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Madhya Pradesh High Court · body

2009 DIGILAW 176 (MP)

Kailash Swarnkar v. State of M. P.

2009-02-05

S.C.SHARMA

body2009
ORDER 1. The petitioner before this Court who is a visually disabled person has filed this present petition claiming appointment on the post of Stenographer. He has also prayed for quashing of appointment of respondent No.3. 2. In the present case, the petitioner has contended in the writ petition that he is a visually disabled person on account of Heredo Macular Degeneration and his disability has been assessed as 65%, as certificate to that effect is enclosed as Annexure P-2. The petitioner has obtained a decree of Bachelor of Arts and has also qualified typing examination conducted by the M.P. Board of Shorthand and Typing Examination in the year 1991. The petitioner has also successfully cleared the shorthand examination from a recognized board and a certificate to that effect is also on record. The petitioner also belongs to the other backward class and a certificate to that effect is also enclosed as Annexure P-7. It has been contended by the petitioner that the State of Madhya Pradesh keeping in view the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 issued circulars from time to time and even prior to enactment of the aforesaid Act, provided reservation for persons with disabilities. The circulars have been revised from time to time providing for a total reservation of 6% under the disabled category. The last executive instruction issued by the State Government dated 31.10.2003 clearly reflects that out of total 6% reserved posts for persons with disabilities, 2% is reserved for visually disabled persons, 2% for hearing impaired persons and 2% for orthopaedically disabled persons. Thus, 2% has been reserved for visually disabled persons. The petitioner has further stated that an advertisement was issued by the respondent No.2 Engineer-in-Chief, Water Resources Department, State of M.P. inviting applications for the post of Stenographer and Amins under the Special Recruitment Drive and in the same advertisement it was mentioned that 2 posts out of total 3 posts were to be filled up from disabled persons belongings to the general category and one vacancy was to be fulfilled by a disabled person belonging to other backward class. The petitioner did appear in the process of interview, however, he was not selected by the respondents for the post of Stenographer. The respondents have selected the respondent No.3 Sukhdev Prajapati, a orthopaedically disabled person of OBC category. The petitioner did appear in the process of interview, however, he was not selected by the respondents for the post of Stenographer. The respondents have selected the respondent No.3 Sukhdev Prajapati, a orthopaedically disabled person of OBC category. Out of total three posts reserved for persons with disabilities, following persons have been selected; (a) Shri Rajkumar Gupta, a orthopaedically disabled; (b) Ku. Anjana Ghanghere, a orthopaedically disabled; (c) Shri Sukhdev Prajapati, a orthopaedically disabled. 3. The petitioner has further contended that under the Right to Information Act, 2005, an application was submitted to the respondents seeking information in respect of sanctioned strength of Stenographer and as per the information furnished by the respondents, the total number of posts of Stenographer are 110 in number. By the same information supplied under the Right to Information Act, 2005 it has also been stated that two posts were reserved for visually disabled persons. It has been further contended that three disabled persons prior to issuance of advertisement were in the department and out of which, Shri Suresh Prasad Tiwari, who is a visually disabled person was in the department meaning thereby, the respondents out of total 110 posts of Stenographer have reserved six posts for persons with disabilities and out of this six posts, two posts were to be filled up by the visually disabled persons. As one post was already filled up by a person who is visually disabled, one vacancy out of three advertised was required to be filled up by a person who is visually disabled. The contention of the petitioner is that Shri Sukhdev Prajapati, who is a member of OBC category has wrongly, been appointed against the reserved quota of visually disabled category and therefore, his appointment deserves to be quashed. Learned counsel for the petitioner has also argued that out of total 110 posts, if proper percentage is calculated for persons with disabilities, the total number of posts should be seven and therefore, even without disturbing the appointment of respondent No.3 Sukhdev Prasad, the respondents should be directed to consider the case of the petitioner against one additional vacancy as they have wrongly computed the posts reserved for persons with disabilities to be six only. 4. 4. The respondents-State have filed a reply and it has been argued on behalf of the respondents-State that total six posts were reserved for persons with disabilities and three posts were filled up prior to issuance of advertisement. It has also been stated that the advertisement was issued for remaining three unfilled posts reserved for persons with disabilities and out of total this three posts, two were reserved for general category disabled person and one was reserved for OBC category disabled person. The respondents have further stated that interview of OBC category candidates took place on 28.10.2006 and since than there was only one vacant post under the disabled OBC category, a merit list was prepared and the private respondent secured 67 marks, whereas, the petitioner has secured only 46 marks, therefore, the respondent No.3 has rightly been appointed on the post of Stenographer. The respondents have prayed for dismissal of the· writ petition. 5. The respondent No.3 has also filed a reply and it has been argued on behalf of respondent No.3 that the identity card in respect of petitioner was issued on 6.9.1993 and the same was valid only for five years and therefore, the petitioner is not eligible for appointment to the post of Stenographer. The respondent No.3 has prayed for dismissal of the writ petition. Learned counsel for the respondent No.3 has also argued before this Court that the appointment was made in the year 2006 and now after serving the State Government for the last three years, the respondent No.3 is at the verge of confirmation and no fruitful purpose shall be served by throwing out another disabled person on street. He has prayed for dismissal of the writ petition. 6. Heard learned counsel for the parties at length and perused the record. 