Allowed

Md. Rakibul Faruque v. the State of Assam and 3 Ors.

Gauhati HC10 Aug 2021WP(C)/2998/2021

Case brief

AI extract

What is this about?

The Gauhati High Court quashed an order denying promotion on merit to a disabled Agricultural Development Officer, reiterating that reservation extends to Grade-I posts as per the Rights of Persons with Disabilities Act. The Court directed the respondent departments to promote the petitioner with regular reservation within four weeks, creating a supernumerary post if necessary, and granted notiona

What did the court decide?

The impugned order was quashed. Mandamus was issued to promote the petitioner via reservation for PWD to the post of Sub-Divisional Agricultural Officer within 4 weeks, or create a personal supernumer

Md. Rakibul Faruque Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010088702021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2998/2021

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MD. RAKIBUL FARUQUE S/O. A. M FAROOQI, R/O. B.B ROAD, DACCAPATTY, P.S. NAGAON, DIST. NAGAON, PIN-782001, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 3 ORS. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PERSONNEL (B) DEPTT.,

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2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM AGRICULTURE DEPTT. DISPUR GUWAHATI-06.

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3:THE PRINCIPAL SECRETARY

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AGRICULTURE DEPTT. DISPUR GUWAHATI-06.

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4:THE DIRECTOR

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AGRICULTURE DEPTT. ASSAM KHANAPARA GUWAHATI-781022

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Advocate for the Petitioner : MR. T J MAHANTA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 10.08.2021

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Heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. H. Bezbarua, learned counsel for the petitioner, Mr. D. Nath, learned Senior Govt. advocate appearing for the State respondent no. 1 Mr. S.M.T. Chistie, learned standing counsel for the Agriculture Department, representing the respondent nos. 2 to 4.

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By this writ petition filed under Article 226 of the Constitution of India, the petitioner who is presently posted as Agricultural Development Officer and appointed under physically challenged quota, has assailed the impugned speaking order no. AGA.190/2019/71 dated 29.04.2021, passed by the Secretary to the Government of Assam, Agriculture Department thereby providing that the case of the promotion of the petitioner to the next higher rank shall be considered on merit basis if he is otherwise eligible for promotion as per the Assam Agricultural Services Rules, 1980.

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This is the second round of writ petition by the petitioner claiming his entitlement to promotion under physically handicapped quota. In the previous writ petition, which was registered and numbered as W.P.(C) 7186/2019, the petitioner had assailed paragraph 2.1 of the O.M. under Memo No. ABP.180/ 2017/105 dated 07.01.2019, issued by the respondent no.1, i.e. the Personnel (B) Department, Govt. of Assam. The said challenge was made,

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inter alia, on the ground that the post of Sub-Divisional Agricultural Officer or equivalent post is an identified post for being filled up on promotion by persons in the category of “persons with disability” (PWD for short). However, under clause 2.1 of the said memorandum, it was provided that the benefit of reservation in promotion of persons with benchmark disabilities will be limited to Grade-III and Grade-IV posts only. The relevant para of paragraph 2.1 of the said memorandum dated 07.01.2019 is quoted below:

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“2.1 In case of direct recruitment, four percent of the total number of vacancies to be filed up by direct recruitment, in the cadre strength in each group of posts i.e. Grade-I, Grade-II, Grade-III and Grade-IV shall be reserved for persons with benchmark disabilities.

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Benefit of reservation in promotion for persons with benchmark disabilities will be limited to the Grade-III and Grade-IV posts only, where four percent of posts shall be reserved for persons with benchmark disabilities of which one percent each shall be reserved for persons suffering from (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 and (d) autism, intellectual disability, specific learning disability and mental illness, multiple disabilities from amongst persons under clauses (a) to (d) including deafblindness.”

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While disposing of the said writ petition, this Court had recorded in paragraph- 6 thereof as follows:-

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“6. However, the learned Govt. advocate appearing for respondent nos. 1 and 7 submits that he has recently received written instruction vide forwarding letter dated 12.02.2021 wherein the stand of the Personnel (B) Department is to the effect that although the benefit of reservation and promotion of persons with benchmark disabilities is limited to Grade-III and Grade-IV posts only as per the provisions of O.M. dated 07.01.2019, there is no bar for considering a person with benchmark disabilities on merit basis for promotion to the Grade-I and Grade-II posts also if such person is otherwise eligible as per the relevant Service Rules. However, as per the said instruction, it is clarified that the matter of benefit of reservation in promotion for persons with benchmark disabilities to the identified

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post only of different cadres in all grades and all posts (where the direct recruitment does not exists 75%) is under process. The photocopy of such instructions as produced by the learned Govt. advocate is kept as a part of record.”

