Uttarakhand High Court
Chinkal Choudhary vs State Of Uttarakhand And Another on 19 March, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No.68 of 2023
Chinkal Choudhary ........Petitioner
Versus
State of Uttarakhand and another ........Respondents
With
Writ Petition (S/B) No.85 of 2023
Kshitij Singh Rawat ........Petitioner
Versus
State of Uttarakhand and another ........Respondents
With
Writ Petition (S/B) No.96 of 2023
Rekha & others ........Petitioners
Versus
State of Uttarakhand and another ........Respondents
Present:-
Mr. Sandeep Tiwari, learned counsel for the petitioners in WPSB
Nos.68/2023 & 85/2023.
Mr. Abhijay Negi and Ms. Snigdha Tiwari, learned counsel(s) for the
petitioner in WPSB No.96/2023.
Mr. S.S. Chaudhary, learned Brief Holder for the State.
Mr. Ashish Joshi, learned counsel for respondent no.2-Commission.
JUDGMENT
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Hon'ble Pankaj Purohit, J. (Oral) Since all these writ petition(s) involve similar controversy, therefore they are being heard and decided together. For the purpose of brevity facts of Writ Petition No.68 of 2023 (Chinkle Choudhary) are taken up for consideration of the controversy.
22. The writ petition has been filed by the petitioner challenging the advertisement dated 10.08.2021 (Annexure no.1) and notification dated 30.11.2022 (Annexure no.8) issued by respondent no.2, whereby four posts of "Physically Handicapped" category (now termed as "Differently-abled Persons") in the Uttarakhand Combined State (Civil)/Upper Subordinate Services (Mains) Examination-2021 advertised pursuant to the advertisement dated 10.08.2021, have been reverted.
3. The facts shorn-of unnecessary details are that the advertisement was issued by the respondent-Commission on 10.08.2021 for recruitment of different posts of State (Civil)/Upper Subordinate Services Examination. The controversy to be decided by this Court is limited with regard to the reservation meant for the "Differently-abled Persons".
4. Learned counsel for the petitioners submitted that petitioners participated in the Preliminary Examination and after being qualified in the same, they participated in the Mains Examination, the result of which is not declared, however the result of other candidates has been declared. It is further contended by learned counsel for the petitioners that in the impugned advertisement, the details of vacancies have been mentioned in Clause-2 of the advertisement and the vertical as well as horizontal reservation for the vacancies, have also been bifurcated. He further pointed out that the advertisement impugned in the writ petition is incorrect, inasmuch as, the vacancies for each and every post, which is subject matter of this advertisement, have been bifurcated for horizontal reservation but for the persons suffering with disability, who are entitled to get reservation under the "Differently- abled Persons" category, is not as per law. The respondent- Commission acting on the principles of the Division Bench judgment passed in Writ Petition (S/B) No.49 of 2022, Manish Chauhan and another Vs. State of Uttarakhand and another, has reverted 04 posts of Differently-abled Persons Category back to the Government.
3According to learned counsel for the petitioner, it is incorrect, illegal and for deprivation of the petitioners, who would be deprived of the selection due to this arbitrary and unreasonable exercise of power by the respondents.
5. The respondent-Commission, instead of giving horizontal reservation to the person belonging to the "Differently-abled Persons"
category, has further wrongly categorized the post reserved for the "Unreserved Category Candidate/Open Category Candidate" and for "Other Backward Classes' Category". According to learned counsel for the petitioner, this act is arbitrary and illegal for the reason that such categorization i.e. converting vertical reservation to the horizontal, cannot be made by the respondent-Commission. It is brought to the notice of this Court that a similar controversy arose before the Division Bench of this Court in Writ Petition (S/B) No.49 of 2022, Manish Chauhan and another Vs. State of Uttarakhand and another, which was decided by this Court vide judgment and order dated 27.07.2022, wherein the advertisement, impugned in the that writ petition, was quashed and the respondent-Commission was directed to bring out a fresh advertisement strictly in compliance with Rule 11 (4) of the Rights of Persons with Disabilities Rules 2017 in light of the judgment of Apex Court in the case of Indra Sawhney Vs. Union of India and another, reported in AIR 1993 SC 477.
