Central Administrative Tribunal - Bangalore
Hidayathyulla K A vs D/O Personnel & Training on 17 July, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL;
oy BENGALURU BENCH
Original Application No.170/00410/2019
WEDNESDAY this the 17" day of JULY, 2019
CORAM:
HON'BLE Dr.K.B. SURESH, JUDICIAL MEMBER
HON'BLE Mr.c.v.
(*)) Hida ath aK.A., _ 7 24) t Hidayathullaé.K Ac ;
a ee Cc ection vide order ated
ay Sf 0-Abdulla, ate ON. "14/1075 O19: in M.A.No.170/00857/2019
by Working as Deputy Secretary, . 8 M.A.No.170/00558/2019 oo.
--- Dept. of Urban Developme ar
Room No.340, Vikas §
Deputy Registsar
Bengaluru~560001. © Applicant
-l. Union of India represen e by its Secretary,
Department of P sonnel and Training,
Dholpur House, Shahjahan Road,
New Delhi ~ 110 069,
3. State of Karnataka
Tepresented by its Principal Secretary,
Department of Personnel & Administrative Reforms,
Vidhana Soudha, Dr.B -R.Ambedkar Veedhi,
| Bengaluu--560001. Respondents
of .
(By Advocates ~ Mr, MLV. Rao [RI],
| Shri V.N. Holla {R2],
& Mr.R.B.Sathyanarayana Singh [R3})
R-
\
3.
2d
ORDER
Per: Dr.K.B. SURESH . JUDICIAL MEMBER The applicant prays that since his placement in the seniority list was not correctly done, he lost an opportunity of being considered for promotion to the Indian Administrative Service vide Regulations of 1955, The Disability Act cain : into being and following which he an unduly long time "to. ' Parliament and its conseq ae BY A had filed applicant an Application No.6276/2005 and sought for a direction to quash the notification issued by the KPSC and sought for a reservation of 3% of vacancies as per the Persons with Disabilities Act. But before we go into the current scenario the law relating to this matter was declared by the Hon'ble Karnataka Administrative Tribunal in Application Nos.4336/2007 read with other connected cases vide order dated 25.7.2008 which we quote + . 0 Bes Meer at of Sarnatzka.
Oe pleants WE pertons ENE Whe required acadenc an Se ser WER wrable grea te apple for es Rader the Depyrtmens of Agriontines, They org also persons with isahuhe as goned dy Sho Responds. Ned, the Commilsnioner, Department g é of Agricuitars, S sued vor Inmuened neufeation deted 4.2007 inviting Spelcatons for recrultsent to 430 Poss ef Sericulural Officers, 'Clause 5 af the said notfisadion relates to classifeation af weaneies ded provision of reservations hoth vertical gad Horizontal, in respect of these povis, In the sald Clause § no reservation is provided' Jor Persans wih disability. In Clause 35 af the recruitment notification & ix stated as fallows:
oe : On "is. There & we Provision af fServation fs fiver af Pagseadls handicapped persons be accardance nith Caveris Heat Nowfleation Re BPAR« 104 SRR 2085 dered 33. P2GUS, ane for profest aes bersans In accordance with "Gay ernest f Noliieation #0, DPAR F SER 99 dated 23-11-2008." xs 'Translation Siprtiod) BEAR NM SRR 260% dared af Agriculinre has made no diodled in tls recrwionent a These bycvinue af:
i3-200%, the Contniveione reservation ia favour of He ge Certain of the Apaticanss: POEs: f posburaduate gad doctoral qualifications, subinived repr sentat was dated 7 ae 0? fo the Kespondents i ged 2 eg ee had reservation af 3% of total vacuncies dn the cad "Agriculiure Officer should be made jor piystealfy Raniicapped j OREER 3 HO COHEN Was faker on their FEPPESCHENTOR.
a. Despite the absence oy ce isabiliny ihe Applicants: being liflcation: fave par : sandatory ee FUSS, : macles NoGfled in ihe re ereliment natificction deed $8-2087 ay prvalhd, less! and iepraper being viginiive af Sections 32, 23 aed 4? Of ike Ack, Barvther to quash Clagse i af the sald notification, and aired ihe espondoris te recusshy she vacancies narified for receatimens &Y providing Feservation fOr pbysteali sk aadicooped persans, % Heard Mas. Nerasinhas, leastes Ce Agr. Uday &aile, learned aidvosare 'Generel seeds MAGE. Chandrescieda, learned Addigionn? Government Adeor ae for Respoadeass Nus.2 to 3 ie all che Arpleatons he -- Be Amaresh, fexrasd Coase' far " Heqpond ent Nod fxd 7 & Pro IIaR. KO DSF. 2007 aller pernzal ayY the aff fi pa by the Under Seere LEARY Ss ricultare aad Horticulture Department, is Trina divested dhe 3 Respondent fe ecauntne the _ ire prawns dad to do the meedfid by 297-207 On UF ~L2-800F the 3° Respondent filed ax aidan' comedians thet i wee a the Government Notification dging 3295 ngs, ihe post ef Agrieadiurs Officer in dovicnlsare Heparment hax been exempted form: yhe ' fered? dered: 6 PRO?
asel for Applicans, a es ION cele Daectayorne otro nt ney :
SERS ae ae S
-4.
