Gujarat High Court
State Of Gujarat & 2 vs Rajesh Motibhai Desai & on 5 May, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPAST/725/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 725 of 2016
In SPECIAL CIVIL APPLICATION NO. 15735 of 2014
With
CIVIL APPLICATION (STAMP NUMBER) NO. 5325 of 2016
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 725 of 2016
==========================================================
STATE OF GUJARAT & 2....Appellant(s) Versus RAJESH MOTIBHAI DESAI & 1....Defendant(s) ========================================================== Appearance:
MS ML SHAH, GOVERNMENT PLEADER with MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER for Appellants MR KB PUJARA, ADVOCATE for Respondent No.1 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 05/05/2017 CAV ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. When Civil Application No. 5987 of 2016 for condonation of delay came up for hearing, on the request of learned counsel appearing for both the sides, the Letters Patent Appeal itself is heard on merit and is disposed of by this Court by this order.
2. Respondent nos. 1,2 and 4 in Special Civil Application No. 15735 of 2014 are the appellants in this Letters Patent Appeal Page 1 of 19 HC-NIC Page 1 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER filed under Clause-15 of the Letters Patent, questioning the judgment dated 9th July, 2015 passed by learned single Judge of this Court in the said petition. The said Special Civil Application was filed with the prayers which read as under:-
"(a) to direct the respondent nos. 1 and 2 to give appointment to the petitioner as Assistant Professor of Physiology as a candidate of reserved category of Physically Handicapped persons pursuant to Advertisements dated 9-9-2014 and 23-9-2014 at Annexure C and D;
(b) to hold and declare and direct that the respondents, their agents and servants are duty bound to implement the reservation for Physically Handicapped persons in the recruitment of Assistant Professors of Physiology pursuant to Advertisements dated 9-9-2014 and 23-9-
2014 at Annexures C and D to the extent of minimum 3% as mandated by the persons with Disabilites (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and as interpreted by the Honble Supreme Court in Uion of India Vs. National Federation of the Blind, 2013 (10) SCC 772 by reserving the point Nos. 1, 34 and 67 for Physically Handicapped candidates in the 100 point roster register;
(c) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondent nos. 1 and 2 to give appointment to the petitioner as Assistant Professor of Physiology as a candidate of reserved category of Physically Handicapped persons pursuant to the Advertisements dated 9-9-2014 and 23-9-2014 at Annexures C and D, subject to further orders that may be passed in this petition;
(d) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED TO direct the respondent nos. 1 and 2 to keep one post of Assistant Professor in Physiology vacant for the petitioner while making any appointments pursuant to Advertisements dated 9-9- 2014 and 23-9-2014 at Annexures C and D;
(e) to give all consequential and incidental benefits and monetary benefits to the petitioner with interest at the rate of eighteen percent per annum;
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(f) to grant any other appropriate and just relief/s;
(g) to quash and set aside the impugned G.R. dated 3-8- 2011 issued by the General Administration Department, Govt. of Gujarat, in so far as and to the extent that it provides for Roster Point Nos. 34, 68 and 100, instead of Roster Point Nos. 1, 34 and 67 for the persons with disabilities in the 100 Point Roster.
(h) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the further operation of the G.R. dated 3-8-2011 issued by the General Administration Department, Govt. of Gujarat, in so far as and to the extent that it provides for Roster Point Nos. 34, 68 and 100, instead of Roster Point Nos. 1, 34 and 67 for the persons with disabilities in the 100 Point Roster, and direct the respondents to operate Point Nos. 1, 34 and 67 for persons with disabilities while implementing the 100 Point Roster in the matter of appointments of Assistant Professors in the Medical Colleges under the respondents and in filling up the vacancies notified by Advertisements dated. 9-9-2014 and 23-9-2014 as per Annexures C and D of the petition."
3. The petition was filed by the 1st respondent, stating inter alia, that he is a person with disability (Physically Handicapped Person) with 55% permanent impairment in relation to his right leg. It was his case that he passed the M.B.B.S. In the year 2007 and thereafter, he did M.D. (Physiology) in the year 2014 and, therefore, he is eligible for being appointed as Assistant Professor in the subject of Physiology in the medical colleges functioning under the present appellants. Appellant no.2 - Gujarat Medical Education and Research Society (GMERS), an instrumentality of the Government of Gujarat, had issued an advertisement dated 9th September, 2014 for recruitment to the vacant posts of Professor, Associate Professor and Assistant Page 3 of 19 HC-NIC Page 3 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER Professor in various subjects at the GMERS Medical Colleges at Dharpur-Patan, Valsad and Himmatnagar. In the said advertisement, 18 vacancies of Professors, 52 vacancies of Associate Professors and 35 vacancies of Assistant Professors were notified and for the subject of Physiology, 3 vacancies were notified. Walk-in interviews for the subject of Physiology were held on 16th September, 2014, for which, the respondent- original petitioner had appeared and submitted his application.
