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2025 DAILYLAW 3923 (HP)

Shobu Ram v. Himachal Road Transport Corporation

2025-12-02

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioner, Shobu Ram, a Clerk, under the Respondent-Corporation, at the relevant time, filed Original Application No.6530 of 2016 before the Administrative Tribunal and after abolition of the Tribunal, the matter was transferred to this Court as CWPOA No.792 of 2020, seeking the following reliefs:- “(1) Declare the Recruitment and Promotion Rules contained in Annexure A-3 to be declared unconstitutional and illegal and binding upon the applicant as if does not provide reservation of 3% quota in promotional avenue in view of the law laid down by the Hon’ble Supreme Court and various other High Courts declaring the persons with disability entitled to the aforesaid reservation in Promotional avenue under the Person with disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 by issuance of order and directions to the respondents department to amend the R&P Rules by way of incorporation of provision of promotional quota of 3% for promotions to the disabled persons under the Act; (II) The respondent corporation may kindly be directed to considered the case of the applicant to provide 3% quota in promotion to the disabled person and granted promotion with seniority from the initial date of his joining.” FACTUAL MATRIX: 2. Grievance of the petitioner is that he was initially appointed as Clerk/Announcer under 3% quota meant for disabled persons on contract basis in the Respondent-Corporation and while working as such, he was granted regular appointment from the date of initial appointment on 01.01.2005 [Annexure A-1]. It is averred that petitioner is entitled for reservation in promotion being a physically handicapped person under The Persons With Disabilities [Equal Opportunities to Protection of rights and full participation] Act, 1995 and the mandate of law of the Hon’ble Supreme Court in the cases of National Confederation Development of Disabled and another versus Union of India , (2013) 10 SCC 722 and the judgment in Rajeev Kumar Gupta and others versus Union of India and others (2016) 13 SCC 153 [Annexure A-4], but the action of the Respondent-Corporation in not granting benefit of reservation in promotion to the petitioner, being a person with disability as per the mandate of law and The Statute is unfair, unjust, illegal and the unconstitutional. STAND OF STATE AUTHORITIES-RESPONDENTS IN REPLY-AFFIDAVIT: 3. Pursuant to the issuance of notice by this Court on 14.12.2016, Respondent-Corporation has filed Reply-Affidavit dated 24.05.2017 of Regional Manager (Legal), HRTC Headquarter, Shimla. STAND OF STATE AUTHORITIES-RESPONDENTS IN REPLY-AFFIDAVIT: 3. Pursuant to the issuance of notice by this Court on 14.12.2016, Respondent-Corporation has filed Reply-Affidavit dated 24.05.2017 of Regional Manager (Legal), HRTC Headquarter, Shimla. 3(i). In Paras 1 to 3 of the Reply/Affidavit the Respondent-Corporation has stated that in- principle the Corporation follows the State Government Instructions and at present no Instructions have been issued by State Government for providing promotion for persons with disabilities and, as such, no reservation in promotion can be provided for persons with disabilities, alike a petitioner. 3(ii). Para 2 of Reply-Affidavit states that in the normal course, the name of the petitioner was considered for promotion to the post of SeniorAssistant by the Departmental Promotion Committee in the month of March, 2017 but due to disciplinary proceedings the consideration was kept in a sealed cover. In this backdrop, the State Authorities have filed prayed for the dismissal of the writ petition. REBUTTAL BY PETITIONER: 4. Though no rejoinder has been filed but Learned Counsel for the petitioner submits that the issue in the present case, is no longer res integra, in view of the judgment passed by the Hon’ble Supreme Court in Rajeev Kumar Gupta and others versus Union of India and others , (2016) 13 SCC 153 , reiterated in State of Kerala and Others Versus Leesamma Joseph (2021) 9 SCC 208 and reinforced by the 3-Judges Bench of Hon’ble Supreme Court in Siddaraju Versus State of Karnatka and others , (2023) 19 SCC 93 , approving the entitlement of persons with disabilities for reservation in promotions, under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and The Rights of Persons with Disabilities Act, 2016. In this backdrop, the claim has been reiterated. 5. Heard, Mr. Rakesh Kumar Sharma, Learned Counsel, for the petitioner and Mr. Raman Jamatla, Learned Standing Counsel, for the Respondents- Corporation. STATUTARY PROVISIONS AND MANDATE OF LAW ENTITLING PERSONS WITH DISABILITIES FOR RESERVATION IN PROMOTIONS: 6. Before proceeding further, it is necessary to have a recap of the statutory provisions and the mandate of law, entitling the persons with disabilities for reservation in promotions. 6(i). Raman Jamatla, Learned Standing Counsel, for the Respondents- Corporation. STATUTARY PROVISIONS AND MANDATE OF LAW ENTITLING PERSONS WITH DISABILITIES FOR RESERVATION IN PROMOTIONS: 6. Before proceeding further, it is necessary to have a recap of the statutory provisions and the mandate of law, entitling the persons with disabilities for reservation in promotions. 6(i). For appreciating the controversy, the provisions of Sections 32 and 33 of the Persons with Disabilities [Equal Opportunities to Protection of rights and Full Participation] Act, 1995 and Section 34 of Rights of Persons with Disabilities Act 2016 read as under:- Sections 32 and 33 of the Persons with Disabilities [Equal Opportunities to Protection of rights and Full Participation] Act, 1995: “32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall- a. identify posts, in the establishments, which can be reserved for the persons with disability; b. at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. 33. Reservation of Posts – Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- i. blindness or low vision; ii. hearing impairment; iii. locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” Section 34 of Rights of Persons with Disabilities Act 2016: “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. 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: 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.” 6(ii). (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.” 