6. Learned counsel for the respondent-Commission has brought to notice of this Court that on a review petition filed by the Commission, the said advertisement was retained and the Commission was directed to comply with the direction given in Manish Chauhan's judgment as referred above. The respondent-Commission subsequently vide corrigendum 23.12.2022 (Annexure no.9) re-advertised the posts reserved for the "Differently-abled Persons Category" with Differently-abled sub-categories.
47. It is the contention of learned counsel for the petitioners that in this selection the posts have been reverted, which were meant for differently-abled persons. According to him, this act of respondent- Commission is illegal simply for the reason that the said notification was issued by the Commission after commencement of the examination but before declaration of the final result. Now, even, the Mains Examination has already been conducted by the Commission.
8. The writ petitions were contested by the Commission by filing a detail counter affidavit, in which it has been mainly contended that the impugned examination, pursuant to the advertisement dated 10.08.2021, has already been conducted and four posts meant for the candidates belonging to "Differently-abled Persons Category" have been reverted to the Government by the Commission in light of the judgment rendered by Division Bench of this Court in case of Manish Chauhan (supra). It is the contention of learned counsel for the respondent-Commission that the entire on-going examination process should not be vitiated only for that very reason.
9. The State Government has also filed its counter affidavit and contended that the posts which have been reverted by the Commission to the State Government belongs to "Differently-abled Persons Category", which would be filled up in the upcoming recruitment process as per Rules.
10. Having heard learned counsel for the parties and on perusal of the material available on record, it appears that decision of the Commission for reverting the posts belonging to the "Differently- abled Persons Category" is highly arbitrary for the reason that it was done by Commission in the garb of compliance of judgment and order passed by the Division Bench, in the case of Manish Chauhan (supra). The action of the Commission appears to be illegal, inasmuch as, by permitting so, the persons, who participated in the selection process under the said category would be deprived of selection.
511. Moreover, the controversy has to be viewed in light of the provisions of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to be "the Act of 2016") which provides for reservation for persons belonging to "Differently-abled Persons Category" i.e., persons suffering from disability. Sections 33 and 34 of the Act of 2016 are quoted hereinbelow for ready reference:-
"33. Identification of posts for reservation.-The appropriate Government shall-
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts;
and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years.
34. Reservation.-(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a),
(b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may 6 be specified in such notifications exempt any Government establishment from the provisions of this section.
(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.
(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.
12. From perusal of the aforesaid provisions, it is clear that the State Government is required to identify the post in the establishment which can be held by respective category of person with benchmark disability in respect of vacancy, in accordance with provision of Section 34 of the Act of 2016. Section 34 of the Act provides reservation not less than four percent of the total number of vacancies in the cadre strength in each group of posts meant to be filed up with persons with benchmark disabilities, of which one percent each shall be reserved for persons with benchmark disabilities under Clauses (a), (b), (c) and (d) of sub-section 1 of Section 34 of the Act of 2016.
13. While going through the mandate of the Act of 2016 and viewing the controversy in that angle, the decision of the respondent- Commission in reverting the post to the State Government, runs contrary to the intent and spirit of the Act of 2016. Therefore the same cannot be sustained.
14. In this view of the matter, this Court is of the considered opinion that the impugned notification dated 30.11.2022 (Annexure 7 no.8), whereby 04 posts reserved for the "Differently-abled Persons"
were reverted to the State Government, is hereby quashed. The respondent-Commission is directed to proceed with the selection process and result in respect of 04 posts for the Mains Examination shall be declared immediately but not later than 15 days from the date of production of certified copy of this order.
15. Since these petitions are based on the similar set of facts and law, hence, all the writ petitions are allowed. Petitioners shall be considered and recommended in accordance with their respective merit in the Mains Examination, needless to say, in their respective category of "Differently-abled Persons."
16. No order as to costs.
17. Pending application(s), if any, stands disposed of accordingly.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
19.03.2024
AK