Patna High Court
Tetar Das vs The State Of Bihar & Ors on 19 July, 2016
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2861 of 2015
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1. Dr. Anil Kumar Son of Shri Bharat Prasad Resident of Mohalla - Sankatmochan
Nagar, P.O. Arrah, District - Bhojpur
.... .... Petitioner/s
Versus
1. The State of Bihar through its Chief Secretary, Old Secretariat, Patna
2. The Development Commissioner, Old Secretariat, Government of Bihar, Patna
3. The Principal Secretary, General Administration Department, Government of
Bihar, Old Secretariat, Patna
4. The Principal Secretary, Department of Social Welfare, Government of Bihar,
Apana Ghar, New Punaichak, Patna
5. The Director, Social Security and Disability Directorate, Department of Social
Welfare, Government of Bihar, 31,32,33/84, New Punaichak, Patna
.... .... Respondent/s
with
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Civil Writ Jurisdiction Case No. 15221 of 2014
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1. Tetar Das Son of Late Rup Lal Das, Resident of Mohalla- Sandalpur, P.O.-
Mahendru, P.S.- Sultanganj, District - Patna Pin - 800006.
.... .... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. Development Commissioner, Old Secretariat, Government of Bihar, Patna.
3. Principal Secretary, General Administration Department, Government of Bihar,
Patna.
4. Principal Secretary, Social Welfare Department, Government of Bihar, Apna
Ghar, New Punaichak, Patna.
5. Director, Social Security and Disability Directorate, Social Welfare Department,
Government of Bihar, 31,32,33/84, New Punaichak, Patna.
.... .... Respondent/s
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Appearance :
(In CWJC No.2861 of 2015)
For the Petitioner/s : Mr. Sanjeev Kumar Mishra
Mr. Ugranath Mallik , Advocates.
For the Respondent/s : Mr. AJAY, GA-12
(In CWJC No.15221 of 2014)
For the Petitioner/s : Mr. Gyanand Roy, Advt.
For the Respondent/s : Mr. NEELU AGRWAL. Advocate
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL JUDGMENT
Date: 19-07-2016
Both the applications raise common issues inasmuch as
foundational facts are common and as such they have been heard
Patna High Court CWJC No.2861 of 2015 dt.19-07-2016
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together. The present order will govern them.
To appraise the controversy relevant facts, shall be
noticed from CWJC No. 2861 of 2015.
The writ application is filed to command the respondents
to consider the petitioner(s) for the post of State Commissioner
Disability on contract basis in the light of the provisions contained in
the Rehabilitation Council of India Act, 1992 ( for short „the 1992
Act‟) as well as the Persons with Disabilities ( Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 ( for short „the
1995 Act‟). During the pendency of the application, the respondents
completed the screening of the applicants and found the petitioners
ineligible for interview vide a proceeding of the Selection
Committee headed by the Development Commissioner, Government
of Bihar. The said decision of the respondents has been challenged
by filing I.A. No. 9759 of 2015. Similar application, being I.A. No.
7726 of 2014 has been filed in CWJC No. 15221 of 2014.
The State Government, in exercise of power under sub-
Sections (1) and (2) of Section 73 of the 1995 Act framed Rules
called the Bihar Persons with Disabilities ( Equal Opportunities,
Protection of Rights and Full Participation) (Amendment) Rules,
2013 ( for short „the Rules‟), a copy whereof is annexed at Annexure-
A to the counter affidavit. Such appointment of the post is to be made
on contract basis. The State respondents published the advertisement
( part of Annexure-B to the counter affidavit) inviting applications
Patna High Court CWJC No.2861 of 2015 dt.19-07-2016
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from the eligible candidates/applicants. Clauses 5 and 6 thereof, set
out the „Educational Qualification‟ and the „Experience‟ required
for the post. Applications were invited on line. As many as 41
persons applied on line. After scrutiny, only 23 applications were
found in order which includes the writ petitioner(s) who figured at Sl.
Nos. 12 and 18 of the list a copy whereof is enclosed at Annexure-D
to the counter affidavit.
