High Court
Case Details
WP(C) 909/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(ORAL) UJJAL BHUYAN J Heard Mr. G.Uzir, learned Counsel for the petitioner and Mr. I. Choudhury, learned Standing Counsel, PWD. Also heard Mr. H.K. Barman, learned Go vernment Advocate, Assam. 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents to consider his case for promotion to the next higher post under the disability quota and also seeks quashing of communication dated 13-07-2011 of the Public Works Department (Roa ds), Government of Assam, whereby his claim was rejected on the ground that he a cquired disability after joining service. 3.
Legal Reasoning
Facts of the case may be briefly noted. 4. After due selection, petitioner was appointed as Assistant Engin eer in the Pubic Works Department (PWD), National Highway Division at Golaghat, following which he joined on 06-10-1994. While in duty, petitioner met with an a ccident in the month of June, 1995. As a result of the injuries suffered by him in the accident (fracturing his right hip joint), he became permanently disabled (locomotor disability). His disability was examined by a board constituted by t he Social Welfare Department for determination of disability. Thereafter, disabi lity certificate was issued to the petitioner declaring his disability as locomo tor disability to the extent of 45 %. 5. Petitioner applied on 12-03-2010 before the Commissioner and Spe cial Secretary to the Government of Assam, PWD for consideration of promotion to the post of Assistant Executive Engineer against the 3% posts earmarked for dis abled category candidates. 6. By the impugned communication dated 13-07-2011 issued by the Dep uty Secretary to the Government of Assam, PWD (Roads), Confidential Cell, petiti oner was informed that his proposal was sent to the Social Welfare Department fo r its views. Social Welfare Department opined that it has not issued any office memorandum or circular till date allowing benefit of reservation to disabled emp loyees, who attain disability after joining service. In view of the opinion of t he Social Welfare Department, petitioner’s claim was not considered by the Gover nment. 7. s indicated above. Aggrieved, petitioner is before this Court seeking the reliefs a 8.
Legal Reasoning
Case of the petitioner as projected in the writ petition is that the Government of India, Ministry of Personnel, Public Grievances and Pensions had issued office memorandum dated 29-12-2005 providing that 3% of the vacancies in case of promotion to Group-D and Group-C posts, in which direct recruitment does not exceed 75%, shall be reserved for persons with disabilities, including locomotor disability, in the posts identified for each disability. By subsequent office memorandum dated 10-06-2009, it was clarified by the Government of India that the benefit of the above office memorandum dated 29-12-2005 would also be available to an employee who acquires disability after entering into service. Pe titioner has stated that one Shri Dilip Kumar Deka, a physically disabled person (locomotor disability), who had joined PWD in the year 1990 as Junior Engineer, was promoted to the post of Assistant Engineer in the year 1998 and again promo ted to the post of Assistant Executive Engineer in the year 2009. As per informa tion obtained under the Right to Information Act, 2005, PWD has admitted that re servation benefits are extended in case of promotion against 3% of the posts to persons who had joined service under the disability quota. It was also admitted that Government of Assam in the Personnel (A) Department had issued office memor andum No. AAP.350/79/49 dated 06-08-1981 providing for such reservation in promo tion. It was further admitted that Shri Dilip Kumar Deka was promoted as indicat ed above under the disability quota as a very special case. Respondent No.2 in his affidavit filed on 09-05-2012 has stated 9. that PWD has acted on the opinion of the Social Welfare Department. Petitioner’s case for promotion will be considered as per the provisions contained in the As sam Engineering (Public Works Department) Service Rules, 1978 with special refer ence to Rule-13(2) thereof, which deals with the general procedure for promotion . The stand taken in respect of Government of India office memorandum dated 29-1 2-2005 is that it is applicable to the posts and services under the Government o f India and it has no application to the posts and services under the Government of Assam. Regarding Shri Dilip Kumar Deka, it is stated that he was promoted fr om Junior Engineer to Assistant Engineer and subsequently to Assistant Executive Engineer under the physically handicapped quota. Case of the petitioner and tha t of Shri Deka is sought to be distinguished on the ground that Shri Deka acquir ed disability before entering service and entered service under the disability q uota whereas petitioner acquired disability after joining service. It is, howeve r, admitted that Shri Dilip Kumar Deka was appointed as well as promoted under t he physically handicapped category as per office memorandum No. AAP.350/79/49 da ted 06-08-1981 whereby 3% reservation benefits can be availed by those who had j oined service under the disability quota. 