Hon'ble Amreshwar Pratap Sahi,J.
This petition has been preferred by the State of U.P. and its authorities of the Rural Engineering Department, Government of Uttar Pradesh, whereby a challenge has been raised to the judgment of the State Public Services Tribunal in Claim Petition No.179 of 2013 filed by the respondents no.1, 2 and 3, that was allowed extending the benefit of promotion to the respondents to the post of Assistant Engineer under the Rural Engineering Department giving them the benefit of 3% reservation under the disability quota with all consequential service benefits.
The background in which this petition has been filed by the State is that the respondents no.1, 2 and 3 were appointed as Junior Engineers in the Department of Rural Engineering Services under the 'Physically Handicapped Category'. Their initial entry in the service is on the strength of such reservation provided to them.
The said respondents on the basis of the Government Order dated 3.2.2008 and 13.1.2011, which according to them were protected under the Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependents of Freedom Fighters & Ex Servicemen) Act, 1993 read with The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 extended the benefit of reservation in promotion to the next higher post. The petitioner, therefore, claimed promotion by way of reservation under the 'Physically Handicapped Category' to the post of Assistant Engineer. It is this contest which was taken up by them before the State Government. The Government Orders dated 3.2.2008 and 13.1.2011 are extracted hereinunder :-
mRrj izns'k ljdkj dkfeZd vuqHkkx &2 la[;k & [email protected]@2008&dk&2&2008 y[kuÅ fnukad 03 Qjojh] 2008 dk;kZy;&Kki yksd lsokvksa vkSj inks ij lh/kh HkrhZ ds ek/;e ls fu;qfDr;ksa ds izdze ij fodykaxksa dks vkj{k.k vuqeU; djkus ds iz;kstu ls mRrj izns'k yksd lsok ¼'kkjhfjd :i ls fodykax] Lora=rk laxzke lsukfu;ksa ds vkfJrksa vkSj HkwriwoZ lSfudksa ds fy, vkj{k.k½ vf/kfu;e 1993 ;Fkk la'kksf/kr iz[;kfir gSA fodykaxks dks lh/kh HkrhZ ,oa izksUufr esa vkj{k.k dh vuqeU;rk ,oa rRlaca/kh izfdz;k rFkk vkj{k.k laca/kh jksLVj ds fdz;kUo;u bR;kfn fcUnqvksa dks lfEefyr djrs gq, Hkkjr ljdkj }kjk dk;kZy; Kku fnukad 29-12-2005 ,oa fnukad 26-4-2006 fuxZr fd;k x;k gSA 2& Hkkjr ljdkj }kjk fuxZr mijkafdr dk;kZy; Kku es fofgr izkfo/[email protected];kvksa dks lE;d~ fopkjksijkUr izns'k ljdkj dh [email protected] ij fu;qfDr;[email protected];ksa ds izdzeksa esa ykxw fd;s tkus dk fu.kZ; fy;k x;k gSA vr% fodykaxksa dk lh/kh HkrhZ ,oa izksUufr ds izdze ij vkj{k.k dh vuqeU;rk fo"k;d lanHkZxr dk;kZy; Kkuks es fofgr izkfo/kkuksa @ viuk;h tkus okyh izfdz;kvksa ls lacaf/kr fn'kk funsZ'kksa dks layXu djrs gq, eq>s vkils ;g dgus dk funsZ'k gqvk gS fd layXud esa mfYyf[kr izkfo/[email protected];kvksa dks lHkh v/khuLFk izkf/kdkfj;ksa ds laKku esa ykrs gq, d`i;k lHkh Lrjksa ij mudk dM+kbZ ls vuqikyu lqfuf'pr djkus dk d"V djsaA fodykaxks ds vkj{k.k ds laca/k esa izns'k ljdkj }kjk bl dk;kZy; Kku ls iwoZ fuxZr 'kklukns'k mi;qZDr dk;kZy;&Kkiksa es fofgr izkfo/kkuksa ls vlaxfr dh lhek rd la'kksf/kr le>s tk;saxsA layXud% ;FkksifjA Hkonh;
¼ts0,l0nhid½ izeq[k lfpo la[;k&[email protected]&03&11&[email protected] izs"kd jkt izrki flag] izeq[k lfpo] mRrj izns'k 'kkluA lsok esas] 1 leLr izeq[k [email protected] m0iz0 'kkluA 2 leLr foHkkxk/;{[email protected];kZy;k/;{k] mRrj izns'kA 3 leLr e.Myk;[email protected]/kdkjh] mRrj izns'kA fodykax dY;ka.k vuqHkkx & 3 y[kuÅ fnukad % 13] tuojh] 2011 fo"k; % mRrj izns'k yksd lsokvksa es 'kkjhfjd :i ls fodykaxtu ds fy, vkj{k.k gsrq lewg d] [k] x] o ?k Js.kh ds inksa fpUgkadu A egksn;] fodykaxtu ds fgr laj{k.k ,oa muds lkekftd o vkfFkZd iquokZlu ds mn~ns'; ls Hkkjr }kjk fu%'kDr tu ¼leku volj] vf/kdkj laj{k.k rFkk iw.kZ Hkkxhnkjh½ vf/kfu;e 1985 ykxw fd;k x;k gS bl vf/kfu;e dh /kkjk &32 es fodykaxtu dks jkstxkj iznku djus ds mn~ns'; ls vkj{k.k gsrq inks ds fpUgkadu fd;s tkus dk izkfo/kku gSA 2 mi;qDr ifjis{; esa dkfeZd foHkkx ds 'kklukns'k la[;k & 18&[email protected] d &[email protected] Vh0lh0&[email protected]] fnukd 20 flrEcj 1997 }kjk fodykaxtu ds fy, yksd lsokvksa es 3 izfr'kr inks ds vkj{k.k ds