6 The Applicants make the following averments + (@) By Sailing to provide Jor reservations in Javour of the persons with disabilities, they have been denied and deprived from stakin ig their claim under the Act causing discriminst on aliracting vice of Articles Id and 16(L) of the Constitution, Group-B posts for physically handicapped persons in the: State Ciyi. L ervices. Ihe post of
- Agriculture Officer belongs to Group B and as such it was incumbent on the part of the Respondents to -make 3% reservation Jor the bhysically handicapped person, which has not been dune in the impugned notification; a Child Development Depariment, "District Marketing Officers in ing Department, are all posts "pose of selection. In the reservation Javouring the is no relaxation ¢ D * Ode to physically disabled persons in terms of Sections 32 and 33 of the Act; SA ee ss , Persons. Inaction on :
justice;
ture Officer, candidates are provided the benefit of reservation, 9% In reply on behalf of the Respondents the following averments are made ;
oe Sr ae Sie ee SS SUN its rees cee = _, SEES SEN SAS SOS Soe ~ G« icapped persons while making recruitment,
10. In the affidavit filed by Under Secretary, DPAR on 1 8.2.2008 the following statement is made > = 29-11-2002 in 1 00-cyele roster at Point 19, 39, 59, 79 and 99. Identification of posts in the horizontal reservation, is in conformity with Se ction 33 of the Act Proviso to Section 33 empowers exemption in establishinent or department Srom operation of Section 33 of the Aet"
> deemed to have been exempted"
Il, In the rejoinder affidavit Jiled by the Applicant the following has been stated z Government to Specify by be exempted Jrom the provisi Savouring persons with disability, We propose to look closely at the Act and its relevang Provisions, . ~ . eee
13. Chapter VI of the Aét is given the tile EMPLOYMENT'. In the consideration of the issues before 4S, the relevant Sections of the Act. oe et 3 Eb The. eid. 4 :
re. sections 32, 33.and 3 6,-and are. Government shall appoint in every' establishment such bercentage of vacancies not less than thr, of Persons with disability () blindness or low vision; (i oh earing impairment; (it) locomotor disabili 'Y Or cerebrai palsy; in the posts identified for each disability:
~ 8.
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establish from the Provisions of this Section,
36. Vacancies not filled to be carried forward Where in any recruitment yeer any vacancy under section 33, cannot be filled up due to non.
disability or, for any other sw Rare an .
é ae So HS proviso, contains three that in appointment to 'LLL which Suage, the reservation of 3% given to appropriate governments. This partment or establishment Srom the , (a) from the command to provide 3% vacancies, and/or (8) from the equal reservation among the three types of ion. The exemption notification shall be if any as may be specified in such respect of a department or establishment. Provisions of Section 33, namel reservation in all selection to trifurcation of the said 3% disabilities Specified in the sec subject to such conditions notification, and shall he in ih +.
oa brovide 3% reservation ;
ithe proviso to Section 33, - implemented and cannot be mnially to update the list takine into consideration tech Z with disability to their tasks. There is no Mention _ whatsoever in this is j this section to indicate that when of posts which can be reserved for pers. » all other posts which have not been j 0 make the 3% reservation 2 in such a fashion is a g right way to interpret Sectio at the exercise uld have ag its if an establishment Is such that a given category lity cannot be employed. Needless tg Say the ation of vacancies is intended to ensure that there is no preference for or bias aSaiist persons with: Particular types of disabilities:
IS. In the light ugh anpointnent in the public Service, we need to examine whether th i t¢ denial of reservation in the cadre of Agriculture Officer, the subject 0 of this Application, is in order. The Notification no. DPAR 104 SRR 200 i i ich ¢ réservation has been Justified, reads as follows:
of the Karnataka Ciyjj Services (General . Recruitment) Rules, 1977 Provides for three Percent reseryation 2 recruitment to Group 'A' and 'Bt Posts for Whereas as Per Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Fult Participation) Act, 1995 ~ ae oe Recs ey AREAS reine ane DN ; Sees SSS cS Sia 'a, ~10-
the State Government has to ident ify category of Posts which can be reserved for persons with disabititi es in Government Departments . Now therefore, in exercise of the Section 32 of the Persons with Di Hearing impairment, and Locomar However, i posts Which are not included in the above from. the. teservation for Persons with On, are deemed io 'are 'be exempted disability, Sovernment the po of the said rule 9 reads as follows:
wer to exclude posts of 28 chaice. The relevant part "O(IA) & the candidates handicapped, namely:
os hd erate ennee (z) _three percent of the vacancies in Group-' A' or Group-'B" Posts as may be identified and notified by the Government, :
Cancies in Group-'C' oy Group-"D' Posts as ified by the Government © such other POStS as the Government Ht filling up the vacancies.s :
filled by direct recruitment 7 in- respect of all Posts of all of Karnataka disability which is nothing But higher witich with disability. Such Indifference \
- 12- and scepticism is at the back Agriculture Department tro present instance.
of the law that undertaken with of excluding alf Group 'A' and 'B' posts in we observed in the would be an exercise and the law also underlines that blishment should be based on the ry, ill-considered, and disability that, we believe, the Act or reservation only in respect of e State Government, Neither in our bests under Section 32 intended disability as does not provide any vernment to pick and choose posts for reservation on the one hand. a} » and exemption on the other hand. Such Scope has not at all 'been provided in Section 32: , like to make a few Points which in our view should guide' the" Stat Government in respect af its reservation policy towards the disabled. In considering the prayer of and only "tion thet am of society mployment in ; ise, the state is determined to give due representation to the disabled, in public services, Therefore the Act as q totality is that
24. The question with regard to resery, State Government disability vis-a-vis the ad come up for consideratio;
before the High Court of Andhra Pradesh in MURALIKRISHNA & ORS. -Vs- STATE OF ANDHRA PRADESH (CC) 231). In that instance, the State Government of Andhra Pradesh recruitment to teachers three types of disabilities. te Hon'ble High Court of fe appropriate Government to make reservations in favour of the pers:
ons with disahilities in the manner ey my
--
GG CS
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Provided therein. M aking provision for reservation of three per cent in favour of the persons with disabilities as Provided in the impugned Rules is clearly inconsistent with Section 33 of Act I of 1996. The impugned Notification issued making three per cent block reservation in favour of the persons with disabilities is un doubtedly void.'
