Akhil Das vs The State Of Assam And Ors on 1 October, 2015

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Gauhati High Court

Akhil Das vs The State Of Assam And Ors on 1 October, 2015

4. By filing this petition under Article 226 of the Constitution of India, petitioner Shri Akhil Das seeks a direction to the respondents to Writ Petition (C) No.1161/2010 Page 1 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 commence the selection process from the stage of viva-voce test by inviting the petitioner to appear in the viva-voce test. Further direction sought for is to make adequate reservation in the selection process for persons with disabilities in conformity with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

5. Case of the petitioner as projected in the writ petition is that he suffers from locomotor disability, which is an orthopaedic disability, to the extent of 50%. Despite his disability, he had completed his graduation and is also proficient in type writing as well as in computer application.

6. Director of Food, Civil Supplies and Consumer Affairs, Assam (for short "Director") had issued advertisement dated 16-08-2008 inviting applications from eligible candidates to fill up 145 vacancies in the post of Sub-Inspector. Qualification prescribed was graduation in Arts or Commerce or Science from any recognized University. 3% percent of the notified vacancies were reserved for persons with disabilities.

7. Being eligible and interested, petitioner responded to the said advertisement by applying against the vacancies earmarked for physically handicapped persons. Written examination was held on 28-12-2008 wherein petitioner had appeared. Result of the written examination was published on 27-07-2009 and a total of 1327 candidates belonging to different categories were declared successful. Thereafter viva-voce test was scheduled between 10-08-2009 to 03-09-2009.

Writ Petition (C) No.1161/2010 Page 2 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012

8. Petitioner's name was not included in the list of successful candidates of the written examination. Therefore he was not called to appear in the viva-voce test.

9. In response to application filled by the petitioner under the Right to Information Act, 2005, he was informed by respondent No.3 that he had obtained 55 ½ marks in the written examination. Thereafter, further information was furnished to the petitioner whereby it was stated that a total of 10 physically handicapped candidates were called for written test and equal numbers were called for oral interview. It was further stated that the post of Sub-Inspector has been notified for orthopaedic disability only. Cut off marks for physically handicapped candidate was 39.

10. Grievance of the petitioner is that he had obtained 55 ½ marks in the written examination, yet he was not selected for the viva-voce test though the cut off marks for physically handicapped candidates short listed for the viva-voce test was only 39. Thus non-selection of the petitioner for viva-voce test was illegal, arbitrary and unreasonable.

11. Aggrieved, present writ petition has been filed seeking the relief as indicated above.

12. An additional affidavit was filed by the petitioner on 04-02- 2015. It is stated that as per information furnished by the Joint Director on 20-01-2015, a total number of 145 candidates were selected by the Selection Committee for the post of Sub-Inspector and out of the 145 candidates 4 Writ Petition (C) No.1161/2010 Page 3 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 candidates were selected under the physically handicapped quota. 3 out of 4, namely, Shri Dhrubajit Bhuyan, Shri Santanu Bordoloi and Shri Himangshu Kumar Das were already appointed as Sub-Inspector. The 4th candidate could not be appointed as his appointment is sub-judiced before the Court. Petitioner was further informed that two writ petitions relating to the same selection process particularly selection of physically handicapped candidates were pending before the Court, namely, WP(C) No.2638/2012 (Kamal Krishna Mishra -Vs- State of Assam) and WP(C) No. 2883/2012 (Mantu Kumar Das -Vs- State of Assam). Therefore, petitioner contended that the present writ petition should be considered alongwith those two writ petitions. WP(C) No.2638/2012

13. In this case petitioner Shri Kamal Krishna Mishra is a physically disabled candidate suffering from visual disability.

14. Pursuant to the advertisement issued by the Director to fill up 145 vacancies in the post of Sub-Inspector, petitioners had also submitted his application and thereafter appeared in the written examination.

