Karnataka High Court
Mr. Shamashuddin M Savadatti vs The Karnataka Public Service ... on 18 December, 2015
Equivalent citations: 2016 LAB. I. C. 1496, 2016 (2) AKR 146
Bench: Mohan M. Shantanagoudar, B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF DECEMBER, 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO. 41267/2010 (S-KAT)
BETWEEN:
MR. SHAMASHUDDIN M. SAVADATTI,
S/O MAKTUM SAHEB SAVADATTI,
AGED 35 YEARS
R/AT NO. 177,
2ND CROSS, 4TH MAIN,
VIVEKNAGAR POST,
BANGALORE-560047. ... PETITIONER
(BY MS.JAYNA KOTHARI, ADVOCATE )
AND:
1. THE KARNATAKA PUBLIC SERVICE COMMISSION,
UDYOGA SOUDHA,
BANGALORE 560 001.
REPRESENTED BY ITS COMMISSIONER,
2. THE STATE GOVERNMENT OF KARNATAKA
DEPARTMENT OF WATER RESOURCES,
MINI SOUDHA, DR. AMBEDKAR VEEDHI,
BANGALORE 560 001.
REPRESENTED BY ITS SECRETARY,
3. MR.MANJUNATH H. M.,
S/O MALLAIAH H. C.,
AGE: MAJOR
#3922, 2ND MAIN, 8TH CROSS,
GAYATHRINAGAR,
BANGALORE 560 021.
2
4. MR. NAGENDRA S. P.,
S/O S.T. PRASAD,
AGE: MAJOR
"ARVIND", SARASWATHIPURAM,
1ST CROSS,
BEHIND GOVT. SCIENCE AND
ARTS COLLEGE,
CHITRADURGA.
5. MR. MALLIKARJUNA G. M.
S/O G. B. MALLAPPA,
AGE: MAJOR
GOWRAPURA AJJAMPURA PO,
TARIKERE TALUQ,
CHICKMAGALUR DISTRICT 577547.
6. MR. ANIL KUMAR D.H.,
S/O HANUMANTHAPPA D.,
AGE: MAJOR
ALMATTI DAM SITE B,
BAGEWADI TALUQ,
BIJAPUR DISTRICT 58621.
7. MR. PREMANAND S. NAGANSUR,
P & T QUARTERS, AGE: MAJOR
NEAR BLDE HOSPITAL,
BIJAPUR 586 103.
8. MR. HUSANAPPA,
S/O HANAMANTHAPPA KATTIMANI,
AGE: MAJOR
AT POST HALLISAGAR,
SHAHAPUR TALUK
GULBARGA 585223.
9. MR. MURALIDHARA S.,
C/O GANGANIVAS, 1ST MAIN,
AGE: MAJOR
N. C. COLONY, HOSPET,
BELLARY DISTRICT-583201
10. MR. SURESH K.,
AGE: MAJOR
NO.338/A, IV CROSS,
KOTESHWARA NILAYA,
YOGESHWARA LAYOUT,
3
BIDADI,
RAMANAGARAM TALUK,
BANGALORE RURAL DISTRICT-562109. ... RESPONDENTS
(BY SRI. REUBEN JACOB, ADVOCATE FOR R-1,
SRI. D.ASWATHAPPA, AGA FOR R-2, SRI.S.G.PANDIT,
ADVOCATE FOR R-3, 6 & R-7, SRI. C.SHIVAKUMAR, ADVOCATE
FOR R-4 AND 9; SRI P. RAJASHEKAR & SRI R.NAVEEN KUMAR
ADVOCATE FOR R-5, SRI. L.SRINIVAS BABU ADVOCATE FOR
R-8, SRI. M.C.JAYAKEERTHI, ADVOCATE FOR R-10)
...
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT NO.1 TO SET ASIDE THE APPOINTMENTS OF
RESPONDENTS NO.3 TO 10 AND TO MAKE SELECTIONS FOR
THE POSTS RESERVED FOR PERSONS WITH DISABILITIES
AFRESH VIDE COPY OF NOTIFICATION NO. PSC. 16 RTB-2007
DATED 16.10.2008 VIDE ANNEXURE-A1 IN ANNEXURE-B.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED IS COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, B. VEERAPPA, J., MADE THE FOLLOWING
ORDER
The petitioner being aggrieved by the order dated 19th May, 2010 in Application No. 5971/2008 on the file of the Karnataka Administrative Tribunal, Bengaluru, dismissing his application, filed the above writ petition.
