Madhya Pradesh High Court
Dr.Abdul Aziz Khan vs Union Of India on 9 July, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan
NEUTRAL CITATION NO. 2025:MPHC-JBP:30598
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W.P. No.12164/2007
IN THE HIGH COURT OF MADHYA PRADESH
A T J AB AL P UR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SHRI JUSTICE AMIT SETH
ON THE 9th OF JULY, 2025
WRIT PETITION No. 12164 of 2007
DR.ABDUL AZIZ KHAN
Versus
UNION OF INDIA AND OTHERS
Appearance:
Smt. Sbobha Menon - Senior Advocate with Shri Rahul Choubey -
Advocate for petitioner.
Shri Manoj Kumar Singh - Advocate for respondent No.4.
ORDER
Per: Justice Amit Seth
The petitioner had filed the instant writ petition challenging the
order dated 16.08.2007 passed by the Central Administrative Tribunal,
Jabalpur Bench, Jabalpur in O.A. No.34/2006 whereby, the original
application preferred by the petitioner, seeking promotion to the post of
Director from retrospective date i.e. w.e.f. 1992/1996 in terms of the
provisions of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (hereinafter referred
to as the “Act of 1995”) and consequential benefits for further promotion
to the next higher post of Deputy Director General, has been dismissed.
Signature Not Verified
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MISHRA
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2. It was the case of the petitioner before the learned Tribunal in O.A.
No.34/2006 that he suffering from permanent locomotive disability of
40%, was entitled for promotion under the post identified for Persons with
Disabilities w.e.f. the date, the petitioner completed the prescribed length
of service on the feeder post of Geologist (Senior) (Group ‘A’) Senior
Class I (as per the petitioner year 1992 or w.e.f. the date of implementation
of the Act of 1995) and the representations submitted by him in the said
regard since was rejected vide communication dated 22.02.2005, he
approached the Central Administrative Tribunal by way of filing the
questioned O.A. No.34/2006 seeking the relief, as stated hereinabove.
3. The respondents filed their return in O.A. No.34/2006 wherein,
though the factum of physical disability of petitioner was not objected to.
However, they relied upon the office memorandum dated 18.02.1997 &
20.11.1989, 18.02.1997, 06.01.1998 & 28.08.1998 issued by the DOPT to
contend that the reservation for persons with disabilities in promotion is
available only when the promotions are made to the identified Group ‘C’
and ‘D’ posts and not in Group ‘A’ and ‘B’ posts. Since the petitioner herein
was seeking promotion to a Group ‘A’ post, therefore, in the light of the
above referred circular, he is not entitled for the relief claimed.
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MISHRA
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4. The learned Central Administrative Tribunal by relying on the office
memorandum dated 27.12.2004 and 28.08.1998 concluded that admittedly,
the promotion being claimed by the petitioner is on a Group ‘A’ post for
which, the provision of reservation for the persons with disabilities is not
available as per office memorandum dated 27.12.2004 and accordingly, the
O.A. No.34/2006 came to be dismissed by the Central Administrative
Tribunal vide order dated 16.08.2007. It is this order which is under
challenge in the present writ petition.
5. Learned Senior Counsel appearing for the petitioner by relying upon
the provisions contained in Sections 32, 33 and 36 of the Act of 1995 so
also, the office memorandum dated 28.08.1998 submitted that once, the
post for physically disabled persons have been identified in Group ‘A’ and
Group ‘B’ cadre, then, it is impermissible for the respondents to carve out
an exception that the benefit of reservation would be available only in the
case of direct recruitment and not in the case of promotion.
6. To bolster her submission, learned Senior Counsel appearing for the
petitioner relied upon the judgment of the Hon’ble Supreme Court in the
case of Rajeev Kumar Gupta and others vs. Union of India and others,
(2016) 13 SCC 153 by referring to paragraphs 2, 9, 18 and 21. She further
relied upon the judgment of Hon’ble Supreme Court in the case of
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Siddaraju vs. State of Karnataka and others, (2020) 19 SCC 572 by
referring to paragraphs 1, 9, 10 and 11 and also the judgment of the
Hon’ble Supreme Court in the case of the State of Kerala and others vs.
Leesamma Joseph, (2021) 9 SCC 208 to contend that identical office
memorandums dated 18.02.1997 and 29.12.2005 carving exception for not
providing reservation for PWD candidates for promotion in Group ‘A’ and
Group ‘B’ posts and providing the same only in direct recruitment have
been declared to be illegal and inconsistent with the Act of 1995 by the
Hon’ble Supreme Court in the case of Rajeev Kumar Gupta (supra). The
judgment of the Hon’ble Supreme Court in the case of Rajeev Kumar
Gupta (supra) has been subsequently considered and approved in the case
of Siddaraju (supra) and Leesamma Joseph (supra) and accordingly,
the prayer is made for setting aside the impugned order dated 16.08.2007
passed by the learned Central Administrative Tribunal in O.A. No.34/2006
and for a further direction to the respondents to extend the benefit of the
said Act to the petitioner in terms of the relief claimed in the original
application.
