Sunita Yadav vs R P S C Ajmer And Anr on 2 February, 2012

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Rajasthan High Court - Jaipur

Sunita Yadav vs R P S C Ajmer And Anr on 2 February, 2012

Bench: M.N. Bhandari

    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

S.B. Civil Writ Petition No.10448/2010
(Akashdeep Arora  & Anr. Vs. State of Rajasthan & Anr.)

AND

S.B. Civil Writ Petition No.488/2010
(Sunita Yadav Vs. RPSC & Ors.)


Date of Order  :   02nd February, 2012


HON'BLE MR. JUSTICE M.N. BHANDARI

Mr.Sanjeev Prakash Sharma, Sr. Adv. with 
Mr.Gaurav Sharma	]
Mr.Manoj Bhardwaj	], for the petitioners.

Ms.Raj Sharma, Addl.G.C.


By the court:

REPORTABLE:

These two writ petitions involve one and the same legal issue, thus heard and decided by this common judgment.

The petitioners are visually handicapped persons being blind/low vision. The petitioners participated in the selection held by the Rajasthan Public Service Commission pursuant to the advertisement issued on 15.06.2007. It was for Rajasthan State and Subordinate Combined Competitive Examination.

It is stated that after declaration of result, petitioners secured merit position in the category of disabled persons yet denied benefit of appointment. This was on account of inaction of the respondents to provide benefit of reservation to the disabled persons in accordance to the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act of 1995).

For Rajasthan Administrative Services 19 posts were advertised, however, not a single post was reserved for disabled person. Similarly for Accounts Services, 43 posts were advertised but no post was kept reserved for blind persons and as against 45 posts for the Commercial Taxes Services, only one post was reserved for other category. Thereby, posts were not reserved for blind person in the State Services. Similarly, for subordinate services also, proper reservation was not given to the disabled person more specifically to the blind persons.

It is urged that after coming into effect the Act of 1995, the Government was under an obligation to provide 3 percent reservation to the disabled person as per Sections 32 and 33 of the Act of 1995. The Government of Rajasthan was also required to adopt roster prescribed by the Government of India reserving 1st, 34th and 67th seats for disabled persons, which is one percent for each category that is blind/low vision, persons having hearing impairment and locomotor disability.

Referring to the selection of year 2003, it is submitted that discrepancy was made in regard to the reservation to the disabled persons therein also. For the selection of the year 2003, only five seats were reserved for handicappedcandidates in different services out of which, one was filled in Account Service and remaining four seats were required to be carry forward in the next recruitment year. So far as the Rajasthan Administrative Service is concerned, out of 70 posts so advertised in the year 2003 not a single post was reserved for disabled category, though as per the Act of 1995, the respondents were under an obligation to provide proper reservation for the disabled persons. In the subsequent selection of year 2007 also, no post was reserved and in the year 2008, one post was reserved for blind person wherein one of the petitioner, namely, Akashdeep Arora got selected and appointed. He was earlier selected for subordinate service but did not join the post. However, now after his selection in the year 2008, he is working in Rajasthan Administrative Service but his claim is for appointment in the same service against selection of year 2007.

A reference of judgment of Hon'ble Apex Court in the case of Government of India and Anr. Vs. Ravi Prakash Gupta & Anr. reported in (2010) 7 SCC 626 has been given. Therein, similar controversy decided by the Delhi High Court was upheld holding that compliance of Section 32 and 33 of the Act of 1995 cannot be made dependable on the action of the respondents, as those provisions has to be given effect.

The petitioners' prayer is accordingly to direct the respondents to provide reservation to the disabled persons as per the provisions of the Act of 1995 and thereby, reserved vacancies of year 2003 may be taken into consideration for the recruitment of year 2007 by carry forward with consequential benefit to the petitioners, inasmuch as, if the prayer aforesaid is accepted then the petitioner, namely, Sunita Yadav may get appointment pursuant to the recruitment of the year 2007 for Rajasthan Administrative Service and similar benefits may be extended to other petitioners.