4. The appellant no.2 also issued another advertisement dated 23rd September, 2014 for the vacant posts of Professor, Associate Professor and Assistant Professor in the various subjects at the GMERS Medical Colleges at Sola-Ahmedabad, Gotri-Vadodara, Gandhinagar and Junagadh. In the said advertisement, 18 vacancies for the post of Professors, 23 vacancies for the post of Associate Professor and 36 vacancies for the post of Assistant Professor were notified. For the subject of Physiology, 4 vacancies were notified in the said advertisement. Walk-in interviews for the subject of Physiology were held on 30th September, 2014 on which date, the respondent-original petitioner had appeared and submitted application.
4.1. In the aforesaid advertisement, as there was no specific mention of reservation for persons with disabilities, as contemplated under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Page 4 of 19 HC-NIC Page 4 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER Full Participation) Act, 1995 ("said Act" for short), the original petitioner approached this Court claiming that he being physically handicapped person, he was entitled to the benefit of such reservation in the said recruitment. Therefore, he made representations dated 29th September, 2014 and 15th October, 2014 to the original respondents- present appellants and when the appellant authorities did not respond to the representations made by the original petitioner, he approached this Court by filing the writ- petition with the prayers which are referred above. 4.2. In the writ-petition, it was the case of the original petitioner that the action of the appellant authorities in not providing for and implementing the mandatory reservation of minimum 3% of the vacancies to be filled by the physically handicapped persons in the recruitment to the post of Assistant Professor is illegal, arbitrary and contrary to the objectives and spirit of the said Act and in contravention of the Office Memorandum dated 29th December, 2005 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training. It was also his case that such action on the part of the appellants was contrary to the judgment of the Hon'ble Supreme Court in the case of Union of India vs. National Federation of the Blind, (2013) 10 Supreme Court Cases 772.
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4.3. It was further pleaded in the petition by the original petitioner that as his representations were not considered, he had personally met the Chief Executive Officer of the 2 nd appellant who had explained to the original petitioner that reservation for physically handicapped persons would be implemented at the point Nos. 34, 67 and 100 in the recruitment of Assistant Professors in the subject of Physiology. It was pleaded that if there is any circular or resolution issued by the Government of Gujarat for reserving the point nos. 34, 67 and 100 for disabled persons, the same is liable to be quashed. It was also averred in the petition that he was the only physically handicapped candidate who had appeared in the walk-in interview for the post of Assistant Professor in Physiology.
4.4. The aforesaid petition was contested by the present appellants and affidavit in reply was filed on behalf of appellant no.2. The averments taken in the affidavit in reply are quoted as under:
"6. Petitioner has also prayed to hold and declare and direct that the respondent their servants are duty bound to implement the reservation of physical handicap person with the recruitments of Assistant Professor of Physiology pursuant to advertisement dated 09.09.2014 and 23.09.2014 and the extent of minimum 3% as mandated by the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and as interpreted by the Hon'ble Supreme Court, Union India V/s National Federation of Blind Page 6 of 19 HC-NIC Page 6 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER & Ors., 2013 10 SCC 772 by reserving under number 1, 34 and 67 for physically handicapped in the 100 point roster register.
7. It is respectfully submitted that there are 7 medical colleges under the control of Gujarat Medical Education and Research Society, Gandhinagar Viz. GMERS Medical College Sola- Ahmedabad, GMERS Medical College Gotri- Vadodara, GMERS Medical College Gandhinagar, GMERS Medical College Dharapur-Patan, GMERS Medical College Valsad, and GMERS Medical College Junagadh and GMERS Medical College Himmatnagar are proposed. Three post of Assistant Professor of Physiology have been sanctioned in each of these seven Medical Colleges, that way total twenty one posts are sanctioned.
Gujarat Medical Education & Research Society is established by Government of Gujarat. It is mandatory for the Society to implement the reservation policy of Government of Gujarat. This society is implementing the reservation of 3% vacancies to be filled by physically Handicapped person on the recruitment of Assistant Professor, Physiology as per orders of Government of Gujarat.