vkns'k tkjh fd;s x;s gSaA bl gsrq mRrj izns'k yksd lsokvksa ¼'kkjhfjd :i ls fodykax LorU=rk laxzke lsukfu;ksa ds vkfJr vkSj HkwriwoZ lSfudksa ds fy, vkj{k.k½ ¼la'kks/ku½ vf/kfu;e] 1997 iz[;kfir fd;k x;k gSA fpUgkafdr inks dh layXu lwph ds vfrfjDr leLr foHkkxksa ds lewg d] [k] Js.kh ds 'ks"k lHkh in fu%'kDrtu vf/kfu;e 1995 dh /kkjk &33 ds ijUrqd ds vUrxZr fodykaxtu ds vkj{k.k ls mUeksfpr ¼Exempted½ le>s tk;saxsA bl vf/kfu;e esa ;s O;oLFkk dh x;h gS fd yksd lsokvksa vkSj inks esa fjfDr;ksa dk ,d&,d izfr'kr izR;sd fuEufyf[kr ls xzflr C;fDr;ksa ds fy, vkjf{kr gksaxsA 1 n`f"Vghurk ;k de n`f"V 2 Jo.kgkl 3 pyu fdz;k lEcU/kh fu%'krrk ;k izefLr"dh; v?kkarA 3 bl laca/k esa fu%'kR; tu vf/kfu;e] 1995 /kkjk & 32 ds varxZr rFkk dkfeZd foHkkx }kjk iz[;kfir mRrj izns'k yksd lsokvksa ¼'kkjhfjd :i ls fodykax] LorU=rk laxzke lsukfu;ksa ds vkfJr vkSj HkwriwoZ lSfudksa ds fy, vkj{k.k½ ¼la'kks/ku½ vf/kfu;e] 1997 ^^ ds ifjizs{; esa 'kklu }kjk yksx lsokvksa esa vkj{k.k dh C;oLFkk lqfuf'pr djus ds mn~ns'; ls lewg d] [k] x o ?k ds inksa dk fpUgkadu 'kklukns'k la[;k & [email protected]&1&99&18¼24½@97] fnukad 07 ebZ 1999 la[;k & [email protected]&3&04&18 ¼24½@97 fnukad 23 uoEcj 2004] la[;k & [email protected]&3&07&[email protected]] fnukad 31 tqykbZ] 2007 rFkk la[;k&[email protected]&3&03&18¼24½@97] fnukad 13 Qjojh] 2008 dks vfodzfHkr ¼fujLr½ djrs gq, iqu% lewg d] [k] x o ?k Js.kh ds inks dk fpUgkadu dj fy;k x;k gS A fpUgkafdr inksa dh lwph layXu gSA 4 eq>s ;g dgus dk funsZ'k gqvk gS fd bu oxksZ ds fy, vkjf{kr inks ds vUrxZr fpUgkafdr inks ij fu;qfDr lqfu'pr dh tk;A ;fn vkjf{kr fjfDr;ksa esa ls dksbZ fjfDr mi;qZDr vH;fFkZ;ksa ds vuqiyC/krk ds dkj.k fcuk Hkjh jg tkrh gS rks ml vkxkeh HkrhZ ds fy, vxzuhr fd;k tk;sxkA d`i;k bu vkns'kksa ls vius v/khuLFk lHkh vf/kdkfj;[email protected]/kdkfj;ksa dks Hkh voxr djk ns rkfd bldk dM+kbZ ls vuqikyu lqfuf'pr fd;k tk ldsA Hkonh;
¼jktizrki flag½ izeq[k lfpo la[;k & 35 ¼1½@65&03&11&[email protected]] rn~fnukad mijksDr dh izfrfyfi layXud lfgr fuEu fyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%& 1 izeq[k lfpo] ek0 eq[;eU=h th] mRrj izns'k 'kklu 2 futh lfpo] ek0 lekt dY;[email protected] dY;ka.k ea=h] mRrj izns'kA 3 funs'kd fodykax dY;ka.k] mRrj izns'k] bfUnjkHkou] y[kuÅA 4 lfpoky; ds leLr vuqHkkxA vkKk ls ¼jkejkt flag ;kno½ fo'ks"k lfpo The respondents, who were not getting the benefits as claimed by them, filed Writ Petition No.981 (S/B) of 2012 which was disposed of by the following judgment:-
"With the consent of the counsel for parties the writ petition is disposed of finally at the stage of admission itself.
The petitioners who were appointed on the post of Junior Engineer, Rural Engineering Department, have not been considered for promotion against 3% quota reserved for the handicapped persons from Class III category of posts to Class II have already preferred a representation but the said representation has not yet been decided.
Being aggrieved by the said inaction of the opposite parties the petitioners have preferred this writ petition for a direction to the opposite parties to consider the case of the petitioners against 3% reserved quota for handicapped persons as provided in the government orders.
Accordingly, the opposite parties are directed to consider the case of the petitioners for promotion against the said quota of 3% for handicapped persons in accordance with the government orders.
With the aforesaid direction, the writ petition is disposed of finally.
Order Date :- 9.7.2012"
The same was corrected by the order dated 23.8.2012 as follows :-
"(C.M. Application No.71182 of 2012) By means of this application the petitioner has prayed that in the fourth paragraph-4 of the order dated 9.7.2012 may be corrected.
Correction Application is allowed.
In the fourth paragraph of last line of the judgment "government orders" shall be read as "Government order dated 13.1.2011."
Order Dated :- 23.8.2012"
The directions of the High Court were not being complied with, as a result whereof Contempt Application No.2728 of 2012 was filed that was disposed of on 22.1.2013 by the following order :-
"Short counter affidavit filed today is taken on record.