Learned counsel for the respondents, on the other hand submits that there is no illegality in their action. The provisions of Section 32 and 33 of the Act of 1995 has been referred by the petitioners without taking note of Section 73 of the Act of 1995. Section 73 of the Act of 1995 gives powers to the appropriate government to make rules for carrying out the provisions of the Act. Section 2 of the Act of 1995 provides definition of 'appropriate government' which is State Government in the present matter.

So far as the Central Government is concerned, they enacted the Rules in the year 1996 by publishing it in the Gazette on 13.12.1996 and the State of Rajasthan notified its rules, namely, Rajasthan Employment of the Persons with Disability Rules on 22.09.2000. In the aforesaid background, the provisions of the Act of 1995 were given effect from the date of notification of the Rules in the State of Rajasthan. The petitioners have made prayer for providing reservation to disabled persons against the recruitment of years 2003 and 2007. In fact, in the year 2003, reservation was provided in favour of the disabled persons as per the roster point like for Accounts Service, one post was reserved for blind/low vision whereas for other State Services, the post could not be reserved for want of roster point. So far as the Rajasthan Administrative Services is concerned, the post was not identified for reservation under the Rules of 2000, which is a pre-condition to provide reservation under Section 33 of the Act of 1995. Accordingly, no reservation was provided in the Rajasthan Administrative Services for disabled persons in the year 2003. The Rajasthan Administrative Services were notified for reservation to disabled persons in the year 2006 in view of the proviso of Rule 4 of the Rules of 2000. Since identification of service was made in the year 2006, first selection came thereupon in the year 2007, however, therein only 19 posts were advertised, thus could not be reserved for disabled persons as 34th post came as per roster point and thereupon 67th and lastly 100th. Since 19 posts were advertised for the year 2007, thus in absence of roster point, reservation could not be provided. The Police Service is not identified for the reservation under the Act of 1995.

So far as the Subordinate Services are concerned, reservation to the extent required was provided in the year 2003 as well as in the year 2007. In fact, 3 percent reservation cannot be given to the blind persons alone, as it is to be distributed amongst all category of disabled persons mentioned in Section 33 of the Act of 1995. Accordingly, the respondents provided reservation to disabled persons to the extent required not only in the selection of the year 2003 but even in the selection of the year 2007 other than the Rajasthan Administrative Services wherein the post was not identified for reservation till the year 2006, thus no reservation was given in the year 2003.

It is further urged that if for the sake of arguments, it is assumed that after coming into effect of the Rules of 2000, reservation to disabled persons should have been allowed in favour of disabled persons, then for the recruitment year of 2003 as many as 10 disabled persons were available for appointment for RAS. If at all, the plea ofpetitioners is accepted then benefit has to be given to those available in the relevant recruitment year. The position would have been different if no disabled candidate would have been there for the recruitment year 2003 and the post was to be carry forward for a period of two years. In the aforesaid background, if all the pleas of the petitioner are accepted then also they are not entitled for the appointment in Rajasthan Administrative Service and so far as other services are concerned, required reservation was given.

Learned counsel has made reference of the judgment of Division Bench of this Court in the case of Naresh Kumar Gupta & 4 Ors. Vs. High Court of Judicature for Rajasthan & Ors. Therein, similar issue was considered and decided by this Court holding that unless post is identified as per the mandate of Section 32 of the Act of 1995 and the Rules are made by the appropriate Government and notified, claim for reservation cannot be accepted.

Learned counsel has relied on the Circular dated 29th July, 2006 whereby for the first time, the RAS Cadre was identified because schedule to the Rules of 2002 was struck down by this Court and thereby, a decision was taken to apply the circular of the Government of India in which posts were identified for grant of reservation to disabled persons. A prayer is accordingly made to dismiss the writ petition.

I have considered the rival submissions of the parties and scanned the matter carefully.

