Himachal Pradesh High Court
Harsh Kumar vs State Of H.P. & Ors on 16 October, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 6887 of 2022
Decided on 16th October, 2023
Harsh Kumar ...Petitioner
Versus
.
State of H.P. & Ors. ...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting? Yes
For the petitioner: Mr. Ashwani Kaundal, Advocate.
of
For the respondents: Mr. Anup Rattan, Advocate General, with
M/s Rupinder Singh and Pushpinder
Jaswal, Additional Advocate Generals
rt and Mr. Rajat Chauhan, Law Officer, for
respondents No.1 and 3.
Mr. Vikrant Thakur, Advocate, for
respondent No.2.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:-
(i) "To quash the Annexure P-2 advertisement dated 28.08.2022 and further directed the respondents to issue the fresh advertisement for filling up the post of Ayurvedic Medical Officer by including the post reserved for the unreserved (low vision) category.
(ii) That respondents may kindly be directed to fill up the post of Ayurvedic Medical Officer in accordance with the Section 34(2) of the right of person with disability Act, 2016.
(iii) That the respondents may kindly be directed to consider the candidature of the present petitioner for the post of Ayurvedic Medical Officer under the category of unreserved (low vision)."
::: Downloaded on - 19/10/2023 20:34:24 :::CIS 22. The case of the petitioner is that he is suffering from the disability of (low vision) upto 75%. The unique disability ID, issued to the petitioner by the appropriate Authority, is appended with the .
petition as Annexure P-6. According to him, in terms of Annexure P-1, Advertisement No.11 of 2018, dated 23.10.2018, online applications were invited from the desirous and eligible candidates for recruitment to 100 posts of Ayurvedic Medical Officers. Out of the of said posts, one post was reserved for un-reserved low vision category; however, this post remained unfilled.
rt
3. His grievance is that vide Annexure P-2, when again advertisement was issued by the Himachal Pradesh Public Service Commission dated 22.08.2022, inviting applications from the desirous and eligible candidates for recruitment to 100 posts of Ayurvedic Medical Officers, on contract basis, the post, which had remained unfiled in the process, initiated in the year 2018, stood erroneously reserved for the Scheduled Tribes of Himachal Pradesh Visually Impaired Category, ignoring the provisions of Section 34(2) of the rights of persons with disability Act, 2016, in terms whereof, where in any recruitment year, any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or any other sufficient reasons, such vacancy shall be carried forward ::: Downloaded on - 19/10/2023 20:34:24 :::CIS 3 in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, then it may first be filled by interchange among the five .
categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy for appointment of a person, other than a person with disability.
4. Learned counsel for the petitioner submits that the post of under the category of un-reserved low vision was advertised for first time in the year 2018. Thereafter, the next recruitment process was rt initiated in the year 2022 only, vide Annexure P-2. In terms of Section 34(2) of the Act, as this was the succeeding recruitment year, the post had to be carried forward as it is, and had the seat remained unfilled even in this succeeding recruitment year, only then it could have been offered at the first instance to any of the other benchmark disability. Learned counsel further submits that the act of the respondent of offering this vacancy in the first succeeding recruitment year to the other benchmark disability category of physically disabled is in violation of Section 34(2) of the Act and accordingly he prays that the petition be allowed and a mandamus be issued directing the respondents to offer the post to the category of physically disabled un-reserved (low vision).
::: Downloaded on - 19/10/2023 20:34:24 :::CIS 45. Learned Advocate General while drawing the attention of the Court to the reply filed by respondents No.1 and 3 in general and para-2 of the preliminary submissions in particular submits that .
as the first process was initiated in the year 2018, therefore, in terms of the instructions of the Department of Personnel, dated 22.06.2020, the same was rightly interchanged amongst the categories of disabilities without actually causing any interference of with the factum of the post being reserved for the category of physically disabled. Accordingly, he submits that as there is no rt infirmity in the action of the respondents, therefore, the petition being without any merit and the same be dismissed.
6. Learned counsel for the Public Service Commission has adopted the arguments, addressed by the learned Advocate General.
7. I have heard learned counsel for the petitioner as well as learned counsel for the respondents and I have also carefully gone through the pleadings as well as the documents appended with the petition.
