Orissa High Court
Kanakalta Sahu And Anr vs Paradip Port Trust And Others .... ... on 31 July, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.5850 of 2019
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Kanakalta Sahu and Anr. .... Petitioner(s)
-versus-
Paradip Port Trust and others .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Digambara Mishra, Adv.
For Opposite Party (s) : Mr. Partha Mukherji, Adv.
(for O.P.1)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-09.05.2024
DATE OF JUDGMENT: -31.07.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner, through this Writ Petition, challenges the actions of the Opposite Parties in failing to issue the appointment order in favour of the Petitioner, despite her selection for the post of Jr. Assistant, which constitutes violation of the Rights of Persons with Disabilities Act, 2016 and the directives of Supreme Court issued pursuant thereto.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
Signature Not Verified Digitally Signed Page 1 of 19 Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22
(i) Paradip Port Trust (hereinafter "PPT")which is an autonomous body under the Ministry of Shipping, Government of India, invited applications for filling up backlog vacancies in an advertisement dated 22.06.2017 special recruitment drive for the persons who are physical disability (PwDs). The Petitioners were applicants for the post of Junior Assistant with the scale of pay of Rs.16,300/- to Rs.28,200/- which is Group 'C' post. There was total nine posts advertised for the post of junior assistants.
(ii) The Petitioners are eligible in all respects to hold the post of Junior Assistant. Kanakalata Sahu ("Petitioner No.1") is having locomotors disability which is permanent physical impairment assessed @30%; both the ears with permanent physical impairment assessed @ 48% total disability being 78% which is a benchmark disability as per the mandate of law under the Rights of Persons with Disabilities Act 2016 (hereinafter "Disabilities Act"). Similarly/ Prafulla Gajendra Maharana ("Petitioner No.2") is having 70% permanent disabilities which is also a bench mark disability (locomotors disability) and leg deformity pursuant to the advertisement the petitioner No.1 was called for Skill Test on 16.10.2017. Similarly, the petitioner no.2 was also called for skill test.
(iii) The Petitioners came out successful in skill test; yet no appointment order was issued. Therefore, the petitioners sought for information under RTI Act from the PPT on 11.12.2018. Definite information was supplied that the recruitment process for the post of Jr. Assistant for PwD Signature Not is under process and not yet completed. With regard to specific Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 2 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 query, it was definitely answered that, pursuant to the advertisement dated 22.6.2017, a select list panel was prepared by the PPT wherein the petitioner No.1 is at Sl. No.1 of the panel and petitioner no.2 is at Sl. No.4 of the panel.
(iv) Before the PPT Authority, it has been reported that the sanctioned strength for the position of Junior Assistant is 50. Currently, only 9 positions are filled, leaving 41 vacancies. It was stated by the Ministry of shipping before the Supreme Court that there are 49 backlog vacancies for PwDs.
(v) Since the Opp. Parties had taken action in appointing some persons but did not appoint the petitioners, they submitted representations before the PPT as well as before the Chief Commissioner seeking employment of persons with Disabilities. It transpires that one Rajesh Moharana was given appointment as Junior Assistant on 17.4.2018. Similarly another person namely, Suchitra Swain, was appointed on 18.5.2018. One Ashok Ch. Jena was appointed in the schedule caste category as it appears from letter dated 11.12.2018 obtained under the RTI Act.
(vi) When appointment was made in respect to some persons and the petitioners could not be issued an order of appointment the petitioners submitted representations as well as sought for information under the RTI Act. In response thereto, on 26.2.2019, it was indicated by the PPT that the decision was purportedly made to fill up the vacancies under PwD category for the post of Jr. Assistant as per the initial advertisement i.e. 22.6.2017 but at the same time it was definitely Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 3 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 indicated that a fresh advertisement would be issued for the unfilled vacancies only.
(vii) Earlier on 15.9.2016, the petitioner was called for skill test with respect to advertisement dated 21.7.2016. However, that recruitment process was not pursued further by PPT and it was cancelled without assigning any reason.
