Jharkhand High Court
Manoj Kumar Singh Age About 45 Years S/O ... vs The State Of Jharkhand on 13 September, 2022
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 643 of 2018
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Manoj Kumar Singh age about 45 years S/o Shri
Kishori Singh, R/o vill Bahadarpur, P.O.-Mankatha,
P.S. Barahia, Dist-Lakhisari Bihar
.......... Petitioner/Appellant
Versus
1.The State of Jharkhand
2.The Secretary, Department of Administrative Reform
& Rajbhasa, Government of Jharkhand, Project
building, P.O & P.S. - Dhurwa, Dist-Ranchi.
3.The Principal Secretary, Department of education,
Project building, P.O & P.S. - Dhurwa, Dist-Ranchi.
4.The Deputy commissioner, Godda, P.O. P.S. &Dist-
Godda.
5.The Deputy commissioner, Dumka, P.O. P.S. &Dist-
Dumka.
6.The Deputy Commissioner, Sahibganj, P.O. P.S.
&Dist-Sahibganj.
7.The District Superintendent of Education, Godda,
P.O., P.S. &Dist-Godda.
8.The District Superintendent of Education, Dumka,
P.O., P.S. &Dist-Dumka.
9.The District Superintendent of Education,
Sahibganj, P.O., P.S. & Dist-Sahibganj.
....Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
Ms. Diksha Kumari, Advocate
For the Respondents : Ms. Darshana Poddar Mishra, AAG-I
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C.A.V on 08.09.2022 Pronounced on 13/09/2022
Per Sujit Narayan Prasad, J.:
2 The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against the order/judgment dated 11th July, 2018, passed by learned Single Judge in W.P.(S) No. 546 of 2016 whereby and whereunder the writ petition was dismissed declining to pass any positive direction for appointment of writ petitioner to the post of Trained Graduate Teacher (Science) in terms of the advertisement with Regional Language-Angika under Visually Handicapped Category-General.
2. The brief facts of the case, as per pleadings made in the writ petition, which are required to be enumerated read as hereunder:
The respondents-authorities, through Human Resource Development Department, Govt. of Jharkhand, Ranchi issued advertisement inviting applications for filling up total vacancies of 3972 Trained Graduate Teachers (Class- VI-VIII) in different districts of State of Jharkhand.
As per the conditions mentioned in the advertisement the candidates applying for the
post/subject must possess degree of the concerned subject at graduation level. It was further mentioned that the candidates may apply from the 3 district/districts in which the subject of their eligibility along with Regional Language vacancies are available and further they will be appointed on the basis of merit list prepared in consonance with the circular published by the respondent-authority.
The petitioner, found himself eligible, applied for the post of Trained Graduate Teachers (science)with Regional Language-Angika under Visually Handicapped Category-General ('non-para')in the districts of Jamtara, Pakur, Deoghar, Godda, Sahebganj and Dumka in pursuance to advertisement Nos. 3/2015, 3/2015, 3/2015, 3/2015, 5/2015 and 2/6/2015 respectively. It has further been averred that disabled/Visually Handicapped persons were to be appointed in terms of circular dated 07.11.2007 published by the Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Annexure-2 to the writ petition.
It is the case of the petitioner that as per Advertisement/Circular, he ought to have been declared successful in all the aforesaid districts but declared qualified only in District of Dumka, Godda and Sahebganj. It is specific case of the petitioner that though he qualified in the districts of Dumka, Godda 4 and Sahebganj and seats were vacant for appointment in visually handicapped category in Dumka district but his case was not considered for appointment on the post in question, therefore, he approached this Court invoking the writ jurisdiction of this Court conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 546 of 2016 taking the plea that though he fulfilled all the requisite qualification for appointment to the post in question as per advertisement and in view of the circular of the State Government dated 07.11.2007 but the respondents-authorities have illegally and arbitrarily in complete violation of Article 14 of the Constitution of India have not considered his case for appointment.
It was further pleaded that as per information furnished under Right to Information Act by the District Superintendent of Education, Dumka, vide letter no. 2263 dated 22.07.2015, Annexure 7/1 to the writ petition, wherein it has specifically been mentioned that four seats are still vacant in the district of Dumka under handicapped category, the respondents-State ought to have considered the case of the writ petitioner for appointment to the post of teacher for class VI to VIII under visually handicapped category. 5
During course of hearing, the writ Court vide order dated 12.04.2018 directed the respondents to file additional affidavit stating therein as to whether four posts of Assistant Teachers in the category of disabled persons are vacant or not in view of Annexure-7, Page- 155, which is information dated 22.07.2015 supplied under Right to Information Act by the District Superintendent of Education, Dumka.
