Gauhati High Court
Bhupen Bhuyan & 105 Ors vs The State Of Assam And Ors on 23 April, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 1424/2011
WP(C) No. 3994/2011
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
23.04.2015
This order will dispose of both WP(C) Nos. 1424/2011
and 3994/2011.
Heard Mr. A. R. Sikdar, learned counsel for the
petitioners and Mr. B. K. Sarma and Mr. J. Singh, learned Standing
Counsel, Social Welfare Department.
In WP(C) No. 1424/2011 there are as many as 106
petitioners whereas in WP(C) No. 3994/2011 there are 7 petitioners.
All the petitioners suffer from various forms of physical
disability and are covered by the provisions of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (briefly "Persons with Disabilities Act"
hereafter).
By filing the two writ petitions, petitioners seek quashing of
the final state level select list dated 15.02.2011 issued by the Director
of Social Welfare, Assam.
Director of Social Welfare, Assam had issued an
advertisement on 09.06.2005 inviting applications from intending
and eligible physically disabled candidates to fill up 662 numbers of
back log vacancies in Gr-III and Gr-IV posts in different
departments of Govt. of Assam. All the petitioners had applied
pursuant to the said advertisement and participated in the selection.
According to the petitioners, they were recommended by their
respective District Level Selection Committees but when the
WP(C) No. 1424/2011
WP(C) No. 3994/2011 Page 1 of 8
recommendations received from the various districts were
considered by the State Level Committee and final state level select
list was prepared, names of the petitioners were not included.
Petitioners have alleged serious anomalies and
irregularities in the selection at the State level, which led to their
exclusion from the final state level select list.
On 18.09.2013, this Court had passed the following
order:-
"The matter pertains to appointment against backlog vacancies
pertaining to physically challenged persons. The vacancies are of Grade-C
and D cadres. The respective District Level Committee selected the
petitioners and their names were included in the central select list. However,
according to the respondents, they could not be offered appointment, as they
did not come within the zone of consideration vis-à-vis the vacancy position.
Noticing the illegality/irregularity in preparing the select list, the Government of Assam in the Social Welfare Department had ordered an enquiry. Initially the petitioners were not provided with the copy of the enquiry report, but later on as per the order of this Court, they were provided with the copy of the same, which has been enclosed to the affidavit-in-reply filed by the petitioner.
On perusal of the enquiry report, it appears that numerous illegalities/irregularities were committed in preparing the select list, even to the extent of inclusion of names of persons who did not appear in the selection. It was also noticed in the enquiry that many departments did not submit any information regarding backlog vacancies for physically challenged persons. The enquiry report has made certain recommendations. Response to the same of the Government of Assam in the Social Welfare Department is not available.
Mr. B.K. Sarma, learned Standing Counsel, Social Welfare Department submits that he has not been furnished with any instruction in respect of the action taken pursuant to the enquiry report. Mr. A.R. Sikdar, learned counsel for the petitioners submits that because of the anomalies/illegalities committed in preparing the select list, atleast some, if not all the petitioners have been deprived of appointment. He further submits that perhaps the selected candidates can be accommodated against the backlog vacancies in respect of the departments, which did not submit their position.
WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 2 of 8In view of the above, list on 6.11.2013 enabling Mr. Sarma, learned Standing Counsel, Social Welfare Department to obtain instruction in respect of the action taken pursuant to the enquiry report.
Let a copy of this order be furnished to Mr. B.K. Sarma, learned Standing Counsel, Social Welfare Department."
Thereafter on 11.03.2014, this Court after taking note of the order passed on 18.09.2013 directed the Commissioner and Secretary to the Govt. of Assam, Social Welfare Department to inform the Court as to what steps were being taken by the Department in respect of the select list where admittedly anomalies/illegalities had been detected and confirmed.
Today, when the matter is called upon, Mr. Sarma, learned Standing Counsel has placed before the Court written instructions of the Social Welfare Department. The written instructions are as follows:-
"The Social Welfare Department had undertaken a special drive for appointment of Persons with Disabilities against back log vacancies of Govt. of Assam in the year 2005-06 in pursuance of section 33 of the Persons with Disability Act, 1995. Accordingly after completion of the process, appointment against vacancies shown by various departments had been started.
Later on, the Govt. in Social Welfare Department received several complaints from various organizations and individuals citing irregularities in the appointment process. The Govt. ordered an enquiry into the allegations and irregularities vide order no SWD 202/2002/2009 dated 17.08.2010. The Enquiry Report which is with the Hon'ble Court had been submitted on 27.09.2010.
Accordingly following actions have been taken as per the recommendations of the enquiry report by the Social Welfare Department.
1.0 A decision has been taken to constitute a committee under the chairmanship of Director, Social Welfare, to examine the select list of 2005-06 with lots of irregularities. Irregularities have been mentioned in the enquiry report also. It was also decided that the Committee if required will streamline the list of selected candidates prepared in the WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 3 of 8 year 2005-06. The Committee held several meetings held on 11th January 2011, 17th January 2011, 24th January 2011, 31st January 2011 and 15th February 2011 and examined thoroughly the merit list prepared during the year 2005. After going through the records available, the committee has streamlined the select list on the basis of the merit list originally prepared by then Director, Social Welfare and calculated that almost 134 nos. of posts had not been filled up by different departments. The department wise details of these vacant posts are mentioned in the minute of the meeting held on 15th of February 2011 which is enclosed in Annexure-A. In the same meeting dated 15th of Feb 2011, it was decided further to request the concerned departments to submit details about filling up of backlog vacancies within 28th of February 2011.
