IMPORTANT POINT
Persons with disabilities are entitled to promotion under the Disabilities Act, 2016, and must be considered for such promotions as per the law.

JUDGMENT :

Heard Ms. D. Borgohain, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Senior Government Advocate for the State of Assam and Ms. P.P. Das, learned counsel appearing for the APSC.

2. Having considered that the issue involved in both writ petitions is analogous, same were heard together and are being disposed of by this common judgment and order.

3. By filing these two writ petitions, the petitioners have prayed for a direction to the respondent authorities to modify the O.M. dated 17.01.2019 so as to provide reservation in promotion to the post of Assistant Engineer (Civil) under Public Works Department, Government of Assam. The petitioners have also prayed for a direction to consider the case of the petitioners for promotion to the post of Assistant Engineer (Civil) against the 4% quota reserved for Persons With Disabilities (hereinafter PwD in short) as provided under the Rights of Persons with Disabilities Act, 2016, (hereinafter referred to as the Disabilities Act, 2016 in short).

4. The brief facts of the case are that the petitioners were appointed as Junior Engineer (Civil) under the Assam Public Works Department, who are PwDs. In WP(C) 3299/2020, the petitioner was appointed as Junior Engineer (Civil) under Assam Public Works Department, NH under Rangia Division on 03.10.1996. The petitioner suffers from Locomotor disability since 2014 and after re-examination of his disability, the Disability Certificate has been issued being registration No. 5088 dated 15.11.2017 to that effect and he has been receiving disability allowance since 19.08.2017.

5. In WP(C) 3317/2020, the petitioner was appointed as Junior Engineer (Civil) under Assam Public Works Department, Building on 21.11.1990. He became physical disabled in the year, 2016, which has been diagnosed as Spastic Left Hemiparesis and is a Locomotor Disability as per the provision contained in the rights of persons with Disabilities Act, 2016. The petitioner has been issued a Disability Certificate being Certificate No. 1399 dated 16.08.2016. In course of their services, the petitioners in the meantime have become eligible to be promoted to the cadre of Assistant Engineer (Civil) and by now, have been promoted on their own merit and positions in the Department.

6. It is contended by the petitioners that under the Disabilities Act of 2016, the petitioners are entitled to a preferential treatment of reservation under the 4% reservation in terms of the provisions of the Disabilities Act, 2016.

7. It is the contention of the petitioners that office memorandum dated 07.01.2019 issued by the Department of Personnel (B), Government of Assam, inter alia, provides that the benefit of reservation in promotion for persons with benchmark disabilities will be limited to the Grade-III and IV posts, where 4% of the posts shall be reserved for persons with benchmark disabilities. Since the benefit of reservation in promotion for persons with benchmark disabilities will be limited to the Grade-III and IV posts only, the petitioner would be disentitled to a reservation in promotion to the cadre of Assistant Engineer (Civil) in the PWRD as because the cadre of Assistant Engineer (Civil) is Grade-II.

8. It is contended that as per the provision contained in Section-34 of the Disabilities Act, 2016, every appropriate Government shall appoint in every Government establishment not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled up with persons with benchmark disabilities of which 1% each shall be reserved for persons with benchmark disabilities. The petitioner claims for implementation of the benefit of the Disabilities Act, 2016 and also relying on the decision of the Hon’ble Supreme Court in the case of Rajeev Kumar Gupta and others -Vs-The Union of India and Others reported in (2016) 13 SCC 153. The petitioners have submitted a representation before the respondent authorities praying for consideration of th