6(ii). While dealing with the rights of persons with disabilities and the quantum of reservation in the context of Sections 32 and 33 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, the Hon’ble Supreme Court in Union of India & Another versus National Federation of the Blind & Others (2013) 10 SCC 772 has mandated that statutory provisions of reservation for persons with disabilities cannot be interpreted and applied differently for same subject- matter but with uniformity in identification of posts in Group A, B, C & D on total number of vacancies in a cadre strength, which is the intention of the legislature and by outlining that 3% reservation for persons with disabilities has nothing to do with the ceiling of 50% and the grant in Indra Sawhney is not applicable, in the following terms:- “39. It has also been submitted on behalf of the appellants herein that since reservation of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre strength according to the OM dated 29.12.2005 but the actual import of Section 33 is that it has to be computed against identified posts only. This argument is also completely misconceived in view of the plain language of the said Section, as deliberated above. Even, for the sake of arguments, if we accept that the computation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservation between Group A and B posts or Group C and D posts respectively. As such, one statutory provision cannot be interpreted and applied differently for the same subject matter. 40. As such, one statutory provision cannot be interpreted and applied differently for the same subject matter. 40. Further, if we accept the interpretation contended by the appellants that computation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has shown that identification has never been uniform between the Centre and States and even between the Departments of any Government. For example, while a post of middle school teacher has been notified as identified as suitable for the blind and low vision by the Central Government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K etc. This has led to a series of litigations which have been pending in various High Courts. In addition, Para 4 of the OM dated 29.12.2005 dealing with the issue of identification of jobs/posts in sub clause (b) states that list of the jobs/posts notified by the Ministry of Social Justice & Empowerment is not exhaustive which further makes the computation of reservation uncertain and arbitrary in the event of acceptance of the contention raised by the appellants. 51. The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today. 52. 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 29.12.2005, 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. 52. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney is not applicable with respect to the disabled persons.” 6(ii-a). 52. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney is not applicable with respect to the disabled persons.” 6(ii-a). The mandate of law in National Federation of Blind and Others of 2013 was clarified by the Hon’ble Supreme Court in National Federation of the Blind vs Sanjay Kothari , in Cont. Petition (C) No.499 of 2014 in Civil Appeal No.9096 of 2013, (2015) 9 SCALE 611 , mandating that the manner of identification of post in case of Groups A, B, C & D posts must be uniform in all groups, in following terms:- “9. Insofar as the reservation in promotion is concerned, the issue can be viewed from the perspective of the questions that had confronted the Court in Civil Appeal No.9096 of 2013 as set out in paragraph 24 of the order of the Court which is to the following effect: 24 Two aspects of the impugned judgment have been challenged before this Court:- (a) The manner of computing 3% reservation for the persons with the disabilities as per Section 33 of the Act. (b) Whether post based reservation must be adhered to or vacancy based reservation. 10. Para 51 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 Groups A,B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B,C and D. Nothing beyond the above should be read in paragraph 51 of the Courts' order as aforesaid. 11. Coming to the point urged by Shri Suri with regard to the dismissal of the Union's special leave petition all that needs to be noticed is that the order dated 12.09.2014 dismissing SLP(C)No...../2014 (CC No(s). 13344/2014) is an order of dismissal simplicitor. In the absence of any reasons, we cannot speculate as to the basis for the dismissal ordered by this Court. 13. Having answered the issue of reservation in promotion in the manner indicated above, the application for clarification filed by the Union of India with regard to the said issue would stand answered in the above terms.” 6(ii-b). In the absence of any reasons, we cannot speculate as to the basis for the dismissal ordered by this Court. 13. Having answered the issue of reservation in promotion in the manner indicated above, the application for clarification filed by the Union of India with regard to the said issue would stand answered in the above terms.” 6(ii-b). The rights of persons with disabilities for reservation in promotion has been outlined by the Hon’ble Supreme Court in Rajeev Kumar Gupta and others versus Union of India and others (2016) 13 SCC 153 , that once the State has identified a post for persons with disabilities [PWD], then reservation has to be extended to such person with disabilities, irrespective of the mode of recruitment adopted by the State for filling up of the said post, in the following terms:- “13. For some of these identified posts in Group A and Group B, the mode of recruitment is only through promotions. The purpose underlying the statutory exercise of identification under Section 32 of the 1995 Act would be negated if reservation is denied to those identified posts by stipulating that either all or some of such posts are to be filled up only through the mode of promotion. It is demonstrated before us that PWD as a class are disentitled to some of the identified posts in Groups A and Group B because of the impugned memoranda and the relevant regulations, under which the only mode of appointment to those identified posts is through promotion. Once posts are identified under Section 32, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. It would be a device to defraud PWD of the statutory benefit under Section 33 of the 1995 Act. 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. 19. 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. 19. This Court in Indra Sawhney was dealing with the action of the State in providing reservation in employment under the State to various classes of citizens, identified by the State to be backward classes. The process of such identification and the nature and extent of reservations that could be provided under Article 16(4) were the main issues before this Court. It is in this context, this Court held that reservation in the context of promotions to higher posts under the State are constitutionally impermissible. 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 Article 16(1) 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 criteria 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. 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. 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.” 6(ii-c). While dealing with the rights of persons with disabilities for reservation in promotion, the 3-Judges Bench of the Hon’ble Supreme Court in Siddaraju versus State of Karnatka, (2020) 19 SCC 572 , answered the reference in the affirmative that persons with disabilities can be given reservation in promotion in accordance with the view taken by the Hon’ble Supreme Court in the case of Rajiv Kumar Gupta (supra), by negating the contention that the preferential treatment for persons with disabilities is admissible by providing reservation in appointment and not reservation in promotion, in the following terms: “This batch of cases before the Court has come to us on a reference made by a Division Bench of this Court dated 03.02.2017. The reference order reads as follows:( Siddaraju case, SCC OnLine SC paras 1-5) “1. Delay condoned. Leave granted. 