Jammu & Kashmir High Court
Jyotsna Mengi vs Chairman, Psc And Ors. on 11 July, 2006
JUDGMENT Y.P. Nargotra, J.
1. The J & K Public Service Commission invited applications for the Preliminary Examination of J & K Combined Services for direct recruitment to 124 posts in eight described services vide its Notification No. PSC/Exm-01/66 dated 28.12.2001. The advertisement notice also provided that one post each in J & K Social Welfare (Gazetted) Service and J & K Accounts (Gazetted) Service stands earmarked for selection of candidates from the category of Physically Handicapped/disabled persons in terms of Govt. Order No. 62-SW of 2001 dated 13.3.2001. The petitioner being eligible applied and competed in the Handicapped Category. On the basis of Preliminary Examination conducted by the Commission, she succeeded to find berth in the merit/selection list and was declared qualified in terms of Notification No. PSC/Exm-2002/65 dated 13.11.2002. The Commission vide its Notification No. PSC/Exm-02/69 dated 27.11.2002 invited applications from the candidates who had been declared to have qualified for the Mains Examination on the basis of result of Preliminary Examination, for the J & K Combined Services (Main) Examination, 2002. The number of vacancies to be filled up was notified as follows:
a. Junior Scale of KAS (03 Posts)
i. Open Competition = 01
ii. Scheduled Tribe Category = 01
iii. Resident of Backward Area Category = 01
b. Other Services (135 Posts)
i. Open Merit Competition = 83
ii. Scheduled Caste Category = 11
iii. Scheduled Tribe Category = 11
iv. Resident of Backward Area Category = 25
v. Line of Actual Control Category = 04
vi. S.L.C. Category = 01 (Backlog)
Total = 138
Service and category-wise breakup of these vacancies is as under:
A. Jr. Scale KAS
Open RBA SC ST LAC SLC Total
01 01 - 01 - - 03
B. Other Service
S.No Service Open RBA SC ST LAC SLC Handicapped Total
(Horizontal
Reservation)
1. Police 24 07 03 04 01 01 - 40
(Backlog vacancy)
2. Excise & 06 02 01 01 - - - 10
Taxation
3. Cooperative 02 01 01 - - - - 04
4. Accounts 10 02 01 01 - - 01 14
5. Community 17 05 02 02 01 - - 27
Development &
National Extn.
6. Tourism 01 - - - - - - 01
7. Social Welfare 23 07 03 03 02 - 01 38
8. Transport - 01 - - - - - 01
2. One post each in J & K Social Welfare (Gazetted) Service and J & K Accounts (Gazetted) Service was earmarked for selection of candidates from the category of Physically Handicapped/disabled persons in terms of Govt. Order No. 62-SW of 2001 dated 13.3.2001. It was further provided by the notification that since only horizontal reservation was available for the physically handicapped/disabled persons, therefore, the two vacancies shall be filled up from the overall availability of the posts in the services of Social Welfare and Accounts.
3. The petitioner having qualified in the Preliminary Examination, applied and competed in the Mains Examination under the Handicapped Category against the said two posts, each reserved in the Social Welfare Department and Accounts Department. She was declared successful in the examination. She was one of the candidates who as per the merit position in the Mains Examination were called for Viva-Voce Test. The overall merit obtained by the petitioner qua the other three candidates as per the record of Commission was as follows:
Sr.No. Name Points Obtained 1. Riyaz Ahmad Beigh 1234 2. Ajaz Ahmed 1219 3. Zia-ul-Rehman 1171 4. Jyotsna Mengi 1155
4. As there were only two posts available, so the Commission selected the first two candidates for appointment as per their merit and the petitioner thus was not selected, she being in the 4th position in the merit list of Handicapped Category candidates. However, later on the Commission on finding that the category certificate submitted by one of the selected candidates, namely, Ajaz Ahmed was fabricated one, cancelled his candidature. Aggrieved by the cancellation of his candidature, said Ajaz Ahmed filed a writ petition in this Court, which, however, came to be dismissed and the Commission was directed to lodge FIR against him. The Commission was also directed to recommend the name of next candidate in the merit list for appointment. Accordingly, the Commission recommended the name of candidate on the 3rd position for appointment, whereas the petitioner improved her position and came to occupy the third position in the merit list due to the ouster of said Ajaz Ahmed.
