Calcutta High Court (Appellete Side)
Shibu Sarkar vs The State Of West Bengal And Ors on 22 February, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
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Sl. No.AD 62
22.02.2017.
S.d.
W.P 2351(W) of 2017
Shibu Sarkar
-versus-
The State of West Bengal and ors.
Mr. Bimal Chatterjee, ld. sr. counsel.
Mr. Sukanta Chakrabarty
Mr. Anindya Halder
.......for the petitioner.
Mr. Soumen Kumar Dutta
Mr. D. K. Saila
Mr. G. N. Imrohi
...for the college authority.
Mr. Atarup Banerjee
Mr. Tapodip Gupta
....for the respondent no. 21.
Ms. Debjani Sengupta Ms. Julekha Khatun ....for the respondent no. 6.
Ms. Chaitali Bhattacharya Ms. Sukla Das Chanda ...for the State.
The petitioner is a fully blind man and a claimant to the post of Laboratory Attendant(Unreserved) for Persons with Disabilities(PWD) 2 Mr. Bimal Chatterjee, Learned Senior Counsel appears for the writ petitioner. The point in this writ petition, in respect of which lengthy arguments have been presented by each of the parties, relates to the appointment by the Respondent/College Authority, being the Belda College, District - Paschim Medinipur in the year 2016 for the post of a Laboratory Attendant.
Mr. Chatterjee submits that the said post of Laboratory Attendant is reserved for PWD candidates and governed by the Notification No.50-Emp/1M-25/98 of the Labour Department, Government of West Bengal dated March 1, 2011( for short the said Notification ).
Mr. Chatterjee further points out that under the said Notification, the 12th Vacancy relevant to the recruitment of Laboratory Attendants is unreserved and, specifically earmarked for a person with blindness or low vision. Learned Senior Counsel for the petitioner submits that instead of adhering to the Notification dated March 1, 2011 read in the light of the provisions in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the 1995 Act), the Respondent/College Authority proceeded to fill up the said post by appointing the Respondent no. 21, who is neither blind nor suffering from low vision.
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Relying upon the 1995 Act (supra) and, particularly Sections 33, 34 and 36 thereof, Mr. Chatterjee argues that the 1995 Act contemplates reservation of posts in respect of every establishment equally for persons suffering from blindness or low vision, hearing impairment, locomotor disability or cerebral palsy.
Sections 33 and 36 of the 1995 Act read respectively as follows:-
"S.33. Reservation of posts.--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 law vision;
(ii) hearing impairment;
(iii) 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 subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
"S.36. Vacancies not filled up to be carried forward.-- 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 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:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government."4
Mr. Chatterjee points out that from a reading of Section 36 of the 1995 Act, it would be obvious that in the event any vacancy has been earmarked under Section 33, be it visual, hearing, locomotor or cerebral, such vacancy cannot be filled up from any category of other disabilities and the vacancy must be carried forward to the succeeding recruitment year.
Learned Senior Counsel submits that an interchange among the defined categories of disabled persons provided under Section 33 of the 1995 Act is permissible under Section 36 of the 1995 Act only with the prior approval of the appropriate Government.
In the facts of the present case, the legal right of the petitioner to move this Court by way of the present petition is born on discovery of the fact that the 12th Vacancy ought to have been carried forward to the succeeding year since it is not supported by the record that the Respondent no. 21 is a person suffering from blindness or low vision.
Therefore, Mr. Chatterjee argues that the writ petitioner has the locus to move this writ petition.
Appearing for the Respondent/College Authority, Mr. Soumen Kumar Dutta, learned Counsel, argues that although the post of Laboratory Attendant was advertised for PWD persons such post could not be filled up by a blind person or, with person suffering from low vision inasmuch as no such candidate was 5 available. Therefore, the Governing Body (GB) of the College adopted a resolution to fill up the post by appointing the Respondent no. 21, who also is a PWD candidate and, admittedly suffers from hearing impairment.
Mr. Dutta further argues that the post of Laboratory Attendant is of a nature that its duties cannot be easily discharged by a blind or low vision person. Therefore, the G.B took a resolution to appoint the Respondent no. 21 and, copy of such resolution was sent to the Director of Public Instruction, Government of West Bengal (for short D.P.I). Since the D.P.I has approved the panel, the appointment letter was issued in favour of the Respondent no. 21.