2. The brief facts are:
The petitioner is a person with 65% to 68% locomotor disability as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of 4 Rights and Full Participation) Act, 1995 ('Act' for short).
The notification dated 5.7.2007 was issued by the 1st respondent/KPSC inviting applications from qualified candidates for filling of 648 posts of Assistant Engineers (Civil) by direct recruitment; the qualification prescribed therein was that the candidate must be a holder of a Degree in Civil Engineering or must be a holder of a Diploma, Certificate from a recognised Institute of Engineers passed in Part-A and B of A.M.I.E or possess equivalent qualification. The petitioner/applicant contended that the 1st respondent/KPSC initially did not make any reservation for persons with disability, but later issued another notification and corrigendum on 14th August, 2007 making a provision for reservation of 21 posts for persons with locomotor disability (PH category) and hearing impairment out of 648 posts of Assistant Engineers (Civil) in the Irrigation Department.
3. The petitioner being a qualified person and having locomotor disability, applied for the post of Assistant Engineer (Civil) on 10.8.2007 under the 5 Physically Handicapped Category and also the 2B category. He was also a Kannada Medium Student (KMS), and Degree holder in B.E. (Civil) from Karnataka University, Dharwad. He was called for the written examination in which he secured 52.76%. Thereafter, the 1st respondent/KPSC called him for an interview on 25.1.2008 fixing the date of interview as 15.2.2008 at 3.00 p.m. The applicant successfully completed the interview process as well and obtained 15 marks in the interview, obtaining an aggregate of 67.76%.
4. The petitioner further contended that there were totally 33 persons with disabilities or physically handicapped candidates, who had applied for the post of Assistant Engineer. Out of the said 33 candidates, the petitioner got aggregate percentage of 67.76%; as his ranking was No.15 and he was fully qualified and eligible to be selected within 21 posts reserved for persons with disability. The 1st respondent issued a notification dated 31.7.2008 publishing provisional selection list of 648 posts of Assistant Engineers. 6 Despite the petitioner being ranked at No.15 in the list among the PH candidates, the name of the petitioner was not included in the selection list. When the petitioner enquired with the 1st respondent, he was informed that he fell within the 2B/PH category and there was only one seat reserved in the 2B/PH category which was given to a candidate by name Ayaz Pasha, who had secured an aggregate of 70.11% i.e., more than the percentage of the petitioner.
5. The final selection list was announced on 16.10.2008 and all the 21 posts reserved for the persons with disability have not been filled up by disabled persons, but by several persons who are not fulfilling the requirements of the persons with disabilities have been selected in the said reserved category. It was submitted that only 20 posts were filled up by persons, who are disabled and one remaining post has been filled by appointing respondent No.3, who is a non-disabled person. The 1st respondent has stated that in the category of 2A/PH, as there was no 7 candidate, who was both physically handicapped and from 2A category, the said post was filled up by a 2A category non-disabled person. As there are qualified physically handicapped candidates like the petitioner, the selection of respondent No.3 made by the 1st respondent/KPSC is illegal and in violation of the provisions of Section 36 of the above said Act.
6. It is further contended that the petitioner is fully qualified to be considered for appointment as an Assistant Engineer (Civil) under the notification dated 31st July, 2008, but was not selected either provisionally or finally. Hence, his name does not figure in the selection lists. By the help of the Right to Information Act, he got the complete marks of all disabled candidates and the marks given by the 1st respondent which clearly show that the petitioner ranked 15th among the physically handicapped applicants and therefore, he is entitled to be appointed as an Assistant Engineer within 21 posts reserved for persons with disabilities. The petitioner made 8 representation to the 1st respondent against his non selection for the post on 2.12.2008, but he did not receive any information nor any action was taken by the 1st respondent/KPSC. Therefore, the petitioner sought direction to the 1st respondent to set aside the appointments of respondent Nos. 3 to 10 and to make selections for the 21 posts reserved for persons with disabilities and set aside the notification dated 14.8.2007 and 16.10.2008 vide Annexures-A-1 and A-2 to the extent of non selection of the petitioner. He also sought direction to the respondents to appoint the applicant for the post of Assistant Engineer (Civil) under the physically handicapped/2A category.
