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2017 Supreme(MP) 874
IN THE HIGH COURT OF MADHYA PRADESH
S.C. Sharma , J.
Sushil Kanojia v. The Oriental Insurance Co. Ltd. and othes
Writ Petition No. 5210 of 2015 (Indore) ; Decided on 2.11.2017
Ms. Ritu Bhargava for petitioner; Dilip Kshirsagar for respondent No.1
Headnote:(1) Civil Services -- physically challenged person with 50% Locomotor disability -- respondents directed to reserve vacancies keeping in view the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and instructions issues by Government of India.
Held : This Court in light of the aforesaid, is of the considered opinion that the respondents are under an obligation to reserve 3% posts of the total vacancies for the persons with disabilities with 1% each for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability.
Resultantly, the writ petition stands allowed and the respondents are directed to reserve vacancies keeping in view the Act of 1995 and the instructions issued by Government of India, within a period of three months from the date of receipt of certified copy of this order. The respondents shall thereafter, also consider the petitioner’s case for promotion in respect of reserve vacancy, within a further period of three months thereafter. (2013)10 SCC 772 discussed. (2015)10 SCC 292 distinguished. Writ Petition (Civil) No. 521 of 2008 decided on 30.6.2016 followed.
(2) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 -- S.2(k) -- "establishment" -- includes respondent company. [Para 10
(3) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 -- Ss.32,33 and 36 -- various office Memorandums issued by Government of India -- in an establishment, employer is under obligation to reserve 3% posts in respect of Groups A, B, C and D for persons with disability. [Para 15
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1. The petitioner before this Court is a Physically Handicapped Person under the employment of Oriental Insurance Co. Ltd. and he is having 50% locomotor disability. He was appointed as Office Assistant on 13.3.1997 and was promoted to the next higher post i.e. Senior Assistant which is again a Group-C post against a single reserved vacancy on 3.1.2011.
2. The petitioner’s contention is that he was entitled for promotion under the category meant for Physically Handicapped Person from much earlier date i.e. after he has completed three years as Office Assistant (Group-C) and he was entitled for promotion w.e.f. 1.1.2001. The petitioner has further stated that as per Office Memorandum dated 16/01/1998 issued by Government of India which is applicable in respect of petitioner’s organization, the policy of reservation for Schedule Cast, Schedule Tribe and Physically Handicapped Person in promotion is applicable in respect of all groups i.e. Group-A, B, C and D. The petitioner has further stated that earlier Office Memorandum was superseded and the Union of India has issued another Office Memorandum dated 29.12.2005 which also provides for 3% reservation to the post under Group-A, B, C and D category.
3. The petitioner’s grievance is that respondents are not at all implementing the Office Memorandum issued by Union of India even though the respondent No.1 is a Public Sector Undertaking. The petitioner before this Court has prayed following reliefs :
“(i) Issue a writ, order or direction in the nature of CERTIORARI or other appropriate writ, calling for the records of the case from respondents.
(ii) Issue a writ, order or direction in the nature of CERTIORARI or other appropriate writ, quashing the impugned notice Annexure P-8 and the impugned rejection of his complaint Annexure P-11.
(iii) Issue a writ, order or direction in the nature of MANDAMUS or other appropriate writ, directing the respondents to reissue the impugned notice Annexure P-8 containing promotional vacancies after incorporating the 3% reservation for disabled persons therein.
(iv) Issue a writ order or direction in the nature of MANDAMUS or other appropriate writ, directing respondent No.1 to recalculate the reserved vacancies of the previous years since 1997, and grant the petitioner notional promotion w.e.f. 2001 the year of high eligibility, with all consequential benefits.
(v) Award the costs of the petition, and
(vi) Grant such other relief or reliefs as it deems fit in the facts and circumstances of the petitioner’s case.”
4. A detailed and exhaustive reply has been filed on behalf of the respondents and the respondents have stated that in respect of Group-A and B posts, there is no vacancy/promotional avenue for disabled employees in the cadre and the Hon’ble Supreme Court in the case of Union of India v. National Federation of the Blind, reported in (2013)10 SCC 772, has given a direction to the Union of India to modify its earlier Office Memorandum dated 29.12.2005 and because till date no fresh Office Memorandum has been issued, the question of grant of promotion to the petitioner does not arise under the reserved category (Physically Handicapped Category).
5. The respondents have also stated that the respondents have already given benefit of promotion to the petitioner under the reserved category (Physically Handicapped Person) to the post of Senior Assistant in the year 2011 and he cannot claim promotion to the next higher post once he has availed the benefit of promotion to a Class-III post. The respondents have prayed for dismissal of the writ petition.
6. Learned counsel for the respondent has placed reliance upon a judgment delivered by the Hon’ble Supreme Court in the case of National Federation of the Blind (supra), as well as upon a judgment delivered in the case of S.Paneer Selvam and others v. State of Tamil Nadu and others, reported in (2015)10 SCC 292, and has prayed for dismissal of the petition.
7. Heard learned counsel for the pa
