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[Cites 9, Cited by 0]

Andhra Pradesh High Court - Amravati

Kowuri Nagi Reddy, vs The State Of A.P., on 16 August, 2021

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          * HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

               + WRIT PETITION No.9013 of 2021


                         % 16th August, 2021

#   Kovvuri Nagi Reddy

                                                           ... Petitioner

AND


$ The State of Andhra Pradesh rep. by its
   Principal       Secretary,     General
   Administration (Service) Department,
   Secretariat, Velagapudi, Amaravathi and
   four others.

                                                     ... Respondents.




! Counsel for the Petitioner     : Sri Raja Reddy Koneti




^ Counsel for the respondents : Government Pleader for Services-III




< Gist:




> Head Note:



? Cases referred:



1) AIR 1958 SC 353
2) AIR 1955 SC 765
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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                WRIT PETITION No.9013 of 2021
ORDER:

This Writ Petition is filed for the following relief:

".....to issue any writ or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings of the 4th respondent in Rc.No.ESE02/141/2019-TET- CSE, dated 06.03.2021 as illegal, arbitrary and contrary to para 17 of the notification issued by the Commissioner inviting applications for the posts, Rule 20 of the TET cum TRT Rules, 2019 issued by the Government read with the Proviso to Rule-22(2)(e) of A.P. State and Subordinate Rules, 1996, procedure for carry forward, interchange process of vacancies under section 34 (2) of the Right of Persons with Disabilities Act, 2016 and also the order of this Hon'ble Court in W.P.No.23491/2020, dated 19.02.2021 and consequently direct the 4th respondent to appoint the petitioner for the above said post and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

This Court has heard Sri Raja Reddy Koneti, learned counsel for the petitioner and the learned Government Pleader for Services-III, who has filed his counter affidavit on behalf of the 2nd respondent, the main answering respondent. FACTUAL BACKDROP:-

The petitioner before this Court is a physically challenged person, with a serious visual disability. He has applied for a job with the respondent. As he was not selected he has filed the present Writ Petition questioning the respondent's interpretation of the rule in question, by which his case was negatived.
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It is a fact that both the Union Government and the State Government have encouraged and are trying to encourage the persons with disabilities by ensuring that adequate representation is there in employment among other things. By virtue of the periodic amendments in public employment for people with disability the present reservation in the jobs for the disabled stands at 4%. In the case on hand the Notification dated 15.02.2019 also provides for similar reservations in line with the earlier GOs, which was issued on the subject. The petitioner has applied for and tried to get selection, but as he was not given an appointment in the applicable roster point, according to him, he has filed W.P.No.23491 of 2020, wherein the learned Single Judge interpreted the Rule 22 (2)(e) of A.P. State and Subordinate Rules, 1996 and directed the respondents therein (present 2nd respondent included) to consider the case of the petitioner for appointment for a particular roster. The petitioner made a representation based on the orders passed by the Court. However, by proceedings dated 06.03.2021, the candidature of the petitioner was rejected once again. In the said proceedings, it was mentioned by the respondents as the petitioner is a male and the applicable roster point is reserved for women it does not permit them to fill up the post. The respondents urged that the roster has to be carried forward and only after completion of three recruitments the case of others can be considered, if qualified women candidates are not available.
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The other admitted facts are G.O.Ms.No.23 issued on 26.05.2011 initially provided for three points in a roster of 100 points. These are at 6th, 31st and 56th. These were allotted to visually handicapped, hearing handicapped etc., as stipulated in the G.O. This was later amended by GO.Ms.No.4, dated 09.02.2019 and roster point 82 was fixed for candidates with autism, intellectual disabilities etc. The modifications etc., are not in doubt. Therefore, they are not being reproduced at length.