II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions:
(i) Computation of reservation for persons with disabilities has 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.
(ii) A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion never arises as they constitute a special class. The disabled candidate cannot be further classified as belonging to SC, ST and general category candidates. Meaning thereby, the entire decision-making process in appointing only SC candidate and in the unreserved category makes a further classification of the PwDs on the basis of caste which is not permissible.
(iii) The present advertisement was for backlog vacancies of the PwD. Since the earlier advertisement was not pursued further and recruitment was cancelled. When the backlog vacancies were notified in the advertisement dated 22.6.2017, the O.Ps. could have resorted to arranging Signature Not Verified the merit list without making any sort of caste wise Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 4 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 reservation and giving appointment to top nine candidates in the merit list. Out of the nine vacancies as advertised 1% reservation mandatorily goes in favour of the petitioners since they have 70% or more disability;
meaning thereby, the petitioners ought to have been appointed. But the appointment orders are not being issued on the basis of unreasonable classification discriminating the petitioners on the ground of caste. If the Opp. Parties do not show appointment to the petitioners, they would be showing unfilled vacancies to be de-reserved in favour of non-disabled candidates which are not permissible under law. Therefore, the concept of a fresh advertisement is not permissible in the present fact and circumstances of the case. Non-issuance of orders of appointment in favour of the petitioners causes heavy prejudices to the petitioners.
(iv) First of all, they are physically challenged and despite several special drive conducted, many posts of the reserved category remained unfulfilled. Second, the PwDs are facing immense financial constraints. It is matter of regret that they are not being issued with orders of appointment despite their selection.
(v) The representation of the petitioners submitted before the Opp. Parties for appointment from the panel, it was rejected vide letter dated 15.3.2019. In the impugned letter, it is indicated that the Paradip Port Trust purportedly had taken decision to fill up residual vacancy as per the initial advertisement. Meaning thereby, as per law, the top nine candidates in the merit list are to be appointed against the vacancies of Junior Assistant. But at the same breath the Opp. Parties have also indicated Signature Not Verified that fresh advertisement is being issued for the unfilled Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 5 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 vacancies. This sentence itself is contrary to the earlier stand taken by the opposite parties which is illegal. Out of the nine vacancies advertised, only three persons were appointed, though the balance six posts are still lying vacant. The PPT Authority is not issuing the order of appointment in favour of the petitioners. The issue was purportedly examined and it is indicated that appointment of PwDs candidates in various categories are undertaken as per the order of the Apex Court.
(vi) Further, in the Writ Petition (Civil) No.116/1998 which is pending before the Apex Court has rendered indulgence in I.A. No.10/15 and a judgment was delivered in 2014 with regard to implementation of various provisions of the Disability Act, 1995, the Persons though disability "equal opportunity, protection of right and full participation"
Act 1995. In the meanwhile, the 2016 Act has come into force. The Supreme Court expressed anxiousness and agony to the effect that though 18 years elapsed since 1995, the said Act was not implemented in its letter and spirit both by State and Union Territory and other establishments. Therefore, the Supreme Court issued direction to implement the provisions 1995 Act in letter and spirit by the Central Government and the State Government. Central Government and other Authorities were required to submit compliance report. It was specifically indicated that in view of the provision of 2016 Act the Central Government, States, Union Territories to file compliance report within 12 weeks. Accordingly, all the State Government and other authorities have submitted / are submitting compliance reports with regard Signature Not to recruitment of PWDs.
Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 6 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22
(vii) PPT decided to fill up the exact number of vacancy of the respective categories only; meaning thereby, it will adopt the further classification of the PWD candidates on the basis of religion or caste or creed which is not permissible in terms of Article 16(1) and as such contrary to 16(4) of the Constitution of India. So far as vacancies of PWDs candidates are concerned; there cannot be any further reservation on the basis of caste.
Therefore, further categorization of posts is not permissible. The reasons indicated in the impugned order are not legally valid and plausible and hence the impugned order is liable to be quashed.