Mr. Ashok Kumar, Principal Secretary, Rural Engineering Department, is present in person before the Court.
Heard learned counsel for the petitioners as well as learned Additional Chief Standing Counsel.
This contempt petition arises out of the order dated 9.7.2012 passed in W.P. No. 981 (SB) of 2012 whereby the writ court had disposed of the writ petition with the following directions:
"Accordingly, the opposite parties are directed to consider the case of the petitioners for promotion against the said quota of 3% for handicapped persons in accordance with the government orders.
With the aforesaid direction, the writ petition is disposed of finally."
The order dated 9.7.2012 was subsequently clarified by order dated 23.8.2012 with the following observations.
"In the fourth paragraph of last line of the judgment "government orders" shall be read as "Government order dated 13.1.2011."
Learned Additional Chief Standing Counsel appearing for the opposite parties on the basis of short counter affidavit submitted that the representation of the petitioners in compliance of aforesaid court's order has been considered and decided by passing a speaking and reasoned order vide office order dated 18.1.2013, a copy of which is annexed as Annexure SCA-1 to the short counter affidavit filed on behalf of opposite parties.
Learned counsel for the petitioners tried to submit that representation of the petitioner has not been considered in right perspective and it has been wrongly rejected.
Be that as it may, this Court is of the view that since representation of the petitioners has been considered and decided by the opposite parties, there is substantial compliance of Court's order. In case the petitioners are aggrieved against the order dated 18.1.2013, they are at liberty to challenge the same before the appropriate forum.
The contempt petition as such is dismissed.
Notice, if any, issued to opposite party is hereby discharged.
Order Date :- 22.1.2013"
During the pendency of the said contempt application, the respondents had brought on record the order dated 18.1.2013 whereby the claim of the respondents had been rejected on two grounds. Firstly, that no reservation in promotion is permitted by way of any policy in respect of Group-A and B services inasmuch as the Government Order dated 13.1.2011 applies only to Group-C and D services, which was issued by the Physically Handicapped Welfare Department. It has further been stated that the Government order dated 3.2.2008 was in relation to reservation benefits to Group-D employees and in matters of promotion. Thus, the claim of the respondents was rejected on the ground of the post of Assistant Engineer not being subject to such reservation in matters of promotion, the respondents were not entitled to such benefits relying on the opinion given by the Appointment Department of the State Government and the Physically Handicapped Welfare Department that has also been extracted in the order dated 18.1.2013.
Aggrieved by the said order dated 18.1.2013, the respondents filed a writ petition before this Court which was dismissed on the ground of availability of alternative remedy before the Tribunal. Consequently, the respondents filed the Claim Petition No.179 of 2013 that was ultimately allowed by the impugned order and judgment dated 6.5.2013. The Tribunal on a consideration of various judgments including that of the High Court of Punjab and Haryana, the High Court of Delhi and the judgments of the Apex Court held that the word "employment" includes promotion and, therefore, the benefit of reservation to physically handicapped category persons in matters of promotion was available. The Tribunal accordingly set aside the order dated 18.1.2013 and directed consideration of the case of the petitioners for promotion with all consequential service benefits within three months.
The learned Additional Advocate General, Ms. Bulbul Godiyal, has urged that the conclusion drawn by the Tribunal is absolutely erroneous inasmuch as there is no provision for horizontal reservation in promotion on the post of Assistant Engineer and secondly this being a pure matter of policy, the Tribunal could not have issued a direction of the nature as given in the impugned judgment.
She has further contended that a Division Bench of the Allahabad High Court upon consideration of the Punjab and Haryana High Court judgment, as referred to in the impugned order, as well as the Delhi High Court judgment, after distinguishing the same, arrived at a conclusion that reservation in promotion is not a matter of right and this benefit cannot be extended in promotions. The said judgment rendered in Writ Petition No.43146 of 2010, decided on 20.1.2012, has been filed on record and the following paragraphs of the said judgment have been pressed into service :-
"17. In the present case there is no empirical data placed on record to demonstrate, nor it appears that any study has been carried out by the State, regarding the representation of physically handicapped persons in various classes of services in the State. In the circumstances, in view of M. Nagraj (Supra), the claim of the physically handicapped persons for reservation in promotion is not sustainable.
18. Sub-section (2) of Section 47 of the Act No.1 of 1996 is couched in negative terms, namely, that no promotion shall be denied to a person merely on the ground of his disability. This would mean that where a person is otherwise found eligible and suitable for promotion, the State shall not deny him promotion on the ground of his disability. In our view the protection given in sub-section (2) of Section 47, cannot be claimed as a right in a positive manner, for reservation for persons suffering with disabilities for promotion.
19. We further find that the consideration for affirmative action, providing reservation for physically handicapped persons under U.P. Act No.1 of 1996 in direct recruitment cannot be extended, interpreting these Acts, to claim a right for reservation, in promotions.
20. The provisions for reservation in promotions, may be provided by the State as a matter of policy. The Courts do not either make policy, or ordinarily interfere with the policy decisions of the State. The Courts would not by interpreting the provisions providing for reservations, provide or cull out a policy favouring reservation for physically handicapped persons for promotion in public services.
21. The demand for reservation in promotions, in such event, will not be confined to the physically handicapped persons. It may be taken up by other disadvantaged groups such as women and privileged groups of dependants of freedom fighters claiming rewards of freedom struggle and ex-army personnel seeking rehabilitation, who have been provided horizontal reservation in public services on the posts to be filled up by direct recruitment.
