Order dated 26.10.2023 of the Government of Kerala, additional guidelines have been provided for implementing reservation in promotion to Persons with Disabilities. In spite of laying down guidelines by the Government of Kerala, the University is refusing to follow the reservation in promotions. 7. The petitioner pointed out that being the Government Order, the University has taken a stand that in a category of course, both direct recruitment and promotions are available in such entry posts that can be reserved for Persons with Disabilities. 8. The University, however, rejected the requests of the petitioners holding that going by the Mahatma Gandhi University Act and going by the spirit of the judgments of the Hon’ble Apex Court, the application of the petitioners for grant of reservation under the Rights of Persons with Disabilities Act, 2016 cannot be considered now. 9. Counsel for the petitioners relied on the judgment of the Hon’ble Apex Court in Reserve Bank of India v. A.K. Nair, MANU/SC/0753/2023. According to the petitioners, going by the judgment in Reserve Bank of India (supra), if to the entry post, appointment both by Direct Recruitment and Promotions are permitted, then for any promotional post over such entry post, a separate identification of the post for Persons with Disabilities is not required. According to the petitioners, going by the judgment in Reserve Bank of India (supra), if to the entry post, appointment both by Direct Recruitment and Promotions are permitted, then for any promotional post over such entry post, a separate identification of the post for Persons with Disabilities is not required. In other words, it is urged that if a post can be filled up both by Direct Recruitment and Promotion then, the physically handicapped persons can be appointed not only against those posts but the posts coming under promotional hierarchy over the said post, even without identification of post under the Act, 2016. 10. The counsel for the petitioners submitted that the judgment in the case of Reserve Bank of India (supra) was relied on by a Division Bench judgment of this Court. In the judgment in OP (KAT) No. 312 of 2023, this Court held that it is settled by precedents now that where the feeder category of the post in the promotion line is already identified as suitable for lateral reservation in the DA quota, then separate identification in the promotion post may not be required. In spite of the law laid down by the Hon’ble Apex Court and this Court, the University is not honoring the right of the petitioners for promotion to higher posts availing the benefit of reservation under the Act, 2016. Exts.P17, P20 and P24 in W.P. (C) No. 15097 of 2024 are therefore liable to be quashed, contended the counsel for the petitioners. 11. Counsel entered appearance on behalf of additional respondents 7 and 8 in W.P. (C) No. 15097 of 2024 and resisted the writ petition. The counsel for additional respondents 7 and 8 pointed out that as per Section 33 of the Act, 2016, the appropriate Government shall identify the post in the Establishment which can be held by respective category of Persons with Benchmark Disabilities in respect of the vacancies reserved in accordance with provisions of Section 34. Therefore, identification of posts suitable for appointing Persons with Disabilities in exercise of the powers under the Act, 2016 is an important function and without identifying the post, promotion cannot be granted to such posts. 12. Therefore, identification of posts suitable for appointing Persons with Disabilities in exercise of the powers under the Act, 2016 is an important function and without identifying the post, promotion cannot be granted to such posts. 12. The counsel for additional respondents 7 and 8 further pointed out that Section 34 of the Act, 2016, mandates that every appropriate Government shall appoint in every Government Establishment, not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with Persons with Benchmark Disabilities of which, 1% each shall be reserved for Person with Benchmark Disabilities under Clauses (a), (b) and (c) and 1% for Persons with Benchmark Disabilities under Clauses (d) and (e). 13. The counsel further pointed out that as per proviso to Section 34, appropriate Government having regard to the type of work carried out in any Government Establishment, by notification and subject to such conditions if any, as may be specified in such notifications exempt any Government Establishment from the provisions of Section 34. 14. Counsel for additional respondents 7 and 8 further argued out that in Ext.P18 judgment in W.P. (C) No. 15097 of 2024, the Division Bench of this Court has not pronounced finally on the issue of identification of posts in the promotional avenues. There is no final conclusion by the Division Bench in Ext.P18. 15. Counsel for additional respondents 7 and 8 further pointed out that even if posts are identified, the petitioners cannot aspire for automatic promotion to those posts. The eligibility and suitability of candidates for promotion will have to be still reckoned. 16. Standing Counsel for the Mahatma Gandhi University entered appearance and resisted the writ petition. On behalf of the University, it is submitted that the Hon’ble Apex Court in Siddaraju v. State of Karnataka, 2020 (19) SCC 572 had directed the Government to issue instructions on reservation in promotion, as provided under Section 34 of the Rights of Persons with Disabilities Act, 2016. On behalf of the University, it is submitted that the Hon’ble Apex Court in Siddaraju v. State of Karnataka, 2020 (19) SCC 572 had directed the Government to issue instructions on reservation in promotion, as provided under Section 34 of the Rights of Persons with Disabilities Act, 2016. The Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training has issued Ext.P6 Official Memorandum wherein it was stated that in case of promotion, 4% of the total number of vacancies in the cadre strength within Group ‘C’ from Group ‘C’ to Group ‘B’ within Group ‘B’ and from Group ‘B’ to the lowest rung of Group ‘A’ shall be reserved for Persons with Benchmark Disabilities. The Government Order dated 18.11.2018 deals with providing reservation in appointment in Aided Schools and Aided Colleges. The said Government Order may not be applicable to the petitioners or the employees of the University. 