Shifting disabled employee to new post under Section 47 does not require counting prior service for new cadre seniority; existing employees' seniority protected; promotion denial valid if lacking minimum experience, not merely due to disability. (38 words)

JUDGMENT :

M.W. CHANDWANI, J.

1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

2. The controversy in this petition lies in a narrow compass i.e. whether in the process of shifting a disabled person to other suitable post/cadre in view of the mandate of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 (hereinafter referred to as “the Act of 1995”), seniority of the employees in the said cadre can be disturbed.

3. The relevant facts that require mention here are as follows :

In the year 2002, the petitioner was appointed on the post of ‘Lab Technician’ with respondent no.3 – Zilla Parishad, Yavatmal by following due procedure. In the year 2010, the petitioner incurred disability of low vision. Therefore, the petitioner requested respondent no.3 to shift his services to some other post with the same pay-scale and other benefits. Since, respondent no.3 did not take any decision, the petitioner filed Writ Petition No. 6254/2015 before this Court. The Division Bench of this Court allowed the petition on 08.03.2016 with a direction to respondent no.3 to submit the appropriate proposal to respondent no.2 for absorbing/appointing the petitioner as Extension Officer (Panchayat) in accordance with the provisions of the Act of 1995 and the Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967 (hereinafter referred to as “the Rules of 1967”). Pursuant to the said direction, the petitioner was absorbed on the post of Extension Officer (Panchayat) vide appointment order dated 16.06.2016. The petitioner joined the services on the post of Extension Officer on 01.07.2016 and is continuously working on the said post with respondent no.3, since the last six and half years.

4. On 01.01.2023, respondent no.2 published a provisional Seniority List of the Zilla Parishad employees who were eligible for promotion in Maharashtra Vikas Seva Group-B category in which, the name of the petitioner was not included. The petitioner raised an objection before respondent no.2 as to his seniority as well as non-inclusion of his name in the list of candidates eligible for promotion. The said objection was overruled and final Seniority List was published for promotion in Maharashtra Vikas Sewa Group-B category on 20.08.2024, wherein the name of the petitioner was not included. Feeling aggrieved, the present writ petition has been filed.

5. Mr. P. B. Patil, learned counsel appearing on behalf of the petitioner submits that the petitioner’s initial appointment was on 18.02.2002 as ‘Lab Technician’. Due to the disability incurred by the petitioner during service, he was absorbed on the post of ‘Extension Officer (Panchayat)’ with respondent no.3. While being absorbed to the post of Extension Officer (Panchayat), the petitioner was put at the bottom of the Seniority List. According to the learned counsel, since the petitioner has been transferred from the post of Lab Technician to the post of Extension Officer (Panchayat), for the purpose of seniority, his initial date of appointment should have been considered by respondent no.2 while preparing the Seniority List of Extension Officers who were eligible for promotion. However, respondent no.2 ignoring the date of appointment of the p