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2008 DIGILAW 1633 (PNJ)

Dharminder Singh v. State Of Punjab

2008-09-22

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment Augustine George Masih, J. 1. The petitioner, who is a graduate and belongs to the physically handicapped category, submitted a representation in the year 1995 to the State Transport Commissioner-respondent No. 2 for appointment to the post of Assistant District Transport Officer which fell vacant from the quota of physically handicapped persons and giving him appointment as such. He submitted a reminder on 4.4.1995. The State Transport Commissioner, Punjab, vide letter dated 19.4.1995 (Annexure P-4) informed the petitioner that the post of Assistant District Transport Officer is to be filled in the near future through the Punjab Subordinate Selection Board and therefore, he could apply at the appropriate time to the Board. 2. Aggrieved by the said order, the petitioner approached this Court by filing C.W.P. No. 10883 of 1995 praying for quashing of the Communication dated 19.4.1995 on the ground that as per the Punjab Government Circular, dated 24.4.1986, the Appointing Authority was to adjudge the suitability of the persons belonging to the handicapped category and it shall not be necessary to get the approval of the Subordinate Services Selection Board or the Departmental Selection Committee, as the case may be, nor would the registration of the Employment Exchange be required for making such an appointment on the basis of priority list against Class III and Class IV posts for service. In the priority list, the handicapped category is mentioned at Sr. No. 6 and thus, the contention of the petitioner was that since he was covered by the said Instructions of 1986, he was not required to go through the selection process to be followed by the Subordinate Services Selection Board. The said writ petition was dismissed by the learned Single Judge vide order dated 10. 12.1996 by holding that the directions sought by the petitioner could not be issued to the Appointing Authority as it would be in total violation of Articles 14 and 16 of the Constitution of India which guarantees equality of opportunity in the matters of employment to posts under the State. 3. 12.1996 by holding that the directions sought by the petitioner could not be issued to the Appointing Authority as it would be in total violation of Articles 14 and 16 of the Constitution of India which guarantees equality of opportunity in the matters of employment to posts under the State. 3. Therefore, the petitioner preferred a Letters Patent Appeal No. 54 of 1997, which came up for hearing before the Division Bench on 3.5.2004 which upheld the judgment of the learned Single Judge and further added that even against the posts reserved for physically handicapped persons, all the eligible candidates have an equal right to compete and merely because the petitioner, who having come to know about the availability of some vacancy, applied for appointment against the same, has no superior or preferential right to seek appointment without living an opportunity to compete to other eligible and similarly situated candidates. A specific contention was raised by the counsel for the petitioner in the above-stated Letters Patent Appeal that in view of the Government Instructions dated 24.4.1986, a direction may be issued to fill up the post of Assistant District Transport Officer from amongst the physically handicapped persons without asking them to undergo the test of suitability to be conducted by the Subordinate Services Selection Board or the Departmental Selection Committee, as the case may be. This contention was rejected by the Division Bench of this Court by holding as follows: "We, however, do not find any such mandate in the aforementioned Instructions which merely contain an enabling Provision leaving it to the discretion of the Appointing Authority to adjudge the suitability of the candidates on its own without getting the approval of the Subordinate Services Selection Board or the Departmental Selection Committee. We are, therefore, of the view that it is for the Appointing Authority to adopt a legally permissible selection process consistent with the philosophy of "equality in public employment" enshrined under Articles 14 and 16 of the Constitution of India." A persual of the above would clearly show that this contention of the counsel for the petitioner has been considered and rejected. However, on a statement made by the counsel for the respondent-State that one post of Assistant District Transport Officer of direct quota would fall vacant on 1.8.2004 and the same shall be filled from amongst the physically handicapped persons, the Division Bench directed the respondents to fill up this post from amongst the physically handicapped persons in accordance. with law by finalizing the selection process on or before 1.8.2004. 4. The State of Punjab, as per the undertaking given in the Court, issued an advertisement in the newspaper The Tribune dated 15.7.2004 inviting applications from the physically handicapped persons to fill up one post of Assistant District Transport Officer in Punjabi. In the said advertisement, the respondents had prescribed a syllabus on the basis of which the candidates, were required to appear in a written test and qualify the same as per the Punjab Transport Department (Non- Commercial Wing) Class III Rules, 2000. The petitioner applied for the said post and was called for the written test to be held on 26.6.2005. However, the petitioner chose not to appear in the said test and instead preferred the present writ petition challenging therein the advertisement to the extent that it prescribed the written test which was slated to be held on 26.6.2005 on the ground that the post which had fallen vacant in the year 1995 from the physically handicapped category under the direct quota should have been filled on the basis of the then available departmental Rules. The departmental Rules, as applicable in 1995, did not provide for any syllabus or for qualifying the test and since the petitioner was seeking appointment to the post which became available for physically handicapped persons in 1995, he was not required to undergo the said test and his candidature and selection should be considered merely on the basis of interview. 