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Andhra Pradesh High Court - Amravati

Gudapaty Rajesh Dinakar vs The State Of Andhra Pradesh on 2 April, 2025

APHC010026282023
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3506]
                          (Special Original Jurisdiction)

              WEDNESDAY, THE SECOND DAY OF APRIL
                TWO THOUSAND AND TWENTY FIVE
                                 PRESENT
    THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
                      WRIT PETITION NO: 1295/2023
Between:
Gudapaty Rajesh Dinakar                                      ...PETITIONER
                                    AND
The State of Andhra Pradesh and Others                  ...RESPONDENT(S)
Counsel for the Petitioner:
   1. PAUL PRASAD ZAMPANI
Counsel for the Respondent(S):
   1. GP FOR SERVICES III
   2. GP FOR SERVICES I
   3. GP FOR SERVICES II
The Court made the following:


ORDER:

The present writ petition is filed seeking the following relief:

"... to issue any writ or order or direction, more particularly, one in the nature of Writ of Mandamus declaring the action of the respondents in not appointing the petitioner in the post of School Assistant under Physically Handicapped (Blindness and Low Vision) category (roster point-6) reserved for Women though the petitioner is in No.1 merit list of visually handicapped category and the 5th respondent passed the proceedings in Rc. No.1382/A2/2019, dated 06.12.2022, as 2 CGR, J.

illegal, arbitrary and contrary to para 17 of the notification issued by the Commissioner inviting applications for the posts, Rule 20 of the TET cum TRT Rules, 2019, issued by the Government read with the Proviso to Rule 22(2)(e) of A. P. State and Subordinate Rules, 1996, procedure for carry forward interchange process of vacancies under Section 34(2) of the Right of Persons with Disabilities Act, 2016, and also violative of the orders of this Hon'ble Court in W. P. No.9013 of 2021, dated 16.08.2021, and W. P. No.23491 of 2020, dated 19.02.2021, and consequently, direct the respondents to appoint the Petitioner in the above said post and set aside the proceedings in Rc.No.1382/A2/2019, dated 06.12.2022, of the 5th respondent along with concerning proceedings and pass...."

2. Petitioner being blind and falling under category (a) of the bench mark disabilities enumerated under Section 34 of the Rights of Persons with Disabilities Act, 2016, claimed reservation under the said disability quota, which has been specified initially as 3% with specific roster in cycle of 100 vacancies and later enhanced to 4%. In terms of Rule 22 of the Andhra Pradesh State and Subordinate Service Rules, 1996, (for short, "the 1996 Rules"), as amended vide G.O.Ms.No.99, dated 04.03.2013, in cycles of 100 vacancies 6th point is reserved for (a) disability category, 31st point for (b) disability category and 56th point for

(c) disability category. From out of the categories, 6th point is reserved for blindness or low vision (women) (visually handicapped) as per the roster point. Notification No.768/TRC-1/2018, dated 15.02.2019, came to be issued by 4th respondent for conducting Teachers Eligibility Test- cum-Teachers Recruitment Test (TET-cum-TRT) (for short "DSC, 2019") for the post of School Assistants (Special Education) under Inclusive 3 CGR, J.

Education for Disabled at Secondary Stage (IEDSSS) under the Andhra Pradesh Samagra Shiksha (SMS). As per the said Notification, one post is reserved to be filled with (a) category bench mark disability (women) in Guntur District. Petitioner appeared in the examination and got qualified. As per merit list in the category of visually handicapped, he stood No.1 in the merit list. The post that was reserved for women candidate could not be filled as no woman candidate acquired eligibility. In the absence of such woman reserved candidate, petitioner claimed to be entitled for the said post being next eligible candidate with same disability in terms of proviso to sub-rule (2) of Rule 22 of the 1996 Rules. Petitioner submitted representation, dated 14.02.2022, and as the said representation was not considered, he preferred W.P.No.23070 of 2022. Pending writ petition, this Court passed interim order, dated 28.07.2022, directing the respondents to consider the said representation and pass appropriate orders in accordance with law. By impugned proceedings in Rc.No.1382/A2/2019, dated 06.12.2022, 5th respondent by way of speaking orders rejected the petitioner's claim. Assailing the same, the present writ petition is preferred.

