Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 392 (GAU)

Rinchin Leta v. State of Arunachal Pradesh

2005-05-18

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. The writ petitioner, who is a physically handicapped person, complains of an alleged violation of his right to receive fair consideration for appointment to the Arunachal Pradesh Civil Service. Specifically, the aforesaid grievance has been raised on the ground that in the advertisement issued for filling up vacant posts in the Arunachal Pradesh Civil Service (Groups A & B) pursuant to which selections have been made, reservations as required to be provided under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereinafter referred to as the Act) have not been made and consequently the right of the petitioner to be considered against the posts which were required to be kept reserved under the provisions of the Act have been infringed. 2. By an advertisement dated 8.6.2001, applications were invited for filling up as many as 63 vacant posts in the Arunachal Pradesh Civil Service (Groups A and B). It is not disputed at the Bar that after the advertisement was so issued on 8.6.2001, 7 posts were taken out of the purview of the selection process and subsequently a total of 43 other posts were requisitioned by the state to be filled up on the basis of the selection process initiated by the Public Service Commission. In this manner, a total of 100 posts in the Arunachal Pradesh Civil Service (Groups A & B) were covered by the recruitment process initiated by the Public Service Commission though it appears that two of the aforesaid posts in the cadre of Assistant Director, Textiles, were subsequently kept outside the purview of selection under court's orders. The petitioner submitted his application pursuant to the advertisement issued and qualified in the preliminary as well as the main written examination held. Having qualified in the main written examination, he was called for the viva-voce test, wherein he participated. However, in the select list prepared by the Public Service Commission, the name of the petitioner did not figure. Consequently, the present writ petition has been filed contending that a minimum of 1% of the available posts should have reserved for physically handicapped candidates of the category to which the petitioner belongs, i.e., Orthopaedically handicapped persons having locomotor disability/cerebral palsy, as required under the provisions of the Act in force. Consequently, the present writ petition has been filed contending that a minimum of 1% of the available posts should have reserved for physically handicapped candidates of the category to which the petitioner belongs, i.e., Orthopaedically handicapped persons having locomotor disability/cerebral palsy, as required under the provisions of the Act in force. On the above basis, a case has been sought to be built up by the petitioner that had the reservation as required by the provisions of the Act been made, the petitioner would have been considered against the specific reserved category of candidates of physically handicapped, in which event the petitioner claims he would have been selected and consequently appointed on the basis of inter se merit of the physically handicapped candidates. 3. Having noticed the parameters of the challenge made in the writ petition, this Court may now proceed to understand the projections made by the state and the Public Service Commission before this Court in the affidavits filed. The State had not denied and disputed that reservation under the provisions of the Act are required to be made and in fact has enclosed two circulars dated 20.2.2000 and 23.5.2000 (Annexure-B and C to the counter affidavit of the State), which circulars have been issued by the competent authority of the state requiring the appointing authorities to adhere to the reservation provided by the provisions of the Act. In fact, the stand taken by the state Government in the affidavit filed is that reservation, as required under the provisions of the Act, have been directed by the state to be made available in all deserving cases in accordance with the principles laid down in different memorandums issued by the Government of India in this regard. The instant advertisement was issued by the Public Service Commission on the basis of requisition/requisitions placed by the state and it was, therefore, the duty of the Public Service Commission to stipulate the availability of reservations in accordance with the provisions of the Act and proceed to make its recommendation for appointment on that basis. 4. The Public Service Commission, in the affidavit filed, has again not denied and disputed the applicability of the provisions of the Act with regard to reservations for different categories of physically handicapped persons. 4. The Public Service Commission, in the affidavit filed, has again not denied and disputed the applicability of the provisions of the Act with regard to reservations for different categories of physically handicapped persons. The stand taken is that in the Service Rules in force, there is no specific provision for reservation to physically challenged persons and the state also had not intimated the necessity of making reservations for physically handicapped persons in the requisition placed before the Public Service Commission. Accordingly, the Public Service Commission had proceeded in the matter without making any provision for reservation to physically handicapped persons. 5. The stand taken by the state Government and the Public Service Commission, as noticed above, therefore, is not in variance with the pleadings of the writ petitioner and the oral arguments advanced. In fact, the writ petitioner as well as the state Government and the Public Service Commission have virtually proceeded in the instant matter by agreeing before the court that reservation of vacancies in the Civil Service as per the provisions of the Act is required to be made and the same had, in fact, not been provided in the recruitment initiated by the Public Service Commission pursuant to the advertisement dated 8.6.2001. 