Sudhakar Malba Davkare vs Maharashtra Jeevan Pradhikaran ...
2017 Latest Caselaw 7331 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                       WRIT PETITION NO. 9019 OF 2016


      Sudhakar Malba Davkare,
      Age : 51 years, Occ. Service as
      Sub-Divisional Engineer,
      Maharashtra Jeevan Pradhikaran,
      Presently posted to work under Zilla
      Parishad, Aurangabad on deputation,
      R/o 34, MHADA Colony, Dargah Road,
      Near Railway Gate, Shahnoorwadi,
      Aurangabad.                                       ..       Petitioner

                       Versus

1.    Maharashtra Jeevan Pradhikaran,
      4th Floor, Express Towers,
      Nariman Point, Mumbai - 400 021.
      Through its Member Secretary.

2.    The Principal Secretary,
      Water Supply & Sanitation Dept.,
      G.T. Hospital Building, 7th Floor,
      Near Crawford Market,
      Lokmanya Tilak Marg,
      Mumbai - 400 001.

3.    The Secretary,
      Social Justice & Special Assistance Dept.,
      Extension Building, 1st Floor,
      Mantralaya, Mumbai - 400 032.

4.    The Commissioner of Disabilities and
      Competent Authority, Commissionerate
      of Persons with Disabilities,
      3, Church Road, Pune 411 001.                     ..       Respondents




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                                   ----
Mr. Ajay S. Deshpande, Advocate for the petitioner.
Mrs. R.P. Gour, A.G.P. for respondent-State.
Mr. D.P. Bakshi, Advocate for respondent no.1.
                                    ---

                                    CORAM :     S.V. GANGAPURWALA &
                                                MANGESH S. PATIL, JJ.

DATE : 20.09.2017

ORAL JUDGMENT (Per S.V. Gangapurwala, J.):-

. Rule. Rule made returnable forthwith. With the consent of

parties taken up for final hearing.

2. Mr. Deshpande, the learned counsel for the petitioner submits

that the petitioner is appointed as an Assistant Engineer Grade-II under

respondent no.1 on 21.10.1991, as against a vacancy ear marked for

persons with disability. The learned counsel submits that the petitioner

suffers 50% locomotor disability. The learned counsel further submits

that the petitioner passed the professional examination and thereafter

came to be regularized on 21.10.1994. The petitioner has been

extended benefit of time scale promotional scheme w.e.f. 21.10.2003

and on or about 24.06.2006 the petitioner came to be promoted as Sub-

Divisional Engineer on ad-hoc basis. The learned counsel submits that,

according to the respondent, the petitioner was promoted on ad-hoc

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basis as Sub-Divisional Engineer (S.D.E.) as against 34% quota meant

for direct recruits, as Assistant Engineer Grade-I to be filled in through

M.P.S.C. Since 2006 the petitioner is working as S.D.E. under

respondent no.1 and has also passed the professional examination for

the post of S.D.E. on 07.02.2008. The name of the petitioner appears in

the seniority list of S.D.E. published on 24.09.2015, however, by another

list published on the same date his name is deleted.

3. The learned counsel submits that in view of the provisions of

the Persons with Disabilities (Equal Opportunities, Protection of Rights &

Full Participation) Act, 1995 (hereinafter referred to as Act 1995), the

petitioner ought to have been promoted against the vacancy ear marked

for persons with disabilities. According to the learned counsel, now 4%

posts are reserved for persons with disabilities. The petitioner made

representation, however, the same is not considered. The learned

counsel submits that the issue that the seats are to be ear marked to be

filed in by promotion for persons with disability is no longer res integra in

view of the judgment of the Apex Court in a case of Rajeev Kumar

Gupta & Ors. V/s. Union of India & Ors. reported in 2016 SCC

Online SC 651. The learned counsel relies on the judgment of the

Division Bench of this Court dated 04.12.2013 in P.I.L. No. 106 of 2010.

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4. Mr. Bakshi, the learned counsel for respondent no.1 submits

that the reservation is to be provided for persons with disabilities at the

time of appointment by nomination and no reservation is to be provided

to the persons with disabilities for the post to be filled in by promotion.

The act also does not contemplate filling up the promotional post by

giving reservation to persons with disabilities. According to the learned

counsel, the petitioner was appointed on ad-hoc basis with a clear

understanding that whenever the candidate from M.P.S.C. would be

available the petitioner will be reverted back to his original position, as

the petitioner is promoted as against the quota meant to be filled in by

direct nomination through M.P.S.C. The learned counsel submits that,

passing of professional examination does not give vested right to the

petitioner to claim the post of S.D.E. in a substantive capacity.

