Full Text
HIGH COURT OF DELHI
W.P.(C) 8524/2024 and CM APPL. 34992/2024
ANUBHAV JAIN .....Petitioner
Through: Mr. S.K. Rungta, Sr. Advocate
Through: Ms. Rashmi Chopra, Standing Counsel
Mr. Anuj Aggarwal, ASC, GNCTD
Mr. Anurag Ahluwalia, CGSC
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
23.10.2024 C.HARI SHANKAR, J
1. The petitioner is presently posted as Additional Chief Judicial Magistrate[1], Karkardooma Court. He suffers from atrophy with shortening of right lower limb to the extent of 50% which renders him a “person with bench mark disability” as defined in clause (r)2 of ACJM (r) “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying Section 2 of the Rights of Persons with Disabilities Act 2016[3].
2. The petitioner participated in the Delhi Judicial Services Examinations 2011[4] as a candidate with orthopaedic disability. The notice dated 13 February 2013, whereby the results of the examination were announced notified the name of the petitioner at Serial No. 65 in the category of PH (Ortho). Consequent thereupon, vide notification dated 22 May 2013, the petitioner was notified as one of the successful candidates for promotion to the DJS, following which the petitioner was appointed to the DJS on 28 May 2013.
3. Rule 7(1) of the Delhi Higher Judicial Services Rules 1970[5] deals with recruitment to posts in the cadre of District Judge. It provides for 75% recruitment by promotion and 25% by direct recruitment and reads thus:
4. Rule 22 of the DHJS Rules, as it existed at the time when the present writ petition was filed, read thus:
5. It is an admitted position that the petitioner became eligible for consideration for promotion to the DHJS, in terms of Rule 7(1)(a), on 29 May 2023.
6. Contending that he was entitled to promotion to the DHJS w.e.f. the date when he became eligible for such promotion, i.e. w.e.f. 30 May 2023 under Rule 7 (1)(a) of the DHJS Rules, with the benefit of reservation as a person suffering from benchmark locomotor disability, the petitioner has instituted the present writ petition before this Court. The petitioner also impugned Rule 22 of the DHJS Rules, to the extent that it restricted the availability of reservation for persons with benchmark disability to vacancies in the DHJS to be filled up by direct recruitment under Rule 7(1)(c) of the DHJS Rules. The petitioner’s case, in the writ petition, was that in the light of a catena of pronouncements by the Supreme Court, the benefit of reservation to persons with disabilities was required to be extended to promotion as well as, and, therefore, that Rule 22 of the DHJS rules, to the extent it restricts the benefit of PWD reservation only to promotion to the DHJS, was unconstitutional and violative of the RPWD Act.
7. During the pendency of this writ petition, the DHJS Rules were amended vide notification dated 3 June 2024. The amended Rule 22 reads thus: “22(1) Recruitment made to the service by direct recruitment shall be subject to provisions regarding reservation and other concessions (except age relaxation) for the Scheduled Castes, Schedules Tribes and Persons with Disability as provided by Rights of Persons with Disability Act, 2016 and the orders, notifications etc. issued in this respect by the Central Government from time to time. (2) Persons with Disability shall be considered for appointment through direct recruitment only if they are found capable of efficiently discharging duties as Judicial Officer as per the satisfaction of the Medical Board that may be constituted before or after their names are recommended for appointment. (3) Recruitment to service by way of promotion [in terms of Rule 7(1)(a) and Rule 7(1)(b)] shall be subject to provisions regarding reservation and other concessions (except age relaxation) for Persons with Disability as provided by Rights of Persons with Disability Act, 2016 and the orders, notifications etc. issued in this respect by the Central Government from time to time.”
8. Assuming the petitioner fell within the zone of consideration for promotion to the DHJS, he was, therefore, admittedly entitled to be considered for such promotion in the first recruitment cycle that took place after 29 May 2023, when he became eligible. As Rule 22 of the DHJS Rules stood at that time, the petitioner would not have been entitled to the benefit of PwBD[6] reservation, as Rule 22 made PwBD reservation, in the matter of recruitment to the DHJS, applicable only to direct recruitment. This is, however, admittedly clearly contrary to the law declared by the Supreme Court in a plethora of decisions including Rajeev Kumar Gupta v UOI[7] and Siddaraju v State of Karnataka[8] which mandate that the benefit of PwBD reservation has to be extended to promotions as well. In accordance with the law thus declared by the Supreme Court, Rule 22 was amended, vide Notification dated 3 June 2024, to include PwBD reservation in the matter of promotion to the DHJS. It is admitted, in the counteraffidavit filed by the respondents in the present writ petition, that this amendment took place pursuant to a meeting of the scrutiny committee of this Court which took place on 11 February 2022, in order to bring the DHJS Rules in line with the declaration of law in Rajeev Kumar Gupta and Siddaraju. Pursuant to this decision, three vacancies, in the promotion quota in the DHJS in the year 2022 were reserved for PwBD. As one of the said vacancies, which pertained to persons with locomotor disability – to which category the petitioner belongs – remained unfilled, it was carried forward to the 2023 promotion cycle. Persons with Benchmark Disabilities
9. The policy regarding reservation in the promotion to persons with benchmark disability is contained in Office Memorandum dated 17 May 2022 issued by the Department of Personnel & Training[9], Ministry of Personnel, Public Grievances and Pensions. The dispute revolves around Clause 13 of the said OM, specifically on the issue of whether the applicable sub-clause of Clause 13 would be Clause 13.[1] or Clause 13.2. Clause 13, with its sub-clauses 13.[1] and 13.[2] may be reproduced thus: “13.
