Rajasthan High Court - Jodhpur
Gosai Ram vs State Of Raj. & Ors on 11 July, 2013
Author: Sangeet Lodha
Bench: Sangeet Lodha
GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12)
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GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12)
Dated:- 11.7.2013.
HON'BLE MR.JUSTICE SANGEET LODHA
Dr.Nupur Bhati, for the petitioner.
Mr. G.R.Punia, Additional Advocate General assisted by Mr. Y.P.Khileri, for the respondents.
Reportable
1. By way of this writ petition, the petitioner is seeking directions to the respondents to fill up two posts of Teacher Gr.III (Level-II) in subject-Sanskrit reserved for differently abled category-Blind & Hearing Impair, which remained vacant on account of non availability of the candidates, from amongst the candidates belonging to Locomotor Disability (LD)/Cerebral Palsy (CP) Category and further to appoint the petitioner against the said post inasmuch as, he stands in the merit.
2. The relevant facts in nutshell are that the respondent-Zila Parishad, Barmer issued an advertisement dated 24.2.12 inviting applications for appointment on the posts of Teacher Gr.III (Level-I and Level-II) in various subjects. The petitioner being eligible applied for appointment on the post of Teacher Gr.III in subject Sanskrit. Out of 238 posts in subject-Sanskrit, advertised as aforesaid, 7 posts were to be filled in from the candidates belonging to differently abled persons category. The petitioner GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 2 suffering from LD, applied for appointment to the post in the said category as OBC candidate. As per the roster applicable, out of 7 posts reserved for differently abled persons, 3 posts were to be filled in from Blind/Low Vision(LV) category, 2 from LD/CP category and 2 from amongst the Hearing Impairment category.
3. The respondent published a select list wherein 3 candidates belonging to LD/CP category, 1 amongst the Hearing Impairment category and 1 from Blind category were selected. Thus, 2 posts reserved for differently abled category remained vacant. The respondent issued the cut off list declaring cut off marks for LD/CP Category as 163.6 marks whereas, the petitioner had secured 161.32 marks.
4. Precisely, the case of the petitioner is that since the candidates belonging to the categories Blind/LV and Hearing Impairment were not available, the respondents were under an obligation to fill up the said posts from amongst the candidates belonging to other differently abled category i.e. LD/CP category. According to the petitioner, after appointment of 3 candidates belonging to LD/CP category, he stands at first in the waiting list of the candidates belonging to the differently abled category and therefore, he is entitled to be appointed on the said post inasmuch as, as per provisions of Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( for short "the Act of 1995"), if any GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 3 vacancy belonging to differently abled category cannot be filled up due to non availability of suitable person with a disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in succeeding recruitment year also, suitable person with disability is not available, it may first be filled by inter change 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. It is submitted that the respondents are filling up the posts reserved for differently abled category from General category which is ex facie illegal and arbitrary. Hence, this petition.
5. On 11.10.12, while issuing notice to the respondents to show cause as to why the petition may not be admitted, an interim order was passed by this court in favour of the petitioner in the following terms:
"In the meanwhile, the respondents are directed not to fill- up the posts allocated to handicap quota in the subject of Sanskrit from the persons belonging to any other category including general category."
6. A reply to the writ petition has been filed on behalf of the respondents taking the stand that 3% posts are reserved for differently abled persons and out of that 1% posts are reserved for each category i.e. LD/CP, Blind/LV and Deaf & Dumb. It is not GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 4 disputed that out of 7 posts of Teacher Gr.III (Level-II) in the subject Sanskrit, 3 were to be filled in from amongst Blind/LV category, 2 from Hearing Impairment category and 2 from LD/CP category. It is submitted that the petitioner belongs to LD/CP category and the last person appointed in the said category has secured 163.6 marks whereas the petitioner had secured 161.32 marks and therefore, being lower in the merit, he could not be selected and appointed. It is submitted that in the Hearing Impairment category, only 1 candidate was available and therefore, the remaining post as per the Government order dated 5.9.12 was filled up from amongst the candidate belonging to LD/CP category. In the reply filed, it has not been clarified as to how many posts in the category of Blind/LV have been filled up and whether any post remains unfilled in the said category or not. However, it is submitted that no posts is lying vacant and the petitioner is lower in merit hence, was not selected.
7. Learned counsel appearing for the petitioner reiterating the stand taken in the writ petition submitted that admittedly, 1 post in the category of Blind/LV and 1 post belonging to the category of Hearing Impairment remained unfilled on account of non availability of the candidates. It is submitted that as per the mandate of Section 36, in case of non availability of the suitable persons with the particular disability were not available then same were to be filled up by interchange amongst the 3 GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 5 categories of differently abled persons and since 1 post each in Blind/LV and Hearing Impairment category remained vacant, therefore, on account of non availability of the candidates , both the posts were required to be filled in from amongst the candidates belonging to LD/CP category and thus, the petitioner, who is the next candidate higher in the merit in the said category, could not have been denied appointment. Accordingly, it is submitted that the writ petition deserves to be allowed as prayed for.