8. It is respectfully submitted that as per General Administration Department Resolution no. C CRR/102009/93127/G.2 dated 3.08.2011 (refereed by the petitioner at page no.119 and 120), three posts at Roster point no.32, 68 and 100 are to be kept reserved for physically Handicapped person. Therefore, no post at Roster point no.1, 34 and 67 are kept reserved for physically handicapped person. Again I submit that this society is established by the Government of Gujarat and reservation policy is to be implemented as per the policy of Government of Gujarat and Government of Gujarat had decided to keep roster point no. 34, 68 and 100 for physically handicapped person. Further, it is to clarify here that in pursuance of the Persons with disabilities, Act, 1995 Government of Gujarat has decided to reserve three percent of vacancies in every establishment, vide General Administration Department, Government of Gujarat notification dated 19.02.2000 (referred by the petitioner at page no.91). In pursuance of the notification dated 19.02.2000, Government of Page 7 of 19 HC-NIC Page 7 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER Gujarat had decided the roster point for the recruitment of physically handicapped person vide Government in General Administration Department Resolution dated 05.09.2000 (referred by the petitioner at page no. 92 to 111). As per Annexure- 2 of this Government Resolution, no point was kept reserved for direct recruitment of class-1 and class- 2 post, while point no.34, 68 and 100 was kept reserved for recruitment of class-3 and class-4, vide Annexure-3. Thereafter roster point no.34, 68 and 100 was kept reserved for physically handicapped person vide Government in General Administration Department Resolution no. CRR/102000/GOI/7/G.2 dated 04.05.2002 (referred by the petitioner at page no.117 and 118). However, as the reservation of physically handicapped person is interlocutory, no roster point is required to be decided and therefore Annexure-3 attached with G.R. dated
05.09.2000 was cancelled and Annexure-2 is to apply for recruitment of class-3 and class-4 post for direct recruitment vide General Administration Department, Government of Gujarat G.R. no. PVS- 1696-878-PART-2/G-4 dated 03.08.2011 (Annexure- 1 enclosed herewith).
9. It is respectfully submitted that, this Society is implementing the reservation policy for physically handicapped person as per the policy and decision of Government of Gujarat and Government of Gujarat has decided to keep point no.34, 68 and 100 for physically handicapped person vide General Administration Department resolution no. CRR/102009/93127/G-2 dated 03-08-2011. Therefore, this Society cannot keep the roster point no. 1, 34 and 67 reserved for physically handicapped person. The Society has to implement the relevant policy in force, from time to time, of the State Government only.
10. It is respectfully submitted that as per oral order of this Hon'ble High Court dated 09.12.2014, one post of Assistant Professor of Physiology has been kept vacant. However, it is submitted that, as explained in detailed in point no. 6 above, no reservation for physically handicapped person applies to the post of Assistant Professor of Physiology as the total of post sanctioned in this cadre is 21 and the first point for reservation of physically handicapped is reserved at point no.34.
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Hence, no post is required to be kept vacant for this cadre and therefore it is requested to give permission to fill up post which is kept vacant as per Hon'ble High Court order.
11. It is respectfully submitted that, the petitioner is not entitled to get appointment of Assistant Professor of Physiology. Government of Gujarat has decided to increase the number of seats of medical students for the Medical Colleges. To cope up with this target, Gujarat Medical Education & Research Society has been established by the Government of Gujarat to start new medical colleges in the State. New Medical colleges are being started only after the permission is given by the Medical Council of India. Therefore, it will adversely affect in getting permission to establish new medical colleges in the State. Under the circumstances, the Hon'ble High Court is requested to give the permission to fill up the post of Assistant Professor, Physiology which is kept vacant as per Honble High Court order.
12. It is also submitted that as the contention of the petitioner is regarding G.R. of General Administration Department Government of Gujarat dated 03.08.2011 in which reservation for physically handicapped person is kept at point no. 34, 68 and 100. It is a policy matter to be decided by Government of Gujarat."