7. Learned counsel appearing for the respondent, apart from supporting
the impugned order passed by the Central Administrative Tribunal,
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submitted that petitioner herein has since retired in the year 2008, no
further cause of action subsists for the petitioner to pursue.
8. We have heard the learned counsel for the parties and perused the
record.
9. The sole reason for the learned Central Administrative Tribunal to
deny the relief claimed by the petitioner herein was the circulars dated
27.12.2004 and 28.08.1998 wherein, a distinction was sought to be drawn
for extending the benefit of reservation to the physically disabled
candidates for the Group ‘A’ and Group ‘B’ posts only through direct
recruitment and not by way of promotion. The Hon’ble Supreme Court in
the case of Rajeev Kumar Gupta (supra) considered the validity of
similar circulars dated 18.02.1997 and 29.12.2005 carving distinction in
the matter of extending the benefit of reservation under the Act of 1995 for
promotion and considered the arguments advanced on behalf of
respondents therein as stated in para 9 as under:-
“9. The respondents argued
(i) that the mandate of Section 33 of the 1995 Act applies only
when the identified posts are sought to be filled up by direct
recruitment. Impugned memorandum-II only contains a policy
decision of the Government of India by which reservation is
granted to Group C and Group D posts even when they are
sought to be filled up by the mode of promotion. Since the
policy decision restricted the reservation in promotion to
identified Group C and Group D posts, the petitioners haveSignature Not Verified
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MISHRA
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no right to demand reservation in promotion to identified
Group A and Group B posts.
(ii) The respondents further argued that Indra Sawhney case
clearly ruled that reservations be confined to recruitment at
the initial level of recruitment into government service and
not at the stage of promotions. Providing for reservation in
higher level posts is constitutionally impermissible. The
respondents, therefore, argued that in light of the law laid
down in Indra Sawhney, it is constitutionally impermissible
that petitioners to be given three per cent reservation in
promotions for identified Group A and Group B posts.”
Thereafter, the Hon’ble Supreme Court in para 18, 21, 22, 24
and 25 held as under:-
“18. The principle is that the State shall not discriminate
(which normally includes preference) on the basis of any one
of the factors mentioned in Article 16(1). Though under the
doctrine of “reasonable classification”, it has always been
held that State can identify classes of people who have
distinct characteristics or disadvantages and treat them
separately under law. Having regard to the history, the social
and demographic context of our nation, the Constitution
framers thought it appropriate to enable the State under
Article 16(4) to identify citizens for preferential treatment for
the purpose of employment under the State.
xxx xxx xxx
21. The principle laid down in Indra Sawhney is applicable
only when the State seeks to give preferential treatment in the
matter of employment under State to certain classes of
citizens identified to be a backward class. Article 16(4) does
not disable the State from providing differential treatment
(reservations) to other classes of citizens under Articles
16(1)[11] if they otherwise deserve such treatment. However,
for creating such preferential treatment under law, consistent
with the mandate of Article 16(1), the State cannot choose any
one of the factors such as caste, religion etc. mentioned in
Article 16(1) as the basis. The basis for providing reservation
for PWD is physical disability and not any of the criteriaSignature Not Verified
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forbidden under Article 16(1). Therefore, the rule of no
reservation in promotions as laid down in Indra Sawhney has
clearly and normatively no application to the PWD.
22. The 1995 Act was enacted to fulfill India’s obligations
under the ‘Proclamation on the Full Participation and
Equality of the People with Disabilities in the Asia and
Pacific Region’. The objective behind the 1995 Act is to
integrate PWD into the society and to ensure their economic
progress.[12] The intent is to turn PWD into ‘agents of their
own destiny’.[13] PWD are not and cannot be equated with
backward classes contemplated under Article 16(4). May be,
certain factors are common to both backward classes and
PWD such as social attitudes and historical neglect etc.xxx xxx xxx
24. A combined reading of Sections 32 and 33 of the 1995 Act
explicates a fine and designed balance between requirements
of administration and the imperative to provide greater
opportunities to PWD. Therefore, as detailed in the first part
of our analysis, the identification exercise under Section 32 is
crucial. Once a post is identified, it means that a PWD is fully
capable of discharging the functions associated with the
identified post. Once found to be so capable, reservation
under Section 33 to an extent of not less than three per cent
must follow. Once the post is identified, it must be reserved
for PWD irrespective of the mode of recruitment adopted by
the State for filling up of the said post.
