Jammu & Kashmir High Court
Ashwani Kumar vs State Of J&K And Others on 27 February, 2020
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP 3446/2014
IA 4666/2014
c/w
SWP 2887/2015
IA 1/2015
Reserved on : 07.02.2020
Pronounced on: 27 .02.2020
Ashwani Kumar ...Petitioner
Through:- Mr.Abhinav Sharma, Advocate
Mr. Sidhant Gupta Advocate
v/s
State of J&K and others ... Respondent(s)
Through:-Mr.H.A.Siddiqui Sr. AAG for
respondent No.1
Mr. Amit Gupta AAG for respondent
Nos. 2 and 3
Coram : HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
SWP 2887/2015 1 Respondent No.2, in terms of its Notification No. 03 of 212 dated 28.12.2012, invited applications for various posts including 36 posts (Item No.201) of Jr. Physiotherapist borne on the Divisional cadre Jammu. The qualification prescribed was 10+2 with Diploma in Physiotherapy from any recognized Institute. Category-wise breakup of 36 posts as indicated in the Advertisement Notification aforesaid was in the following manner:
OM RBA SC ST ALC OSC TOTAL 21 7 3 4 1 0 36 2 It was further indicated in the Advertisement Notification aforesaid
that the physically challenged persons shall be entitled to 3% horizontal 2 SWP 3446/2014 c/w SWP 2887/2015 reservation in terms of Jammu and Kashmir Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1998 (hereinafter referred to as „Act of 1998‟) read with Government Order No. 62 -SW of 2001 dated 13.03.2001 and Government Order No. 231-SW of 2011 dated 22.12.2011.
3 The petitioner, a candidate belonging to the reserved category i.e. RBA and being otherwise possessing the requisite qualification, submitted his application to respondent No.2. He also claimed the benefit of horizontal reservation provided in favour of persons with disabilities. As per the disability certificate issued by the competent authority, the petitioner was suffering with disability of „hearing impairment‟ to the extent of 53%. Respondent No.2 conducted the selection by adopting a pre-notified criteria which provided as under:
(a) Marks obtained in the written test out of 150 to be proportionately converted into points = 80 points;
(b) Viva-voce = 20 points;
Total =100 points.
4 After conducting the written test of 150 marks, the names of the
candidates shortlisted in each category were notified by respondent No.3 vide its notification dated 24.11.2014 which came to be published in various newspapers on 25.11.2014. The petitioner did not find his name in the list of RBA candidates shortlisted for viva-voce. He, therefore, challenged the short-listing notification by way of SWP No. 3446/2014. This Court vide interim directions passed on 12.12.2014 permitted the petitioner to participate in the process of interview at his own risk and responsibility, making it clear that no right would flow out of his mere participation in the 3 SWP 3446/2014 c/w SWP 2887/2015 interview. The result of the petitioner was also directed not to be declared until further orders from this Court.
5 While the aforesaid petition was pending adjudication, respondent Nos. 2 and 3 completed the selection process and released the select list. Amongst others, seven candidates under RBA category came to be selected. Aggrieved by the selection of the candidates, particularly in the RBA category, without even allowing the petitioner to participate in the interview in terms of the interim directions dated 12.12.2014 passed in SWP 3446/2014, the petitioner filed the instant petition seeking, inter alia, the quashment of the select list of the candidates under the RBA category. The petitioner also sought a direction to the respondents to select and appoint him as Jr. Physiotherapist under the category of „persons with disabilities‟. 6 It appears that after completing the selection process and publishing the select list on 06.10.2015 the petitioner was interviewed along with two others to comply with the interim directions passed in the earlier petition. This Court while entertaining the instant petiton and issuing notice to the respondents also provided that one post of Jr. Physiotherapist under RBA category shall remain reserved for the petitioner till further orders from this Court.
7 The petitioner has urged several grounds to assail the impugned selection and claimed his selection and appointment against one of the posts notified under RBA category, but, during the course of arguments, learned counsel for the petitioner pressed and emphasized only one point of challenge i.e. the petitioner being a person with disability (hearing impairment) was entitled to be selected and that respondent Nos. 2 and 3 by ignoring the mandate of Act of 1998 have deprived the petitioner of his right 4 SWP 3446/2014 c/w SWP 2887/2015 to be considered against the post which was required to be filled up from amongst the persons with disabilities.