5. With reference to the above-said pleadings on record and the arguments advanced by learned counsel for the parties, the learned single Judge, vide judgment dated 9th July, 2015, allowed the petition by declaring the Government Resolution dated 3rd August, 2011 as arbitrary, irrational, unreasonable and violative of Articles 14 to 16, 19 to 21 and 39 of the Constitution of India and thereby quashed the said Government Resolution. The learned single Judge also issued direction to the Government to issue fresh Government Resolution providing for Page 9 of 19 HC-NIC Page 9 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER point nos. 1,34 and 67 in the 100 point roster for physically disabled on point nos. 1,34 and 67 in the 100 point roster and further declared that the original petitioner is entitled to appointment as Physically Handicapped candidate in SEBC category, as Assistant Professor of Physiology with all consequential benefits. Further direction was also issued to appoint the respondent-original petitioner as Associate Professor in Physiology within a period of 4 weeks from the date of receipt of the said judgment.
6. In this Letters Patent Appeal, it is contended by learned Government Pleader Ms. M.L. Shah, assisted by Shri D.M. Devnani, learned Assistant Government Pleader, appearing for the appellants that the appellants are adopting the Government Resolution dated 3rd August, 2011 and effecting the reservation of 3% as contemplated under the provisions the said Act, by considering the physically challenged persons on points 34, 68 and 100 in 100 point roster, It was contended that the respondent-original petitioner had applied for the post of Assistant Professor in Physiology, wherein, there were only 21 sanctioned posts and therefore, the question of reservation does not arise at all. It was further contended that the Government had issued Government Resolution dated 3rd August, 2011, by fixing the roster points for extending the benefit of reservation to the physically disabled persons after due discussion and deliberation and just because an individual Page 10 of 19 HC-NIC Page 10 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER is not able to derive the benefit of the same having regard to the total number of sanctioned posts, it cannot be the ground to quash the very Government Resolution.
7. On the other hand, it is submitted by learned counsel Shri K.B. Pujara, appearing for the respondent-original petitioner that 3% reservation which is contemplated under the provisions of the said Act is horizontal reservation and there is no reason for fixing the roster point at 34, 68 and 100 in the Government Resolution which runs contrary to the Office Memorandum issued by the Government of India which fixed the roster at 1, 34 and 67 in 100 point roster for the persons with disabilities. It is further contended by the leaned counsel that if there is no vacancy for physically handicapped person out of 21 posts which were notified for Assistant Professor of Physiology, the appellant authorities are defeating the very purpose of reservation contemplated under the said Act which is a beneficial piece of legislation to the physically challenged persons.
8. Having heard the learned counsel for the parties, we have given our thoughtful consideration to the findings recorded by the learned single Judge and other materials placed on record.
9. Reservation provided in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is enacted with avowed object to place the disabled persons on par with other citizens of India in respect of Page 11 of 19 HC-NIC Page 11 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER education, employment and vocational training and employment. It recognizes the policy of the Government of providing 3% reservation. As the learned single Judge has detailed the objectives of the enactment, we do not wish to repeat the said objectives in this order.
10. Before we further proceed further, it is profitable to quote the observations made by the Hon'ble Supreme Court on the subject in the case of Union of India vs. National Federation of the Blind, (2013) 10 Supreme Court Cases 772, which read as under:
"13. COMPUTATION OF RESERVATION:
Reservation for persons with disabilities in case of Group C and Group D posts shall be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group C posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group C posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group D posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Page 12 of 19 HC-NIC Page 12 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER Group D posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified posts may exceed 3 percent.
14. Reservation for persons with disabilities in Group A posts shall be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment. The same method of computation applies for Group B posts.
15. EFFECTING RESERVATION-MAINTENANCE OF ROSTERS:
(a) all establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining/effecting reservation for the disabled - one each for Group A posts filled by direct recruitment, Group B posts filled by direct recruitment, Group C posts filled by direct recruitment, Group C posts filled by promotion, Group D posts filled by direct recruitment and Group D posts filled by promotion.
(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points :
1st Block - point No.1 to point No.33 2nd Block - point No.34 to point No.66 Page 13 of 19 HC-NIC Page 13 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER 3rd Block - point No.67 to point No.100
(c) Points 1, 34, and 67 of the roster shall be earmarked reserved for persons with disabilities - one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts.
(d) Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled.
The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 persons with disabilities.
(e) There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block.
(f) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.
(g) If the number of vacancies in a year is such as to cover only one block or two, discretion as to which category of the disabled should be accommodated first shall vest in the head of the establishment, who shall Page 14 of 19 HC-NIC Page 14 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER decide on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc.
(h) A separate roster shall be maintained for Group C posts filled by promotion and procedure as explained above shall be followed for giving reservation to persons with disabilities. Likewise two separate rosters shall be maintained for Group D posts, one for the posts filled by direct recruitment and another for posts filled by promotion.