3. 5th respondent filed counter-affidavit opposing the writ petition. In the counter-affidavit, respondents admitted that petitioner appeared for the post of School Assistant (Special Education) in DSC-2019 under 4 CGR, J.

category of OC(G) under reservation category of PH (visually handicapped) (General). However, he was not selected under the said category as he was not falling within the zone of merit. It is further stated that only one post was notified under category of PH (visually handicapped) (Women) (point No.6) and as petitioner is male candidate, he is not entitled to be considered for selection against the said post in terms of Rule 22 of the 1996 Rules. Further, by referring to G.O.Ms. No.23, dated 26.05.2021, the respondents have tried to justify their action in not considering the case of the petitioner and contended that in case in any recruitment year, any vacancy if not filled up due to non- availability of a suitable person with such disability, such vacancy shall be carried forward to the succeeding recruitment year for being filled from the same category and if in case even in the next year also qualified candidates of same category are not available, the said post shall be notified for being filled up by interchanging from among three categories of bench mark disability, and even then, if there is no suitable candidate, the said post will be opened for consideration for persons other than disability. Proviso to said Rule will operate only after exhausting aforesaid three options and in as much as in the present case, without exhausting the three options, petitioner cannot be considered for appointment by exclusively taking aid of the proviso to the said Rule and hence, prayed to dismiss the writ petition.

CGR, J.

4. Learned counsel for the petitioner contended that petitioner having qualified in DSC-2019, being visually handicapped, stood first in rank as per merit list of said visually handicapped category and since the post that is reserved for visually handicapped (women) (roster point.6) could not be filled with due to non-availability of suitable and eligible women candidate, by virtue of proviso to Rule 22 of the Rules, petitioner is entitled to be considered for appointment. He placed reliance on the orders passed by two co-ordinate Benches of this Court in Kovvuri Nagi Reddy v. The State of A.P (W.P.No.23491 of 2020)1 and Kovvuri Nagi Reddy v. The State of A.P. (W.P.No.9013 of 2021)2.

5. Opposing the aforesaid contention, learned Assistant Government Pleader for Services-II has drawn attention of this Court to counter-affidavit filed by 5th respondent and reiterated the stand taken in the said counter-affidavit. He essentially placed reliance on G.O.Ms. No.23, dated 26.05.2011, to contend that post reserved for visually handicapped for women at point-6 will open up for persons other than said category only after exhausting the three options enumerated in para.6(iv) of the said G.O., in as much as the said process is not exhausted, petitioner is not entitled to be considered for appointment 1 Order passed in W.P.No.23491 of 2020, dated 19.02.2021. 2 Order passed in W.P.No.9013 of 2021, dated 16.08.2021. 6

CGR, J.

under the said category. He particularly placed reliance on para.8 of the counter-affidavit.

6. Perused the record and considered the rival submission on either side.

7. The facts narrated above are not in dispute. Petitioner appeared for DSC-2019 and as per the list published in Ex.P5 name of petitioner stands at Sl.No.50, who is considered to be visually handicapped. As per the merit list, petitioner stood first in rank within the category. As per the Notification, post notified under visually impaired (women)(general) category could not be filled due to non-availability of qualified and eligible woman candidate. Petitioner claims that in such scenario, petitioner also being visually handicapped with same disability is entitled to be considered in the said category in view of proviso to Rule 22 of the 1996 Rules. Petitioner's request came to be rejected by impugned order, dated 06.12.2022. The said order places reliance on para.6(iv) of G.O. Ms.No.23, dated 26.05.2011. It is stated that as against one vacancy notified under quota of visually handicapped (women), one candidate namely Smt.A.Srilatha, who got rank of 107, was provisionally selected against the said vacancy against roster point-6, however, upon verification of her physical impairment, she found to be ineligible thereby her candidature was rejected. As no other female candidate was 7 CGR, J.

available in the merit list, the roster point was carried forward to next recruitment. Therefore, petitioner's request for selection against the said vacancy reserved for visually handicapped (women) was refused.

8. Now the entire controversy revolve around interpretation of proviso to Rule 22 and vis-à-vis Para.6(iv) of G.O.Ms.No.23, dated 26.05.2011, for the purpose of considering candidature of petitioner or like persons in case there is no qualified and eligible woman candidate falling under roster Point-6 with physically impaired disability. Very same issue fell for consideration in following cases.

