Punjab-Haryana High Court
Rajinder Pal Singh vs State Of Punjab And Others on 17 October, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
Civil Writ Petition No.5850 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.5850 of 2012
Date of Decision: 17.10.2012
Rajinder Pal Singh ...... Petitioner
Versus
State of Punjab and others ...... Respondents
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. D.S. Kahlon, Advocate and
Mr. Rajinder Pal Singh, Advocate for the petitioner.
Mr. Deepak Balyan, Addl. A.G. Punjab for respondents No.1 and 2.
Mr. Amol Rattan Singh, Advocate and
Mr. Daman Dhir, Advocate for respondent No.3.
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1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
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RAJIV NARAIN RAINA, J.
The petitioner is a differently-abled person who applied under advertisement No.1 dated 9.8.2011 inserted in the press by the Punjab Public Service Commission, Patiala inviting applications for filling up 110 posts of Civil Judges (Jr. Division) in the State of Punjab. He competed in the reserve category 9 of "Physically Handicapped, Punjab" and secured 48.8% marks in the examination. There were 5 other competitors in this category who obtained marks between 45% to 49%. The service rules require a minimum 50% marks in the aggregate for clearing the main examination. Advertisement No.1 (P-2) in its category wise break up Civil Writ Petition No.5850 of 2012 2 advertised four vacancies to be filled up from Category 9 i.e. "Physically Handicapped, Punjab" of which two posts were shown as backlog.
The petitioner could not secure 50% marks in the main examination, and therefore, was not called for interview. The Punjab Civil Service (Judicial Branch) Rules 1951 ( for short "the Rules") as amended by notification dated 4.6.1991 make it mandatory for candidates to secure minimum 50% marks in the aggregate to become eligible for viva voce. The Rules, however, permit relaxation of 5% for candidates belonging to SC/BC category. There is no such reservation for the differently abled category.
The prayer of the petitioner in the petition filed under Article 226 of the Constitution of India is for the issuance of a writ in the nature of mandamus to the respondents to accord relaxation of 5% marks to persons with disabilities. The complaint is that despite reservation of four vacancies with two in backlog, the result of the examination has not yielded any benefit to persons suffering from disabilities as they have not obtained the minimum marks prescribed for general standard. A prayer is, therefore, made for relaxation of standard of suitability in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the 1995 Act"). The petitioner has placed reliance on instructions on reservation issued by the Department of Personnel and Training, Government of India, New Delhi, dated 29.12.2005 (Annexure P-3). A Reference is made to Clause 22 of the said instructions. Clause 22 reads as follows:
"If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this Civil Writ Petition No.5850 of 2012 3 category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post/posts in question".
The Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with disabilities in an exercise carried out and expressed through notification dated 31.5.2001. Annexure II contains the list of jobs to which 3% reservation is made applicable for persons with disabilities. The list is not exhaustive and the process of identification remains continuous. It is the common case of the parties that the posts of Civil Judge (Jr. Divn.), holders of judicial office, are not mentioned in Annexure A-11. Such posts have not been identified and placed in the list Annexure II so far.
The principle of carry forward of reservation in case of direct recruitment is incorporated in the Act and in the aforesaid instructions which may arise due to non availability of suitable persons. The backlog of reserve vacancies is required to be carried forward to the subsequent recruitment year. The reservation for persons with disabilities is horizontal reservation which cuts across vertical reservation or what is called interlocking reservation. Section 32 of the1995 Act deals with identification of posts which can be reserved for persons with disabilities while Section 33 deals with reservation of posts. These provisions read as follows:
"32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall-Civil Writ Petition No.5850 of 2012 4
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
33. Reservation of posts.- Every appropriate Government shall 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 of low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
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 establishment from the provisions of this section."
Section 36 of the 1995 Act mandates the vacancies not filled up are to be carried forward. Section 36 reads as follows:
"36. Vacancies not filled up to be carried forward:- Where in any recruitment year any vacancy under section 33 cannot be filled up due to non availability of a suitable person with 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 disability is not available, it may first be filled by interchange among the three 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 Civil Writ Petition No.5850 of 2012 5 may be interchanged among the three categories with the prior approval of the appropriate Government."
It is within the jurisdiction of the Appropriate Government to identify posts and to periodically review the list of posts identified and up-
date the list taking into consideration the developments in technology. An Appropriate Government has been defined in Section 2 (a) of the 1995 Act and the same reads as follows:
"2. Definitions- In this Act, unless the context otherwise requires,-
(a) "appropriate Government" means,-
(i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924 ( 2 of 1924), the Central Government;
(ii) in relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government;
(iii) in respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government;
(iv) in respect of the State Co-ordination Committee and the State Executive Committee, the State Government;"
In the present case, the Appropriate Government would be the State Government of Punjab. Therefore, it is within the exclusive domain of the Appropriate Government to consider which job would qualify for reservation under the 1995 Act through the process of identification of posts. In the absence of such identification on empirical and other data it may not be possible for the Court in writ jurisdiction to create reservation or to relax standards of suitability not mandated by law. The instructions/guidelines dated 29.12.2005 issued by the Government of India are not per se applicable to the State of Punjab without adoption and thus are not binding on it. It is not the case propounded that these guidelines Civil Writ Petition No.5850 of 2012 6 have been adopted by the appropriate government, namely the State Government of Punjab.