22. We do not find the reasons given by the Delhi High Court and Punjab and Haryana High Court in directing the reservations to be provided to physically handicapped persons in public services in promotions to be constitutionally permissible to issue a writ of mandamus to the State Government. The reliance upon Art. 14, 16 (1), 38 and 41 is not valid in as much as the fundamental rights under Articles 14 and 16 (i) and Directive Principle of State Policy, do not give any right to claim reservation in promotions by way of affirmative action to the disabled persons. We cannot infer any such rights or obligations within the ambit and the extended scope of the reach of these provisions.
23. The Courts do not interfere and keep away from policy decisions, taken by the State, on the grounds that such considerations, include the empirical study of the representation; the extent of representation and its effect on other groups claiming such rights. The policy matters are left at the discretion of the State, to be considered taking into account the needs of various sections of the society and the balancing to be done between the competing groups.
24. The State Government has provided reservation for physically handicapped persons in promotion to Group-'C' and 'D' services, which constitute a class by themselves. The reservation provided to them would not, in our opinion, discriminate the physically disabled persons, who are members of Group 'A' and 'B' services. There is no material placed before us to evaluate the allegations of hostile and invidious discrimination with the employees in Group 'C' and 'D' services.
25. The writ petition is dismissed with liberty to the petitioner to make appropriate representation to the State Government."
She, therefore, submits that in the present case also the State Government is the authority to take a decision on issues of policy and in the given circumstances if the State Government has taken a decision not to extend such benefits, the Tribunal cannot compel or enforce any judicial direction for such compliance.
She has further invited the attention of the Court to the supplementary affidavit dated 7.7.2014 to urge that in the present matter while proceeding to consider the grant of interim relief to the petitioner- State, the following order was passed on 3.7.2014 :-
"We have heard Ms. Bulbul Goldiyal, learned Additional Advocate General on behalf of the petitioner-State and Sri S.C. Yadav for all the respondents.
This is an application made by the State-petitioner praying that the interim relief application in the writ petition may be considered at an early date. Alongwith affidavit filed in support of the application an order dated 22.04.2014 passed by the State Public Service Tribunal, Lucknow in Contempt Petition No.276 of 2013 (Sanjeev Kumar Jain & 2 others Vs. State of U.P. & others) has been annexed which indicates that the Tribunal has found that the Opposite Party No.3 therein who is the Petitioner No.1 herein has shown an indifferent attitude towards compliance of the order of the Tribunal hence being prima-facie satisfied that deliberate disobedience of the Tribunal's order is being committed it has directed him to appear in person on 04.07.2014 so that charges may be framed against him.
While pressing the interim relief Application No.105069 of 2013, Ms. Bulbul Goldiyal has submitted that the compliance of the directions of the Tribunal will be made by the Competent Authority by Monday i.e. 07.07.2014 and in light of the said submission prays that the personal appearance of the Principal Secretary, Petitioner No.1 herein be exempted and the Tribunal may not frame charges against him.
Sri S.C. Yadav, learned counsel for the respondent has referred to the order of the Tribunal and states that there was deliberate disobedience by the Petitioner No.1 in not complying with the direction of the Tribunal which was issued as far back as on 06.05.2013 when three months time had been granted. He states that the direction of the Tribunal was very innocuous and relates only to consideration of the case of the petitioners for promotion to the post of Assistant Engineer under the disabled quota of 3%.
We have considered the submission of learned counsel for the parties and perused the record. The direction of the Tribunal dated 06.05.2013 in the operative portion of the impugned order is quoted hereunder:-
"The claim petition is allowed and the impugned order (Annexure No.1) Dt. 18.01.2013 is hereby quashed. The O.Ps are directed to consider the case of the petitioners for promotion to the post of Assistant Engineer under disabled quota of 3% alongwith with all consequential service benefits within three months from the date of production of a certified copy of the order before them.
No order as to costs."
From the aforesaid it appears that the Petitioner No.1 who is the Principal Secretary of the concerned department was required to consider the petitioners' case for promotion under the disabled quota of 3%. Such consideration appears not to have been done although more than one year has passed. We do not find any plausible explanation given by the Petitioner No.1 in the affidavit filed alongwith the instant application for having ignored to comply with the direction issued by the Tribunal and therefore we do not find any error in the order dated 22.04.2014 passed by the Tribunal.
However, since learned Additional Advocate General appearing on behalf of the petitioners has very fairly stated that a decision will be taken in compliance of the Tribunal order by Monday we find it expedient to extend the liberty prayed for on behalf of the petitioner since the prayer is to comply with the direction of the Tribunal.
As prayed, let this petition be listed on Monday i.e. 07.07.2014 after mid-day recess by which time the decision so taken by the Petitioner No.1 in compliance of the direction of the Tribunal dated 06.05.2013 be brought on record alongwith a supplementary affidavit after serving a copy of the same on learned counsel for the respondent.
It is made clear that in case such a decision is not taken this Court will be compelled to remit the matter to the Tribunal for proceeding with the contempt proceedings in accordance with law.
Under such circumstances, the appearance of the Principal Secretary, Petitioner No.1 before the Tribunal on 04.07.2014 shall be kept in abeyance only till Monday i.e. 07.07.2014.
Put up after mid-day recess on 07.07.2014.