7. The respondents filed objections to the application filed before the Karnataka Administrative Tribunal denying the averments made in the application contending that the applicant, who claimed reservation under 2B/KMS/PH category has secured 52.76% in the qualifying examination and 15 marks in the interview; that in all 66.76 marks are obtained as against 70.11 9 marks secured by Ayaz Pasha selected in respect of post reserved under 2B/PH category. Therefore, the name of the applicant does not figure in the selection list. According to the 1st respondent/KPSC that one post is reserved under 2A/PH category and due to non availability of candidates with disability under the said category, a non disabled candidate under 2A category has been selected on merit as per the Government Order dated 22.11.2002. Therefore, the contention of the applicant that selection is contrary to Section 36 of the above said Act is not correct. The applicant being a candidate under 2B/PH category, cannot have any grievance for selection of non disabled candidates under 2A category against one post reserved under 2A/PH category. The applicant being not an aggrieved person as far as selection to one post under 2A/PH category is concerned, he has no locus standi to challenge the said selection, etc., and prayed for dismissal of the petition. 10
8. Respondent Nos. 2 and 3 also filed the objections resisting the averments made in the application.
9. After hearing both parties, the KAT by its order dated19th May, 2010 dismissed the application holding that one post of Assistant Engineer (Civil) reserved under 2A/PH category, due to non-availability of candidates with disability under the said category, non- disabled candidate under category 2A has been selected on merit in terms of the Government Order dated 22.11.2002 and the legality and validity of the said Government Order is not under challenge. The procedure followed by the Union Government and the Union Public Service Commission is irrelevant. The present recruitment is governed by the Rules and Orders of the State Government. The KAT finally concluded that the action of the Government and the KPSC in filling up of the posts earmarked for candidates with one particular disability with candidates of non- 11 disability, in case of non-availability of the former is justified.
10. We have heard the learned Counsel for the parties to the lis.
11. Ms. Jayna Kothari, learned Counsel for the petitioner contended that the name of respondent No.3 in the present writ petition was not found in the marks list; that though he does not belong to 2A/PH category, he has been selected which is impermissible under law. She also contended that the impugned order passed by the KAT dismissing the application is contrary to the provisions of Section 32 of the Act and Articles 14, 15 and 16 of the Constitution of India. She further contended that the Tribunal has failed to notice that the reservation followed by the 1st respondent/KPSC in filling up of 21 posts reserved for the persons with disability is contrary to the ratio laid down by the Hon'ble Supreme Court in Mahesh Gupta -vs- Yashwant Kumar Ahirwar reported in (2207) 8 SCC 621. She also 12 contended that the persons with disabilities are of a distinct group by themselves and therefore, they cannot be further classified on the basis of caste, creed, gender or religion. It was also contended that the classification of a distinct, diverse and special class of people is not permissible in law. Therefore, the classification made in the impugned notification dated 14.8.2007 with regard to physically handicapped persons such as SC/PH, ST/PH, 2A/PH, GM/PH, etc., are illegal and in violation of the guidelines of the Hon'ble Supreme Court.
12. It was further contended by her that the impugned notification dated 16.10.2008 announcing the final selection list is illegal and is in violation of Article 21 of the Constitution of India as it denies the right of the petitioner for employment and livelihood which is part of his life. Under the reserved PH category, the petitioner, who is ranked 15th among the PH category, is denied of the opportunity of being appointed to the said post, when 21 seats have been reserved for PH category. She further contended that 13 the impugned notification dated 14.8.2007 making several sub-categories of reservation within the PH category amounts to violation of the requirements of provisions of Sections 32 and 33 of the Act. The Act requires appropriate authority to reserve at least 3% of posts for persons with disability. Such a right is denied to the applicant which amounts to violation of his statutory right to equal opportunities in employment under the Act, 1995. In support of her contentions, she relied upon the following authorities:
i) Indira Sawhney -vs- Union of India (AIR 1993 SC 477);
ii) Union of India and Another -vs- National Federation of the Blind [2013 (12) SCALE 588;
iii) Mahesh Gupta -vs- Yashwant Kumar [(2007)8 SCC 621];
iv) Dr. Rajesh Kumar Tiwari -vs-State of UP and Others [2007(1) AWC 282];14
v) Dr. Ravindra Kumar Pande son of Ramesh Chandra Pandey -vs- The State of UP [WP 12603/2003 dated 3.7.2006];
vi) Selvy Valentrina -vs- State of Kerala [2010(1) KLT 5]; and
vii) Vibhor Raj and Another -vs- The Convenor, Common Law Admission Test [2011(2) ADJ 59] Among all these grounds, she sought to set aside the impugned order passed by the KAT.