On notice of motion having been issued, the Punjab Public Service Commission, Patiala, has filed a short reply. It is their stand that there is no relaxation of 5% in the Competitive Examination to persons with disabilities.
We have heard the learned counsel for the parties.
Learned counsel appearing for the High Court has relied on a decision of the Division Bench of this Court passed in CWP No.2614 of 2012 (titled Hardeep Singh v. State of Punjab and others) on 13.2.2012 to submit that in the matter of recruitment to the P.C.S. (Judicial Branch) under earlier Advertisement No.1 dated 10.5.2010 also three posts were reserved for the candidates belonging to the category of Physically Handicapped, Punjab and the argument raised therein was similar to the one raised in the present petition with the difference that it was against an order of the Punjab Government rejecting the representation of Hardeep Singh for relaxation of minimum marks prescribed for becoming eligible for viva voce and this Court held as under:
"Under the Rules itself it was provided that the candidates belonging to the General Category, who secured 50% marks in the written examination, were to be called for viva voce and from Scheduled Castes and Backward Classes candidates, who secured 45% marks, were to be called for viva voce. Only three posts were reserved for Physically Handicapped category, Punjab, but when in the Rules 50% marks in the written examination have been provided for the candidates belonging to the said category, they cannot claim parity with the other reserved category candidates. Therefore, at this stage, when the appointment is over and even the selected candidates have completed their training, the requisite marks cannot be relaxed as no such power has been Civil Writ Petition No.5850 of 2012 7 given to the respondents to relax the minimum marks in case of the candidates belonging to Physically Handicapped category, Punjab. It is for the rule making authority to prescribe the eligibility of qualifying marks for calling the candidates for viva voce. Since under the Rules there is no power to relax the minimum marks prescribed for becoming eligible for viva voce, the representation of the petitioner was rightly rejected by the Government. It has been informed that some more posts of P.C.S. (Judicial Branch) examination were advertised in the year 2011 in which the petitioner has qualified to appear in the main examination. The petitioner has also appeared in the main examination, the result of which has not been declared so far."
Learned counsel for the petitioner has relied upon a Division Bench's decision of the Delhi High Court in W.P.(C) No.4853 of 2012 decided on 12.9.2012 (titled Anamol Bhandari (Minor) through His Father/Natural Guardian v. Delhi Technological University) in which the issue of grant of benefit/concession was considered in the context of admissions to B. Tech. courses where 5% concession in marks was accorded to persons with disabilities as opposed to 10% grant provided to SC/ST candidates and that parity should be maintained on the ground that vertical reservation to persons with disabilities who belong to SC/ST candidates would end disparity irrespective of their vertical categories. The Division Bench of Delhi High Court relied on a judgment rendered by the Supreme Court in W.P. (C) No.116/1998 titled A.L. Confederation of Blind and another v. U.O.I. and another (decided on 19.3.2002) and concluded as follows:
"21. Reference to the aforesaid judgment is made by us to highlight the decision taken by the Government, and accepted by the Supreme Court that reservation for disabled is called horizontal reservation which cuts across all vertical categories such as SC, ST, OBC & General. Therefore, what was Civil Writ Petition No.5850 of 2012 8 recognized was that since PWDs belonging to SC/ST categories, i.e., vertical categories enjoyed the relaxation which is provided to SC/ST categories, there is no reason not to give the same benefit/concession to those disabled who are in General Category or Other Backward Class Category as that process only would being parity among all persons' disparity irrespective of their vertical categories. This itself provides for justification to accord same concession, viz., 10% concession to PWDs as well, in all categories which is extended to those PWDs who fall in the category of SC/ST.
22. All the aforesaid clinchingly demonstrates that the people suffering from disabilities are equally socially backward, if not more, as those belonging to SC/ST categories and therefore, as per the Constitutional mandates, they are entitled to at least the same benefit of relaxation as given to SC/ST candidates.
23. We, therefore, hold that the provision giving only 5% concession in marks to PWD candidates as opposed to 10% relaxation provided to SC/ST candidates is discriminatory and PWD candidates are also entitled to same treatment. The mandate is, accordingly, issued direction the DTU to provide 10% relaxation. Thus, the minimum eligibility requirement for persons belonging to PWD becomes 50% in PCM. Since the petitioner becomes eligible to be considered for admission in B.Tech. course of DTU, his case may accordingly be considered for admission and found eligible for admission on that basis, the same be granted to him forthwith."
We are, however, unable to apply the salutary principle laid down in this judgment to the case in hand keeping in view the distinction between admissions to educational institutions and appointments to judicial office.
Merely because the posts advertised under Category 9 have gone abegging would by itself not clothe the writ court to issue a direction contrary to the Rules of service to fill up such posts by relaxing standards. But looking to the fact that persons with disabilities have not made it on Civil Writ Petition No.5850 of 2012 9 general standards, the appropriate Government i.e. the Government of Punjab may consider the issue raised in this petition in the light of the 1995 Act and take a final decision with respect to grant or non-grant of relaxed standards to persons with disabilities consistent with its duty both of affirmative action and empowerment and to maintain the efficiency required for holding judicial office and to do so within a reasonable period and preferably before the next recruitment is made to the P.C.S. (Judicial Branch). For the present it is not legally possible to grant any relief to the petitioner in the present proceedings.
With the above observations, this petition is disposed of.
( HEMANT GUPTA ) ( RAJIV NARAIN RAINA )
JUDGE JUDGE
17.10.2012
rajeev