Rajasthan High Court - Jaipur
Jakir Hussain vs State Of Raj And Ors on 22 October, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: ORDER :: D.B. CIVIL WRIT PETITION NO.2058/2010 Jakir Hussain Vs. State of Rajasthan & Ors. 22.10.2013 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE BANWARI LAL SHARMA Mr.Shailesh Prakash Sharma for the petitioner.
Mr.Ashok Gaur, Senior Advocate assisted by Mr.Himanshu Jain for the respondent No.3.
Mr.S.N.Kumawat, for the RPSC.
***** Heard Mr.Shailesh Prakash Sharma, learned counsel for the petitioner, Mr.Ashok Gaur assisted by Mr.Himanshu Jain for respondent No.2 & Mr.S.N.Kumawat, learned counsel for Rajasthan Public Service Commission.
The pleaded case of the petitioner, in short, is that he is a handicapped person with 40% locomotor disability and is entitled to due preference in the matter of public employment, as contemplated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 (for short, hereafter referred to as 'the Act'). A notification was published on 27.8.2008 by the Rajasthan Public Service Commission (for short, hereafter referred to as 'the Commission')initiating the process for direct recruitment to the Rajasthan Judicial Service (hereafter referred to as 'the Service'), whereby 87 posts were advertised, out of which, 2 posts were reserved for disabled persons.
According to the petitioner, in terms of the Rajasthan Employment of the Persons with Disabilities Rules, 2000 (for short, hereafter referred to as 'the Rules'), one post for a candidate with locomotor disability and cerebral palsy and the other for visually impaired, was reserved. As per the notification, the petitioner applied and appeared in the related examination and the results disclosed that he had secured 139 marks. The results revealed that in view of the marks secured by him, he was not adjudged qualified to be called for the interview as the cut off marks for candidates with locomotor disability was 155. The petitioner has asserted that as 87 posts were advertised, 261 (87 x 3) candidates ought to have been declared successful in the written examination, and instead, only 257 persons were proclaimed to be so. He has further averred that only 2 persons out of the disability category had been called by the Commission for the interview. While contending that having regard to the number of posts reserved for physically handicapped candidates, 6 ought to have been declared to be successful in the written examination and called for the interview, the petitioner has impugned the action of the respondents in excluding him from the process after the written examination. A writ of mandamus, amongst others, had been sought for to adjudge him to be eligible for appointment to the Service on the basis of his performance in the selection process involved.
The respondent No.2, in its reply, while admitting that two of the advertised posts out of 87 had been reserved for physically handicapped persons, averred that the results had been declared to the extent of approximately three times the number of vacancies and the candidates successful in the examination had been called for the interview. It has been stated that due to shortfall of the reserved category candidates, 257 had been called for the interview instead of 261. Vis-a-vis the petitioner, the respondent has pleaded that the cut off marks for the physically handicapped (locomotor disability category) was 155, whereas he had secured only 139 marks, and therefore, was construed ineligible to be called for the interview. The petitioner's grievance has been dismissed as unfounded and the reliefs claimed to be misconceived.
The learned counsel for the petitioner has argued that as the posts reserved for the different categories of physically handicapped persons are interchangeable in case of non-availability of a candidate of a particular category, in absence of any explanation by the respondents vis-a-vis the post reserved for visually impaired, an appropriate writ, order or direction ought to be issued to accommodate the petitioner against the said vacancy. The learned counsel has however, not disputed that the petitioner had secured 139 marks, and that, the cut off marks for the physically handicapped candidates with locomotor disability was 155.
In reply, the learned counsel for the respondents, with reference to Section 36 of the Act and Rule 5 of the Rules, has urged that not only the petitioner is ineligible, on the basis of his performance, to be accommodated against the reserved post earmarked for the physically handicapped candidates with locomotor disability, his claim to be recruited against the vacancy identified for the visually impaired, is also misconceived. It has been argued that in terms of Section 36 of the Act and Rule 5 of the Rules, if any vacancy reserved for persons with disability in a recruitment year cannot be filled up due to non-availability of a suitable person with disability, such vacancy has to be carried forward to the succeeding recruitment year and if in the succeeding recruitment year also, suitable person with disability is not available, it might first be filled by interchange amongst the three categories and only in the event of failure to do so, the appointment thereto can be made of a person other than a person with disability, and thus, there is no vested right in the petitioner to insist for appointment against the vacancy earmarked for the visually impaired even if unfilled, and thus, the petition is liable to be dismissed.
Upon hearing the learned counsel for the parties and on a consideration of the pleaded facts as well as the provisions of Section 36 of the Act and Rule 5 of the Rules, we are inclined to sustain the pleas taken on behalf of the respondents.
Not only admittedly, the petitioner on the basis of his performance and the marks secured, could not be recruited against the vacancy earmarked for physically handicapped candidate with locomotor disability, the legal provisions referred to hereinabove as well, do not permit him to be accommodated against the other vacancy kept apart for the visually impaired even if the same had remained unfilled for non-availability of a candidate of that category. Admittedly, the selection process involved is of the year 2008, and at this point of time, on the completion thereof, the persons selected have been appointed and are rendering their services.
In the above view of the matter, we do not find any merit in the challenge. The petition is therefore, rejected.
(BANWARI LAL SHARMA),J. (AMITAVA ROY),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, P