The interpretation of Section 33 of the Persons with Disabilities Act, 1995 and its application to reservation in promotional avenues.

Tarlok Singh Chauhan, J.

1. The moot question involved in this appeal is as to whether reservation provided under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the ‘Act’ 1995) is available even on promotion.

2. Since the issue is predominantly a legal one therefore, it is not necessary to set out the facts in detail, suffice it to observe that the petitioner, after completing his matriculation, was appointed as Clerk in the office of Divisional Forest Officer, Renuka Division against vacancy reserved for physically handicapped person and had filed a writ petition seeking direction to the respondent-State to grant reservation even while making promotion to the next higher post. Petition came to be dismissed by the learned writ court, giving rise to the present appeal.

We have heard the learned counsel for the parties and have gone through the records of the case.

3. Sh. Sunil Mohan Goel, learned counsel for the appellant would vehemently argue that the issue involved in the appeal is no longer res integra in view of the judgment rendered by the learned Division Bench of the Punjab and Haryana High Court in Viklang Sang, Haryana Vs. State of Haryana & Ors., CWP No. 12741 of 2009, decided on 18th March, 2010, wherein it was held that that the court must adopt a liberal interpretation which advances the achievement of the object of the act and, therefore, denying reservation of 3% in promotional avenues would defeat the object of the act and at the same time would be contrary to the mandate of directive principles contained in Articles 38 and 41 of the Constitution of India.

4. We really need not delve any longer on the question raised in this petition, as the same stands squarely answered against the appellant by a learned Division Bench of the Rajasthan High Court in Arun Singhvi Vs. New India Assurance, Civil Special Appeal (W) No. 628 of 2010, decided on 4.11.2015.

5. At the outset, we may note that the learned Division Bench of the Bombay High Court in National Confederation for Development of Disabled & Anr Vs. Union of India & Ors, (PIL) No. 106/2000, decided on 4.12.2013, based on its interpretation of the Hon’ble Supreme Court in Union of India & Anr Vs. National Federation of the Blind and Ors (2013) 10 SCC 772, held that the Hon’ble Supreme Court had directed that 3% reservation under the Act is to be computed on the total number of vacancies in the cadre strength, the same would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. This decision was assailed in SLP (C)…CC No.13344/2014 in case titled Union of India & Ors Vs. National Confederation for Development of Disabled & Anr and was rejected vide order dated 12.9.2014.

6. We may also note that the judgment rendered by the learned Bombay High Court was thereafter considered by the Hon’ble Supreme Court in National Federation of The Blind Vs. Sanjay Kothari, 2015 (9) SCALE 611 and all these decisions have thereafter been considered by a learned Division Bench of the Rajasthan High Court in Arun Singhvi’s case (supra). Relevant paras read thus:-

“Strong reliance was placed on judgment of Bombay High Court in National Confederation for Development of Disabled & Anr. v. Union of India & Ors., Public Interest Litigation No. 106/2000 decided on 04.12.2013, wherein, Bombay High Court based on its interpretation of judgment of Hon'ble Supreme Court in Union of India & Anr. v. National Federation of the Blind & Ors. (2013) 10 SCC 772 came to the conclusion that as Hon'ble Supreme Court has directed that 3% reservation under the Act is to be computed on the total number of vacancies in the cadre strength, the same include the vacancies to be filled in by nomination and vacancies to be filled in by promotion; it was submitted that Special Leave Petition (C)... CC No. 13344/2014 Union of India & Ors. v. National Confederation for Development of Dis