ZONE OF CONSIDERATION, INTERSE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF PROMOTION 13.[1] While filling up the reserved vacancies by promotion by selection, those PwBD candidates who are within the normal zone of consideration, shall be considered for promotion. However, if adequate number of PwBD candidates of the respective category are not available within the normal zone, the zone of consideration may be extended to five times the number of vacancies and the PwBD candidate falling within the extended zone may be considered for promotion. In the event of non-availability of candidates even in the extended zone, the vacancy shall not be filled and be carried forward to the subsequent year. In the subsequent year, if a PwBD of the required category is not available, the reservation can be exchanged with the other categories, so that post can be filled by a person with other category of disability, if possible. If a PwBD candidate of other category is within the zone of consideration and within the number of vacancies available, he cannot be denied promotion on the grounds of disability. If it is not possible to fill up the post by reservation even in the 2nd year, the post may be filled by a person other than a PwBD, and the reservation shall be carried forward for two subsequent recruitment years, whereafter it shall lapse. 13.[2] While filling up vacancies by promotion by non-selection, the eligible candidates with benchmark disabilities within the normal zone of consideration shall be considered for promotion against the reserved vacancies. In case no eligible candidate of the respective category of disability is available in the normal zone of consideration, additional PwBD candidates of respective category to the extent required shall be considered by going down the seniority list, provided they are eligible, and that the post is identified for them. In the event of non-availability of PwBD candidates for promotion even in the extended zone, the vacancy shall not be filled and shall be carried forward. In the subsequent year, if PwBD of respective category is not available, the same can be exchanged with other categories of disabilities identified for it. If it is not possible to fill up the vacancy by reservation even by exchange, the reservation shall be carried forward for two subsequent recruitment years, where-after it shall lapse.
10. The DOPT, by a further OM dated 28 December 2023, clarified that PwBD candidates would be entitled to be notionally promoted from the date when they became eligible for such promotion. Para 5 of the said OM read thus:
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
30.6.2016 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 30.6.2016 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 30.6.2016, 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) Ministries/Departments are advised to undertake an exercise to ascertain the requirement of supernumerary posts required by them and submit the proposal for creation of posts to the Department of Expenditure through DoPT. Such proposal shall contain the proposal in respect of the entire Department/Ministry and the proposal in piecemeal shall not be accepted. A certificate to the effect that the proposal is complete in all respects and the requirement of creation of supernumerary posts has been projected in respect of the entire Department may also be furnished along with the proposal. Further, each proposal shall have the concurrence of the Liaison Officer for PwDs of the Department/Ministry concerned and shall be forwarded with the approval of the Secretary of the Administrative Department/Ministry.
(vi) 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/judgements of various Courts of Law.”
11. In view of the aforesaid OMs, the petitioner would be entitled to be considered for promotion, with the benefit of PwBD reservation, in the 2023 recruitment cycle, which took place after he became eligible for promotion in terms of Rule 7(1)(a) of the DHJS Rules on 29 May
2023. Indeed this position is conceded by the respondents, both in their written submissions as well as during oral arguments advanced by Ms Chopra. The precise contention of the respondents, which Mr Rungta disputes, is that the petitioner could not have been promoted in the 2023 cycle because, even after extending the zone of consideration in terms of Clause 13 of the DOPT OM of 17 May 2022, he still did not fall within the zone.
12. It may be noted that prior to the petitioner’s promotion to the DHJS in 2024, the last recruitment cycle of 2023 encompassed 17 regular posts in the promotion quota to the DHJS. The normal zone of consideration of candidates to be considered for promotion against 17 regular posts is admittedly 28. The petitioner’s name did not figure in the list upto serial no. 28. The respondents’ contention is that Clause 13 of the DOPT OM10 dated 17 May 2022 could not be so implemented as to extend the zone of consideration to encompass the petitioner.
13. Subsequently, the petitioner was actually promoted to the DHJS w.e.f. 20 September 2024, vide notification dated 20 September 2024.