25. We cite this judgement because the provisions of Rule 9(1A) of the Karnataka Civil Services (General Recruitment) Rules, 1977 cannot have the effect of over-riding the provisions of Section 33 of the Act.
The Act has been passed by Parliament, whereas the Karnataka Civil Services (General Recruitment) Rules » 1977 have been passed under Article 309 of the Constitution of India. The constitutional position with regard to the enactment by Parliament vis-a-vis the Act or Rules by the State has been considered under Article 254(1) of the Constitution of India, which is to the following effect :
"254, Inconsistency between laws made by by the Legislatures of States.- (1) If any pro Legislature of a State is repugnant to any' Parliament which Parliament . is. compe Provision of an existing. law with resp Parliament and laws made effect to the proclamation on 'disabilities in Asian and Pacific t 10-5 December 1992, which adopted ipation and equality of people with cific Region, to which India was a test @ requirement befo 7 viva voce test, In the medical test the ly unfit and therefore he was ering the case, the Apex Court and the objective to give effect to re the candidate for Promotion is called fo Respondent was declared 'to be medical not called for viva voce test in consid f90k notice of the Preamble of the Act the Proclamation on the Full Parties, "9. Sub-section (Z) of Section 47 in clear terms Provides that there cannot be any discrimination In government employments and ne establishment reduce in rank an employee whatsoever during hig Service, Sxb-section (2) is relevant for our Purpose. It, in crystal-clear terins, provid Mr Krishnamani on the proviso 16 sub-section (2) of Section 47. The s i j : afr way helpful to further the case of the appellant. In Jact it onl i i 2 wer ta exclude any establishment from the Purview of Section 47. the exclusion can be only done under certain Specified circumstances. They are ;
() Issuance of « notification,
(i) Prescription of requisite conditions in the notification, cuments were referred to contend that the exclude. certain establishments, a bare identical terms as th has
28.
We conclude and order as follows:
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(i) We state thet the State Government is required under Section 32 to undertake the exercise of identification of posts. However for the State Government to declare that all posts which have not been included in the list of identi ified posts are deemed to be exempted or actually exempted is beyond the scope of the section.
(iii) We state that under Section 33, State Government is only Permitted to exempt a department or establishment based on the nature of the work of the department or establishment. For this the State is required to issue notification, and specify conditions.
» only some posts for or Establishment. We hold that the department or establishment does is required to provide for 3% reservation in favour of
(v) We hold that the State Government has no power under the Act to notify as exempt, those posts which have not been identified in the Schedule to the notification dated 13-9.2005,.as stated in the foot-note to the said Schedule, or as ule, or as stated in: clause 15 of the recruitment notification. et
(vi) We hold that it ig illegal: for the State Government to exclude posts from reservation on the ground that the have the qualifications of suitabili ecruitment) Rules, 1977 is not in ct. .
29. In the, light of the foregoing, we bass the following:
ORDER
(i) The Applications are allowed;
(ii)(a) The footnote to the notification dated 13-9-2005 which reads "The Group 'A' and 'B' Posts which are not included.in the above Schedule are exempted from the reservation for Persons with Disability, is quashed as being repugnant to Sections 32 and 33 of the Act. The Clause 15 in the recruitment notification is struck down for the same ~ ees ly, "17.
existing post () In respect of the recruitment under question, Government are direct the State ed to take action as follows; Persons by' prop reservation Categories. = ~~ en present recruitment, a spé Posts only in respect o it shall be taken up for these which are to be reserved forp with 'disability for the 12 posts ersons with isability.
(vi) Subject to the direc;
tions (i) to (vi) above, the Government is complete the present recruitment without relating to persons with disability, limiting didates to 398 only,"
directed to proceed and Application of reservation the number of selected can
4. Following the refusal of the Government to implement the orders of the Karnataka Administrative Tribunal a contempt action was postulated against the Chief Secretary and following which the State Government filed W.P.No.13511/2006 produced as - Bee i f ES ieee FETE SR ee PAE GSS pie i meneame
- 18- Amnexure A-7 herein and vide order dated 31.7.2008 it was disposed of, We quote the said order - Heard the learned counsel for the parties, Perusal of the order assed. by Tribunal would show that it pertains to safeguarding the-interest of handicap persons who are said fo be covered under™ the te"provisions. of PW Disabilities (Equal opportunities, Protection of Rights and Full Participation} Act, 1995, ed founsel: appearing jor the taken up after 16 days so as to dn the light of the affidavit and the l, prayer appears to he reasonable. Hence we grant I0 days time. Further, we clarify that for L.8.2008 the Presence of the Chief Secretary befor e the Tribunal is hereby exempted. In light of the aforesaid discussions, we direct the counsel for the petitioners to report compliance of the order Dassed by the Tribunal to US a3 well, 5:
. Following this the Government of Kamataka had issued notification No.Si.A.su.i.252/si.sha.se.2008 indicating therein that the selection which was conducted in the year 1999 onwards and ° * \ 19 _--
other connected cases the six physically handicapped candidates and it was indicated that they should be appointed under Group B. We quote from the said order of the Government :
The Karnataka Administrative Trib 14.7.2006 the--order of the Karnataka Admini ibuni candidates are required to 'be cat emment Secretariat and accordingly 5 supernumerary: pos have been created under Group B, vide the order No.si.A.su4.252/si sha se.2008 dated 17.9.2008. To the | Government" order.