17. The Standing Counsel submitted that the University has been following the State Government Orders in all matters pertaining to the appointment of various posts. The University has followed the usual procedure of issuing orders making promotions to various higher posts, as those posts cannot be kept vacant, which would adversely affect the working of the Institution. The reservation in promotion shall be in accordance with such instructions as are issued by the ‘appropriate Government’ in view of Section 34(1) of the Act, 2016. The University has therefore issued an order dated 06.03.2024, rejecting the claim of the petitioners. The writ petitions are therefore without any merit and are liable to be dismissed, contended the Standing Counsel. 18. I have heard the learned Counsel for the petitioners, the learned Standing Counsel representing the Mahatma Gandhi University and the learned Counsel appearing for additional respondents 7 and 8 in W.P. (C) No. 15097 of 2024. 19. The core question arising for consideration in these writ petitions is as to the right of the petitioners, who are working as Section Officers for promotion to the higher promotional categories. It is not in dispute that the petitioners, who are Section Officers have a normal promotional avenue to the post of Assistant Registrar/Deputy Registrar/Joint Registrar. It is also not in dispute that the promotional posts have so far not been identified as suitable for appointing Persons with Disabilities, granting reservation benefits. 20. It is not in dispute that the petitioners, who are Section Officers have a normal promotional avenue to the post of Assistant Registrar/Deputy Registrar/Joint Registrar. It is also not in dispute that the promotional posts have so far not been identified as suitable for appointing Persons with Disabilities, granting reservation benefits. 20. Section 34 provides for reservation of Persons with Disabilities and the proviso under Section 34(1)(e) of the Rights of Persons with Disabilities Act, 2016 provides that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. 21. The contention of the petitioners is that the Government of India has issued an Office Memorandum dated 17.05.2022 and as per the said Office Memorandum, while filling up vacancies by promotion by non-selection, the eligible candidates with benchmark disabilities within the normal zone of consideration shall be considered for promotion. Clause 13.3 of the said Office Memorandum mandates that in order to ensure that all cases of lapse of reservations are kept to a minimum, any recruitment to the PwBD candidates shall first be counted against the vacant posts brought forward from previous years, if any, in the chronological order. 22. Counsel for the petitioners urged that the Scheme followed by the Central Government as per Office Memorandum is liable to be followed by the Government of Kerala also and also the Universities in Kerala. The petitioners relied on the judgment in Reserve Bank of India (supra) to contend that if a post which is filled up by direct recruitment as well as promotion is identified as suitable for the grant of reservation under the Act, 2016, then the promotional posts over the said entry post in the direct line of promotion can also be treated as identified for promotion of persons with benchmark disabilities. 23. I have perused the judgment in Reserve Bank of India (supra). The Court has not categorically came to such a conclusion as contended by the petitioners. The judgment in Reserve Bank of India (supra) was followed by the Division Bench of this Court in O.P. (KAT) No. 312 of 2023. 23. I have perused the judgment in Reserve Bank of India (supra). The Court has not categorically came to such a conclusion as contended by the petitioners. The judgment in Reserve Bank of India (supra) was followed by the Division Bench of this Court in O.P. (KAT) No. 312 of 2023. Ext.P18 judgment in W.P. (C) No. 15097 of 2024 would show that the Division Bench has observed that it is settled now that where the feeder category of the posts in the promotion line is already identified as suitable for lateral reservation under the DA quota, then separate identification in the promotion post may not be required. It is to be noted that after observing so, the Division Bench has held that it need not go into those aspects. A reading of paragraph 11 of Ext.P18 judgment would show that the Division Bench has not arrived at any final conclusions in that regard. 24. Going by the Rights of Persons with Disabilities Act, 2016, the reservation contemplated under Section 34 of the Act can be only against the posts identified for reservation under Section 33. Section 33 provides that the appropriate Government shall identify posts in the Establishment which can be held by the respective category of Persons with Benchmark Disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34. As long as higher promotional posts of the petitioners, such as Assistant Registrar/Deputy Registrar/Joint Registrar are not identified by the University for appointment of the physically disabled candidates, the petitioners do not have any legal right to claim promotion. 25. In the circumstances, the writ petitions fail and are therefore dismissed.