(viii) It further appears from the impugned order that in SC/ST category, there are no candidates available in SC category; only one candidate was appointed and as such there are further vacancies available to be filled up. It is further submitted that the rejection of the prayer of the petitioner for being appointed is contrary to Article 16(1) read with 16(4) and read with Article 15(3) of the Constitution of India, hence, it is void and liable to be quashed. Even if there is a panel; the petitioners have legitimate expectations to get order of appointment. The settled legitimate expectations directly flow from the constitution and 2016 Act and from the specific panels formulated by the Opp. Parties. Accordingly, the petitioners have the right to be appointed under the PWDs quota.
(ix) Acting on the representation of the Petitioners with regard to the manner of reservation the Chief Commissioner for Disabilities disposed of the same by directing the Opposite Parties to appoint all the PWDs candidates Signature Not Verified found place in the merit list vide order dated 24.08.2020 of Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 7 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 the learned Chief Commissioner for Disabilities. The observations and recommendations of the Chief Commissioner is as follows:-
"9. The Court observed that the advertisement issued by the respondent on 22.06.2017 for filing 9 backlog vacancies through a Special Recruitment Drive for persons with disabilities was not in conformity with the provisions of the Rights of Persons with Disabilities Act, 206. No segregation on the basis of caste or any other criteria can be made in a Special Recruitment Drive where only persons with disabilities are required to be appointed. This type of recruitment is meant only for persons with disabilities irrespective of caste or religion. As such any appointment made on the basis of this advertisement is illegal and should be cancelled. However, leaving that 4 out of these 9 vacancies have already been filled by some persons with disabilities, the cancellation of such appointment would lead to injustice to those persons. Hence, this Court recommends that the remaining 5 vacancies may be filled from that panel of persons with disabilities who were selected in the year 2017 against the advertisement in question irrespective of any segregation based on any criteria other than merit. While doing so, the candidature of two complainants i.e. Mr. Prafulla Gajendra Martha & Mrs. Kanakalata Sahoo may also be considered for appointment."
(x) For the wrongful application of PwDs reservation, the petitioners were deprived of their legitimate appointments with effect from 18.04.2018 whence one Rajesh Moharana was given appointment from the merit list in gross derogation of the mandate of Rights of Persons with Disabilities Act, 2016 and settled position of law pronounced by the Apex Court and this Court. Had the Opposite Parties correctly applied the provision of law relating to PwDs reservation the Petitioners would Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 8 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 have got appointment with effect from 18.04.2018 whence the merit list was acted upon. Despite clear enunciation of law, the Opposite Party Trust did not work out the PwD reservation. The Chief Commissioner of Disabilities, under the Ministry of Social Justice and Empowerment which is the competent authority clearly and categorically observed that the working out of the PwD Reservation in the instant recruitment is not consistent with the policy of PwD reservation. For the non- understanding of PwDs reservation by the PPT shall not deprive the Petitioners of the legitimate and bonafide rights and entitlements. Hence, the Petitioners are entitled to get service and financial benefits with effect from the date of appointment order was issued to Rajesh Moharana. Both the petitioners are having benchmark disabilities and have been grossly prejudiced by virtue of the irrational action of the Opposite parties.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NO.1:
4. Per contra, learned counsel for the Opp. Party No.1 earnestly made the following submissions in support of his contentions:
(i). The advertisement for Special Recruitment Drive for Backlog Vacancies of PWDs was issued for 9 numbers of Junior Assistant (ST-05, UR-03 and SC-01) on 22.06.2017. As per the advertisement, three posts were to be filled up by un-reserved category candidates while five posts were earmarked for Scheduled Tribe category and only one post was for Scheduled Caste Category. Accordingly, a duly constituted Committee in accordance with Para (d) of Sub Regulation of (2) of Regulation 12 of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 9 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 Paradip Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 2011, comprising Deputy Chairman, Members and representative for SC/ST in the meeting held on dated 27.12.2017 had recommended for appointment of 3 (three) UR candidates and one SC candidate from the merit list and inclusion of six UR candidates and one SC candidate in the Panel for un-reserved category and SC category respectively. As no ST candidate cleared the skill test, no ST candidate was recommended for selection/empanelment.