In compliance thereto, counter affidavit dated 10.07.2018 was filed by the concerned respondent-
District Superintendent of Education, Dumka stating therein that the then District Superintendent of Education, Dumka had inadvertently given the information vide letter No. 2263 dated 22.07.2015 under Right to Information Act that four posts Trained Graduate Teacher (Science) under disabled category General are vacant, for which, the concerned respondent tendered unqualified apology to this Hon'ble Court. It was further contended that as of now, no seat is vacant under handicapped category in the district of Dumka.
The learned Single Judge considering the rival submissions advanced by learned counsel for the parties dismissed the writ petition vide order dated 6 11.07.2018, which is the subject matter of present intra-court appeal.
3. Mr. Manoj Tandon, learned counsel appearing for the petitioner-appellant has argued that the learned Single Judge failed to appreciate that even though the writ petitioner was meritorious in the category but he was not selected.
He has taken the additional ground of not extending the benefit of reservation under Visually Handicapped Category as provided under 'The Right of Persons with Disabilities Act, 2016', (hereinafter referred to as 'Act, 2016') wherein provision of 4% reservation is stated to be given to the disabled persons.
He has further taken the plea that for extending the benefit of reservation to the extent of 4% to the disabled person under the Act, 2016, had the cadre strength of 'para' and 'non-para' been taken together, one vacancy would have arisen for the disabled person and if that would have been followed there was every likelihood of consideration of case of petitioner under the said category, but, having not done so, gross illegality has been committed. He substantiated his argument by taking the plea that in some of the 7 districts appointments have been made taking total cadre strength of 'para' and 'non-para' teachers together and as such the act of the respondents-State by not following the said principle in the district which was opted by the petitioner is nothing but a discriminatory attitude so as to deprive the writ petitioner from getting appointment under the said category.
4. Ms. Darshana Poddar Mishra, learned A.A.G-I appearing for the respondents-State of Jharkhand has vehemently opposed the submission made by learned counsel for the petitioner and submitted that the writ petitioner although had not taken the plea about applicability of 4% reservation required to be followed under the provision of the Act, 2016, as also the ground of clubbing the cadre strength of para teacher and non- para teacher together so as to arise vacancy under disabled quota, but in appeal the petitioner is raising such grounds, which cannot be allowed to be agitated as the same was never agitated before the learned Single Judge.
5. Mr. Tandon, learned counsel for the petitioner has submitted that in the counter affidavit filed by the State it has been admitted that by clubbing together 8 the vacancy of para teacher and non-para teacher, benefit of reservation under Disabled Category/Visually Handicapped Category has been extended, but such benefit has not been granted to the petitioner i.e. in the district which was opted by him.
So far as refuting the argument of applicability extending the benefit of 4% reservation to the disabled person is concerned submission has been made by Mr. Tandon that the same being legal issue can well be raised even in appeal.
6. This Court has heard learned counsel for the parties, perused the documents available on record as also finding recorded by the learned Single Judge.
The facts, which are not in dispute, are that the writ petitioner who belongs to visually handicapped category (General) made an application for consideration of his candidature for appointment to the post of Trained Graduate Teacher (Science) (Class- VI- VIII) in the districts of Jamtara, Pakur, Deoghar, Godda, Sahebganj and Dumka but was not selected, therefore, he approached this Court by filing writ petition wherein originally plea was taken, taking aid of information received under Right to Information Act vide letter No. 2263 dated 22.07.2015, that four 9 vacancy in the district of Dumka are still available under handicapped category, as such appropriate order may be passed upon the State authority to fill up the vacancy.
The State filed counter affidavit retracting back from the statement made by way of information under Right to Information Act vide letter No. 2263 dated 22.07.2015 that four vacancy in the district of Dumka are still available by making an statement that such statement was made inadvertently by the D.S.E., Dumka and tendered unqualified apology and submission was made that there is no vacancy under the disabled category in the district of Dumka.
The writ petition, on the basis of statement made in the aforesaid counter affidavit, was dismissed, therefore, the instant appeal.
