Jharkhand High Court
Shobha Kumari vs The State Of Jharkhand on 8 August, 2018
Author: S.N.Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S)No.1681 of 2017
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Shobha Kumari. ... ... ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. Department of Personnel Administrative Reforms and Raj Bhasha, Government of Jharkhand through its Principal Secretary, Project Bhawan, P.O. P.S. Dhurwa, District-Ranchi.
3. Deputy Commissioner, Ramgarh, P.O. Ramgarh, P.S. Ramgarh, District-Ramgarh.
4. The Principal, District and Sessions Judge, Ramgarh, P.O. Ramgarh, P.S. Ramgarh, District-Ramgarh.
5. The District and Additional Sessions Judge (First), Civil Court, Ramgarh, P.O. Ramgarh, P.S. Ramgarh, District-Ramgarh.
6. The Registrar, Civil Court, Ramgarh, P.O. Ramgarh, P.S. Ramgarh, District-Ramgarh. ... ... ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioners: Mrs. Rakhi Rani, Advocate.
For the Respondents: Mr. Jai Prakash, A.A.G.
Mrs. Chaitali C. Sinha, A.C. to A.A.G.
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11/ 08.08.2018 The petitioner has approached this Hon'ble Court with a
prayer for commanding upon the respondents to give appointment to the petitioner on the post of Peon/Orderly in Civil Court, Ramgarh, under physically handicapped category in pursuance of advertisement No.01/2015 dated 23.12.2015.
2. The factual exposition, as has been delineated in the writ petition, is that the petitioner preferred an application for her appointment on the post of Peon/Orderly in Civil Court Ramgarh in pursuance of Advertisement No.01/2015 dated 23.12.2015. Clause 5 of the said Advertisement provided for reservation for scheduled caste, schedule tribe, backward class, extreme backward class and physically handicapped, in accordance with the reservation rules declared by the respondent-State. The petitioner applied for the post of Peon/Orderly under the reserved category of physically handicapped enclosing a copy of certificate of disabilities issued by the Civil Suregon cum Chief Medical Officer, Sadar Hospital, Ranchi. The petitioner was called for interview by letter issued on 09.06.2016 by Judge in Charge, Civil Court Ramgarh with the seal of respondent No.6. The petitioner came to know through News Paper namely Prabhat Khabar dated 12.08.2016 that several persons were appointed against different posts in Ramgarh Civil Court. Name of the petitioner was not there in the News Paper as an appointed candidate. The petitioner moved to the 'Janta Darbar' held by respondent-State on 24.08.2016 where respondent No.3 was directed by the Joint Secretary of the respondent 2. State to take immediate action after holding proper enquiry vide letter contained in memo No.9001819 dated 29.08.2016, simultaneously petitioner was verbally advised to ask information under right to Information Act. The petitioner made an application under Right to Information Act, along with postal order of Rs.20/- which was received in the office of the concerned respondent on 29.08.2016 whereby petitioner sought information regarding appointment made in pursuance of Advertisement No.01/2015 dated 23.12.2015.
3. It it is case of the petitioner that in reply to the aforesaid application, petitioner received letter No.453 dated 26.09.2016 by which petitioner was informed that she could not be provided the said information as she had not paid the requisite fee of Rs.15 in proper mode. Thereafter petitioner sent another application through registered post on 03.10.2016, paying requisite fee of Rs.15/- in proper mode and sought for the same information as in the earlier application. In reply to the aforesaid application letter No.508 dated 03.11.2016 was received by the petitioner wherein certain information was provided by the concerned respondent, but it was not complete as information on all the points, asked by the petitioner was not furnished. Being dissatisfied with the information provided vide letter No.508 dated 03.11.2016, petitioner preferred first appeal before the First Appellate Officer, Civil Court, Ramgarh vide letter sent on 21.11.2016 through registered post, which was registered as RTI Appeal Case No.02/2016.
