[2025:RJ-JP:27968-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 16555/2024 Kailash Chand Saini S/o Shri Hari Ram Saini, Aged About 54 Years, R/o A-59, Shanti Nagar, Gurjar Ji Thadi, Jaipur, Rajasthan. ----Petitioner Versus 1. State Of Rajasthan, Through Principal Secretary, Department Of Personnel, Government Secretariat, Jaipur, Rajasthan. 2. State Of Rajasthan, Through Principal Secretary, Department Of Energy, Government Secretariat, Jaipur, Rajasthan. 3. Chairman And Managing Director, Jaipur Vidyut Vitran Nigam, Limited (Jvvnl), Vidhyut Bhawan, Jyoti Nagar, Jaipur (Raj.). 4. Secretary (Administration), Jaipur Vidyut Vitran Nigam, Limited (Jvvnl), Vidhyut Bhawan, Jyoti Nagar, Jaipur (Raj.). ----Respondents For Petitioner(s) : Mr. Himanshu Jain, Adv. For Respondent(s) : HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI Order 25/07/2025 1. The challenge before the Court is the notification which has been issued by the State Government dated 23.01.2019 and notification dated 14.10.2021 which provided for reservation of vacancies for persons with disabilities, firstly, for direct recruitment and thereafter, for promotion also. [2025:RJ-JP:27968-DB] (2 of 9) [CW-16555/2024] 2. Learned counsel for the petitioner submits that the notification dated 14.10.2021 which has provided for extending the benefit of reservation in promotion to the persons with disabilities w.e.f. 14.10.2021 is per se unjustified, arbitrary and it ought to relate back from the date of promulgation of Rights of Persons with Disabilities Act of 2016 (hereinafter referred to as ‘the Act’) which was enacted by the Parliament and provided for reservation for direct recruitment of persons with disabilities and reservation in promotion subject to the appropriate Government framing rules therein. Learned counsel also submits that provision of the Act provided in terms of Section 101 of the Act to frame the rules and it was incumbent upon the State Government to frame the rules within six months from the date of commencement of the Act. The State Government however, has failed to enact rules within six months from the stipulated period and has issued the notification on 23.01.2019 and thereafter on 14.10.2021 providing for reservation to persons with disabilities in direct recruitment and promotion respectively. He further submits that on account of non publication of the rules at the relevant time within six months period, the rights of the persons with disabilities for consideration of promotion against the vacancies which arose in interregnum period i.e. from 2017 to 2021 have been taken away. He submits that the notification dated 14.10.2021 should be given effect from the date of publication of the Act and accordingly, benefit of promotion should be granted to the petitioner and persons with disabilities. 3. Learned counsel for the petitioner has relied upon judgment passed by the Supreme Court in case of Rajeev Kumar Gupta & [2025:RJ-JP:27968-DB] (3 of 9) [CW-16555/2024] Ors. Vs. Union of India & Ors: (2016) 13 SCC 153 which has been reiterated by the Larger Bench in Siddaraju Vs. State of Karnataka & Ors.: (2020) 19 SCC 572. 4. We have carefully considered the submissions advanced before us. 5. It would be apposite to quote the provisions of the Act for the purpose of adjudication of this case. “34. Reservation.—(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely:— (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time: Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section. (2) Where in 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 may 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 person with disability: [2025:RJ-JP:27968-DB] (4 of 9) [CW-16555/2024] Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit. 101. Power of State Government to make rules—(1) The State Government may, subject to the condition of previous publication, by notification, make rules for carrying out the provisions of this Act, not later than six months from the date of commencement of this Act. (2) In particular, and without prejudice to the generality of foregoing powers, such rules may provide for all or any of the following matters, namely:— (a) the manner of constituting the Committee for Research on Disability under sub-section (2) of section 5; (b) the manner of providing support of a limited guardian under sub-section (1) of section 14; (c) the form and manner of making an application for certificate of registration under sub-section (1) of section 51; (d) the facilities to be provided and standards to be met by institutions for grant of certificate of registration under sub-section (3) of section 51; (e) the validity of certificate of registration, the form of, and conditions attached to, certificate of registration under sub-section (4) of section 51; (f) the period of disposal of application for certificate of registration under sub-section (1) of section 51; (g) the period within which an appeal to be made under sub-section (1) of section 53; (h) the time and manner of appealing against the order of certifying authority under sub-section (1) and manner of disposal of such appeal under sub-section (2) of section 59; (i) the allowances to be paid to nominated Members of the State Advisory Board under sub-section (6) of section 67; (j) the rules of procedure for transaction of business in the meetings of the State Advisory Board under section 70; (k) the composition and functions of District Level Committee under section 72; (l) salaries, allowances and other conditions of services of the State Commissioner under sub-section (3) of section 79; (m) the salaries, allowances and conditions of services of officers and staff of the State Commissioner under sub- section (3) of section 79; (n) the composition and manner of appointment of experts in the advisory committee under sub-section (7) of section 79; [2025:RJ-JP:27968-DB] (5 of 9) [CW-16555/2024] (o) the form, manner and content of annual and special reports to be prepared and submitted by the State Commissioner under sub-section (3) of section 83; (p) the fee or remuneration to be paid to the Special Public Prosecutor under sub-section (2) of section 85; (q) the manner of constitution of State Fund for persons with disabilities under sub-section (1), and the manner of utilisation and management of State Fund under sub- section (2) of section 88; (r) the form for preparation of accounts of the State Fund for persons with disabilities under sub-section (3) of section 88. (3) Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such State Legislature consists of one House, before that House.” 