Order Date :- 3.7.2014"
In compliance of the aforesaid order, the State Government has passed the order on 4.7.2014 again informing the respondents that since the post of Assistant Engineer falls within Group-B, the benefit of reservation to Physically Handicapped Category in promotions cannot be granted and has virtually reiterated its earlier decision dated 18.1.2013. The order dated 4.7.2014 is extracted hereinunder :-
mRrj izns'k 'kklu] xzkeh.k vfHk;U=.k vuqHkkx] la[;k &[email protected]&14&42 [email protected]] y[kuÅ % fnukad % 04 tqykbZ] 2014 dk;kZy; Kki loZJh latho dqekj tSu] jktdqekj vxzoky rFkk lR; izdk'k feJk] voj vfHk;Urkx.k] xzkeh.k vfHk;U=.k foHkkx }kjk vius izR;kosnu ds fuLrkj.k lEcU/kh fuxZr fd;s x;s 'kklu dks dk;Zky; Kki fnukad & 18-1-2013 dks fujLr dj fodykax dksVs ds varxZr lgk;d vfHk;Urk ¼lewg [k dk in gS½ ds in ij viuh inksUufr fd;s tkus ds vuqrks"k gsrq ek0 jkT; yksd lsok vf/kdj.k esa funsZ'k ;kfpdk la[;k & [email protected] latho dqekj tSu o vU; cuke mRrj izns'k ljdkj o vU; nkf[ky fd;k x;k] ftlesa ikfjr eku0 jkT; yksd lsok vf/kdkj.k ds fu.kZ; fnukad 6-5-2013 ds laxr va'k fuEuor gSa%& "The claim petition is allowed and the impugned order (Annexure No.1) Dt. 18.01.2013 is hereby quashed. The O.Ps are directed to consider the case of the petitioners for promotion to the post of Assistant Engineer under disabled quota of 3% along with all consequential service benefits within three months from the date of production of a certified copy of the order before them.
No order as to costs."
2& 'kklu }kjk eku0 vf/kdj.k ds iz'uxr fu.kZ; fnukad 6-5-2013 ds fo:) ek0 mPp U;k;ky; dh fjV ;kfpdk la[;k& 1630 ¼,[email protected]½@2013] m0iz0 ljdkj o vU; cuke latho dqekj tSu o vU; nkf[ky dh x;h gS ftlesa ikfjr ek0 mPp U;k;ky; ds vkns'k fnukad 3-7-2014 }kjk fuEuor~ vkns'k ikfjr fd;s x;s gSa%& "As prayed, let this petition be listed on Monday i.e. 07.07.2014 after mid-day recess by which time the decision so taken by the Petitioner No.1 in compliance of the direction of the Tribunal dated 06.05.2013 be brought on record alongwith a supplementary affidavit after serving a copy of the same on learned counsel for the respondent."
3& lwP; gS fd jkT; ljdkj ds v/khu leLr foHkkxksa es lsok lEcU/kh leLr izdj.kksa es dkfeZd foHkkx }kjk fuxZr vkns'[email protected]'k gh jkT; ljdkj ds lHkh ljdkjh foHkkxksa ij ykxw gksrs gSaA fodykax ls xzLr C;fDr;ksa ds fy, vkj{k.k dh vuqeU;rk ds lEcU/k esa dkfeZd foHkkx ds dk;kZy; Kki fnukad 03&2&2008 ls layXu fn'kk&funsZ'k ds izLrj&1] fodykaxks gsrq vkj{k.k dh ek=k& esa tks izkfo/kku vafdr gS] og fuEuor~ gSa%& ¼1½ lewg d] [k] x vkSj ?k inks ij lh/kh HkrhZ ds ekeys esa rhu izfr'kr fjfDr;ka fodykaxrk ls xzLr C;fDr;ksa ds fy, vkjf{kr j[kh tk;saxh ftuesa ls ,d&,d izfr'kr fjfDr;ka& ¼1½ n`f"Vghurk ;k de n`f"V] ¼II½ Jo.k gkl vkSj ¼III½ pyu fdz;k lEcU/kh fu%'kDrrk ;k izefLr"dh; vax?kkr ¼Qkfyt½ ls xzLr O;fDr;ksa ds fy,] mu fodykaxrkvksa ds fy, mi;qZDr igpkus x;s inks esa vkjf{kr gksxhA ¼II½ lewg ?k vkSj x ds inks ij] ftuesa lh/kh HkrhZ dk va'k 75 izfr'kr ls vf/kd ugha gks inksUufr ds ekeys esa rhu izfr'kr fjfDr;ka fodykaxrk ls xzLr O;fDr;ksa ds fy, vkjf{kr j[kh tk;saxh] ftlesa ls ,d & ,d izfr'kr fjfDr;ka ¼1½ n`f"Vghurk ;k de n`f"V] ¼II½ Jo.k gkl vkSj ¼III½ pyu fdz;k lEcU/kh fu%'kDrrk ;k izefLr"dh; vax?kkr ¼Qkfyt½ ls xzLr O;fDr;ksa ds fy,] mu fodykaxrkvksa ds fy, mi;qDr igpkus x;s inks es vkjf{kr gksaxhA 4 dkfeZd foHkkx ds mDr of.kZr dk;kZy; Kki fnukad 3-2-2008 }kjk LFkkfir [email protected] funsZ'k ls Li"V gS fd lewg [k ds vUrxZr lh/kh HkrhZ esa rks fodykax tu gsrq vkj{k.k vuqeU; gS] fdUrq lewg&[k ds varxZr inksUufr esa fodykax tu dks vkj{k.k dh vuqeU;rk ugha gSA 5 bl lacU/k esa dkfeZd foHkkx] fodykax dY;ka.k fuxe rFkk U;k; foHkkx dk ijke'kZ izkIr fd;s tkus ij muds }kjk ;g Li"V fd;k x;k gS fd lewg & d o [k ij fodykax tu gsrq inksUufr ij vkj{k.k vuqeU; ugh gS rFkkfi og ;fn] muds fy, fpUgkafdr in ij lkekU; :i ls izksUur