2. Question which has arisen in this case is whether persons, governed under “The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, can be given reservation in promotion. A view has been taken by this Court in Rajiv Kumar Gupta & Others v. Union of India in the affirmative. 3. Mr. Ranjit Kumar, learned Solicitor General, points out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney v. Union of India applies not only to Article 16(4) but also 16(1) of the Constitution of India and inference to the contrary is not justified. 4. Persons suffering from disability certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion. Section 33 of the 1995 Act is required to be read and construed in that background. 5. 4. Persons suffering from disability certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion. Section 33 of the 1995 Act is required to be read and construed in that background. 5. We find merit in the contention that the matter needs to be considered by the larger Bench. Accordingly, we direct the matter be placed before Hon’ble the Chief Justice for appropriate orders. The Union of India is at liberty to file its affidavit within one week from today.” 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, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 , in para 10 of which para 52 of the earlier judgment was clarified as follows:- “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 Groups A, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in paragraph 52 of the Courts’ order as aforesaid.” 11. We now come to the Division Bench judgment of this Court reported as Rajeev Kumar Gupta v. Union of India. In this judgment, the posts in Prasar Bharati were classified into four Groups–A to D. The precise question that arose before the Court is set out in para 5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on the nine-Judge Bench in Indra Sawhney v. Union of India, this Court held: (Rajeev Kumar Gupta case, SCC pp. 158-62, paras 14-16 & 21) “14. We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. After noticing the arguments based on the nine-Judge Bench in Indra Sawhney v. Union of India, this Court held: (Rajeev Kumar Gupta case, SCC pp. 158-62, paras 14-16 & 21) “14. We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari. Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reservations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme. 15. The respondent argued that the answer to Question 7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at para 828 must also apply to bar reservation in promotions to identified posts of Group A and Group B. 16. We do not agree with the respondent’s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article 16(4). 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 the 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 Article 16(1) 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 criteria 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 PWD.” The Court then concluded: (SCC p.162, paras 24-25) “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. 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.” 6(ii-d). The principle laid down in the cases of National Federation, Sanjay Kothari, Rajeev Kumar Gupta and Siddaraju (supra), entitling persons with disabilities for reservation in promotions was reiterated by the Hon’ble Supreme Court in State of Kerala and Others Versus Leesamma Joseph , (2021) 9 SCC 208 , by mandating that once the posts have been identified for persons with disabilities in the promotional cadre then, the benefit of reservation in promotion to such persons cannot be defeated by using a methodology or by taking pretext that Rules do not provide for reservation in promotion flowing from the Statute and the declaration of law in Rajeev Kumar Gupta and Siddaraju and the legislative intent and mandate cannot be defeated, in the following terms:- “III. Whether in absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD? 22. The aforesaid issue was raised by the learned Amicus Curiae in the context of the plea of the appellant State that the State does not provide for any reservation in promotion for PwD. Thus, a person with disability would be considered for promotion along with other persons working in the feeder cadre. 22. The aforesaid issue was raised by the learned Amicus Curiae in the context of the plea of the appellant State that the State does not provide for any reservation in promotion for PwD. Thus, a person with disability would be considered for promotion along with other persons working in the feeder cadre. We have no doubt that the mandate of Section 32 of the 1995 Act enjoins the Government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD. There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. The absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation and in our view, this is the basis of the mandate of this Court in Rajeev Kumar Gupta and Siddarajus cases. 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? 28. 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 the learned Amicus Curiae that the respondent had claimed a promotion to the post of UDC with effect from 1-7-2002 and further to the post of Cashier with effect from 20-5-2012. The endeavour of the Amicus Curiae was to obtain necessary information from the appellant State and to seek their response. 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 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 9 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. 29. 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 parimateria 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 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. 