Tripura High Court
Sri Shishir Kanti Sarkar vs The State Of Tripura To Be Represented By ... on 5 August, 2020
Author: Akil Kureshi
Bench: Akil Kureshi
Page - 1 of 28
HIGH COURT OF TRIPURA
AGARTALA
W.P(C) No.1378/2016
Sri Shishir Kanti Sarkar, S/o. Sri Sibendra Sarkar, 116 Bapuji Para,
North Badharghat (Near Bapuji School), PO- A.D. Nagar, Agartala,
District-West Tripura, PIN-799003.
............... Petitioner(s).
Vs.
1. The State of Tripura to be represented by the Chief Secretary to the
Government of Tripura, Civil Secretariat, New Secretariat Complex,
Kunjaban, P.O-Kunjaban, Agartala, PS-New Capital Complex, Agartala,
District-West Tripura.
2. The Secretary-in-charge of the General Administrtion (Personnel &
Training Department), Government of Tripura. Civil Secretariat, New
Secretariat Complex, Kunjaban, P.O-Kunkaban, Agartala, P.S-East
Agartala, District- West Tripura, PIN-799006.
3. The Secretary-in-charge of the Social Welfare & Social Education
Department, Government of Tripura, Civil Secretariat, New Secretariat
Complex, Kunjaban, PO-Kunjaban, P.O-Kunjaban , Agartala, P.S-East
Agartala, District-West Tripura, PIN-799006.
4. The Tripura Public Service Commission to be represented by its
Secretary, Old Secretariat Building, Agartala, PS- West Agartala, PO-
Agartala, District-West Tripura, PIN-799001.
............... Respondent(s).
BEFORE HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI For Petitioner(s) : Mr. D.K. Biswas, Advocate.
For Respondent(s) : Mr. D. Sharma, Addl. G. A.
Mr. Raju Datta, Advocate.
Date of hearing : 20th May, 2020.
Date of Judgment & Order : 5th August, 2020.
Whether fit for reporting : YES.
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JUDGMENT AND ORDER
Petitioner has prayed for a direction to the respondents to appoint him to the post of Personal Assistant, Grade-II of the Stenographer service on the carry forward unfilled vacancy for physically handicapped candidate in Scheduled Caste category.
[2] Brief facts are as under:
The petitioner possesses the educational qualifications of Diploma in Pharmacy, Diploma in Computer Application and Programming and has passed final examination of English shorthand and typewriting with a speed of 40 and 100 words per minute respectively in December, 2010 from a recognised institution.
[3] Tripura Public Service Commission (TPSC for short) published an advertisement dated 22.04.2014 inviting applications for candidates for filling up 50 vacancies of Personal Assistant, Grade-II cadre in the Government of Tripura, Stenographer service. Out of these fifty vacancies six were reserved for Scheduled Caste of which one was meant for physically handicapped candidates and one for ex-service man. In response to the said advertisement the petitioner applied as Scheduled Caste candidate. Upon completion of the selection process, the TPSC Page - 3 of 28 published a notification dated 01.01.2016 which contained the names of selected candidates and who were recommended for appointment. This notification contained a recommendation for filling up of four vacancies reserved for SC candidates and did not contain the name of the petitioner. No recommendation was made for filling up of vacancy for physically handicapped candidate in SC category.
[4] Through correspondence and applications to the respondents under Right to Information Act the petitioner gathered necessary information about the relative merits of SC candidates in the said recruitment process, which showed that the last candidate recommended by TPSC under SC category was one Sri Goutam Sarkar who had scored a total of 287.65 marks. The petitioner was awarded 281.8 marks. There was no other SC candidate who had scored marks between Sri Goutam Sarkar and the petitioner, Shishir Kanti Sarkar. In other words, in the order of merits the petitioner was placed at Sl. No.5 in SC category. [5] The case of the petitioner is that this was the third attempt at filling up the vacancy reserved for physically handicapped candidates in SC category. Even if in third attempt also no suitable candidate in the said category was available, the vacancy should have been filled up by appointing a SC candidate who did not suffer from any physical disability.