8 The respondents have filed their reply affidavit in SWP No. 3446/2014 and on their request, the reply affidavit filed in the said petition has been treated as reply in the instant petition. 9 In the reply affidavit filed by respondent No.3, the only stand taken to refute the claim of the petitioner for reservation under the category of „persons with disabilities‟ is that as per the Government Order No. 62 -SW of 2001 dated 13.03.2001 read with Government Order No. 231-SW of 2011 dated 22.12.2011, no provision for reservation in favour of persons with disability of „hearing impairment‟ is made insofar as the posts of Jr. Physiotherapist is concerned. It is, thus, submitted that in the absence of identification of posts of Jr. Physiotherapist for the purpose of granting the benefit of reservation under the Act of 1998, the respondent-Board could not have earmarked any post for such category. The petitioner, however, was considered under the category of RBA, but could not make the grade because of his inferior merit vis-à-vis the candidate last selected under RBA category. This, in nutshell, is the reply of the respondents. 10 Having heard learned counsel for the parties and perused the record, I am of the view that the stand taken by the respondents in the face of the provisions of Act of 1998 read with Government orders (supra) issued by the Social Welfare Department is unexceptionable. The reliance placed by learned counsel for the petitioner on the judgments of the Supreme Court in case of Mahesh Gupta and others vs Yashwant Kumar, 2007(8), SCC 621; Government of India through Secretary and another vs Ravi Prakash Gupta and another, 2010 (7) 626 and a Division Bench Judgment 5 SWP 3446/2014 c/w SWP 2887/2015 of this Court rendered in the case of Anjeel Kumar and others vs. State of J&K and others, 2015 (2) JKJ 785 is misconceived. The Judgments aforesaid have been decided in a totally different context and, therefore, are clearly distinguishable on facts.
11 Admittedly and indubitably, the process of selection in question was set in motion by respondent No.2 vide Advertisement Notification dated 28.12.2012. The terms and conditions of the Advertisement Notification were made known to every candidate and the public at large. The notification was widely published in various newspapers including English daily "Daily Excelsior" in its edition dated 01.01.2013. Apart from other terms and conditions, a note was appended at the bottom of the notification which reads as under:
"Note:
The horizontal reservation for Ex-servicemen and physically handicapped persons to the extent of 6% and 3% respectively would mean the reservation which would cut across the vertical reservation and the persons selected shall have to be placed in the appropriate category by making necessary adjustments. In respect of physically handicapped persons, the reservation shall be available only for services, posts and type identified for the purpose by the competent authority under the provisions of J&K Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation )Act, 1998 and to the extent specified thereon. Besides the nature of disability for a post indicated in the Government order 62-SW of 2001 dated 13.03.2001 read with Government Order No. 231-SW of 2011 dated 22.12.2011 shall be adhered to in letter and spirit. The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the Ex-servicemen against such posts only where maximum of the pay scale dos not exceed Rs.10500/- (pre-revised)".6
SWP 3446/2014 c/w SWP 2887/2015 12 The petitioner cannot claim that he was aware of the Advertisement Notification and its terms and conditions except the one reproduced above. He was also supposed to be aware that the Government Order No. 62 -SW of 2001 dated 13.03.2001 and Government Order No. 231-SW of 2011 dated 22.12.2011 did not provide reservation for the category of hearing impairment and, therefore, the petitioner was not entitled to the benefit of reservation provided in favour of the „persons with disabilities‟. 13 The plea of learned counsel for the petitioner that subsequently the Government vide its order dated 17.06.2014 revisited the posts identified for the purpose of granting benefit of reservation to the „persons with disabilities‟ and in the undated list prepared after fresh exercise, for the posts of Jr. Physiotherapist, the disabilities of „hearing impairment‟ and „low vision‟ were identified, as such, the petitioner is entitled to the benefit of the fresh identification made in the year 2014, cannot be accepted in the face of categoric provisions of Act of 1998. For expediency, Section 21 and 22 of the Act are reproduced herein below:
"21. Identification of posts which can be reserved for persons with disabilities- The Government shall:
(a) identify posts, in the establishments which can be reserved for the persons with disabilities;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the development in technology.
22. Reservation of posts. The Government shall appoint in every establishment such percentage of vacancies not has than three percent, for persons or class of persons with disabilities of which one percent, each shall be reserved for persons suffering from:
(i) blindness or low vision;7
SWP 3446/2014 c/w SWP 2887/2015
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disabilities:
Provided that the Government may, having regard to the type of work carried on in any department or establishment by notification, subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
14 From a reading of Section 21 of Act of 1998, it is crystal clear that with a view to give effect to the reservation in favour of „persons with disabilities‟, it is necessary for the Government to first identify the posts, in the establishments which can be so reserved. It is further mandated that the Government shall review the list of posts identified and update the list taking into consideration the development in technology at periodical intervals not exceeding three years. As per Section 22 of Act of 1998, the Government is put under an obligation to reserve in every establishment, unless it is exempted under the proviso, such percentage of vacancies not less than 3%, for the persons or class of persons with disabilities of which one percentage each shall be earmarked for persons suffering from:
(i) blindness or low vision;
(ii) hearing impairment; and
(iii) locomotor disability or cerebral palsy, in the posts identified for each disabilities.
