Bombay High Court
Shri. Anadrao Narayan More vs The State Of Maharashtra Through ... on 28 January, 2021
Bench: A.A. Sayed, Madhav Jayajirao Jamdar
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wpst-58-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO. 58 OF 2021
Anand Narayan More & Ors. ... Petitioners
Vs.
The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION (STAMP) NO. 98876 OF 2020
Dhananjay Ambadas Patil ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION (STAMP) NO. 97023 OF 2020
ALONGWITH
Sanjaykumar Shashikant Kokane & Ors. ... Petitioners
Vs.
The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION (STAMP) NO. 97030 OF 2020
Bhimashankar Malllinath Mitakre ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION (STAMP) NO. 98060 OF 2020
ALONGWITH
INTERIM APPLICATION (STAMP) NO. 154 OF 2021
Chintaman Gulabrao Vanjari ... Petitioner
Vs.
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The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION NO. 13058 OF 2018
ALONGWITH
INTERIM APPLICATION NO. 3798 OF 2020
ALONGWITH
INTERIM APPLICATION NO. 3799 OF 2020
ALONGWITH
INTERIM APPLICATION NO. 3800 OF 2020
Bholaso S/o. Vitthal @ Vithu Chaugule ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION (STAMP) NO. 10955 OF 2016
Mr. Rajesh Bhanudas Andhale ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
ALONGWITH
WRIT PETITION (STAMP) NO. 1362 OF 2021
Mahendra Ramesh Patil ... Petitioner
Vs.
The State of Maharashtra & Ors. ... Respondents
...........
Mr. Vinod P. Sangivkar a/w. Ms. Vaishali Gholave for the Petitioners in
WPST/58/2021, WP/13058/2018 and WP/1362/2021.
Mr. Mahendra V. Shingade for the Petitioner in WPST/98876/2020.
Mr. Sugandh B. Deshmukh for the Petitioner in WPST/97023/2020,
97030/2020, 980601/2020, 10955/2016 for the Petitioner.
Mr. A. A. Purav, AGP for the Respondent-State in WPST/98876/2020,
WPST/97023/2020, WPST/97030/2020, WPST/98060/2020 and
WPST/1362/2021.
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Mr. Ashutosh Kulkarni, "A" Panel Counsel with Smt. A. A. Purav, AGP for the
Respondent-State in WPST/13058/2018 and WPST/10955/2016.
Mr. Prashant Bhavke for the Applicants in IAST/154/2021 in Writ Petition
(ST) No. 98060 of 2020.
Mr. Balasaheb Deshmukh for the Applicant in IA/3799/2020 and
IA/3800/2020.
...
CORAM : A. A. SAYED &
MADHAV JAMDAR, JJ
DATED : 28th JANUARY, 2021
P.C.:
On 5 January 2021, the Division Bench of this Court passed
an order, paragraphs 9 to 11 whereof read thus:
"9. We have clarified it in our order dated 15
December 2020 that it is because of the circumstances
stated therein, to protect the rights of the physically
challenged we had to pass an ad-interim order. We had
expected the State Government to file an affidavit to place
before us to show how the right of the physically challenged
in promotion, now recognized by the Apex Court, will be
protected. No such affidavit is forthcoming. The learned
Counsel for the Petitioner is right in contending that there is
no question of taking any policy decision but only modalities
have to be worked out. In spite assuring the Court in the
year 2018 that the modalities will be worked out,nothing
has been done. Till the time a positive statement on oath
assuring that right of the physical challenged will not be
jeopardized and in what manner it will secured, it is not
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possible to vary the ad-interim order. We had also indicated
that an uniform decision will have to be taken as more
petitions are being filed raising identical grievances from
different departments.
10. As regards the Writ Petition (ST) No.98876 of
2020 which is listed on board today, the ad-interim order
/direction granted on 3 November 2020 and 15 December
2020 in the other Petitions not to finalize the promotion
process for the post claimed by the Petitioner,shall operate
in this Petition as well.
11. We give one more opportunity to the State
Government to place on record how it intends to protect the
rights of the physically challenged in respect of promotions
of Group A and Group B. We expect the State Government
to positively place on record by way of an affidavit the steps
that the State Government intends to take to ensure that
the rights of the physically challenged for promotion are not
jeopardized or frustrated. Once such an affidavit is placed
on record the Court may consider whether to continue the
ad-interim order or not."
2. Pursuant to the aforesaid order, an Affidavit dated 15-01-
2021 has been filed by the Deputy Secretary, General
Administrative Department of the State Government. In
paragraphs 2,3 & 4 of the Affidavit it is stated as follows:
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"2. I say and submit that, vide judgment dated 30.06.2016 in
W.P. (C) No. 521/2008 titled Rajeev Kumar Gupta Vs. Union of
India, Hon'ble Supreme Court had directed that, the Government
to extend three percent reservation to P.W.D. in all identified posts
in Group A and Group B irrespective of the mode of filling up of
such posts. In the meantime, in the matter of Civil Appeal No.
1567/2017 (SLP (C) No. 24994/2016) title Siddaraju Vs. State of
Karnataka and Ors., the Hon'ble Supreme Court in its order dated
03.02.2017 held that, they had found merit in the contention that
the matter needed to be considered by the larger Bench and
accordingly directed the matter be placed before the Hon'ble
Chief Justice for appropriate action. The State Government follows
the policies of the Central Government in case of persons with
disabilities. As the Central Government is yet to take any decision
about providing reservation in Group A and Group B posts to the
persons with disabilities, the General Administrative Department
had taken a decision with approval of Hon'ble Chief Minister to
wait for the policy decision of the Central Government on the
issue.