Page - 4 of 28 [6] The petitioner had collected information from the respondents about the previous selection processes also which showed that TPSC had undertaken recruitment process for the vacancies for the years 2005-07 when 29 vacancies for Scheduled Caste were notified which included one vacancy for physically handicapped candidate. Results were published by TPSC on 09.03.2007. Against 29 vacancies reserved for SC candidates 24 candidates were recommended for appointment. No candidate of SC (physically handicapped) was selected. Thereafter TPSC issued an advertisement in the year 2008 for the recruitment years 2008-10 when 16 vacancies reserved for SC candidates were notified. This included one carried forward vacancy for the period of 2005-07 of SC (physically handicapped) category. The results were declared on 11.03.2010 in which only seven SC candidates were recommended for appointment. Again no SC(physically handicapped) candidate was selected. Thus this unfilled vacancy of SC (physically handicapped) was carried forward for the next recruitment year 2014-16.
[7] Case of the petitioner is that on two previous occasions when the selection was undertaken by TPSC, attempts at filling up the vacancy in question reserved for SC(physically handicapped) category candidates was unsuccessful. This was a third attempt at filling up of the vacancy.
Page - 5 of 28 Even during this selection process no suitable candidate belonging to SC(physically handicapped) category was available. The vacancy therefore, had to be dereserved and should have been filled up by any SC category candidate. It is in this background, the petitioner has made the above noted prayer. He would find out that he was the highest ranked SC candidate who failed to secure appointment on account of non availability of vacancy in SC category beyond those who were recommended for appointment. By utilising this unfilled vacancy of SC(physically handicapped) category; the petitioner should have been offered appointment.
[8] Respondents i.e. TPSC and State authorities have appeared, filed replies and opposed the petition. They are not disputing the basic factual data presented by the petitioner. Their stand in the nutshell is that the vacancy for SC (physically handicapped) candidate can be dereserved only three attempts fail. This being the third attempt, such dereservation would take place only in the subsequent recruitment process. TPSC in its reply dated 21st June, 2017 has stated that the name of the petitioner could not be recommended for the post in question as he had scored 281.8 marks as against the last recommended SC candidate Sri Goutam Sarkar who had scored 287.65 marks. Likewise, Government of Tripura in its reply dated Page - 6 of 28 30.5.2017 has averred that no candidate belong to SC category having less marks than the petitioner was appointed. It is contended that as per the provisions if no suitable candidate is available for physically handicap vacancy, the same would be carried forward to the next recruitment year. Even in the second recruitment year no eligible physically handicapped candidate is available then the appointment would be made by interchanging the three categories of physical handicap. If from such categories also no candidate is available the appointment can be made of a person other than physically handicapped candidate. According to the State respondents such an occasion would rise only in the next recruitment year and not the present one. Reliance is placed on an order dated 29th September, 2010 issued by the General Administration (Personnel & Training) Department, Government of Tripura in which the need for not reducing the percentage of reservation for persons with disabilities has been stressed.
[9] In this background, Mr. D. K. Biwas, learned counsel for the petitioner submitted that the respondents committed a serious error in carrying forward the vacancy for physically handicapped candidate when at a third attempt also no suitable candidate belonging to the said category was available. He placed heavy reliance on Section 36 of the Persons with Page - 7 of 28 Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter to be referred to as the Disabilities Act, 1995) in support of his contention. He drew my attention to Rule 13(6) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 (hereinafter to be referred to as SCST Reservation Rules,1992). He contended that even as per this provision contained in the said Rules, at the third attempt if no candidate belonging to physically handicapped category is selected, the vacancy must be filled up by any other SC candidate. He submitted that the said rule should be interpreted harmoniously with Section 38 of the Disabilities Act, 1995. In case of any conflict, the central legislation which holds the field should prevail. In other words, the Rule framed by the State Government in exercise of powers of subordinate legislation cannot override the provisions made in the Central Act.