PI2008 | |No.27, Vagga Cottege, SR.Garden, 4° Main Road, Cholarapalya, Magadi Road, Bengalura
-- 560 023 S/o.Chandra, NM, Nalluru, Sirigedanahalli Post, Palya Hobli, Alur Taluk, Hassan Dist ~ 373 218.
1 Sri-Hidayathulla KA.
| Sr.Ravi.N.C StLIndresh,R. Noa ie Ree No.22, 16" Cross, KSB Quarters, Vijayanagar, | Bengaluru -- 560 040, S/o.A.K Hiremath, Dhanwantari Sadana, Akki Alur, Hanagal Taluk, Haveri Dist -- 581 102. C/o.R.S Patil, No.553, 53 Cross, Bengaluru -- 560 O10.
Sr. Vishwanatha Hiremath wf 2} ol Sri.Shankaregowda Doddamani Rajajinagar, The above appointments shall be subject to the result of the writ petition No.13511/2006 pending before the Hon'ble High Court of Kamataka. .
cacy ee roe PRAM Le enero BE ear aa a ee GES Parent RELIES ete NS -20- pass all the examinations prescribed under the Karnataka Civil Servies (Service and Kannada Language) 1974 within a period of 2 years and they should also complete the probation period satisfactorily. They shall compulsorily attend the training programmes arranged by the Governmen Their appointment shall be subject to the Recruitment and Serv ice Conditions that may be brought into force from time to . time. , The candidates shalt report for dw of the above order address given above, failing which, Stand cancelled, © 9 0° ty within 15 days fom by registered post to the the appointment shal! the year 1995, the State Government had not provided reservation 'or Group A and Group B till the year 2005. In the yeat 1998 the 'the: Governnient and KPSC in this regard. He would say that when he filed application before the Karnataka Administrative Tribunal a notification was issued reserving the post for physically disabled candidates. But even then there was no Committee appcinted to identify the post which could be filled by its candidates and in fact the Union Government has reserved several posts including in the Indian Administrative Service, the Government of Karnataka had not provided any ~ Qh Was "provided for:
applicant states that he had "21. . cee ce reservation including that of the "Assistant Commissioner of Group A. The applicant submits that he had been at the top of the list and had he been considered in accordance with rules which have to be Jramed, but since delayed by the State Government under One Context or other, he would have been appointed under Group A as he was the only one available at the pertinent point of time. He would state that Hon'b! 1€ Apex Court in the case of Daya Ram Tripathi vs. UP. Government reported in C.A.No.4460/1986 it has been found that: th like that of the Assistant Conunissioner can be. easily' managed by the physically disabled candidates. What the State Goverment had done in the notification and the placement { in the list ¢ and he being the only handicapped person available at that pertinent point of time, he should have been in Group A as Assistant Commissioner. The . applicant would say that he is the first physically. handicapped candidate selected for Gazetted probationer. He would say that as per the notification of 1998-1999 there were 40 vacancies of Assistant Commissioners and since he was the only one physically Eee ont BEC ee ee Ree EA SRST:
ea :
:
:
San a sed a :
eae RN en item rere ae OURS ete ees Rance eaaacaen Sr ererarennrmerennen eects (*) See page no. 46, ~ 22.
handicapped candidate available, he should have been placed as No.1 in that list in accordance with the orders of the Hon'ble Apex Court. But that could not be done as the State have not appointed any Committee to identify the post to accommodate the applicant or others like him.
7. Inthe meanwhile, the applicant had been promoted vide order No.DPAR/52 of 2012 dated:10.9.2012' as Under Secretary and his name appears to be first i:
'This was followed by another order dated 13.6.2013 by 'which he had been appointed as Deputy Secretary wherein also his name appears as first in the list. Vide another order which was heard along with other Applications and vide order dated 15.12.2017 was disposed of by the Karnataka State Administrative Tribunal. The applicant submits that the Principle enunciated therein was Squarely and equally applicable. We quote the same -
2 Since th the ve similar and both.
rider.
2 é legal issue and Jacts of these cases a applications are clubbed and Passed common a MTT am opportunity" of being appointed fo the post of Group-A (Junior Scale). Hence, non implementation of the mandatory provisions of the Said Act by the State j. .- The applicants and others had filed Connected matte rs Notification bearing No.E(1)13 69/2004/3/PSC, issued by the KPSC to declare that the classificati Public Service Persons with di Group-B and 2°" 'respondent reservation for ade in respect of nly thereafter the ROtification dated L£3.09.2005 to sustenance. from the note to the Sis not identified are excmpted. It is Obligatory on the Part of the respondents to make Peservation/identifi cation:
vyeope et: MPOUD"A posts Assistant Commissioner (KAS) Junior Scale from 97.02.1996 for Persons with ;
and to appoint the ch. post. While implementing the al. disabilities. inv the. central Services "Sand oth allotted Civil Services What being 50, it is 'not 'open- Government deny and deprive the of selection and thiment: t3%. Group-4 oe Commissioner in or' Seale). The the applicants ment |, notification dated 19°63:
applicants tg Group-4 Posts tantamount to arbitrariness, discrimination, i of power attracting the vicg of Articles 14 and 16 (2) of the Constitution of India. ule 9(LA) of KCS (General Recruitment) t identified the P
-
oe bore Sas EB EEE Ie a ee ea ~ 24.
