Assam: Gauhati HC considers 4% reservation, directs preferential promotion of PwD candidates

Staff Reporter

Guwahati: The Gauhati High Court recently ruled that the petitioners in the instant cases, who are candidates for promotion to the post of Assistant Engineer (Civil), are entitled to be considered for promotion in terms of the 4% reservation for benchmark disability under the Disabilities Act, 2016. Therefore, the HC directed the respondent authorities to consider the case of the petitioners with retrospective effect.

The single-judge bench of Justice Kardak Ete issued the order in two clubbed cases (WP(C)/3299/2020) and (WP(C)/3317/2020) as the issue involved in both writ petitions is analogous and was disposed of by a common judgment and order. By filing these two writ petitions, the petitioners prayed for a direction to the respondent authorities to modify the office memorandum (O.M.) dated January 17, 2019, so as to provide reservation in promotion to the post of Assistant Engineer (Civil) under the Public Works Department, Government of Assam. The petitioners also prayed for a direction to consider their case for promotion to the post of Assistant Engineer (Civil) against the 4% quota reserved for Persons With Disabilities (hereinafter PwD in short) as provided under the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the Disabilities Act, 2016 in short).

In the course of their services, the petitioners, in the time of the pendency of their cases, became eligible to be promoted to the cadre of Assistant Engineer (Civil) and have been promoted on their own merit and positions in the department, whereas it is contended that the petitioners are entitled to preferential treatment under the 4% reservation in terms of the provisions of the Disabilities Act, 2016.

The court observed that, indisputably, the respondent authorities have not filled up the disability quota since the coming into force of the Disabilities Act, 2016 and in terms of the provision contained in Section 34 (2) which provides that wherein any recruitment year any vacancy cannot be filled up due to non availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it my first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a PwD.

In this regard, the Supreme Court has held that once a post is identified as being capable of being filled up by a disabled person, it must be reserved for the disabled irrespective of the mode of recruitment adopted by the State for filling up such post, it was pointed out.

After consideration of the materials and provisions of the Disabilities Act, 2016, coupled with the judgments of the SC, the judge was of the considered view that the petitioners are entitled to be promoted to the post of Assistant Engineer (Civil) under the benchmark disabilities quota. The respondent authorities have failed to adhere to the mandate of law, which resultantly appears to have deprived the petitioners of the right to be considered for promotion to the post of Assistant Engineer (Civil) in the department on three occasions in the years 2021 and 2022, when the respondent authorities ought to have considered the case of the petitioners for promotion under 4% reservation as provided in the Disabilities Act, 2016.

In view of the discussions, the judge deemed it appropriate to direct the respondent authorities to consider the case of the petitioners and, accordingly, directed that "the respondent authorities shall consider the case of the petitioners for promotion to the post of Assistant Engineer (Civil), particularly since the filing of present writ petitions, with effect from the year 2021, as the authorities, at the relevant point of time, have promoted as many as 83 junior engineers (Civil) to the rank of Assistant Engineers (Civil) without adhering to the mandate of law."

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