Persons with benchmark disabilities entitled to 4% reservation in promotion to identified posts irrespective of mode, notionally from 30.06.2016 subject to eligibility via review committee; supernumerary posts permissible; actual benefits from joining.

JUDGMENT :
Ranjan Sharma, Judge

Petitioner, Shobu Ram, a Clerk, under the Respondent-Corporation, at the relevant time, filed Original Application No.6530 of 2016 before the Administrative Tribunal and after abolition of the Tribunal, the matter was transferred to this Court as CWPOA No.792 of 2020, seeking the following reliefs:-

“(1) Declare the Recruitment and Promotion Rules contained in Annexure A-3 to be declared unconstitutional and illegal and binding upon the applicant as if does not provide reservation of 3% quota in promotional avenue in view of the law laid down by the Hon’ble Supreme Court and various other High Courts declaring the persons with disability entitled to the aforesaid reservation in Promotional avenue under the Person with disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 by issuance of order and directions to the respondents department to amend the R&P Rules by way of incorporation of provision of promotional quota of 3% for promotions to the disabled persons under the Act;

(II) The respondent corporation may kindly be directed to considered the case of the applicant to provide 3% quota in promotion to the disabled person and granted promotion with seniority from the initial date of his joining.”

FACTUAL MATRIX:

2. Grievance of the petitioner is that he was initially appointed as Clerk/Announcer under 3% quota meant for disabled persons on contract basis in the Respondent-Corporation and while working as such, he was granted regular appointment from the date of initial appointment on 01.01.2005 [Annexure A-1]. It is averred that petitioner is entitled for reservation in promotion being a physically handicapped person under The Persons With Disabilities [Equal Opportunities to Protection of rights and full participation] Act, 1995 and the mandate of law of the Hon’ble Supreme Court in the cases of National Confederation Development of Disabled and another versus Union of India , (2013) 10 SCC 722 and the judgment in Rajeev Kumar Gupta and others versus Union of India and others (2016) 13 SCC 153 [Annexure A-4], but the action of the Respondent-Corporation in not granting benefit of reservation in promotion to the petitioner, being a person with disability as per the mandate of law and The Statute is unfair, unjust, illegal and the unconstitutional.

STAND OF STATE AUTHORITIES-RESPONDENTS IN REPLY-AFFIDAVIT:

3. Pursuant to the issuance of notice by this Court on 14.12.2016, Respondent-Corporation has filed Reply-Affidavit dated 24.05.2017 of Regional Manager (Legal), HRTC Headquarter, Shimla.

3(i). In Paras 1 to 3 of the Reply/Affidavit the Respondent-Corporation has stated that in- principle the Corporation follows the State Government Instructions and at present no Instructions have been issued by State Government for providing promotion for persons with disabilities and, as such, no reservation in promotion can be provided for persons with disabilities, alike a petitioner.

3(ii). Para 2 of Reply-Affidavit states that in the normal course, the name of the petitioner was considered for promotion to the post of SeniorAssistant by the Departmental Promotion Committee in the month of March, 2017 but due to disciplinary proceedings the consideration was kept in a sealed cover.

In this backdrop, the State Authorities have filed prayed for the dismissal of the writ petition.

REBUTTAL BY PETITIONER:

4. Though no rejoinder has been filed but Learned Counsel for the petitioner submits that the