PUNJAB HIGH COURT VERDICT ON PROMOTION RESERVATION

CWP NO. 12741 of 2009
PUNJAB AND HARYANA HIGH COURT, CHANDIGARH.
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CWP NO. 12741 of 2009
Date of Decision: March 18, 2010.
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Viklang Sang, Haryana Versus State of Haryana and others.
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CORAM: Hon’ble Mr. Justice Mukul Mudgal, Chief Justice and
Hon’ble Mr. Justice Jasbir Singh.
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1.Whether Reporters of local papers may be allowed to see the judgment ?
2.Whether to be referred to the Reporters or not ?
3.Whether the judgment should be reported in the Digest?
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Present: Mrs. Anju Arora, Advocate, with
Mrs. Aditi Girdhar, Advocate, for the petitioner.
Shri Randhir Singh, Addl: A.G.Haryana,
for the respondents.
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Mukul Mudgal, CJ
1. This writ petition has been filed by Viklang Sabha, Haryana,
Sirsa having its registered office at 404, Ram Gali, Kirti Nagar, Sirsa
through its President Baljit Raj, an association of physically challenged
persons of the State of Haryana. The primary challenge in this writ petition
is to the policy of the Government of Haryana, which denied the benefit of
promotion to the disabled employees claimed under the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (hereinafter for brevity referred to as the ‘ Act’).
2. The principal grievance raised in the writ petition relates to the
denial of 3% quota in the promotional avenues to the disabled persons. The
main stress of the petitioner is on the fact that even the Central Government
provides 3% quota in promotional avenues as is evident from Annexure P-2
which is evident from a communication from the Ministry of Personnel,
Public Grievances and Department of Personnel & Training, New Delhi
addressed to one of the petitioners and the relevant portion of the said
communication reads as follows:-
‘(i) Reservation for SC candidates in departmental promotion
quota is 15%.
(ii) There is no reservation for OBC candidates in
departmental promotions quota;
( iii) R eservation for physically Handicapped persons
in departmental promotion quota is 3%;
(iv) With reference to point iv of your application, it
is the concern of Shri A.K.Srivastava, US (Estt.D) and
CPIO of this Department. Accordingly, your
application is being transferred to Shri A.K.Srivastava,
US (Estt.D) and CPIO for sending you a reply in the
matter’. (emphasis supplied).
3. Reliance has also been placed on the office memorandum dated
29.12.2005 issued by the Government of India, Ministry of Personnel
Department, New Delhi, the relevant portion of which reads as under:-
‘ With a view to consolidating the existing instructions,
bringing them in line with the persons with disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and clarifying certain issues
including procedural matters, the following instructions
are issued with disabilities (physically handicapped
persons) in posts and services under the Government of
India. These instructions shall supersede all previous
instructions issued on the subject so far.
2. Quantum of Reservation:
i) Three percent of the vacancies in case of
direct recruitment to Group A, B, C and D posts shall be
reserved for persons with disabilities of which one
percent each shall be reserved for persons suffering
from (i) blindness or low vision, (ii) hearing impairment
and (iii) locomotor disability or cerebral palsy in the
posts identified for each disability;
ii) Three percent of the vacancies in case of
promotion to Group D, and Group C posts in which the
element of direct recruitment, if any, does not exceed
75% shall be reserved for persons with disabilities of
which one percent each shall be reserved for persons
suffering from (i) blindness or low vision, (ii) hearing
impairment and (iii) locomotor disability or cerebral
palsy in the posts identified for each disability.
(emphasis supplied).
X X X X X X X X X XX XX X X X X X X X X X X
4. It has also been submitted that even in the category of
Scheduled Caste candidates reservation on promotion is being given to such
employees in Haryana itself in Class III and Class IV posts.
5. The respondent State of Haryana has adopted a stand is that
there are provisions in the Act for reservation of posts for the initial
recruitment of disabled persons as is evident from Sections 32 and 33 of the
Act but there is no provision in the Act for reservation for the disabled in
promotions. It is also submitted that since the State Government has already
made a provision for reservation at 3% at the time of appointment for
disabled persons, such a reservation cannot be given in promotion. For this
purpose the letter dated 23.12.2002 issued by the Chief Secretary, to
Government of Haryana is sought to be relied upon. The relevant portion of
the letter in question reads as follows:-
‘Sir, I am directed to refer to your letter No.
12279/H-3/SZ/2002 dated 16.8.2002 on the subject noted
above and to inform you that there is no need to provide
reservation in promotion in Class III & IV posts to
Physically Handicapped persons.
Yours faithfully,
Sd/-
Under Secretary General Administration,
for Chief Secretary to Government
Haryana’.
6. The learned counsel for the petitioner placed reliance on the
judgment of the Delhi High Court Union of India through G.M. Northern
Railway Versus Jamohan Singh etc, where the following proposition of law
was laid down:-
‘ 18. The conjoint reading of Sections 33 and 47
of the Disability Act giving the interpretation which
these provisions deserve, we are of the opinion that the
persons with disability would be entitled to reservation
even in promotion if the promotion is to Group C and D
post’.
7. In our view Section 47 of the Act is a crucial provision which
reads as under:-
47. Non discrimination in Government employment-
(1) No establishment shall dispense with, or reduce in rank, an
employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not
suitable for the post he was holding, could be shifted to some other
post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until a
suitable post is available or he attains the age of superannuation,
whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his
disability:
Provided that the appropriate Government may, having regard to the
type of work carried on in any establishment, by notification and subject
to such conditions, if any, as may be specified in such notification,
exempt any establishment from the provisions of this section.(emphasis
supplied).
