Punjab-Haryana High Court
Parvesh Singla vs State Of Punjab And Others on 14 February, 2025
Neutral Citation No:=2025:PHHC:021628
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP-22119-2021 (O&M)
Reserved on: 05.02.2025
Pronounced on: 14.02.2025
PARVESH SINGLA
. . . .PETITIONER
Vs.
STATE OF PUNJAB AND OTHERS
. . . . RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued by:- Mr. Sushil Sheoran, Advocate, for the petitioner.
Mr. Surya Kumar, AAG, Punjab.
Ms. Deepali Puri, Advocate, for respondent No.4.
DEEPAK GUPTA, J.
By way of this petition filed under Article 226/227 of the Constitution of India, petitioner prays for issuance of the writ of mandamus by directing the respondents to interchange the post of Physically Handicapped (Ortho), Physically Handicapped (Visually Impaired), Physically Handicapped (Hearing Impaired), Physically Handicapped (I.D/M.D) and grant offer of appointment to the petitioner against the reserved posts in the abovesaid categories for the posts of Technical Assistant advertised by respondent No.5 vide Advt. No.06/2021 dated 26.04.2021 (Annexure P1) as per Punjab Government Office Memorandum dated 24.06.2015 (Annexure P7) and Section 34 of the Rights of Persons with Disabilities Act, 2016 [hereinafter referred to as Disabilities the Act'].
2.1 The Subordinate Service Selection Board, Punjab advertised 120 posts of Technical Assistants vide Advt. No.06/2021 dated 26.04.2021 (Annexure P1) as per requisition from the Department of Agriculture and Farmer Welfare through Punjab State Warehousing Corporation. Out of 1 of 11 ::: Downloaded on - 19-02-2025 23:13:27 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 total 120 posts, 7 were reserved for physically handicapped as per the following details: -
Category Posts Physically Handicapped (Ortho) 2 Physically Handicapped (Visually Impaired) 2 Physically Handicapped (Hearing Impaired) 2 Physically Handicapped (ID/MD) 1 Total posts 2 2.2 Petitioner applied in the category of Physically Handicapped
(Ortho) and appeared in the written test conducted on 22.08.2021. As per the results of the written examination, total 23 out of 30 candidates appeared in the category of Physically Handicapped as per the following details:
Category Total Candidates
candidates appeared
Physically Handicapped (Ortho) 27 22
Physically Handicapped (Visually Nil Nil
Impaired)
Physically Handicapped (Hearing 1 1
Impaired)
Physically Handicapped (I.D/M.D) 2 Nil
2.3. As per the criteria mentioned in the advertisement, the candidates appearing in the Physically Handicapped category must have minimum 40% marks to qualify for the further process i.e. counselling. Only seven candidates under this category of Physically Handicapped (Ortho) cleared the minimum criteria and were available against total 7 posts of Physically Handicapped category, as per the following details: -
Page 2 of 112 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 Sr. No. Roll No. of PH Name of Candidate Marks obtained (Ortho)
1. 212704 Ajaypal Singh 50.50
2. 212703 Jaspreet Kaur 46.25
3. 212709 Vinod Kumar 46.25
4. 212720 Aditya Sharma 45.00
5. 212714 Arshdeep Kaur 42.50
6. 212711 Jaspreet Singh 42.25
7. 212717 Parvesh Singla 41.50 (Petitioner herein) 2.4. After declaration of the written test result, notification was published for counselling. In Physically Handicapped (Ortho) category, the candidates scoring 42.25 marks and above were called for counseling held on 21.09.2021 as per Annexure P4. Petitioner approached respondent No.5 requesting to consider him for the counselling, as he was having 41.5 marks, which was above 40% marks as prescribed in the advertisement. He also requested that only 7 candidates including petitioner under the category of Physically Handicapped (Ortho) had cleared the minimum criteria and were available against the 7 posts of physically handicapped category candidates and so, he be also called for counselling and considered for the post, but in vain. Petitioner then served legal notice dated 27.09.2021 (Annexure P5) to the respondents to interchange the categories of Physically Handicapped (Ortho), Physically Handicapped (Visually Impaired), Physically Handicapped (Hearing Impaired) and Physically Handicapped (ID/MD) for the post of Technical Assistant and consider him for the appointment as per Section 34 of Disabilities Act and Punjab Government notification dated 24.06.2015.
