Umesh Kumar Tripathi vs State of Uttarakhand & Ors.

Manoj K. Tiwari, J.

By means of this petition, petitioner has sought following reliefs:

“(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 17.10.2017 and 08.11.2017.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 & 2 to give effect to the provision of Section 33 &

34 of the Persons with Disabilities Act by providing reservation in promotion on the post of Regional Manager and to consider the case of the

petitioner under the quota of Persons with Disabilities for promotion to the post of Regional Manager.â€​

The short question, which falls for consideration in present writ petition, is whether reservation in employment available to persons with disabilities

extends to promotion to Group ‘A’ & ‘B’ post, although, there is no dispute that such reservation is available to them for promotion to

Group ‘C’ and ‘D’ posts.

Key facts necessary for adjudication are that petitioner is holding a Group ‘A’ post as Divisional Manager, Marketing in Uttarakhand Forest

Development Corporation established under Forest Corporation Act, 1975 (in short ‘Corporation’). According to him, he suffers from physical

disability to the extent of 60% in terms of the Medical Certificate dated 12.04.2017, issued by Chief Medical Officer, Dehradun. He, therefore claimed

reservation in promotion to the post of Regional Manager by filing Writ Petition No. 498 of 2017 (S/B). The said writ petition was disposed of vide

judgment dated 03.11.2017 with a direction to Managing Director of the Corporation to take a decision on the representation submitted by the

petitioner within two weeks and liberty was given to the petitioner to approach the Court again, if needed, for the same relief.

The Managing Director of the Corporation rejected petitioner’s representation vide order dated 8. 11.2017, on the ground that (a) in the Service

Rules, there is no provision for reservation in promotion to physically disabled persons (b) the post of Regional Manager is not identified for

appointment of persons with disabilities and (c) as per Government Order, reservation in promotion is not available to persons with disabilities against

Group ‘A’ post.

Thus feeling aggrieved, petitioner has filed the present writ petition challenging the rejection order dated 08.11.2017 and also the Government Order

dated 17.10.2017, whereby permission was granted to hold selection for promotion to the post of Regional Manager. In the writ petition, a direction

has also been sought to the respondents to give effect to the provisions of Section 33 and 34 of the Rights of Persons with Disabilities Act, 2016 by

providing reservation in promotion to the post of Regional Manager.

The issued raised in the present writ petition is no longer res integra.

Hon’ble Supreme Court in the case of Rajeev Kumar Gupta and others Vs. Union of India and others reported in (2016) 13 SCC 153 has

held that once posts are identified under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)

Act, 1995 (Act No. 1 of 1996), the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial

of statutory reservation and accordingly direction was issued to the Central Government to extend 3% reservation to persons with disability in all

identified posts in Group ‘A’ and ‘B’ posts, irrespective of the mode of filling up of such posts. Paragraph Nos. 13, 24 & 25 of the said

judgment are extracted below:

“13. For some of these identified posts in Group A and Group B, the mode of recruitment is only through promotions. The purpose underlying the

statutory exercise of identification under Section 32 of the 1995 Act would be negated if reservation is denied to those identified posts by stipulating

that either all or some of such posts are to be filled up only through the mode of promotion. It is demonstrated before us that PWD as a class are

disentitled to some of the identified posts in Groups A and Group B because of the impugned memoranda and the relevant regulations, under which the

only mode of appointment to those identified posts is through promotion. Once posts are identified under Section 32, the purpose behind such

identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. It would be a device to defraud

PWD of the statutory benefit granted under Section 33 of the 1995 Act.

A combined reading of Sections 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.

In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the

Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such

posts. This writ petition is accordingly allowed.â€​

In the case of Union of India and another Vs. National Federation of the Blind and others reported in (2013) 10 SCC 772, it has been held that

reservation of posts for persons with disability is not dependent upon the identification of posts as stipulated by Section 32 of Act No. 1 of 1996.

Paragraph No. 30 of the said judgment is extracted below:

“30. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is

dependent upon the identification of posts as stipulated by Section 32. In the aforementioned case, the Government of India sought to contend that

since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be

computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court,

after examining the inter-dependence of Section 32 and 33 viz., identification of posts and the scheme of reservation, rejected this contention and held

as follows: (SCC pp. 633-34, paras 25-27, 29 & 31)

“25. …..The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act,

1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act

was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be

kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the

submission made on behalf of the Union of India that identification of Groups A and B posts in the IAS was undertaken after the year 2005 is not of

much substance.