13. Per contra Sri Reuben Jacob, learned Counsel for respondent No.1; Sri D. Ashwathappa, learned AGA for respondent No.2; Sri C. Shivakumar, learned Counsel for respondent Nos. 4 and 9; Sri P. Rajashekar and Sri R. Naveen Kumar, learned Counsel for respondent No.5; Sri L Srinivas Babu, learned Counsel for respondent No.8 and Sri M.C. Jayakeerthi, learned Counsel for respondent No.10 sought to justify the impugned order passed by the KAT. Sri S.G. Pandit, learned Counsel for respondent No.3, 6 and 7 does not 15 dispute the fact that respondent No.3 belongs to 2A category and is appointed under 2A/PH category. But he contended that respondent No.3 has completed 7 years of service and he should not suffer for the fault committed by the 1st respondent/KPSC. Therefore, he sought to rely upon the judgment of the Hon'ble Supreme Court in the case Rajesh Kumar Daria -vs- Rajasthan Public Service Commission And Others reported in 2007(8) SCC 785.
14. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.
15. It is an undisputed fact that the 1st respondent/KPSC issued notification dated 14.8.2007 inviting applications to fill up the 648 posts of Assistant Engineers (Civil) in various categories of reservations and 21 posts were reserved for persons with disabilities as follows:
16
Sl.No. Category Posts 1 SC 3 2 ST 1 3 Category-I 1 4 Category-2A 3 5 Category-2B 1 6 Category-3A 1 7 Category 3B 1 8 General Merit 10 Total 21 The notification clearly mentioned that only hearing impairment and locomotor candidates are eligible to apply for the post reserved under the disability category, which means the candidates with blind/visually impaired are not eligible to apply for the posts. It is also not in dispute that out 648 posts, 21 posts are reserved for persons with the said disability by providing reservation to different categories. In the present case, the petitioner belongs to 2B/PH category - physically handicapped locomotor category. In the marks list, his named is found at Sl.No.15. The person at Sl.No.11 was selected under 2B/PH category (physically handicapped category), who secured 70.11 marks and the petitioner got 67.76 marks. Admittedly, the name of 17 respondent No.3 in the present writ petition is not at all found in the marks list nor does he belong to 2A/PH category, but he has been selected under reserved post of physically handicapped persons.
16. The reasons assigned for the selection in the provisional list in the letter dated 26.9.2008 show that "As per rules and on the basis of the Merit, first 10 candidates have been selected under General Category/reserved for disabled. In remaining 11 Posts, 3 Posts were reserved for 2A category and due to shortage of disabled candidate belonging to 2A category, 2 candidates were selected and remaining 1 post has been filled by non-disabled candidate belonging to 2A category. For remaining number of posts reserved for the disabled candidates, the disabled candidates, who belonged to that respective category have been appointed". The said clarifications/reasons assigned in support of the provisional selection list are contrary to the provisions of Sections 33 and 36 of The Persons with Disabilities (Equal Opportunities, Protection of 18 Rights and Full Participation) Act, 1995 which reads as under:
"33. Reservation of Posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent 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
disability;
Provided that the appropriate
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.19
36. Vacancies not filled up to be carried forward - Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three 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 three categories with the prior approval of the appropriate Government."20
A plain reading of the provisions of Section 30 of the Act makes it clear that - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. The persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from blindness or low vision; hearing impairment; locomotor disability or cerebral palsy, in the posts identified for each disability:
17. The provisions of Section 36 of the said Act clearly indicate that where in any recruitment year any vacancy under Section 33, cannot be filled up due to non- availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories i.e., blind or low vision, hearing impairment; and locomotor 21 disability or cerebral palsy in the posts identified for each disability and as contemplated under Section 33 of the said Act. 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. Which means, for two succeeding years, the appointing authority cannot appoint any person other than the disability category as mandated under Section 36 of the said Act. Ultimately on 2nd occasion, if any such person cannot be employed, the vacancy may be interchanged among the three categories with prior approval of the Government.