14. The only dispute which remains for consideration is the date from which the petitioner is entitled to be promoted to the DHJS. The petitioner’s contention is that he is entitled to be so promoted with effect from 29 May 2023, on which date he became eligible for promotion under Rule 7(1)(a) of the DHJS Rules. As against this, the respondent’s contention is that the petitioner was rightly promoted to the DHJS only with effect from the date of assumption of his charge in the DHJS consequent to the notification dated 20 September 2024.
15. More precisely, the issue that arises is whether the petitioner would fall within the extended zone of consideration for promotion to the DHJS, by operation of Clause 13.[1] or Clause 13.[2] of the DOPT OM dated 17 May 2022.
16. We have heard Mr. S. K. Rungta, learned Senior Counsel for the petitioner and Ms. Rashmi Chopra, learned Standing Counsel for the respondent at length. Learned Counsel have also filed written submissions.
17. Mr. Rungta pegs his case on two propositions, which are dealt with seriatim as under. The first fails; the second succeeds. “OM” hereinafter.
18. 1st submission – Clause 13.[2] would apply; not Clause 13.[1] 18.[1] The first submission of Mr. Rungta is that the applicable subclause of Clause 13 is Clause 13.[2] and not Clause 13.1. 18.[2] On a plain reading, Clause 13.[2] applies to promotion by “nonselection”, whereas Clause 13.[1] applies to promotion by “selection”. Mr. Rungta submits that Clause 13.[2] applies to promotion under Rule 7(1)(a) whereas Clause 13.[1] applies to promotion under Rule 7(1)(b) of the DHJS Rules. Mr. Rungta would, therefore, seek to contend that Rule 7(1)(a) deals with promotion on non-selection basis whereas Rule 7(1)(b) deals with promotion on selection basis. 18.[3] Proceeding from this premise, Mr. Rungta contends that, applying Clause 13.[2] to the case of the petitioner, as there was no eligible candidate with benchmark disabilities available within the normal zone of consideration of 28, the respondent ought to have proceeded down the seniority list, in which case the petitioner would have been eligible for promotion in 2023 itself. 18.[4] We need not examine the position which would have arisen if Clause 13.[2] were to apply, as we are in agreement with Ms. Rashmi Chopra, learned Standing Counsel for the respondents, that, in fact Clause 13.[2] is inapplicable. Ms. Chopra submits that both clauses (a) and (b) of Rule 7(1) of the DHJS Rules cater to selection by promotion and neither clause deals with promotion by non-selection. As such, whether the promotion is under clause (a) or clause (b) of Rule 7(1) of the DHJS Rules, Ms. Chopra’s contention is that the applicable sub-clause of Clause 13 of the OM dated 17 May 2022 which would apply, would be Clause 13.[1] and not Clause 13.2. 18.[5] Ms. Chopra is right in her submission. The Supreme Court has in several decisions, clearly distinguished between selection and nonselection posts. We need not venture into that labyrinth; suffice it to note that, in para 86 of its recent decision in Ravikumar Dhansukhlal Mehta v High Court of Gujarat11, the Supreme Court has placed the issue beyond pale of controversy, thus:
Thus, promotion on merit-cum-seniority basis is promotion by selection; not non-selection. 2024 SCC OnLine SC 972 Dr Kavita Kamboj v High Court of Punjab & Haryana, 2024 SCC OnLine SC 254
18.[6] Promotion by non-selection pertains to promotion by seniority or by seniority-cum-merit. Promotion by merit-cum-seniority or promotion by merit alone are promotions by selection. The principle of “selection” in the context of promotion, therefore, encompasses promotion by merit and promotion by merit-cum-seniority. The distinction between promotion on seniority-cum-merit or promotion on promotion by merit-cum-seniority is also well known. In the case of promotion on seniority-cum-merit basis, inter se merit is to be seen only amongst persons, who are equal in seniority, with seniority being accorded predominance. In the case of merit-cum-seniority, inter se seniority would apply only between candidates, who were equal in merit, with merit being accorded predominance. 18.[7] Thus, both clauses (a) and (b) of Rule 7(1) of the DHJS Rules pertain to promotion by selection. Neither of the said clauses deals with promotion on non-selection basis. Both clauses would, therefore, attract Clause 13.[1] of the OM dated 17 May 2022, and Clause 13.[2] would not apply in either case. 18.[8] Resultantly, the reliance, by Mr. Rungta, on Clause 13.[2] of the OM dated 17 May 2022 must be held to be misconceived.