31. We are of the view that the course of action followed by the High Court in the impugned order is salutary and does not call for any interference. We have also answered various questions which have arisen in the present proceedings assisted by the learned Amicus Curiae. In fact, what seems to emerge is that the appellant State has not implemented the judgment of this Court in Rajeev Kumar Gupta and Siddarajus cases. Thus, we consider it appropriate to issue directions to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. We are making it time-bound so that the mandate of the Act is not again frustrated by making Section 32 as an excuse for not having identified the post. 32. We may also note that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. The view aforesaid was required to be propounded as a large number of cases may still arise in the context of the 1995 Act.” 6(ii-e). Even an application filed by the Union of India for seeking clarification on four points detailed below, was disposed of by, the Hon’ble Supreme Court in Siddaraju Versus State of Karnatka and others , (2023) 19 SCC 93 , by mandating the Union of India and States to issue necessary Instructions regarding reservation for persons with disabilities in promotion under section 34 of Rights of Persons with Disabilities, Act 2016, in the following terms:- “2. This miscellaneous application has been filed by the Union of India for clarification of the judgment dated 14-1-2020. Notice was issued on 12-1-2021 and the Union of India was directed to submit a written note identifying the points on which clarification was sought. This miscellaneous application has been filed by the Union of India for clarification of the judgment dated 14-1-2020. Notice was issued on 12-1-2021 and the Union of India was directed to submit a written note identifying the points on which clarification was sought. Pursuant to the said direction, written note was filed by Ms Madhavi Divan, learned Additional Solicitor General seeking clarification on the following four issues:- 2.1 Whether the vacancies for promotion for PwDs would be computed only on the basis of the vacancies against the identified posts or against the vacancies in both identified and non-identified posts. 2.2 Whether reservation can be given to PwDs at the time of induction from SCS/Non-SCS to IAS. 2.3 Whether the intention of the judgment is to grant reservation in promotion beyond the lowest rung of Group A or up to the lowest rung of Group A. 2.4 Whether the judgment dated 14-1-2020 in Siddaraju v. State of Karnataka along with its tagged cases needs to be implemented on the basis of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (based on which the case was filed) or the Rights of the Persons with Disabilities Act, 2016 (the latest Act applicable on the date of judgment). 4. Ms. Jayna Kothari, learned Senior Counsel and Mr. Rajan Mani, learned counsel opposed the submissions made by the learned Additional Solicitor General by contending that there is no necessity for any clarification of the judgments of this Court referred to above. They have raised a grievance that the delay in issuing the instructions under the proviso to Section 34 resulted in stalling the implementation of reservation in promotion for persons with disabilities. 5. Having examined the judgments of this Court and the submissions made on behalf of the parties, we are of the opinion that there is no ambiguity in the judgments which warrants any clarification. The Union of India is directed to issue instructions regarding reservation in promotion as provided in Section 34 of the Rights of Persons with Disabilities Act, 2016 within a period of four months from today. 6(ii-f). The Union of India is directed to issue instructions regarding reservation in promotion as provided in Section 34 of the Rights of Persons with Disabilities Act, 2016 within a period of four months from today. 6(ii-f). Recently, the Hon’ble Supreme Court has reiterated the right and entitlement of reservation in promotion to persons with disabilities [PWDs] in services in the State Government, in Reserve Bank of India and others versus A.K. Nair and others , (2023) 19 SCC 51 , in the following terms:- BROAD OVERVIEW OF LAW: “14. Much water has flown under the bridge since the impugned judgment dated 16-6-2014 was rendered by the High Court. On the legislative front, the Parliament enacted the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as ‘the PwD Act, 2016’) repealing the PwD Act, 1995. On the judicial side, pronouncements in Rajiv Kumar Gupta vs. Union of India, Siddaraju vs. State of Karnataka and State of Kerala vs. Leesamma Joseph have seen the light of the day. The executive, in its turn, has complied with the directions contained in an order dated 28-9-2021 of this Court arising out of Siddaraju resulting in issuance of OM dated 17-5-2022 by the DoPT. These are undoubtedly developments subsequent to the impugned judgment; but since they could have a bearing on the merits of Mr. Nair’s claim that he has unjustly been deprived of promotion to the post of Assistant Manager, the same cannot be kept out of our consideration. Indeed, after OM dated 17-5-2022 was issued, the RBI has also issued a circular 8-12-2022 conveying its decision to reserve 16 (sixteen) vacancies for persons with disabilities out of 600 (six hundred) vacancies on the post of Assistant Manager Grade - ‘A’, to be filled up by a departmental examination scheduled on 10-12-2022. 15. The law relating to grant of equal opportunities, protection of rights, and full participation of persons with disabilities was codified by the PwD Act, 1995. Chapter VI of the PwD Act, 1995, titled ‘EMPLOYMENT’, containing sections 32 to 41, inter alia, mandated identification of posts which could be reserved for persons with disabilities for appointment, the extent of reservation and the procedure to be followed in the matter of recruitment. Chapter VI of the PwD Act, 1995, titled ‘EMPLOYMENT’, containing sections 32 to 41, inter alia, mandated identification of posts which could be reserved for persons with disabilities for appointment, the extent of reservation and the procedure to be followed in the matter of recruitment. Significantly, Chapter VI did not contain any express provision mandating an ‘employer’ or an ‘establishment’ as defined in clauses (j) and (k) of section 2, respectively, to reserve any percentage of posts for promotion to persons with disabilities serving in the feeder cadre. 16. However, Chapter VIII titled ‘NON- DISCRIMINATION’ in sub-section (2) of section 47 ordained that no promotion shall be denied to a person merely on the ground of his disability. Sections 44 to 47, under Chapter VIII, envisaged that persons with disabilities should not face any discrimination in any of the fields specified therein, with section 47 particularly dealing with non-discrimination in Government employment. It is true that sub-section (2) of section 47 does not contain any mandate requiring the employer or establishment to make reservation in promotional posts; on the contrary, it is a command to the employer or establishment that merely because an employee is suffering from a disability, as defined in section 2(i) of the PwD Act, 1995, he is not to be denied promotion. 17. However, it is noticed that even before the PwD Act, 1995 was enacted, OM dated 20- 11-1989 had been issued by the DoPT whereby, reservations promotions (i) within Group ‘D’, (ii) from Group ‘D’ to Group ‘C’ and (iii) within Group ‘C’ to the three categories of ‘physically handicapped persons’, viz. the visually handicapped, the hearing handicapped and the orthopedically handicapped, were permissible. It was, however, clarified that each of the three categories of physically handicapped persons would be allowed reservation at 1 (one) per cent each and that applicability of the reservation would be limited to promotions being made to those posts that are identified as being capable of being filled/held by the appropriate category of physically handicapped. 18. During the period intervening the advent of the PwD Act, 1995 and issuance of OM dated 29-12-2005, the DoPT went on to issue Office Memoranda dated 18-2-1997, 16-1-1998 and 25-10-2022. 