[10] On the other hand, Mr. D. Sharma, learned Additional Govt. Advocate opposed the petition contending that Rule 13(6) of the SC/ST Reservation Rules, 1992 is sufficiently clear. Dereservation of SC (PH) vacancy is available only after three attempts at filling up the vacancies fail. This being the third attempt such dereservation would happen only in the next recruitment process. He placed heavy reliance on the Government Page - 8 of 28 order dated 29th September, 2010 to contend that the intent of the Government is to preserve the vacancies reserved for physically handicapped candidates to the extent possible. The provisions of Rule 13(6) of the SC/ST Reservation Rules, 1992 should be interpreted bearing in mind this intention. He submitted that there is no conflict between the provisions of Section 36 of the Disabilities Act, 1995 and Rule 13(6) of the SC/ST Reservation Rules, 1992 framed by the State Government. [11] Relevant facts are not in dispute. In the recruitment process in question, TPSC had notified six vacancies for SC candidates of which one was reserved for SC(PH) candidates and one for Ex-service man category. Remaining four would be filled up by other SC candidates. This one vacancy of SC (PH) category was carried forward vacancy of the past years. During two previous recruitment attempts for the vacancies of years 2005 - 07 and 2008 - 10 respectively this vacancy though notified, could not be filled up on account of non-availability of suitable candidates belonged to the said category. This was thus the third attempt or in other words, the third recruitment year during which the said vacancy was notified. The term recruitment year is not defined in the Disabilities Act, 1995 or under the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 (hereinafter to be referred to as the SC/ST Page - 9 of 28 Reservation Act, 1991). Both sides have understood this term as to mean a recruitment process for filling up of the vacancies notified in a particular notification for such purpose. I have, therefore, proceeded on such basis. [12] Undisputedly, even in this third attempt TPSC could not select a candidate belonging to SC(PH) category. Only four recommendations were made for appointment of SC candidates. Thus, this vacancy was left unfilled even in this third round of selection process. In this background, we need to interpret the relevant statutory provisions. [13] The Disabilities Act, 1995 was enacted by the Parliament to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific region. The statement of objects and reasons for enactment of the said Act provides that India was a signatory to a proclamation on the full participation and equality of people with disabilities in the Asian and Pacific Region adopted by meeting convened by the Economic and Social Commission for Asian and Pacific Region held at Beijing during December 1992 during which a need was felt to enact a suitable legislation to provide certain protection to the persons with disabilities.
Page - 10 of 28 [14] Chapter VI of the Disabilities Act, 1995 pertains to employment. Section 32 contained in the said chapter requires the appropriate Government to identify posts in establishments which can be reserved for persons with disability and to carry out periodic review of the same. Section 33 pertains to reservation of posts and mandates that 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 which shall be reserved for persons suffering from blindness or low vision; hearing impairment or locomotor disability or cerebral palsy, in the posts identified for each disability. Section 36 which is also contained in the said chapter and which is of considerable importance for us reads as under:
"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."
Page - 11 of 28 [15] To provide for reservation of vacancies in services and posts for the members of Scheduled Castes and Scheduled Tribes, the State legislature had enacted the SC/ST Reservation Act, 1991. Preamble to the said Act inter alia provides that whereas Scheduled Castes and Scheduled Tribes who are underprivileged sections of the society are not adequately represented in the services and posts under the State of Tripura and it is expedient to provide reservation for them in services and posts under the State of Tripura and it is also expedient to provide for reservation of seats in educational institutions, higher studies and training to make such candidates qualified and eligible to various services in the State, etc. the Act was enacted.