4. It is the specific case of the petitioner that during pendency of the aforesaid appeal respondent kept his stand in writing before the First Appellate Authority, on 05.12.2016, a copy of which was given to the petitioner. The stand taken by the respondent is that the information has already been provided to petitioner vide letter No.508 dated 03.11.2016. Paragraph No.2 of the aforesaid letter was again reiterated by the respondent No.6 wherein while giving reference of resolution No.2020 dated 09.04.2010 which provide reservation for scheduled caste/scheduled tribe/backward class/extreme backward class, failed to refer resolution No.7281 dated 07.11.2007 which provides 3% reservation for physically disabled person. As the petitioner has not been given appointment to the post of peon/orderly, she has constrained to move this Hon'ble Court.
5. Learned Counsel for the petitioner submits that the petitioner is entitled to be appointed to the post of peon/orderly in Civil Court, Ramgarh, as she comes under physically handicapped category and no candidate under such category has been appointed in pursuance of 3. advertisement No.01/2015 dated 23.12.2015. The advertisement No.01/2015 dated 10.12.2015 provide for reservation to physically disabled candidates as per rules declared by respondent-state. The respondent state has not taken any decision vide resolution No.7281 dated 17.11.2007 to give 3% reservation in appointment to candidates belonging to physically disabled category. Section 33 of the Person with Disability Act, 1995 provide for 3% reservation to physically disabled candidates. Any candidate has been appointed under physically disabled category by the concerned respondents in pursuance of advertisement No.01/2015 dated 23.12.2015. The action of the respondents is arbitrary and mala fide in not giving appointment to the petitioner under physically handicapped category in pursuance of advertisement No.01/2015 dated 23.12.2015. The action of the respondents are violative of Section 33 of the Persons with Disability Act, 1995 and contrary to the resolution No.7281 dated 07.11.2007 of respondent-state, in not appointing the petitioner under physically handicapped category, in pursuance of advertisement No.01/2015 dated 23.12.2015.
6. Per contra counter-affidavit has been filed.
7. Learned Sr. Counsel Mr. Jai Prakash assisted by Mrs. Chaitali C. Sinha appearing for the respondents vehemently opposes the contention of the learned Counsel for the petitioner and submits that in view of the advertisement published by the Principal District and Sessions Judge, Ramgarh, the petitioner having requisite qualification, applied for the same under category of OBC+PH for the post of Peon/Orderly in Civil Court, Ramgarh. Accordingly her candidature was considered and interview letter dated 09.06.2006 was issued to her by the Judge Incharge and accordingly she participated in the interview. After completion of the interview and other appointment process, final results were published on merits cum category wise subject to the scrutiny of original certificates at the time of their appointment in the light of order No.74 dated 20.08.2016. The petitioner has obtained 30 marks out of 100 marks in her interview and the cut off marks for OBC was 56, BC was 62. The said order was based on the letter of the Hon'ble Court dated 17.08.2016 by which the Hon'ble Court has been pleased to approve the list of successful/waiting list candidates who were selected for appointment of class IV employees in the Ramgarh Judgeship. Learned Sr. Counsel further argues that law does not permit to appoint the petitioner. Learned Counsel relied on several judgment of the Hon'ble Apex Court. Learned Counsel places heavy reliance on judgment of Supreme Court viz. (2013) 10 SCC 772; (2016) 12 SCC 370 & [2015 (4) 4. JCR 384 (Jhr.). Learned Sr. Counsel further argued that based on OM of Govt. of India, the State Govt. came up with a resolution on 07.11.2007 (Annexure-G to C/A). The said resolution talks about the reservation roaster which is as follows:-
(a) Eye disability- Roaster Pt. 1 to 33-1 post.
(b) Deaf+dumb disability- Roaster Pt. 34 to 67- 1 post.
(c) Locomotive disability-Roaster Pt.-68 to 100-1 post.
8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it would be just and proper to go through the relevant rules of disability mentioned under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 lays down a minimum 3% of vacancies to be reserved for person suffering from
(i) Blindness on low vision.
(ii) Hearing impairment.
(iii) Locomotive disability or cerebral palsy.
The O.M. of Govt. of India resolution dated 07.11.2007 talks about the reservation roaster which is as follows:-
a) Eye disability-Roaster Pt. 1 to 33- 1 post.
b) Deaf+ dumb disability-Roaster Pt. 34 to 67- 1 post.
c) Locomotive disability-Roaster Pt.-68 to 100- 1 post.