18. During the period intervening the advent of the PwD Act, 1995 and issuance of OM dated 29-12-2005, the DoPT went on to issue Office Memoranda dated 18-2-1997, 16-1-1998 and 25-10-2022. We need not consider the said office memoranda in any great detail except referring to the common thread running through them, i.e., the DoPT sought to carve out the benefit of reservation in promotion for persons with disabilities even though whether there was an explicit legislative mandate to that effect was indeed a grey area for some. Notwithstanding the same, having regard to the objects that the PwD Act, 1995 intended to achieve by providing equal opportunity, protection of rights and full participation to the persons with disabilities and viewed in the light of difficulties and inconveniences faced by them, the initiative of the DoPT to provide for reservation in promotion for them on at least Group ‘C’ and Group ‘D’ posts was indeed a step in the right direction. 19. Be that as it may, mere absence of an express mandate in Chapter VI of the PwD Act, 1995 requiring reservation in promotion for persons with disabilities could not have been construed as not obliging the appropriate Government not to keep reserved vacancies on promotional posts for those answering clauses (i) to (iii) of section 33. Though the language used in section 33 could admit of a little bit of confusion, the crucial words there are “shall appoint in every establishment”. Paraphrased, it implies that while the appropriate Government is making appointment in every establishment, it ought to reserve a minimum of 3 (three) per cent vacancies for persons or class of persons with disability, of which 1 (one) per cent each shall be reserved for those persons with disabilities of the nature mentioned in the clauses therein, i.e., (i) blindness or low vision, (ii) hearing impairment, and (iii) locomotor disability or cerebral palsy, and that appointments shall be made on the posts identified for each such disability as in the said clauses. The proviso which permits exemption is not relevant in the present case; hence, its effect is not considered. QUESTIONS OF LAW RAISED BY THE APPELLANTS: 38. We have noticed that in the appeals, the RBI and the Go I have each raised 3 (three) questions of law which they claim are substantial questions. The proviso which permits exemption is not relevant in the present case; hence, its effect is not considered. QUESTIONS OF LAW RAISED BY THE APPELLANTS: 38. We have noticed that in the appeals, the RBI and the Go I have each raised 3 (three) questions of law which they claim are substantial questions. In essence, the questions are common but obviously differently worded and not in the same sequence. To put the matter in the proper perspective, the appellants essentially have sought for answers in the negative to the following questions: 38.1. (i) Whether the modification made by paragraph 5 of the Office Memorandum dated 3-12-2013 to paragraph 14 of the Office Memorandum dated 29-12-2005 is to be applied retrospectively with effect from 29-12-2005? 38.2. (ii) Whether the High Court was justified in holding that the RBI has to apply reservation in promotion for persons with disabilities in respect of Group ‘A’ and Group ‘B’ posts? And 38.3. (iii) Whether the High Court is justified in holding that the decision in National Confederation of Development of Disabled (supra) is applicable to the present case? 42. The view expressed in Rajeev Kumar Gupta was doubted by a coordinate Bench of this Court. Opining that preferential treatment to persons with disabilities could cover reservation in appointment but not reservation in promotion, the said Bench in its order dated 3-2-2017 was of the view that the contention needs to be considered by a larger Bench. 43. Siddaraju is the larger Bench decision which has held that the decision in Rajeev Kumar Gupta cannot be faulted when it stated that Indra Sawhney dealt with a different problem and cannot be followed. 44. Leesamma Joseph, which is the latest in the line of decisions on the same point, has reached similar conclusion albeit premised on a different reasoning. 45. There is, therefore, no dearth of authority for the proposition that the PwD Act, 1995 not only mandated reservation in appointment but also contemplated reservation in promotion. 46. Incidentally, we have also assigned our own reason as to why any perception and understanding of section 33 of the PwD Act, 1995 not contemplating reservation in promotion is erroneous and fallacious. 58. In considering question (b), concededly there was no authoritative pronouncement of this Court interpreting the PwD Act, 1995, making available reservation in promotional appointments for persons with disabilities in Group ‘A’ posts, when Mr. 58. In considering question (b), concededly there was no authoritative pronouncement of this Court interpreting the PwD Act, 1995, making available reservation in promotional appointments for persons with disabilities in Group ‘A’ posts, when Mr. Nair took the examination for promotion to the post of Assistant Manager, Grade –I in 2004. The first time it came to be so declared was when the decision in Rajeev Kumar Gupta was pronounced. Should the RBI, in the circumstances, be directed to relax the standard of assessment and grant promotion to Mr. Nair with retrospective effect? 59. The answer to this question would necessitate looking back at the operative directions contained in the order under challenge. What the High Court said has been quoted above. It is noteworthy that the High Court did not mandatorily direct grant of promotion to Mr. Nair. The High Court’s judgment, unintendedly, was confined to application of reservation policy. The High Court did not declare that Mr. Nair should also be entitled to condonation of shortfall in marks with reference to the Panel Examination 2003. Insofar as other qualifying requirements under the relevant rules are concerned, the High Court clarified that it may not be understood to have expressed any opinion on the question of Mr. Nair satisfying such requirements. Given such contours of the order, it was open to the RBI to consider Mr. Nair for promotion and pass appropriate order either granting or denying him promotion in accordance with the prevailing exposition of law. Instead of complying with the order, the RBI carried the judgment and order to this Court on 12-9-2014. Go I also followed suit. It was Mr. Nair who rushed to the High Court with a review petition within the period of limitation, whereupon his rights have been kept open noticing pendency of the petition for special leave of the RBI. Given such a situation, it seems that the RBI has on its own invited the uncomfortable position in which it finds itself now. The decisions of this Court rendered during the pendency of these appeals have to be considered and applied, notwithstanding the fact that the same were not available when the High Court decided Mr. Nair’s writ petition finally. Given such a situation, it seems that the RBI has on its own invited the uncomfortable position in which it finds itself now. The decisions of this Court rendered during the pendency of these appeals have to be considered and applied, notwithstanding the fact that the same were not available when the High Court decided Mr. Nair’s writ petition finally. RBI might not have faced this conundrum had the order of the High Court been complied with on time.” INSTRUCTIONS OF STATE GOVERNMENT PROVIDING FOR RESERVATION IN PROMOTION TO PERSONS WITH DISIBILITIES IN SERVICES:. 