The petitioners are aggrieved on denial of 3% reservation to the disabled persons as per the Act of 1995. Therefore, in the writ petition of Akashdeep Arora and another, a prayer is made to provide reservation to the disabled persons in the Competitive Examination of 2007. Accordingly, to consider their candidature for different services referred in Clause-I of the prayer. It is further prayed that in case of non-availability of disabled persons of one category, the post may be filled from other category of disabled persons and for that purpose even unfilled vacancies of the year 2003 may be taken into consideration. In other writ petition of Sunita Yadav, the prayer is made for 3% reservation pursuant to the advertisement dated 1.6.2007 with further prayer to allow one post to the blind person in the state services. In view of the prayer aforesaid and argument made, this matter is required to be looked into from the year 2003 and same exercise is required to be undertaken for subsequent recruitment of year 2007. The main thrust of the argument of the petitioners is in reference to the provisions of Sections 32 & 33 of the Act of 1995 and for that purpose reference of the judgment of the Honble Apex Court in the case of Ravi Prakash Gupta and another (supra) has been given. To appreciate the argument, reference of Sections 32 & 33 of the Act of 1995 is relevant, thus quoted hereunder for ready reference:-

32. Identification of posts which can be reserved for persons with disabilities Appropriate Government shall

(a) identify posts, in the establishment, which can be reserved for the persons with disability;

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

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 low 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.

Perusal of two provisions quoted above reveals that Section 33 provides for reservation of post whereas Section 32 provides for identification of the post which can be reserved for the persons with disability. A conjoint reading of the two provisions reveals that appropriate Government has to first identify the post in the establishment which can be reserved for the persons with disability and its periodical review within three years. Section 33 of the Act of 1995 provides for 3% reservation for the persons with disability like (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy. Proviso to Section 33 gives power to the appropriate Government to exempt any establishment from the aforesaid provisions. So far as the Government of India is concerned, it notified Rules in the year 1996 itself whereas State of Rajasthan notified its Rules in the year 2000. The word appropriate Government has been defined under Section 2(a) of the Act of 1995 and as per provision therein, the State of Rajasthan is the appropriate Government for the case in hand. Under the Rules of 2000, the posts were identified for different category of disabled persons but Schedule appended to it was struck down by this Court. The Government of Rajasthan thereafter took a decision to apply Government of Indias circular where different posts were identified for reservation to the disabled persons. As per the Act of 1995, appropriate Government has been given power to make Rules under Section 73 of the Act of 1995 and as per sub-section (4) of Section 73 of the Act of 1995, every notification by the State Government under proviso to Section 33 has to be led before the House of the State Legislature as soon as it is made. In the case in hand, the appropriate Government notified the rules in the year 2000 wherein post in the Rajasthan Administrative Services was not identified for reservation to the disabled persons, accordingly, no reservation was given for the aforesaid post while advertisement was issued in the year 2003. As per Sections 32 & 33 of the Act of 1995, a post needs to be identified for reservation. The post for Rajasthan Administrative Services was identified for reservation to the disabled persons in the year 2006, accordingly, prior to it reservation to the Rajasthan Administrative Services was not provided and so far as other State Services as well as Subordinate Services are concerned, 3% reservation was provided keeping in mind the number of posts advertised in the year 2003, subject to roaster point fixed by the State Government. Annexure-7 to the writ petition of Akashdeep Arora shows that for the Rajasthan Accounts Services, one post was reserved for disabled persons as first roaster point exists at point No.34 and the posts so advertised for the Rajasthan Accounts Services were 52. Similarly, for Rajasthan Tehsildar Services as against 100, posts 3 posts were reserved for disabled persons. Same is the position regarding the Rajasthan Cooperative Subordinate Services. For the Rajasthan Commercial Taxes Subordinate Services, one post was kept for disabled persons as second roaster point comes at No.67 and the posts so advertised therein were 63 only and same is the position for Rajasthan Excise Subordinate Service.

