Karnataka High Court
State Of Karnataka Repby Its Pri Sec Dep ... vs Sri Hanumantharao Kulkarni on 26 March, 2025
Author: S G Pandit
Bench: S G Pandit
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NC: 2025:KHC-D:5609-DB
WP No. 100626 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.100626 OF 2022 (S-KAT)
BETWEEN:
1. THE STATE OF KARNATAKA
REP/BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF EDUCATION
(PRIMARY AND SECONDARY),
M.S. BUILDING, BENGALURU-560001.
2. THE SELECTION AUTHORITY AND DEPUTY
DIRECTOR OF PUBLIC INSTRUCTIONS (ADMINISTRATION)
DEPARTMENT OF PUBLIC INSTRUCTIONS,
KOPPAL-583231.
...PETITIONERS
(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE)
AND:
SRI HANUMANTHARAO KULKARNI
S/O SRI VASANTHARAO KULKARNI
MOHANKUMAR
B SHELAR AGED ABOUT 43 YEARS,
R/AT. 1ST WARD FOREST AREA, AT POST. KINNI,
Digitally signed by
MOHANKUMAR B KOPPAL DISTRICT-583230.
SHELAR
Location: HIGH
COURT OF
...RESPONDENT
KARNATAKA
DHARWAD BENCH (NOTICE TO RESPONDENT IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT IN
THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER
PASSED BY THE HON'BLE KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL AT BENGALURU IN APPLICATION NO.1172/2016 BY
ORDER DATED 27.02.2019 VIDE ANNEXURE-A & ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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NC: 2025:KHC-D:5609-DB
WP No. 100626 of 2022
CORAM: THE HON'BLE MR. JUSTICE S G PANDIT
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE S G PANDIT) The State Authorities are before this Court under Article 226 of the Constitution of India, aggrieved by order dated 27.2.2019 passed by the Karnataka Administrative Tribunal, Bengaluru1 in Application No.1172/2016, whereunder, the Tribunal directed the petitioners/authorities to select the respondent/applicant to the post of Assistant Master-Kannada General for Class VI-VIII as per Recruitment Notification dated 23.3.2015 (Anenxure-A1) and for notional fixation of pay of the respondent/applicant.
2. Heard the learned Government Advocate Sri. G.K. Hiregoudar for the petitioners/State. Though respondent/applicant is served, he remained unrepresented. Perused the writ petition papers.
3. Brief facts of the case are that, the petitioners in terms of Recruitment Notification dated 23.3.2015 (Annexure- A1) invited applications to fill-up the post of Assistant Teacher 1 'Tribunal' for short -3- NC: 2025:KHC-D:5609-DB WP No. 100626 of 2022 in the Primary School relating to different subjects. Insofar as Assistant Teacher-Kannada, 13 posts were reserved for the Physically Handicapped persons. Out of 13 posts, Recruiting Authority could fill up only 9 posts for physically handicapped persons and remaining 4 posts of Physically Handicapped (SC) were remained unfilled.
4. The respondent approached the Tribunal claiming that he had applied for the post of Assistant Teacher-Kannada, under GM category, claiming reservation under Physically Handicapped quota. It was the contention of the learned counsel for the respondent/applicant that the reservation to physically handicapped person is a special reservation and in terms of Section 34 of the Rights of Persons with Disabilities Act, 20162, all posts ought to have been filled up by physically handicapped persons. The Tribunal under impugned order dated 27.02.2019 accepted the case of the respondent/applicant and issued direction to the petitioners/State to select the respondent/applicant to the post of Assistant Master-Kannada General for Class VI-VIII, in 2 'Act of 2016', for short -4- NC: 2025:KHC-D:5609-DB WP No. 100626 of 2022 pursuance of Recruitment Notification dated 23.03.2015. Aggrieved by the same, the State is before this Court.
5. Learned Government Advocate Sri.G.K. Hiregoudar for the petitioners/State would submit that out of 13 posts of Assistant Teachers-Kannada reserved for Physically Handicapped persons, only 9 physically handicapped candidates were available and 4 posts of PH(SC) were remained unfilled. The learned Govt. Advocate would further submit that the respondent/applicant being General Merit candidate, would not be entitled to the post meant for PH(SC). Therefore, he prays to allow the writ petition by setting aside the order of the Tribunal.
6. Having heard the learned Government Advocate for the petitioners/State and on going through the entire writ petition papers, we are not inclined to accept the arguments of the learned Government Advocate.
7. Admittedly, 13 posts of Assistant Teachers-Kannada were reserved for Physically Handicapped persons. Out of 13 posts, 9 posts were filled up by PH candidates. It is also an -5- NC: 2025:KHC-D:5609-DB WP No. 100626 of 2022 admitted fact that 4 posts belonging to PH(SC) remained unfilled.