The respondent-District Superintendent of Education, Dumka although initially furnished information under RTI Act vide letter No. 2263 dated 22.07.2015 that four posts in non-para quota for the disabled person in science subject are vacant, but before the writ Court by way of filing counter affidavit the concerned respondent tendered unqualified apology to this Hon'ble Court for furnishing such wrong 10 information, and submitted that no vacancy is there in the district of Dumka, as claimed by the petitioner; which has not been rebutted by learned counsel for the petitioner. Hence, the issue of vacancy in the district of Dumka under the disabled category is no more.
7. Learned counsel for the appellant although did not lay much emphasis on the issue of availability of four vacancy in the district of Dumka rather taken the additional ground about extending benefit of 4% reservation under the disabled category to the petitioner as per provision stipulated under Section 34 of the Act, 2016, by taking together the cadre strength of 'para' and non-para teachers for extending such benefits.
8. Serious objection has been made by learned counsel for the State stating, inter alia, that new plea may not be allowed to be taken in appeal.
9. This court considering the submission made by learned counsel for the parties in this regard and considering the fact that applicability of reservation to disabled person since is a pure question of law, deems it fit and proper to consider the same for proper adjudication of the lis.
11
In this regard, it requires to deal with herein the applicability of provisions of Disability Act, i.e., as to whether the Right of Persons with Disabilities Act, 2016, as has been argued by learned counsel for the petitioner, would be applicable in the facts of the case or the provision under 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereinafter referred to as 'Act, 1995'] would be applicable.
Both the Acts, contains provision for extending the benefit of reservation to the persons with disability. The Act, 1995 contains a provision under Section 33 to extend the benefit of reservation in every establishment which will not be less than 3% for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from - (a) blindness and low vision;(b).hearing impairment; and
(c).locomotor disability or cerebral palsy; whereas the Act, 2016 provides a provision under Section 34 to extend the benefit of reservation in every establishment which will not be less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark 12 disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities.
For ready reference, the relevant provisions of the Act, 1995 and the Act, 2016, dealing with the benefit to be extended to the disabled, are quoted hereunder as:
Section 33 of the Act, 1995:
33.Reservation of posts.-.--(1) 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 and low vision;
(b)hearing impairment;
(c)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, exempt any any establishment from the provisions of this section. Sections 34 of Act, 2016 read as under:
34. Reservation.--(1)Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent.
each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:--
(a)blindness and low vision;
(b)deaf and hard of hearing;13
(c)locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d)autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:
Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.‖ Thus, it is evident that both the provisions, as under 33 of the Act, 1995 and 34 of the Act, 2016 provide benefit of reservation to the members of disabled category. The Act, 1995 provides reservation to the extent of 3% whereas the Act, 2016 provides reservation to the extent of 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities.
It further requires to refer herein that the Act, 1995 was superseded by the Act, 2016, which was 14 given effect from 19th April, 2017 vide S.O. No. 1215 (E) of 19.04.2017, but the advertisement as also the relevant rule basis upon which the advertisement was published is of the year 2015 i.e., prior to the date of promulgation of Act, 2016.
Therefore, in the given facts of the case, the Act, 1995 will be applicable for the reason that the Act, 2016 has been given effect to from 19.04.2017 and up- to 18.04.2017, the Act, 1995 was operative, as such, in the facts of the case, the question of extending benefit of reservation under disabled category is under the Act, 1995.
12. Mr. Tandon, learned counsel for the appellant has further taken a new plea that if vacancies falling under 'para teacher and 'non-para teacher', are taken together, in that circumstances, writ petitioner, who is falling under visually handicapped category, would have been appointed under the disabled category under the provision of Act, 2016. He has taken such plea by taking stand of the State in the counter affidavit that in different districts appointments have been made by taking vacancy position of 'para teacher and 'non-para teacher' together.15
But, this Court is not impressed with such argument as in the case in hand as per advertisement it would be evident that the entire appointment has been segregated in two category i.e. 'para teacher and 'non-para teacher'. Such categorization has been made on the basis of relevant rule i.e., Jharkhand Primary School Teachers' Appointment Rules, 2014, [hereinafter referred to as Rules, 2014] wherein it has been stipulated that 50% of the total vacancies is to be filled up amongst para teacher and rest 50% is to be filled up from non-para teacher category.