In the aforesaid circumstances, the argument of learned counsel for petitioners that reservations to the disabled persons were not provided for the recruitment year 2003 to the extent required is not correct other than for Rajasthan Administrative Services for which 70 posts were advertised. The respondents have justified their action as post was not identified for reservation till the year 2006 and contrary to the aforesaid, the petitioners have failed to demonstrate that the aforesaid posts were identified for reservation. Their only argument is in reference to Sections 32 and 33 of the Act of 1995 ignoring the fact that Section 32 first provides for identification of the post and even Section 33 gives liberty to the appropriate Government to exempt any establishment from the aforesaid provisions. Even Section 33 of the Act of 1995 provides for 3 type of disabled categories and thereupon for not less than 3% reservation, thereby identification of post has been mandated. Both the writ petitions do not show that prior to the year 2003, posts for disabled persons in the Rajasthan Administrative Services were identified. In the aforesaid background, the petitioners have failed to make out a case of the nature required for seeking benefit of reservation to the disabled persons for Rajasthan Administrative Services. The view aforesaid is supported by the judgment of the Division Bench in the case of Naresh Kumar Gupta & 4 Ors. Versus High Court of Judicature for Raj. & Ors. reported in 2004 (4) WLC (Raj.) 281. Paras 8, 9, 13, 14, 15, 18 & 19 of the aforesaid judgment are quoted hereunder for ready reference:-

8. As is apparent from a conjoint reading of Sections 32 and 33 of the Act of 1995 and proviso to Section 33 thereof, the posts against which the reservation in an establishment for the persons with disabilities can be made are first to be identified by the State. The State can even exempt an establishment from the provisions of Section 33 of the Act of 1955 in view of the type of work being carried on by it.

9. Till such time the posts in an establishment are identified by the appropriate Government for the purpose of making reservation, no benefit accrues to a candidate afflicted with disability. No other construction of the provisions of Sections 32 and 33 is possible in view of their clear language. The statute cannot be twisted to give an interpretation which is not possible having regard to the language used by it.

13. It is to be noted that so far as the judgment of the Supreme Court is concerned, the amendment had come into force while process of selections was on. In the instant case, the draft rules which were framed by the High Court have not been notified by the State so far. Therefore, till such time the rules are made by the Governor and notified, the petitioners and handicapped candidates cannot have any claim on the basis of the provisions of Sections 32 & 33 of the Act of 1995.

14. Learned counsel for the petitioner contended that the mandamus should be issued to the State to make the rules and issue the requisite notification. We are unable to accept this submission of the learned counsel for the petitioner. The rules are legislative in nature. They have to be framed under Article 234 of the Constitution of India. No mandamus can be issued to the State to make the rules and to notify them.

15. The position of law is well established by the various judgments of the Supreme Court. In A.K. Roy Vs. Union of India : (1982) 1 SCC 271, the Constitution Bench of the Supreme Court took the view that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by the Parliament by that statute cannot be issued. In this regard, the Supreme Court observed, as follows:-

We may now take up for consideration the question which was put in the forefront by Dr. Ghatate, namely, that since the Central Government has failed to exercise its power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of Section 3 of the 44th Amendment Act into force. That Amendment received the assent of the President on April 30, 1979 and more than two and a half years have already gone by without the Central Government issuing a notification for bringing Section 3 of the Act into force. But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the court to compel the government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus.

Similarly, in Union of India Vs. Shree Gajanan Maharaj Sansthan : (2002) 5 SCC 44, the Supreme Court while noting A.K. Roy's case observed, as under:-

In A.K. Roy Vs. Union of India a contention was raised that despite the provisions of Section 1(20 of the Forty-fourth Constitution (Amendment) Act, 1978, Article 22 of the Constitution stood amended on 30.4.1979 when the Amendment Act received the assent of the President and that there was nothing more that remained to be done by the executive except fixing a date for the commencement of the Act as provided under Section 1(2) thereof. According to the said contention, Section 1(2), which is misconceived and abortive, must be ignored and severed from the rest of the Amendment Act. This Court observed that no mandamus could be issued to the executive directing it to commence the operation of the enactment; that such a direction should not be construed as any approval by the Court of the failure on the part of the Central Government for a long period to bring the provisions of the enactment into force; that in leaving it to be judgment of the Central Government to decide as to when the various provisions of the enactment should be brought into force, Parliament could not have intended that the Central Government may exercise a kind of veto over its constitutent will be not ever bringing the enactment or some of its provisions into force; that if only Parliament were to lay down an objective standard to guide and control the decision of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by Parliament. It was further contended that an amendment can be bad because it vests an uncontrolled power in the executive in bringing an enactment into operation. This Court, however, noticed that such power cannot be held to give an uncontrolled power to the executive inasmuch as there are practical difficulties in the enforcement of laws and those difficulties cannot be foreseen. It, therefore, became necessary to leave the judgment to the executive as to when the law should be brought into force. When enforcement of a provision in a statute is left to the discretion of the Government without laying down any objective standards, no writ of mandamus could be issued directing the Government to consider the question whether the provision should be brought into force and when it can do so. Delay in implementing the will of Parliament may draw adverse criticism but on the data placed before us, we cannot say that the Government is not alive to the problem or is desirous of ignoring the will of Parliament.