category of the disabled persons Specified in the Departments at Serial No.I3 (Annexure-A2), the mame of the Department-Karnataka Government Secretariat --_~ hearing Impairment-Group-B-and Locomotor disability or cerebral pulses -- Section Officer-Group-B. i t included in the above the reservation for Persons Jor Persons with Disabilities & Medical Supervisor te al was fully complied with pplicants in Group-B only. ask for Group-A posts. The
3. I have considered the submissions of the learned counsel for the applicants, learned Government Pleader, perused the direction of this Tribunal dated 14.07.0066 and the notification dated 19.03.2009. After service of notice, for six vears; the. respondents have not filed reply Statement, From 16.02.2601 6, though. direction was given to file reply Statement till today (i.¢.15.12.20] 2), the respondents have not filed reply sialement. Hence, adverse inference can be drawn, that tie respondents have not denied the averments made in the application. The applicants belong to Physically Handicapped: Persons. They are suffering from Locomotor Disability. In Tesponse:to 'the recruitment notification dated 04.11.2004, the applicants applied for the posts of GroupA& B. The applicants were not selected for Physicalty Handicapped Person quota Sor the reason, since there was no reservation was made in notification, The applicants & others 'approached this Tribunal in A.No.3428/2005 (Sri. Vishwanath Hiremath) and A. No.8724/2005 (Sri Shankaregowda C. Doddamani) & other connectéd matters. The said applications were allowed vide judgment dated 14.07.2006. The directions of this Tribunal read as under: ee
-ronpEr
(b) The Respondent - State is Provisions. of the Act] of 1996 'viz "Persons With Disabilities (Equal Opportunities; Protection. of Right and Fill Participation) 'Act, 1995.1 The* mandate' which came™ into force on 7.2.1996 providing Sor reservation in employment to the physically handicapped. (¢) The Respondent -. State is Jurther-directed to Fully cornply with the Provisions providing r; E Bitysicallyp handicapped persons isions of. Karnataka Civil Services (General Recruitment) (66th Amendment) Rule, 2005. (Q The Respondent - State is further diree exercise under Section 32 of Act I can be reserved for persons with disabilities. {g) Having done the identificatio Persons with disabilities, Posts under Section 1 Of posts, which can be reserved for Respondent -- State Shall make reservation of 33 of the Act I of 1996, ) Having made the exercise as directed above, the Respondent - State shall bear in mind RY ection 36 of the Act 1. of 1996 which commands that the vacan j cles not filed in any particular recruitment year shall be carried forward as Section 36 of the Act I of 1996 has the directed to fully comply: with the | ae TARE en filling the "Backlog vacancies State adhere to "the 66th ECS. (General Recruiz (t} Once having
(t) The Respondent ~ State is directed to ensure that, in the revised " Sélect list in the manner directed ah
i) q = a g & te Specified/identified Posts shall be issued as ER ERER SINR Pe acne ora:
Pee EES With the directi eee BSS ae ee EF 5 a g .
a quash and set aside the existing select tists of 1999 and 2005, * Physically handicapped, Selecting and appointing then to the identified Posts is continued consistently and shalt recruitment processes _ whether done through Recruitment Committees or done via the State Public Service Commission - to every cadre of State Ciyjt Service , that this onerous responsibility shall be sho Secretary to Go Service.
oe ES fo) In Pursuance of the directions exercise shall be completed and the fribunal withip cee of this Tribunal as above, this compliance be subrairted fo this Annee 2 sixty days from the date of this ordep.
: ~. ) Lo ensure Juli, timely and. comprehensive compliance of ail the a directions as above, the Regisis wii:
"over the copies of this order to alt the official . respondents including the Secretary, KPSC wind Chief Secrer within a weefe neq oe eS aS a (Junior Scale) post, Th 2948/2005 &" other | Wnected matters decided on 14.97.2006 aitained Jinality. White ; recti f I" respondent appoint, ie verninient Secretariat, fay contrary to the said + *espondent has nor complied with the direction Of this tribunal in accordance with ares "hk" and "yt again I repeat the Said paras "hy" gana "i" hereunder + "() Once. having co 4.4.20096 in SG far as ig relates le Selection and , recruitment of Gazetted Probationers Examination 2005.,; _ undertaken by the EPSC.,
(i) Accommodating ail Physically handicapped -
appointed - if Practicaily the applicants before this T, ribunal whe are Who are legally and statutorily entitled to be not possible in the existing revised Select list in the Tribungt Physically Handicapped quota 7, ! refer the Judgment of the Hon reported in (291 6) 13 SCC 75 ~ Rajeey Kumar G Vs. Union of India & oO . En mentioned in 4 (D.: Though' undey the Classification "ith ' 8 A & 8 cas u A Saas eae :
:
S 4 3
a) = & iss s 8 or s = 2 Q | eS.
