Candidates Eligible For Promotion Under 4% Reservation For Benchmark Disability Should Be Considered Under Said Quota: Gauhati High Court

The Gauhati High Court recently directed the State Authorities to consider the cases of two Junior Engineers (Civil) for promotion to the post of Assistant Engineer (Civil) against the 4 percent quota reserved for Persons with Disabilities in terms of the provisions of the Rights of Persons with Disabilities Act, 2016.

The Single Judge Bench comprising Justice Kardak Ete observed:

“The respondent authorities have affected promotion of Junior Engineer (Civil) to the post of Assistant Engineer (Civil) in the department on three occasions in the year, 2021 and 2022. However, it appears that no consideration has been made under the benchmark disabilities depriving the right of the petitioners. Thus, in my view, the respondent authorities ought to have considered the case of the petitioners for promotion under 4% reservation as provided in the Disabilities Act, 2016.”

Facts

The petitioner in WP(C) 3299/2020, was appointed as Junior Engineer (Civil) under Assam Public Works Department, NH under Rangia Division on October 03, 1996. The petitioner suffers from locomotor disability since 2014 and after re-examination of his disability, the disability certificate was dated November 15, 2017 to that effect and he has been receiving disability allowance since August 19, 2017.

The petitioner in WP(C) 3317/2020 was appointed as Junior Engineer (Civil) under Assam Public Works Department, Building on November 21, 1990. He became physical disabled in the year, 2016, which has been diagnosed as Spastic Left Hemiparesis and is a Locomotor Disability as per the provision contained in the Rights of Persons with Disabilities Act, 2016.

In course of their services, the petitioners in the meantime have become eligible to be promoted to the cadre of Assistant Engineer (Civil) and by now, have been promoted on their own merit and positions in the Department.

Contentions

It was contended by the petitioners that under the Disabilities Act of 2016, the petitioners are entitled to a preferential treatment of reservation under the 4% reservation in terms of the provisions of the Disabilities Act, 2016.

It was submitted that the office memorandum dated January 07, 2019 issued by the Department of Personnel (B), Government of Assam, inter alia, provides that the benefit of reservation in promotion for persons with benchmark disabilities will be limited to the Grade-III and IV posts, where 4 percent of the posts shall be reserved for persons with benchmark disabilities.

It is submitted that as per the provision contained in Section 34 of the Disabilities Act, 2016, every appropriate Government shall appoint in every Government establishment not less than 4 percent of the total number of vacancies in the cadre strength in each group of posts meant to be filled up with persons with benchmark disabilities of which 1 percent each shall be reserved for persons with benchmark disabilities.

The petitioners claimed for implementation of the benefit of the Disabilities Act, 2016 and also relied upon the decision of the Supreme Court in the case of Rajeev Kumar Gupta and Others v. The Union of India and Ors. (2016) 13 SCC 153 in which it was held that once a post is identified as being capable of being filled up by a disabled person it must be reserved for the disabled irrespective of the mode of recruitment adopted by the State for filling up such post.

The Counsel appearing for the petitioners submitted that the respondent authority has effected promotion to the post of Assistant Engineer (Civil) during the pendency of these writ petitions without providing benefits of reservation in promotion for Persons with Benchmark Disabilities which has deprived the petitioners.

It was argued that vide several notifications issued in the years 2021 and 2022, a total of 232 Junior Engineers (Civil) have been promoted to Assistant Engineers (Civil) including the petitioners, however, all this promotions have been effected without following the reservation policy as well as mandate of the law under Disabilities Act, 2016, rather the petitioners have been promoted on their own merit, which is in total violation of the mandate of the law as well as the judgment of the Supreme Court.

The Senior Government Advocate submitted that it is settled law that no employee has right to promotion but has only right to be considered for promotion. It was argued that the employee has no right to be promoted with retrospective effect as the promotion will take effect from the date of DPC and not from the date of vacancy of the post. It was submitted that the petitioners have already been promoted vide orders dated June 29, 2022 and September 13, 2022, therefore, there remains no live issue to be determined and as such writ petitions may be dismissed.

Court's View

The Court noted that the petitioners being PwDs, below the officers with benchmark disability who have been promoted on their own merit and positions, ought to have been considered for promotion to the rank of Assistant Engineer (Civil).

“Indisputably, the respondent authorities have not filled up the disability quota since the coming into force of the Disabilities Act, 2016 and in terms of the provision contained in Section 34 (2) which provides that wherein 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 my 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 PwD,” the Court observed.

The Court held that the petitioners are entitled to be promoted to the post of Assistant Engineer (Civil) under the benchmark disabilities quota and the respondent authorities have failed to adhered to the mandate of law, which resultantly, appears to have deprived the petitioners of right to be considered for promotion.

“Accordingly, it is directed that the respondent authorities shall consider the case of the petitioners for promotion to the post of Assistant Engineer (Civil) post the filing of present writ petitions particularly, with effect from the year 2021 as the authorities, at the relevant point of time, have promoted as many as 83 (eighty three) numbers of Junior Engineers (Civil) to the rank of Assistant Engineers (Civil) without adhering to the mandate of law,” the Court said.

Citation: 2024 LiveLaw (Gau) 85

Case Title: Dul Malla Buzar Baruah v. The State of Assam & 6 Ors. and other related matter

Case No.: WP (C)/3299/2020

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