The court affirmed that the reservation for persons with disabilities in promotions must be upheld, and retrospective application of conflicting guidelines is unconstitutional.

CAV ORDER

1. Challenge in the instant Writ Petition is to the orders dated 15/05/2021 & 03/09/2021 (Annexure-P/1) passed by the Respondents, whereby, the Authority concerned without adhering to the statutory scheme for providing reservation of 4% to persons with disability, debarred the petitioner from promotion to the post Deputy Manager (Finance) in E-4 Grade.

2. (a) Case of the petitioner, in brief, is that the Petitioner is a differently abled person suffering from locomotor disability. A certificate in this regard has been issued by the appropriate authority. The Petitioner was initially appointed as Management Trainee (Finance) in the Respondent Department on 03/10/2015. After successful completion of the training period, he has been designated as Assistant Manager (F) on 15/05/2017.

(b) The grievance of the petitioner is that the respondents’ authorities while promoting Assistant Manager (F) in E-3 Grade, E-3 to the post of Deputy Manager (F) in E-4 Grade, E-4, did not follow the mandatory provision of the Rights of Persons with Disabilities Act, 2016 , The Act, 2016, and left out the case of the petitioner by not promoting him on the post of Deputy Registrar (F) in E-4 Grade. Further case of the petitioner is that in the promotion process 15% reservation provided to SC Category employees and 7.5% reservation provided to ST Category, whereas, 3% reservation benefit has not been extended employees of PwD stating that the same will be applicable only in the recruitment process and not for the purpose of promotion, therefore, the said act of the authorities is contrary to guidelines issued by the Ministry of Personnel, Public Grievances and Pension.

3. Learned counsel for the Petitioner submits that the Petitioner has completed 3 years of Service in E-3 category on 28/11/2019 and as such he was eligible for promotion from E-3 to E-4. But, the respondents’ authorities without complying the guidelines issued by the Govt. of India for reservation upto 3% to the PwD employees, left the petitioner for promotion and promoted juniors of the petitioner, which is clear violation of the guidelines issued by the Govt. of India. The respondents’ authorities in a discriminating manner followed the promotion policy partially by only giving reservation to SC and ST category employees in the said promotion, as such, the illegal, arbitrary action of the respondent authorities is not only affecting the fundamental rights of the petitioner, but also other PwD employees of the respondent organization. He would next submit that prior to the notification, as the law stood that the posts were to be identified by the respondents which has already been done by them while giving effect to the notification dated 04/01/2021 (Annexure-P/7) wherein already the posts have been identified and there has been no such exemption granted for a particular group by a separate notification, and as such in absence of any such exemption notification specifically exempting a particular group or designation or category, it was always obligatory on the part of the respondents to give benefits of the reservation to the petitioner, whereas the respondents’ authority while taking a shelter of the Office Memorandum dated 17/05/2022 issued by the Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, New Delhi, denying the promotion to the petitioner, which cannot be given retrospective effect as the promotions were made in the year 2021.

4. Per Contra, learned counsel for the respondent would submit that the claim of reservation in promotion by the petitioner as PwDs/PwBDs is totally erroneous and unfounded because the reservation is not applicable in cases of promotion in the executive cadre between E-2 to E-9 as per Office Memorandum dated 17/05/2022 of Ministry of DoPT, which clearly in Clause 2.1 states that in case of promotion, four per cent of the total number of vacancies in the cadre strength within Group C, from Group ‘C’ to Gro