19. 2nd submission – Petitioner falls within the extended zone of consideration even under Clause 13.[1] of the OM dated 17 May 2022 19.[1] The second nail – which is much firmer – on which Mr. Rungta pegs his case, is with respect to Clause 13.1. He submits that, even if Clause 13.[1] were to apply, if no PWBD candidate is available within the normal zone of consideration, the zone of consideration is required to be extended to five times the number of vacancies, and all PwBDs within the extended zone have to be considered for promotion. Mr. Rungta submits that the number of vacancies being 17, the extended zone of considerations have to encompass 85 eligible DJS Officers, within which the petitioner would admittedly fall. 19.[2] Ms. Chopra submits, per contra, that the reference to “number of vacancies”, in Clause 13.1, to the extent it requires the zone of consideration to be extended to five times the number of vacancies, has to refer to the number of PwBD vacancies, and not to the total number of vacancies. In other words, her contention is that, as there were only three PwBD vacancies, the extended zone of consideration would only reach the candidate at Serial No. 15. Nonetheless, she submits that the Selection Committee considered candidates upto Serial No. 44, in which the petitioner did not fall. Ms Chopra contests Mr. Rungta’s interpretation of Clause 13.[1] and submits that the requirement of extending the zone of consideration to five times the number of vacancies can never mean that the zone of consideration has to extend to five times the total number of vacancies. It can only refer to five times the number of vacancies reserved for PWBD candidates, especially as Clause 13 – and, indeed, the entire OM – caters to PwBD reservation. 19.[3] Mr. Rungta rejoins to submit that there is no justification for according such a restrictive interpretation to Clause 13.1. He submits that, when dealing with persons with disabilities, the Court has to adopt an expansive, and not myopic, approach. The expression used in Clause 13.1, he submits, is “five times the number of vacancies” and not “five times the number of reserved vacancies” or “five times the number of vacancies reserved for PwBD candidates”. Accepting the submission of Ms. Chopra would, therefore, in his submission, amount to rewriting Clause 13.1. 19.[4] We find ourselves in agreement with Mr. Rungta on this issue. 19.[5] As Mr. Rungta correctly points out, the requirement of extension of the zone of consideration, as envisaged in Clause 13.1, contemplates extension to “five times the number of vacancies”. There is no reason to read this requirement in a restrictive manner, as covering only to five times the number of vacancies reserved for PwBD candidates. 19.[6] In fact, Clause 13.1, holistically read, would defeat the interpretation that Ms. Chopra seeks to place on it. The clause commences: “While filling the reserved vacancies by selection, those PWBD candidates, who are within the normal zone of consideration, shall be considered for promotion.” It thereafter goes on to state that, if an adequate number of PWBD candidates are not available within the normal zone, the zone of consideration has to be extended five times the number of vacancies. It is obvious that the words “zone of consideration”, “normal zone” and “normal zone of consideration” all refer to the same zone. The opening stipulation in Clause 13.[1] requires those PwBD candidates, who are within the normal zone of consideration to be considered for promotion. This “normal zone of consideration” is 28. It is this normal zone of consideration which has to be extended to cover five times the number of vacancies, in the event of no PwBD candidate becoming available within the normal zone. The extension envisaged further ahead in Clause 13.[1] is obviously to this zone of consideration of 28 candidates. The zone of consideration is required to be extended to cover five times the number of vacancies. The stipulation that the zone of consideration may be extended to five times the number of vacancies can, therefore, never apply to five times the number of PwBD vacancies. Else, it would otherwise result in an incongruous and absurd situation in which the ordinary zone of consideration, which would reach up to the candidate at S. No. 28, would have to be extended to cover the candidate at S. No. 15. 19.[7] The respondents are evidently aware of this incongruity. We say so because of Ms Chopra’s submission that officers upto S. No. 44 were considered. What the respondents appear to have done is, therefore, to extend the normal zone which is upto S. No. 28 by adding, to it 15 candidates, thereby reaching upto S. No. 43. This, clearly, is totally foreign to Clause 13.1, which does not contemplate any such “addition”. 19.[8] Clearly, therefore, the extension upto five times the number of vacancies refers to five times the number of actual vacancies against which recruitment is being made, and not merely five times the number of vacancies reserved for PwBD candidates. 19.[9] Moreover, it is part of the pervading philosophy of the movement for integration of differently-abled persons into the mainstream, that statutory and quasi statutory instruments have to be accorded an expansive interpretation so as to reach out to as many as of such persons as possible. We, therefore, are not inclined to accord, to Clause 13.1, the restrictive interpretation which Ms. Chopra would seek to place on it, and hold that, as there were no PwBD candidates available to fill up the number of PwBD vacancies within the normal zone of consideration of 28, the zone of consideration was required to be extended to cover five times the number of vacancies.
19.10 There is no dispute about the fact that the petitioner would fall within this figure of 85 vacancies. Conclusion
20. We, therefore, are of the opinion that the petitioner was entitled to promotion from the date when he became eligible for the post i.e. 29 May 2023. He would not be entitled to back-wages but would be entitled to counting of service and seniority from that date.
21. The writ petition stands allowed to the aforesaid extent, with no orders as to costs.
C. HARI SHANKAR, J.