Serial No. of Order IN THE HIGII COURT ORDER SHEET unit petition (c) ms. Bhiiml}ca Shama Versus No. OF SIKKIM ' of3qE9[ 200I Petitioner/Appe]]ant State of Sik]cim a others Order witb Signature Respondent utia,Advocate for the Petitioner. Mr. S.P. Wangdi, Advocate General with Mr. J.B. Pradhan and Mr. Karma Thinlay, Government Advor`ates for the State-Respondents. Heard Dr. Doma T. Bhutia, learned counsel for the Petitioner. Upon hearing the learned counsel for the Petitioner as well as Mr. S.P. Wangdi, learned Advocate General assisted by Mr. J.B. Pradhan, learned Government Advocate for the State, we are o Office Note as to action (if any) taken on Order the view that this matter can be disposed of finally dn its own merit as the questions of r law involved in the case in hand is a very simple one, and that being the position, this Writ Petition is finally disposed of with the following |Judgment and Order. has been denied the promotion in the post of Upper Div`ision Clerk or its equivalent and ¢.\cgiv- I,SerialNo.of Dateof Order with Signature Office Note as toaction(ifany) ItakenonOrder Order Ordgr her case was not considered against the IIIII reserved quota for disabilities of 3 % and she has been deprived of her promotional right granted under the related provisions of Section 32 read with Section 33 of thePersonswithDisabilities(Equal Opportunities, etc.) Act, 1995, for short "Disability Act of 1995" as well as the mandates of the Constitution of India thuscausingagreatinjusticetbadisable- employee like the Petitioner. Supporting the case of the Petitioner, Dr. Doma T Bhutia, learned counsel for the Petitioner contendedthat3%ofthevacaricyisreservedfora person with disability in the matter of promotions but, such benefit was/is never afforded to the Writ Petitioner, thus violating th;e provisions of Articles 14 and 16 of the Constitution of India. The Petitioner alsoqriestionedthevalidityoftheimpugned office letter of 01.03.2006 as in AnnexureP-5,whereinthecompetentauthorityhad iijiiiiiiLiiiicaic: Serial 5 Date Order with Signature Off.Ice Note as toaction(ifany) No. o'Order otOrder taken on Order promotion to the post of U.D.C./Upper 'i Division Clerk. In the said representation, the Petitioner sought for relaxation of the Service Rules as she is a physically challenged person and she claimed the appointment under 3% reservation quota. However, the authority informed the Petitioner that the 3 °/o reservation forpersonswithdisabilityisfordirect recruitment post and there is no reservation in promotion. The learned counsel for the Petitioner went on to interpret the provisions iof Section 33 of the Disability Act, 1995 and the reservation policy of Government of India laid down un der a relate d OfficeMemorandumdated29.12.2005asinAnnexureP-6,andarguedthatthePetitioner is entitled for her promotion to the post of U;D.C. under reservation quota for disabled persons.Mr. S.P. Wangdi, learned Advocate General argued that by vir`tue of law lard Order with Signature Off ice Note as to action (if any) taken on Order 16 (4-A) shall not stand on the wa.y of the State, in other words, it shall not prevent the State from making any provision for reservation in the matters of promotion. But, there is no Law which has been enforced in the State of Si]ckim pertaining to reservation of disabled quota in the matter of promotion, and apart from that, the reservation policy under the related roster)3% vacant posts is reserved for disabled persons for direct recruitment. Supporting his arguments, Mr. ho Wangdi, learned Advocate General drawn Ei our attention to Rule 2 of the Government Notificatioin dated 17.11.2003 as in Annexure P-7 and contended that in terms of the said Rule/Notification 3% horizontal reservation for persons with disabilities is provided in all direct recruitment (emphasis given). Rule 3 (1) of the Sikkim Subordinate (Ministerial and Executive) Service Rules, 1984 speaks about the 50 0/o by promotion :,, \ 5 + Office Note as to SerialNo.of D`atec)I Order with Signature action (if any)takenonOrder OrderI)(I\'`,\III)\L\\I,''(I rder examination in the matter of promotion in the post of U.D.C. and its equivalent and persons in Grade IV of tile service with four years regular service in that grade is eligible for promotion. At this stage we may recall the arguments of Mr. Wangdi, learned Advocate General that the Petitioner faceddepartmentalcompetitiveexamination3 (three) times, one in 1996, one in 2001 and the other in 2003, which is not controverted by the learned counsel for the Petitioner but, she was declared as unsuccessful in otherwords,shefailedintheexaminationsand during the relevant period she never claimed the benefit of this 3% quota for disabled persons in the matter of promotion. Very recently, the Petitioner approached this Court thus claiming the alleged benefit which is according to us, she is not entitled for her promotion in the higher post of U.D.C against 3% horizontal reservation for persons with disabilities. So far reservationnerisaility a°cft{:C:(¥f°::y;Sto \takenonorder, SeriaNo.ofOrder DateotOrder Order with Signature \ I of 1995 speaks about the appointment for I persons with disability, and there is no whisper about the reservation of 3 0/o for promotion. From the plain reading of the Government Notification dated 17.11.2003asinAnnexureP-7totheWritPetition,the Sikkim Subordinate (Ministerial and Executive) Service (Amendment) Rules, 1990, and provisions of law lard down under Sections 32 and 33 of `the Disability Act of 1995, it has been revealed that there is no 3 % reservation for persons with disability in the matter of promotion. It may be noted that at the time when the Petitioner wasdeclaredunsuccessful3(three)timesinthe Departmental examination for promotion to the post of UDC, as highlighted above, she did not claim the benefit of 3 0/o reservation i_ for disability, in the lpatter of promotion but, now only in the year 2007 sbe approached this Court for the said reliefs sought for in this Writ Petition., N .fr\ - Order with Signature According to us, Articles 16 (4) and 16 (4-A) of the Constitution of India, do not confer any fundamental rights nor do they imposes any Constitutional duties to the Petitioner in the matter of promotion in the post of U.D.C. under 3 % reservation quota as discussed above, inasmuch as the provisions of law are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation of the circumstances mentioned in those articles so required. For the reasons, observations and discussions made, we are of the view that the.I Petitioner has no enforceable in the case in hand. In the result, the Writ Petition is devoid of merit and. accordin is dismissed but, no order as to costs. Ill `' :..# givfty ( A.N. Ray, CJ) N`tiaiLJ` 8h, J) (N`.S. Office Note as to action (if any) taken on Order