15. Results of the selection process came to be challenged before this Court in a number of writ petitions as a result of which the selection process could not be finally concluded. Following the intervention of this Court, some more candidates were called to appear in the interview/viva- voce test on being found to have secured more than the cut off marks. In this regard, petitioner was also declared having qualified for the interview having Writ Petition (C) No.1161/2010 Page 4 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 secured more than the cut off marks. Thereafter, petitioner was called to appear in the interview and accordingly petitioner appeared. According to the petitioner, his performance was satisfactory and he was confident of selection under the physically handicapped quota.

16. Final select list was published on 22-05-2012. 4 persons were selected under the quota earmarked for physically handicapped persons. All the 4 selected candidates under the said quota belong to orthopaedically handicapped category.

17. Petitioner contends that earmarking of all the vacancies reserved for physically handicapped persons for a particular category of disability, in this case orthopaedic disability, was in complete violation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act" hereafter). As per Section 33 of the said Act, 3% of the vacancies in every establishment are required to be reserved for persons suffering from the notified disabilities in equal proportion i.e. 1% each should be reserved for persons suffering from -

(i) Blindness or low vision

(ii) Hearing impairment

(iii) Loco-motor disability or cerebral palsy.

18. In the above context, prayer has been made to quash the select list dated 22-05-2012 with a direction to the respondents not to appoint any candidate under the physically handicapped category. Further prayer made Writ Petition (C) No.1161/2010 Page 5 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 is for a direction to the respondents to appoint the petitioner under the said quota.

19. Respondent No.7 has filed an affidavit. Stand taken in the affidavit is that in the advertisement itself it was mentioned that there would be 3% reservation for physically handicapped (orthopaedically disabled) candidates. Therefore, petitioner suffering from visual disability was not eligible to participate in the selection pursuant to the said advertisement. Authorities very rightly did not select the petitioner. Government has issued Office Memorandum (OM) dated 11-05-2005 whereby the post of Sub- Inspector in the Food, Civil Supplies and Consumer Affairs Department has been specifically earmarked for candidates suffering from orthopaedic disability. Therefore, the authorities were justified in selecting all the 4 candidates suffering from orthopaedic disability.

20. Respondent No.2 has also filed affidavit. It is stated that petitioner had appeared in the viva-voce test on 11-01-2012. However, petitioner was interviewed inadvertently as the 3% quota for physically handicapped were entirely earmarked for orthopaedically disabled candidates. Therefore all the 4 physically handicapped candidates who were selected belong to the orthopaedically handicapped category.

21. Petitioner in his reply affidavit to the affidavit of respondent No.2 has reiterated the contentions advanced in the writ petition. It is contended that allowing him to appear in the written examination and thereafter in the interview could not have been through inadvertence. Writ Petition (C) No.1161/2010 Page 6 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012

22. Respondent No.4 i.e. Commissioner and Special Secretary to the Government of Assam, Social Welfare Department has filed an affidavit through Smti. Malabika Baruah, Joint Secretary of the Department. She has stated that Government of Assam vide Notification No.SWD.39/99/Pt./288 dated 11-05-2005 has identified 506 numbers of posts in different Departments for implementation of the provisions of the Act. The post of Sub-Inspector in the Food, Civil Supplies and Consumer Affairs Department which is included in the list of 506 posts is identified for orthopaedically handicapped persons.

WP (C) No.2883/2012

23. This petition has been filed by two petitioners Shri Mantu Kumar Das and Jehirul Islam. Both petitioners suffer from orthopaedic disability and are covered by the definition of "Persons with Disability" as defined under Section 2 (t) of the Act.

24. In terms of the advertisement dated 20-08-2008 for filling up of 145 vacancies in the post of Sub-Inspector in the Food, Civil Supplies and Consumer Affairs Department, petitioners submitted their applications under the physically handicapped category.

25. Petitioners appeared in the written examination held on 28-12- 2008. List of successful candidates of the written examination was published in the newspaper "the Assam Tribune" on 28-07-2009. Petitioners were successful in the written examination and their names appeared in the said Writ Petition (C) No.1161/2010 Page 7 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 list. Thereafter, petitioners were called to appear before the Selection Committee for viva-voce test on 03-09-2009.