Before dealing further, it is essential to note the relevant
provisions of the Rules. Rule 45 of the Rules, enables the State
respondents in the Department of Social Welfare to appoint State
Commissioner, Disability on contract basis or in case of vacancy on
deputation basis. Sub Rule 3 of Rule 45 provides the eligibility for
appointment of the State Commissioner Disability and reads as
under:-
"(3). Eligibility for appointment of
State Commissioner Disability:- In order to be
eligible for the appointment as State Commissioner
Disability, a person must satisfy the following
conditions, namely:-
(i) He should have special knowledge or
practical experience in respect of matters relating
to rehabilitation of persons with disabilities;
(ii) He should not have attained the age of
62 ( sixty two) years on the 1st January of the year
in which the last date for receipt of applications, as
specified in the advertisement issued under rule
45 falls;
(iii)He must possess the following
educational qualification and experience, namely
A. Educational qualifications:-
1. Essential: Graduate from a recognized
Patna High Court CWJC No.2861 of 2015 dt.19-07-2016
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university.
ll. Desirable: Recognized degree/diploma in
Social Work/ Law/ Management/ Human Rights
/Rehabilitation/Education of Disabled Persons.
B Experience:-
Should have at least 20 ( twenty) years experience
in one or more of the following types of
organizations at specified levels:-
(l) In a group „A‟ level post in Central/State
Government/Public Sector Undertaking/Semi
Government of Autonomous Bodies dealing with
disability related matters and/or social sector
(Health/Education/Poverty alleviation/Women and
Child Development); or
(ll) A senior level functionary in a registered
national or international level voluntary
organization working in the field of
disability/social development; or
(lll) Senior Executive position in a leading private
sector organization, involved in social work and in
charge of handling social development activities of
the organization :
(iv) Provided that out of the total twenty years
experience mentioned above, at least three years of
experience in the recent past should have been in
the field of empowerment of persons with
disabilities."
In accord with the Rules, the advertisement provided for
Educational Qualification and work experience for the post in
question.
It has been submitted on behalf of the petitioner(s) that
no one should have been considered for the post who was not
registered with the Rehabilitation Council of India constituted under
the 1992 Act. Petitioner of CWJC No. 2861 of 2015 is duly registered
professional. The work experience enclosed in support thereof is at
Patna High Court CWJC No.2861 of 2015 dt.19-07-2016
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Annexure-7 wherefrom it appears that Secretary of Gita Mahila
Utthan Samity certified that the petitioner was instrumental in
providing information regarding disabled females in relation to their
education and rehabilitation. On the basis thereof, he claims the
requisite experience as required under the Rules and the terms of the
advertisement. It has been pointed out that the petitioners have been
arbitrarily left out in the screening by the Selection Committee under
the Chairmanship of the Development Commissioner assigning vague
reasons. Further, the reason assigned for not considering his case, is
not compatible with the Rule provisions as well as the conditions
spelt out in the advertisement. The Rule provisions do not provide for
mini selection before selection. The reasons having not been set forth
in the proceedings of the Selection Committee cannot be
supplemented by affidavit. In order to support his contention the
petitioner has relied on an order passed by the learned Single Judge of
the Delhi High Court in WP( c) no. 196 of 2007. The petitioner has
asserted that he has requisite experience for the post as is evident
from the list prepared by the respondent after initial scrutiny
(Annexure-8).
Per contra, the respondents, while opposing the writ
petition, has submitted that pursuant to the advertisement dated
24.1.2014issued by the Social Security and Disability Directorate, Department of Social Welfare, Govt. of Bihar, applications were invited for appointment on contract basis. The petitioners filed their Patna High Court CWJC No.2861 of 2015 dt.19-07-2016 6/10 applications on line. The eligibility criteria for the post was clearly indicated in the advertisement. Sub Rule-3 of Rule-45 provides the eligibility for the appointment on the post in- question. Clause-B of sub- Rule (iii) provides the required experience . There is proviso to this Rule which states that out of the total 21 years experience mentioned above, at least three years of experience in the recent past should have been in the field of empowerment of persons with disabilities. The petitioners, on scanning, were found lacking the aforesaid experience and as such they were not further short listed for interview. According to the Rule provisions, a panel of three persons is to be recommended after interview. Having sifted the eligible applicants out of the remaining 23 the selection committee prepared a list of 06 applicants who were found otherwise eligible in all respects. The petitioners was found lacking requisite experience in the specified field and hence, their names were not included in the list of 06 applicants/candidates. No fault can be found with the impugned proceeding of the Selection Committee consisting of the experts. What shall be the requisite experience and what is the actual experience of the petitioners or the other applicants is a matter to be considered/ examined by the Selection Committee .The same not being wholly arbitrary should not be interfered with. It is not a case where no reason or vague reason has been assigned.