Ss ss.
cnt & :
B nr &, 3 5 R a tial treatment Sor the the State, oa ee :
:
ESE OER RG rare EZ ores aan eae . Therefore, as analysis, the identification ection 32 ; NCE a post is identified, 3 iS Crucigl i means that q P ™ Group A ang Group B, trrespectiye of the mode of filling UP of such posts. thie. - itt rdingly allowed," , & = The Similar issue ay d A.No.4336/209 7 chy A.Nos. 1474/2998 & decision Was upheld by the Hon 'bie Atigh Court in WP.Nos. 9451/2999 and 9908. SOY 3/2009, the Writ petitions Were dismissed on I6, 04.2009, "Sh the seid Judgment Of this Trip unter, which attained Sinality and also the FaSOns giver, by the 274 Fespondeny a int ~ 7 by its order dated Aandicanped Candidates who w Precess Conducted by the Kay ataka Pubtie Service Gazetted Probationers in thé ye Cases that the Said § Physically handicapped candi appointed undey Group 'R» dates Should be "Preme Court in Rajeev K; iWnar Gupie's case Supra, -- £0. Foy the foregoing Etrected to issue Modified nox 9 issued by the id connected "006 supra, Ty 5 made clear, the "pplicants are Aor ' 22 above direction @ period of Jour montis from the date of TeCeIpt of a CORY Of this ordep, the "pplications are allowed
8. Following this the applicant relies on the decision of the ote ZO a on. eal Hon'ble Apex Court in Daya Ram Tripathi V. State of U.P g Aur.
1986 (supp.) SCC 497 which we quote :
Special leave granted handicapped person. He has an 1 a Dermanent im left | pediment of the eft leg .
&, the result O Commission, € ground that iad been revoked by the State their letter dated 4.3, 1979 in' gard" i ae, Aspen tym a ; 4 the ground that there ;
tion of posts jor Physically h andi- capped Persons in the :
Evi ve | @ appellant has come a the Uttar Pradesh Government by G.O. No. 43/90/56-Apptt. 4 dated July 18, 1972 announced j + Ele reservation in aif the Government Shall b ir cted tO: folle tee & = ft 8 z g = R POND Re cee ey, eon =:
oR = t i=) 8 a, 2
a) 3 ww 5 ee Soom annie OT At) mh a + 8 te 2 rentanyone;
Sroartecheies Sons. In the ly involves the hearing faculty : ; then no reservation can he Siven to the deaf persons in such services : :
and in a service where the use of q Particular organ of the body is to be ; ; used then the Person disabled of thar Particular organ cannot be given reservation in that Service, Principle every a eter ten ron mnt
7) orders regarding reservation Jor the :
4 ie .
4. Ft CbPears that there way Some discussion Within the department ' : : Pursuant to a letter From the Public Service Commission and their was : : 7 proposal not to reserve @ny Dost for disabled Persons in the Proyvincigf i Civil Service, T, his Proposal, however, did not result in the issuance of | Civil Executive Branch) Service. A Perusal of the letter dated L3I i confined to "recruitment on th Persons in the case of the Provincigt Service (Executive Branch) im i been . made of . The mecessity to the Provincial Civil Service their determination, ve Physically handicapped Services of the G, rvice (Executive Branch) is a large ly acconumodate- Physically .
Cutt ranch) with effect from the date on. which he-should ave Deen anpoj 4 He will be entitled tp costs. The appeg}
9. The applicant relies on the Government of India througk Secretary & Anr. vs. Ravi Prakash Gupta & Anr. in SLP No.14889/2009 which was disposed of by the Hon'ble Apex Court On 7.7.2010 w hich we quote :
the Secretary, Ministry of t of Personnel and Training Secretary, Ministry of Social Justice and is Special Leaye Petition against the February, 2009, passed by the Delhi High Court in Writ Petition (Civil) No. 5429 of 2008, allowing the Writ April, 2 008, passed by the
-31.
"ot Central Administrative ve ribunal, Principal Bench, New Delhi, in OA, No.1397 of 2007, filed by the Respondent No.l herein, and allowing the reliefs prayed Sor therein, is @ visually handica ped person who Suffers from 106% blindness. He op: ivi 7 figured. The 'spondent No, ial no.5 Of the merit Lis; Prepared for visually handicapped i
3. Being aggrieved by the ma "ppointment in the visual ition, being Writ Petition (Civil) No First instance. The Respondent No.l, accordingly, withdrew the Writ' Pes. Central Administrative Trib L995, hereinafter asic. contention of the Aer, J 995, such Feservation On which the Act came into force. According t9 the f the vacancies were to be considered from the yea d of one vacay
- being declared Jor the year ip {HEestion, there skonld i 7 vacancies Jrom the reserved 'ealegories of disabilities which were interchangeable. it was, therefore, the case of the Respondent Nel that having regurd to the number of appoi. olMinents made with regard to the disabled categories reserved under Section 33 Of the Disabilities Act, 1995, since the Act came into force, th » there were at least 7 PISsts which could be filled up in the year 2006. Howey, & provisions of the "cles in the reserved » Without first identi ing the same Sor the of the Disabilities Act, 1995,
4. The case of the Respondent Nod having zen Hegated by the ~ 32.
T "bhunal, the High Court and the High Court Set asid, a whereby reservation - identified Group 4"
were identip, Provisions of Section 33 of th . » cordingly identified with effect from 2006 and of the Respondent No. 7 thet the reservation Should hay, Came into Sorce, the claim 2 is Of the argument ¢ laken effocr Jrom 1996 when the Act ~
6. Appearing I~Derson » Mr. Rayj Prakash .. Naz herein F and rightly directed the Petiti Said Act came into force.
a~ Mr, Gupta then Submitted that in terms of the Department's OM N0.3635/3/2004 dated 297) December, 2605, reservar, earmarked and Should have & im the epens the vacancies could of TD, Pinakar wep dels Started. Myr Gupta Submitte & Mr. Gupta submited that the £ar 2006 coul, with references 4 various decisio decision in Francis Coralia Muli Of Dethi. & Ors. L(I98]) 7 SCC 6038 under Article -27 Of the Constitution, Sixbintssions ig with resard 16 the dejiy Oners to calculate the number 7 vacancies in terms of Section 33 of the above Act plea "of non- identification Of posts Bbsalve tf & the petitioners Of theip.