18. In the present case, admittedly the procedure as contemplated under the provisions of Sections 33 and 36 of the said Act stated supra, has not been followed by the 1st respondent, while filling up of 21 posts reserved for disabled persons. It is also not in dispute that respondent No.3 does not belong to 2A/PH category and his name was not found in the marks list 22 and his is entirely from a different category in as much as he does not belong to any one of the categories of different physically handicapped categories. Therefore, the very selection made by the 1st respondent appointing the 3rd respondent for the reserved post 2A/PH category, is contrary to law. Admittedly, he belongs to 2A category, but he is a non-disabled person. He has been wrongly selected under 2A/PH category by the KPSC. The same is impermissible in view of the provisions of Sections 33 and 36 of the said Act.
19. The Hon'ble Supreme Court while reserving 50% of reservation in the case of Indira Sawhney -vs-
Union of India reported in AIR 1993 SC 477 at paragraph 95 has held as under:
"95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, 23 which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after 24 providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."(emphasis supplied)
20. The Apex Court while considering the provisions of Sections 2, 32, 33, 36, 38, 39, 41, 72 and 73 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in the case of Union of India and Another -vs- National Federation of the Blind reported in 2013(12) SCALE 588 at paras 51 and 52 has specifically held as under:
"51. Thus, after thoughtful consideration, we are of the view that the 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 25 number of vacancies in the cadre strength" which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2015, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court.
52. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indira Sawhney (supra) is not applicable with respect of the disabled persons."(emphasis supplied)
21. In another decision, the Apex Court while considering the reservation of handicapped and disabled persons in the case of Mahesh Gupta -vs- Yashwant Kumar Ahirwar reported in (2007)8 SCC 621 at paras-
12, 13, 14 has held as under:
"12. Disability has drawn the attention of the worldwide community. India is a 26 signatory to various International Treaties and Conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfill 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 Castes 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.
13. It is a travesty of justice that despite the State clarified its own 27 position in its order dated 1.01.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a presumption that as the word "handicapped" was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of Executive Construction was given a complete go bye. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner respondent, it could have done so. It did not take any measure in that behalf. It chose to 28 terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity.
The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 212 : AIR 1993 SC 477], reservation for women or handicapped persons would not come within the purview thereof.
14. Furthermore, when the decision was taken, the Persons with Disabilities 29 (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the 1995 Act") had come into force. In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.
15. For the reasons aforementioned, we not only set aside the judgment of the High Court but also direct that the persons whose services have been terminated in terms of 4.02.2004 should be continued in service. We furthermore direct that they should be paid back wages as also other service benefits.
Respondent No. 1 could have been considered both as handicapped persons as also Scheduled Castes and Scheduled Tribes. If all the vacancies meant for Scheduled Castes, Scheduled Tribe had not been filled up, the State may consider appointing him. If he has already been appointed, the State may consider the desirability of creating a 30 supernumerary post and continue his service therein". (emphasis supplied)
22. The Apex Court in the case of Dr. Rajesh Kumar Tiwari -vs- State of U.P. and Others reported in 2007(1) AWC 282 while considering 3% reservation for physically handicapped persons has specifically held at para-26 as under:
"26. The provision for adjustment of selected candidate to the caste/category to which he belongs has erroneously been construed as horizontal reservation being caste/category based. The vacancy for physically handicapped had to be worked out on total number of vacancies for which selection was being held and not by working out to the caste/category to which a candidate applying as physically handicapped belonged. The G.O. extracted earlier does not directly or indirectly provides that the vacancy for physically handicapped should be worked out caste/category wise. The allocation of 31 one percent vacancy for different categories of physically handicapped could not form the basis for determining the percentage of reservation for physically disabled. The assumption made by the Commission that since the physically handicapped candidates had to be adjusted in the caste/category therefore the determination of vacancy had to be decided on the number of vacancies existing for a caste/category is unsound and against the principle of horizontal reservation as explained by the Apex Court. The Legislature did not permit working out percentage on vacancies of General, OBC or SC. It had to be three percent of the total vacancies and then the selected candidate had to be adjusted as provided in the G.O. to the caste/category to which the candidate belonged."(emphasis supplied) 32
23. The Apex Court in the case of Selvy Valentrina
-vs- State of Kerala reported in 2010(1) KLT page 5 has specifically held that:
"the question is whether the principle of communal reservation is to be followed while making special reservation. Special reservation is intended to achieve a special objective to provide for the disabled, the ex-servicemen, women, etc. If such special categories are to be provided in public service and in case therein also communal reservation is followed, it would defeat the very purpose of special reservation. That is not intended by the framers of the Constitution. The intention is otherwise. As held by the Supreme Court in Mahesh Gupta's case, the reservation under Article 16(1) - special reservation - is horizontal reservation; whereas reservation under Article 16(4)
- social reservation - is vertical. In special reservation, there is no need or relevance for communal reservation. They are a class in themselves. It has 33 also been held by the Supreme Court that while providing for special reservation even the limit of 50% reservation as made mandatory by the Supreme Court in Indira Sawhney does not apply. Once the above principle is clear, it is easy to analyse the facts of the present case.