5. Being aggrieved of her non-selection for appointment by the Commission, the petitioner filed the present petition.
6. The case of petitioner put shortly is that against the total number of vacancies, i.e., 138 posts, the posts required to be reserved at 3% quota for the category of Handicapped/disabled persons were to be 3 or 4 and, therefore, the reservation of two posts under the said category is bad in law. The contention of Mr. U.K. Jalali, learned Counsel for petitioner is that under the provisions of Jammu & Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1998, the reservation of not less than 3% in the vacancies advertised was to be provided for the physically handicapped/disabled persons. According to him, as the total number of posts was 138, for which the recruitment was to be made, the number of posts required to be earmarked under the category of Handicapped/disabled persons should have been four or in any case not less than three posts. However, the contention of Mr. D.C. Raina, learned Counsel for PSC is that the Commission being the selecting agency could not on its own increase the number of vacancies reserved for handicapped/disabled persons. According to him, since two posts under the said category were requisitioned for selection, therefore, the Commission accordingly made the selection strictly as per the merit of the candidates. The contention of Mr. B.S. Slathia, learned AAG for the State, is that 3% reservation of the posts was to be provided for only in the departments notified by the Government. Therefore, for working out the quota in the reserved category of Handicapped/disabled persons, the vacancy position of each such department, for which the recruitment was to be made, was required to be taken into consideration, and adopting the said principle only two posts could be in the share of Handicapped/Disabled Category candidates; so the same were notified and requisitioned to the Public Service Commission for selection. I have considered the respective contentions of learned Counsel for the parties. For providing equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to the persons with disabilities, the State has enacted Jammu & Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1998 (hereinafter called the Disability Act), in which provision has been made for giving representation to the persons suffering from physical disabilities in the employment under the Government. Section 21 of the Disability Act provides for identification of the posts which can be reserved for the persons with disabilities. It reads as follows:
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 developments in technology.
The reservation of posts identified for physically handicapped/disabled persons is provided by Section 22 of the Disability Act, which reads as follows:
22. Reservation of posts. - The Government shall appoint in every establishment such percentage of vacancies not less than three percent, for person or class of persons with disabilities of which one percent, each shall be reserved for persons suffering from:
(i) blindness or low vision;
(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.
7. From the bare reading of Section 22, it is manifest that the Government is obliged to provide 3% reservation of posts identified under Section 21 in every establishment for the persons or class of persons, who suffer from the disabilities described in the section.
8. The proviso to Section 22, however, empowers the Government to exempt any establishment from the provisions of this section having regard to the type of work carried on in any such department or establishment by a notification. The 'establishment' as per the definition provided in Section 2(f) of the Disability Act, means a Corporation established by or under a Central or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government Company as defined in Section 17 of the Companies Act, 1976 and includes departments of a Government. Therefore, reservation envisaged by Section 22 applies to each department of the Government. The Government under proviso to Section 22 is empowered to exempt a department from the purview of the section. In exercise of the power vested by Section 21, the Government of Jammu & Kashmir vide Govt. Order No. 62-SW of 2001 dated 13.3.2001 has notified the posts of Gazetted and Non-Gazetted cadres, identified by an Expert Committee, for appointment of physically handicapped/disabled persons to give effect to the 3% reservation by direct recruitment only in the departments described in Annexure 'X' to the order. Under Section 54 as the State Government stood empowered to make rules by notification for carrying out the provisions of Disability Act, therefore the Government in the said order also provided for the guidelines for effective implementation of the reservation in favour of physically handicapped persons as per Annexure 'B' to the order. As per annexure 'X' to the above said Government order, except the Department of Police, the remaining 7 departments, for which the recruitment was to be made by direct recruitment on the basis of selection to be made by the Public Service Commission, are the departments in which posts have been notified for providing reservation to the handicapped/disabled persons. The manner in which the vacancies available for working out 3% reservation are to be calculated, the guidelines provided as follows:
CALCULATION OF THE NUMBER OF VACANCIES:
3.1 Although the recruitment of physically handicapped persons would be only against posts identified as suitable for them, while computing the vacancies to which the reservation would apply, the total number of vacancies occurring in the said Gazetted and Non-Gazetted would be taken into account i.e., the 3% shall have to be computed on the basis of vacancies occurring in both the identified and non-identified posts in Gazetted and Non-Gazetted.