7. Deriving force for the mandate of the Hon’ble Supreme Court in Rajeev Kumar Gupta, Siddaraju, Leesamma Joseph and A K Nair (supra), State of Himachal Pradesh has issued Instructions on 27.08.2024 [taken on record], entitling persons with disabilities for reservation in promotion in services of the State Government, notionally under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and also under Section 34 of the Rights of Persons with Disabilities Act, 2016, in the following terms: “3. Proviso to Section 34 of the RPWD Act, 2016 provides that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. Accordingly DoPT, Government of India vide its OM No.36012/1/2020-Estt(Res– II)dated 17.05.2022 and the Department of Personnel, Himachal Pradesh vide its letter No. PER*(AP)-C-E(3)-2/2020, dated 06.07.2022 issued detailed instructions for extending the benefit of reservation in promotion to the Persons with Disabilities up to the lowest rung of Group-‘A’ in posts and services under the Central Government and State Government, respectively. The OM issued by the Government of India and instructions issued by the State Government are effective with effect from the date of their issuance i.e 17.05.2022 and 06.07.2022, respectively. 4. However, in a contempt Petition(Civil) No.873/2023 filed by Shri S.S Sundaram against Department of Revenue, Government of India, the Hon’ble Supreme Court vide its order dated 18.07.2023 has directed “though it is pointed out that the judgment of this Court of which breach is alleged, has been complied with effect from 15.07.2023, the fact remains that the judgment is of 30.06.2016 directing the respondents to implement the 1995 Act. Therefore, the respondent will have to consider of giving at least notional promotion to those who are eligible from an earlier date”. 5. Therefore, the respondent will have to consider of giving at least notional promotion to those who are eligible from an earlier date”. 5. The aforesaid directions dated 18.07.2023 of the Hon’ble Supreme Court has been considered by the Government of India in consultation with the Department of Legal Affairs and has decided to grant notional promotions to the Persons with Disabilities candidates w.e.f 30.06.2016. The matter has also been examined and considered by the State Government in consultation with the Law and Finance Department of Himachal Pradesh and it has been decided to grant notional promotions to the Persons with Disabilities candidates w.e.f 30.06.2016 as under:- (i) PwD employees in posts and services of the State Government, will be considered for grant of the benefit of reservation in promotion upto the lowest rung of Group ‘A’ on notional basis w.e.f 30.06.2016 subject to their fulfillment of the eligibility conditions as laid down in this Department’s letter No.PER (AP)- C-E(3)-2/2020, dated 06.07.2022 regarding reservation in promotion to PwDs. However, the extent of reservation in promotion may be in accordance with the relevant provisions contained in the PwD Act 1995 and RPWD Act 2016. Further, this benefit may be extended after holding Review DPC as per the extant instructions issued by the Department of Personnel on the subject. In case the PwD employees are found eligible and suitable for promotion from any date subsequent to 30.06.2016, then the benefit of reservation in promotion may be extended to them from the date they become eligible for promotion. This promotion on notional basis includes promotion on seniority quota as well as Departmental Examination/ Departmental Competitive Examination. In case of departmental Examination/ Departmental Competitive Examination, which has already been held during the period from 30.06.2016 to 05.07.2022, the eligibility of the PwD candidates may be assessed on the basis of their performance in the said examination. The concerned Administrative Authorities are given discretion to consider holding of special examination for assessing the suitability or eligibility of PwD employees for such Departmental Competitive Examination. The concerned Administrative Authorities are given discretion to consider holding of special examination for assessing the suitability or eligibility of PwD employees for such Departmental Competitive Examination. (ii) Any such promotion during the period from 30.06.2016 till the PwD employee actually assumes the charge of the post will be only on notional basis and the actual financial benefit of promotion will be effective to them with effect from the date they actually assume charge of the promoted post, meaning that no financial arrear will be admissible to them for the period from the date on which they get the benefit of notional promotion and the date on which they actually assume or have already assumed the charge of such promoted post. (iii) Extending the benefit of reservation in promotion to the PwD employees on notional basis between 30.06.2016 and actual assumption of the charge of the post may affect the inter-se-seniority of the officials in various grades. Due to this, there may be cases in which some officials may have to be placed in a select list/seniority list, subsequent to the year of their existing/present seniority list/select list. This may have a chain effect as it may result in revision in seniority lists in subsequent years in many cases which may cause administrative inconvenience. In order to avoid such situation, supernumerary posts may be created to adjust the lien of such PwD employees with effect from the date on or after 30.06.2016, when they become eligible to get the benefit of reservation in promotion, till the availability of vacancy in which the promotion is to be made or till they vacate the post on their retirement, further promotion etc. whichever is earlier. (iv) The creation of supernumerary post, as stated above, will be personal to the PwD employee who is given the benefit of reservation in promotion on notional basis and such supernumerary post will stand abolished on the date when such PwD employee is adjusted against available vacancy in the grade in which the promotion is given or when that PwD employee vacates the post on his/her retirement, further promotion etc., whichever is earlier. (v) The Administrative Departments are advised to undertake an exercise to ascertain the requirement of supernumerary posts required by them. Further, each proposal shall have the concurrence of the Liaison Officer for PwDs of the Department. (v) The Administrative Departments are advised to undertake an exercise to ascertain the requirement of supernumerary posts required by them. Further, each proposal shall have the concurrence of the