Karnataka High Court
The Executive ... vs Sri. Mallikarjuna Revanasiddappa ... on 13 June, 2018
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.No.36192/2016 (S-RES)
BETWEEN:
THE EXECUTIVE DIRECTOR-CUM-
APPOINTING AUTHORITY
KARNATAKA RESIDENTIAL EDUCATIONAL
INSTITUTIONS SOCIETY,
KARNATAKA SAHAKARA
MAHAMANDALI BUILDING,
7TH FLOOR, CUNNINGHAM ROAD,
ADJACENT TO CHANDRIKA HOTEL,
NEAR HIGH GROUNDS POLICE STATION,
BANGALORE-560 052.
... PETITIONER
(BY SRI NAGAIAH, ADV.)
AND:
1. SRI. MALLIKARJUNA REVANASIDDAPPA HADIMANI
KHERDA POST, VIA MUDABI,
BASAVAKALYANA TALUK,
BIDAR DISTRICT
PIN: 585 437.
2. THE PRINCIPAL SECRETARY
SOCIAL WELFARE DEPARTMENT,
MULTISTOREYED BUILDING,
DR. AMBEDKAR ROAD,
BANGALORE-560 001.
3. THE STATE COMMISSIONER FOR
PHYSICALLY HANDICAPPED
(EQUAL OPPORTUNITY,
PROTECTION OF RIGHT AND
EQUAL PARTICIPATION),
NO.55, 2ND FLOOR,
KARNATAKA SLUM DEVELOPMENT
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BOARD BUILDING,
RISALDAR ROAD (PLATFORM ROAD),
SHESHADRIPURAM,
BANGALORE-560 020.
... RESPONDENTS
(BY SRI JAGADISH SHASTRY, ADV. FOR R1
SRI A C BALARAJ, HCGP. FOR R2 & R3)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER PASSED BY THE R-3 DATED 26.03.2016 VIDE
ANNEXURE-A.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS ON 07/06/2018, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioner is before this Court assailing the order dated 26.03.2016 passed by the State Commissioner for Physically Handicapped - (respondent No.3) directing the petitioner to appoint the respondent No.1 to the post of Lecturer in Social Science, pursuant to the recruitment notification dated 27.04.2011. The said direction is issued by respondent No.3 since they had not provided for reservation to physically handicapped persons and the respondent No.1 who suffers from Loco motor disability was denied the opportunity of being appointed.
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2. The case of the petitioner is that the respondent No.1 was no doubt in service as on the date of promulgation of the Karnataka Residential Educational Institutions Society (Cadre and Recruitment) Regulation, 2011. However, the petitioner was not entitled to grant of weightage as ordered by a Hon'ble Division Bench of this Court as he had not satisfied the requirement. In that view, the marks as secured in the examination was reckoned and the percentage of the respondent No.1 being 47.8625 is less than the cut off percentage of the last SC candidate who had secured 65.80250 and as such he was not selected. It is further contended that the reservation as sought for each category cannot be provided. The objection as filed before the respondent No.3 to that effect is referred. In that view the order of respondent No.3 - Commission is assailed.
3. The respondent has filed detailed objection statement seeking to put forth the same contentions which had been urged before the respondent No.3. The contention essentially is that Section 34 of The Rights of 4 Persons with Disabilities Act, 2016 ('PWD' Act for short) provides for reservation and the respondent No.1 being a person belonging to Schedule Caste category, with loco motor disability was entitled to be selected if reservation was provided to the physically handicapped, irrespective of the cut off percentage obtained by the last Schedule Caste candidate to which reference is presently made by the petitioner. Since such reservation as provided under the Act was not made, the respondent No.1 had approached the respondent No.3, who is the competent authority under the Act. In that light with reference to the notification dated 27.04.2011 and the number of posts for which application was called would point out that no reservation was made either for the post concerned or for the post of Warden to which post also the respondent No.1 had applied. In that view, it is contended that the respondent No.3 after appreciating these aspects has passed the order which is in accordance with law.
4. In the above background, I have heard Sri Nagaiah, learned counsel for the petitioner, 5 Sri Jagadish Shastry, learned counsel for respondent No.1, Sri. A.C.Balraj, learned Government Advocate and perused the petition papers.
5. The position relating to the subject recruitment is that the petitioner had issued the recruitment notification dated 27.4.2011 including for the post to which the respondent No.1 is seeking consideration. The said notification was the subject matter in W.P. No. 20204-20364/2011 and connected petitions. This Court through the order dated 13.07.2012, though did not interfere with the same, had issued certain directions providing for weightage in respect of persons who were already working. The operative portion of the order has in fact been extracted in the impugned order passed by the respondent No.3. The said order was upheld in W.A. No.5127/2012 and connected appeals through the order dated 28.02.2013 and thereafter the process of selection has been made. Though the weightage as ordered therein is one aspect of the matter, the issue to be considered herein at the outset relates to the 6 reservation to be provided for physically handicapped persons.
