Calcutta High Court (Appellete Side)
Aniruddha Deb Majumder vs The State Of West Bengal & Others on 31 August, 2018
1
210 31.08.2018. W.P. 4315 (W) of 2018
bd
Aniruddha Deb Majumder
Vs
The State of West Bengal & Others
Mr. Firdous Samim.
... For Petitioner
Mr. Siddhartha Banerjee.
... For High Court
Administration
Let the rejoinder filed on behalf of the
petitioner in Court today be kept with the record.
The petitioner is an orthopaedically
handicapped person. He applied for the recruitment
to the West Bengal Judicial Service pursuant to an
advertisement issued by the Public Service
Commission. The grievance of the petitioner is that
despite being orthopaedically handicapped he was
not considered for appointment and by the writ
petition he prays for a direction upon the
respondents to appoint him forthwith as a Judicial
Officer.
It appears from the report filed by the Acting Secretary, Public Service Commission, West Bengal that the advertisement was issued pursuant to the requisition received from the Judicial Department. It was specifically mentioned in the advertisement that the number of clear vacancy was 2 (two) and the number of anticipated vacancy was 29. Out of them 19 was from the unreserved category, 3 belonging to SC, 1 belonging to ST, 3 belonging to OBC(A)and 3 2 belonging to OBC(2) and for a candidate with disability one post was reserved. The advertisement further discloses that the sub-category was to be obtained from the concerned department.
After completion of all stages of the examination a list of 53 candidates was prepared. In the meantime, the Judicial department informed the Public Service Commission that the nature of the anticipated Vacancy was visually handicapped. The specific case of the Public Service Commission is that as per the vacancy position received from the Judicial department the Commission recommended 28 candidates for appointment against 28 anticipated vacancies. But one vacancy for visually handicapped person could not be filled up due to the non-availability of such category in the select list. The Commission had forwarded the whole thing to the Judicial department.
Mr. Samim, the learned advocate for the petitioner, wanted to make out a case that this was clearly against the provisions of Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 under which the advertisement was issued. In terms of Section 33 of the said Act the respondents should have reserved the anticipated vacancy for orthopaedically handicapped persons. A bare reading of Section 33 of the said Act does not contemplate any roster to be maintained by the respondents or the persons suffering from different kinds of disabilities as 3 mentioned therein will have to be selected according to the order of disabilities mentioned in that Section.
Moreover, this Act of 1995 has already been repealed by the Rights of Persons with Disabilities Act, 2016. Section 102 of the said Act saves any action taken under the old Act as deemed to have been done or taken under the corresponding provisions of the latter Act. The corresponding Section of Section 33 of the old Act is Section 34 of the new Act.
Section 34 sub-section (2) of the said Act does not speak of any automatic interchangeability of vacancies. All that it says is that where in any recruitment for year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other reasons such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchanging among the five categories and only when there is no person with disability available for the post in that year the employer shall fill up the vacancy by appointment of a person other than a person with disability.
Thus, the submission of the petitioner that once a person with certain disability was not available the vacancy should be interchangeably filled up by persons with other disability is not the correct position of law. The petitioner relied on an 4 unreported judgment dated August 7, 2015 in the case of Kaushik Dey vs. The Chairman and Managing Director, West Bengal State Electricity Distribution Company Limited & Others (FMA 1930 of 2015). There the Court specifically observed that the Disabilities Act had been violated by incorrect implementation of the Act. The basis of such observation was a finding that if the recruitment drive undertaken in the year 2012 had specified the vacancies for each sub-category of the physically challenged persons the interchangeability rule contained in Section 36 of the Disabilities Act could have been applied for the recruitment in the year 2013. And that is precisely what Section 34 of the present Act says that if no suitable person with benchmark disability was available the vacancy shall be carried forward in the succeeding recruitment year and the question of interchangeability comes only if such candidate is not available in the next year as well. Thus this decision has no application to the facts of the present case.
At the present stage, the petitioner has no claim better than that of an empanelled candidate.
Mr. Samim wanted to impress upon the Court that the candidature of the petitioner was considered and upon assessment of the merit he was empanelled. That by itself does not give him any indefeasible right to ask for an appointment.
Moreover, the Public Service Commission had acted on the basis of the requisition received from 5 the relevant department of the Government and it was specifically mentioned in the advertisement that the specific sub-category would be obtained from the department later. When they received the sub- category from the Judicial department they finally published the list reserving one vacancy earmarked for physically handicapped candidate from visually handicapped persons.
The case of the petitioner sought to be built up after the results were published cannot be entertained also for his failure to seek appropriate clarification from the Judicial department. The appropriate time for obtaining necessary information was when the Public Service Commission had notified that the concerned department would inform the sub-category of the candidates to be appointed from persons with disability. After the whole process was over the petitioner is estopped from raising the issue based on an incorrect interpretation of the description of persons suffering from various disabilities as mandating a roster to be followed.
I, thus, find no impropriety in the step taken by the respondents. The writ petition does not call for any intervention.
The writ petition is dismissed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
6(Dr. Sambuddha Chakrabarti, J.)