According to the learned counsel, the post on which the petitioner is

promoted is not meant to be filled in by promotion but only by direct

nomination. There is no separate reservation for promotion to disabled

persons in 'A' and 'B' group post. The Government resolution dated

01.08.2011 also does not permit the same. The respondent is the

statutory body enacted under the provisions of M.J.P. Act and has

adopted all the provisions of Maharashtra Civil Services Rules. The

respondents cannot beyond the recruitment rules. The Central Act of

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1995 does not provide for reservation at the time promotion to the post

of Group 'A' and 'B' for disabled persons the case of the petitioner cannot

be considered. The learned counsel submits that the judgment of the

Apex Court relied by the petitioner in Rajeev Kumar Gupta (supra) is

not applicable, the facts in the said case are different, it deals with the

direct recruitment of I.A.S. examination pass candidates. The learned

counsel submits that no case is made out by the petitioner.

5. We have considered the submissions canvassed by the

learned counsel for the respective parties.

6. The fulcrum of the dispute is about the reservation for the

promotional post as against physically disabled category.

7. It is a matter of fact that there are three categories, 1)

Assistant Engineer Grade-I is meant for the persons holding degree

qualification and the said post is to be filed in by direct nomination

through M.P.S.C., 2) S.D.E. is to be filled in from the candidates

possessing degree qualification and by promotion from amongst

Assistant Engineer Grade-II and 3) S.D.O. is to be filled in by promotion

from the candidates possessing diploma qualification from amongst

Sectional Engineers.

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8. The petitioner possesses degree qualification and is in the

cadre of Assistant Engineer Grade-II. Presently, the petitioner is

promoted as S.D.E. on ad-hoc basis from the quota meant to be filled in

by direct recruitment through M.P.S.C. The petitioner is eligible for the

post of S.D.E. as having passed the professional examination for the post

of S.D.E. and also possesses degree qualification. The gravamen of the

respondents contention is that no posts are ear marked to be filled in by

promotion from physically disabled category. The contention of the

respondents is that reservation for physically disabled category is to be

provided while filling in the post by nomination and not by promotion.

The Apex Court in a case of Rajeev Kumar Gupta (supra) has observed

thus:

"21. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under State to certain classes of citizens identified to be a backward class. Article 16 (4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16 (1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16 (1), the State cannot choose any one of the factors such as caste, religion etc. mentioned in Article 16 (1) as the basis. The basis for providing reservation for PWD is physical disability and not

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any of the criteria forbidden under Article 16 (1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to the PWD.

24. 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 to 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, is must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post."

9. The Division Bench of this Court in P.I.L. No. 106 of 2010

under order dated 04.12.2013 has observed thus:

"11. In view of the aforesaid decision of the Supreme Court, it is clear that reservation has to be computed with reference to total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion. Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion.

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13. In view of the above directions, it is clear that the respondents will have to give benefits of reservation to persons with disabilities in the matter of promotion to posts in the Indian Administrative Services by applying the Office Memorandum dated 29 December 2005 and subsequent Office Memorandum consistent with the aforesaid judgment dated 8 October 2013 of the Supreme Court and accordingly give benefits of the reservation with effect from the date of issuance of the said Office Memorandum dated 29 December 2005."

10. In view of the authoritative pronouncement of the Apex Court

and this Court, the issue is now no longer res integra in as much as it

has been clearly held that the total number of vacancies in the cadre

strength would include the vacancies to be filled in by nomination and

vacancies to be filled in by promotion. It has also been observed in the

above referred judgment that once the post is identified, it must be

reserved for P.W.D. irrespective of the mode of recruitment adopted by

the State for filling up the post. The respondents are instrumentalities of

the State, they are bound to implement the provisions of the Act of 1995

in its true letters and spirit. Considering the judgments of the Apex

Court and this Court referred to supra the respondents now cannot

contend that the no promotional post can be reserved for candidates

from P.W.D. category.

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11. In light of the above, the respondents shall consider the claim

of the petitioner for promotion to the post of S.D.E. from persons with

disability quota. The quota shall be considered with effect from the date

of memorandum issued i.e. 29.12.2005. The same shall be considered

within three months. In case, the case of the petitioner is considered

positively, then, the consequential benefits shall follow. Writ petition is

accordingly disposed of. Rule accordingly made absolute in above terms.

No costs.

      [MANGESH S. PATIL, J.]                       [S.V. GANGAPURWALA, J.]




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