(ii). Considering three vacancies in UR category, 3 candidates who were listed under the Merit List namely Rajesh Moharana, Suchitra Swain and Smruti Chandan Tripathy were given provisional appointment letters vide office order dated 17.04.2018 and 18.05.2018 respectively.
The said candidates were asked to report for duty within 15 days from the date of issue of such orders. Accordingly, the three candidates have joined PPT and are continuing as such as on date. It is pertinent to mention here that the petitioners have not pleaded for inclusion these three candidates in this writ petition and hence this writ petition is liable to be dismissed for non-joinder of necessary parties.
(iii). Since 3 candidates have joined against the equal number of posts, the need for considering empaneled candidates did not arise at all. Hence the claim of the petitioners is devoid of any merit and liable to be rejected.
(iv). Since the selected candidates under un-reserved category have joined in the post, there is no question of giving appointment to the candidates from Signature Not the panel list as the number of vacancies advertised in respect of Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 10 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 the un-reserved category has already been filled up from the merit list. Hence the petitioners cannot claim any right of appointment in such a case and the writ application is liable to be rejected.
(v). The merit list was drawn up and candidates were appointed and also empaneled from the merit list according to the category advertised. It is pertinent to mention that the Panel List was only drawn up to meet out the exigencies, in case of non-reporting of the selected candidates. However, as all the three selected candidates viz. Rajesh Maharana, Suchitra Swain and Smruti Chandra Tripathy from the merit list of un- reserved category, have joined in the post, there was no further requirement of candidates for appointment from the panel list as there was no vacancy in UR category
(vi). The petitioner was called for skill test with respective advertisement dated 21.07.2016 and recruitment process was cancelled. In this regard, PPT reserves the right to cancel the selection process fully or partly, restrict/modify/alter the recruitment process, if required, without assigning any reasons thereof which has been clearly spelt out in the advertisement.
(vii). Based on the mandate of Persons with Disabilities Act, the advertisement for the PwDs candidates had been made and accordingly disabilities persons have been appointed. Accordingly, discrimination on the grounds of disability does not arise.
(viii). Advertisement was issued clearly stating the category to which the posts belong to such as SC/ST/OBC etc. along with the type of physical disability.
Signature Not Verified The petitioners knowing very well, applied against theseDigitally Signed Signed by: BHABAGRAHI JHANKAR Page 11 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 particular UR vacancies of Junior Assistant without questioning the advertisement. They had also undergone the process of skill test etc. without raising any objection. When they empaneled under UR category, they did not raise any objection to the proposal of the Port. This Opp. Party has no scope to go beyond the advertisement and has to select candidates according to the advertisement only. The petitioners are claiming appointment violating the advertisement issued and hence, this Opp. Party is not in a position to consider their request
(ix). The Petitioners, whose candidatures were rejected at the time of selection to the post of Lascar Gr.II by Paradip Port, filed the above writ petitions challenging the selection criteria. In the impugned advertisement dated 16.03.2012, there was no such selection criteria was available in the Recruitment Rule of Lascar Gr.II for conducting written test. However, the Service Selection Committee conducted written test in the said recruitment process in order to get highly meritorious candidates. Accordingly, marks were also awarded to the candidates and based on the said marks, selection were made. However, the High Court vide its common judgment quashed the entire selection process and directed to draw fresh merit list strictly as per the advertisement.
(x). Therefore, in the instant case, Paradip Port Authority cannot go beyond the norms of the advertisement to give appointment to the petitioners.