10. Petitioner has filed rejoinder affidavit to the aforesaid counte r affidavit filed by respondent No.2 contending that the classification sought t o be made by the respondents between those who had entered service under the dis ability quota and those who acquired disability after joining service is not a r easonable classification. Petitioner has, therefore, contended that he has been denied equal treatment. 11. Respondent No.4 has also filed an affidavit wherein he has state d that Personnel (B) Department, Government of Assam has issued office memorandu m No.ABP.144/95/110 dated 05-11-2011 laying down guidelines for 3% reservation f or the following categories of disabled persons :- (i) blindness or low vision, (ii) hearing impairment, (iii) locomotor disability or cerebral palsy. The said office memorandum indicates that guidelines laid down by the Government of India in its office memorandum dated 29-12-2005 regarding definition of abov e categories of disabilities etc. may be followed. However, it is stated that th e said office memorandum of the Personnel (B) Department is for direct recruitme nt only. 12. Petitioner has filed a reply affidavit, which is identical to th e reply affidavit filed by him against the counter affidavit of respondent No.2. 13. In the course of the proceeding, this Court vide order dated 19- 09-2012, after noticing the promotion given to Shri Dilip Kumar Deka under the p hysically handicapped quota, directed PWD to file affidavit regarding availabili ty of such a quota in the case of promotion, making it clear that the Court was not scrutinizing such promotion given to Shri Deka. 14. In terms of the aforesaid order dated 19-09-2012, respondent No. 2 has filed an additional affidavit. In paragraph 3 of the said additional affid avit, it is stated that PWD does not have any specific service rule with regard to promotion of disabled person in the technical stream. In the case of Shri Dil ip Kumar Deka, PWD had moved the Social Welfare Department as well as the Person nel Department. On approval being accorded by the Social Welfare department, whi ch is the nodal department, Shri Deka, who is physically disabled by birth, was promoted to the rank of Assistant Executive Engineer. In case of the petitioner, PWD had moved the Social Welfare Department and in terms of the views expressed by the Social Welfare Department as already noticed, case of the petitioner cou ld not be considered. 15. Mr. Uzir, learned Counsel for the petitioner submits that in vie w of the office memorandum of the Government of India dated 29-12-2005 as clarif ied by the subsequent office memorandum dated 10-06-2009, rejection of the petit ioner’s claim is not legally tenable. He submits that Government of Assam has ma de provision for promotion to 3% posts earmarked for disabled category candidate s. Applying such provision, benefit of promotion has been given by PWD to one S hri Dilip Kumar Deka, who is a physically disabled person. However, the same ben efit has been denied to the petitioner on the ground that Shri Deka had entered service under the disability quota, meaning thereby that he had acquired disabil ity prior to entering service whereas petitioner had acquired disability after e ntering service. He submits that such classification is not based on any intelli gible differentia. Accordingly, Mr. Uzir, learned Counsel for the petitioner pra ys for a positive intervention by the Court. Opposing the submissions made by learned Counsel for the petitio 16. ner, Mr. I. Choudhury, learned Standing Counsel, PWD submits that the Central Go vernment office memorandum relied upon by the petitioner is not applicable to th e employees of the State Government. He submits that though the department under stands the grievance of the petitioner, it has only followed the opinion of the Social Welfare Department, which has opined that it has not issued any guideline or circular extending the benefit of reservation in promotion to persons who ha ve acquired disability after entering service. It is on this basis that Mr. Chou dhury has sought to distinguish the case of the petitioner from that of Shri Dil ip Kumar Deka, as according to him, benefit of reservation to 3% posts earmarked for disabled category candidates in case of promotion would be confined to only such candidates who had entered service through the disability quota. 17. Submissions made have been considered. 