In a recent decision rendered in Common Cause Vs. Union of India: (2003) 8 SCC 250, the Supreme Court while reviewing its earlier judgments held, as follows:-

From the facts of the case, it cannot be said that the Government is not alive to the problem or was desirous of ignoring the will of Parliament. When the legislative itself had vested the power in the Central Government to notify the date from which the Act would come into force, then the Central Government is entitled to take into consideration various facts including such facts as are involved in the present case while considering whether the Act should be brought into force or not. Therefore, keeping in view the facts of the present case, no mandamus can be issued to the Central Government to issue the notification contemplated under Section 1(3) of the Act to bring the Act into force.

18. Learned counsel for the petitioners referred to the decision rendered in Kunal Singh Vs. Union of India (2003) 4 SCC 524. This decision also does not advance the case of the petitioners as it inter-alia deals with the objectives of the Act of 1955.

19. It is with anguish that we note that the draft of the rules framed and approved by the High Court on 4.4.2003 was sent to the State Government for making and notifying the Rajasthan State Judicial Services Rules, 2003. The draft of the rules has not been finalized and notified as yet. It appears that the RPSC raised certain points in July 2003 when the same were forwarded to it for the purpose of consultation. The communication in this regard when received through the State Govt. was replied by the High Court. Still the matter has remained pending and as given out at the bar, the RPSC has now raised certain new issues. Correspondence is being exchanged in this regard. Thus, the finalization and notification of the Rules is lingering on. We hope and trust that the draft rules will now be finalized and notified at the earliest so that benefit of reservation envisaged for persons with disabilities can be made available.

In view of the aforesaid discussion, the writ petitions are hereby dismissed.

Perusal of the paras quoted above reveals that as to when one can claim benefit of reservation as envisaged under Sections 32 & 33 of the Act of 1995. As against the judgment referred to above, the judgment of the Honble Apex Court in the case of Ravi Prakash Gupta (supra) is also required to be looked into. Paras 24, 26, 27, 29, 30 & 31 of the aforesaid judgment are quoted hereunder for ready reference:-

24. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case.

26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does not empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added).

29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, through a duty has been cast upon the appropriate Government to make appointments in a number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.

30. The various decision cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995.

31. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the special leave petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court. The petitioners shall pay the costs of these proceedings to Respondent 1 assessed at Rs.20,000, within four weeks from date.

Perusal of para 29 reveals that Section 33 is dependent on Section 32 of the Act of 1995, however, said dependence is taken only for making appointment. Thereby reservation under Section 33 of the Act of 1995 is not made dependence on the identification of post. Applying the aforesaid judgment, if the case in hand is looked into by holding that for the year 2003 reservation should have been for Rajasthan Administrative Services for which 70 posts were advertised, appointments cannot be given in absence of identification of post as per Section 32 of the Act of 1995. If for the sake of arguments, it is accepted that two posts come for disabled category, the question comes as to whether these two posts can be given to the petitioners by applying principle of carry forward for the subsequent two years. If that is so, whether petitioners are entitled for such reservation for the recruitment of the year 2007. This is after applying provisions of Section 36 of the Act of 1995. For the aforesaid purpose, learned counsel for respondents submitted a list of the disabled persons who were available for the recruitment year of 2003 belonging to different disability, which includes even a blind person. List of those eligible candidates in the recruitment of the year 2003 with different disabilities are quoted hereunder :