Mr. Atarup Banerjee, learned Counsel appearing for the Respondent no. 21, reiterates the submissions made by Mr. Dutta (supra).
On behalf of the State respondents, appearance is entered by Ms. Chaitali Bhattacharya, learned Senior Government Advocate, who admits to the roster system as notified on March 1, 2011.
On behalf of the Respondent Vidyasagar University, appearance is entered by Ms. Debjani Sengupta, learned Counsel.
After hearing the parties and considering the materials placed, this Court is persuaded to arrive at the following findings:-
a) That admittedly the 12th Vacancy was reserved for persons with blindness or low vision ;6
b) That admittedly the provisions of the Notification dated March 1, 2011 governed the selection ;
c) That the Respondent/College Authority did not mention in the advertisement that the unreserved post of Laboratory Attendant was meant for blind or low vision category ;
d) That admittedly, the petitioner had accrued a right to apply for the said vacancy since such vacancy was mandatorily required to be carried forward to the succeeding year in view of the non-availability of a blind or low vision candidate;
e) That admittedly, the provisions of Section 36 of the 1995 Act require the respondent / College / Recruitment Authority to obtain prior approval from the appropriate government meaning thereby the D.P.I, which was not obtained since nothing is brought on record;
f) The post-facto approval granted to the panel by the DPI on receiving the resolution of the GB is not the prior approval within the meaning of Section 36 of the 1995 Act;
g) That this Court must construe the locus of a person with disabilities seeking his rights under the 1995 Act and the Notification dated March 1, 2011 in relation to having the post carried forward under the roster for enforcement of his constitutional right under Article 16.
In connection with (g) above the following decisions can be usefully referred to:-
I) In Re : Rajesh Awasthi vs. Nand Lal
Jaiswal and others (2013)1 S.C.C 501 at
paragraph 33
"33. In Centre for PIL v. Union of India a three-judge Bench, after referring to the decision in R. K. Jain v. 7 Union of India, has opined thus(Centre for PIL case, SCCp.29, para 64) "64. Even in R. K. Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction. It is also worth nothing that in the said case a view has been expressed that the judicial determination can be confined to the integrity of the decision-making process in terms of the statutory provisions."
II) In Re : Sai Chalchitra vs. Commissioner, Meerut Mandal and others (2005) 3 S. C. C 683 at paragraph 5:-
"After hearing the counsel for the parties, we are of the opinion that the High Court clearly erred in dismissing the writ petition filed by the appellant on the ground of locus standi. The appellant being in the same trade as Respondent 3 has a right to seek the cancellation of the licence granted to Respondent 3 being in violation of the Act and the Rules."
III) In Re : RETD. Armed Forces Medical Association and others vs. Union of India and others(2006) 11 S.C.C 731 at paragraph 78:-
"The High Court, in the instant case, was not exercising certiorari jurisdiction. Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. This Court in Umakant Saran(Dr.) v. State of Bihar held that the appointment cannot be challenged by one who himself is not qualified to be appointed. In Kumari Chitra Ghosh v. Union of India a Constitution Bench of this Court held as under(SCCp.234, para 12) 8 "12. The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded."
In the backdrop of the above discussion, this Court is satisfied at this stage that the writ petitioner qualifies to maintain a writ of certiorari notwithstanding that the existing facts also create space for applying for a writ of quo warranto as settled through judicial pronouncements.
Let affidavit-in-opposition, if advised, be filed by three weeks from date; reply thereto, if advised, be filed two weeks thereafter.
Let the matter next appear under the heading "For Orders" fairly at the top in the Combined Monthly List of April, 2017.
The Respondent/College Authority is restrained from taking any steps or further steps in relation to the appointment of the Respondent no. 21 to the post in issue since such appointment stands governed by the result of this writ petition.
Affidavit of service filed by the petitioner be kept with the record.
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The learned Advocate-On-Record appearing for the petitioner is given the liberty to expunge the names of the other private respondents, excepting private Respondent no. 21, from the cause- title of the writ petition.
(Subrata Talukdar, J.)