gksrs gS] rks dksbZ vkifRr ugha gSA lwP; gS fd xzkeh.k vfHk;U=.k foHkkx es lgk;d vfHk;Urk dk in lewg & [k ds varxZr gS rFkk laxr lsok fu;ekoyh ds vuqlkj bl in ds fu;qfDr izkf/kdkjh Jh jkT;iky gSaA lgk;d vfHk;Urk dk in yksx lsok vk;ksx dh ifjf/k ds varxZr gS o lgk;d vfHk;Urk ds in ij inksUufr dh dk;Zokgh yksd lsok vk;ksx ds }kjk xfBr pSu lfefr ds ek/;e ls fd;k tkrk gS rFkk vk;ksx ls p;u dh laLrqfr izkIr gksus ij lgk;d vfHk;Urk ds in ij inksUufr dk vkns'k 'kklu Lrj ls tkjh fd;k tkrk gS fdUrq tSlk fd iwoZ izLrj &3 rFkk izLrj &4 esa vfHkfyf[kr gS] fodykax dksVs ds varxZr ;kphx.k voj vfHk;Urkvksa dh inksUufr lgk;d vfHk;Urk ds in ij fopkfjr ¼Consider½ fd;k tkuk jkT; ljdkj dh LFkkfir uhfr ¼Policy½@funsZ'k dh i`"BHkwfe esa fu;ekUrxZr laHko ugh gSA rFkkfi] lgk;d vfHk;Urk ds inksa ij fu;fer inksUufr fd;s tkus esa ;kphx.k dks fodykax dksVs dk ykHk fn;s fcuk mudh mi;qDrrk ,oa ik=rk ds vk/kkj ij lkekU; :i ls fopkj fd;s tkus es vkifRr ugha gSA 6& tgkW rd fo"k;xr izdj.k ds lEcU/k esa Civil Appeal No.9096 of 2013-Union of India and another versus National federation of the Blind and others esa ikfjr eku0 mPpre U;k;ky; ds fu.kZ; fnukad 8-10-2013 dk lEcU/k gS] bl lEcU/k esa fjV ;kfpdk la[;k ¼,[email protected]½@2013 jkT; ljdkj o vU; cuke latho dqekj tSu esa 'kklu }kjk nkf[ky Rejoinder Affidavit (Para -8 i`"B&14&15½ esa fuEuor vfHkdFku vafdr gSa %& "A bare perusal of the Judgment of the Hon'ble Supreme Court rendered on 08.10.2013 clearly shows that there is no mention in the aforesaid Judgment of any issue being raised with regard to reservation in promotion of Handicapped persons. The only reference to Section 47 made by the Hon'ble Supreme Court is with respect to the statement that in case a person has been found qualified for promotion in Group A or B posts, he shall not be discriminated against, only on the ground that no post is suitably identified for him in Group A or Group B services, as the case may be."
7& voj vfHk;Urk ¼lewg x½ ds in ls lgk;d vfHk;Urk ¼lewg [k½ ds in ij inksUufr esa fodykaxtuksa dks vkj{k.k fn;s tkus fo"k;d yksd fuekZ.k foHkkx] m0iz0 ls lEcfU/kr leku izdj.k esa ¼identical case½ esa eku0 mPp U;k;ky;] bykgkckn dh fMohtu csap y[kuÅ }kjk Civil Misc. Writ Petition No-43146 of 2010- Bhanu Pratap Singh & Anr. Versus State of U.P. & Anr. es ikfjr fu.kZ;kns'k fnukad 20-1-2012 ¼fjV ;kfpdk la[;k & 1630¼,[email protected]½@2013] m0iz0 ljdkj o vU; cuke latho dqekj tSu o vU; dk Annexure -4½ }kjk ;kph ds rRlEcU/kh vuqjks/k dks vLohdkj djrs gq;s fjV ;kfpdk [kkfjt dh tk pqdh gS mDr fu.kZ; ds dfri; va'k fuEuor Quoted gSa%& "19- We further find that the consideration for affirmative action, providing reservation for physically handicapped persons under U.P. Act No.1 of 1996 in direct recruitment cannot be extended, interpreting these Acts, to claim a right for reservation in promotions.
23- The Courts do not interfere and keep away from policy decisions, taken by the State, on the grounds that such considerations, include the empirical study of the representation; the extent of representation and its effect on other groups claiming such rights. The policy matters are left at the discretion of the State, to be considered taking into account the needs of various sections of the society and the balancing to be done between the competing groups.
24- The State Government has provided reservation for physically handicapped persons in promotion to Group- 'C' and 'D' services, which constitute a class by themselves. The reservation provided to them would not, in our opinion, discriminate the physically disabled persons, who are members of Group 'A' and 'B' Services. There is no material placed before us to evaluate the allegations of hostile and invidious discrimination with the employees in Group 'C' and 'D' services.
25- The writ petition is dismissed with liberty to the petitioner to make appropriate representation to the State Government."