Rajasthan Public Service Commission, Ajmer RAS/RTS Combined Competitive Examination, 2003 Merit-wise List of Disable Candidates SNo Merit No. R.No. Name of Candidate Category Merit in Disabled Category 1 310 557437 Mani Ram Sharma GE, RG, HI (P) HI-1 2 442 572192 Vimla Nawaria SC, WE, LD LD-1 3 483 450630 Deepak Mehta GE, LD, RG LD-2 4 818 333365 Neeraj Mishra GE, LD, RG LD-3 5 968 360020 Sunita Gupta GE, WE, LD LD-4 6 973 520741 Dana Ram BC, LD LD-5 7 1054 540051 Sita Sharma GE, WE, HI HI-2 8 1129 162338 Tara Chand Vainket SC, LD, RG LD-6 9 1321 524791 Meena Kumawat BC, WE, LD LD-7 10 1446 108756 Krishan Pal Singh GE, BL BL-1 Perusal of the list quoted above reveals that meritorious candidates of all three categories of disabilities were available in the year 2003 itself. At item No.10, a blind/low vision person was available. At item Nos.1 & 7, persons with hearing impairment are available. In the aforesaid background, if two posts for RAS have to be filled for the recruitment year of 2003, then it has to be given to the person eligible and appeared for the selection with merit in their category. This is if the argument of learned counsel for petitioners in reference to the judgment in the case of Ravi Prakash Gupta (supra) is accepted. It is, however, subject to application of Section 36 where carry forward is permissible when a suitable person is not available. However, in the instant case, suitable persons were available for appointment, thus question of carry forward of two posts for the subsequent recruitment of the year of 2007 does not arise. So far as other posts in State Services and Subordinate Services are concerned, reservation to the extent, it is provided, has been given in the year 2003, as described in the preceding paras of this judgment.

In the aforesaid background, so far as the petitioners are concerned, they are not entitled for the relief as prayed by applying Section 36 of the Act of 1995 to allow carry forward of two posts of Rajasthan Administrative Services for the recruitment year of 2007. In fact, those two posts should go to the disabled persons who were available at the relevant time. For the aforesaid purpose, Section 36 of the Act of 1995 would be relevant thus is quoted hereunder:

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 be 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.

Perusal of Section 36 reveals that carry forward of the post is permissible only on non-availability of a suitable person with disability or for other sufficient reason. In the instant case, person with disability are available for the recruitment year of 2003, thus benefit of carry forward cannot be made admissible to the petitioners, rather benefit of appointment should go to those persons, who were available then. This is under the circumstances that merely for the reason that an eligible candidate did not contest the case before the Court, his right cannot be ignored while adjudicating the matter, rather law provides that a meritorious and eligible candidate should be given benefit. In the present matter the writ petition has been filed by the petitioners in the year 2010 knowing it well that for the year 2007, advertisement does not provide reservation for disabled persons for Rajasthan Administrative Services thus, the issue aforesaid has been raised after delay of three years without any justification as aforesaid issue becomes clear on issuance of the advertisement in the year 2007 itself. This is more so when only 19 posts have been advertised in the year 2007 and due to availability of disabled candidates in the year 2003, carry forward of two posts cannot be directed thus, for Rajasthan Administrative Services no case is made out in favour of the petitioners for the recruitment year of 2007.

