Arun Bhansali, J. - (1.) THIS appeal has been filed by the appellant aggrieved against order dated 29.07.2010 passed by learned Single Judge, whereby, the writ petition filed by the appellant seeking to question the validity of Promotion Policy of the respondent - New India Assurance Company ('the Company') qua persons with disabilities has been dismissed.
(2.) THE appellant joined the services of the respondent Company on 12.07.1985 on the post of Assistant; whereafter he was promoted on 28.09.2001 on the post of Senior Assistant; the respondent Company issued its Promotion Policy for Supervisory, Clerical and Subordinate Staff - 2008 on 16.09.2008, wherein, under Clause 19(b) it was provided that as per the guidelines of Department of Personnel and Training, Government of India ('the Government') issued on the subject from time to time, 3% reservation for persons with disability while undertaking promotion exercise for promotion to the cadre of Assistant/Senior Assistant is made; whereafter, promotion exercise was undertaken by the respondent Company under the Promotion Policy for promotion to the cadre of Scale -I Officer under Para 13.1 (Departmental) and 13.2 (Competitive) of the Promotion Policy; the appellant appeared in the general competition for promotion, however, could not succeed; whereafter, a writ petition was filed seeking to question Clause -19(b) of the Promotion Policy to the extent the same restricted the reservation in promotion to the post of Assistant and Senior Assistant and failed to provide for reservation for persons with disabilities for cadre of Scale -I Officer; a further prayer was made for direction to the respondent Company to provide 3% reservation to the persons with disabilities while undertaking promotional exercise pursuant to the notice dated 16.09.2008 (Annexure -4) to fill up the vacancies in the cadre of Scale -I Officer and to consider the candidature of appellant for promotion with consequential benefits. The writ petition was resisted by the respondent Company by filing reply to the show cause notice issued by this Court; it was, inter alia, contended that appellant was appointed in the year 1985 under physically handicapped quota; the challenge to provisions of Clause -19(b) of the Promotion Policy was contested and denied; it was, inter alia, submitted that the grant of reservation to persons with disabilities is a matter of Policy and is covered by Policy of Government and instructions issued by it in this regard; the instructions provided for restricting the reservation for promotion in Group -C and D posts only; the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('the Act') do not prescribe for reservation in promotion and the reservations in promotions is only covered by the instructions of the Government and, therefore, the appellant was not entitled to any relief; reference was made to the Government instructions dated 20.11.1989 and 16.02.2000.
(3.) AFTER hearing the parties, the learned Single Judge vide the impugned order came to the following conclusion: - "7. Merely because for promotion to Scale -I/Group -A services, no such reservation of 3% has been carved out by the respondent -Insurance Company, the said policy cannot be said to fall foul with the mandate of Sections 33 and 47(2) of the PWD Act. As far as the opportunity of entering into employment is concerned, that was definitely provided by the respondent -Insurance Company to the petitioner and even up for promotion to the post of Senior Assistant, he got this benefit. So far as further promotion to Scale -I/Group -A is concerned, merely because no such reservation of 3% is provided, the Policy itself cannot be faulted. The respondent -Insurance Company was only acting within the parameters and guidelines laid down by the Central Government on 20.11.1989 and that position being further clarified by the letter/notification dated 16.02.2000 vide Annex -R/3 and Annex -R/4, reproduced above. The letter/clarification of 16.02.2000 came after the aforesaid PWD Act, 1995 was enacted by the Parliament. If the respondent Insurance Company had any intention to provide such reservation to such physically handicapped persons even for promotional avenues at all levels, they would have definitely provided for it in their respective Promotion Policy or guidelines issued by them. Such conscious decision taken by the respondent -Union of India and respondent -Insurance Company after 1995 is not open to challenge and cannot be successfully assailed by the petitioner because such promotional avenues are not reserved in terms of Section 33 of the PWD Act or Scale -I/Group -A services. 8. Learned counsel for the petitioner also contended that in Annex -6 'Report of Committee on Identification of Jobs in Group -A and Group -B post for physically handicapped' vide Government of India, Department of Personnel & Training OM No. 36034/4/86 -Estt. (SCT), dated the 25th November, 1986, in para 9(xv), the posts in Insurance Sector has already been identified for which the physically handicapped persons are considered suitable and, therefore, the post of administrative officer given in Appendix -7 of the said Office Memorandum, makes the petitioner entitle for promotion to the extent of 3% reservation on the basis of Section 33 of the PWD Act. 9. This contention of the petitioner also cannot be accepted in view of preamble of Office Memorandum as contained in para 1, which clearly stipulates that identification of jobs in Group -A and B posts, is confined only to direct recruitment post. Thus, it clearly means that the said posts have not been identified as suitable for physically handicapped persons while considering the promotional avenues to these posts of Group -A services. For this reason also, the said Office Memorandum (Annex -6) does not enure the benefit of reservation to the petitioner. 10. It is not the denial of promotion to the petitioner but on the other hand it is not carving -out an exception by 3% reservation, which is the Policy of the respondent -Insurance Company and same deserves to be up -held by this Court. The opportunity of promotion was even made available to the petitioner, not in reserved category, but in open category which the petitioner had availed but failed. It is only after such failure in the general competition for promotion to Scale -I/Group -A that the petitioner chose to challenge the said policy itself. It is in these circumstances, that challenge was laid by the petitioner to the said policy. However, the stage of the petitioner approaching the Court is not really relevant but the challenge deserves to be failed for aforesaid reasons.";