W.P.(C).2821/2010 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI #17. + W.P.(C) 2821/2010 Date of Decision: 04.08.2010 MUNICIPAL CORPORATION OF DELHI ..... Petitioner Through: Ms.Shobha Gupta, Adv. Versus MANOJ GUPTA ..... Respondent Through: Mr. Arun Bhardwaj, Adv. with Mr.R.L.Gupta, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest? : PRADEEP NANDRAJOG, J(oral) 1. Sh.Manoj Gupta, a physically handicapped person employed as an Assistant Engineer, a Group „B‟ post, sought promotion to the next post by relying upon the various office memorandums issued by the Government of India from time to time and as adopted and applied by the Municipal Corporation of Delhi. He claimed reservation in the promotional post. 2. The Tribunal was confronted with the response of the petitioner, that under the Corporation no reservation was provided in the promotion quota for any Group „B‟ posts and above. 3. Relying upon a decision of this Court in W.P.(C) No.11818/2004 Union of India Thru G.M. Northern Railway Chairman, Railway Board Vs. S. Jagmohan Singh, decided on 07.12.2007, the Tribunal has held in favour of the respondent. 4. Since issues have been discussed thread bare in the decision in W.P.(C).2821/2010 Page 2 of 4 S.Jagmohan Singh’s case, which we note is a decision by a Co- ordinate Division Bench, we refrain from writing an epilogue to the said decision but would simply note that at the heart of the decision is the mandate of Sections 33 and 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and O.M. dated 04.07.1997. 5. In para 20 and 21 of the decision, the Division Bench has held as under: “20. As noticed above, prior to the Disability Act coming into force, the Government had, by administrative instructions, provided reservation for physically handicapped persons in Group C & D posts. After the Disability Act came into force, such a reservation is now permissible even for Group A & B posts. This led the DoPT to issue OM dated 18.12.1997. Referring to Section 33 of the Disability Act, this OM mentions that the reservation stands extended to identified Group A & B posts filled through direct recruitment. In this OM, however, it is stated that such reservation would be termed as horizontal reservation in contradistinction to the reservation of SC/ST candidates where reservation is available at horizontal as well as vertical level with the principle of interlocking of vertical and horizontal reservations, as laid down by the Supreme Court in the case of Indira Sawhney v. Union of India & Ors., AIR 1993 SC 477. Though as per this OM for Group A & B posts the reservation was only at induction level, significantly corrigendum was issued by the DoPT vide OM dated 4.7.1997, which reads as under :- “Subject: Reservation for the physically handicapped persons in Group A and B Posts/Services under the Central Government. The undersigned is directed to invite attention to this department's O.M. No. 36035/169/91-Estt.(SCT) dated 18.2.97 on the above subject and to say that it has been represented before the Government that the earmarking of points no. 33, 67 and 100 in the prescribed register for reservation for the physically handicapped would mean that the physically handicapped candidates may have to wait for a long time to get their turn for promotion. The suggestion has been considered and it has now been decided in partial modification of the O.M. cited above that the point number of 34 and 67 in cycle of 100 vacancies in the 100 point register and be marked for reservation for W.P.(C).2821/2010 Page 3 of 4 physically handicapped. The other instructions contained in the aforesaid O.M. remains unchanged. Sd/- (Y.G. Parande) Director” 21. It is clear from the above that point No.34 and 67 in the cycle of 100 are now earmarked for reservation for physically handicapped and, thus, reservation is admissible even for Group A & B posts in promotion category and not only at the induction level. We are of the opinion that this OM is brought in tune with the letter and spirit behind Section 33 of the Disability Act. On interpretation of such a provision legal position is abundantly clear.” 6. We note that vide O.M. dated 16.01.1998 it has been mandated as under: “CORRIGENDUM Subject: Reservation for physically handicapped in the posts filled by promotion. The undersigned is directed to invite reference in this Department O.M. of even number dated 18.02.1997 on the subject mentioned above and to say that the existing sub- para (ii) thereof may be replaced as under:- (ii) The existing policy of reservation for SCs/STs, including for the physically handicapped in promotion in all Groups is applicable to all grades and services, where the element of direct recruitment does not exceed 75. 2. All Ministries/Departments are requested to bring the above instructions to the notice of all Heads of Department and appointing authorities under their control for compliance.” 7. We may simply note that it is not in dispute that for the post in respect whereof the respondent claims a right of reservation under the category of physically handicapped persons, element of direct recruitment does not exceed 75%. 8. The writ petition is dismissed. 9. No costs. 10. We extend time for the petitioner to comply with the directions issued by the Tribunal as per the order dated 09.07.2009 by another W.P.(C).2821/2010 Page 4 of 4 three months reckoned from today. C.M.5634/2010(stay) Dismissed as infructuous. PRADEEP NANDRAJOG,J MOOL CHAND GARG, J AUGUST 04, 2010 anb