Karnataka High Court
The Secretary vs The Secretary on 30 October, 2013
Bench: Mohan.M.Shantanagoudar, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30th DAY OF OCTOBER 2013
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
WRIT PETITION NO.22041 OF 2010 (S-KAT)
BETWEEN:
The Secretary
Department of Personnel
Administrative Reforms
Vidhana Soudha
Bangalore-01. ..Petitioner
(By Sri Pavan Kumar B. Bajentri, AGA.,)
AND :
1. The Secretary
Karnataka Public Service
Commission
Park House Road
Bangalore-01.
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2. Mr. Chethan M.J.,
Age 31 years
Tahsildar's Quarters
Temple Road Belur
Hassan District-573115.
3. Mr. Kempahonnaiah
Age 26 years
C/o Achintha William
No.402, 4th Main
3rd Cross, Ahimsa Marga
Siddartha Layout
Mysore-11. ..Respondents
(By Sri Reuben Jacob, Adv., for R1 absent;
R2 notice dispensed;
Ms. Jayna Kothari, Adv., for R3)
This writ petition is filed under Article 226 & 227 of
the Constitution of India praying to quash the order dated
30.10.2009 made in Application No.988/2008 passed by the
KAT., Bangalore which was produced as Annexure-A.
This writ petition coming on for hearing, this day,
MOHAN .M. SHANTANAGOUDAR, J., made the
following:-
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ORDER
The order of the Karnataka Administrative Tribunal ('KAT' in short), Bangalore in Application No.988/2008 dated 30.10.2009 is called in question in this writ petition.
2. The notification was issued on 1.7.2006 by the Karnataka Public Service Commission ('KPSC' for short) inviting applications for Group-B Tahsildar Posts. One post is reserved for physically handicapped person. The candidates having blindness/low vision or hearing impairment were eligible to claim reservation for the said post. The Respondent No.2 is suffering from hearing impairment, whereas the 3rd respondent is suffering from blindness/low vision. Both of them appeared for the written examination and personality test. The provisional list of selected candidates was announced and notified on 7.12.2007. Final selection list was issued on 9.1.2008. Respondent No.2 was selected for the aforementioned post 4 under the physically handicapped category since he is more meritorious than other physically handicapped persons. Being aggrieved by the non-selection of Respondent No.3 herein, he approached the KAT by filing Application No.988/2008, which came to be allowed by the impugned order dated 30.10.2009. The State Government is aggrieved by the same.
3. We do not find any ground to interfere in the impugned order inasmuch as the order of the Tribunal is just and proper. The Government Order dated 5.9.2005 reveals that roster point - 19 is reserved for physically handicapped candidates. Since 3% reservation has been provided to physically handicapped persons in Group-A and B posts vide Notification No.DPAR 50 SRR 2000 dated 3.9.2005, with an intention to give effect to the reservations, roster points at 19, 59 and 99 have been identified in a group of 100 vacancies exclusively available 5 for physically handicapped persons. Out of the these points, point No.19 is reserved for the candidate having blindness or low vision, point No.59 is reserved to person having hearing impairment and point No.99 is reserved to person having locomotor disability or cerebral palsy. It is also made clear in the very order dated 5.9.2005 that in case a candidate with the prescribed disability is not available for recruitment against the points earmarked, the candidates with other disabilities may be considered against those roster points.
4. Section 33 of Persons with Disabilities (Equal opportunities, protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short) also impliedly indicates that the preference should be given to the persons suffering from blindness or low vision and thereafter to persons with hearing impairment and thereafter to persons with locomotor disability or cerebral palsy. Section 36 of 6 the Disabilities Act further makes it clear that the vacancies not filled up are to be carried forward. That means unfilled backlog vacancies need to be notified in the next recruitment.
5. In the matter on hand, the selection started from point No.86 inasmuch as the selection was completed up to Point No.85 previously. 40 posts were announced for selection of Group-B Tahsildars. Only one post was reserved for physically handicapped candidate having blindness/low vision or hearing impairment. No post was reserved for the persons having locomotor disability or cerebral palsy. Since the notification was issued only in respect of one post of physically disabled person, that too having blindness or low vision or hearing impairment, Respondent Nos.2 and 3 who are having such disability applied. As aforementioned, Respondent No.2 was selected and Respondent No.3 was not selected.
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6. There is no choice left to Government, so long as eligible and suitably qualified handicapped candidates are available, to avoid providing 1% to each of three types of disabilities. Since 99th roster point had to be reserved for persons with locomotor disability or cerebral palsy, the notification inviting applications should have provided reservation for the persons having locomotor disability or cerebral palsy and hence the action taken by the authority is bad in the eye of law. By providing specific roster point distinctly and separately for each of the three different types of disability, what is intended in Disabilities Act is that there can be competition based on merit for selection within each type of disability, but not between one type of disability and another type of disability.
Be that as it may, the Tribunal on facts has found that no reservation was provided/made in the earlier recruitment to the post of Tahsildar for physically handicapped persons. Even such fact was not disputed by 8 the counsel for the State Government before the Tribunal. Therefore the Tribunal has rightly concluded that there are two unfilled backlog vacancies which are available for the disabilities categories, which obviously relate to the 19th roster point pertaining to persons with blindness or low vision and 59th roster point pertaining to persons with hearing impairment. In this view of the matter, the State Government is required to make good the backlog of two unfilled posts which should have been filled by disabled persons belonging to visually handicapped and hearing handicapped persons apart from the 99th roster vacancy which is presently notified, which should have been filled by persons with locomotor disability. In view of availability of two backlog vacancies relating to roster points 19 and 59 and in view of availability of one post of 99th roster point which is notified, the Tribunal in the interest of justice held that the present notified vacancy should be treated as being 19h roster point to be filled by the person with blindness or 9 low vision. The second backlog vacancy relating to 59th roster point was directed to be filled up by creating one supernumerary post from out of present selection by a person with hearing impairment. Since the 2nd respondent is more meritorious among the persons having hearing impairment and since the 2nd respondent is already selected, his selection need not be interfered with. The Tribunal is also justified in concluding that the next vacancy which will be notified for being filled by person with disability in the post of Tahasildar, shall be required to be reserved and filled by persons with locomotor or cerebral palsy being the 99th vacancy. In this view of the matter, we do not find any ground to interfere in the order passed by the Tribunal.
Accordingly, the petition stands dismissed. 10 It is needless to observe that the backlog vacancy relating to 99th roster point as mentioned supra should be filled up in future from among the candidates having locomotor disability or cerebral palsy based on their relative merit.
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JUDGE Sd/-
JUDGE Gss/nk-