Jammu & Kashmir High Court
Mohammad Ashraf Hajam vs State Of J&K; And Others on 1 May, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
SWP No.1951/2014
MP No.3094/2014
MP No.01/2017
Date of Decision:01-05-2017
Mohammad Ashraf Hajam Vs. State of J&K & Ors.
Coram:
Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing counsel:
For the Petitioner(s): Mr. Kaisar Ahmad vice M. M. Dar.
For the Respondent(s): Mr. A. M. Mir, Dy. AG vice Mr. Sheikh
Manzoor, Dy. AG-for R1 to R3.
Mr. Hashim Hussain, Dy. AG-for R4 & R5.
Ms. Ulfat-for R6
Mr. Tufail-for R7
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: OPTIONAL
1. Vide advertisement notice No.06 of 2013 dated 10.05.2013, applications have been invited from the eligible candidates for 5181 posts which include 190 posts of teachers District cadre Budgam with the following break-up"
Name of the category No. of posts OM 108 RBA 38 SC 15 ST 19 ALC 6 OSC 4 Total 190
2. The qualification prescribed is as under: 2
"10+2, preference will be given to the candidates having higher qualification and those having passed M. Ed, B. Ed and Diploma ETT/NTT."
3. The note incorporated in the advertisement notice is quoted here-under:
"(i) The horizontal reservation for Ex-Serviceman and Handicapped persons to the extent of 6% and 3% respectively would mean the reservation which would cut across the vertical reservation and the persons selected shall have to be placed in the appropriate category by making necessary adjustments. In respect of Physically Handicapped persons the reservation shall be available only for services, posts and type identified for the purpose by the competent authority under the provisions of Jammu and Kashmir Persons with Disabilities (Equal opportunity, Protection of Rights and Full Participation) Act, 1998 and 'to the extent specified therein'. Besides the nature of disability for a post indicated in Govt. order No.62-SW of 2001 dated 13.3.2001 read with Govt. order 231-SW of 2011 dated 22.12.2011 and Govt. order No.108-SW of 2013 dated 1.4.2013 shall be adhered to in letter and spirit. The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the ex-
serviceman against such posts only where the maximum of the pay scale does not exceed Rs.10500(pre-revised)."
4. Section 22 of the Jammu and Kashmir Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1998 (hereinafter for short referred to as the Act of 1998), provides as under:
"Reservation of posts.--The Government shall appoint in every establishment such percentage of vacancies not less than three percent, for persons or class of persons, with disabilities of which one 3 percent, 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 disabilities;
Provided that the 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".
5. 3% out of 190 posts is equal to 06 posts. 1% of the three categories of disabilities means 2 posts to each class, i.e.
(i) =2 posts
(ii) =2 pos
(iii) =2 posts
6. Amongst others, petitioner and respondents No.6 and 7 had also applied under category "disability". Case of the petitioner is that he has applied under "visual disability" and had appended disability certificate with the application form, copy is placed on record which reveals that he has 40% disability, therefore, he was required to be considered as against one percent of the total vacancies in terms of Section 22 of the Act of 1998. No candidate with visual disability has been selected. Petitioner has been un- necessarily ignored when his merit is better than 4 respondents No.6 and 7 who have been selected under the disability category.
7. In para 7 of the reply as filed by respondents No.4 and 5, it has been stated that the petitioner has obtained 50.37 points in the selection process whereas respondent No.6 who has locomotive disability and respondent No.7 who has hearing disability have obtained 54.59 and 41.37 points respectively. The petitioner has challenged the selection of respondent No.6 who is the last in order of merit from amongst handicapped persons with locomotive disability and respondent No.7 who is the last in order of merit amongst all selected handicapped persons.
8. So far as position of respondent No.7 is concerned, he has been selected in the "hearing disability" class so his selection is against one percent against which petitioner cannot have any claim.
9. What has been done by the respondent Board is that one candidate-respondent No.7 has been taken from class disability hearing impairment. As against 2nd post of the class, no candidate was available whereas from the class low vision, petitioner was available but ignored wrongly. 5 Instead of two, four candidates have been taken from locomotor disability class.
10. From amongst the candidates with locomotive disability, only one percent i.e. two candidates should have been selected, instead four have been taken which is permissible only when candidates from other disability classes are not available. When petitioner with visual disability was available, he should have been considered and taken against one post as against quota of one percent for visual disability class.
11. Regarding claim of the petitioner, it has been stated that the persons with permanent disability are entitled to consideration as handicapped persons. Persons with temporary disability are not entitled to such consideration. The certificate produced by the petitioner did indicate that petitioner suffered from temporary disability, inasmuch as in the validity column, the words 'two years' have been mentioned instead of permanent disability. Petitioner has also applied as a resident of backward area but in the category 'backward area', the last selected candidate had secured 62.455 points.
6
12. The only issue which requires consideration is as to whether petitioner was entitled to be considered and taken under the visual disability class. It is an admitted fact that as per the instructions issued by the Board, candidate having disability percentage 40% or above has to be considered for 'HC' category. Petitioner, admittedly, has produced the disability certificate wherein it is shown that he has 40% disability. His claim has been rejected only on one ground i.e. in the disability certificate the validity has been shown as 'two years'. The said certificate has been issued on 22.08.2002 but later on another disability certificate bearing No.255 dated 01.11.2014 has been issued wherein degree of disability has been shown as 100% and in the column 'validity' it has been shown as 'permanent', therefore, petitioner should have been given chance to show latest status of his disability. His candidature under the category 'HC' should not have been ignored. When petitioner has two certificate, one showing degree of disability as 40% which has been issued in the year 2002 and second issued in the year 2014 showing the degree of disability as 100% and validity is shown as 'permanent', how can that be ignored. The respondent 7 Board should have asked the petitioner to produce the latest disability certificate. Petitioner with all bona fides, at the time when he applied, had annexed his disability certificate showing disability as 40%, which was a requirement, but later development was there, same could not be ignored.
13. The object of advancing the reservation under category 'HC' cannot be permitted to be defeated on a small technical point. Petitioner could not be deprived and divested of a legitimate right when he falls within the category 'HC' and his disablement is clear. In respect of such type of categories, sometimes technicalities have to be ignored.
14. Petitioner having competed and having obtained 50.37 points, though could not make the grade in RBA category, to which he belongs, but as against one percent out of three percent horizontal reservation, he should have been selected. That post should not have been given to the category 'locomotor disability'.
15. Viewed thus, petition is allowed. The respondent Board is directed to consider selection of the petitioner 8 under the category 'HC' (visual disability) in light of two disability certificates, one dated 22.08.2002, wherein disability is shown as 40%, and another dated 01.11.2014, wherein disability is shown as 100%, the validity is shown as 'permanent' and after considering the same, shall recommend case of the petitioner for appointment under category 'HC' (visual disability) which may be to the exclusion of last candidate selected under locomotor disability or against the vacancy which may be otherwise available, that is to say 3% of 190 posts means 6 posts under the category 'HC'. Only five posts have been filled up. The exercise be undertaken and completed within a period of six weeks from today.
16. Petition succeeds, shall stand disposed of as above along with connected MPs.
(Mohammad Yaqoob Mir) Judge Srinagar 01.05.2017 "Bhat Altaf"