26. Post of Sub-Inspector has been identified by the Government of Assam for orthopaedically disabled persons only. Following the intervention of the Court, the entire 3% reservation for physically disabled would be available to the category of orthopaedically disabled.

27. In the final select list published on 22-05-2012, only 4 vacancies were reserved for persons with disability. Respondent Nos. 4, 5 and 6 though selected under the category of physically handicapped persons, had not participated in the selection under the said category.

28. Another contention is that 3% of 145 vacancies would be 4.35. Since total reservation for the physically disabled cannot be reduced below 3% as per the provisions of the Act, therefore 5 vacancies ought to have been earmarked for the physically disabled category to maintain the statutory prescription of 3%. Thus earmarking of only 4 vacancies for physically disabled candidates has caused prejudice to such candidates including the petitioner.

29. Hence the writ petition has been filed for quashing of the select list dated 22-05-2012 in respect of the physically handicapped category.

30. Respondent No.2 i.e. Director of Food, Civil Supplies and Consumer Affairs has filed affidavit. Stand taken is that petitioners had appeared in the viva-voce test on 03-09-2012. 145 candidates were selected Writ Petition (C) No.1161/2010 Page 8 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 including physically handicapped candidates on merit. Petitioners were not selected as they failed to obtain requisite marks. 4 numbers of candidates were selected under the orthopaedically handicapped category as the number of vacancies for the said category out of the total 145 vacancies was 4.

31. In their reply affidavit petitioners have stated that respondent Nos. 4, 5 and 6 were illegally selected under the physically handicapped category as they did not appear in the selection under the said category. Other contentions have been reiterated.

32. Respondent Nos. 6 has filed affidavit. Stand taken in the affidavit is that he had applied as a physically disabled candidate and had participated in the selection as such candidate. Initially he was shown in the select list as a general category candidate but when he approached this Court by filing WP(C) No.2417/2010, his name was shown at Sl.No.138 in the final select list dated 23-05-2012 as a physically disabled person.

33. From the pleadings and submissions, the following issues arise for consideration before the Court -

(1) Shri Akhil Das, petitioner in WP(C) No.1161/2010, is an orthopaedically disabled person. He had secured 55 ½ marks in the written examination. The last selected candidate under the physically handicapped category shortlisted for the viva-voce test had secured 39 marks.

Therefore, not calling him for the viva-voce test was illegal.

(2) Shri Kamal Krishna Mishra is a visually disabled candidate. He had participated in the selection. He was successful in the written examination and thereafter Writ Petition (C) No.1161/2010 Page 9 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 called to appear in the viva-voce test. But he was not selected. Earmarking of all the 4 vacancies of physically handicapped category for a particular category of disability, in this case orthopaedic disability, was in violation of the provisions of the Act.

(3) Petitioners of WP(C) No.2883/2012 Shri Mantu Kumar Das and Jehirul Islam had participated in the selection as orthopaedically handicapped persons. On being successful in the written examination they appeared in the viva-voce test but they were not selected. Contention is that their non-selection is illegal and arbitrary. Respondent Nos. 4, 5 and 6 though selected, had not participated in the selection as physically disabled candidates.

(4) Under the provisions of the Act 3% of the vacancies are required to be earmarked for physically disabled category. 3% of 145 notified vacancies would be 4.35. Since percentage of reservation cannot be reduced below 3%, earmarking of only 4 vacancies would be legally untenable as it would bring down the reservation to below 3%. Therefore 5 vacancies ought to have been earmarked for the physically disabled category to maintain the statutory prescription of 3%.

34. Before attempting to address the issues formulated above, a brief reference to the relevant provisions of the Act would be in order. Section 2 of the Act is the definition section. U/s 2 (i) "disability" has been defined to mean -

(i) Blindness

(ii) Low vision

(iii) Leprosy-cured

(iv) Hearing impairment

(v) Locomotor disability

(vi) Mental retardation

(vii) Mental illness Writ Petition (C) No.1161/2010 Page 10 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012

35. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Appropriate Governments are mandated to identify posts in the establishments which can be reserved for persons with disability. Appropriate Governments are also required to review the list of posts identified for such reservation at periodical intervals not exceeding 3 years and to update the list taking into consideration the developments in technology.