8. On the other hand, learned Additional Advocate General appearing for the respondents submitted that vide order dated 5.9.12 issued by the State Government in terms of Rule 37(3) & 37(7) of Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Rules, 2011 ( for short "Rules of 2011"), the posts reserved for Hearing Impairment category remaining unfilled were to be filled in from the differently abled persons belonging to the category of Blindness/LV and LD/CP in the ratio of 50:50 and accordingly, 1 post belonging to Hearing Impairment category, was filled in from amongst the candidates belonging to LD/CP category and thus, the action of the respondents is in conformity with the Government order dated 5.9.12 and the Rules of 2011. However, on being asked by the court that the respondents have not clarified the position regarding 1 post belonging to GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 6 Blindness/LV category remained vacant, learned Additional Advocate General fairly submitted that the said post has been filled in by appointment of a candidate belonging to General category. On further query being made by the court that how ignoring the provisions of Section 36 of the Act of 1996, the post reserved for differently abled persons, could have been filled from amongst the candidates belonging to the General category, when the candidates belonging to differently abled category were still available, learned Additional Advocate General submitted that the mistake appears to have been committed on account of some confusion prevailing regarding the interpretation of the relevant provisions of the Act, the Rules and circular issued by the State Government thereunder. Learned Additional Advocate General fairly submits that if the unfilled post belonging to Hearing Impairment category is filled in by interchange of the category, from amongst the candidates belonging to differently disability then the petitioner being next in the merit in the category of LD/CP, is entitled to be appointed on the said post.
9. I have considered the rival submissions and perused the material on record.
10. Indisputably, out of the 7 posts reserved for differently abled persons belonging to the different categories of disability, 5 posts were filled in from amongst the candidates belonging to the different categories specified, however, 1 post belonging to GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 7 Blindness/LV category and 1 post belonging to Hearing Impairment category remained unfilled on account of non availability of suitable persons. It is not disputed before this court that the posts which remained unfilled were available to be filled in as per the mandate of Section 36 of the Act of 1995 by interchange among the 3 categories. Since, no suitable persons belonging to other 2 categories i.e. Blindness/LV and Hearing Impairment were available, obviously, by way of interchange, both the posts remaining vacant, were required to be filled in from amongst the available candidates belonging to LD/CP category. It is really strange that while making averments regarding the filling up of 1 post which remained unfilled in the Hearing Impairment category, from amongst the candidates belonging to LD/CP category, the respondents in their reply to the writ petition have remained completely silent regarding 1 post belonging to Blindness/LV category, which also remained vacant on account of non availability of the candidates belonging to the said category. As stated by learned Additional Advocate General before this court, the said post which remained unfilled on account of non availability of the candidates belonging to Blindness/LV category, has been offered for appointment to the General category. Thus, it is apparent that the respondents have deliberately suppressed the facts regarding filling up of the post, belonging to Hearing Impairment category from amongst the GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 8 candidates belonging to General category de hors the provisions of Act of 1995. It is pertinent to note that Rule 37 of the Rules only deals with the Maintenance of Rosters and it in no manner operate against the mandate of the provisions of Section 36 of the Act. As noticed above, Section 36 of the Act of 1995 specifically provides that if any vacancy belonging to differently abled category cannot be filled up due to non availability of suitable person with a disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in succeeding recruitment year also, suitable person with disability is not available, it may first be filled by inter change 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. As a matter of fact, the circular dated 5.9.12 relied upon by the learned AAG, only provides that posts belonging to Hearing Impairment category, which remained vacant, shall be filled in from amongst the eligible candidate belonging to Blindness/LV and LD or CP categories in the ratio of 50:50. It nowhere mandates that any of the posts reserved for differently abled persons can at all be filled in from amongst the candidates belonging to the General category, despite availability of persons with disability. Suffice it to say that an illegal action sought to be justified by the GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 9 respondents on the pretext of alleged confusion prevailing, cannot be countenanced by this court.
11. Thus, the petitioner belonging to the LD/CP category being available as per his merit position in the said category for appointment on the post remained unfilled on account of non availability of the candidates belonging to Blindness/LV category, he was entitled to be appointed on the said post and the vacancy could not have been filled in by appointment of the candidate belonging to General category. In this view of the matter, in considered opinion of this court, impugned action of the respondents in denying appointment to the petitioner and filling up the post from amongst the General category being in clear defiance of the provisions of Section 36 of the Act of 1995, cannot but deemed to be illegal and arbitrary and falls foul of Article 14 and 16 of the Constitution of India and therefore, the writ petition deserves to be allowed, as prayed for.
12. It is to be noticed that Act of 1995 has been enacted by the Parliament inter alia with an object to spell out the responsibility of the State towards the prevention of the disabilities, protection of rights, provision of medicare, education, training, employment and rehabilitation of persons with disabilities. Undoubtedly, it is bounden duty of the State to take all necessary steps to ensure that differently abled persons are extended equal opportunities in all spheres of development GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 10 including the public employment. It is really unfortunate that the respondent authorities acting in a perfunctory manner have attempted to fill up the post meant for differently abled persons by appointment of a person other than a person with disability in gross violation of mandate of provisions of Section 36 of the Act of 1995. On the facts and in the circumstances of the case, keeping in view, the unequivocal provisions of Section 36 of the Act of 1995, this court is constraint to observe that the action of the respondents in denying the differently abled person his legal entitlement on the pretext of alleged confusion prevailing and suppressing the relevant facts from the notice of this court, apparently lacks bona fides and deserves to be highly deprecated. The petitioner has been unnecessarily dragged to the litigation and therefore, on the facts and in the circumstances of the case, the respondents deserves to be saddled with exemplary cost.
13. In the result, the writ petition is allowed. The respondents are directed to take appropriate steps and offer appointment to the petitioner on the post of Teacher Gr.III (Level-II) in the subject Sanskrit as per his merit position in the category of LD/CP-differently abled persons against the post belonging to the Hearing Impairment category, which remained unfilled on account of non availability of the candidate belonging to the said category. The entire exercise pursuant to this order shall be GOSAI RAM VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10982/12) 11 completed by the respondents within a period of one month from the date of receipt of certified copy of this order. The petitioner shall be entitled for cost from the respondents quantified at Rs.10,000/-.
(SANGEET LODHA),J.
Aditya/-