Uttarakhand High Court
Mohd. Tahir vs Honble High Court Of Uttarakhand And ... on 9 January, 2018
Bench: K.M. Joseph, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No 04 of 2014
Mohd. Tahir .............Writ Petitioner
Versus
Hon'ble High Court of Uttarakhand and others
...........Respondents
Mr. B.D. Uapadhaya, Senior Advocate, assisted by Mr. Naveen Tiwari and
Mr. Sunil Uapadhaya, Advocates present for the writ petitioner.
Mr. Pankaj Miglani, Advocate present for respondents no. 1.
Mr. Narayan Dutt, Brief Holder present for respondent no. 2.
Mr. B. D. Kandpal, Advocate, present for respondent no. 3.
Mr. Devesh Upreti, Advocate, present for respondents no. 4 to 8.
Coram : Hon'ble K.M. Joseph, C. J.
Hon'ble U.C. Dhyani, J.
Dated: 9th January, 2018 K.M. Joseph, C. J. (Oral) The writ petition originally contained the following reliefs:
(i) Issue a writ, order or direction in the nature of certiorari for quashing the letters dated 12.10.2011 and letter dated 18.11.2011 issued by respondent no. 1 (as contained in Annexure No. 11 and & 12 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus to declare the act of respondent no. 2 & 3 of withdrawing the benefit of reservation given in terms of Section 33 of Parliamentary Act No. 1 of 1996 to physically disabled persons in the selection for the post of Civil Judge (Junior Division), as arbitrary and illegal.
(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 3 to hold interview of the petitioner and recommend his name for appointment against one of the 02 reserved posts for physically disabled persons with a further direction to respondent no.2 to appoint the 2 petitioner from due date i.e. the date when other selected persons were appointed, with all consequential benefits including seniority.
(iv) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to provide reservation to physically disabled persons for appointment to the post of Civil Judge (Junior Division) and/or other judicial posts till establishment of judiciary is exempted by the appropriate government by notification from application of Section 33 of the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
2. Subsequently, by way of an Amendment Application, which was allowed on 02.06.2015, relief nos. (i-a) and (i-b) were added, which read as follows:
(i-a) To set aside the appointments of General candidates on the post of Civil Judge (Junior Division) against vacancies reserved for physically disabled persons, in the selection made pursuant to advertisement dated 14.05.2011.
(i-b) To issue a declaration that in the absence of any exemption by the appropriate Government, as contemplated in the proviso to Section 33 of Parliamentary Act No. 1 of 1996, Rule 12 of Uttarakhand Judicial Service Rules, 2005 cannot be invoked for denying benefit of reservation.
3. Very briefly put, the case of the petitioner is as follows:
i. Petitioner is a Law Graduate, enrolled with the Uttarakhand Bar Council in the year 2008 and practicing in the District Court. The right leg of the petitioner has been afflicted by Polio due to which he feels difficulty in walking. The District Medical Board has certified his disability at 54 %. Apart from that, he has no other ailment or medical problem and he is fit, both, physically and mentally.
ii. The first respondent informed the 2nd respondent (State of Uttarakhand) on 19.02.2011 that there are 18 vacancies of Civil 3 Judge (J.D.). The requisition was sent. Another requisition was sent on 28.03.2011 to the 2nd respondent whereby 15 more vacancies on the post of Civil Judge (J.D.) were notified. The 2nd respondent sent the requisition as against 33 vacancies to the to the 3rd respondent Public Service Commission (hereinafter referred to as 'the Commission'). The 3rd respondent issued Advertisement on 14.05.2011 for filling up the 33 vacancies. 24 vacancies were unreserved, 01 was reserved for Scheduled Caste category and 08 vacancies were reserved for OBC category candidates. Out of 24 unreserved vacancies, 9 vacancies were earmarked for Uttarakhand Women, 02 for Uttarakhand Rajya Andolankari, 01 post for sports persons and two for physically disabled persons. Petitioner applied and claimed benefit of reservation under physically handicapped category as also OBC category. Petitioner was favoured with an admit card. In the admit card, petitioner's category was mentioned as OBC and the sub-category was mentioned as LOCO. The preliminary examination was held on 21.08.2011. It appears that on 24.08.2011, the 3rd respondent/Commission issued a letter to the 2nd respondent/State to clarify regarding the 2 vacancies reserved for physically disabled persons. The 2nd respondent, in turn, sought clarification from the 1st respondent/High Court to clarify the matter. The High Court initially wrote a letter dated 12.10.2011 (Annexure-11), which reads as follows:
"From Registrar General, High Court of Uttarakhand, Nainital, To Additional Secretary, Personnel, Government of Uttarakhand, Secretariat, Dehradun.