(xi). Besides this, as per Regulation 13 of the Paradip Port Trust Employees (Recruitment, Seniority and Promotion) Regulations, 2011, the names of the selected candidates to be kept on a select list for consideration of appointment Signature Not Verified to posts earmarked for direct-recruits. Such list shall be Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 12 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 deemed to be valid for a period of 12 months from the date on which the list is approved by the Appointing Authority. It is open to the Appointing Authority to extend the validity of the list for a period not exceeding six months or until a fresh select list is approved, whichever is earlier. Accordingly, current panel has already been exhausted. Hence, PPT is bound not to consider any request at this stage which is violating the Regulations mentioned supra.
(xii). The whole recruitment process for PwDs, 37 numbers of candidates of different category was appointed based on the Advertisements made. If PPT goes beyond the advertisement, there would be dislocation to the 37 candidates already joined and cancellation of such appointment would lead to injustice to those PwDs persons.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard the rival contentions and perused the materials placed on record.
6. It is undisputed that as many as 9 (nine) posts were advertised for being filled up by candidates belonging to PwD category in a special recruitment drive for PwD candidates exclusively. However, as per the advertisement notice, three posts were to be filled up by un-reserved category candidates while five posts were earmarked for Scheduled Tribe category and only one post was for Scheduled Caste Category.
7. The core issue that arises for consideration in this case is as to whether;
the respondents were justified in further reserving those six posts meant for PwD candidates to be filled up only by candidates belonging to SC and ST candidates.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 13 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22
8. In this context, a reference to judgment of the Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar,1 shall not be out of place. In this case, the State of Madhya Pradesh issued an advertisement for recruitment of handicapped persons to several posts. The appellants who were Physically Handicapped, belonging to General Category got selected. The Respondent No. 1, a handicapped person belonging to Reserved Category challenged the selection. The Supreme Court in the above context came to consider the vertical and horizontal reservations and categorically held that disabled is a disabled and therefore, the question of making further reservation on the basis of cast, creed and religion would not ordinarily arise. Such a view has been expressed by observing that disabled are by themselves a special class and to that extent their further classification may not be justified. The relevant excerpt is produced hereinbelow:
"10. The State in terms of Article 16 of the Constitution of India may make two types of reservations-vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation.
11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The circular letter was issued only for the said purpose. A bare perusal of the said Circular Letter dated 29-3-1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article Signature Not 1 Verified (2007) 8 SCC 621 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 14 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof.
12. Disability has drawn the attention of the worldwide community. India is a signatory to various international treaties and conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Caste and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates."
9. Similar is the view expressed in the case of Union of India v. M. Selvakumar &Anr.,2 wherein it has been observed that physically handicapped category is a category in itself and the persons who are physically handicapped have to be treated alike in extending the relaxation and concession regardless of the fact whether they belong to a general category or OBC category.
10. In Rajeev Kumar Gupta v Union of India3, the Supreme Court highlighted that any reservations granted to PwDs was under the general aim of Article 16(1) of granting 'equality of opportunity'. It held that reservations under Article 16(1) could be granted as long as the 2 2017 (3) SCC 504 Signature Not 3 Verified (2016) 13 SCC 153 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 15 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 considerations for recognising them are not those listed in Article 16(2). This includes the grounds of religion, race, caste, sex, descent, place of birth, residence. It held as following:
"The 1995 Act was enacted to fulfill India's obligations under the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region'. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress. The intent is to turn PWD into 'agents of their own destiny'. PWD are not and cannot be equated with backward classes contemplated under Article 16(4)."
11. The Kerala High Court in Sumith V. Kumar v. State of Kerala & Ors.4 declared that the claim of PwD is based on a statute enacted to implement a constitutional mandate. Therefore, they are treated as a homogenous class under the law, regardless of social classification. The relevant excerpt is produced hereinbelow:
"The State can identify classes of persons who are having distinct characteristics or disadvantages and treat them separately under law. Persons having disability form a homogenous class by themselves where disability is not on the basis of social backwardness but on the basis of physical disability. It is relevant to point out that the claim of the petitioners for reservation is traceable to Article 15 which is an enabling right, the claim of the PWD persons traces to a statute promulgated for the purpose of implementation of a Constitutional mandate. Therefore, it is by virtue of the statute, persons with disability are treated as a homogenous class irrespective of social classification. Such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15 which does not apply.