WS Of thiy Court, eluding the & > Onion Lerritory » 7égarding the right to life The "main thrust of tite '2 inal ef rights to Persons with disabilities under Section 33 of the Disaiit them from 'enjoying their fundamental Fight to tive, by the State,
12. More detaileg submissions > Which prevent iS to quality and the PIGhg .
Were made by Mp. SK Rungta, ing on behalf of the intervenor No.2, Myr. ms. of Section 3307
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@ said to be enabling and: supplementary action for the Smooth inplementation of the Statutor ESE i Jalling within 3% Disabilities Act, 1995. ty dated 29th D "C' and Group 'pt OF. Indi t "and: Group Dp a 2 605, reservar 2 the FAS, ification was 3 World ont: Seaver Object of the Disabilities Act, ' ich ii Sive effect ty the Proclamation on the fulf Participation and e [ disabilities in the _ Te a department op establishment, No. brought to our reproduced hereinbelow :
"32, Identification Gisabilities, - Approp
(a) Identify Posts, in the establishments the persons with disability; (6) At periodical inte Posts identified and up-date the list tgk developments in technolo as has been so dia in the instan of posts which can be res rate Governments shalf -
notice on behalf of the petitioners, 'als not exceeding three year ing into of disabilities, Served for persons with > Which can he reserved for
- 36- which one per cent each shall be reserved Jor persons suffering from- () Blindness or low vision;
(ti) hearing impairment;
(ili) locomotor disability or cerebral palsy, in the Posts identified Jor each disability:
£7. While iz cannot be denied that unless pasts are identified for the Purposes of Section 33 of the aforesaid Aci, 'no appointments from the reserved categories conttined therein fan be made, and tutto such extent the provisions of Section 33 are @ dependent on Section 32 of the Act, as submitted by the learned ASG, & dependence wou cies for two rears after which trey did not arise and Section 33 of the Disabilities Act, 1995, € thereof, does not by if Sumathi, learned Advocate for. wl Prema Nath; are-not of assistance in the oe depends on its own Facts and interpretation of Disabilities Act, 1995.° | :
Petition witich is, im orders are vacated. The 'oft today to give effect to the
29. . The Petitioners shai] pay the eo respondent No.1 assessed at Rs.20,000/.
St of these Proceedings to the » Within four weeks JStom date."
10. The Hon'ble Apex Court having declared the law on the subject there May not be any doubt, @$ prior to that the Hon'bie High Court and Tribunal has given specific directions ag to how to accommodate the Persons like the applicant, Therefore, the b a
- 37- | contentions raised by the respondents does not seem to carry any weight. The applicant relies On several other judgments of the Hon'ble Apex. Court, but then since the matter had already been decided by the Hon'ble Apex Court, it need not be explained once again.
(*) Il. But while the earlier orders. passed in(O.A.No/433/2007] the Government had taken up the matter before the Hon'ble High Court of Karnataka and vide ord:
W.P.No.9451/2009 and connected cases dated 16.4.2009 held that:
"These writ petitions have been filed by the Government. respondent in Application Nos.4336/2097 chy, 14 74/2008 and 2478/2008 being aggrieved by the order Passed by the Karnataka Administrative ' Tribunal, Bangalore dated 23.7.2008 (hereinaft the Tribunal') wherein the ications and. directed the ation 'subject to: the ceed and complete the _ WHHOUL application of reservation "with -disa Hity, limiting-the numbep of Selected candidates to 398 only. . ;
4. The respondents herei respondent No.2 on 4.8.2007 invitin recruitment to 410 posts the said notification relates to classi ted that there is no Provision. ally handicapped Persons in Government hotification No.DPAR j 04 .
(%*} See Pace no. 46"
\
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SRR 2005 dated I 3.92005 and for Project displaced persons im accordance with Governm ent notification dated applicants Possessing post-graduate and doctoral qualitications submitted representations dated 16.8,2007 to ng that reservation of 3% of are Agriculture Officer should be apped persons, in view of the Provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) y , Act, 1995 (hereinafter called 'the Act') and applicants have , accordingly approached the Tribunal with the relief to declare the classification of vacancies notified is without reserving the post for disubled Persons under the Act as per the provisions of the Act is liable fo he Set aside and for . reclassification of vacancies. The T *thunal after hearing the counsel appearing for the "Applicants and re that notification had been:
spondeints held issued for filling 410 Pesis of neking 3% reservation for ) The applications are allowed.
1)a) The footnote to the notification dated 13.9,2005 which 'A' and °B! Posts which are not included i inpted from the Feservation for fothe 'Ach. The elause LS: in. the:
Struck down for the same reason,
b) "We further. direct. State Overnment that all-recruitmens in departments and establishments of the State Governimet as defined. in the Act, barring any department or establishment which extended the Proviso-to Section 33, shall, from the time of this order Julfill ) In respect Of the recruitmenr unde r question, the State Government is directed to take action as follows -
shall be reseryed for the Physically disabled Persons' by vation catezories. .
as 'being.repugnant.io . | respective reservation categories, and those found meritorious should be also be selected as such.
ty) Such of the applicants who b elong to the category of Persons with disahi, lity in the Present recruitment and who do without making fresh . Application, along with those candidates who may new notification of Special recruitment, ¥y) It is directed that thé + ruitment of physically disabled candidates should be completed within six months from the date of receipt of a certified Copy of this order. . EP iCation of reservation relating to Persons with dis 'the number of selected « candidat my ;
in the pplication have The learned Government Advocate appearing for the
6. On the other hand, learned counsel appearing for the Jirst respondent argued in support of the order Passed by the Triéunal, said order of the Tribunal is ~ 40- 7 We have given careful consideration to the contentions of the learned counsel appearing for the Parties and Scrutinised the material on record. passed in accordance with th Act as the note to the Gov writ petitions and pass the following order. The writ petitions are dismissed.