No. 4753/XIII-d-1/Admin. A//2011 Dated: October, 12, 2011 4 Subject: Regarding filling up the posts of PCS(J).
Sir, With reference to your letter no. 1339/XXX-1-10-26- (01)/2010 dated 27.09.2011 on the subject noted above, am directed to say that the appointments in the physically handicapped category be made in light of Rule -12 of the Uttaranchal Judicial Service Rules, 2005, which is reproduced as under:
"No candidate shall be appointed to a post in the Service unless he is in good mental and enjoying good health and free from any physical defect likely to interfere with the efficient performance of his official duty. Before a candidate is finally approved for appointment he shall be required to submit medical certificate of fitness from a Medical Board."
Your are therefore, informed accordingly.
Yours faithfully, (K.D.Bhatt) No. ............/XIII-d-2/Admin. A/2008 Dated : July ... 2011 Copy forwarded for information to:
1. Principal Secretary Law-cum-L.R., Government of Uttarakhand, Dehradun.
2. Secretary, Uttarakhand Public Service Commission, Hardwar Registrar General."
iii. This was followed by letter dated 18.11.2011 (Annexure -12), which reads as follows:
"From, Registrar General, High Court of Uttarakhand, Nainital.
To, Sri Tikam Sing Panwar, Joint Secretary, Department of Personnel, Government of Uttarakhand, Dehradun.
No. 5282/Admin.A/2011 Dated: 18 November, 2011 Subject: "Horizontal reservation for physically handicapped for the posts of PCS (J)."
Sir, 5 Kindly take reference of your letters dated 11.11.2011, 20.10.2011 & 29.9.2011 regarding providing of categories of handicap/disability in the horizontal reservation of seats in PCS (J).
Before coming to the disabilities or the relevant central and state enactments, it is necessary to keep in mind the rules relating to the Uttarakhand Judicial Service Rules, 2005. Rule 12 of the said rules provides that 'No candidate shall be appointed to a post in the service unless he is in good mental and enjoying good health and free from any physical defect likely to interfere with the efficient performance of his official duty. Before a candidate is finally approved for appointment he shall be required to submit medical certificate of fitness from a medical board."
This rule is the touchstone on which all other rules and provisions relating to disability, reservation have to be tested. Any handicap or disability which does not qualify the aforesaid Rule cannot be taken into consideration for the purpose of reservation. This is more as the exigencies of Judicial Service require absolute physical and metal health which do not in any way interfere in the working of a Judicial Officer, whose duty is to adjudicate the matters before him with healthy mind, body and free from any form of deformity.
Section 32 of The persons with disabilities (Equal opportunities, protection of rights and full participation) Act, 1995, hereinafter referred as Central Act, provides that appropriate government (in this case the state government) shall identify the posts in the establishment which can be reserved for the persons with disability and these posts shall be reviewed periodically after every three years.
Section 33 of the Central Act provides that in every establishment three percent seats shall be reserved and one percent each shall be for 1. Blindness or low vision; 2. hearing impairment; 3. locomotor disability or cerebral palsy.
The provision also contains the exemption clause i.e. the appropriate government may having regard to the nature of services exempt any establishment from the provision of Section 33 of the Central Act.
Section 3 of The Uttarakhand [Uttar Pradesh public service (reservation of physically handicapped, dependants of freedom fighters and Ex servicemen) Act, 1993] as amended in 2009., hereinafter referred as State Act, provides for reservation of vacancies in favour of physically handicapped etc. The term physically handicapped has been defined in Section 2 (e) of the State Act (amended in 2009). This provision provides the same categories of disability as have been provided in Section 33 of Central Act, they are 1. Blindness or low vision;
2. hearing impairment; 3. Locomotor disability or cerebral palsy. These disabilities have been defined only in Central Act.