[16] Section 4 of the said Act provides for reservation in favour of the SC and ST candidates in direct recruitment under the State Government. Section 5 provides for reservation in educational institutions. Section 17 is a rule making power of the Government. In exercise of such powers the State Government has framed SC/ST Reservation Rules, 1992. Rule 8 of the said Rules pertains to direct recruitment. As per Sub-rule (1) of Rule 8 while making a request to the Commission or to the Selection Committee or Selection Board for recommending candidates for direct recruitment, the appointing authority shall furnish information about Page - 12 of 28 reservation in favour of candidates belonging to Scheduled Castes and Scheduled Tribes. Such information would be based on 100 point roster showing position up to the year in which recruitment is proposed in respect to the concerned post or service. Rule 13 pertains to "Maintenance of records/Roster Registers". Sub-rule (1) of Rule 13 provides that every appointing authority shall maintain 100 point roster in prescribed form. Sub-rule (3) of Rule 13 provides for maintenance of 100 point roster for each category of post or grade. Sub-rule (5) of Rule 13 provides that roster shall be maintained for admission to educational institutions and selection of students for higher studies also. Sub-rule (6) of Rule 13 which is under consideration reads as under:
"(6) In case appropriate category of Ex-serviceman and Physically handicapped persons are not available in a recruitment year to fill up the posts reserved for them, the vacant posts would be carried forward to the next recruitment year. If no suitable candidate is available in the second recruitment year, the vacant post will again be carried forward to the third recruitment year. Even, if no candidate is available in the third year, the post will be filled up by a person of appropriate category."
[17] At this stage, we may refer to two Government orders. In order dated 31st March, 2001 issued by the Government of Tripura it was provided that in view of increase in the percentage of reservation in favour Page - 13 of 28 of physically handicapped candidates 100 point roster has been modified. While doing so it was clarified that:
"It is clarified that if in any recruitment year any vacancy for the persons with disability 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 a person cannot be employed, the vacancies may be interchanged among the three categories of disabled persons with the respective category of candidates reserved for, with the prior approval of the appropriate authority."
[18] In the order dated 29th September, 2010 issued by the General Administration (Personnel & Training) Department, it was stated that some of the departments were trying to reduce the reservation for the persons with disabilities from 3% but not trying to adjust or accommodate the prescribed percentage of reservation on replacement basis in cases where any of the category or categories is/are unsuitable for a particular post as identified by a notification dated 21.03.2006. In such background it was reiterated that:
Page - 14 of 28 "4. The matter has been considered by the Government and it has been decided that no employer shall be allowed/permitted to reduce the percentage of reservation for persons with disabilities from 3% even if one of the category is barred from getting the particular post of Government Service and instead of reducing 3% reservation for Persons with Disabilities, it shall be distributed among the remaining categories.
[19] As per Section 36 of the Disabilities Act, 1995, where in any recruitment year vacancy under Section 33 (i.e. one reserved for physically handicapped candidate) 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.