(i) Reservation in Group A and Group B posts is determined on the basis of vacancies in the identified posts only. Separate rosters for Group A posts and Group B posts in the establishment shall be maintained. In the rosters maintained for Group A and Group B posts, all vacancies of direct recruitment arising in identified posts shall be entered and reservation shall be effected the same way as explained above.
16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT
(a) Reservation for each of the three categories of persons with disabilities shall be made separately. But if the nature of vacancies in an establishment is such that a person of a specific category of disability cannot be employed, the vacancies may be interchanged among the three categories with the approval of the Ministry of Social Justice and Empowerment and reservation may be determined and vacancies filled accordingly.
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(b) 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.
(c) In the subsequent recruitment year the backlog reserved vacancy shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that disability is not available, it may be filled by interchange among the three categories of disabilities. In case no suitable person with disability is available for filling up the post in the subsequent year also, the employer may fill up the vacancy by appointment of a person other than a person with disability. If the vacancy is filled by a person with disability of the category for which it was reserved or by a person of other category of disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with disability in the subsequent recruitment year, reservation shall be carried forward for a further period up to two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year."
11. In view of the above observations and the judgment of Page 16 of 19 HC-NIC Page 16 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER the Hon'ble Supreme Court on the subject in the case of R.K Sabharwal and others vs. State of Punjab and others (1995) 2 SCC 745, the learned single Judge held that policy of the Government contained in the Government Resolution dated 3rd August, 2011 in so far as it provides for the points 34, 68 and 100 for persons with disabilities in the 100 point roster instead of providing points 1, 34 and 67 in the 100 point roster, is absolutely unreasonable and arbitrary. It is held by the learned single Judge that such policy frustrates the very object of the Act of 1995. Upon considering the contentions of the learned Government Pleader appearing for the appellants, we are also of the view that for effecting reservation divided into 3 blocks, being beneficial legislation, the authorities ought to have given the benefit by fixing the roster point at 1, 34 and 67 instead of 34, 68 and 100. Such points at 1, 34 and 67 are the points which are exactly provided in the Government of India Office Memorandum dated 29th December, 2005. The said Office Memorandum was amended subsequently, but with regard to the roster points, there is no change. Further reservation being horizontal reservation, keeping in mind the objectives of the Act, we are of the view that there is no reason for reserving points at 34,68 and 100 instead of 1, 34 and 67. Taking into consideration the fact situation which arises in this case, only 21 posts were notified in the branch of Physiology for Assistant Professor and not a single post was reserved for Page 17 of 19 HC-NIC Page 17 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER physically handicapped persons. Such physically handicapped persons like the original petitioner can hardly get an opportunity to seek consideration in the reserved vacancy if the appellants' stand is to be accepted. In view of the observations made by the Hon'ble Supreme Court in the above-referred case and the Office Memorandum issued by the Government of India containing the guidelines for implementation of reservation as contemplated under the said Act to the extent of 3% reservation, which is held to be horizontal reservation, there is no reason for deviating such point in three blocks in the roster for effecting reservation by not providing point 1, 34 and 67 in 100 point roster, which is prepared for the purpose of implementation of reservation for the physically handicapped persons.
12. Having regard to the aforesaid reasons and the reasons recorded by the learned single Judge in the impugned judgment, we are in agreement with the view taken by the learned single Judge and we do not find any error committed by the learned single Judge.
13. However, as no reserved vacancy is notified in the advertisements dated 9.9.2014 and 23.9.2014, we deem it appropriate to modify the judgment of the learned single Judge, by directing the appellant no.2 to examine whether the respondent-original petitioner could have come up for selection, had point no.1 in 100 point roster been reserved for Page 18 of 19 HC-NIC Page 18 of 19 Created On Thu Aug 17 01:00:40 IST 2017 C/LPAST/725/2016 CAV ORDER physically challenged. If he was to come up in selection, in such event, the appellant no.2 is directed to consider his case for appointment in one of the existing vacancies or in the next arising vacancy, if not already appointed. We make it clear that he is eligible for all the benefits from the date of his appointment only. The Letters Patent Appeal is partly allowed.
14. In view of the disposal of the Letters Patent Appeal, the connected Civil Application (Stamp Number) No. 5325 of 2016 does not survive and the same is disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) pirzada Page 19 of 19 HC-NIC Page 19 of 19 Created On Thu Aug 17 01:00:40 IST 2017