It is, however, necessary to indicate that for Rajasthan Accounts Services as against 43 posts, no reservation is provided in favour of the disabled persons for recruitment of year 2007 though earlier in the year 2003 one post was kept reserved for blind person and filled accordingly as against 43 posts, one post should have been reserved for disabled category which has to be other than blind but in case of non-availability of other category of disabled persons, to be filled by blind person. Same is the position regarding Rajasthan Excise Subordinate Services where as against 56 posts no reservation is provided to disabled persons though earlier one post was kept for blind person in the year 2003. Even for Rajasthan Commercial Taxes Subordinate Services more posts should have been kept for disabled persons as per roster, whereas only three posts have been reserved thus, to that extent, action of the respondent is not found to be justified. Summarize table of three recruitment years i.e. 2003, 2007 and 2008 is quoted hereunder for ready reference:-

Posts advertised for RAS and Subordinate Services in the year 2003, 2007 and 2008 and seats reserved for Ph. Handicapped Rajasthan State Services Service Post Total Post in Year 2003 Seats Reserved in Year 2003 Total Post in Year 2007 Seats Reserved for P.H. In Year 2007 Total Post in Year 2008 Seats Reserved for P.H. in Year 2008 RAS 70

-

1 (Blind) RPS 20

-

Accounts 52 1 (Blind/ LV) 43

Insurance 5

Com. Taxes 25

1 (LD/CP) 28 1(LD) Food 3

Transport 8

Devasthan 5

Prison

Industry

Rural Development

2(LD)(1 Arm) Rajasthan State Subordinate Services Service Post Total Post in Year 2003 Total Post in Year 2003 Total Post in Year 2007 Seats Reserved for P.H. In Year 2007 Total Post in Year 2008 Seats Reserved for P.H. in Year 2008 Tehsildar Services 100 3 (BL, HI, LD-1 post for each 120 3 LD/CP (20L & 1OA)

Rajasthan Excise 41 01 (Blind/LV) 56

Rajasthan Commercial Taxes Subordinate Services 64 1 (Blind/LV) 150 3 (LD/CP) 16 1 (LD) Raj. Sub-Coop. Services 100 3 (BL, HI, LD-1 post for each 100 31 (LD/CP) 1 (BL/LV) 1(HI)

Industrial Sub

Jr. Emp. Of

Sub Food & Supply

The table quoted above reveals position of the reservation of posts for disabled persons for the recruitment years of 2003, 2007 and 2008.

In view of the statement of three recruitment years, if respondents failed to fill-up certain reserved posts of disabled category for the recruitment year of 2003 on account of their non-availability, then by applying the carry forward, the number of unfilled seats can be filled in the year 2007. However, if all the posts meant for the disabled persons for the recruitment year 2003 were filled or the candidates were available, then aforesaid exercise is not required to be undertaken.

So far as the recruitment year 2007 is concerned, I find that for State Service in Accounts and Commercial Taxes and for Subordinate Services, Rajasthan Excise Subordinate Services and even for Rajasthan Commercial Taxes Subordinate Services, the posts were not reserve for disabled persons to the extent it was required. For illustration, in State Service of Commercial Taxes, only one post has been reserved whereas if previous 25 posts of year 2003 and 45 posts of year 2007 are looked into, then total comes to 70 and if the roster point is applied then first post comes at point No.34 and second at point No.67. Similar is the position for other services like Rajasthan Commercial Taxes Subordinate Services, etc. So far as the Rajasthan Administrative Services is concerned, if at all it is assumed that two posts should have been reserved for disabled persons in the year 2003 because prior to it no claim has been made, then respondents are directed to consider the case of the eligible and available candidates with disability in the recruitment year of 2003. The petitioners are not entitled to the benefit of carry forward as ten candidates were available with disability in the recruitment year of 2003, hence, Section 36 does not come in play.

Both the writ petitions are accordingly disposed off with the direction to the respondents that in those services where benefit of reservation to disabled persons have not been provided to the extent indicated, it is to be given. They are accordingly directed to provide reservation and cases of disabled persons in order of their merit and category may be considered for appointment against the recruitment year 2007 for those services where reservation was not provided to the extent, it was necessary and if any of the petitioners comes in the merit, then his/her case may be considered for appointment.

Substance of the direction is that by applying the roster point and taking note of the posts advertised in the year 2003 and 2007, the determination of reservation in favour of the disabled persons may be made as per roster point. Therein, the provisions of Section 36 of the Act of 1995 may be taken note of where interchangeability of one category to another is made permissible. (M.N. BHANDARI), J.

Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

Preety Asopa Jr.P.A

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Rajasthan High Court - Jaipur