As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A,

B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does

empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried

on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but

such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33.

The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of

disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate

Government to make appointments in every establishment.

While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved

categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by

the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation.

In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has

been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of

the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-

availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry

forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not

reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.

We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly,

dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High

Court.â€​ (emphasis in original)

A Division Bench of this Court considered validity of Office Memorandum dated 10.11.2010, issued by Government of Uttarakhand, in Writ

Petition No. 126 of 2015 (S/B). The said Office Memorandum provided that benefit of reservation would not be available to persons with disability in

promotion to Group ‘A’ and ‘B’ posts. Operative portion of the said judgment dated 29.11.2016 is extracted below:

“8. Accordingly, we quash the impugned Memorandum to the extent that it rules out reservation for physically disabled persons in Group A and B

posts for the reason that it is to be filled up by way of promotion. We, also direct the 1st respondent to consider the issue relating to the availability of

benefit of reservation to the petitioner in the capacity as physically disabled person in the light of quashing of the order of Memorandum as aforesaid

and the law laid down by the Apex Court which we have adverted to within a period of two months from the date of production of certified copy of

this judgment.â€​

In view of the settled legal position as discussed above, the reasons assigned for rejecting petitioner’s representation cannot be sustained.

Reservation to persons with disabilities has been provided by a Central legislation, which cannot be denied only on the ground that the Service Rules

do not provide such reservation.

Reservation to persons with disabilities is not dependent upon identification of posts as held by Hon’ble Supreme Court in the Case of Union of

India and another Vs. National Federation of the Blind and others (Supra.).

In view of law laid down by Hon’ble Supreme Court in the Case of Rajeev Kumar Gupta and others Vs. Union of India and others (Supra.),

no distinction can be made between Group ‘A’ & B posts, vis-à -vis Group ‘C’ & ‘D’ posts.

Although, the aforesaid judgments were rendered in the light of Section 33 of Act No. 1 of 1996. Now a new Act, namely, the Rights of Persons

with Disabilities Act, 2016 has been enforced w.e.f.19.04.2017. Section 34 of the new Act is extracted below:

“34. Reservation.-(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. 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, one per cent.

each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and

(c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:â€

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to

(d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to

time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may,

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 this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any

other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also

suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no

person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with

disability:

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be

interchanged among the five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark

disability, as it thinks fit.â€​

A bare perusal of Section 34 of the new Act reveals that every appropriate Government is under a duty to appoint person with benchmark

disabilities to the extent of not less than 4% of the total number of vacancies in the cadre strength, in each group of posts. Thus, the judgments

rendered in the light of provisions contained in Act no.1 of 1996 still hold good under the new Act.

In view of the aforesaid discussion, the rejection order dated 08.11.2017 passed by Managing Director of the Corporation cannot be sustained in

the eyes of law. Therefore, the same is liable to be quashed and is hereby quashed.

Uttarakhand Forest Development Corporation is a Government establishment within the meaning of Section 2(k) of the new Act. Thus, the State

Government is under a statuary duty to ensure enforcement of Section 34 of the new Act in the Corporation.

First proviso to Section 34 of the new Act provides that reservation in promotion shall be in accordance with such instructions as are issued by the

appropriate Government from time to time. We have been informed that such instructions are yet to be issued by the State Government.

Rights of Persons with Disabilities Act, 2016 is a beneficial legislation and Section 34 thereof confers statutory right of reservation in public

employment to persons with benchmark disabilities. This valuable right cannot be denied to persons with disabilities due to inaction on the part of the

State Government in issuing instructions.

We, therefore dispose of the writ petition with the direction to respondent no. 3 to issue necessary instructions regarding reservation in promotion

to persons with disability in terms of First proviso of Section 34 of the Rights of Persons with Disabilities Act, 2016 within three months from the date

of production of certified copy of this order. Till necessary instructions are issued by the State Government, the existing vacancy on the promotion

quota post of Regional Manager shall not be supplied.

No order as to cost.