The term Blindness has been defined in Section 2 (b) and term low vision has been defined in Section 2 (u) of the Central Act. The conditions of blindness and low vision are such that person with blindness or low vision is not fit to be appointed as a Judicial Officer as the nature of work requires healthy eyesight for the proper perusal of case files, which includes old and sensitive documents. And moreover the Judicial Officer while sitting in Court even has to act an expert to assess the disputed handwritings and signatures.
The term hearing impairment has been defined in Section 2(I) of the Central Act. The condition of hearing impairment as provided in 6 the Central Act is of such a nature as would result in the non performance of sensitive judicial functions. It is important to mention that one of the primary duties of a judicial officer is to give patient haring to the litigants and their lawyers.
The terms Locomotor disability and cerebral palsy have been defined in Sections 2 (o) and Section 2 (e) of the Central Act. Locomotor disability includes cerebral palsy. The condition of cerebral palsy relates to non-progressive conditions characterized by abnormal motor control posture. The conditions of locomotor disability and cerebral palsy involve such abnormal mental conditions which never be taken fit or normal for a judicial officer.
Both the Central as well as the State Act do not provide for any contingency in which the state government can enlarge the scope of the disabilities (as per Section 33 of Central Act and Section 2 (e) of State Act) for which horizontal reservation has to be given. Moreover Central Act does not confer any power on State Government to issue Government order or issue notification regarding disabilities for which reservations are to be made. Also Section 4 of the State Act does not give power to state government to introduce new disabilities or enlarge the scope of disabilities beyond the State act.
The government order dated 25.3.2011 issued by department of social welfare, Government of Uttarakhand provides for such disabilities which are neither provided in Central Act nor in state Act. The said G.O. is silent about the provision under which the said G.O. has been issued. The said G.O. is in violation of central and state statutory provisions. The G.O. can also not be considered as removing difficulties in order to give effect tot the state Act. Even otherwise there cannot be any interpretation of state act which is inconsistent with the central Act. The said G.O. is not applicable to the Service under PCS (J.).
The Public Service Commission had vide its letter dated 24.08.2011 sought from the Personnel department of government of Uttarakhand the categories of disability for which reservation had to be made. The categories as referred by Public Service Commission were as per Central and State Act. Information was sought from the Personnel department which is the appointing department. The said department is required to provide for the categories of disabilities keeping in mind the aforesaid legal position and Rule 12 of Uttarakhand Judicial Service Rules, 2005 so as to provide physically and mentally fit Judicial Officers, duly certified by the State medical board, keeping in mind the nature and scope of duties to be performed by a judicial officer. And if it is found that none of the disabilities as per central and state act and as defined in central Act is liable to categories for reservation then the Judicial services under PCS (J) be exempted from the purview of Section 33 of Central Act in the light of proviso to Section 33 of the Central Act. You are, therefore, informed accordingly.
Yours faithfully, (K.D.Bhatt) Registrar General No. ............Admin. A/2011 Dated: ........2011 Copy forwarded for information to:
