JUDGMENT

Mr. Sanjeev Prakash Sharma, J. (Oral)

The relief sought in the present writ petition is as to whether a person who has acquired disability while in service should be left out from consideration for promotion under their disabled quota merely because at the time of initial recruitment he or she was not disabled.

2. Case of the petitioner is that he was appointed as Beldar on 16.7.1992. In 2005, he suffered an accident and was declared disabled with more than 40% disability. He continued to serve with the respondent/ University and applied for promotion to the post of Budder, Plant Observer/ field-man under the handicapped quota available for promotion. However, his case was not considered and his application was rejected vide impugned order dated 9.1.2013. Referring to a decision taken by the University Board of Management in its 250th meeting held on 17.8.2011 provided for promotion quota only to those candidates who were initially engaged by direct recruitment against the physically handicapped quota. Since the petitioner had become disabled while in service, he was treated as not eligible to be considered against the disabled quota.

3. Learned counsel for the petitioner submits that the reservation is provided for disabled persons and all the disabled persons who are engaged or in service with the University and eligible for promotion, ought to be considered under the reserved post meant for disabled persons.

4. Learned counsel further submits that the scheme of reservation as provided under provisions of Rule 33 of Persons With Disabilities (Equal Opportunities, Protection) Act, 1995 (hereinafter referred to as the Disabilities Act of 1995) is meant for all disabled persons. The rule framed by the University is whether they are disabled initially or during the course of employment. Thus the decision taken by the University on 09.01.2013 is ultra vires to the provisions of Rule 33 of the Disabilities Act of 1995 and also seeks to create discrimination between similarly situated persons. It would further be violative of Article 14 of Constitution of India. The learned Counsel for the petitioner, thus prays for quashing of the said condition of the University along with the rejection letter as conveyed to the petitioner.

5. Learned counsel appearing for the University has stated that it is required to maintain the quota for disabled persons. Since, there is a said quota available for direct recruitment, similar quota has to be maintained for promotion too. However, on pointed query raised by the Court with regard to the fact of the persons who may have become disabled during the pendency of the service, learned senior counsel states that the matter requires to be re-examined by the university.

6. The counsel appearing for the State does not support the decision taken by the University and states that it is an independent decision of the university.

7. I have examined the matter with great care having regard to the nature of the issue involved in relation to the intention of the legislature to provide non-discrimination of persons who acquired disability while in service. If a logical corollary is taken from the decision of the University, that any person who may become disabled while in service would be dis- entitled for promotion under the disabled quota, then even those disabled persons who may have been selected on their own merit under the general quota would be dis-entitled for the further promotion under the disabled quota. Such cannot be the intention of the rule making authorities while framing Disabilities Act of 1995 as well as the New Rules which have come into force from 2016. The decision of the University to only allow those physically handicapped persons for consideration of promotion who were appointed by direct recruitment against the physically handicapped quota is found to be violative of Article 14 of Constitution of India as well as the Disabilities Act of 1995, as it creates discrimination per-se,