Punjab-Haryana High Court
Anil Kumar vs State Of Haryana And Other on 2 November, 2012
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.11645 of 2012(O&M)
Date of decision: 02.11.2012
Anil Kumar ......Petitioner(s)
Versus
State of Haryana and other ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Manoj Makkar, Advocate for the petitioner(s).
Rakesh Kumar Garg, J.(Oral)
The petitioner has approached this Court by filing the instant writ petition seeking the following relief:
"A writ in the nature of certiorari for quashing the action of the respondent vide declaration the result dated 12.1.2012 as well as result of PHC(ORTHO) 14 posts category which has not been prepared as per section 33 of the "Persons with Disabilities (Equal Opportunities Protection of the Right and Full Precipitation) Act 1995"
Further for the issuance of a writ in the nature of mandamus directing the respondents to provide reservation for physical handicapped candidates as horizontal reservation, i.e. as a sub category in each of the Main-categories like, General, Scheduled Caste, BC-A and BC-B and to earmark roaster points No.33 for General, for BC- A/BC-, and for SC for recruitment of Class-III and Class-IV posts, including recruitment to 304 posts of Shift Attendant in pursuance to the advertisement No.4/2008 dated 3.7.2008 Annexure P-1.
Further for the issuance of a writ in the nature of mandamus directing the respondents to prepare a separate sub category in the main category for PHC (ORTHO) for 3% reservation quota.
And/or for the issuance of any other appropriate writ, order or direction which this Hon'ble Court may deem fit in the peculiar facts and circumstances of the case;
It is further prayed that during pendency of the present writ petition and subject to outcome of the same, the respondent No.3 may kindly be restrained from finalizing and declaring the result for selection to the 14 posts of Shift Attendant in PHC(ORTHO) category in pursuance to the advertisement no.4/2008, dated 3.7.2008, Annexure P-1.
Cost of Writ Petition may also be awarded to the petitioner."
As per the averments made in this petition, vide advertisement No.4/2008 dated 3.7.2008, respondent No.3 advertised 304 posts of Shift Attendants in Power Department of Haryana. The relevant part of the aforesaid advertisement reads thus:
"Cat.No.3 304 posts of Shift Attendant(SA) (GEN=123, SC=48, BCA=34, BCB=19, ESM GEN-21, ESM SC=6, ESM BCA=7, ESM BCB=9, OSP GEN=2, OSP SC=3, OSP BCA=3, OSP BCB=2, PHC=27 (Blind/low vision=1, Partially deal=12, Orthopaedically handicapped=14). E.Q. i) Matric with two years ITI Certificate Course in Electrician/Electronics/Wireman Trade with knowledge of Computer and should have a training from a Government approved Institute for a period of at least 3 months covering the following topics as a part of course/training:-
a) Computer Fundamentals
b) Knowledge of operating systems
c) Operation of Internet/E-Mail
d) MS Word/Excel/Power points
ii) Hindi/Sanskrit upto Matric Standard."
According to the petitioner, he belongs to the Scheduled Category and suffers from 70% visual handicap and he being fully eligible in all respects applied, attaching all the certificates showing academic qualifications as well as Scheduled Caste Certificate and Certificate of Physically Handicapped, for selection to the post of Shift Attendant. After completion of process of shortlisting the candidates for selection to the said post, the petitioner appeared in interview against Roll No.00053. The result was declared on 12.1.2012 which includes the result of PHC (ORTHO) Category of 14 posts.
It is the case of the petitioner that as per the provisions of the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (for short 'the Act') respondents are bound to reserve 3% quota meant for persons with disabilities on the basis of 1:1:1 for blind, deaf/dumb and Orthopaedically handicapped persons for all government jobs and Section 33 of the Act is a mandatory provision which directs every appropriate Government to appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision (ii) hearing impairment; and (iii) locomotor disability of cerebral palsy, in the posts identified for each disability.
At this stage, it may be noticed that one Dinesh Kumar Bhatia filed CWP No.11845 of 2011 which was disposed of on 2.5.2012 wherein, the respondents had placed on record an affidavit dated 12.3.2012 stating that the Government had issued instructions to ensure the filling up the backlog of vacancies meant for Disabled persons vide notification dated 7.1.2010 and 7.4.2011. On the basis of aforesaid facts, it was contended that the process of identifying the backlog vacancies was in place and as and when the vacancies were identified, such posts shall be filled up to maintain overall 3 percentage in terms of the Act. A further communication dated 1.5.2012 was placed on record clarifying that the persons with disabilities have been given horizontal reservation. In view of the aforesaid stand taken, the said writ petition was disposed of.
On the basis of the aforesaid judgment and the facts, counsel for the petitioner has challenged the selection in question stating that the horizontal reservation has not been adhered to in the impugned selection. However, counsel for the petitioner was at a loss to refer to any pleadings/averments/data as to how the impugned selection can be quashed being violative of the horizontal reservation. Moreover, the petitioner has claimed himself to be visually handicapped and thus, he could have claimed his right to selection against such vacancy. Admittedly, only one vacancy has been reserved for visually handicapped person. As per the result, the said vacancy has been filled up. The petitioner has not challenged the filling up such a vacancy on any other ground. The petitioner has already taken part in the selection process in spite of the fact that reservation was notified and provided in the advertisement itself. After taking a chance for selection now the petitioner cannot be allowed to challenge such reservation as advertised by the respondents.
Not only this, it may further be noticed that the petitioner has placed on record a certificate Annexure P-7 to show that he is a physically handicapped person. However, a perusal of the said certificate would show that the same has been issued to the petitioner being polio stricken by some Handicapped Welfare Society and does not in any way support the averments made in para No. 3 of the writ petition wherein the petitioner has stated that he is visually handicapped.
Counsel for the petitioner was at a loss to show as to whether such a certificate which was not issued by any Medical Board/Authority could be taken into consideration for taking benefit under the category of Physically Handicapped.
For the aforesaid reasons, I find no merit in the petition. Dismissed.
November 2, 2012 (RAKESH KUMAR GARG) ps JUDGE