Delhi High Court
Municipal Corporation Of Delhi vs Manoj Gupta on 4 August, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
#17.
+ W.P.(C) 2821/2010
Date of Decision: 04.08.2010
MUNICIPAL CORPORATION OF DELHI ..... Petitioner
Through: Ms.Shobha Gupta, Adv.
Versus
MANOJ GUPTA ..... Respondent
Through: Mr. Arun Bhardwaj, Adv. with
Mr.R.L.Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in
the Digest?
: PRADEEP NANDRAJOG, J(oral)
1. Sh.Manoj Gupta, a physically handicapped person employed as
an Assistant Engineer, a Group „B‟ post, sought promotion to the next
post by relying upon the various office memorandums issued by the
Government of India from time to time and as adopted and applied by
the Municipal Corporation of Delhi. He claimed reservation in the
promotional post.
2. The Tribunal was confronted with the response of the petitioner,
that under the Corporation no reservation was provided in the
promotion quota for any Group „B‟ posts and above.
3. Relying upon a decision of this Court in W.P.(C) No.11818/2004
Union of India Thru G.M. Northern Railway Chairman, Railway Board
Vs. S. Jagmohan Singh, decided on 07.12.2007, the Tribunal has held
in favour of the respondent.
4. Since issues have been discussed thread bare in the decision in
S.Jagmohan Singh's case, which we note is a decision by a Co-
ordinate Division Bench, we refrain from writing an epilogue to the
said decision but would simply note that at the heart of the decision is
the mandate of Sections 33 and 47 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995 and O.M. dated 04.07.1997.
5. In para 20 and 21 of the decision, the Division Bench has held
as under:
"20. As noticed above, prior to the Disability Act coming
into force, the Government had, by administrative
instructions, provided reservation for physically
handicapped persons in Group C & D posts. After the
Disability Act came into force, such a reservation is now
permissible even for Group A & B posts. This led the DoPT
to issue OM dated 18.12.1997. Referring to Section 33 of
the Disability Act, this OM mentions that the reservation
stands extended to identified Group A & B posts filled
through direct recruitment. In this OM, however, it is
stated that such reservation would be termed as horizontal
reservation in contradistinction to the reservation of SC/ST
candidates where reservation is available at horizontal as
well as vertical level with the principle of interlocking of
vertical and horizontal reservations, as laid down by the
Supreme Court in the case of Indira Sawhney v. Union
of India & Ors., AIR 1993 SC 477. Though as per this OM
for Group A & B posts the reservation was only at induction
level, significantly corrigendum was issued by the DoPT
vide OM dated 4.7.1997, which reads as under :-
"Subject: Reservation for the physically
handicapped persons in Group A and B
Posts/Services under the Central Government.
The undersigned is directed to invite attention to this
department's O.M. No. 36035/169/91-Estt.(SCT) dated
18.2.97 on the above subject and to say that it has been
represented before the Government that the earmarking of
points no. 33, 67 and 100 in the prescribed register for
reservation for the physically handicapped would mean
that the physically handicapped candidates may have to
wait for a long time to get their turn for promotion. The
suggestion has been considered and it has now been
decided in partial modification of the O.M. cited above that
the point number of 34 and 67 in cycle of 100 vacancies in
the 100 point register and be marked for reservation for
physically handicapped. The other instructions contained
in the aforesaid O.M. remains unchanged.
Sd/-
(Y.G. Parande)
Director"
21. It is clear from the above that point No.34 and 67 in
the cycle of 100 are now earmarked for reservation for
physically handicapped and, thus, reservation is admissible
even for Group A & B posts in promotion category and not
only at the induction level. We are of the opinion that this
OM is brought in tune with the letter and spirit behind
Section 33 of the Disability Act. On interpretation of such a
provision legal position is abundantly clear."
6. We note that vide O.M. dated 16.01.1998 it has been mandated
as under:
"CORRIGENDUM
Subject: Reservation for physically handicapped in the
posts filled by promotion.
The undersigned is directed to invite reference in this
Department O.M. of even number dated 18.02.1997 on the
subject mentioned above and to say that the existing sub-
para (ii) thereof may be replaced as under:-
(ii) The existing policy of reservation for SCs/STs,
including for the physically handicapped in promotion in all
Groups is applicable to all grades and services, where the
element of direct recruitment does not exceed 75.
2. All Ministries/Departments are requested to bring the
above instructions to the notice of all Heads of Department
and appointing authorities under their control for
compliance."
7. We may simply note that it is not in dispute that for the post in
respect whereof the respondent claims a right of reservation under
the category of physically handicapped persons, element of direct
recruitment does not exceed 75%.
8. The writ petition is dismissed.
9. No costs.
10. We extend time for the petitioner to comply with the directions
issued by the Tribunal as per the order dated 09.07.2009 by another
three months reckoned from today.
C.M.5634/2010(stay)
Dismissed as infructuous.
PRADEEP NANDRAJOG,J
MOOL CHAND GARG, J
AUGUST 04, 2010
anb