36. U/S 33, every appropriate Government is required to appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% 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.

37. As per the proviso to Section 33, the appropriate Government having regard to the type of work carried on in any department or establishment may by notification exempt any establishment from the provisions of Section 33.

38. Thus from a careful analysis of the aforesaid two provisions of the Act i.e. Sections 32 and 33, it is quite evident that appropriate Governments i.e. the Central Government in relation to Central Government establishments and State Government in relation to State Government Writ Petition (C) No.1161/2010 Page 11 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 establishments are required to identify posts in their respective establishments which can be reserved for persons with disability. The list of such posts is required to be reviewed periodically having regard to development in technology. In every establishment under both the appropriate Governments, not less than 3% of the vacancies are required to be reserved for persons with disability, with 1% reservation each for the three specified categories of disabilities. However, having regard to the nature of work the appropriate Government may exempt any establishment from the provisions of Section 33.

39. Having discussed the relevant provisions of the Act, the issues formulated above may now be taken up for consideration.

40. For the sake of convenience, issue No.4 is taken up first. As per this issue, whether earmarking of 4 vacancies for the physically disabled category out of the total of 145 notified vacancies was in conformity with the provisions of the Act, more particularly Section 33 thereof.

41. As already noticed above, u/s 33 every appropriate Government is required to appoint in every establishment persons with disability to the extent of not less than 3% of the vacancies. The Hon'ble Supreme Court in the case of Union of India -Vs- National Federation of the Blind reported in (2013) 10 SCC 772 has held in unequivocal terms that the reservation policy stipulated in the Act is vacancy based reservation. Therefore, under the Act, the reservation contemplated is vacancy based and not post based. In the present case, the notified vacancies were 145. 3% of 145 vacancies Writ Petition (C) No.1161/2010 Page 12 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 comes to 4.35. It is an acknowledged practice that in case of a fraction, if it is above 50%, it is taken as 1 and if the fraction is below 50% it is to be ignored. Therefore, when 3% reservation works out to 4.35, earmarking of 4 vacancies for the physically handicapped by the Director in my considered opinion did not violate the mandate of Section 33.

42. Coming to the third issue, it is seen that the Director had issued notification dated 23-05-2012 notifying the select list in order of merit and in compliance to the reservation provisions for appointment against the existing 145 vacancies in the post of Sub-Inspector. 4 candidates who have been selected under the 3% quota for physically handicapped candidates are Shri Dhrubojit Bhuyan at Sl.No.115, Shri Santanu Bordoloi at Sl.No.132, Shri Himangshu Kumar Das at Sl.No.137 and Harun Al Rashid at Sl.No.138. A perusal of the record shows that these 4 candidates had submitted physical disability certificates (orthopaedic disability) and their candidature were considered under the category of physically handicapped. As a matter of fact, the fourth selected candidate Harun Al Rashid was initially shown selected in the written examination as a general category candidate which he is without mentioning his special category status as physically handicapped candidate. He approached this Court by filing WP(C) No.2417/2010 and following the order of this Court dated 03-11-2011, he was treated as a physically handicapped candidate in the viva-voce test. The Director in his affidavit filed in WP(C) No.2883/2012 on 19-09-2013 has categorically stated Writ Petition (C) No.1161/2010 Page 13 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 that petitioners Shri Mantu Kumar Das and Jehirul Islam could not be finally selected as their merit did not justify their selection.

