Naresh Chandra Yadav vs State of U.P.and Others

Devi Prasad Singh, J.—This is a writ petition under Article 226 of the Constitution of India by which the petitioner is claiming a writ in the nature of mandamus commanding the opposite parties to exempt the petitioner from I.T./P.T. Test and to promote him on the post of Head Constable (Civil Police).

The petitioner claims the benefit in the promotional avenues in accordance with the provisions of the Central Act namely, the Persons with Disability (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (in short the ''Act'').

The brief facts giving rise to the writ petition are that the petitioner was appointed as Constable on 1.1.1987. According to petitioner''s counsel, the petitioner discharged duties with bright service career. However, on 3.3.1998, the petitioner while on duty in checking vehicles on road side, he met with an accident and suffered the amputation of right leg. Further submission is that the respondents had started to fill up the vacancies of Head Constable of Civil Police under the provisions of U.P. Police Regulations. On 19.11.2001, eligible candidates were called to appear in the I.T./P.T. Test. Since the petitioner is qualified for the post of Head Constable, he also tried to appear in the I.T./P.T. Test but was not permited to do so on account of amputated leg. The representation submited by the petitioner was not responded by the respondents. Hence the petitioner approached this Court under writ jurisdiction. In the meantime, several persons including junior to the petitioner, have been considered and promoted to the post of Head Constable.

Learned counsel for the petitioner submitted that the petitioner is entitled for promotion to the post of Head Constable in view of the provisions contained in subsection (2) of Section 47 of the Act.

On the other hand, learned standing counsel submitted that the petitioner being a person with amputated leg, was not entitled for promotion to the post of Head Constable. However, petitioner''s counsel also submitted that there are large number of unfilled vacancies of the post of Head Constable in ministerial cadre where the petitioner can be promoted to discharge duty. Further submission is that till date the State Government has not issued any notification in pursuance of powers conferred under subsection (2) of Section 47 of the Act. Subsection (2) of Section 47 of the Act provides that no person shall be denied promotional avenues merely on the ground of disability. However, under the proviso, the Government has got right to grant exemption keeping in view the nature of duties discharged by the incumbent. For convenience, subsection (2) of Section 47 of the Act is reproduced as under;

�(2). No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of the work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section.�

Similar controversy had cropped up before a Division Bench of Rajasthan High Court at Jaipur in the case reported in AIR 2001 Rajasthan 358 (Jaipur Ben ch): The State of Rajasthan and another v. Dr. Vijay Kumar Agrawal and another, where, the Division Bench held that provision under the Act has got mandatory force and the Government is bound to enforce the same.

Hon''ble Supreme Court in the case reported in (2004) 6 SCC 708: Union of India v. Sanjay Kumar Jain, held that Section 47 of the Act does not give unbridled power to exclude any establishment from its purview. Exclusion can be effected only in the circumstances specified in the said proviso. Relevant portion of the judgment (supra) from para 9 and 10 are reproduced as under:

�9. Subsection (1) of Section 47 in clear terms provides that there cannot be any discrimination in government employments and no establishment shall dispense with or reduce in rank an employee whatsoever during his service. Subsection (2) is relevant for our purpose. It, in crystal clear terms, provides that no promotion shall be denied to a person merely on the ground of his disability. Obviously, in the instant case, the respondent was not considered for promotion on the ground of as he was considered to be visually handicapped. Much stress was laid by Mr. Krishmani on the proviso to subsection (2) of Section 47. The same is not in any way helpful to further the case of the appellant. In fact it only permits the appropriate Government to specify by notification any establishment which may be exempted from the provisions of Section 47. It does not give unbridled power to exclude any establishment from the purview of Section 47. The exclusion can be only done under certain specified circumstances. They are:

(i) issuance of a notification.

(ii) prescription of requisite conditions in the notification.

The notification can be issued when the appropriate Government, having regard to the type of work carried on in any establishment thinks it appropriate to exempt such establishment from the provisions of Section 47. The proviso to subsection (2) thereof does not operate in the absence of the notification.�

In view of the settled proposition of law, it was incumbent on the opposite parties to consider the petitioner''s case for promotion from the post of constable to the post of Head Constable. Admittedly, the State Government has not issued notification in pursuance to the power conferred under subsection (2) of Section 47 of the Act. In absence of any notification, it was incumbent on the opposite parties to consider the petitioner''s case also for promotion to the post of Head Constable in compliance of the statutory provisions. Right to be considered for promotion is fundamental right guaranteed under the Constitution. Moreover, right to livelihood is also a fundamental right. During the course of employment right to consideration for promotion cannot be taken away in pursuance of statutory provisions by the authorities arbitrarily. To deprive a person from statutory right is the antithesis of Rule of Law. However, so far as the submission of the learned standing counsel that on account of amputation in leg, the petitioner will not be able to discharge duty, seems to be a fact which should he considered for the State authorities. Since the State Government has not issued any notification in this regard, under powers conferred under subsection (2) of Section 47 of the Act, it shall be incumbent on the Government to considered the petitioner''s case in accordance with Rules for promotion to higher posts.

The writ petition is accordingly allowed. A writ in the nature of mandamus is issued commanding the opposite parties to consider the petitioner''s case for promotion to the post of Head Constable in accordance with law expeditiously from the date the juniors to the petitioner have been given promotion. Let necessary exercise be done within six months from the date of receipt of a certified copy of this order.

(Petition allowed)