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This Court had referred to the observations made by the Supreme Court of India paragraphs 15 and 24 of the case of Rajeev Kumar Gupta & Ors. Vs. Union of India & Ors., (2016) 13 SCC 153, and passed the following order:-

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“8. In light of the proviso appended to Sub-Section (1) of Section 34 of the 2016 Act, it is seen that the mandate of law is to provide reservation in promotion by providing that it shall be in accordance with such instruction which are issued by the appropriate government from time to time. Therefore, once the post of Sub-Divisional Agriculture Officer or equivalent post is identified to be filled up by promotional amongst PWD, the impugned paragraph 2.1 of the O.M. dated 07.01.2019 limiting the benefit of reservation in promotion to only PWD or GradeIII and Grade-IV would be ultra vires in provisions of Section 34 of the 2016 Act. Hence, in view of the instruction vide forwarding letter dated 12.02.2021, whereby the Personnel (B) Department has instructed to the learned Govt. advocate that there is no bar for considering a person with benchmark disabilities on merit basis for promotion to the Grade-I and Grade-II posts petitioner is otherwise eligible as per the relevant Service Rules appears to be the correct interpretation of Section 34 of the 2016 Act.

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Accordingly, the Court is of the opinion that if the benefit of reservation in promotion for persons with benchmark disabilities is extended to Grade-I and Grade-II employees along with Grade-III and Grade-IV in respect of identified posts by reading it into the paragraph 2.1 of the O.M. under Memo No. ABP.180/2017/105 dated 07.01.2019, the same would be in consonance with the object of Section 34 of the 2016 Act. Therefore, it is provided that the Subparagraph appended to paragraph 2.1 of the O.M. No. ABP.180/2017/105 dated 07.01.2019 would be deemed to allow reservation in promotion for Grade-I and Grade-II posts also, notwithstanding that the challenge is limited in respect of the petitioner for being promoted to Grade-I post.

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Accordingly, in light of the discussion above, this writ petition stands allowed to the extent as indicated above.

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Resultantly, the respondent no.2, the Commissioner and Secretary to

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the Govt. of Assam, Agriculture Department shall now dispose of the representation dated 16.03.2019 (Annexure-6) by passing appropriate order in light of observation made in this order. The said exercise shall be done within a period of 2(two) months from the date of receipt of the certified copy of the order.

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Needless to say that if the petitioner is found to be entitled to such benefit, steps for granting the consequential benefits to the petitioner shall be initiated forthwith.

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The petitioner had submitted a certified copy of the order dated 25.02.2021 passed by this Court in W.P.(C) 7186/2019 on respondent no.2. Thereafter, the Secretary to the Govt. of Assam by a speaking order no. AGA.190/2019/71 dated 29.04.2021, disposed of the petitioner’s representation dated 16.03.2019, with the following decision:-

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“Therefore, after careful examination of all relevant facts/ circumstances on the matter of reservation of promotion under Physically Handicapped quota and in compliance with Hon’ble High Court’s Order dated 26/2/2021 in WP(C) 7186/2019, directing the department to dispose of the representation of Sri Rakibul Faruque, ADO dated 16/3/2019 by passing appropriate orders in the light of the observations made in the order dated 25/02/21, this Department is of the opinion that Sri Rakibul Faruqe, ADO will be considered for promotion to the next higher rank on merit basis, if he is otherwise eligible for promotion as per Assam Agricultural Service Rules, 1980.”

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The Secretary to the Govt. of Assam, Agriculture Department has mentioned in paragraph (d) of his speaking order to the effect that the State Govt. had issued an OM No. ABP.180/2017/105 dated 06.12.2018 in terms of the provisions of the Rights of Persons with Disabilities Act, 2016 and that the O.M. limits the benefit of reservation in promotion for Persons with Disabilities to Grade-III and Grade-IV posts only. It is ex facie apparent that while disposing of the representation of the petitioner, the Secretary to the Govt. of Assam, Agriculture Department had utterly failed to apply his mind to carefully read and

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understand the contents of the herein before quoted paragraphs 8 to 10 of the order dated 25.02.2021 passed in W.P.(C) 7186/2019. The said order makes it abundantly clear that the Court was adjudicating the case of the petitioner, who was claiming promotion from the post of Agricultural Development Officer to the next higher post of Sub-Divisional Agricultural Officer or equivalent post, which are categorized as Grade-I post. Moreover, paragraph 8 of the said order of the Court clearly shows that the limiting of promotion to persons with disability only to Grade-III and IV posts would be ultra vires the provisions of Section 34 of the Rights of Persons with Disabilities Act, 2016. It was also specifically held that the instruction of the Personnel (B) Department vide forwarding letter dated 12.02.2021, whereby the learned Govt. advocate was instructed that there is no bar for considering a person with benchmark disabilities on merit basis for promotion to the Grade-I and Grade-II posts petitioner is otherwise eligible as per the relevant Service Rules appeared to be the correct interpretation of Section 34 of the 2016 Act.

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Therefore, notwithstanding the submissions made by the learned standing counsel for the respondent nos. 2 to 4 to defend the impugned speaking order dated 29.04.2021, the Court finds no merit in the said speaking order and the Court has no hesitation to set aside and quash the same.