Liaison Officer for PwDs of the Department. One time approval by the Finance (Expenditure) Department, Himachal Pradesh for creation/ filling-up of supernumerary posts for the eligible persons with disabilities employees till 31.12.2024 has been conveyed vide their U.O. No.56064571-Fin- F/2024, dated 09.04.2024, and, therefore, Administrative Departments are not required to obtain prior approval from Finance Department till 31.12.2024 and thereafter (w.e.f. 01.01.2025 onwards), these posts, if any, in Department(s), shall have to be created/filled up along-with other posts, through usual mechanism. (vi) It is also requested to calculate the requirement of such supernumerary posts in respect of entire Department in one go and it should not be calculated in piecemeal. The Administrative Departments are also requested to fill such posts of entire Department in one go and furnish consolidated details of posts so created/filled up to the Finance (Expenditure Control-II) Department and to the Social Justice & Empowerment Department being Administrative Department in the matters of persons with benchmark disabilities on quarterly basis. A copy of such report shall be endorsed to the Department of Personnel. A certificate to the effect that the creation/filling-up of supernumerary posts has been in respect of entire Department, may also be furnished. (vii) It is clarified that the benefit of notional promotion, as proposed above, shall not adversely affect those PwD candidates who have already been granted the benefit of reservation in promotion in personam in pursuance of the Orders/judgments of various Courts of Law. 6. It is requested that these instructions may be followed strictly and also brought to the notice of all concerned for compliance. The Liaison Officer appointed in the respective departments for implementation and compliance of Government instructions relating to reservation in services or any other designated authority, shall ensure timely compliance of instructions. Kindly acknowledge the receipt. Yours faithfully, SD/- (Sant Raj Puharta) Under Secretary (Personnel) to the Government of Himachal Pradesh Telephone No. 0177-2628479” 7(i). The Instructions dated 27.08.2024 issued by State Government were adopted by the Respondent-Corporation on 26.11.2024, in the following terms: “Implementation for reservation in promotion to persons with Benchmark Disabilities in HRTC. The Board of Directors approved the proceedings dated 01.10.2024 of the Committee regarding reservation in promotion to persons with benchmark disabilities in HRTC”. The Instructions dated 27.08.2024 issued by State Government were adopted by the Respondent-Corporation on 26.11.2024, in the following terms: “Implementation for reservation in promotion to persons with Benchmark Disabilities in HRTC. The Board of Directors approved the proceedings dated 01.10.2024 of the Committee regarding reservation in promotion to persons with benchmark disabilities in HRTC”. ANALYSIS: 8. Taking into account the entirety of facts and circumstances and the mandate of law, the case of Rajeev Kumar Gupta (supra), reinforced by the 3-Judges Bench in the case of Siddaraju reiterated in Lessamma Joseph and then in the case of A.K. Nair (supra) coupled with the fact that the State Government had issued the Instructions on 27.08.2024, which, were adopted by the Respondent- Corporation on 26.11.2024 (supra), entitling the persons with benchmark disabilities [PWDs] for reservation in promotion in State Government service/ services of the Respondent-Corporation, the claim of the petitioner for consideration for promotion as Senior Assistant w.e.f. 30.06.2016 carries weight and is accepted, for the following reasons: ENTITLEMENT OF PERSONS WITH DISABILITIES - FOR RESERVATION IN PROMOTION: 8(i). The posts in Group A, B, C & D are to be identified for persons with disabilities [under 1995 Act and 2016 Act]. The manner of identification of post for persons with disabilities has to be uniform in all Groups of posts. After identification of posts for persons with disabilities, the 3% reservation has to be extended, irrespective of rule of recruitment for filling such posts. The expression “appointment; connotes and includes broadly the trio permissible modes of appointment is by direct recruitment as well as promotion”. Plea of the Union of India that preferential treatment for persons with disabilities covers filling identified posts by appointment and not by promotion was negated by the Hon’ble Supreme Court. The Central/State Governments cannot be permitted to defeat the legislature intent, which stands approved by the declaration of law in Rajeev Kumar Gupta, Siddaraju, Leesamma Joseph andA. K. Nair (supra) in promoting reservation for persons with disabilities in appointment and promotion on the plea that appropriate Government has not issued the Instructions and any such plea would be discriminatory and violative of the mandate of the Court of justice. Even source of recruitment or mode of entry into service cannot be the basis for depriving the persons with disabilities of the benefits of reservation in appointment as well as promotion. Even source of recruitment or mode of entry into service cannot be the basis for depriving the persons with disabilities of the benefits of reservation in appointment as well as promotion. Denial of such benefits to persons with disabilities, shall be disservice to such persons. Any such attempt by the State, which scuttles the constitutional promises of “social justice” and erodes constitutional idealism and respects for human rights and deprive them of equal opportunity and full participation in services [against identified posts] cannot stand the test of judicial scrutiny. Once identification of the posts for persons with disabilities was undertaken by appropriate Government, then, such identified posts were to filled by extending 3% reservation, in Group A, B, C & D posts, irrespective of mode of appointment, which includes promotion also. Even under 2016 Act, the reservation for persons with disabilities is admissible in promotion under section 34 of 2016 Act, in terms of the Instructions issued by the appropriate Government. The State of Himachal Pradesh had issued the Instruction on 27.08.2024, which were adopted by the Respondent-Corporation on 26.11.2024 (supra) deciding to provide reservation in promotion for persons with disabilities w.e.f. 30.06.2016, [i.e. the date of judgment in case of Rajeev Kumar Gupta, entitling persons with disability for reservation in promotion] by holding Review DPC, against vacant post or by creating supernumerary posts, subject to the fulfillment of eligibility for the promotional post in terms of the Recruitment and Promotional Rules. PETITIONER’S CLAIM FOR CONSIDERATION FOR PROMOTION AS SENIOR ASSISTANT UNDER RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016: 8(ii). In instant case, the petitioner was appointed as a Clerk on contract basis but while in service; the petitioner was treated as a Clerk on regular basis from the date of his initial contractual appointment on 01.01.2005. the right and entitlement of