2.5. The result-cum-merit of 120 posts of Technical Assistant was declared by respondent No.5-Subordinate Selection Board, Punjab on 04.10.2021 as per the category wise posts. It is alleged by the petitioner that despite the fact that he was not called for counselling, as per the Page 3 of 11 3 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 notice Annexure P4, he was shown as absent. It is despite raising valid claim by the him by serving the respondents with legal notice (Annexure P5). Against 7 posts under the category of Physically Handicapped, two candidates were recommended for Physically Handicapped (Ortho), two candidates result was held in abeyance, two candidates were not recommended; whereas the petitioner was shown as absent as per the following details: -
Sr. No. Roll No. of Name of Marks Status
PH (Ortho) Candidate obtained
157 212704 Ajaypal Singh 50.50 PH (Ortho)
270 212703 Jaspreet Kaur 46.25 PH (Ortho)
282 212720 Aditya Sharma 45.00 HIA
292 212714 Arshdeep Kaur 42.50 HIA
269 212709 Vinod Kumar 46.25 Not
Recommended
297 212711 Jaspreet Singh 42.25 Not
Recommended
304 212717 Parvesh Singla 51.50 Absent
2.6. Petitioner points out that the result of one candidate having lesser marks was kept in abeyance than the two non-recommended candidates, who were having higher marks, which shows that petitioner could have been in the selection list, if opportunity was provided to him. It is claimed that there being 7 vacancies in the Physically Handicapped categories when clubbed together and 7 candidates being available, petitioner was eligible for appointment from all angles.
2.7. Petitioner then refers to the office memorandum dated 24.06.2015 (Annexure P7) of the Punjab State Government so as to contend that the said office memorandum talks about the interchange of reservation of sub categories of the Physically Handicapped category, if the nature of vacancy in the establishment is such that a person of a Page 4 of 11 4 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 specific category of disability cannot be employed, then the vacancies may be interchanged amongst the three categories with the approval of the Department of Social Security And Woman And Child Development and reservation may be determined and vacancy filled accordingly. Petitioner further refers to Section 34 of the Disabilities Act, so as to contend that if the nature of vacancy in establishment is such that a given category of person cannot be employed, the vacancies may be interchanged from amongst five categories with the approval of the appropriate Government.
2.8 It is contended that since in the previous recruitments conducted for the abovesaid or equivalent posts, the Physically Handicapped vacancies remained unfilled, therefore, as per the Office Memorandum dated 24.06.2015 (Annexure P7) and Section 34 of the Disabilities Act, petitioner can be given appointment by interchanging the category of Physically Handicapped (Ortho) and other categories of the Physically Handicapped persons.
2.8 With all these submissions, petitioner has prayed for issuance of the appropriate writ as per the details given earlier.
3. As per the reply filed by respondent No.5, it is only a recruiting agency in respect of making recommendation for filling up of the various posts falling in Group-C services in connection with the affairs of the State of Punjab. On receipt of the requisition from the department of Agriculture, Punjab for recruitment of 120 posts of Technical Assistant, advertisement was issued on 27.04.2021 and necessary classification of posts, as per the reservation settled by the office of respondent No.3, was mentioned. Respondent No.5 submits further that there is no role of the said respondent to interchange the posts meant for the different categories of the physically handicapped being recruitment agency only. Respondent No.5 further submits that after the results of written test for the post of Technical Assistant, the short listed candidates were called for counselling. The Board had issued public notice for counselling to call three times the candidates of the advertised posts. The candidates of Physically Page 5 of 11 5 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 Handicapped (Ortho) category were called for counselling with merit of 42.25 and above marks and that the petitioner was not eligible for counselling, as he had secured 41.5 marks in the category of Physically Handicapped (Ortho). Respondent No.5 also submits that while preparing the list of eligible candidates for counseling of the Physically Handicapped (Ortho) category, the name of the petitioner was inadvertently included and so, there was no need or necessity to call him on 04.10.2021. After completing the process of counselling of the eligible candidates, details of two candidates were recommended against the two posts reserved for Physically Handicapped to respondent No.3. With these submissions, respondent No.5 prayed for dismissal of the petition.
