Reservation for physically disabled persons should be available in all identified posts, irrespective of the mode of recruitment.

K.M. JOSEPH, C.J.

Petitioner has approached this Court seeking the following prayers :-

“(i) declare withholding of benefit of reservation to physically disabled persons in the matter of appointment/promotion to posts in department of Higher Education, as arbitrary and illegal.

(i-a) issue writ, order or direction in the nature of certiorari for quashing the directives issued vide O.M. dated 10.11.2010 (Annexure No.2 to the writ petition) in so far as it denies benefit of reservation to disabled persons for promotion to Group A & B posts.

(i-b) to declare the artificial classification made between Group A & B posts vis-a-vis Group C & D posts for the purpose of reservation in promotion under Section 33 of Act No. 1 of 1996, by Uttarakhand Government vide O.M. dated 10-11-2010, as arbitrary and illegal.

(ii) issue a writ, order or direction in the nature of mandamus commanding respondent No.1 to give reservation to disabled persons in promotions in terms of Section 33 of the Parliamentary Act No.1 of 1996 and office memorandum dated 10.11.2010 issued by Government of Uttarakhand.

(iii) issue a writ, order or direction in the nature of mandamus commanding respondent No.1 to consider and promote the petitioner to the post of Principal Post Graduate College against a post reserved for physically disabled persons under Section 33 of the Parliamentary Act No. 1 of 1996.

(iv) issue a writ, order or direction in the nature of mandamus commanding respondent no.1 to promote the petitioner as Principal Post Graduate College notionally from 12.08.2009, when two Junior persons belonging to SC category were promoted as Principal P.G. College.”

2. Briefly put, the case of the petitioner is that petitioner belongs to Scheduled Caste community. She possessed M.A. (Sanskrit) Degree besides Ph.D. in the same subject. She was selected as Lecturer on 01.02.1982 in the Higher Education Department. On 20.04.2000, she came to be promoted as Principal, Government Degree College. The next higher post was Principal of Post Graduate Degree College which is equivalent to the post of Joint Director. Further higher post which is the last post which a person can aspire is the post of Director. The Government of Uttarakhand has issued Office Memorandum dated 10.11.2010. Reference is made particularly to para 14 (H), which deals with the reservation in promotion to Group A & B posts. Petitioner also is physically handicapped person and her left hand is crippled. She can neither move left hand nor can do any work with the said left hand. Reliance is placed on the certificate issued by the Chief Medical Officer, Pithoragarh certifying disability is to the extent of 90%. Seventeen persons were promoted as Principal, Post Graduate College in the year 2009. There were further promotions again in 2014. Petitioner made a representation seeking reservation.

3. We heard Sri Manoj Tiwari, Senior Advocate assisted by Sri Alok Mahra, Advocate for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand.

4. The point which is canvassed before us is the legality of the Memorandum, in so far as it provides that benefit of reservation for physically handicapped will not be available for Group A and Group B posts when it is by way of promotion to the said post. He would submit that matter is no longer res integra as the Apex Court has pronounced on the issue. He relied upon the recent judgment of the Apex Court in Civil Appeal No. 5389 of 2016. Therein, the petitioners were employed with Prasar Bharati Corporation as disabled persons. Therein, the posts were classified into four groups A to D. Each group consists of a number of classes of posts and in each class there were a number of posts. Certain posts were identified by Government of India as posts suitable for being filled up by physically handicapped persons. However, a problem arose in the following fashion :

“5. Memorandum II provides for reservation in favour of PWD to the extent of t