Shifting disabled employees under PWD Act cannot disturb the seniority of existing employees in the new cadre.

The petitioner was appointed as a ‘Lab Technician’ by Zilla Parishad, Yavatmal, in 2002.

In 2010, he acquired a disability (low vision) and requested a shift to another post.

Following a 2016 High Court direction in a previous petition, he was absorbed as an ‘Extension Officer (Panchayat)’ effective June 16, 2016.

His appointment order explicitly stated he would be placed at the "tail-end" of the seniority list for that cadre, a condition he accepted.

In 2023, a provisional seniority list for promotion to Maharashtra Vikas Seva Group-B was published, excluding the petitioner.

The petitioner challenged this, arguing that his seniority should be calculated from his initial 2002 appointment as a Lab Technician pursuant to Section 47 of the Act of 1995.

1. Whether, while shifting a disabled employee to another cadre under Section 47 of the Act of 1995, the employee's previous seniority can be carried over if it disturbs the seniority of existing employees in the new cadre?

2. Whether the non-inclusion of the petitioner’s name in the promotion list constituted a denial of promotion "merely on the ground of disability" in violation of Section 47(2)?

Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which prohibits dispensing with or reducing the rank of an employee who acquires a disability and mandates shifting them to a post with the "same pay scale and service benefits".

Union of India v. Devendra Kumar Pant (2009), which held that Section 47(2) is not attracted if an employee fails to meet minimum standards/criteria for promotion unrelated to their disability.

Division Bench ruling in Shyamkumar v. Union of India (2023), establishing that denial of promotion based on recruitment rules does not violate the legislative mandate of the Act.

The court distinguished between "reduction in rank" (a punitive demotion affecting pay/status) and "reduction in seniority" (reordering within a grade affecting future prospects).

It reasoned that while Section 47(1) protects a disabled employee's pay and rank, it does not mandate carrying over seniority to a new cadre at the detriment of existing regular employees, as this would cause discrimination against the latter.

Regarding Section 47(2), the court observed that the legislative intent is to prevent denial of promotion solely due to disability.

In this case, the petitioner was excluded because he lacked the mandatory 7 years of experience in the Extension Officer cadre required by recruitment rules, having only completed six and a half years by the relevant date (January 1, 2023).

Furthermore, the court noted the petitioner had accepted the "tail-end seniority" condition in 2016 and worked under it for over six years before raising an objection.

It held that in the process of shifting a disabled employee under Section 47 of the Act of 1995, the seniority of existing employees in the target cadre cannot be disturbed.

The previous service in a different cadre (Lab Technician) cannot be counted for determining seniority in the new cadre (Extension Officer).

Since the petitioner lacked the minimum experience required for promotion and was not excluded "merely" because of his disability, there was no breach of Section 47(2).