I have heard Mr. Sanjeev Kumar Mishra in support of CWJC No. 2861 of 2015, Mr. Gyanand Roy in support of CWJC No. Patna High Court CWJC No.2861 of 2015 dt.19-07-2016 7/10 15221 of 2014 as well as the counsel for the State appearing in both the writ petitions and perused the materials on record.
The contention of the petitioners is that only those who have been registered under the 1992 Act ought to have been considered has no legs to stand. Neither the Rule provisions nor the terms and conditions of the advertisement contemplates such registration with Rehabilitation Council of India under the 1992 Act. In fact, in making appointment, the provisions of the 1992 Act shall have no role to play. The 1992 Act provides for constitution of a Rehabilitation Council of India for regulating the training of the rehabilitation professionals. It is not the case of the petitioners that the process of the appointment on the post in- question was carried out under the 1992 Act. The 1995 Act and the Rules framed thereunder provides for appointment of the Rehabilitation Commissioner Disability and the process to be adopted therefor including laying down the requisite Educational Qualification and the Work experience. The order of learned Single Judge relied upon by the petitioner was rendered in entirely different factual matrix. The said case relates to appointment on the post of Ear Mould Technicians. The process of appointment was undertaken in terms of the 1992 Act. Learned Single Judge found the selection and appointment of the respondents contrary to the statutory provisions of the Rehabilitation Council of India Act and, thus, interfered with. Moreover, said order is passed by a learned Single Judge of the Patna High Court CWJC No.2861 of 2015 dt.19-07-2016 8/10 Delhi High Court which has no binding force. According to the experience/work certificate of the petitioner of CWJC No. 2861 of 2015 he was instrumental in providing the information(s) to the Mahila Utthan Samiti. Petitioner of CWJC No.15221 of 2014 has, however, not enclosed the work/experience certificate. According to the Rules and the terms of the advertisement which govern the field the applicant(s) should have the following experience in one or more of the following types of organization as specified levels:-
(l) In a group „A‟ level post in Central/State Government/Public Sector Undertaking/Semi Government of Autonomous Bodies dealing with disability related matters and/or social sector (Health/Education/Poverty alleviation/Women and Child Development); or (ll) A senior level functionary in a registered national or international level voluntary organization working in the field of disability/social development; or (lll) Senior Executive position in a leading private sector organization, involved in social work and in charge of handling social development activities of the organization (lV) However, according to proviso under clause IV thereof out of the total twenty years experience mentioned above, at least three years of experience in the recent past should have been in Patna High Court CWJC No.2861 of 2015 dt.19-07-2016 9/10 the field of empowerment of persons with disabilities.
The respondents have stated that the selection committee after making further scrutiny found only 06 candidates qualified as per the norms and decided to allow those candidates for interview and the remaining applications of the candidates including the petitioners were rejected on the ground that they do not fulfill the requisite criteria. The Selection Committee found the petitioners lacking in experience and qualification in the arena/field of disabled persons. This is a matter which can be better appreciated by the Selection Committee consisting of the experts.
I have already dealt with the works/experience submitted by the petitioner of the CWJC No. 2861 of 2015 which appears to be not commensurate with the requirements of the post. The Selection Committee has clearly set out reasons for not considering the case of the petitioner(s). The Court is in agreement with the submission of the State respondent that what is the work experience required for the post in terms of the advertisement can be well appreciated by the Selection Committee consisting of the experts. On the basis of the materials placed by the petitioner(s), it would be difficult for this Court to substitute its own view on this aspect of the matter.
It has strenuously been argued by Mr. Roy, the counsel representing the petitioner of CWJC No.15221 of 2014 that the respondents have acted arbitrarily in effecting a mini selection before Patna High Court CWJC No.2861 of 2015 dt.19-07-2016 10/10 the actual selection. The argument may be attractive but, on deeper scrutiny, appears hollow. The Selection Committee is empowered to scrutinize the eligibility of the candidates in accord with the Rules and the terms and conditions of the advertisement and thereafter on completion of the selection process recommend a panel of three eligible persons for appointment on the post. The selection process itself, therefore, contemplates scrutiny at different levels. Firstly, those applications which were defecting were put aside. The experience and other qualifications of the remaining 23 candidates were thereafter scrutinized. These are the process of selection which is provided under the Rule. It is, thus, incorrect to say that a mini selection has been undertaken before the final selection. Actually, the Rules provide for such scrutiny /scanning by the Selection Committee. The said contention of the petitioner(s) is not sustainable in law.
In the light of the discussions made above, this Court is unable to find any merit in this writ application. Dismissed.
No order as to cost(s).
(Kishore Kumar Mandal, J) Shyam/-
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