71. Principal Secretary Law-cum-L.R., Government of Uttarakhand, Dehradun.
2. Secretary, Uttarakhand Public Service Commission, Hardwar."
Registrar General"
iv. These two letters are the subject matter of challenge by the petitioner as can be seen from the first relief. The petitioner was declared successful in the matter of passing the preliminary examination result of which was declared on 11.01.2012. All the candidates were required to apply afresh to the Commission and the petitioner also submitted his application. Petitioner also submitted his certificate relating to physical hardship. On 10.04.2012, the main examination was held. The petitioner also appeared in the Computer Proficiency Test held on 13.03.2012 and 14.03.2012 scoring 67 marks out of 100 marks as against the minimum qualifying marks of 40%. On 18.04.2012, the result was declared and 92 candidates were declared successful. The petitioner was not declared successful. There was no one, including the petitioner, belonging to the category of physically disabled persons, who was declared successful. For the General category persons, the cut-off marks was 50%; whereas, for OBC category, it was 40%. Petitioner secured 41.17% marks, yet he was declared unsuccessful, is the petitioner's complaint. He was the only person belonging to the physically disabled category. Petitioner came to realize that the benefit of reservation given to the physically disabled persons has been withdrawn and no person from the said category has been given appointment. Petitioner was informed that there was an amended requisition sent by the State Government, whereby the benefit of reservation to physically disabled persons was withdrawn. According to him, this was not communicated by the Commission. There is no notification also exempting the subordinate judiciary from the application of the 8 Central enactment, namely, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the 1995 Act'). There is no exemption granted under Section 33 of the 1995 Act. On these brief allegations, the petitioner is before us.
4. Pleadings have been exchanged. We have heard Mr. B.D. Upadhaya, learned Senior Counsel assisted by Mr. Sunil Upadhaya, Advocate on behalf of the petitioner; Mr. B.D. Kandpal, learned counsel for the Commission; Mr. Pankaj Miglani, learned counsel for the High Court; and Mr. Devesh Upreti, learned counsel for the respondents no. 4 to 8 ( It be noted that respondent nos. 4 to 8 are candidates, who were selected & appointed and they have been impleaded apparently on the basis that they were the junior-most among the persons who have been appointed and who have to make way for the petitioner, if the petitioner's claim is accepted).
5. Learned Senior Counsel for the petitioner would point out with reference to Sections 32 and 33 of the 1995 Act that there is a bounden duty of the State to provide for reservation to an extent of 3%. He would further draw our attention to order dated 23.01.2011 as the order by which the Government has identified the post of Civil Judge (J.D.) as a post which is available for being filled up by physically handicapped persons under the 1995 Act. He pointed out that persons having problem with both arms (BA), disability of one leg (OL), one arm (OA), partially deaf (PD), partially blind (PB), were identified as persons with disability, who could aspire for the post of Civil Judge (J.D.). Therefore, it could not be argued that there is no identification as required under Section 32 of the 1995 Act. He would point out that once the 9 Government has identified the posts, unless there was an exemption granted under Section 33 of the 1995 Act, it was the duty to give the benefit of reservation to the physically disabled persons like the petitioner. Petitioner, as already noted, has secured more than the minimum required and he was the person, who should have been considered and appointed. He would take us through the letters, which have been sent by the High Court, which we have referred to, and would point out that the reasoning cannot be sustained. As far as Rule 12 of the Uttaranchal Judicial Service Rules, 2005, which is adverted to in the communications by the High Court is concerned, he would point out that there is nothing under the Rule, which would militate against the appointment of persons like the petitioner. The petitioner does not suffer from Cerebral Palsy. He is a victim of Polio. The disease has also already affected his one leg. In no manner, could it be said that it would stand in the way of the discharge of the judicial duties attached to the post of Civil Judge (J.D.) and, yet, it is put against him and he is denied his legitimate right under the Parliamentary Legislation.
6. Per contra, Mr. Pankaj Miglani, learned counsel for the High Court would point out that the entire exercise of identification of the post of Civil Judge (J.D.) as the post which lends itself to be filled up by the physically disabled persons and the disabilities, which would qualify for entitling a person to claim benefit of reservation under the 1995 Act, was done without consultation with the High Court. In this regard, he drew our attention to the judgment of the Apex Court in State of Bihar and another vs. Bal Mukund Sah and others, reported in AIR 2000 SC 1296 and the Judgment of the Full Bench of the Allahabad High Court in Sarika vs. State of U.P. and others, reported in (2005) 4 10 ESC 2378. He would submit that the Court may notice that reservation for the physically disabled persons is inconsistent with the mandate of Rule 12. As long as the Rules stood, it is inconceivable as to how, in the same breath, it could be argued that a person like the petitioner, who is indeed physically disabled, could yet pass muster and be appointed as a Judge. He would, in particular, emphasise the mandate of Article 234 of the Constitution. Article 234 of the Constitution reads as follows:
"234. Recruitment of persons other than district judges to the judicial service Appointment of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State."