3.2 All Heads of Departments shall maintain a separate 100 point REGISTER for this purpose, in which each cycle of 100 points shall be divided into three blocks, comprising the following poinsts:
1st Block - point No.1 to point No.33 2nd Block - point No.34 to point No.67 3rd Block - point No.68 to point No.100 3.3 All the vacancies reported by the different appointing authorities will be entered in this Register for each Group of posts (Gazetted or Non-Gazetted). The account shall be maintained on year to year basis separately for Gazetted and Non-Gazetted posts/services and will be closed annually. For each Block of Vacancies, there shall be reserved one vacancy for the physically handicapped posts/grader identified as suitable for one or more of the categories of the physically handicapped i.e. when there are 33 vacancies in a Group, one vacancy is to be reserved for the physically handicapped. After computing all the vacancies and determining the reservation for the handicapped, blockwise, in the manner indicated above, the Head of Department will be required to distribute these reserved vacancies for the handicapped among different appointing authorities in the light of availability of vacancies in the identified categories under the various appointing authorities. Care should also be taken that 3% reservation for physically handicapped is, as far as possible, distributed equally among the three sub-categories i.e. the blind, the deaf and the Orthopaedically handicapped, consistent with the appropriate identification. If the number of vacancies is such as to cover only one block or two, discretion as to which category of the handicapped should be accommodated first should vest in the Head of the Department. He will besides this on the basis of the nature of the post, the level of representation of the specific handicapped category in the concerned grade/post and the availability of candidate of a particular handicapped category, in so far as that can be ascertained.
3.4 In the event of the reservation not being utilized in the same block in which it fell due, it shall be carried forward to the next block or blocks as the case may be in the same year. In such exigencies where the reservation could not be utilized in any of the blocks during the year, the shame shall be carried forward in the subsequent three recruitment years at the end of which the reservation shall be deemed to have lapsed.
3.5 Mutual exchange in the event of non-availability of specific handicapped category is permissible.
9. The guidelines have given the following illustration:
In an organization, the following vacancies in Gazetted in various categories of posts, as indicated against each, are to be filled:Clerks 40
Steno Gr. D 20
Staff Car Driver 15
Sc. Assistant 35
Research Asstt. 15
Lab. Assistant 10
Total No. of posts: 135
Out of these posts, only Clerks, Steno Gr. D and Laboratory Assistant in that organization are identified as fit to be manned by the physically handicapped candidates, whereas the other categories are not identified. Both the Clerks and Steno Grade D are identified as suitable for Orthopaedically handicapped (one arm, one leg) and blind and partially blind; whereas the post of Laboratory Assistant is identified for Orthopaedically handicapped (one arm, one leg) and deaf and partially deaf. In the present case, while working out the reservation for the physically handicapped, the total number of vacancies of 135 has to be taken into account (though the vacancies in the identified post are only 70). Accordingly, the number of vacancies reserved for the physically handicapped candidates would be 4. These vacancies would be distributed amongst the identified posts of clerks, steno Grade D and Laboratory Assistant. The reservation points the physically handicapped will utilize will be on the roster of these identified posts. This has been amplified in Para 3.8. While distributing the vacancies among various categories of posts identified for physically handicapped candidates, the Head of Department may ensure that this reservation is distributed equally among the three sub-categories of blind, deaf and orthopaedically handicapped consistent with appropriate identification for the posts. In this case, since the post of Lab. Assistant is identified for deaf and partially deaf also, the reservation for deaf can be utilized against this post and the remaining vacancies can be distributed between clerks and steno grade D.