4. As per the reply filed by respondent No.4, out of the total 7 posts reserved for physically handicapped, two posts were of Physically Handicapped (Ortho) category and out of these two posts, one post was to be filled up as backlog and one post was fresh. Out of the two posts of visually handicapped, one post was of the backlog pertaining to 2011 and one post was fresh. Out of two posts of physically handicapped (hearing), both the posts were fresh pertaining to recruitment year 2022 and the one post of Physically Handicapped (ID/MD) was fresh to the recruitment year 2022. Respondent further submits that case of the petitioner is governed by the instructions of the Department Of Social Security And Women And Child Development (Government Of Punjab) issued vide letter dated 03.10.2019 and not as per the office memorandum dated 24.06.2015, relied by the petitioner, in as much as the said office memorandum dated 24.04.2015 had been superseded vide letter dated 03.10.2019 issued by the Government of Punjab. With these submissions, respondent No.4 also prayed for dismissal of the petition.
5. In the short reply dated 8th February, 2024 filed on behalf respondents No.1 & 2, it is submitted that instructions dated 03.10.2019 have been prepared by the government in consonance with the Disabilities Act, 2016 and that in case, there arises any doubt or discrepancy as regard Page 6 of 11 6 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 to the enshrined instructions, then under those circumstances, in order to remove this difficulty, the provisions enshrined under Section 34(2) of the Act will prevail and the said Section is to be read for redressing any ambiguity or doubt arising from the instructions.
6. This Court has considered submissions of both the sides and appraised the record carefully.
7. Section 34(2) of the Right of persons with Act 2016 reads as under:
"(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient 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 interchange 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:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.
8. The Government of Punjab, Department of Social Security and Women and Child Development, (Disability) issued instructions dated 03.10.2019 on the subject of 4% reservation under Section 34 of the Rights of Persons with Disabilities Act, 2016. These instructions were issued in supersession of earlier instructions dated 24th June, 2015 & dated 5th August, 2019. These instructions provide for management of reservation in direct recruitment and in promotion for the persons with disabilities, as defined in the Rights of Persons with Disabilities Act, 2016, in the services in the Government of Punjab. Disability wise percentage in services is provided under Clause 1 of the Instructions. Clause 2 provides for 'exemption from reservation'. Clause 3 provides for 'identification of Page 7 of 11 7 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 posts'. Clause 5 provides for 'reservation in posts identified for one or two categories'. Clause 6 provides for 'appointment against unreserved services'. Clause 7 is with regard to 'adjustment of candidates selected on their own merit'. Clause 8 provides for 'quantum of disability for reservation'. Clause 9 provides for 'computation of reservation'. Clause 10 provides for 'maintenance of reservation'.
9. Clause 11 of the above instructions dated 03.10.2019 is relevant for purpose of present case, as it provides for 'consideration zone, interchange and carry forwarding a point in direct recruitment'. It reads as under: -
"11. Consideration zone, interchange and carry forwarding a point in direct recruitment. - (1) The reservation under these instructions shall be made category wise for each disability specified in the Table above. In case in a department, the nature of Service is such that a person of a specific type of disability cannot be appointed, in that case the vacancies may be interchanged from one type of disability to the other with the approval of this department.
(2) If any vacancy reserved for any category of disability cannot be filled due to non-availability of a suitable person with that disability or, for any other sufficient reason, such vacancy shall not be filled and shall be carried forward as a 'backlog reserved vacancy' to the subsequent recruitment year.
(3) In case a vacancy carried forward, is not filled up in the subsequent recruitment year, the same shall further be carried forward to the next recruitment year. However, if a suitable person with such disability is not available for appointment, it may be filled by interchanging such vacancy with other type of disability.
(4) In case a vacancy is filled up from amongst the person other than the person with disability in the second recruitment year, then the reservation shall be carried forward as a backlog vacancy for another period of two recruitment years. In case such vacancy could not be filled Page 8 of 11 8 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 up even in the extended period, then the reservation under these instructions shall stand lapsed.
(5) In the next recruitment years, if situation so arises, the procedure for filling up the reserved vacancy for the persons with disabilities, shall be remain the same as specified above."