6. Having noticed the respective stand of the parties before the court, this Court may now briefly note what has been provided by the Act. The provisions relevant to the instant case are contained in Chapter-VI of the Act. Section 32 enjoins upon the appropriate government a duty to identify posts in the establishments which can be reserved for persons with disability and to review the same periodically at intervals not exceeding 3 years. Under Section 33 of the Act, a minimum of 3% reservation is required to be made for physically challenged persons belonging to the following 3 categories: (i) blindness or low vision; (ii) hearing impairment; (iii) loco motor disability or cerebral palsy. The break up of reservations that has to be provided is a minimum of 1% for each category. The proviso to Section 33 of the Act, however, empowers the appropriate government to exempt any establishment from the provisions of Section 33, if the appropriate government is satisfied that having regard to the nature of work involved in such establishment, such exemption is necessary or required. The proviso to Section 33 of the Act, however, empowers the appropriate government to exempt any establishment from the provisions of Section 33, if the appropriate government is satisfied that having regard to the nature of work involved in such establishment, such exemption is necessary or required. It will also be appropriate at this stage to put on record that the Government of India by Office, memorandum bearing No. 36035/9/98 Estt. (Res) dated 4.6.1998 has laid down the minimum degree of disability that a person must suffer from for being eligible for getting employment against a post earmarked/reserved for a physically handicapped person. 7. The petitioner belongs to the category of Orthopaedically handicapped person and has been certified by the Board of Doctors constituted by the Social welfare Department, to be suffering from Orthopedic Disability to the extent of 50%. He, therefore, claims to be a victim of locomotor disability. Under the provisions of the Act and the various circulars issued by the Central Government as well as the state Government to give effect to the provisions of the Act, reservation of vacancies in the state Civil Services to the extent of 1% is required to be made for persons suffering from Locomotor disability. Keeping in mind the total number of vacancies involved in the selection process undertaken by the Public Service Commission, the percentage prescribed worked out in figures, will be one post. This Court may, therefore, proceed on the basis that in the recruitment initiated and undertaken by the state Public Service Commission for filling up vacant posts in the state Civil Service (Groups A & B), one post was required to be kept reserved for physically challenged persons of the particular category, i.e., those suffering from locomotor disability. All physically challenged persons, belonging to the said category, who may have applied pursuant to the advertisement issued and had taken part in the selection, in the event all or any of them have not been included in the select list prepared are required to be considered against the said reserved post on the basis of their inter se merit within the particular group of physically handicapped persons and thereafter the recommendations of the Public Service Commission were required to be made by categorizing such physically handicapped persons as a separate group. The same has not been done in the present case and therefore this Court can reasonably construe the failure of the respondents to so act to be in derogation of the rights of the petitioner under the provisions of the Act, which may have impaired, the petitioner's right to fair consideration of his case. Though a claim has been made on behalf of the petitioner, at the hearing, that he is the only candidate with locomotor disability, who has been selected by the Public Service Commission, the court would certainly not like to proceed on the basis of the aforesaid statement. Instead what would be just and appropriate for the court is to direct the respondents to determine the relative merit of all candidates with locomotor disability, who may have appeared in the competitive examination and who had been selected and thereafter prepare a list of such candidates in order of merit by taking into account the inter se merit of all such candidates and thereafter send its recommendation to the government. This court would also like to make it clear that the expression "selected" used hereinabove must necessarily mean those physically challenged candidates, who had succeeded in the main written examination and had been called for interview but whose names have not been included in the select list because of the inherent restrictions in the select list that had to be imposed in view of the number of vacancies available. A physically handicapped candidate who has already been selected on his own merit and on that basis has already been included in the select list prepared, needless to say, will not compete against the reserved seat for physically handicapped candidates. Once the recommendations of the Public Service Commission are received by the state Government, the state Government will pass necessary orders for appointment of most meritorious of the candidates recommended against the post that has been directed by the court to be kept vacant by its order dated 27.6.2003. The directions of this Court will be required to be carried out by the Public Service Commission and thereafter by the state authorities an expeditiously as possible and in any case within a period of 3 (three) months from the date of receipt of a certified copy of this order. 8. The directions of this Court will be required to be carried out by the Public Service Commission and thereafter by the state authorities an expeditiously as possible and in any case within a period of 3 (three) months from the date of receipt of a certified copy of this order. 8. Consequently and in the light of the foregoing discussions, this Writ Petition shall stand allowed to the extent indicated above. Petition allowed.