Punjab-Haryana High Court
Avijit Singh vs State Of Haryana And Others on 11 March, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 5024 of 2012
Date of Decision: 11.03.2013.
Avijit Singh ...Petitioner
Versus
State of Haryana and others ..Respondents.
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Pradhuman Singh, Advocate, for the petitioner.
Mr. B.S.Rana, Addl. Advocate General, Haryana,
for the respondent-State of Haryana.
Mr. H.N.Mehtani, Advocate, for respondent No.5.
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A.K.SIKRI C.J.(Oral)
In this petition, the petitioner, who is an Advocate, has raised an issue for grant of benefit of reservation in Government posts to the disabled persons who fulfill the definition as contained in Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (hereinafter referred to as 'the Act').
2. The grievance of the petitioner is that the reservation of posts meant for disabled persons, as required under Section 33 of the said Act, has not been accorded while filling up various vacancies. Thus, a writ in the nature of mandamus is sought seeking a direction to the respondents to reserve 3% posts for 'physically handicapped category' and out of that to reserve 1% posts for 'hearing impaired' category.
3. It is not necessary to go through the detailed pleadings including the replies filed by the respondents because of the reason that Mr. Pradhuman Singh, learned counsel for the petitioner has pressed the CWP No. 5024 of 2012 [2] relief only to the limited extent which too is based upon the affidavit dated 16.03.2013 filed by the Secretary, Government of Haryana, Personnel Department. In this affidavit, the position of various posts in the State of Haryana and the provision for disabled persons is mentioned in detail. However, as far as Haryana Civil Services (Executive Branch) is concerned, while stating that the reservation as per the roster points i.e. Points No. 26, 52 and 82 is provided and emphasizing that the same would remain undisturbed, at the end following assertion is also made:-
"However, if there would have been reservation policy for persons with disabilities in recruitment to the HCS (Executive Branch) since 01.02.1996 then two posts i.e. Roster points No. 26 and 52 would have also come to the share of persons with disabilities".
4. It is thus clear from the above that there is a backlog of two posts i.e. roster points No. 26 and 52 which have not been filled up. It appears that misunderstanding on the part of the respondents is that the reservation policy is not to be effective from 01.02.1996 as otherwise it is admitted that had it been so two posts would come to the share of the persons with disabilities. Inevitably, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enforced w.e.f. 07.02.1996. Once the provisions of this Act were enforced from that date, it becomes the statutory obligation of the respondents to provide 3% reservation as per the mandate of Section 33 of the said Act in respect of the posts which fall vacant after 07.02.1996. This is so held by the Apex Court as well in case Government of India through Secretary and another Vs. Ravi Parkash Gupta and another Special Leave Petition (C) No. 14889 of 2009 decided on 07.07.2010.
CWP No. 5024 of 2012 [3]
5. As pointed out above, the respondents in their affidavit have accepted that if the reservation is to be made w.e.f. February, 1996, two posts of Haryana Civil Services (Executive Branch) would come to the share of the persons with disability. Thus, in order to clear the aforesaid backlog in the forthcoming selection, two posts shall be reserved for the persons with disabilities.
6. Likewise, in so far as the Assistant Excise & Taxation Officer cadre is concerned, in the communication addressed by the Excise & Taxation Department to the Advocate General, Haryana vide memo No. 2029 dated 08.03.2013, it has been specifically admitted that one post of Assistant Excise & Taxation Officer is lying vacant and whenever the requirement is sent to the Government, the post of physically handicapped quota would be filled up according to rules and instructions.
7. The respondents had issued advertisement for filling up the posts of Haryana Civil Services (Executive Branch) without taking into consideration the aforesaid two posts which were to be reserved for the persons with disability. We are informed that preliminary examination for the posts of Haryana Civil Services (Executive Branch) has already been conducted and the main examination for the same is going to be held in April, 2013, though as of now the final date for the said examination has not been fixed.
8. In these circumstances, we dispose of this writ petition with the following directions:-
i) The Government shall sent a requisition to the Haryana Public Service Commission within a period of three days from today earmarking two posts of Haryana Civil Services (Executive CWP No. 5024 of 2012 [4] Branch) for the persons with disability.
ii) Haryana Public Service Commission shall issue advertisement/clarification/corrigendum stipulating therein that two posts out of the posts which have already been advertised are meant for disabled persons. Fifteen days time shall be given to the eligible candidates to apply for these posts. A preliminary examination for such candidates shall be conducted immediately thereafter by the Commission. Those who qualify the preliminary examination under this category, their main examination can be conducted along with other candidates in respect of whom preliminary examination has already been held. This fact would also be stated in the advertisement which would be issued by the Commission inviting applications from disabled persons.
(A.K.SIKRI) CHIEF JUSTICE 11.03.2013 (RAKESH KUMAR JAIN) 'ravinder' JUDGE