6. The learned counsel for the petitioner has relied upon the document at Annexure-B to indicate the percentage obtained by respondent No.1 at 47.8625 in Social Science- Kannada Medium Schools category and in that regard would refer to the tabulation along with Annexure-D to indicate that the cut off percentage indicated as against the SC-Rural candidate is 65.80250. Hence it is contended that the merit of the respondent No.1 is much below the last SC candidate. It is also contended that the respondent No.1 cannot be given the weightage as he had not worked as on the date of promulgation of the regulation.
7. Before taking note of the aspect relating to weightage, the issue mainly is with regard to providing reservation for the physical disability and to notice as to whether the same was provided at all. The total number of posts notified is available in the notification dated 27.04.2011. In that light, keeping in view the provision 7 contained in PWD Act, the reservation for the different categories is to be provided. It is evident that 1% is required to be reserved for loco motor disability. The requirement of providing for reservation is considered by this Court as well as by the Hon'ble Supreme Court as enunciated (i) in the case of The Secretary, Primary and Secondary Education and others -vs- Ravasaba Madalamatti and another; (ii) in the case of The Secretary, State of Karnataka and others -vs- Nagaveni M.C. and another (ILR 2007 Kar 3519)(DB) and (iii) in the case of Union of India -vs- National Federation of Blind and Ors (2013(12) SCALE 588) relied on by the learned counsel for the respondent No.1. In that background, it is necessary to notice whether in the instant case such reservation is provided.
8. In that regard a perusal of the very tabular statement relied by the learned counsel for the petitioner which is also available at Annexure-R8 along with the objection statement indicates that the percentage of marks obtained by any candidate is 8 shown under the category of physical disability, more particularly for loco motor disability under which the petitioner claims, though the same is shown as a category by marking it as 'LD' in one of the columns. The notification dated 27.04.2011 in fact does not indicate the reservation made for the physically handicapped category despite law providing for the same. The objection statement filed on behalf of the petitioner herein before the respondent No.3 in fact states that no reservation was provided in the notification dated 27.04.2011 and since the reservation was indicated in the Government notification dated 10.06.2011 and 26.07.2011, the reservation has been provided in the subsequent notification dated 03.11.2013.
9. While adverting to such stand taken by the petitioner, the learned counsel for the petitioner referred to the copy of such notification at Annexure -D to the writ petition. From the same, it is pointed out that for Social Science, reservation is provided to low vision/ blind. The said inclusion is made in view of the order 9 passed in W.P.No.25854/2011 (PIL). Even if that be so, earlier to that itself the reservation for other categories of physically handicapped including loco motor disability ought to have been provided. The learned counsel for respondent No.1 in that regard would refer to Annexure - R3 along with the objection statement, with reference to the tabular statement where under low vision and blind are shown as two separate heads as 3 and 1 post which is not permissible since the PWD Act indicates low vision and blind under one head. The said tabular column does not indicate the provision made for loco motor disabled candidates. The note only depicts that it is made for the future.
10. Thus in the above circumstances as noticed, it would be evident that reservation for loco motor disability has not been provided in the recruitment notification dated 27.11.2011. In a normal situation a challenge to the same after participating in the process will not be entertained. However, in the instant case, after the issue of notification there was challenge to the very process by several employees by assailing the said 10 notification on several grounds and in that background based on guidelines issued by the Court the process was completed. Further, it would also be the normal procedure to set aside the defective notification and direct the recruiting authority to set right the defect and redo the process. But if that course is adopted herein, the working out of the reservation in different category will alter the entire process and in the instant case it is seen that the notification is made for recruitment of teachers for 4071 posts and the process being of the year 2011 has been completed. Hence it will not be appropriate to disturb the entire process and at the same the contention of the respondent No.1 cannot be ignored and injustice be meted out due to that reason.
11. If in that background the impugned order passed by the respondent No.3 is taken note, the benefit of appointment is provided to the respondent No.1. Though the learned counsel for the petitioner referred to the cut off percentage of SC candidate and the lesser percentage of the respondent No.1 is taken without going into the question of weightage, the comparison 11 would have arisen only if there was another candidate with loco motor disability who was selected and the percentage of marks obtained by him was to be compared with that of respondent No.1. Therefore if the totality of the circumstance is taken and the appointment is given to the respondent No.1, the petitioner can in any event keep in view the same as an appointment provided to the loco motor disabled candidate and make such adjustment in the future recruitments if any while reserving for such category. In that circumstance, I see no justification to interfere with the impugned order dated 26.03.2016.
The petition therefore being devoid of merits, stands dismissed with no order as to costs.
Sd/-
JUDGE akc/bms