7. Mr. Devesh Upreti, learned counsel for the respondents no. 4 to 8 also adopted the same line of arguments. He would, apart from the same, submit before us that the Court may notice that the petitioner has applied as an OBC candidate. In the advertisement as it was issued, there were two vacancies for physically disabled persons reserved, however, for persons amongst the General category. The petitioner secured only 41.17% marks. The minimum marks required for being considered as a General category candidate is 50 %. Therefore, even if everything is held in his favour, the petitioner cannot be entitled to claim the benefit of reservation provided under the advertisement originally having secured only 41.17 % marks, which entitled him to be considered only as an OBC candidate.
8. Mr. B.D. Kandpal, learned counsel for the Commission would, in fact, point out that originally the preliminary examination was held on 21.08.2011. Within three days, i.e., on 11 24.08.2011, the Commission wrote a letter to the Government seeking clarification in respect of physically disabled persons. The Government, in turn, wrote to the High Court. The High Court made its stand clear, as is clear from the communications, which we have referred to. Thereafter, apparently, the Government accepted the version of the High Court and wrote on 06.01.2012 with revised requisition. He points out that in the revised requisition, there is no provision for any reservation for the physically disabled persons. The result of the preliminary examination was declared on 11.01.2012. Thereafter, on 18.04.2012, the written examination was held and the result of the same was published on 26.05.2012. The petitioner secured 41.17% marks. 8 posts were reserved for OBC category. As per the norms of the Commission, applying the ratio of 1:3 for the purpose of calling candidates for interview, 24 persons alone were entitled to be called for the interview. Therefore, the petitioner, who had secured only 41.17% marks, though secured the minimum required, did not secure sufficient marks entitling him to be called for the interview. Therefore, the Court may notice that though originally there were two vacancies reserved for the physically disabled persons and it is as against General category candidates, the same was not persevered with in the revised requisition. Therefore, even going by the original reservation, as contemplated in the advertisement, the petitioner not having secured 50% marks, which was the minimum marks fixed for the General category candidates, he would not be entitled to vie for consideration as against the vacancy which was reserved as against the General category candidates. Mr. B. D. Kandpal would point out that had he secured 50% marks in the main examination and had the original vacancies continued, then may be the petitioner may have 12 been considered even though he belonged to the OBC category under the physically disabled category.
9. In reply, Mr. B.D. Upadhaya, learned senior counsel for the petitioner would submit that the Court may notice Rule 6 of the Uttaranchal Judicial Service Rules, 2005, which reads as follows:
"6. Reservation-
Recruitment for the candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and other categories belonging to the State of Uttaranchal shall be in accordance with the orders of the Government in force at the time of recruitment."
10. He would submit that the purport of Article 334 of the Constitution of India is that no rule could be made by the Government affecting the member of a subordinate judiciary without consulting the High Court. In this case, the Rules of 2005 contained Rule 6, which, in turn, provides that the policy of reservation followed by the Government in regard to various categories, inter alia, will apply for appointment. Therefore, there is scope for applying Article 334 as such.
11. We would think that the petition must fail primarily on one ground and hence we need not go into the other aspects of the matter.