Similar issue fell for consideration before the Hon'ble Apex Court in case of "Union of India & Anr. Vrs. National Federation of the Blind & Others" reported in (2013) 10 SCC 772. The Hon'ble Apex Court has held thus:
" That based on OM of Govt. of India, the State Government come up with a resolution on 07.11.2007. (Annexure-G to the C/A). The said resolution talks about the reservation roaster which is as follows:-
(a) Eye disability-Roaster Pt. 1 to 33-1 post.
(b) Deaf+ dumb disability-Roaster Pt. 34 to 67- 1 post.
(c) Locomotive disability-Roaster Pt.-68 to 100- 1 post.
Thus since there are only 1 post available in disability quota it necessarily fell in roaster pt. 1 to 33- eye disability. Petitioner admittedly is not an eye disabled person. The resolution dated 07.11.2007 (Annexure-G) is not under challenge.
That under the aforesaid resolution (Annexure-G) since no person with eye disability was available, it has to be carried forward to the next year and in case in next year also no person with eye disability would be available it can be interchanged between the 3 categories of disabled. Under such circumstances the petitioner has no case.
5.A case came up before the Apex Court, filed by the UOI, against the judgment of HC which is reported in (2013) 10 SCC 772-UOI Vs. National Federation of the Blind & Ors. In the said case before the Apex Court, the OM dated 29.12.2005 issued by DOPT, GOI, was examined by the Apex Court, the relevant clause for the issue involved in the present writ application are clause 15(b) & (c) and 16 (b) & (c) of the said OM, which are quoted herein below:-
"15 Effecting reservation-Maintenance of Roaster-
(a)...........................
(b) Each Register shall have cycles of 100 points and each cycle of 100 points shall be divided into 3 blocks, comprising the following points.
1st Block: Point 1 to Point 33.
2nd Block: Point of 34 to Point 66.
3rd Block: Point 67 to Point 100.
(c) Points 1, 34 and 67 of the Roaster shall be earmarked reserved for person with disability-1 point for each of 3 categories of disabilities. The head of the establishment shall decide the categories of disabilities for which pts. 1, 34 & 67 will be reserved keeping in view all relevant facts."
"16- Inter se exchange and carry forward of reservation in case of different recruitment:-
(a)......................
(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 category of disabilities........................"
The Hon'ble Apex Court, gave thoughtful consideration to the aforesaid OM dated 29.12.2005, and disagreed only on 1 point which is reflected in para 52 of the judgment (2013) 10 SCC 772.
"52- Thus, after thoughtful consideration we are of the view that the computation of reservation for person with disabilities to be computed in case of group A,B,C and D posts in an identical manner viz. "computing 3% reservation on total number of vacancies in the cadre strength, which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005 which are contrary to the above reasoning are struck down and we direct the appropriate government to issue new OM(s) consistent with the decision rendered by this Court."
That all other clauses of the OM dated 29.12.2005, including clause 15 namely effecting reservation and maintenance of roaster stand approved by the Apex Court.
6.Consequently the UOI, came up with another OM dated 03.12.2013 and inserted the following paragraphs-
"Reservation for person with disabilities in group A and B posts shall be computed on the basis of total no vacancies occurring in direct recruitment quota in all the group A post and group B posts in the cadre."
Other provision of OM dated 29.12.2005 viz. Quantum of reservation horizontality of reservation, Effecting Reservation & Maintenance of Roaster remained the same.
That the resolution dated 07.11.2007 of the State of Jharkhand (Annexure-G) also came up for consideration before this Hon'ble Court in batch of writ application the judgment of which is reported in 2015(4)JCR 384 (Jhr.) & the Hon'ble Single Judge, accepted that the resolution of the State Govt. of 07.11.2007. In other words it can be said that the resolution dated 07.11.2007 stands approved by the aforesaid judgment.
The aforesaid order of the Hon'ble Single Judge was challenged in LPA No.282/2016. The said LPA was disposed off vide order dated 12.04.2017 as being not pressed.
Another matter came up before the Apex Court relating to interpretation of OM dated 29.12.2005 and OM dated 03.12.2013 in the case of T. Sudhakar vs. State of A.P. And Ors. In which leave was granted and same was tagged with CA No.7295/2012 and CA No.11895/2014 (2016) 12 SCC 370.