25. In light of the preceding analysis, we declare the
impugned memoranda as illegal and inconsistent with the
1995 Act. We further direct the Government to extend three
percent reservation to PWD in all IDENTIFIED POSTS in
Group A and Group B, irrespective of the mode of filling up
of such posts. This writ petition is accordingly allowed.”
10. The judgment of the Hon’ble Supreme Court in the case of Rajeev
Kumar Gupta (supra) has been followed and relied upon in the
subsequent judgment of Siddaraju (supra) and subsequently in the case of
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MISHRA
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Leesamma Joseph (supra), the Hon’ble Supreme Court considered the
following aspects:-
“I. Whether the 1995 Act mandates reservations in
promotions for persons with disabilities?
13. A broad aspect sought to be submitted before us is
that Sections 32 and 33 of the 1995 Act had to be interpreted
in juxtaposition and consonance with Section 47 of that Act
which reads as under:
47. Non-discrimination in Government employment.-
(1) No establishment shall dispense with, or reduce in
rank, an employee who acquires a disability during his
service:
Provided that, if an employee, after acquiring disability is not
suitable for the post he was holding, could be shifted to some
other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the
employee against any post, he may be kept on a
supernumerary post until a suitable post is available or he
attains the age of superannuation, whichever is earlier.
(2) No promotion shall he denied to a person merely on
the ground of his disability:
Provided that the appropriate Government may, having
regard to the type of work carried on in any establishment, by
notification and subject to such conditions, if any, as may be
specified in such notification, exempt any establishment from
the provisions of this section.”
14. The legislative mandate has to be understood in the
aforesaid context as it provides for equal opportunity for
career progression, including promotion. Thus, it would be
negation of the legislative mandate if promotion is denied to
PwD and such reservation is confined to the initial stage of
induction in service. This would in fact result in stagnation of
the disabled in a consequential frustration.
[6] This was held in Viklang Sang Haryana vs.
State of Haryana, 2011 SCC Online P&H 4266
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as the State of Haryana did not provide for
reservation in promotion to PwD in Class II and
IV posts.
15. The operation of reservation and the computation has
to be made with reference to the total number of vacancies in
the cadre strength and no distinction should be made between
posts to be filled by direct recruitment and by promotion.
16. The last aspect submitted in this behalf is that the
reservation could be granted to PwD if: (i) the Rules provide
for promotion from the feeder cadre to the promotional posts;
and (ii) posts are identified in the promotional cadre, which
are capable of being filled up with Persons with Disability.
[7] This is how the Bombay High Court
in Ravindra v. Union of India, 2020 SCC
OnLine Bom 771 has interpreted the judgments
of this Hon’ble Court in Rajeev Kumar
Gupta (supra) and Siddaraju (supra).
17. On examination of the aforesaid plea we find that that
there is merit in what the learned Amicus Curiae contends
and we are of the view that really this issue is no more res
integra in view of the judgment of this Court in Government
of India & Anr. vs. Ravi Prakash Gupta & Anr.8 and Union
of India vs. National Federation of the Blind (supra)
opining that reservation has to be computed with reference to
total number of vacancies in the cadre strength and no
distinction can be made between the posts to be filled by
direct recruitment and by promotion. Thus, total number of
vacancies in the cadre strength would include the vacancies
to be filled in by nomination as well as by promotion. In fact,
this was the view adopted by the Bombay High Court
discussed aforesaid in National Confederation
for Development of Disabled and Anr. vs. Union of India and
Ors. (supra) with the challenge raised to the same in a SLP
being rejected in Union of India vs. National
Confederation for Development of Disabled&Anr. 9. We may
note the observations in Rajeev Kumar Gupta and Others vs.
Union of India and Others (supra) in paragraph 24 to the
effect:
“Once the post is identified, it must be reserved
for PwD irrespective of the mode of recruitmentSignature Not Verified
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adopted by the State for filling up of the said
post” and a direction was issued to the
Government to extend 3% reservation to PwD in
all identified posts in Group A and Group B
“irrespective of the mode of filling up of such
posts”.
Learned Amicus Curiae has rightly pointed out the two
preliminaries for operationalising the said provision, i.e.
there has to be rules providing for promotion from the feeder
cadre to the provisional post as there cannot be promotions
even for the PwD de hors the rules as a singular benefit. The
requirement under Section 32 of the 1995 Act has also to be
completed for identifying the posts in the promotional cadre.
18. In our view, the aforesaid should put at rest the
controversy insofar as the mandate of 1995 Act qua
promotion is concerned.
IV. Whether the Respondent can be promoted by giving
benefit of reservation as she is a PwD, despite the fact that
she was not appointed in the PwD quota?