[20] Analysis of this provision would show that in a given recruitment year vacancy as referred to in Section 33 of the Act 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. If in the succeeding recruitment year i.e. in the second attempt at filling up the said vacancy also, suitable person with Page - 15 of 28 disability is not available, the vacancy would be interchanged amongst the three categories as referred to in Section 33. 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 the person with disability. Section 33 of the Act refers to three categories of persons with disability namely: (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy. Thus, as per Section 36 of the Disabilities Act, 1995 in the first recruitment year attempt would be made to select and appoint against a physically handicapped vacancy, a candidate belonging to the respective sub category of physical handicap for which the vacancy is earmarked. If this attempt fails, without any adjustment, it would be carried forward to the next recruitment year. If in the next recruitment year also, no suitable candidate is available (or for such other sufficient reason), the vacancy would be first filled by interchange among the three categories of physical handicap. Even from such other categories of physical handicap, if a candidate is not available for the post in that year, the employer would be free to fill up the vacancy by appointment of a person other than the person with disability. The group of words "it may first be filled ......." and "in that year ......" are significant. These expressions are used in the context of the attempt to fill up the vacancy in the second recruitment year. During such attempt, if Page - 16 of 28 suitable candidate belonging to the physically handicapped category for which the vacancy is reserved is not available, "it may first be" filled by interchange amongst the three categories of physical handicap. When this attempt also fails in that year, the employer would fill up the vacancy by appointment of a person other than the person with disability. [21] Section 36 of the Disabilities Act, 1995 thus, creates a complete prohibition in dereserving the vacancy reserved for physically handicapped candidate in the first recruitment year. When in the first recruitment year, the attempt at filling up the vacancy fails, the same would be carried forward to the next recruitment year without any modification or relaxation. For the second recruitment year, this section provides for a double switch which comes at three stages of selection attempt. First attempt would be to fill up the vacancy by physically handicapped candidate belonging to the category to which such reservation is provided. If that attempt fails, at a second level, the vacancy would be interchanged between other categories of physical handicap specified in Section 33 of the said Act. If this attempt also fails, employer would be free to appoint a person other than a person with disability. The words "it may at first" and "in that year" would persuade me to think that this entire process is one integrated process to be undertaken in the second Page - 17 of 28 recruitment year and this exercise which is envisaged at three levels as discussed earlier, does not have to be spilled over to the next recruitment year after the first two levels of examination for identifying first the candidate belonging to physically handicapped category for which the vacancy is reserved and thereafter for any other physically handicapped category have failed.
[22] Sub-rule (6) of Rule 13 of the SC/ST Reservation Rules, 1992 is, however, worded somewhat differently. It provides that in case an appropriate category of ex-service man and physically handicapped persons are not available in a recruitment year to fill up the post reserved for them, the vacant posts would be carried forward to the next recruitment year. If no suitable candidate is available in the second recruitment year, the vacant post will again be carried forward to the third recruitment year. If no candidate is available in the third year, the post will be filled up by a person of appropriate category.
[23] This sub-rule thus clearly speaks of carrying forward a vacancy for physically handicapped person if not available in a recruitment year for at least two occasions. If in the second recruitment year also a suitable candidate of the said category is not available it would be carried forward further to the third recruitment year. Only when in the third Page - 18 of 28 recruitment year a suitable candidate is not available, the post would be filled up by a person of appropriate category. To my mind, the application of this Rule is very simple and clear. A vacancy reserved for a physically handicapped candidate if not filled up, on account of non-availability of suitable candidate in the first recruitment year, the same would be carried forward to the second recruitment year. If the same position obtains in the second recruitment year, the vacancy would still be carried forward to the third recruitment year. If in the third recruitment year also the same position prevails, the post would be filled up by a person of appropriate category. In other words, when the third attempt at filling up the vacancy of a physically handicapped candidate fails, the post would be filled up by a person from of appropriate category. The vacancy thereafter does not have to be carried forward to the fourth recruitment year before it can be filled up by a person of appropriate category. There are several reasons for coming to such a conclusion. First and foremost the language used in the Rule is amply clear. It talks of carrying forward the vacancy from the first recruitment year to second recruitment year and then second recruitment year to the third recruitment year when at first attempt would be to fill up the vacancy from the reserved category of physically handicapped candidate. When even on the third occasion no suitable candidate is available, it would be open for the Government to fill up the post by a Page - 19 of 28 candidate other than the person with disability. This attempt at first to fill up the vacancy by a person belonging to physically handicapped category itself is a third attempt, previous two attempts having failed the vacancy would have been carried forward. When this third attempt fails, it has to be filled up by a candidate who does not suffer the disability and this has to be done during the same selection process. Such exercise does not have to await the next recruitment year. Any other interpretation would also lead to a piquant situation. Take for example, if after the third failed attempt, the vacancy is dereserved as suggested by the interpretation put forth by the Government advocate, in the fourth recruitment year if a suitable candidate belonging to physically handicapped category is available, he would not be appointed and a person belonging to the respective category not suffering from disability would secure appointment if that physically handicapped candidate has not scored more merit marks than his rival. This would be totally opposed to a very philosophy of giving some handicapped points to the physically handicapped candidates.
