Persons with benchmark disabilities cannot claim promotional reservation absent an identified suitable post and applicable roster point.

The applicant, a person with benchmark locomotor disability of 45%, was appointed as Junior Engineer (Civil) under the RBA category pursuant to Advertisement Notice No. 10 of 2008 and Government Order No. 209-PW(R&B) of 2009 dated 17 September 2009.

After acquiring the AMIE qualification in Civil Engineering in 2015, he was included in the seniority list of degree-holder Junior Engineers and placed at Serial No. 1396.

The applicant claimed eligibility for promotion to Assistant Engineer under the J&K Engineering (Gazetted) Service Recruitment Rules, 1978, and alleged that several Junior Engineers were promoted or placed as Assistant Engineers between 2019 and 2022, without extending reservation or promotional benefit to persons with disabilities.

His earlier O.A. No. 61/532/2022 was disposed of with a direction to the respondents to consider his claim as a representation and pass a reasoned order.

The respondents rejected the claim through Government Order No. 265-PW(R&B) of 2022 dated 5 August 2022, relying on SRO 294 of 2005 read with SRO 144 of 2008 and contending that those provisions did not provide reservation in promotion for the physically handicapped category.

The applicant challenged that order and sought retrospective promotion as Assistant Engineer from 19 April 2021, with consequential benefits.

Whether the applicant, as a person with benchmark disability who was appointed under the RBA category, had an enforceable right to promotion as Assistant Engineer against a reserved PwD/physically handicapped promotional vacancy?

Whether the respondents’ rejection of the applicant’s claim through Government Order No. 265-PW(R&B) of 2022 was legally unsustainable for failing to apply reservation in promotion under the Rights of Persons with Disabilities Act, 2016?

Whether the applicant was entitled to retrospective promotion from 19 April 2021 merely because other Junior Engineers had been promoted and the sanctioned strength allegedly attracted disability reservation?

The Tribunal applied the Rights of Persons with Disabilities Act, 2016, particularly Section 34, under which reservation for persons with benchmark disabilities, including reservation in promotion, operates in accordance with the instructions issued by the appropriate Government.

It relied on the principle that eligibility for promotion is distinct from an enforceable right to promotion against a reserved vacancy; such entitlement depends on the applicable recruitment rules, identification of the post as suitable for the relevant disability, the promotional roster, availability of the reserved vacancy, and satisfaction of other service conditions.

The Tribunal also considered Siddaraju v. State of Karnataka, which recognized the governing principles concerning reservation in promotion for persons with disabilities and the significance of identification of suitable posts.

SRO 294 of 2005, read with SRO 144 of 2008, was found not to establish a separate promotional quota for the physically handicapped category in the relevant cadre.

Disability reservation is horizontal; therefore, appointment under the RBA category neither extinguishes the applicant’s disability status nor independently creates a right to a PwD-reserved promotional post.

The Tribunal held that the applicant’s possession of a disability certificate and ordinary eligibility for promotion did not establish an indefeasible right to promotion against a PwD-reserved vacancy.

Although he had acquired the requisite degree qualification and had been included in the degree-holder seniority list, he failed to show that the post of Assistant Engineer (Civil) had, during the relevant period, been identified by the competent authority as suitable for his particular locomotor disability.

He also produced no applicable promotional roster, Government instruction, or identified PwD vacancy available on 30 December 2019, 19 April 2021, or any other claimed date.

The Tribunal further held that the applicant could not calculate reservation merely by applying a percentage to the total sanctioned strength of Assistant Engineers, nor could the promotions granted to other Junior Engineers automatically generate a corresponding right in his favour.

Since the earlier proceeding had only directed consideration of his representation and had not recognized any substantive right to promotion, the respondents’ reasoned rejection could not be interfered with.

Granting retrospective promotion without proof of an identified suitable post and an operative roster point would amount to creating a promotional vacancy outside the governing framework.

It held that he had not established an enforceable right to retrospective promotion as Assistant Engineer against a PwD-reserved promotional vacancy, and that Government Order No. 265-PW(R&B) of 2022 dated 5 August 2022 did not warrant judicial interference.

The Original Application was accordingly dismissed, with pending miscellaneous applications also disposed of and no order as to costs.

The Tribunal clarified that the decision did not mean that persons with benchmark disabilities could never receive reservation in promotion; such entitlement must be determined under the RPwD Act, binding precedent, identification of suitable posts, and the applicable Government instructions and roster.