6. According to Section 34(1) of the Act, it is apparent that while the appropriate Government has been directed to provide not less than 4 per cent of the total number of vacancies in the each group of posts, to be filled by the persons with benchmark disabilities for open selection, so far as the reservation in promotion is concerned, Section 34(1) of the Act specifically leaves it open to the appropriate Government to issue instructions from time to time for the said purpose. Section 101 of the Act as noticed above does not laid down a time bound directions for framing Rules for reservation in promotion as Section 34(1) is not included in Section 101 of the Act. (i) Thus, the appropriate Government i.e. the State Government in the present case, has not been bound down to provide reservation in promotion from the date the provisions has been enacted in the Act of 2016. A different date can be laid down. 7. Considering the same, Supreme Court in Siddaraju (supra) has concur the view taken in Rajeev Kumar Gupta & Ors. Vs. Union of India & Ors. (supra) where it has been held that “Therefore, the rule of no reservation in promotions as laid down [2025:RJ-JP:27968-DB] (6 of 9) [CW-16555/2024] in Indra Sawhney has clearly and normatively no application to persons with disabilities”. 8. The view was affirmed by this Court. The larger Bench in Siddaraju (supra) held as under:- “After hearing the learned counsel appearing on behalf of all the parties including the learned Additional Solicitor General, we are of the view that the judgment of this Court cannot be faulted when it stated that Indra Sawhney dealt with a different problem and, therefore, cannot be followed.” 9. It is to be noticed that while deciding the Siddaraju (supra), the Apex Court also considered the view expressed in the case of National Federation of the Blind Vs. Sanjay Kothari, Secretary Department of Personnel and Training: (2020) 19 SCC 584 and it also looked into the law as was considered in Union of India & Anr. Vs. National Federation of the Blind & Ors.: (2013) 10 SCC 772 and held that so far as reservation in promotion is concerned, the issue with regard to manner of computing three per cent reservation for the persons (as it stood in 2013) and four per cent (as to be understood presently) would have to be construed in terms of Para-10 of the judgment which reads as under:- “10. The next important judgment that needs to be adverted to in this behalf is the judgment in National Federation of the Blind Vs. Sanjay Kothari in para 10 of which para 52 of the earlier judgment was clarified as follows: (SCCp.588) 10. Para 52 of the order on which reliance has been placed by Shri Rungta must be viewed in the context of the questions arising for answer before the Court i.e. the manner of computation of vacancies in case of Group A, B, C and D posts. All that the Court in the aforesaid para 52 has held is that the manner of such identification must be inform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in para 52 of the Court’s order as aforesaid.” 10. Thus, if we examine the assertions made by the petitioner in terms of the aforesaid judgments, we noticed that State has been [2025:RJ-JP:27968-DB] (7 of 9) [CW-16555/2024] authorized to frame Rules relating to reservation for direct recruitment as well as for promotion by the notification dated 14.10.2021. The State has notified that reservation in promotion shall be in accordance with such instructions as may be issued by the State Government from time to time. Accordingly, they have issued instructions providing reservation in promotion and the same has been further notified to be prospective, that is from the date the notification has been issued. Claim of the petitioner for retrospective application of reservation in promotion is found to be wholly mis-conceived. Since, the words used in the Act mentions “from time to time”, if we notice the provisions of Section 101 of the Act, they do not mention for binding up the appropriate Government to frame Rules, relating to reservation in all posts. Section 34 of the Act has been deliberately excluded from Sub- Clause 2 of Section 101 of the Act. The power as available under Section 101(1) of the Act still continues, hence, as and when the appropriate Government would frame rules, it would exercise the powers under Section 101(1) of the Act for framing the Rules, but the rules which have been framed in the year 2021 or in the year 2019, cannot be said to be bad in law or contrary to the provisions of the Act and specifically to Section 101 Sub-Clause 1 & 2 of the Act. 11. We also have examined petitioner’s case on the anvil of right of promotion and we find that in terms of Ashok Kumar Gupta Vs. State of U.P.: (1997) 5 SCC 201 no person has a right to promotion. The only right available is for consideration of promotion. Once the vacancies have been ear-marked under the [2025:RJ-JP:27968-DB] (8 of 9) [CW-16555/2024] notification of the year 2021 to be filled up from person with disabilities, the same would have a prospective effect alone. The Constitution Bench of the Hon’ble Supreme Court is Chairman Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors.: AIR 1997 SC 3828 has held that the powers available to the State Government to frame rules prospectively and retrospectively. It is beyond the domain of this Court to direct the State Authorities to frame Rules retrospective and it is exclusively within their administrative decision whether they would like a particular rule to apply retrospectively. In normal course, any rule which is framed has to be treated and read to be prospective in nature. 12. In Zile Singh vs. State of Haryana & Ors.: (2004) 8 SCC 1, the Apex Court held as under:- “13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' __ a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. 14. The presumption against retrospective operation is not applicable to declaratory statutes. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. An amending [2025:RJ-JP:27968-DB] (9 of 9) [CW-16555/2024] Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.” 13. In State of Punjab & Ors. Vs.Bhajan Kaur & Ors.: (2008) 12 SCC 112, the Apex Court held as under:- “A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of rule of law.” 14. In view of above, we do not find any merit in this case. Accordingly, the present Civil Writ Petition is dismissed. 15. All pending application(s), if any, also stands disposed of. (CHANDRA PRAKASH SHRIMALI),J (SANJEEV PRAKASH SHARMA),J HEENA/MAHIMA/05