15 It is, thus, clear that the reservation to be given to the persons with disabilities under Section 22 of Act of 1998 is dependent upon the identification of the posts under Section 21 of Act of 1998. In other words, identification of posts in an establishment not exempted under the proviso to Section 22 is sine qua non for giving effect to the reservation provided under Section 22 of the Act of 1998 for the persons with three type of disabilities. 8
SWP 3446/2014 c/w SWP 2887/2015 16 The State of Jammu and Kashmir, as it then was, enacted the Act of 1998 only on 19.05.1998, but, the same was implemented in letter and spirit only in the year 2001 when Government Order No.62 -SW of 2001 dated 13.03.2001 was promulgated and the posts in different establishments were identified for the benefit of granting reservation for the persons with disabilities. The expression used in Section 22 i.e. "locomotor disability or cerebral palsy, in the posts identified for each disabilities" is significant and clearly manifests the intention of the legislature. Unless the post is identified for a particular nature of disability, the reservation envisaged under the Act of 1998 cannot be given effect to.
17 The Hon‟ble Supreme Court as also this Court in the judgments cited by learned counsel for the petitioner was seized of the situation where the relevant Government had failed to carry out the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Central) and the Act of 1998 (State) and held that the failure on the part of the Government to perform its statutory duty of identifying the posts and updating the list periodically, cannot and should not work to the prejudice of the persons with disabilities. Taking note of the benevolent and beneficial nature of the legislation, the Supreme Court directed the respondents-authorities to accommodate the petitioners. However, in the instant case, the respondents purportedly in due deference to the directions issued by the Division Bench of this Court in the case of Anjeel Kumar (supra) undertook the exercise to revise and update the list of posts identified for the purpose of granting reservation under the Act of 1998. The exercise resulted in issuance of Government Order Government Order No. 231-SW of 2011 dated 22.12.2011.
9
SWP 3446/2014 c/w SWP 2887/2015 18 For the reasons which are well within the domain of experts, the post of Jr. Physiotherapist was not identified for the benefit of granting reservation in favour of persons suffering with requisite disability of hearing impairment. When advertisement notification was issued in the year 2012, the latest exercise in the shape of Government Order No. 231-SW of 2011 dated 22.12.2011 was in existence and the same was duly indicated in the note appended at the foot of the Advertisement Notification (supra). The petitioner being well aware that there is no reservation for his type of disability provided in the Government Order No. 231-SW of 2011 dated 22.12.2011 participated in the selection process with his eyes wide open and did not raise any protest or objection. He, however, felt aggrieved only when because of his merit in the written test, he was excluded from the zone of consideration and was not shortlisted for vive-voce. 19 I am aware that there could be no estoppel against the statute, but, in the instant case, it is not the case of the petitioner that the respondents have violated any statutory provisions, nor he has assailed the Government Order No. 231-SW of 2011 dated 22.12.2011 on any ground whatsoever. The only case of the petitioner as projected by learned counsel for the petitioner is that in the year 2011, the Government identified the posts of Jr. Physiotherapist for the purpose of granting benefit of reservation to the „persons with disabilities‟ like hearing impairment and that notification should operate retrospectively and, therefore, at least one post should fall in the kitty of the petitioner. I am not impressed with the argument.
20 It is not the case where the respondents have failed to carry the mandate of law. Right from the year 2011, there has been periodical revision, one made in the year 2013 and one in the year 2014. This updation 10 SWP 3446/2014 c/w SWP 2887/2015 of the list is left to the experts in the domain and the Court cannot substitute its opinion and say that the post of Physiotherapy or for that matter, any particular post should have been identified for giving the benefit of reservation under the Act of 1988 with respect to the disability. As provided in clause (b) of Section 21 of Act of 1998, it is for the Government to undertake periodical review of the list of posts identified and update the same taking into consideration the development in the technology. That being so, it cannot be said that there was some failure or neglect on the part of the respondents to undertake the periodical review. The situation in the case of Anjeel Kumar (supra) was different. The first Government order noted above was issued in the year 2001 and till the year 2011, there was no review/revise of the list of posts identified for the purpose of horizontal reservation envisaged under the Act 1998. From the year 2011 onwards, the Government has not shown any remissness or negligence and has acted as per the mandate of the law. The post of Physiotherapy has now been identified for the purpose of granting the reservation in favour of the persons with disability like hearing impairment and low vision and, therefore, the same will enure to the benefit of those who seek their selection and appointment after promulgation of Government Order 17.06.2014.
21. Applying the Government order retrospectively to the pending selection or even to the selection which has already been concluded would be creating administrative chaos and unsettling the settled things. I am not inclined to do so.
22 In the light of the preceding analysis, this petiton is found to be without any merit and is, accordingly, dismissed.
11
SWP 3446/2014 c/w SWP 2887/2015 23 In view of dismissal of instant petition, nothing survives for consideration in SWP No. 3446/2014 and the same is also dismissed.
(SANJEEV KUMAR) JUDGE Jammu 27.02.2020 Sanjeev Whether the order is speaking: Yes Whether the order is reportable: Yes SANJEEV KUMAR UPPAL 2020.03.02 10:55 I attest to the accuracy and integrity of this document