10. Thus, as per the aforesaid instructions contained in Clause 11 (3), in case a vacancy carried forward is not filled up in the subsequent recruitment year, the same shall be further carried forward to the next recruitment year. However, if a suitable candidate is not available for the appointment, it may be filled up by interchanging such vacancy with other type of disability. The said instructions issued by the Government of Punjab, i.e., carrying forward of the unfilled vacancy for two subsequent recruitment years, are contrary to Section 34 of the Rights of Persons with Disabilities Act, 2016, as per which the unfilled vacancy can be carried forward only for succeeding recruitment year and if in the succeeding recruitment year also, suitable person with benchmark disability is not available, then it may be filled by interchange among the five categories.
11. Abovesaid discrepancy was noticed by this Court in order dated 05.01.2023 and learned State counsel was asked to clarify the same. It is in response to this order that respondents No.1 & 2 filed short reply dated 8.2.2024 by clarifying that in case, there arises any doubt or discrepancy as regard to the enshrined instructions dated 03.10.2019, then under those circumstances, in order to remove this difficulty, the provisions enshrined under Section 34 (2) of the Rights of Persons with Disabilities Act, 2016 will prevail.
12. In view of the aforesaid stand taken by respondents No.1 & 2, it is clear that carrying forward of the backlog post is possible only for next recruitment year, and not for subsequent recruitment years.
13. In the present case, as per the reply of the respondent No4, out of total seven posts for the category of Physically Handicapped, two Page 9 of 11 9 of 11 ::: Downloaded on - 19-02-2025 23:13:28 ::: Neutral Citation No:=2025:PHHC:021628 CWP-22119-2021 2025:PHHC: 021628 were of the category of Physically Handicapped (Ortho) and out of these posts, one post was of to be filled up as backlog and other was fresh.
14. In the present recruitment, in case one post of backlog was not filled up for particular category of physically handicapped, as respondents did not find any suitable candidate for that particular category of the Physically Handicapped, it could have been interchanged with other categories of Physically Handicapped.
15. As per results, only seven candidates of the category of Physically Handicapped (Ortho) cleared the minimum criteria and were available against seven posts of the Physically Handicapped category. Petitioner was at Sr. No.7 as per details given in table at Para N: 2.3 of this order.
16. The contention of ld. counsel for the petitioner is that the persons mentioned at Sr. No.3 to 6 in the above list, who had cleared the minimum criteria have not approached the Court, and therefore, they cannot be considered for appointment against the reserved category of Physically Handicapped (Ortho) after interchange. It is contended that as it is only the petitioner, who has approached the Court, even if he is at Sr. No.7, he should be offered the post of Technical Assistant under the category of Physically Handicapped, after interchanging with the other categories of Physically Handicapped.
17. This court does not find merit in the abovesaid contention. It is no doubt true that one post of backlog of the previous recruitment year, can be filled up in the present recruitment year by interchanging the other categories of physically handicapped, but it is the persons at Sr. No.3 to 6 of the list of persons who had cleared the minimum criteria, who in that seriatim are to be first offered the appointment, provided they fulfill all other eligibility conditions required for the post. It is only in case none of those four candidates accept the appointment offer, if offered on finding them eligible otherwise, that the petitioner can be considered for the post.
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18. As such, the present petition is hereby disposed of with the direction to the respondents to consider the filling of one backlog post of Technical Assistant of the Physically Handicapped category from amongst the persons, who had cleared the written examination by interchanging the posts of different sub-categories of physically handicapped. First of all, the candidate at Sr. No.3 [see table at Para N: 2.3 of this order], who had cleared the minimum criteria, shall be offered the post provided he fulfills eligibility conditions required for the post. In case he does not accept the offer within reasonable time to be mentioned in the offer letter, then the offer shall be extended to the candidate at Sr. No.4 of such candidates and so on and so forth. It is only when none of these candidates mentioned at Sr. No.3 to 6 of the table, who had cleared the minimum criteria, accept the offer, then the case of petitioner Parvesh Singla, who is at Sr. No.7 of the table, is to be considered for appointment on the post of Technical Assistant in the category of Physically Handicapped in the same manner as above.
The petition is disposed of accordingly.
14.02.2025 (DEEPAK GUPTA)
Vivek JUDGE
Whether speaking/reasoned? Yes
Whether reportable? No
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