12. The order passed by the' Triby nal is justified and while ONCE again, states the applicant. . -
14. The State Government had filed a detailed reply following our specific queries in the matter. We had asked certain questions * i es not suffer fiidm any error \,
- A].
Which we quote :
SL. ee Na, :
Answer
----_.__._| Ra Is the applicant is disabled person a 9 21In that Situation why the benefit under the Disability Act is denied im?
Yes, the applicant is a disabled person, Tt is submitted that rh "had| provided for 2% to him' handicapped candidates in respect of Group ¢ and D posts in State Rule 9 of the Kamat Recruitment) Rules No.DPAR 37 SRR 1977, dated 82.1979. The .,809Ve percentage of 4 After detailed minent identified »| If the benefit has been granted 19. him what would have béen' his Osition?
; | wes rvation HEP estion does not arise, 4 Tt-is: tted-tothe Hon'ble 'Tribunal that,
1. The Hon'ble KAT ordered j tO provide Tesérvation in physically handicapped persons.
2, contempt Application t d the Hon'ble RAT, directed to comply with the order in A.No.3428/2005.
The State applicant to the Karnataka Government Notification dated and is getting benefits of the appointment, as per order of Kamataka Administrative Tribunal, again seeking for other benefits is nog prop Jf a_i Seeking for other bent atta! Cr,
42. arsument notes. They would say that the applicant and other five candidates had been appointed under the reservation of physically disabled category in Group B post as Section Officer by creating supernumerary posts. They also admit that the challenge in W.P.No.13511/2006 had been dismissed by the Hon'ble High Court of Karnataka on 22.5, 2012, they had not challenged it before the Hon'ble Apex Court. They would also admit that vide notification the reservation for physicall 'cians candidates in Group C posts ad 5% to Group C and D Posts provided to disabled persons it hi. accordance with the provisions of im respect of Group C and D posts. They « would s say > that because of the pending litigation the decision to implement it for Group A and B came to be passed only in the year 2005,
16. The State Government admit that the post of Assistant Commissioner had been identified for Persons with locomotor and hearing impairment disability vide notification no.DPAR 21 SRR 2008 dated 3.8.2009 and therefore had it been done correctly the \s
- 43.
applicant would have been accommodated earlier itself as Assistant Commissioner. The State Government Say that they had taken appropriate action to comply with the Karnataka Administrative Tribunal's order in Application No.6276/2005 and had appointed the applicant in Group B post as Section Officer in Kamataka Government Secretariat as an interregnum measure. As at that point Committee's of time no decision had Peet: taken, by them as be considered as ineligi e to claim the bet which he would have been entitleq to if correctly the Act had been implemented,
18. This argument of the State Government seems to be quite 'Incorrect. When the Parliament of India had passed a law and it ~44---
1995 there is no indication of any litigation pending as only in 1999 the applicant was selected in accordance with the notification issued (*) 'inlisog] Therefore, there is clearly a failure on the part of the State Government, Then the question is only that for the failure of the State Government to give implementation to the Act of the Parliament in time will prejudice anybody, The court cases, it is to be looked into has come > in auch, Aater only. Therefore it cannot be said that the faitore of. somebody else should reflect in the appropriate orders, The! State Government has no jurisdiction to ignore the Central Act promulgated for a welfare purpose and in iything more to be Stated in the matter. It is hereby declared that the appointment of the applicant from the earliest point of time available in. 1999 following . the appointment of others, even though in a supermumerary position from the earliest point of time, is hereby protected and allowed. It will be notionally taken to mean that if {* anybody from the select bs of 1998] particular date along with that group of persons, the Applicant had been appointed on a N (*) See Rage no, 46% .
a
- 45.
Should also be allowed to be considered as being appointed and date back ftom the day on which the first person in 'the| 1998| select list had been appointed. As the applicant would have been in the ill now be amended by the State Government in accordance e wi h the above declaration and batriers if it is Possible for him,
20. Taking into consideration all these the seniority and placement . of the applicant would be regulated as if he had been appointed as (*) an Assistant Commissioner in the list tora selection and this shall be done within Next One month. (H+) Se page no. 46,
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21. The applicant should be eligible to be considered for such further consequences as there m (* selection through|1998} FTOoR ist The Q.A is therefore allowed with the above direction. No costs.
ay be following his notional (C, Vv. SANKAR) - PT (Dr.K.B.SURESH) ! ADMINISTRATIVE MEMBER JUDICIAL MEMBER | | {*) in the ord 13 in BANS 4 FOMOO382/2079 the following -- correction in ihe ginal oorder in OANe. Ty Oo8 41012
1. * be read as
4. in page 44 in penultn
2. in Sand Bt ting of nade
7. in para 20 at hace 4 be readas * 1Se6 7
5. In para 21 atpa age 46, the Year typed as "4808" be read aa" 4996 ",