26. If we may say so, this was the most crucial issue which
persuaded us to grant leave in the SLP. The direction in the
impugned order was for the respondent to be considered for
the promotion based on disability at the time when the claim
originally arose, but subject to her seniority with reference to
other PwD candidates entitled to such reservation. She was
also held entitled to the notional benefits of her promotion
from the date she was so found entitled. In the factual context,
it has been pointed out by learned Amicus Curiae that the
respondent had claimed a promotion to the post of UDC with
effect from 1 st July, 2002 and further to the post of Cashier
with effect from 20 th May, 2012. The endeavour of the
Amicus Curiae was to obtain necessary information from the
appellant-State and to seek their response. In this behalf, it
has been pointed out that The Ministry of Social Justice and
Empowerment in the Department of Empowerment of Persons
with Disabilities (Divyang), Government of India has
undertaken a very comprehensive exercise of identifying posts
which can be reserved for PwD and the list of such posts are
available on the website. From that it appears that the post of
UDC/Cashier would be amenable to reservation for PwD and
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thus there can be little doubt that the respondent has been
capable of discharging functions of the promotional post and
thus could not be denied the benefit of reservation (even if
Rules do not provide for any reservation in promotion) as
repeatedly observed by us that Section 32 of the 1995 Act is to
facilitate but not to impede the legislative mandate.
27. Now coming to the question of the respondent not being
initially appointed in the quota for PwD in the feeder cadre,
we note that there is no dispute about the benchmark
disability of the respondent. It would be discriminatory and
violative of the mandate of the Constitution of India if the
respondent is not considered for promotion in the PwD quota
on this pretext. Once the respondent has been appointed, she
is to be identically placed as others in the PwD cadre. The
anomaly which would arise from the submission of the
appellant-State is apparent – a person who came in through
normal recruitment process but suffers disability after joining
service would on a pari materia position be also not entitled
to be considered to a vacancy in a promotional post reserved
for a PwD. This is the consequence if the entry point is
treated as determinative of the entitlement to avail of the
benefits. Source of recruitment ought not to make any
difference but what is material is that the employee is a PwD
at the time for consideration for promotion. The 1995 Act
does not make a distinction between a person who may have
entered service on account of disability and a person who
may have acquired disability after having entered the service.
Similarly, the same position would be with the person who
may have entered service on a claim of a
compassionate appointment. The mode of entry in service
cannot be a ground to make out a case of discriminatory
promotion.”
11. On due consideration of the facts of the instant case in the light of the
law laid down by the Hon’ble Supreme Court in the above referred cases,
the respondents have not disputed the physical disability of the petitioner
herein, the only ground on which, the claim of the petitioner has been
turned down, are the office memorandums/executive instructions issued by
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the respondent-Department wherein, a distinction is sought to be carved
out for extending the benefit of reservation to the persons with disabilities
for the Group ‘A’ and Group ‘B’ posts only through direct recruitment and
not by way of promotion. Identical office memorandums/executive
instructions have already been declared to be illegal by the Hon’ble
Supreme Court in the case of Rajeev Kumar Gupta (supra). The sole
basis for declining the relief to the petitioner by the Central Administrative
Tribunal is also the office memorandums/circulars carving out the above
referred distinction. Thus, the impugned order dated 16.08.2007 passed by
the Central Administrative Tribunal, when tested on the anvil of law laid
down by the Hon’ble Supreme Court in the given facts and circumstances,
cannot be given a stamp of approval and accordingly the same is set aside.
12. The respondents are directed to extend the benefit of the Act of 1995
to the petitioner by considering his case for promotion to the post of
Director (GEOL) w.e.f. the date of implementation of the Act of 1995 and
the date on which the post was identified and in case he is found fit, he be
promoted to the said post w.e.f. the said date. Since the petitioner has not
actually worked on the higher post, he would be entitled only for the
benefit of notional fixation of pay.
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13. Further, in case, the petitioner is extended the benefit of promotion
to the post of Director (GEOL) retrospectively, then his case for further
promotion to the post of Deputy Director General be also considered under
the persons with disabilities reservation in case, the said post is identified,
under the Act of 1995. The petitioner would be entitled for only notional
fixation of pay in the event of he being further promoted. Since the
petitioner is retired in the year 2008, in case, he is granted promotions
with retrospective effect, the respondents will issue a revised pension
payment order and the petitioner would be entitled for the arrears of
pension on account of such re-fixation with interest at the rate of 6% per
annum w.e.f. the date of entitlement of the petitioner up to the date of
actual payment. The entire exercise is required to be completed by the
respondents within a period of 90 days from the date of receipt of certified
copy of this order.
14. The petition stands allowed and disposed of with the aforesaid
directions. No order as to costs.
(ATUL SREEDHARAN) (AMIT SETH)
JUDGE JUDGE
psm
Signature Not Verified
Signed by: PREMSHANKAR
MISHRA
Signing time: 11-07-2025
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