18. From the pleadings and the submissions advanced, it is clear tha t Government of Assam has provided for promotion to 3% posts earmarked for disa bled category candidates. It is further admitted that as regards definition of v arious categories of disabilities, such as, blindness or low vision, hearing imp airment and locomotor disability or cerebral palsy, the guidelines laid down by the Government of India in the office memorandum dated 29-12-2005 is followed. B ut the contention of the respondents is that benefit of such promotion would be extended only to those who had acquired disability prior to joining service and had entered service through the disability quota. Government of India office memorandum dated 29-12-2005, which ha 19. s already been noticed in the earlier part of this judgment, provides for reserv ation of 3% of the vacancies in case of promotion for persons with disabilities of the nature indicated above. This office memorandum was issued in tune with th e provisions of Persons with Disabilities (Equal Opportunities, Protection of Ri ghts and Full Participation) Act, 1995. It was subsequently clarified by another office memorandum dated 10-06-2009 that the office memorandum dated 29-12-2005 does not make any distinction between persons acquiring disability before or aft er entering service. It was clearly stated that an employee who acquires disabil ity after entering service will be entitled to get the benefit of reservation as a person with disability as provided in the office memorandum dated 29-12-2005. 20. From the affidavit filed by respondent No.2 on 16-11-2012, it is seen that case of Shri Dilip Kumar Deka was considered for promotion to the pos t of Assistant Executive Engineer against one of the back log vacancies for phys ically handicapped persons as per Persons with Disabilities (Equal Opportunities , Protection of Rights and Full Participation) Act, 1995. 21. Therefore, what emerges from the deliberations made above is tha t there is provision for promotion to 3% posts earmarked for disabled candidates , which is followed by PWD, Government of Assam. However, based on the views of the Social Welfare Department, PWD has taken the stand that to avail the above b enefit, the disability must be pre-service; in other words, the candidate should have entered service through the quota earmarked for disabled candidates. 22. The distinction sought to be drawn between persons entering serv ice with disability under the disability quota and persons acquiring disability after entering service for the purpose of extending the benefit of promotion to the 3% posts earmarked for disabled category candidates, in the opinion of the C ourt, does not stand to reason. The Persons with Disabilities (Equal Opportuniti es, Protection of Rights and Full Participation) Act, 1995 seeks to uphold the r ights of persons with disabilities. Objective of the said Act is to provide for, amongst others, rehabilitation of persons with disabilities and to create barri er free environment for persons with disabilities. A close scrutiny of the provi sions contained in chapter-VI of the said Act, which deals with employment, woul d show that the Act does not distinguish between persons entering service with d isability and persons acquiring disability after entering service. Therefore, th e classification sought to be drawn by the respondents between the two categorie s of disabled employees is not a reasonable or rational one as it would run coun ter to the objective sought to be achieved by the aforesaid Act. The Government of India had acknowledged this position and by the office memorandum dated 29-12 -2005 as explained by the subsequent office memorandum dated 10-06-2009, has pro vided for reservation to persons with disabilities in 3% of the vacancies in cas e of promotion to Group-D and Group-C posts, clarifying that no distinction is t o be made between persons acquiring disability before or after entering service. 23. According to the Court, this appears to be the correct approach, which would be in tune with the letter and spirit of the Persons with Disabilit ies (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 . These provisions providing for 3% posts in case of promotion for disabled cate gory candidates, are beneficial provisions and, therefore, should be interpreted liberally. A broad view is required to be taken and not a narrow pedantic appro ach, keeping in mind the objective of the aforesaid Act. In view of above, the Social Welfare Department as well as the P 24. ersonnel Department, Government of Assam may have a re-look at the matter and co nsider issuing necessary clarificatory guidelines in this regard consistent with the observations made above. Said exercise shall be carried out within a period of 4 months from the date of receipt of a certified copy of this order. Based o n such guidelines that may be framed by the departments above named, authorities in the PWD, Government of Assam, more particularly the respondent No.2, shall c onsider the case of the petitioner for promotion to the next higher post against the 3% posts earmarked for disabled category candidates within a period of 2 mo nths thereafter. 25. above. Writ petition accordingly stands allowed to the extent indicated 26. No cost.