8& mi;qZDr izLrjks esa of.kZr dh x;h fLFkfr ls Li"V gS fd dkfeZd foHkkx }kjk fuxZr vkns'k ds vuqlkj lgk;d vfHk;Urk ¼lew[k &[k½ ds in ij inksUufr esa fodykaxtu gsrq vkj{k.k vuqeU; ugha gS vkSj eku0 U;k;ky; ds iwoksZDr lanfHkZr fu.kZ;kns'k ds vuqlkj Hkh lgk;d vfHk;Urk ¼lewg [k½ ds in ij inksUufr esa vkj{k.k vuqeU; ugha gSA vr,o ;kphx.k loZ Jh latho dqekj tSu] jktdqekj vxzoky rFkk lR; izdk'k feJk] voj vfHk;Urkx.k] xzkeh.k vfHk;U=.k foHkkx dks fodykax dksVs ds varxZr lgk;d vfHk;Urk ds in ij inksUufr gsrq fopkj fd;k tk lduk fu;ekUrxZr lEHko ugha gSA 9& ,rnFkZ] funsZ'k ;kfpdk la[;k&[email protected] latho dqekj tSu o vU; cuke mRrj izns'k ljdkj o vU; esa ikfjr eku0 jkT; yksd lsok vf/kdj.k ds fu.kZ; fnukad 6-5-2013 ,oa fjV ;kfpdk la[;k& 1630 ¼,[email protected]½@2013] m0iz0 ljdkj o vU; cuke latho dqekj tSu o vU; esa ikfjr ek0 mPp U;k;ky; ds vkns'k fnukad 3-7-2014 ds vuqikyu esa ;kphx.k loZ Jh latho dqekj tSu] jktdqekj vxzoky rFkk lR; izdk'k feJk] voj vfHk;Urkx.k] xzkeh.k vfHk;U=.k foHkkx ds lgk;d vfHk;Urk ds in ij inksUufr ds izdj.k dks iwoksZDrkuqlkj Loeq[kfjr (Speaking & reasoned) vkns'k ds ek/;e ls ,rn~}kjk fuLrkfjr fd;k tkrk gSA Mk0 lw;Zizrki flag izeq[k lfpoA la[;k&2998¼1½@92&2014] rn~fnukadA izfrfyfi fuEu fyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%& 1& funs'kd ,oa eq[; vfHk;Urk] xzkeh.k vfHk;U= foHkkx] m0iz0 y[kuÅA 2& Jh latho dqekj tSu] voj vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx }kjk & funs'kd ,oa eq[; vfHk;Urk& xzkeh.k vfHk;U=.k foHkkx] m0iz0 y[kuÅA 3& Jh lR; izdk'k feJk voj vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx }kjk& funs'kd ,oa eq[; vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] m0iz0y[kuÅA 4& Jh jktdqekj vxzoky voj vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx }kjk& funs'kd ,oa eq[; vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] m0iz0 y[kuÅA 5& eq[; LFkk;h vf/koDrk] eku0 mPp U;k;ky; y[kuÅ csap y[kuÅ dks bl vk'k; ls izsf"kr fd fjV ;kfpdk la[;k 1630 ¼,[email protected]½ @2013 esa ikfjr ek0 mPp U;k;ky; ds vkns'k fnukad 3-7-2014 es rn~uqlkj izfr'kiFk&i= rS;kj djkdj ek0 mPp U;k;ky; esa lquokbZ dh frfFk fnukad 7-7-2014 ds iwoZ nkf[ky djkus dk d"V djsaA 6& xkMZ QkbyA vkKk ls ¼f'kf'kj dqekj ;kno½ fo'ks"k lfpoA In addition to the aforesaid submissions, Ms. Godiyal has urged that in view of the Constitution Bench judgment in the case of Indra Sawhney and others Vs. Union of India, 1992 (3) SCC Page 217, such reservation in promotion is impermissible. This has been further supplemented by relying on the Full Bench decision of this Court in the case of Sarika Vs. State of U.P., 2005 (3) UPLBEC Page 2217, to urge that if the establishment has not taken any decision to enforce reservation at the stage of promotion under the 'Physically Handicapped Category', the same cannot be claimed as a matter of right by the respondents. In para 27 of the writ petition it has been asserted that the Apex Court in the case of U.P. Power Corporation Ltd. Vs. Rajesh Kumar, 2012 (9) SCC Page 1 as also in the case of Surajbhan Meena & another Vs. State of Rajasthan and others, 2011 (1) SCC Page 467 has urged that if the State Government has not carried out any exercise as to whether adequate representation has been made available to the under privileged classes or not, and no empirical data has been collected, then providing reservation in promotion is unconstitutional. It has been urged that this ratio appears to have been equally applied by equating the physically handicapped persons with the oppressed and backward classes in the case of Bhanu Pratap Singh (supra). It is urged that in this case also the State Government has nowhere carried out any such exercise and, therefore, the direction of the Tribunal to implement the same without carrying out any such exercise is contrary to law.
Replying to the aforesaid submissions, Sri Yadav, learned counsel for the respondents, has urged that the Government Orders, referred to hereinabove, are clearly applicable and the contention of the State that no exercise has been undertaken to identify the post is absolutely incorrect and against the record inasmuch as this exercise has been undertaken and the post of Assistant Engineer is clearly identified as a Group-B post subject to reservation under the 'Physically Handicapped Category'.
He has invited the attention of the Court to the said list of posts duly identified, a copy whereof appears to have been obtained and has been filed as Annexure 8 to the claim petition before the Tribunal, together with the entire list indicating that the post of Assistant Engineer also stands identified for being offered under the horizontal reserved category for physically handicapped persons.
He then submits that the judgments of the Punjab and Haryana High Court referred to in the impugned order as well as that of the Delhi High Court are fully attracted in the present case, but with the declaration of law by the Apex Court the same has now set the controversy to rest. He submits that the judgment in the case of Bhanu Pratap Singh (supra) dt. 20.1.2012 relied upon by the petitioner looses its impact in view of the judgment of the Apex Court in the case of Union of India Vs. National Confederation for Development of Disabled and another, Civil Appeal No.9096 of 2013, decided on 8.10.2013. A copy of the said judgment has been brought on record through the counter affidavit dated 3.12.2013 as Annexure CA-2 and is also reported in 2013 (10) SCC Page 772. He further submits that the order now passed by the State Government dated 4.7.2014 extracted hereinabove is contrary to law and is clearly a defiance of the correct legal position. He, therefore, submits that the State Government has taken an incorrect position and the order dated 4.7.2014 should be ignored.