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It would be pertinent to clarify herein that ordinarily, the Constitutional Court renders its finding and then direct the concerned authorities to consider the case of the petitioner. The word “consider” is required to be considered within the contours of the finding returned. In the present case in hand, this Court by the order dated 25.02.2021 passed in W.P.(C) 7186/2019,

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had returned finding in favour of the petitioner to the effect that reservation in promotion was available for persons with disability in respect of Grade-I and Grade-II posts also. Therefore, it was not open to the Secretary to the Government of Assam, Agriculture Department to omit any reference to the OM dated 07.01.2019 and reject the claim of the petitioner on the strength of the herein before referred OM dated 06.12.2018.

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The Court is conscious of the fact that in this writ petition, the challenge of the petitioner is limited to (1) prayer for setting aside the speaking order dated 29.04.2021, and (ii) prayer for directions for giving promotion to the petitioner with consequential actual and notional benefits from date when the beneficiaries of order dated 30.09.2019 were given benefit. However, the Court while exercising power under Article 226 is also required to act as a Court of equity in order to render complete justice. Therefore, in this case, the Court is inclined to mould reliefs and accordingly, the Court is inclined to pass the following orders:-

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a. Sub-paragraph appended to paragraph 2.1 of the OM No. ABP.180/2017/105 dated 07.01.2019, issued by the Govt. of Assam, Personnel (B) Department would be deemed to allow reservation in promotion for Grade-I and Grade-II posts also, notwithstanding that the challenge is limited in respect of the petitioner for being promoted to Grade-I post. This part of the order is nothing but a reiteration of the finding recorded in paragraph 9 of the order dated 25.02.2021 passed by this Court in W.P.(C) No. 7186/2019 (Rakibul Faruque Vs. The State of Assam & 6 others).

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b. The contents of paragraph-15 of OM No. ABP.180/2017/105 dated

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07.01.2019, issued by the Govt. of Assam, Personnel (B) Department by which direction has been issued to the effect that ”All the Departments are requested to bring the above instructions to the notice of all appointing authorities under their control.” makes it abundantly clear that the Department of Agriculture is bound by the said OM. Therefore, any part of the OM No. ABP.180/2017/105 dated 06.012.2018 of the Department of Agriculture, which is contradictory to the OM dated 07.01.2019 issued by the Personnel (B) Department, would stand superseded.

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c. Resultantly, the impugned Speaking Order no. AGA.190/2019/71 dated 29.04.2021, passed by the Secretary to the Government of Assam, Agriculture Department, thereby providing that the case of the promotion of the petitioner to the next higher rank shall be considered on merit basis if he is otherwise eligible for promotion as per the Assam Agricultural Service Rules, 1980 is set aside and quashed.

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d. Mandamus is issued upon the respondent nos. 2 to 4 to consider the case of the petitioner, namely, Rakibul Faruque for promoting him from the post of Agricultural Development Officer to the next higher post of Sub-Divisional Agricultural Officer or equivalent post (Grade-I). In the event there is no post vacant to promote the petitioner, the respondents would create a supernumerary post, personal to the petitioner with all other benefits attached to a regular Grade-I post for such time till he can be accommodated to the regular vacant next promotional Grade-I post.

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e. The petitioner has claimed entitlement to the promotion with effect from the date when the beneficiaries of the order no.

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AGA.623/2018/178 dated 30.09.2019 were given benefit of promotion. There is no specific denial to the said claim. Therefore, by invoking the doctrine of non-traverse, the claim of the petitioner is allowed. Mandamus is issued upon the respondents to conferred to the petitioner the notional benefit of his promotion with effect from the date when the beneficiaries of the order no. AGA.623/2018/178 dated 30.09.2019 were given promotion.

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f. Mandamus is also issued upon the respondents to carry out the exercise of giving promotion to the petitioner under reservation earmarked for persons with disability within a period of 4 (four) weeks from the date of receipt of a certified copy of this order.

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Having noted that the by the order dated 25.02.2021 passed in W.P.(C) 7186/2019, this Court had directed the Commissioner and Secretary to the Govt. of Assam, Agriculture Department (respondent no. 2) to dispose of the petitioner’s representation dated 16.03.2019. For the reasons not disclosed in the impugned speaking order, it is seen that the respondent no. 2 has shirked from doing the duty cast on him by this Court to dispose of the petitioner’s representation. The impugned order shows that the Agriculture Department is headed by the Commissioner and Secretary. This non-adherence to comply with the directions contained in the order of this Court is contumacious. Without taking leave of this Court, it was not open to the respondent no. 2 to abdicate the performance of his duty. This is considered as an act of willful and deliberate attempt of the respondent no.2 to act in accordance with his own of whims and fancies with total disregard to the orders passed by this Court. Although the Court had taken an exception to the said failure on part of the respondent no. 2

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to act in accordance with the directions contained in the order dated 25.02.2021 passed in W.P.(C) 7186/2019, but in view of the request expressed by the learned standing counsel for the respondent nos. 2 to 4, the Court has refrained from issuing a notice upon the respondent no. 2 of committing contempt of Court. The respondent no.2 is, however, put to notice that any misadventure on his part in future to dodge the duty cast on him to abide by the orders of this Court may not be viewed so leniently.

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JUDGE

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Comparing Assistant

Md. Rakibul Faruque v. the State of Assam and 3 Ors.

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Md. Rakibul Faruque v. the State of Assam and 3 Ors.

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