8. Section 34(2) of the Act of 2016 reads as follows:
"Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability"
9. The procedure prescribed in the above provision shall have to be complied by every Recruiting Authority in the process of recruitment. In the instant case, admittedly, the petitioners/Selecting Authority have not followed the above provision. As such, the Tribunal is justified in directing the petitioners/State to select and appoint the respondent/applicant as Assistant Teacher-Kannada under physically handicapped quota.
10. The Tribunal while allowing the application placed reliance on a decision of the Apex Court in the case of Mahesh -6- NC: 2025:KHC-D:5609-DB WP No. 100626 of 2022 Gupta & Others Vs. Yashwant Kumar Ahirwar & Others3, which would state that the PH quota would constitute itself as special class. A co-ordinate Bench of this Court in the case of Shamashuddin M Savadatti Vs. Karnataka Public Service Commission and Others4, in an identical fact situation by considering the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, has held at paragraphs 20, 21, 28, 29 & 31 as under:
"20. The provisions of Section 36 of the said Act clearly indicate that where in any recruitment year any vacancy under Section 33 , cannot be filled up due to non- availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories i.e., blind or low vision, hearing impairment: and locomotor disability or cerebral palsy in the posts identified for each disability and as contemplated under Section 33 of the said Act. Only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability. Which means, for two succeeding years, the appointing authority cannot appoint any person other than the disability category as mandated under Section 36 of the said Act. Ultimately on 2nd occasion, if any such person cannot be employed, the vacancy may be interchanged among the three categories with prior approval of the Government.
21. In the present case, admittedly the procedure as contemplated under the provisions of Sections 33 and 36 of 3 AIR 2007 SC 3136 4 2015 SCC Online Kar 9535 -7- NC: 2025:KHC-D:5609-DB WP No. 100626 of 2022 the said Act stated supra, has not been followed by the 1st respondent, while filling up of 21 posts reserved for disabled persons. It is also not in dispute that respondent No. 3 does not belong to 2N PH category and his name was not found in the marks list and his is entirely from a different category inasmuch as he does not belong to any one of the categories of different physically handicapped categories. Therefore, the very selection made by the 1st respondent appointing the 3rd respondent for the reserved post 2A/PH category, is contrary to law. Admittedly, he belongs to 2A category, but he is a non- disabled person. He has been wrongly selected under 2A/PH category by the KPSC. The same is impermissible in view of the provisions of Sections 33 and 36 of the said Act.
28. In selection of 21 posts reserved for candidates with disability, reservation has not been followed by the 1st respondent/KPSC while inviting the applications for the post of Assistant Engineers under notification dated 5.7.2007. The selection and appointment of respondent No. 3, who belongs to 2A category (General i.e., non-disabled) under 2A physically handicapped category is contrary to the provisions of Sections 33 and 36 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the dictum of the Hon'ble Supreme Court as stated supra. Since the petitioner belongs to one of the categories mentioned under the provisions of Section 33 of the Act, certainly he is entitled for appointment to the post of Assistant Engineer under 2A/PH category. The 3rd respondent, who belongs to 2A category (general merit) should not have been appointed. Therefore, the selection made by the 1st respondent/KPSC selecting the 3rd respondent in 2A/PH category is contrary to the notification dated 14.8.2007 and the provisions of Sections 33 and 36 of the Act. So also the same is in violation of Articles 16(1) and 14 of the Constitution of India. Therefore, the selection made by the 1st respondent/KPSC selecting respondent No. 3, is invalid.
29. Admittedly the KAT while passing the impugned order has not adverted to the aforementioned aspects of the matter, whereby it proceeded to dismiss the application of the petitioner under wrong notion. Hence the impugned order passed by the KAT is not sustainable and the same is opposed to the provisions of the said Act. The question of challenging the Government Order dated 22.11.2002 as observed by the KAT does not arise, when the provisions of Sections 33 and 36 of the said Act clearly depict that in any appointment made by -8- NC: 2025:KHC-D:5609-DB WP No. 100626 of 2022 every appropriate Government, there shall not be less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from blindness or low vision; hearing impairment; locomotor disability or cerebral palsy. The Government cannot go beyond the provisions of Sections 33 and 36 of the said Act."
11. For the reasons recorded above, we find no error or illegality in the impugned order passed by the Tribunal. There is no merit in the writ petition. Accordingly, writ petition stands rejected.
Sd/-
(S G PANDIT) JUDGE Sd/-
(C.M. POONACHA) JUDGE JTR CT:VP LIST NO.: 1 SL NO.: 45