9. Learned Sr. Counsel draws the attention of the Court towards para 13 of the counter-affidavit which reads as under:
"13 That it is humbly stated and submitted that so far as claim of the petitioner with regard to section 33 of the persons with disabilities Act, 1995 r/w resolution No.7281 dated 7.11.2007 of respondent State is concerned, there is specific provision made at paragraph-8 of the said resolution No.7281 dated 07.11.2007 of Jharkhand State the petitioner claimed on the basis of locomotive disability which is also provided therein and according to clause c of paragraph-8 of the said resolution there is provision for one post for the appointment comes under roaster arrangement at Sl. No. 68th of 100 point in the Civil Court, Ramgarh only 39 post of peon/orderly were invited and thereafter, appointment of the petitioner does not come under roaster point of 39. The candidates were selected on the merit cum category wise, in which, she did not qualify on the basis of merit also. Provision was made for horizontal reservation and the said appointment has also been clarified by the respondent No.6 in its reply before the 1st Appellate Court at paragraph-6, wherein it has been stated that there is no arrangement for separate reservation for females and handicapped meaning thereby only horizontal reservation for the handicapped is being provided and the said thing has also been mentioned at para-1 and sub para third of the Paragraph-8 of the said resolution No.7281 dated 07.11.07. Hence, the candidates were selected as per 7. the reservation policy declared by the Jharkhand State Government for the candidates claiming the reservation under different category."
Mr. Jai Prakash, learned A.A.G. places reliance on clause 15 (b) & (c) of the Office Memorandum dated 29.12.2005 issued by Govt. of India in order to consolidate the existing instructions in line with the provisions of the Act. The said OM was discussed in detail in case of "Union of India vrs. National Federation of the Blind & Ors.", reported in (2013) 10 SCC 772. Particularly clause 15(b) of the said memorandum provides for 100 points which reads as under:
(b) Each Register shall have cycles of 100 points & each cycle of 100 points shall be divided into 3 blocks, comprising the following points.
1st Block: Point 1 to Point 33.
2nd Block:Point of 34 to Point 66.
3rd Block: Point 67 to Point 100.
Similar view was reiterated in case of "D.Sudhakar vrs. State of Andhra Pradesh & Ors.", reported in (2016) 12 SCC 370 and also this Hon'ble Court in case of " Md. Maqsood Ansari & Anr. Vrs. The State of Jharkhand & Ors., reported in [2015 (4) JCR 384 (Jhr.) taking into consideration the reported judgment of "Union of India & Anr. vrs. National Federation of the Blind & Ors., reported in (2013) 10 SCC 772. So far as claim of the petitioner with regard to Section 33 of the persons with disability Act 1995 r/w resolution No.7281 dated 7.11.2007 of respondent State is concerned, there is specific provision made at paragraph-8 of the said resolution No.7281 dated 07.11.2007 which is Annexure-G page 49 of the counter-affidavit of the State. The petitioner claims on the basis of page 20 paragraph 13. From perusal of the records, it also transpires that the result published by the District & Sessions Judge, Ramgarh has been approved by the High Court on administrative side meaning thereby no illegality was found in publication of the result and not considering the candidature of petitioner for appointment of reserved category of handicapped. Paragraph No. 9, 14 and 15 of the said resolution also clarifies regarding reservation of the handicapped category. Contention of the learned Counsel for the petitioner that for not providing reservation to the persons with disability in public employment by the respondent in respect of Advertisement No.01/2015 dated 23.12.2015 is violative of Section 33 of the persons with Disability Act, 1995 and the resolution No.7281 dated 07.11.2007 is completely misconceived and not tenable in the eyes of law rather the petitioner does not deserve reservation in the category of disable in view of Section 33 of the persons with disability Act, 8. 1995 and also in view of resolution No.7281 dated 07.11.2007. It is settled principle of law that no appointment can be given de hors the rules. The petitioner is claiming appointment de hors the rules which is not permissible in the eyes of law.
Having gone through the entire documents brought on record, this Court is of the firm opinion that no case is made out for interference in this writ petition as no appointment can be considered dehors the Rules and such appointments are also not permissible even in the case of disabled person.
As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncement, the writ petition merits dismissal and is hereby dismissed.
[Dr.S.N.Pathak,J.] P.K.S.