Shifting Disabled Employee To Suitable Position U/S 47 PwD Act Cannot Disturb Existing Cadre Seniority: Bombay High Court

The Court was hearing a writ petition filed by an employee who, after acquiring disability during service and being shifted to another post, challenged his placement at the bottom of the seniority list and his exclusion from the zone of consideration for promotion.

A Bench of Justice M. W. Chandwani observed: “… in the process of shifting a disabled employee in view of the mandate of Section 47 of the Act of 1995, seniority of the employees who are already in that cadre where the disabled employee is being shifted cannot be disturbed”.

Advocate P. B. Patil appeared for the petitioner, while A.G.P. C. A. Lokhande represented the respondents.

Background

The petitioner was initially appointed as a Lab Technician in the Zilla Parishad, Yavatmal, in 2002. After acquiring disability in 2010, he sought a transfer to a suitable post and was subsequently absorbed as an Extension Officer (Panchayat) in 2016.

It was the case of the petitioner that while being absorbed into the new cadre, he was placed at the bottom of the seniority list, and his earlier service as a Lab Technician was not taken into account. As a result, his name did not figure in the seniority list of candidates eligible for promotion to the Maharashtra Vikas Seva Group-B category.

The petitioner contended that such placement violated Section 47 of the Act of 1995, which prohibits denial of promotion on the ground of disability, and argued that his past service should be counted for determining seniority.

The respondents contended that the petitioner had sought transfer on his own request and had accepted the condition of being placed at the tail-end of the seniority list. It was further contended that the petitioner did not fulfil the minimum eligibility requirement of seven years’ service in the cadre for promotion and that there was no discrimination on the ground of disability.

Court’s Observation

The Court examined the scope of Section 47 of the Act of 1995 and clarified that the provision operates in two distinct spheres: protection against removal or reduction in rank, and protection against denial of promotion solely on the ground of disability.

The Court held that while the statute mandates that an employee acquiring disability should not be dispensed with or reduced in rank, and may be shifted to a suitable post with the same pay and benefits, the provision does not confer an absolute right to promotion.

The Court observed: “Promotion is not a vested right. The aspect of promotion is dealt with on a different pedestal. The legislative intent of the Act of 1995 is clear that it is not every denial of promotion that attracts the rigours of sub-section (2) of Section 47. The legislative mandate is that promotion cannot be denied only on the grounds of disability. The legislative intent will have to be respected. Jurisprudence and pragmatic logic clearly explain why removal or reduction is treated differently than promotion”.

The Court further clarified that a reduction in rank and a reduction in seniority operate on different planes. While a reduction in rank affects status and pay, seniority pertains to position within a cadre and impacts future promotional prospects.

The Court held that in the process of shifting a disabled employee to another cadre, the rights of existing employees in that cadre must also be protected. It observed: “In the process of shifting a disabled employee to another cadre, the seniority of the regular employees who are already there in that cadre will also have to be protected, as otherwise, that will cause discrimination with the employees in that cadre. Promotion cannot be given to a disabled person by putting the seniority of the existing senior employees in the said cadre in jeopardy. This cannot be the purport and intent of the language used in Section 47 of the Act of 1995”.

The Court emphasised that granting seniority to a transferred employee by counting past service in a different cadre would prejudice employees who were already serving in the new cadre, thereby resulting in reverse discrimination.

The Court also noted that the petitioner had accepted the terms of his appointment in the new cadre and had worked for several years without challenge. It held that the petitioner could not subsequently seek to alter his seniority position after having accepted the conditions of absorption.

The Court further found that the petitioner did not meet the minimum eligibility requirement of seven years’ service in the cadre as on the relevant date, and therefore, his exclusion from the promotion process was not on account of disability.

“Having accepted the said condition and having worked for more than six years, the petitioner has raised this grievance when the process for promotion from the cadre of Extension Officer (Panchayat) was initiated. Therefore, the petitioner cannot take benefit of both situations by complaining about noncompliance of Section 47, that too, after a period of more than six years”, the Court concluded.

Conclusion

The High Court held that there was no violation of Section 47 of the Act of 1995, as the petitioner was neither denied promotion on the ground of disability nor deprived of employment benefits.

Accordingly, the Court dismissed the writ petition, holding that seniority in the new cadre cannot be determined by counting past service in a different cadre, particularly where it would adversely affect other employees.

Cause Title: Rameshwar S/o Mahadeorao Surve v. State of Maharashtra & Ors. (Neutral Citation: 2026:BHC-NAG:4826)

Appearances

Petitioner: P. B. Patil with Vinay Rathi, Advocates

Respondents: C. A. Lokhande, A.G.P.; Vikas Kulsange, Advocate

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