[24] As noted the implications of Section 36 of the Disabilities Act, 1995 and Rule 13(6) of the SC/ST Reservation Rules, 1992 are somewhat different. In my understanding, as per Section 36 of the Disabilities Act, 1995, if the conditions contained therein are satisfied, Page - 20 of 28 even in the second recruitment year itself, the vacancy reserved for physically handicapped candidates can be filled up by a person not suffering from disability. On the other hand, as per Sub-rule (6) of Rule 13 of the ST/SC Reservation Rules, 1992 this can be done only in the third recruitment year after the two previous attempts fail. However, these two scenarios cannot be seen as a conflict between two statutory provisions. This is so because Section 36 of the Disabilities Act, 1995 is an enabling provision for deservation of vacancy reserved for physically handicapped candidates. It does not mandate that if the conditions provided in Section 36 are fulfilled, every employer must dereserve the vacancy. In that view of the matter it was always open for the State Government to frame a Rule which preserved the reservation in favour of physically handicapped candidates for a period longer than one provided in Section 36 of the Disabilities Act, 1995. There is one clarification needed at this stage however. Sub-rule (6) of Rule 13 of the SC/ST Reservation Rules, 1992 does not speak of interchange of vacancy for physically handicapped candidates of one category to other categories which Section 36 of the Disabilities Act, 1995 refers. It only speaks of filling up the vacancy from the appropriate category. The requirement of an attempt to fill up the vacancy by such interchange of vacancies between different categories of Page - 21 of 28 physical handicapped must therefore be read into Sub-rule(6) of Rule 13 of the SC/ST Reservation Rules, 1992.
[25] We may now refer to some of the decisions on the point. In case of J. Ashok kumar Vrs. Union of India and others: reported in 2018 SCC Online Mad 3547 in the context of Section 36 of the Disabilities Act, 1995 advocates of two sides had made following submissions:
"8. The learned counsel for the petitioner would submit that, as per Section 36 of the Act, if no suitable person is available with disability for any recruitment or appointment, such vacancy shall be carried forward to the next succeeding year and in the next succeeding year also, if no suitable person is available with disability, the said post can be filled up by interchanging among the three categories of disability and if at all there is no person with disability, even after interchange taken place, is available, then only, employer can fill up by appointing a person other than the person with disability.
9. In view of this mandatory provision, as has been provided under Section 36 of the Act, since the said interchanging process was not undertaken by the 4th respondent, the provisional selection list, which is impugned herein showing such two vacancies, as if there was no suitable candidate available in that category, shall be interfered with. In support of his contention, the learned counsel has relied upon a Division Bench judgment of the Karnataka High Court made in W.P.No.41267/2010 [Mr.Shamashuddin M Savadatti v. The Karnataka Public Service Commission].
13. When the legal position under Section 36 was pointed out, the learned counsel for the 4th respondent would submit that, under Section 36 of the Act, vacancy earmarked for physically challenged person, if not able to be filled up in that year, it shall be carried forward to the next year and next year also, if there are no suitable candidates available for the concerned category of Page - 22 of 28 disability, then, the post shall be interchanged among the three categories of disability and shall be further carried forward to the next or succeeding recruitment, where the post can once again be filled up based on such interchange depending upon the candidates availability therein.
14. By giving such interpretation, the learned counsel for the 4th respondent would submit that, in view of the said position under Section 36 of the Act, the three posts as referred to above were not filled up, as there were no suitable candidates available in that category and therefore, it would be interchanged and to be carried forward to the next recruitment, he submitted."