Signature Not 4 Verified WP(C) No. 21885 OF 2021, Ker HC Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 16 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 There is no violation of Article 14, as Article 14 postulates equal treatment for equally placed persons that is to say unequals can be treated unequally. To be more precise, differential treatment is permissible when it comes to unequals. Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution."
12. On parallel lines, the Guwahati High Court, in Saidur Rahman v. State of Assam5 applied the ratio laid down in the case of Mahesh Gupta (supra) and M. Selvakumar &Anr. (supra), and unhesitatingly opined that no further sub-categorization is allowed in the PwD category. It held as follows:
"Having reserved four vacancies to be filled up by PWD candidates and having permitted the General Category candidates to participate in the recruitment process, there was no scope for the authorities to further reserve those four vacancies in PWD category to be filled up only by candidates belonging to OBC/ MOBC or ST(H) category."
Having held as above, it is also to be noted herein that out of the 04 (four) vacancies reserved for PWD, as many as 03 (three) vacancies could not be filled up since no candidate belonging to PWD category coming from OBC/ MOBC/ ST(H) was available. It was on such count that no name could be recommended by the APSC for filling up the remaining three vacancies. If that be so, it is evident that even if the petitioner was recommended as PWD candidate against one of the three vacancies, even then, the same would not cause prejudice to any candidate belonging to OBC/MOBC/ ST (H). The learned departmental counsel also could not offer any reason as to why such a recourse could not have been be Signature Not 5 Verified WP(C).758 of 2019; Guwahati HC Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 17 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 adopted by the departmental authorities in case of the writ petitioner."
13. In the context of the recruitment drive by the PPT aimed at the PwD, the practice of further sub-categorizing candidates within the SC and ST categories undermines the integrity and purpose of such initiatives. The rationale behind this is that PwD, by virtue of their disabilities, form a distinct and separate class that necessitates unique considerations and accommodations. Consequently, treating PwD candidates as a homogeneous group sans further sub-divisions ensures a more equitable and just recruitment process.
14. From the aforesaid, it is clear that the advertisement dated 22.06.2017 is contrary to the spirit of the statutes and directives of the Supreme Court. Had the respondent not sub-categorized the vacancies, the petitioners would have been duly considered and selected for the vacant posts. This improper sub-categorization disregards the unique status of persons with disabilities as a distinct class, undermining the principles of inclusivity and equality mandated by law. As a result, the recruitment process failed to provide a fair and equitable opportunity for all PwD candidates, thereby violating their rights and the intended purpose of the recruitment drive.
15. Now, this Court can render the whole advertisement void and ask the PPT to redo the whole appointment procedure. However, it would prejudice the PwD candidates who have been selected, albeit irregularly, but it is not wise to do so. Annulling the entire process would Signature Not not only cause undue hardship to those already selected but also Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 18 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22 disrupt the progress made towards fostering a diverse and inclusive workforce. Instead, a more balanced remedy would be to correct the irregularities while ensuring that the principles of equality and non- discrimination are upheld, thereby safeguarding the interests of all PwD candidates involved in the recruitment process.
V. CONCLUSION:
16. In the facts and circumstances of the present case, this Court directs the Opp. Party No.1/PPT to reconsider the candidature of the Petitioners against the vacant posts while keeping in mind the skill test already taken by them and the place secured by them in the aforementioned merit list. Accordingly, the letter dated 15.3.2019 is quashed.
17. It is also directed that no sub-categorization shall be done in future appointments and the PwD class shall be treated as a category of its own. Any diversion from this directive shall render the appointment procedure void.
18. Petitioner No.2 shall be at liberty to submit a representation with Opp.
Party No.1/PPT against the confusion pertaining to his name which shall be duly considered by the Opp. Party No.1/PPT within a period of one month from the date of presentation of the representation.
19. Accordingly, the Writ Petition is allowed.
(Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 31st July,, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 19 of 19 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 16-Aug-2024 17:05:22