43. In so far issue No.2 is concerned i.e. earmarking all the 4 vacancies under the quota of physically handicapped category for a particular category of disability i.e. orthopaedic disability, it is seen that the Social Welfare Department, Government of Assam had issued an OM dated 11-05-2005 notifying the list of posts identified for disabled persons. The OM discloses that an exercise was carried out by a job identification committee constituted on 28-10-2003 for identification of different categories of posts in different departments under the State Government for disabled persons under Section 32 of the Act. Accordingly, 506 nos. of posts were so identified out of which the post of Sub-Inspector in the Food, Civil Supplies and Consumer Affair Department at Sl.No.335 was identified for orthopaedic disability. Accordingly, the advertisement dated 16-08-2008 clearly mentioned that there would be 3% reservation for physically handicapped which was earmarked for orthopaedic disability as per Government OM dated 11-05-2005. Thereafter, the Government of Assam in the Personnel Department issued another OM dated 05-11-2011 whereby it was declared that if the post identified as suitable only for one category of disability, reservation in that post shall be given to persons with that disability only. In such a case, reservation of 3% shall not be reduced and total reservation in the post would be given to persons suffering from the disability for which it has been identified. On the basis of this OM, the Director issued a communication dated 09-02-2012 to the effect that 3% of the vacancies Writ Petition (C) No.1161/2010 Page 14 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 would not be reduced and that the same would be filled up by orthopaedically disabled candidates only. A Division Bench of this Court vide order dated 27-02-2012 in WA No.359/2011 (Mantu Kumar Das -Vs- State of Assam) directed the respondents to take essential steps to fill up the notified vacancies in accordance with the letter and spirit of the communication dated 09-02-2012. Accordingly, for the 4 vacancies under the physically handicapped quota all orthopaedically disabled persons were selected. Admittedly petitioner is a visually disabled candidate. Admittedly he does not fulfill the requirement of the advertisement. His participation in the selection upto the stage of viva-voce test would therefore be of no legal consequence.

44. In National Federation of the Blind, the question which fell for consideration before the Supreme Court was whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts by Section 32. It was held that reservation under Section 33 is not dependent on identification. Scope of identification comes into the picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33. In other words, it was held that Section 32 is not a precondition for computation of reservation of 3% under Section 33, rather Section 32 is the following effect of Section 33. Therefore, out of the minimum 3% vacancies, 1% each has to be given to each of the 3 notified categories of disability mentioned in Section 33 viz., blind and low vision, hearing impaired and locomotor disabled or cerebral Writ Petition (C) No.1161/2010 Page 15 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 palsy separately. Having said that, it must be noted that National Federation of the Blind was decided on 08-10-2013. The advertisement in question is dated 16-08-2008 and final select list was published on 22-05- 2012, much prior to the decision. Therefore, the declaration of law in National Federation of the Blind may not be made applicable to the present case as it would unsettle the selection which was initiated way back in 2008 and concluded in 2012, more so when the advertisement is not under challenge in any of the three writ petitions. However, this is an aspect which will have to be borne in mind by the State while undertaking subsequent selections.

45. Coming to the first issue i.e. non-selection of Shri Ahkil Das for the viva-voce test, the relevant facts have already been taken note of. In the writ petition Shri Akhil Das has annexed a document to show that he is an orthopaedically disabled person. He had secured 55 ½ marks in the written examination whereas the last of the short listed candidates for the viva voce test under the physically handicapped category had secured 39 marks. From the documents available it does not appear that he had appeared in the written examination as an orthopaedically handicapped candidate. Petitioner's roll number is 6043. It is quite evident that petitioner did not participate as a physically handicapped candidate in the selection. Accordingly he was treated as a general category candidate. In respect of general category, the cut off marks to be called for the viva-voce test was 105 for male candidates and 93 for female candidates. Since petitioner had secured only 55 ½ marks, he was not shortlisted under the general category. Writ Petition (C) No.1161/2010 Page 16 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012 Having said so, it must also be noted that even if all the 25 marks of the viva voce test are added to the marks secured by petitioner in the written examination, he would still not make the selection.

46. In view of above, reliefs sought for by the petitioners in the above three writ petitions cannot be acceded to. All the writ petitions being devoid of merit are accordingly dismissed. No cost.

JUDGE Aparna Writ Petition (C) No.1161/2010 Page 17 of 17 Writ Petition (C) No.2638/2012 Writ Petition (C) No.2883/2012

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