8. Section 34(2) of the rights of persons with disability Act, 2016 provides as under:-
"Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other ::: Downloaded on - 19/10/2023 20:34:24 :::CIS 5 sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the .
post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government."
of
9. Clause 15(1) of the instructions, which have been issued by the Department of the Personnel, Government of rt Himachal Pradesh dated 22.06.2020 (Annexure R-1), with the reply of respondents No.1 and 3, provides as under:-
"Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the four categories of disabilities, at one percent each to each category."
10. A careful perusal of the statutory provisions quoted hereinabove as well as Clause 15(1) of the instructions issued by the respondents-State, demonstrates that intent of the legislature as well as the respondents-State is that where in any recruitment year, any vacancy which is reserved for a particular category of physically ::: Downloaded on - 19/10/2023 20:34:24 :::CIS 6 disabled persons, cannot be filled up due to non-availability of a suitable person with the benchmark disability or for any other sufficient reasons, then, vacancy shall be carried forward in the .
succeeding recruitment year. If in the succeeding recruitment year also suitable person with benchmark disability is not available, then it may first be filled by interchange amongst the five categories and only when there is no person with disability available for the post in of that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.
11. rt When this case was listed before this Court on 06.10.2023, the following order was passed:-
"Heard for some time. Learned Additional Advocate General is directed to have instructions as to what is the meaning of the terms "succeeding recruitment year" as it stands mentioned in Clause- 15(15.1) of the notification issued by the Department of Personnel, Government of Himachal Pradesh, dated 22.06.2020.
List on 11.10.2023."
12. In compliance thereto, learned Advocate General has handed over a copy of instructions imparted by the Office of the Secretary (Ayush) to the Government of Himachal Pradesh, Shimla, which reads as under:-
"I am directed to refer to your letter No.Ay.H(E)(3)-28/2022-26348 dated 10.10.2023 on the subject cited above and to say that matter regarding clarification of the terms "succeeding recruitment years" mentioned in Clause-15(15.1) of ::: Downloaded on - 19/10/2023 20:34:24 :::CIS 7 the notification issued by the DoP, dated 22.06.2020 was taken up with the DoP, who have clarified in the matter as under:-
Examined. It is clarified that the term "succeeding recruitment year" nowhere has been defined in the existing instructions/Act. However, as .
per instructions dated 22.06.2020, it can be construed that a recruitment year means that year in which an efforts to fill up the particular post has been made whereas "succeeding recruitment year"
13. Thus, it is amply clear, not only from the provisions of statute as well as the instructions issued by the Department of of Personnel, but also from the instructions, which have been imparted by the Secretary (Ayush) to the Government of Himachal Pradesh to the rt Director Ayush, Himachal Pradesh Shimla, H.P., that "succeeding recruitment year" is to be construed as a recruitment year, in which, an effort to fill up the particular post has been made.
14. Therefore, as the vacancy in issue was advertised for the first time in 2018, when it remained unfilled, and the next endeavor to fill up the vacancies was only made in the year 2022, the "succeeding recruitment year" obviously would mean this year, in which, next endeavor was made to fill up the vacancy.
15. In these circumstances, the act of the respondents of advertising this post for the category of Scheduled Tribes of Himachal Pradesh Visually Impaired is in fact bad in law as it violates the provisions of Section 34(2) of the Act as well as the instructions imparted by the Department of Personnel on the issue ::: Downloaded on - 19/10/2023 20:34:24 :::CIS 8 because as per the statutory provisions, the year 2022, being the successive recruitment year, the vacancy ought to have been advertised for the category of person with the benchmark disability .
low vision.
16. Accordingly, in view of the above discussion, this writ petition is allowed. Advertisement dated 28.08.2022 (Annexure P-2) in terms whereof, one post of Ayurvedic Medical Officers, Class-1 of Gazetted, on contract basis has been reserved for Scheduled Tribes of H.P. (Visually Imparted of H.P.) is quashed and set aside to this rt extent with further direction to the respondents to offer this post to a candidate suffering from the benchmark disability of low vision un-reserved category. Let needful be done within a period of eight weeks from today.
17. The petition stands disposed of, so also the pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge October 16, 2023 (Vinod) ::: Downloaded on - 19/10/2023 20:34:24 :::CIS