The learned Single Judge held and observed as under:
"17. Having a plain reading of Section 36 of the Act, it discloses that, if any vacancy for any recruitment under Section 33 is not able to be filled up due to non availability of suitable candidate with disability, such vacancy shall be carried forward to the next succeeding recruitment year and even in the next succeeding recruitment year also suitable person with disability is not available, then, it is mandated that it may be first filled by interchange among the three categories. The interchange among the three categories meant, blind or low vision, hearing impairment and locomotor disability or cerebral palsy.
18. Here in the case in hand, the petitioner comes under the category of locomotor disability, according to the certificate issued by the competent authority in this regard. Since there is no suitable candidate available, with blind or low vision or the category of deaf, since two posts, ie, one is for general turn deaf and another one is for Scheduled Caste deaf were not able to be filled up for want of suitable candidates, certainly, the next action on the part of the selection agency must be to follow the mandatory requirement of Section 36 of the Act, thereby, those posts shall be filled up by interchanging the vacancy among the three categories as stated above.
19. This is the only possible interpretation of Section 36 and in order to take support of this interpretation, the judgment cited by the learned counsel for the petitioner Page - 23 of 28 in Mr.Shamashuddin M Savadatti v. The Karnataka Public Service Commission, cited supra, can be pressed into service. The Division Bench of the Karnataka High Court in a similar situation in the said decision has held by giving interpretation to Section 36 of the Act in the following terms:
"17. 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."
20. When that being the position, the interpretation sought to be given to Section 36, especially, the word "it may be first filled up interchanging among the three categories" by the learned counsel for the 4th respondent that in the second year if the vacancies still are not able to be filled up, the same shall be interchanged and thereafter be carried over to the next succeeding year, is beyond the scope of Section 36, because, the words, "it may be first be filled by interchange among the three categories" clearly envisages that, the post shall be filled in that year by making any interchange among three categories of disabilities. Even after making the exercise of interchange among the three categories of disabilities, still, the employer finds no suitable candidate, then only the Page - 24 of 28 employer can fill up the same by appointing a person other than a person with disability. Since the words "employer shall fill up the vacancy by appointment of a person other than a person with disability" clearly says that in that year ie., the second year, the vacancy, at any case, should be filled up. Therefore, there is no scope for carry forward the vacancy, which is already a carried forward vacancy, from the previous recruitment year, to the next recruitment year. Therefore, the interpretation sought to be given by the learned counsel for the 4th respondent is liable to be rejected and accordingly, it is rejected.
21. If this is the legal position, where the exercise of interchange among the three categories of disability was admittedly has not been undertaken by the 4th respondent, there is every force in the submission made by the learned counsel for the petitioner and therefore, the petitioner's case can be accepted prima facie for the purpose of considering the candidature for the said recruitment."
[26] In case of Gosai Ram Vrs. State of Rajasthan and Others:
reported in 2013 SCC Online Raj 4241 it was observed as under:
"9. Indisputably, out of the 7 posts reserved for differently abled persons belonging to the different categories of disability, 5 posts were filled in from amongst the candidates belonging to the different categories specified, however, 1 post belonging to Blindness/LV category and 1 post belonging to Hearing Impairment category remained unfilled on account of non availability of suitable persons. It is not disputed before this court that the posts which remained unfilled were available to be filled in as per the mandate of Section 36 of the Act of 1995 by interchange among the 3 categories. Since, no suitable persons belonging to other 2 categories i.e. Blindness/LV and Hearing Impairment were available, obviously, by way of interchange, both the posts remaining vacant, were required to be filled in from amongst the available candidates belonging to LD/CP category. It is really strange that while making averments regarding the filling up of 1 post which remained unfilled in the Hearing Impairment category, from amongst the candidates Page - 25 of 28 belonging to LD/CP category, the respondents in their reply to the writ petition have remained completely silent regarding 1 post belonging to Blindness/LV category, which also remained vacant on account of non availability of the candidates belonging to the said category. As stated by learned Additional Advocate General