Sri Yadav has then invited the attention of the Court to the Division Bench judgment of the Bombay High Court dated 4.12.2013 in PIL No.106 of 2010, National Confederation for Development of Disabled and another Vs. Union of India and others, where this issue directly in relation to the group of posts that would fall under such category and the benefit at the stage of promotion was considered. Following the Apex Court decision referred to hereinabove, the Bombay High Court has ruled as under :-
10. In the said decision, three Judge Bench of the Supreme Court has in terms held that Section 33 of the Act establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons has to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. The Supreme Court analyzed the provisions of Section 33 of the Act and arrived at the following conclusion:
"Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., "computing 3% reservation on total number of vacancies in the cadre strength" which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29 December 2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court."
(emphasis supplied)
11. In view of the aforesaid decision of the Supreme Court, it is clear that reservation has to be computed with reference to total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion. Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion.
12. The Supreme Court has given following directions to the Government of India to ensure proper implementation of the reservation policy for the disabled and to protect their rights:-
"54. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:
(i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29122005 and the subsequent Oms consistent with this Court's Order within three months from the date of passing of this judgment.
(ii) We hereby direct the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default.
(iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of nonobedience and Nodal Officer in department/public sector undertakings/Governmentcompanies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default."
13. In view of the above directions, it is clear that the respondents will have to give benefits of reservation to persons with disabilities in the matter of promotion to posts in the Indian Administrative Services by applying the Office Memorandum dated 29 December 2005 and subsequent Office Memorandum consistent with the aforesaid judgment dated 8 October 2013 of the Supreme Court and accordingly give benefits of the reservation with effect from the date of issuance of the said Office Memorandum dated 29 December 2005.
14. Writ petition is, accordingly allowed in the aforesaid terms.
CHIEF JUSTICE (M.S. SANKLECHA,J.) He has further invited the attention of the Court to the fact that the Union of India and others filed Special Leave to Appeal No.13344 of 2014 against the said judgment of the Bombay High Court and the Apex Court has been pleased to dismiss the Special Leave Petition on 12.9.2014 by the following order :-
He, therefore, submits that the background aforesaid leaves no room for doubt that the stand taken by the petitioner-State and the arguments advanced now stand completely answered by the judgments above mentioned and confirmed by the Apex Court itself. He, therefore, submits that both questions, namely, the issue of the post of Assistant Engineer (Group B Post) is also subject to horizontal reservation in promotions and that the benefit of horizontal reservation is also available on a promotional posts, if identified.
Having considered the aforesaid submissions and having perused the judgments as referred to above, the first issue is as to whether a Group B post which is presently involved, namely, the post of Assistant Engineer is a post which can be subjected to horizontal reservation. There is no dispute between the parties that the post is a Group-B post. It is also not in dispute that the State Government had issued a Government Order dated 13.1.2011 identifying the posts, and the post of Assistant Engineer was also identified for the benefit of horizontal reservation under the Physically Handicapped Category. It has been categorically stated in paragraph 11 of the writ petition, which is a petition filed by the State itself, that the promotion quota for Junior Engineers to the post of Assistant Engineer in the Rural Engineering Services Department is 48.33% and out of 288 posts of Assistant Engineers 3% quota would come to 9 posts. Thus, the posts having been identified and the government order for the physically handicapped persons having been already promulgated, we find no valid reason for not applying the same for the purpose of extending any such benefit to a promotional post of Assistant Engineer.
The judgment of the Division Bench in the case of Bhanu Pratap Singh (supra) and its ratio would no longer be available to the petitioner-State in view of the clear law that has now laid down by the Apex Court in the case of Union of India Vs. National Confederation For Development of Disabled (supra). The said judgment of the Apex Court has extended the benefit of horizontal reservation under the 'Physically Handicapped Category' interpreting Section 33 of the 1995 Act to all posts, namely, Group-A, B, C and D holding that no distinction can be drawn while extending such benefit. The reasons given by the Apex Court are, therefore, unequivocal in terms, and the directions given thereunder, are now binding law as per the Constitution. Consequently, the reliance placed by the learned counsel for the petitioner on the said issue cannot be countenanced.
Coming to the issue as to whether such a horizontal reservation is also applicable in matters of promotional posts, the Division Bench of the Bombay High Court while following the Apex Court decision has clearly held that no distinction can be drawn in relation to posts between direct recruitment and promotion. The aforesaid judgment of the Bombay High Court has been recently upheld by the Apex Court on 12.9.2014 and the Special Leave Petition filed by the Union of India has been dismissed. The law, therefore, as it stands today is clearly in favour of the respondents.
However, there is one issue which requires to be indicated, namely, this being a clear policy decision, a direction should have been given by the Tribunal to the State Government to reconsider the matter in the light of the law which according to it was the correct position of law. The Tribunal therefore exceeded in its authority in proceeding to direct consideration for promotion under its own order and to grant all consequential service benefits to the respondents. In our opinion, to that extent the order of the Tribunal cannot be sustained.
In the aforesaid circumstances, for the reasons given hereinabove, we maintain and uphold the judgment of the Tribunal dated 6.5.2013 in so far as it has quashed the order dated 18.1.2013 but we set aside the operative part of the judgment dated 6.5.2013 whereby directions have been given to promote the respondents with all consequential benefits.
We, as a result of the aforesaid conclusion drawn, also declare that the order passed by the State Government on 4.7.2014 does not reflect the correct position of law and is, therefore, liable to be ignored.
The State Government is, therefore, directed now to take an appropriate decision in the light of what has been stated by us hereinabove ignoring its order dated 4.7.2014 that was passed on account of the interim directions issued by this Court in the present petition on 3.7.2014. Such decision of policy shall be in conformity with the law as explained hereinabove and an appropriate government order shall be issued to that effect.
Consequently, the writ petition is partly allowed with the direction that the State Government will do the needful according to this judgment within one month from the date of production of a certified copy of this order before it.
Order Date :- 24.9.2014 Anand Sri./-