12. In the advertisement, which was originally issued by the Commission, as against General category, two vacancies were reserved for physically disabled persons. The case of the petitioner is essentially premised on the said reservation. Admittedly, after the preliminary examination, in view of the doubts entertained by 13 the Commission, there were communications exchanged between the Government and the High Court. The High Court not only pointed out Rule 12 of its Rules, but also took objection to the manner in which the post of Civil Judge (J.D.) was identified as a post, which could be filled up by way of reservation under the 1995 Act. Thereupon, the Government has decided apparently to drop the idea, which is evident from the revised requisition, which was sent and which did not contain provision for reservation for the physically disabled persons. On the basis of the same, the selection proceedings proceeded and culminated in the appointments being made. Petitioner having secured only 41.17 % marks could not make it on merit and it is, therefore, that he resorts to the vacancy being reserved and the complaint that the rules of the game had been changed midway. In this regard, we must notice that, even assuming everything in favour of the petitioner, the fact remains that the petitioner secured only 41.17% marks in the written examination. If he is to qualify as a General category candidate, he should have secured not less than 50% marks. About this, there is no quarrel. Not having secured 50% marks, he could, therefore, consider himself only as a candidate belonging to the OBC category. In the advertisement, as it originally stood and ignoring the subsequent developments which led to the revised requisition, wherein there is no provision for reservation, the reservation for physically handicapped candidates is meant only for the General category candidates. We will even proceed on the basis that a person like the petitioner could still aspire, but the question would be whether he could aspire if he did not secure 50% marks, without which, he cannot qualify as a General category candidate. Though the argument of Sri Devesh Upreti is definitely that, having regard to the terms of the advertisement, only a person belonging to General category could aspire for the 14 post reserved for the physically disabled persons and accepting the argument of the learned counsel for the Commission that it has been its practice that persons belonging to OBC category also could be considered for the benefit of reservation under the physically disabled category provided they secure the minimum marks for being considered as a General category candidate, the petition must necessarily fail, as admittedly he has secured only 41.17 % marks. On this short ground, we would think that the petition must fail.
13. Learned counsel for the petitioner no doubt referred to the admit card. The admit card issued for the purpose of the preliminary examination did, indeed, described the petitioner as an OBC as also as a person suffering from LOCO disease. There is a case for the High Court that the contents of the Card are only reproduction of the application form of the petitioner, which is prepared on computer and that may not advance his case; but, we have already proceeded on the basis that, if the petitioner had in fact secured 50% marks, it may have entitled him to at least stake a definite claim, provided the other questions are all answered in his favour, for being appointed as a Civil Judge (J.D.) under the physically disabled category.
14. There is another aspect, which we must not ignore. This is the 3rd round of litigation. In the 1st writ petition being WPSB No. 193 of 2012, the following Order was passed:
"Permission is granted to withdraw the writ petition with liberty to re-approach this Court in the event the roster point for locomotor disability was to be filled up by the advertised posts.
The writ petition is, accordingly, dismissed."15
15. The petitioner filed another writ petition being Writ Petition (S/B) No. 377 of 2012, in which the following order was passed:
"33 candidates were selected in the selection process. Annexure 13 to the writ petition is the select list. Without impleading any of those candidates, who, by virtue of that select list, have been declared to have been selected, the select list has been challenged in this writ petition. On that ground alone, the writ petition is dismissed. This order will not prevent the petitioner to re- approach the Court."
16. We may notice that in fact the earlier writ petition was withdrawn and liberty was given only conditioned upon that, "in the event, the roster point for locomotor disability was to be filled up by the advertised posts". We have noticed that apparently what we can make out of the said order appears to be that, on the basis of the correspondence indulged in by the Commission, the Government and the High Court, the revised requisition was sent on 06.01.2012, which did not contain provision for reservation. What it contemplated is a situation, where there was a change and the reservation was provided for, which would entitle the petitioner to approach the Court. Such a change has not taken place and it cannot be in the region of doubt that the selection proceeded on the basis of revised requisition, which did not provide for reservation for physically disabled persons, and culminated in the appointments of persons. It may be true that, again when the writ petition was filed, it was found afflicted with the fatal blemish of non-impleadment of 33 persons, who were appointed, and, on that ground, it was rejected and, again, the right was given to re- approach the Court. Learned senior counsel for the petitioner would point out that, in the 2nd round, it was admitted and it was not dismissed on the ground, which would have been relevant 16 under the first order. But, we would think that, in the 3rd writ petition, which is the present writ petition, we cannot ignore the first order, which was passed, and the 2nd petition appears to have been dismissed noticing the contingency, which related to the non- impleadment of necessary parties alone.
17. We would, therefore, think that the writ petition must fail, as we have found. Accordingly, the writ petition will stand dismissed without any order as to cost. Needless to say that we have not gone into the other questions which have been raised.
(U.C. Dhyani, J.) (K.M.Joseph,C. J.)
09.01.2018 09.01.2018
Kaushal