9. This Court, in W.P.No.23491 of 2020, held as follows:

"7. According to Rule 22(2)(e) of A.P. State and Subordinate Service Rules, 1996, such vacancy can be filled if woman candidates are not available for the post reserved for women, qualified men candidates of the same category of disability may be appointed. Thus, the respondents, totally in violation or ignorance of the rule issued such proceedings, which impugned in this Writ Petition. Therefore, the impugned proceedings is totally contrary to Rule 22(2)(e) of A.P. State and Subordinate Service Rules, 1996 and the same is declared as arbitrary and illegal."

10. Following the aforesaid order, this Court, in W.P.No.9013 of 2021, held as follows:

"Against this backdrop for the purpose of analysis if the rule on which the respondents rely upon namely - Rule 6 (iv) of G.O.Ms.No.23, dated 26.05.2011, is split up into its component parts it is as follows:

"1) Where in any recruitment year, any vacancy cannot be filled up due to non availability of a suitable 8 CGR, J.

person with disability or, for any other sufficient reason as specified above;

(2) Such vacancy shall be carried forward to the succeeding recruitment year for being filled from the same category;

(3) If in that year also qualified candidates of the same category are not available, the same shall be notified for being filled up by interchanging from among the three categories;

(4) Only when there is no person with disability of any of the 3 categories available for the post, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.

(5) Provided that if qualified women candidates are not available for the posts reserved for women, qualified male candidates of the same category of disabled may be appointed."

If this rule is broken up into its parts and interpreted, it is clear that it deals with a "suitable person" with disability and does not discriminate on the ground of sex of the candidate. If a vacancy cannot be filled up in the first year it shall be carried forward to the succeeding recruitment year. If in that year also qualified candidates are not available with the benchmark disability the same shall be notified by filling up / and by interchanging amongst people with blindness, hearing impairment, locomotor disability etc. Only when there is no person with any of these defined disabilities available the employer can fill up the post with any other person without a disability. This is the plain language interpretation of this rule.

However, the Proviso to this section clearly states that if qualified women are not available for the post reserved for women, a qualified male candidate with the same category of the disablement can be appointed. The proviso is reproduced here once again -

"Provided that if qualified women candidates are not available for the posts reserved for women, qualified male candidates of the same category of disabled may be appointed." (emphasis supplied) As rightly argued by the learned counsel for the petitioner the Proviso carves out an exception to the operation of the general rule. It is important to note that the rule does not provide for or mention about the "sex" of the challenged candidates. It does not mention - male or female. In the roster points the State has fixed the quota for men /women. The proviso however makes it very clear that if a qualified women candidate is not available for the post reserved for a woman, a qualified male 9 CGR, J.

candidate with the same disability can be appointed. The effect of the proviso is thus to carve out an exception to the general rule. The law on the subject is also very well settled and need not be repeated here. Para 10 of the Constitution bench Decision in Ram Narain Sons Ltd., and Others v Assistant Commissioner of Sales Tax and Others : (AIR 1955 SC 765) is reproduced hereunder:

"(10) .......It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other."

Thus it is clear that the interpretation placed by the State is not in consonance with -

(a) general law on the land particularly dealing with the effect of a proviso on the main section.

(b) not in line with the provisions of the Rights of Persons with Disability Act, which prohibits discrimination in any manner to a person with disability. They have to be given equality of opportunity, accessibility and the Act is also enacted to achieve the goal of equality between men and women. The State has a positive duty to utilize the capability of persons with disability by providing an appropriate employment. If the interpretation placed by the State is accepted it would amount to overlooking the effect of the Proviso and denying an immediate equal opportunity to the male candidate with the same disability."

11. In the aforesaid orders, this Court has categorically laid down that in terms of proviso, exception came to be carved out providing for the post being filled up with male candidate with same disability in case the post could not be filled up with qualified woman candidate in the roster point No.6. The counter-affidavit filed by the respondents, once again reiterated the stands that they have taken before this Court in the aforesaid W.P.No.9013 of 2021 which came to be clearly rejected. 10

CGR, J.

12. In this view of the matter, as the issue has already been decisively concluded by aforesaid orders of this Court, following the view expressed above, holds the issue in favour of petitioner.

13. Accordingly, the impugned proceeding in Rc. No.1382/A2/2019, dated 06.12.2022, issued by the 5th respondent, is set aside and the petitioner, who is first in the merit list under visually impaired, be appointed as School Assistant in the post reserved for category (a) disability i.e., visually handicapped (woman) (roster point No.6) under DSC-2019.

14. Accordingly, the writ petition is allowed. No order as to costs.

As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed.

_____________________________ JUSTICE CHALLA GUNARANJAN Date:02.04.2025.

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