PETITIONERS CASE:-

As per the learned counsel for the petitioner Sri Raja Reddy Koneti the G.O.Ms.No.23 which provided for the initial reservation is as follows:
"Where in any recruitment year, any vacancy cannot be filled up due to non availability of a suitable person with disability or, for any other sufficient reason as specified above, such vacancy shall be carried forward to the succeeding recruitment year for being filled from the same category. If in that year also qualified candidates of the same category are not available, the same shall be notified for being filled up by interchanging from among the three categories. Only when there is no person with disability of any of the 3 categories available for the post, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.
Provided that if qualified women candidates are not available for the posts reserved for women, qualified male candidates of the same category of disabled may be appointed."
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According to him the proviso which is mentioned in this G.O. clearly carves out an exception and states that if the qualified women candidates are not available, qualified male candidates with the same category of disability can be appointed. According to the learned counsel the idea behind the proviso is to carve out an exception to the general provision and to provide immediate employment to a challenged person. In fact, he draws the attention of the Court to para 18 of the Writ affidavit, wherein it is pleaded that a purpose of the proviso is to limit the operation of the general enactment. The 2nd point that the learned counsel urges is that the interpretation placed by the State on this rule is incorrect and that the carry forward procedure applies in case of non- availability to both the sexes with a specific benchmark disability for the vacancy The learned counsel relies upon Section 36 of the Rights of Persons with Disabilities Act, 2016 (in short "the Act") to support his submission. According to the interpretation of the learned counsel Section 34 of the Act, which provides for reservation and in particular Section 34 (2) of the Act applies to both the genders, male and female, provided they have the disability concerned and that carry forward need not be limited to 3 turns and only to a woman candidate as interpreted by the State. Therefore, on the ground of wrong interpretation and on the ground of failure to implement the order passed by the learned Single Judge, the Writ Petition is filed.

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RESPONDENTS CASE:-

For the respondents the learned Government Pleader appears and argues in line with the counter affidavit filed. In particular, he draws the attention of this Court to para 12 and 13 of the counter affidavit to argue that the interchange of roster points is only permissible and the vacancy can only be filled up only after three recruitments. Since this recruitment is being made for the first time, the learned Government Pleader argues that the petitioner is not eligible to be considered. However, he points out that the petitioner was placed at number one in the order of merit but as the post was reserved for physically handicapped /Visually handicapped woman it cannot be interchanged with a visually handicapped man. According to him the representation made has been rightly rejected and Rule 22 (2)(e) of the Andhra Pradesh State and Subordinate Services Rules, 1996 clearly prohibits the interchanging. It is also reiterated that in pursuance to this rule interchange is only permissible after the completion of three recruitments.

COURT -DETERMINATION:

This Court, after examining the submission, notices that the law governing the subject is the Central Act 49 of 2016 also known as the Rights of the Persons with Disabilities Act. The preamble to this Act makes it clear that it has been enacted to give effect to the United Nations Convention on the Rights of the Persons with Disabilities Act. The principles, which are 7 important as far as this Court is concerned are that for the empowerment of persons with disability there should be non- discrimination, equality of opportunities, accessibility and the equality between men and women. India is the signatory to the said convention and has ratified the same on 01.10.2007. Pursuant thereto and to give effect to the said ratification and the convention this Act was enacted. This is the purpose of this Act and the statement of reasons stands as a guiding light or the north star to interpret this Act. These purposes cannot be overlooked. In fact in Workmen of Dimakuchi Tea Estate v Management of Dimakuchi Tea Estate1 in para 9 the following passage from Maxell is reproduced:
"It is well settled that the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning of found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."

Section 2 (H) of the Act also deals with 'discrimination' and is as follows:

"(h) "discrimination" in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms to the political, economic, social, cultural, civil or any other 1 AIR 1958 SC 353 8 filed and includes all forms of discrimination and denial of reasonable accommodation."

Section 3 of the Act is as follows:

"3. Equality and non-discrimination - (1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality life with dignity and respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilize the capacity of persons with disabilities by providing an appropriate environment.
(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.
(4) .........
(5) .........."

Section 3 (1) to (3) are essential for the decision in this case.

Therefore, if the scheme of the Act is examined in line with its avowed principles it is clear that the purpose is to prevent any discrimination whatsoever on the basis of disability. It is also meant to ensure that the persons with disabilities enjoy their life with dignity and respect. A positive duty is cast upon the appropriate Government to utilise the capacity of persons with disabilities by providing adequate and appropriate appointments /employment 9 Against this backdrop for the purpose of analysis if the rule on which the respondents rely upon namely - Rule 6 (iv) of G.O.Ms.No.23, dated 26.05.2011, is split up into its component parts it is as follows:

"1) Where in any recruitment year, any vacancy cannot be filled up due to non availability of a suitable person with disability or, for any other sufficient reason as specified above;
(2) Such vacancy shall be carried forward to the succeeding recruitment year for being filled from the same category;
(3) If in that year also qualified candidates of the same category are not available, the same shall be notified for being filled up by interchanging from among the three categories;
(4) Only when there is no person with disability of any of the 3 categories available for the post, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.
(5) Provided that if qualified women candidates are not available for the posts reserved for women, qualified male candidates of the same category of disabled may be appointed."