persons with disabilities for reservation in promotion was approved by the Hon’ble Supreme Court in Rajeev Kumar Gupta, Siddaraju, Leesamma Joseph and A. K. Nair (supra) and even after enactment of Right of Persons with Disabilities, Act 2016 and Section 34 thereof, the State Government issued Instructions on 27.08.2024, which were adopted by the Respondent-Corporation on 26.11.2024 extending the benefits of reservation in promotion for persons with disabilities upto the lowest rung of Group A posts. In these circumstances, the irretrievable logical inference is that the petitioner being a person with disability, having been appointed as Clerk [Group C post] is entitled to be considered for further promotion to the post of Senior Assistant [Group C post], by extending the benefit with disabilities, under 2016 Act; subject to fulfillment of other parameters as in R & P Rules of Senior Assistant from 30.06.2016 i.e. date when the right/entitlement of PWD was approved even for promotion(s), in the judgment in the case of Rajeev Kumar Gupta (supra) or the date of his acquiring eligibility on fulfilling the requisite service in feeder grade [whichever is beneficial]. Denial of accrued fundamental right of consideration for promotion to the petitioner as Senior Assistant defeats the legislative intent of 1995 Act; and denial of consideration being contrary to the declared law; and the denial of consideration dehors the mandate of Section 34 of 2016 Act and the Statutory Instructions issued by the appropriate Government on 27.08.2024, which was adopted by Respondent- Corporation entitling the petitioner, being a person with disability for reservation in promotion to post of Senior Assistant in the Respondent-Corporation, on fulfilling the requisite service in feeder grade w.e.f. 30.06.2016 on such due date thereafter, by holding Review DPC, against vacant post at relevant time or by creating supernumerary post, if required, for giving effect to right/entitlement so as to avoid the change of discrimination and to ensure consideration for promotion as per reservation in promotion to persons with disabilities for securing equal opportunity and fair participation in services at par with others. Negation of these compliances would be violative of Articles 14 and 16 of the Constitution of India and legislative intent and the binding effect of declaration of law and the statutory instructions, as discussed above. SUBSEQUENT CONSIDERATION NOT A BAR TO DENY CONSIDERATION FROM DUE DATE: 8(iii). Plea of the Respondent-Corporation that the petitioner was considered for promotion as Senior Assistant by DPC in March, 2017 but due to disciplinary proceedings, his consideration was kept in abeyance and nothing is due to the petitioner. SUBSEQUENT CONSIDERATION NOT A BAR TO DENY CONSIDERATION FROM DUE DATE: 8(iii). Plea of the Respondent-Corporation that the petitioner was considered for promotion as Senior Assistant by DPC in March, 2017 but due to disciplinary proceedings, his consideration was kept in abeyance and nothing is due to the petitioner. The above plea cannot come to the aid of Respondent-Corporation, for the reasons, firstly, the consideration of case of petitioner in March, 2017 for promotion as Senior Assistant was in the normal course and was without granting the benefits of reservation under 1995 Act and 2016 Act and the law; and secondly, consideration in March, 2017 cannot be a ground to deny the consideration due w.e.f. 30.06.2016 under 2016 Act and the Instructions dated 27.08.2024 and 26.11.2024 approving the entitlement and consideration by applying reservation w.e.f. 30.06.2016; and thirdly, in case, nothing adverse, in terms of departmental proceedings or criminal proceedings were pending against the petitioner as on 30.06.2016 [i.e. the due date from which reservation in promotion to persons with disability was approved and was to be applied] therefore, in these circumstances, the Respondent- Corporation is bound to relook into the issue, by considering the case of the petitioner for promotion as Senior Assistant w.e.f. 30.06.2016 and if found fit, to extend the attendant benefits, as detailed herein. BENEFITS ADMISSIBLE TO PETITIONER UPON CONSIDERATION: 8(iv). In the backdrop of the Statutory provisions and the declaration of law and the Instructions issued by appropriate Government on 27.08.2024, which was adopted by Respondent-Corporation on 26.11.2024, once the persons with disabilities were held entitled for reservation in promotion upto lowest rung of Class-A posts, by giving effect to such rights and entitlement, by considering the petitioner for promotion a Senior Assistant w.e.f. 30.06.2016, by holding Review DPC, and based on result of consideration to promote the petitioner against vacant post or by creating supernumerary post, if needed, and to promote the petitioner as Senior Assistant w.e.f. 30.06.2016 on notional basis. After granting promotion as Senior Assistant w.e.f. 30.06.2016, further promotion due as Superintendent Grade II, if due, shall also be granted/recast accordingly. Actual monetary benefits shall accrue from date of joining only. 9. No other points pressed/argued. DIRECTIONS: 10. After granting promotion as Senior Assistant w.e.f. 30.06.2016, further promotion due as Superintendent Grade II, if due, shall also be granted/recast accordingly. Actual monetary benefits shall accrue from date of joining only. 9. No other points pressed/argued. DIRECTIONS: 10. In view of above discussion and for the reasons recorded hereinabove, the instant petition is allowed, in the following terms:- (i) Petitioner is held entitled for reservation in promotion, being a person with disability as per the mandate of law, in Rajeev Kumar Gupta, Siddaraju, Leesamma Joseph and A. K. Nair and the Instructions notified by State Government on 27.08.2024, which stands adopted by Respondent-Corporation on 26.11.2024; (ii) Respondent-Corporation shall consider the petitioner for promotion to post of Senior Assistant w.e.f. 30.06.2016, being a person with disabilities [PwDs] in Respondent- Corporation by holding Review DPC, as per mandate of law in Rajeev Kumar Gupta [Supra], and the Instructions dated 7.08.2024 which stand adopted by Corporation on 26.11.2024; (iii) Upon consideration and finding the petitioner to be eligible as per Service Rules, the Respondent-Corporation shall promote the petitioner as Senior Assistant w.e.f. 30.06.2016, on notional basis; (iv) Respondent-Corporation shall consider petitioner for further promotion, if due; (v) Actual Monetary benefits shall accrue from the date of actual joining as Senior Assistant or on further promotional higher posts; (vi) Respondent-Corporation shall create supernumerary post, if required, for giving effect to consideration/promotion as Senior Assistant and further promotion, if due, as per Instruction dated 27.08.2024; (vii) Directions (i) to (vi) be complied with within two months from the date of receipt of certified/downloaded copy of judgment; and (viii) (viii) Parties to bear respective cost. In aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall accordingly stand disposed of.