5. Upon notice having been issued, the respondents have put in appearance and have taken a stand that the petitioner cannot claim his sole right for selection to the post of Assistant District Transport Officer. The claim of the petitioner with regard to the vacancy that arose in 1995 has been considered and rejected by the learned Single Judge vide judgment dated 10.12.1996 and thereafter, in Letters Patent Appeal, the Division Bench has also upheld the judgment of the learned Single Judge. The claim of the petitioner with regard to the vacancy that arose in 1995 has been considered and rejected by the learned Single Judge vide judgment dated 10.12.1996 and thereafter, in Letters Patent Appeal, the Division Bench has also upheld the judgment of the learned Single Judge. The relief, if any, which the petitioner could claim and has been granted to him was with regard to the vacancy which was to occur on 1.8.2004 for being filled from amongst the persons belonging to the physically handicapped category. The Division Bench has also categoricaily held that even against the post reserved for physically handicapped persons all the eligible candidates belonging to the physically handicapped category have an equal right to compete and the petitioners claim for appointment on the basis of his application dated 21.2.1995 has been categoricaily rejected. 6. We have heard counsel for the parties and have gone through the records of the case. The persons belonging to the physically handicapped category have certain posts ear marked for them as per the roster on the basis of the Instructions issued by State of Punjab. The said posts are to be filled from amongst the physically handicapped persons. This does not mean that the petitioner alone is to be considered for selection and appointment. Equality in public employment is based and enshrined under Articles 14 and 16 of the Constitution of India. An exception to this is reservation, but there cannot be any reservation within reservation to the extent of excluding similarly placed persons and all similarly placed persons belonging to that particular category have an equal right and need to be granted equal opportunity in public empioyment. 7. The claim of the petitioner on the basis of his earlier application dated 21.2.1995 has been earlier considered and rejected by the learned Single Judge which has been reiterated by the Division Bench of this Court, referred to above. The claim of the petitioner, therefore, on the basis of 1995 vacancy as alleged by him in this petition, cannot be sustained as the same Stands categorically rejected The relevant extract of the judgment passed by the Division Bench in LPA No. 54 of 1997 has been reproduced above. 8. The claim of the petitioner, therefore, on the basis of 1995 vacancy as alleged by him in this petition, cannot be sustained as the same Stands categorically rejected The relevant extract of the judgment passed by the Division Bench in LPA No. 54 of 1997 has been reproduced above. 8. As regards the next contention of the petitioner with regard to the appointment on the basis of the Rules prevalent in the year 1995 when the vacancy against which the petitioner had initially claimed appointment, would be applicable to the said vacancy which was advertised in the year 2000, needs noticed and rejected on the simple ground that this very contention has already been considered by the learned Single Bench and the LPA Bench. While deciding Letters Patent Appeal No. 54 of 1997 vide order dated 3.5.2004, the Division Bench has clearly observed that a direct quota vacancy on the post of Assistant District Transport Officer which would be available on 1.8.2004 shall be filled in from amongst the physically handicapped persons, a direction to finalize the selection process from amongst the physically handicapped persons in accordance with law was issued. Therefore, there is no doubt that the vacancy which was advertised became available for appointment only on 1.8.2004 and therefore, the same was to be fulfilled in accordance with the prevalent Rules. The department was therefore, fully justified in prescribing the test on the basis of the syllabus prescribed in Appendix B of the Punjab Transport Department (Non-Commercial Wing) Class Kl Rules, 2000. In any case, as far as the principle which the counsel for the petitioner has tried to press into play with regard to the filling up of the vacancy of 1995 as per the prevalent Rules during that year is concerned, it may be stated that the said principle is applicable to the promotional posts and the same is not applicable to vacancies which are to be filled by direct recruitment. In the process of direct recruitment, it is the Appointing Authority which decides the eligibility and criteria for appointment to aparticular post. In view of the above, we do not find any merit in this writ petition and the same is dismissed accordingly, however, with no order as to costs. Petition dismissed