24. In selection of 21 posts reserved for candidates with disability, reservation has not been followed by the 1st respondent/KPSC while inviting the applications for the post of Assistant Engineers under notification dated 5.7.2007. The selection and appointment of respondent No.3, who belongs to 2A category (General i.e., non-
disabled) under 2A physically handicapped category is contrary to the provisions of Sections 33 and 36 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the dictum of the Hon'ble Supreme Court as stated supra. Since the petitioner belongs to one of the categories mentioned under the provisions of Section 33 of the Act, certainly he is entitled for appointment to the 34 post of Assistant Engineer under 2A/PH category. The 3rd respondent, who belongs to 2A category (general merit) should not have been appointed. Therefore, the selection made by the 1st respondent/KPSC selecting the 3rd respondent in 2A/PH category is contrary to the notification dated 14.8.2007 and the provisions of Sections 33 and 36 of the Act. So also the same is in violation of Articles 16(1) and 14 of the Constitution of India. Therefore, the selection made by the 1st respondent/KPSC selecting respondent No.3, is invalid.
25. Admittedly the KAT while passing the impugned order has not adverted to the aforementioned aspects of the matter, whereby it proceeded to dismiss the application of the petitioner under wrong notion. Hence the impugned order passed by the KAT is not sustainable and the same is opposed to the provisions of the said Act. The question of challenging the Government Order dated 22.11.2002 as observed by the KAT does not arise, when the provisions of Sections 33 35 and 36 of the said Act clearly depict that in any appointment made by every appropriate Government, there shall not be less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from blindness or low vision; hearing impairment; locomotor disability or cerebral palsy. The Government cannot go beyond the provisions of Sections 33 and 36 of the said Act.
26. For the first time, reservation was provided to physically handicapped candidates under the notification dated 14.8.2007. Undisputedly the petitioner herein was the highest scorer under the physically handicapped candidates, from among the failed candidates. All the 21 posts are reserved for hearing impairment and locomotor disability candidates. It is also not in dispute that the petitioner is the candidate with locomotor disability and is more meritorious (who has scored highest) in unsuccessful candidates.It is not in dispute that the third respondent is not the physically disabled candidate. All these facts 36 clearly reveal that the post reserved for physically disabled candidate should have been given to the next best candidate under the very category of physically disabled, as per Section 33 read with Section 36 of the Act. In the first year of recruitment itself, it is not open for the State Government to shift the reserved post to unreserved candidate in physically handicapped category.
27. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. The disabled people constitute a special class. Reservation for persons with disabilities has nothing to do with the ceiling of 50%. 3% of the vacancies are to be reserved in favour of physically handicapped persons. This would be a reservation relatable to Clause-1 of Article-16. These factors are overlooked by Respondents 1 and 2 while not considering the case of the petitioner and while selecting the 3rd respondent herein. 37
28. Under any stretch of imagination, the selection of the third respondent cannot be said to be legal. On contrary, his selection is illegal, unauthorised by law and illogical. Hence, the same is liable to be quashed.
29. In view of the aforesaid reasons, writ petition is allowed in part. The impugned order passed by the KAT dated 19th May, 2010 made in Application No.5971/2008 is hereby quashed. So also the final selection list dated 16.10.2008 in so far as selection of respondent No.3 - Mr. Manjunath H.M., under 2A/PH category is quashed. We declare that the petitioner is entitled to be appointed to the post of Assistant Engineer (Civil) under 2A/PH category.
30. However, we make it clear that though the 3rd respondent belongs to 2A-General category, he has been wrongly selected under 2A/PH category. Since he has been in service for more than 7 years, it is open for him to approach the competent authority by making 38 appropriate representation for alternative remedy, if permissible in accordance with law.
Sd/-
Judge Sd/-
Judge Nsu/-
CT: Pr*