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2005 DIGILAW 691 (RAJ)

Dinesh Kumar Sharma v. State of Rajasthan

2005-03-01

V.K.BALI

body2005
Judgment V.K. Bali, J.-Challenge in this appeal, under Section 18 of the Rajasthan High Court Ordinance, 1949 is to the Judgment dated 01.04.2003 passed by the learned Single Judge in CW 2673/2002 vide which the writ petition filed by the appellant herein, under Article 226 of the Constitution of India seeking 3 per cent reservation in the quota of handicapped persons and consequent thereupon for the appointment as Assistant Public Prosecutor Gr. II, was dismissed. 2. Brief facts as may be necessary for disposal of the present appeal, reveal that the appellant applied for the post of Assistant Public Prosecutor Gr. II pursuant to advertisement dated 19.02.2002 issued by the respondent Commission. His candidature was not considered in the reserved category for handicapped persons, even though in the general category he was called for interview, but was not selected. In the wake of facts and circumstances mentioned above, the appellant first sought reservation of 3 per cent in view of the provisions contained in the Rajasthan Employment of the Persons with Disabilities Rules, 2000 (for short the Rules of 2000) read with the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act of 1995). The learned Single Judge vide the impugned Judgment , held that the post of Assistant Public Prosecutor Gr. II had not been identified or included in the Schedule to the Rules of 2000 till the advertisement was issued in the present case and that it was only on 10.2002 that State Government had issued a corrigendum to the Rules of 2000 adopting the complete Schedule of identification, as provided under the Act of 1995, in which the post of Assistant Public Prosecutor has since been included for reservation to the handicapped persons. It was further held that after issuing the notification dated 10.2002, neither any fresh requisition has been sent by the State Government regarding reservation of handicapped persons for the above post nor any corrigendum has been issued by the Rajasthan Public Service Commission for the present recruitment. It was further held that after issuing the notification dated 10.2002, neither any fresh requisition has been sent by the State Government regarding reservation of handicapped persons for the above post nor any corrigendum has been issued by the Rajasthan Public Service Commission for the present recruitment. It was further held that reservation to the handicapped persons can be given only to the posts duly identified by the State Government as per recommendation of the Committee and that it was for the Committee to identify for certain posts, looking to the nature and requirement of work, for reservation to the handicapped persons under different categories. In the present case, it was held, though by now the post of Assistant Public Prosecutor has been included under the Schedule to the Rules of 2000, however, as per the requisition sent by the State Government the advertisement had already been issued long back on 19.02.2002, whereas the last date for submission of the applications was 11.04.2002. The process of selection is almost at the last stage and thus the benefit of reservation could not be given to the petitioner. It was also held that if any direction is issued in favour of the petitioner that would violate the provision of Articles 14 and 16 of the Constitution since there might be large number of similarly situated persons who did not apply due to absence of any reservation for handicapped persons in the advertisement issued on 19.02.2002. 3. Learned Counsel appearing for the appellant contends that the mandate contained in Section 39 of the Act of 1995 regarding 3 per cent reservation for persons with disabilities, cannot be flouted. That being so, the appellant could not be deprived of the benefit of the said provision merely because the authorities had not discharged their duty of amending the rules. He further contends that other candidates had not approached the Court and, therefore, the appellant could not be debarred on the sole ground that he may not have been more meritorious, thus violating the provisions contained in Article 14 of the Constitution of India. For his afore-stated contention , the learned Counsel relies upon the Division Bench Judgment of this Court in State of Rajasthan & Anr. vs. Dr. Vijay Kumar Agrawal & Anr., 2001 (3) WLC (Raj.) 11. For his afore-stated contention , the learned Counsel relies upon the Division Bench Judgment of this Court in State of Rajasthan & Anr. vs. Dr. Vijay Kumar Agrawal & Anr., 2001 (3) WLC (Raj.) 11. The facts of the judicial precedence relied upon by the learned Counsel for appellant, reveal that the petitioner in the said case while pleading that it was incumbent upon the respondents to reserve at least 3 per cent seats for physically handicapped persons and the same having not been done sought a writ in the nature of mandamus commanding respondents to be issue orders to provide 3 per cent reservation to the physically handicapped persons. The defence projected in the case aforesaid was that Pre-P.G. Examination and the P.G. Courses in Medical Sciences were governed by ordinances 278-E and 278-G of the University of Rajasthan and there was no reservation provided to the disabled persons in those Ordinances. It was further urged that Section 39 of the Act of 1995 fell under the chapter related to employment and, therefore, the said section did not apply to post graduate courses. The State Government was thus not obliged to provide reservation to disabled persons. This writ petition was allowed by a learned Single Judge. On respective contentions of the parties as mentioned above, the Division Bench of this Court, in the appeal filed by the State, held that from 07.02.1996 when the Act was enforced and Section 39 of the Act came into force, all the Government educational institutions and Government aided institutions were under a legal duty to reserve not less than 3 per cent seats for persons with disabilities. It was further held that rules or no rules, the learned single judge had jurisdiction to enforce Section 39 of the Act by issuing a mandamus directing the authorities to give benefit of reservation as required under Section 39 of the Act. 4. Before we might advert to the contentions of the learned Counsel for the appellant as noted above, we would like to mention that reservation in the matter of appointments is a mere concession. No one thus, can claim appointment on reservation as a matter of right. It is also well settled that no mandamus can be issued for framing rules under Article 234 of the Constitution of India for reservation for disabled persons. No one thus, can claim appointment on reservation as a matter of right. It is also well settled that no mandamus can be issued for framing rules under Article 234 of the Constitution of India for reservation for disabled persons. Reference in this connection may be made to the Division Bench Judgment of this Court in Naresh Kr. Gupta & Ors. vs. High Court of Judicature for Rajasthan & Ors., 2004 (4) WLC (Raj.) 281. The petitioners in that case, who were disabled persons, by way of a public interest litigation sought declaration that the provisions of the Act were applicable to RJS Rules, 1995 and they were thus entitled for 3 per cent reservation under the Act and the Rules framed by the State Government thereunder. they, thus sought directions to be given to the Commission for calling them for interview and to recommend their names for appointment to RJS against the quota of 3 per cent provided under the Act and the Rules made thereunder. The High Court had drafted Rajasthan State Judicial Service Rules, 2003 and the draft of the Rules, inter alia, provides 3 per cent reservation for persons with disabilities in the RJS. The draft of the rules was sent to the State Government for approval under Art. 234 of the Constitution of India. The said rules were still under consideration and had not been finalised. After making a reference to Sections 32 and 33 of the Act of 1995 it was held that 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. 5. The post on which the appellant sought appointment by way of reservation had since been not identified as required to be done under the provisions of Section 32 of the Act of 1995. There was thus no mention in the advertisement that there shall be reservation of 3 per cent for handicapped persons. 5. The post on which the appellant sought appointment by way of reservation had since been not identified as required to be done under the provisions of Section 32 of the Act of 1995. There was thus no mention in the advertisement that there shall be reservation of 3 per cent for handicapped persons. This Court is of the confirmed view that whereas it may be possible to issue a writ in the nature of mandamus directing the Government to identify posts meant for reservation under Sections 32 and 33 of the Act of 1995, it shall not be possible to issue a writ directing the Government to provide reservation of 3 per cent to the handicapped persons. Till such time posts have been identified and accordingly notified, 3 per cent reservation cannot be provided to physically handicapped persons. We find no illegality in the Judgment passed by the learned Single Judge and thus dismiss the appeal. Parties are, however, left to bear their own costs.