8. Section 47 (2) cannot be construed so as to grant employment
to disabled persons merely at the initial stage of induction in service. The
intention of the Act is clear and equal opportunity for career progression
including promotion is clearly the legislative mandate. Giving any other
meaning of the said provision will defeat the object of the Statute. The
relevant portion of the objects and reasons of the Act are reproduced as
under:-
(i)to spell out the responsibility of the State towards the
prevention of disabilities, protection of rights, provision of
medical care, education, training, employment and
rehabilitation of persons with disabilities;
(ii)to create barrier free environment for persons with
disabilities;
(iii)to remove any discrimination against persons with
disabilities in the sharing of development benefits, vis-a-vis
non disabled persons;
(iv)to counteract any situation of the abuse and the
exploitation of persons with disabilities;
(v)to lay down a strategy for comprehensive development of
programmes and services and e qualization of opportunities
for persons with disabilities; and
(vi) t o make special provision of the integration of persons with
disabilities into the social mainstream’.(emphasis supplied).
9. Sub-clause (i) and (v) of the said objects and reasons are more
significant because it require the State to provide for employment to
disabled persons. It also stresses on equalization of opportunities which can
not be achieved only at the initial stage of recruitment. If the plea of the
State is to be accepted and the benevolent legislation is given a restricted
meaning it could lead to stagnation of the disabled at the initial recruitment
level and would eventually lead to uncalled for frustration. We thus
respectfully agree with and reiterate the view taken by the Delhi High Court
in the above quoted judgment in Union of India through G.M. Northern
Railway Vs. S. Jagmohan Singh in WP No. 11818 of 2004 dated 7th
December, 2005.
10. The Parliament did not by this Legislation intend to give a
token initial representation to the disabled but intended to provide
employment with full avenues for career progression by way of promotion.
11. In the light of the above, it is evident that the purpose of the
Act would be defeated by giving it the meaning adopted by the State of
Haryana. It is a settled principle of law that the word ’employment’
includes promotion. The Hon’ble Supreme Court in the case of Ajit Singh
and others (ii) Vs. State of Punjab and others 1999(7) SCC 209 vide para
22 has defined the word ’employment’ to include promotions within its
ambit:-
‘It has been held repeatedly by this Court that
sub-clause (1) of Article 16 is a facet of Article 14 and
that it takes its roots from Article 14. The said subclause
particularizes the generality in Article 14 and
identifies, in a constitutional sense “equality
opportunity” in matters of employment and appointment
to any office under the State. The word ’employment’
being wider, there is no dispute that it takes within
its fold, the aspect of promotions to posts above the
stage of initial level of recruitment. Article 16(1)
provides to every employee otherwise eligible for
promotion or who comes within the zone of
consideration, a fundamental right to be “considered”
for promotion. Equal opportunity here means the
right to be “considered” for promotion. If a person
satisfies the eligibility and zone criteria but is
not considered for promotion, then there will be a
clear infraction of his fundamental right to be
“considered” for promotion, which is his personal
right. “Promotion” based on equal opportunity and
‘seniority’ attached to such promotion are facets
of fundamental right under Article 16(1). (Amphasis
supplied).
12. Similarly in Union Public Service Commission Vs. Girish
Jayanti Lal Vaghela and Others 2006(2) SCC 482, the Hon’ble Supreme
Court again interpreted the word ’employment’ as under:-
‘Article 16 which finds place in Part III of the
Constitution relating to fundamental rights provides that
there shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office
under the State. The main object of Article 16 is to create a
constitutional right to equality of opportunity and
employment in public offices. The words “employment” or
“appointment” cover not merely the initial appointment
but also other attributes of service like promotion and age
of superannuation etc.’ (emphasis supplied).
13. Even the Government of India, through the Ministry of
Personnel, Public Grievances & Pension, Department of Personnel &
Training, New Delhi has reserved posts for the handicapped in
departmental promotions to the extent of 3%. The information supplied vide
letter dated December 05, 2007 to the petitioner by the aforesaid Ministry is
to the following effect:-
‘ (i) Reservation for SC candidates in departmental promotion
quota is 15%.
(ii)There is no reservation for OBC candidates in departmental
promotion quota.
(iii)Reservations for physically Handicapped quota is 3%.
(iv) x x x x x x x x x x x x x x x x x x x x x x x x x x x x x .“
14. In view of the above position of law laid down by the Hon’ble
Supreme Court, the Court must adopt a liberal interpretation which
advances the achievement of the object of the Act. The interpretation which
is sought to be suggested by the State for denying reservation of 3% in the
promotional avenues would obviously defeat the object of the Act. This
would also be contrary to the mandate of Directive Principles contained in
Articles 38 and 41 of the Constitution of India which read as under:-
Article:- 38- State to secure a social order for the
promotion of welfare of the people.- (1) The State shall
strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in
which justice, social economic and political, shall inform
all the institutions of the national life.
(2) The State shall, in particular strive to minimize the
inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of
people residing in different areas or engaged in different
vocations.)“
Article 41.- Right to work, to education and to public
assistance in certain cases.- The State shall, within the
limits of its economic capacity and development, make
effective provision for securing the right to work, to
education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in
other cases of undeserved want.“
15. Keeping in view the findings in this judgment, the writ petition
is allowed. The letter dated 23.12.2002 issued by the Under Secretary
General Administration, for Chief Secretary to Government of Haryana is
accordingly quashed and set aside. We also direct the respondents to keep
3% posts reserved for promotion for the disabled by giving them
promotions as per directions and guidelines issued by the Ministry of
Personnel dated 20.11.1989 (Annexure P-5) not later than six months from
today. The petitioner shall be entitled to costs quantified at Rs. 20,000/- to
be paid not later than four weeks from today.
Mukul Mudgal)
Chief Justice
( Jasbir Singh )
Malik Judge

March 18, 2010.