before this court, the said post which remained unfilled on account of non availability of the candidates belonging to Blindness/LV category, has been offered for appointment to the General category. Thus, it is apparent that the respondents have deliberately suppressed the facts regarding filling up of the post, belonging to Hearing Impairment category from amongst the candidates belonging to General category de hors the provisions of Act of 1995. It is pertinent to note that Rule 37 of the Rules only deals with the Maintenance of Rosters and it in no manner operate against the mandate of the provisions of Section 36 of the Act. As noticed above, Section 36 of the Act of 1995 specifically provides that if any vacancy belonging to differently abled category cannot be filled up due to non availability of suitable person with a disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in succeeding recruitment year also, suitable person with disability is not available, it may first be filled by inter change 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. As a matter of fact, the circular dated 5.9.12 relied upon by the learned AAG, only provides that posts belonging to Hearing Impairment category, which remained vacant, shall be filled in from amongst the eligible candidate belonging to Blindness/LV and LD or CP categories in the ratio of 50:50. It nowhere mandates that any of the posts reserved for differently abled persons can at all be filled in from amongst the candidates belonging to the General category, despite availability of persons with disability. Suffice it to say that an illegal action sought to be justified by the respondents on the pretext of alleged confusion prevailing, cannot be countenanced by this court."
[27] Both these judgments concern the question of interchanging the vacancy for PH candidates and filling it by a person belonging to a Page - 26 of 28 category other than for which the vacancy was initially reserved. However, the interpretation advanced to the Section 36 of the Disabilities Act, 1995 would apply to the present case also.
[28] In view of this statutory provisions and the interpretation we have adopted in this judgment, the two Government orders dated 31st March, 2001 and 29th September, 2010 lose their significance in the present context. Government order dated 31st March, 2001 does not say anything contrary to the interpretation of the rule in question which I have adopted. The Government order dated 29th September, 2010 merely provides for not shrinking the reservation of three persons assured in favour of the persons with disabilities. This Government order cannot be read as to mean that even when as per the statutory provisions the occasion has arisen to dereserve the vacancy, the same cannot be done. [29] With these conclusions and clarification we may refer to facts of the case. In my opinion the petitioner was perfectly justified in claiming dereservation of the vacancy of SC (physically handicapped). It was admittedly a third attempt and in the third recruitment year after carrying forward the vacancy thrice in the past, no suitable candidate of physically handicapped category was available. There is nothing on the record to Page - 27 of 28 suggest that by interchanging this vacancy between other physically handicapped categories also the same could have been filled up. The Stage was thus right for releasing the reservation in favour of physically handicapped category and to fill up the vacancy by the respective category of candidates not suffering from any disability. In other words, by deleting the reservation in favour of physically handicapped candidates the same ought to have been filled up by a candidate belonging to SC category. This was thus the fifth vacancy for the SC category which should have been filled by the respondents. Instead, the respondents filled up only four vacancies. As per his merits, the petitioner is admittedly placed at Sl. No.5 in SC category. He deserves appointment to the post in question. [30] In the result, the petition is disposed of with following directions:
(i) The respondents shall appoint the petitioner on the post of Stenographer, Grade-II in Scheduled Caste category from the date other candidates belonging to said category were appointed by the recruitment process in question. This effect of the past period would be for the limited purpose of counting seniority and pay fixation for notional purposes. The Page - 28 of 28 petitioner would get pay and allowances only from the date of his appointment.
(ii) Such appointment shall be made against any existing vacancy of the said cadre belonging to any category. If there is no existing vacancy, appointment to the petitioner would be made immediately upon availability of the first vacancy in the cadre. If a vacancy belonging to a category other than Scheduled Caste is required to be utilised for such purpose, the next vacancy belonging to the Scheduled Caste would be utilised for the purpose of adjustment of vacancy in the said category.
(iii) These directions shall be carried out within a period of four months from today.
[31] The petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.
( AKIL KURESHI ), CJ Dipankar