The relevant provision of the Rules, 2014 is quoted hereunder as:
12->kj[k.M izkjafHkd fo|ky; f'k{kd fu;qfDr ¼izFke la'kks/ku½ fu;ekoyh] 2014 ds vuqlkj f'k{kd ds in ij lh/kh fu;qfDr gsrq fpfUgr~ fjfDr;ksa esa ls 50 izfr'kr in >kj[k.M f'k{kk ifj;kstuk ifj"kn~ }kjk lapkfyr loZ f'k{kk vfHk;ku vUrxZr dk;Zjr ,sls vgrkZ/kkjh ikjk f'k{kd] ftudh lsok ml iapkax o"kZ] ftlesa fu;qfDr gsrq foKfIr izdkf'kr dh tk;sxh] dh igyh vxLr dks U;wure nks o"kZ ;k mlds vad dh gks] esa ls rFkk 'ks"k 50 izfr'kr in xSj&ikjk f'k{kd vgrkZ/kkjh vkosndksa esa ls Hkjk tk;sxkA Therefore, the moment the statute has come bifurcating the vacancy to be filled up from 'para 16 teacher' and non-para teacher' category, the cadre strength is construed to be in two different category i.e.
(i).para-teacher category and (ii).non-para teacher category.
In that view of the matter, the plea of the writ petitioner that the para teacher category and non-para teacher category are required to be clubbed together to extend the benefit of reservation under disabled category cannot be said to tenable argument for the reason that the writ petitioner falls under para-teacher (visually handicapped category-General) and if the argument of the writ petitioner is accepted then the question would be why the candidates under the non- para teacher category (general) would be deprived from such benefit.
13. It is settled position of law that if the statute has been made bifurcating the category for the purpose of filling up the vacancy the same will be treated to be two separate category and there cannot be exchange of vacancies otherwise such exchange of vacancies will always be detrimental to other category, which is not permissible in law.
14. Although, Mr. Tandon has tried to impress upon the Court by showing the conduct of the respondents 17 that in other districts benefit of reservation to the disabled person has been extended by clubbing together the vacancy of para-teacher and non-para teacher but even accepting that such illegality has been committed by the State-respondents, that does not mean that this Court, in exercise of power conferred under Article 226 of the Constitution of India, will follow such proposition following the principle of negative equality.
15. It is settled position of law that Article 14 of the Constitution of India envisages positive equality and not the negative equality. In the instant case, merging the vacancy of para-teacher and non-para teacher category by the State-respondent in some of the districts is nothing but a decision contrary to the statutory provision. Once the 'para' and 'non-para' teacher category has been categorized in two different categories earmarking 50% for each category there cannot be merger of vacancy and if the vacancies are being merged or inter-changed, the same will be in the teeth of statutory provision and in that view of the matter the same will be treated to be illegal decision. The writ petitioner wants to take aid of such illegal decision, the same cannot be said to be proper. 18
Reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in State of Bihar & Ors. vs. Kameshwar Prasad Singh &Anr., AIR 2000 SC 2306 wherein at paragraph 30 it has been laid down as under:-
―The concept of equality as envisaged under Art. 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.‖ Further reference in this regard may also be made to the judgment rendered in Basawaraj & Anr. vs. Special Land Acquisition Officer,(2013) 14 SCC 81, in particular paragraph 8, which reads as under:
"8.It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it 22 cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the 19 jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible.‖ Likewise, the Hon'ble Apex Court in Kulwinder Pal Singh & Anr vs. State of Punjab & Ors., (2016) 6 SCC 532 at paragraph 16 held as under:
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma it was held as under:
15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake.‖
16. Even otherwise also, though learned counsel for the petitioner taking aid of the provisions under the Right of Persons with Disabilities Act, 2016 has advanced his argument that benefit of reservation 20 under disabled category is required to be extended to be petitioner, which came into effect on 19th April, 2017 whereas the rule i.e., Jharkhand Primary School Teachers' Appointment Rules, 2014, on the basis of which recruitment has been made is of the 2014, therefore, the Right of Persons with Disabilities Act, 2016 cannot be given its retrospective effect. Therefore, on this ground also the contention raised by learned counsel for the petitioner taking aid of the Right of Persons with Disabilities Act, 2016 is not worth to be accepted. Accordingly, the same is rejected.
17. This Court in the entirety of facts and circumstances of the case and considering the reason assigned by learned Single Judge in the impugned order about non-applicability of vacancy as also after having discussed the factual as also legal issue as above about giving no relief to the writ petitioner by merging the vacancy of the 'para-teacher' and 'non-para teacher' together for the purpose of giving reservation to the disable person, is of the considered view that impugned order passed by the learned Single Judge requires no interference by this Court.
18. Accordingly, the instant intra-court appeal stands dismissed.21
19. Consequent upon disposal of the instant intra court Appeal, the pending Interlocutory Application, if any, stands disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R.