3. The process of identifying of posts in the State
Service for the persons with disabilities comes under the purview
of Social Justice and Special Assistance Department. Hence the
General Administration Department had given instructions by
letter dated 25th April 2018 to Social Justice and Special
Assistance Department to initiate process of identifying
promotional posts of Group A and Group B in the State Service.
4. In the meantime, in Civil Appeal No.1567/2017 (SLP
(C) No.24994/2016) titled Siddaraju V/s State of Karnataka and
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Ors., the Hon'ble Supreme Court in its order dated 14-01-2020
has given final decision by larger bench. The decision about
providing reservation in Group A and Group B posts to the
persons with disabilities is rendered by the Hon'ble Supreme
Court on 14-01-2020. Pursuant to the Hon'ble Supreme Court's
decision dated 14-01-2020, file had been submitted to the
Government for Cabinet approval to take a conscious decision
about reservation in promotion in Group-A and Group-B posts for
the persons with disabilities in the State. In the meantime,
information has been received from Central Government via
Letter dated 22nd December 2020 that Central Government has
filed an "Application for Clarification" (Diary No.210008/2020) in
the Hon'ble Supreme Court on 28-09-2020 in the matter of Civil
Appeal No.1567/2017 (Siddaraju Vs. State of Karnataka). In the
said letter, Central Government has requested to Hon'ble
Supreme Court to clarify the following points-
1) Clarify the judgment dated 14-01-2020 passed in Civil
Appeal No.1567 of 2017 that whether vacancies for
promotion for PWDs would be computed only on the basis
of the vacancies against the identified posts or against the
vacancies in both identified and non-identified posts.
2) Clarify whether reservation can be given to PWDs at the
time induction from Scs/Non-Scs to IAS.
3) Clarify the judgment dated 14-01-2020 passed in Civil
Appeal No.1567 of 2017 that whether the intention of the
judgment is to grant reservation in promotion beyond the
lowest rung of Group A or up to the lowest rung of Group A.
4) Whether judgment dated 14-01-2020 in Civil Appeal
No.1567 of 2017, titled Siddaraju v/s. State of Karnataka,
along with its tagged cases, is to be implemented on the
basis of the Persons with Disabilities (Equal Opportunities,
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Protection of Rights and Full Participation) Act, 1995 (based
on which the case was filed) or the Rights of Persons with
Disabilities Act, 2016 ( the latest Act applicable on the date
of judgment). The Act, 1995 has, since been replaced by
the Act of 2016.
5) The State Government also wants to clarify the above
points to take the decision about reservation-in-promotion
in Group-A and Group-B posts for the persons with
disabilities. Hence, in accordance with the letter of Central
Government, file has been submitted again to take a
conscious decision about reservation in promotion in Group-
A and Group-B posts for the persons with disabilities in the
State. After the policy decision taken by Government of
Maharashtra, 4% reservation in promotion in Group-A and
Group-B posts for the persons with disabilities will be
applicable to all State Government servants."
3. In our view the Affidavit dated 15-01-2021 does not set out
any positive steps taken by the State Government as directed in
paragraph 11 of the order dated 05-01-2021.
4. Our attention is invited to the Notification dated 4-01-2021
of the Ministry of Social Justice and Empowerment, Government of
India [Department of Empowerment of Persons with Disabilities
(Divyangjan)], whereby the Central Government, based on the
recommendations of the Expert Committee, has identified suitable
posts in Groups A, B, C and D for persons with benchmark
disabilities. A Notification dated 12-11-2020 of the State
Government is also pointed to us whereby an Expert Committee
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comprising of 17 persons has been appointed. On a query by the
Court whether the said Expert Committee has conducted any
meeting, we are informed that the said Expert Committee has not
been able to hold any meeting.
5. In the circumstances, we are not inclined to vacate the ad-
interim orders passed by this Court, as suggested by the Counsel
on behalf of the State Government. Since the Affidavit dated
15.01.2021 is devoid of particulars and steps taken so far either
by the General Administrative Department or Social Justice and
Special Assistance Department, we now direct the Chief Secretary
of the State Government to file a comprehensive Affidavit setting
out the steps taken and steps proposed to be taken to identify the
posts in the establishment of the State Government which can be
held by respective category of persons with benchmark
disabilities, after convening a meeting with all concerned including
the Expert Committee. The Affidavit shall set out what exercise
has been carried out and proposed to be carried out including the
data and statistics that has been collated so far to identify the
posts and the outer limit within which the exercise would be
completed. Such Affidavit to be filed before the next date.
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6. We are informed that some of the Officers of Group A and
are due to retire on superannuation in the next few days and they
have not been promoted due to the ad-interim order passed by
the Court. In the interest of justice, we permit the State
Government, if so advised, to grant promotions to such of the
officers who are due to retire on superannuation on or before 28 th
February, 2021 and whose promotions are not granted due to the
ad-interim orders passed by this Court.
7. Stand over to 25th February, 2021.
(MADHAV JAMDAR, J.) (A. A. SAYED, J.)
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