2.0 The detailed streamlined lists prepared by the aforesaid committee are submitted to various departments for appointment which are enclosed in Annexure-B. 3.0 It may be mentioned that the Govt. had appointed or recommended for appointment of Persons with Disabilities whenever such instances of irregular appointment depriving another candidate has been brought to the notice of the department. The appointment of Sri Naba Kumar Roy as teacher at the Deaf & Dumb School and recommendations of names of Smti. Geeta Talukdar and Sri Pradeep Choudhury in Grade III and Grade IV staff to the Home Department are such examples.
4.0 As mentioned in para 1-3 of the order dated 18.09.2013 of the Hon'ble High Court, it is a fact that many departments did not submit their list of backlog vacancies pertaining to their department at that time. The lists of these departments are enclosed in Annexure "C".
However, the Social Welfare Department issued letters to all departments asking their backlog vacancies even now. Copies enclosed in Annexure D (1) and D (2).
5.0 It was reliably learnt that some of the departments have filled up some of the posts. However none of the departments have informed this department about filling up of the backlog vacant posts.
6.0 It may be mentioned that the validity of the select list prepared in 2005 continued up to July 2011. It was the considered decision of the Social Welfare department not to extend that validity of the said list beyond July 2011 as the list already remained valid for six years which itself is not a normal precedence. Besides that, it will adversely affect the prospects of employment of younger persons with disabilities who have already attained the eligible age for a Govt. service. The Speaking Order WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 4 of 8 of the Commissioner and Secretary, Social Welfare Department in this respect is enclosed in Annexure "E".
7.0 Regarding disciplinary action against erring officials, it may be mentioned that an enquiry has been instituted against the concerned officials."
In the normal course, when illegalities are detected in a selection process and which are admitted by the administrative authority, Court would intervene in the matter to set at naught the illegalities detected. There can be no two opinions in this regard. But in the present case, it was a special recruitment drive carried out by the State to fill up the backlog vacancies for physically disabled candidates. Though enquiry was conducted which has disclosed illegalities in the selection, Court is of the considered view that judicial intervention at this stage may lead to a whole lot of complications as well as inequitous consequences. Firstly, the appointees are not before the Court. Secondly, even those persons i.e., the appointees suffer from physical disability and in the normal course would be entitled to a fair consideration for appointment under the provisions of the Persons with Disabilities Act. This is however not to suggest that the illegalities committed should be condoned or overlooked. The persons responsible for the illegalities should be identified and appropriate action should be taken against them. The departmental instructions as extracted above indicates that enquiry has been instituted against the concerned officials. If that be so, enquiry should be carried forward and brought to its logical conclusion.
Petitioners are primarily concerned with their own employment as physically disabled candidates, seeking the protection WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 5 of 8 of the Persons with Disabilities Act. From the instructions of the Social Welfare Department, as placed on record, it is clearly evident that 134 vacancies relatable to the special recruitment drive carried out pursuant to the advertisement dated 09.06.2005 were not filled up and are still available to be filled up by candidates belonging to the physically disabled categories. At this stage, we may also refer to the provisions of Sections 32, 33 & 36 of the Persons with Disabilities Act. As per Section 33, 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 or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability. At this stage, it may be pointed out that reservation for persons with disability is a horizontal reservation and not a vertical reservation meaning thereby that such reservation do not alter or affect the overall percentage of reservation for the reserve categories, such as, STs, SCs and OBCs.
As per Section 32, the appropriate Government shall identify posts in the establishments which can be reserved for persons with disability and to review the list of posts identified and to update the same at periodical intervals not exceeding three years after taking into consideration the developments in technology.
Section 36 provides that vacancies which come under Section 33 and which cannot be filled up due to non availability of suitable WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 6 of 8 candidates or for any other sufficient reason have to be carried forward to be filled up in succeeding year or years.
Thus a conjoint reading of Sections 32, 33 & 36 would indicate that every Government is required to earmark minimum three percent of the vacancies to be filled up by persons with disabilities in the proportion mentioned in Section 33. It is also the duty of the appropriate Government not only to identify the posts which can be earmarked for the persons with disability but also to review the list at periodical intervals not exceeding three years. If the vacancies remain unfulfilled in any recruitment year the same is to be carried forward to be filled up in subsequent recruitment drive.
In this case what transpires is that a recruitment drive was carried out in the year 2005-06 to fill up 662 backlog vacancies in Gr- III and IV. These vacancies therefore obviously pertained to previous years i.e, prior to the year 2005-06. Even in this drive, 134 of the backlog vacancies could not be filled up. It appears that since the year 2005-06 no review has been carried out by the State regarding identification of posts earmarked to be filled up by persons with disability or to update the list so prepared. In such circumstances, when admittedly petitioners could not be appointed because of anomalies in the selection process particularly at the time of preparation of state level select list, Court is of the view that it would meet the ends of justice if a direction is issued to the respondents to appoint the petitioners in the available vacancies relatable to the recruitment drive carried out in the year 2005-06. Naturally, these vacancies are available in the different departments, WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 7 of 8 the list of which is available with the Social Welfare Department. Ordered accordingly.
Keeping in view the mandate of the Persons with Disabilities Act, all the concerned administrative departments shall cooperate with the Social Welfare Department in ensuring that petitioners are suitably accommodated against the indentified posts in the respective departments. The Social Welfare Department being the nodal department shall verify the position of the petitioners vis a vis the selection process and proceed with their appointment in terms of their position.
Let the above exercise be carried out within a period of 4 (four) months from the date of receipt of a certified copy of this order.
Both the writ petitions are accordingly allowed. No cost.
Judge aparna WP(C) No. 1424/2011 WP(C) No. 3994/2011 Page 8 of 8