10. Section 22 of the Act thus envisages 3% reservation of posts to be identified under Section 21 in every department of the Government which has not been exempted from the purview of section in exercise of the power vested in the Government by proviso appended to the section. Therefore, the Government was under a legal obligation to identify the posts in every such department for giving effect to 3% reservation for handicapped/disabled persons. The Government has identified the posts by virtue of Govt. Order No. 62-SW of 2001 dated 13.3.2001. As to how the number of vacancies available for recruitment from handicapped/disabled persons is to be worked out for giving 3% reservation, it has also framed the guidelines. As per the guidelines issued, the total number of vacancies in a particular department, which have been advertised, are to be taken into consideration. As per the illustration given in the guidelines quoted above, if there are 135 post in an establishment to be advertised, out of which 70 vacancies are of the posts identified, there would be reservation of 3% out of 135 posts for handicapped category, i.e., 4 vacancies. What would be the position if vacancies of the identified posts are less than 3 percent? The contention of Mr. Jalali, learned senior counsel is that even in that situation for giving effect to reservation envisaged by Section 22, 3% of the posts would have to be reserved out of the total number of the posts advertised. There is no merit in the contention. The reservation envisaged by Section 22 refers to the posts identified by the Government in terms of Section 21. For working out 3% vacancies for handicapped/disabled persons, the number of availability of posts in the identified category can not be lost sight of.
11. If the number of available vacancies of the identified posts is less than 3% of the total number of posts advertised, then reservation would only be to the extent of available posts. And if the number of available vacancies of the identified posts in an establishment is more than the 3% of the total number of posts advertised, then the reservation would only be to the extent of 3% of the total number of posts advertised for the identified posts. This apart the reservation has to be vertical reservation as per para 3.8 of the guidelines, which reads:
3.8 Reservation for SC/ST/OBC may be called vertical reservation and the reservation for physically handicapped persons as horizontal reservation. Horizontal reservations cut across vertical reservation (in what is called interlocking reservation) and the persons selected against the physically handicapped quota have to be placed in the appropriate category, if he belongs to SC category, he will be placed in that quota and will utilize an SC Roster point and similarly if he belongs to General category, he will be placed in that category and will utilize a general category roster point. Similarly, if he belongs to OBC or ST category, he will utilize an OBC or a ST roster point.
12. Applying the above rule to the departments vis-a-vis the posts advertised for filling up through direct recruitment, the respondents have earmarked two posts; one in Social Welfare Department and the other in Accounts Department by taking into consideration the total number of posts vis-`-vis the nature of the posts available in each department. Therefore, no exception can be taken to the reservation of two vacancies in the Social Welfare Department and Accounts Department for handicapped/disabled persons.
13. The further contention of Mr. Jalali that since all the vacancies have been referred to the Public Service Commission by the General Administration Department of the Government, so all the vacancies are to be considered as vacancies under the General Administration Department of the Government is also without any merit. The General Administration Department of the Government as a matter of administrative procedure refers the vacancies to Public Service Commission at the behest of each department of the Government. The vacancies occurring in different departments of the Government cannot be said to be the vacancies in General Administration Department of the Government. As there were only two vacancies available for disabled persons and the merit of the petitioner being lower than the selected candidates, her non-selection cannot be faulted with.
14. In view of the above, there is no merit in the writ petition and the same is, accordingly, dismissed.