If this rule is broken up into its parts and interpreted, it is clear that it deals with a "suitable person" with disability and does not discriminate on the ground of sex of the candidate. If a vacancy cannot be filled up in the first year it shall be carried forward to the succeeding recruitment year. If in that year also qualified candidates are not available with the benchmark disability the same shall be notified by filling up / and by interchanging amongst people with blindness, hearing 10 impairment, locomotor disability etc. Only when there is no person with any of these defined disabilities available the employer can fill up the post with any other person without a disability. This is the plain language interpretation of this rule.

However, the Proviso to this section clearly states that if qualified women are not available for the post reserved for women, a qualified male candidate with the same category of the disablement can be appointed. The proviso is reproduced here once again -

"Provided that if qualified women candidates are not available for the posts reserved for women, qualified male candidates of the same category of disabled may be appointed."

As rightly argued by the learned counsel for the petitioner the Proviso carves out an exception to the operation of the general rule. It is important to note that the rule does not provide for or mention about the "sex" of the challenged candidates. It does not mention - male or female. In the roster points the State has fixed the quota for men /women. The proviso however makes it very clear that if a qualified women candidate is not available for the post reserved for a woman, a qualified male candidate with the same disability can be appointed. The effect of the proviso is thus to carve out an exception to the general rule. The law on the subject is also very well settled and need not be repeated here. Para 10 of the Constitution bench Decision in Ram Narain Sons Ltd., and 11 Others v Assistant Commissioner of Sales Tax and Others 2 is reproduced hereunder.

"(10) .......It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other."

Thus it is clear that the interpretation placed by the State is not in consonance with -

(a) general law on the land particularly dealing with the effect of a proviso on the main section.

(b) not in line with the provisions of the Rights of Persons with Disability Act, which prohibits discrimination in any manner to a person with disability. They have to be given equality of opportunity, accessibility and the Act is also enacted to achieve the goal of equality between men and women. The State has a positive duty to utilize the capability of persons with disability by providing an appropriate employment. If the interpretation placed by the State is accepted it would amount to overlooking the effect of the Proviso and denying an immediate equal opportunity to the male candidate with the same disability.

In the case on hand the petitioner, even as per the counter affidavit, has stood first in the merit list. His candidature on the basis of his merit cannot be negatived. In 2 AIR 1955 SC 765 12 view of the proviso to this Section, which is specifically engrafted into the rules, this Court is of the opinion that even in the first year or the first recruitment year if a post is reserved for women with a disability and there is no qualified women candidate with that disability available, it must be given to the qualified man candidate with the same disability. Denying this opportunity would amount to discrimination between the sexes / persons, who have the same disability.

The purpose of engrafting the Proviso is to carve out an exception to the carry forward or the three successive recruitments, which the State is relied upon. Therefore, this Court holds that the interpretation placed by the State that only after three successive recruitment years this is possible is not correct.

Even a reading of Section 34 (2) of the Central Enactment Act 49 of 2016 makes it clear that it deals with the "carrying forward" of a recruitment for three successive notifications. If in a recruitment year a vacancy cannot be filled up due to the non-availability of a person with the benchmark disability it shall be carried forward to the next year. If in that succeeding year also the suitable person with the same disability is not available it can be filled up by interchanging among the five categories of disabilities (which are now specified in Section 34 of the Act). Thereafter, if this is also not possible, the vacancy can be filled up by appointing any person. In the opinion of 13 this Court the interpretation placed on this Section by the learned counsel for the petitioner is correct. It only deals with persons with a particular disability and is gender neutral. It does not specify that it is applicable to men or women. If the section is read based on the fundamental rule - the plain language interpretation it is clear that if such persons with disability are not available, after waiting for the next two recruitment cycles the post can be filled up by a person without a disability. However, the rules framed by the State have added the proviso which has the effect of carving out an exception to the rule.

The interpretation placed on this rule by the learned Single Judge while disposing the W.P.No.23491 of 2020 is in the opinion of this Court is the correct and proper interpretation. Despite the same, the State has interpreted the rule in a different manner.

In that view of the matter, the impugned order dated 06.03.2021 is set aside, and the petitioner, who is first on the merit list is directed to be appointed as a teacher under the physically challenged quota under Special DSC 2019 against the Roster Point No.6.

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With the above observations the Writ Petition is allowed. There shall be no order as to costs.

Consequently, the Miscellaneous Applications, if any, pending shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:16.08.2021.

Note: LR Copy to be marked B/o Ssv