7. In the present case, it is not disputed by the respondents-State that they are having a sanctioned strength of 110 posts of Stenographer under the Water Resources Department of the State of M.P. It is also not in dispute that the State Government keeping in view the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 have issued executive instructions from time to time providing reservation under the disabled category. Section 33 of the aforesaid Act of 1995 reads as under : "Reservation of posts. Section 33 of the aforesaid Act of 1995 reads as under : "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 percent each shall be reserved for person suffering from -- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy. In the post 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 condition, at any, as may be specified in such notification, exempt any establishment from the provisions of this section" 8. The posts in question for the post of Stenographer have been reserved for the persons with. disabilities as the post of Stenographer can be reserved for a person of disability and, therefore, the respondents-State have reserved six posts out of total 110 posts for the persons belonging to the disabled category.. The apex Court in the case of Bhudev Sharma v. District Judge, Bulandshahar and another [ (2008)1 SCC 233 ], while dealing with a case of blind candidate in paragraphs 3, 4 and 5 held as under : "The appellant has relied on GO dated 26.8.1993 which is Annexure P-1 to this appeal. The GO states that the U.P. Government has reserved 2 percent posts for physically handicapped persons for direct recruitment in all groups of Government services. The physically handicapped persons are those who are blind, deaf and dumb and otherwise handicapped. There were altogether 30 posts for which the selection was held, 2 percent of 30 is 0.6. Since 0.6 is more than half we round it off and hold that one out of the 30 posts is reserved for physically handicapped persons. Since there was no other physically handicapped person who applied, in our opinion, the appellant was entitled to the post of reserved for physically handicapped persons. In this view of the matter, the appeal is allowed, the impugned judgment of the Division Bench is set aside and it is directed that the appellant be appointed on a class III post in Bulandshahar Judgeship forthwith. We are informed that the appellant is already working on the post in view of the interim order of this Court. In this view of the matter, the appeal is allowed, the impugned judgment of the Division Bench is set aside and it is directed that the appellant be appointed on a class III post in Bulandshahar Judgeship forthwith. We are informed that the appellant is already working on the post in view of the interim order of this Court. Hence, he shall be regularised and allowed to continue working as a regular class III employee and shall be given all the consequential benefits." In the aforesaid case, their lordship has held that 0.6 is more than the half and, therefore, the same should be rounded off to 1 and one vacancy should be reserved for a physical disabled person. 9. In the present case, keeping in view the judgment delivered by the apex Court in the aforesaid case, as the total number of posts were 110 in number and 6% of the aforesaid, comes to 6.6 and, therefore, instead of reserving six posts for persons with disabilities, seven posts should have been reserved by the respondents-State under the disabled category. The respondent No.3 who has been selected under the OBC disabled category is certainly having more percentage of marks than the petitioner. As per the reservation provided by the State Government, out of six posts, three posts were already occupied under the reserved quota, out of which, two persons were from orthopaedically disabled category and one was under the visually disabled category. Thus, total three posts advertised by the respondents. One vacancy should have been earmarked for visually disabled person keeping in view the executive instructions issued by the State Government dated 30th January, 2002, wherein, it has been categorically provided that 2% of the posts shall be reserved for visually disabled persons in the State of Madhya Pradesh. The State Government after issuing the advertisement have filled up all the three posts by appointing persons from orthopaedic ally disabled category, which is certainly contrary to the executive instructions issued by the State Government. The apex Court in the case of Mahesh Kumar Gupta and others v. Yashwant Kumar Ahirwar and others [Civil Appeal No.3984 of 2007=2008(3) JLJ 791, in paragraph 12 has held as under : "Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and conventions. The apex Court in the case of Mahesh Kumar Gupta and others v. Yashwant Kumar Ahirwar and others [Civil Appeal No.3984 of 2007=2008(3) JLJ 791, in paragraph 12 has held as under : "Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and conventions. The State', therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped person at the outset, but, as noticed hereinabove, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Caste, Scheduled Tribes and general category candidates. It is a travesty of justice that despite the State clarified its own position in its order dated 1.1.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.2.2004 but within a short time, viz., on 4.2.2004 it opined on a presumption that as the word "handicapped" was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribes candidates. Rule of executive construction was given a complete go bye. Reasonableness and fairness which is the hall mark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petition respondent, it could have done so. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must be given effect to the constitutional mandate. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must be given effect to the constitutional mandate. Any act done by it should give effect to the principles embodied in Article 39 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India [MANU/SC/ 0104/1993], reservation for women or handicapped persons would not come within the purview thereof." Keeping in view the judgment delivered by the apex Court in the aforesaid case and also keeping in view the policy decision of the State Government to fill up 6% of the posts by appointing persons from disabled category, the respondents-State was under an obligation to fill up one vacancy out of the three posts advertised by appointing a visually disabled person. The question of making any further reservation on the basis of caste, creed or religion ordinarily does not arise as they have constituted a special class. 10. In the present case, in all fairness, out of six posts reserved for persons with disabilities, two posts should have been filled up by the persons belonging to visually disabled category, however, the respondents have filled up all three posts advertised by the persons belonging to orthopaedically disabled persons. As this Court has arrived at a conclusion that the number of posts reserved should have been seven instead of six, this Court is not passing any order putting an end to the services of respondent No.3 Sukhdev Prasad in the peculiar facts and circumstances of the case as he is also an orthopaedically disabled person and is at the verge of confirmation after serving the State Government right from 2006. As still one post is to be filled up from visually disabled person, the respondents-State is directed to consider the case of the petitioner against this one additional post as the computation by the respondents-State of six posts was erroneous, in fact, total seven posts are required to be reserved under the disabled category and, therefore, the respondents-State shall consider the case of the petitioner under the visually disabled category against this one additional post within a period of three months from the date of receipt of a certified copy of this order and shall pass necessary orders in the matter. In case, the petitioner is eligible for appointment as per his merit in the visually disabled category, the respondents shall grant him appointment to the post of Stenographer with all consequential benefits except back wages from the date the other persons have been granted appointments under the disabled category. 11. Shri Alok Sharma, learned counsel appearing for the petitioner has defended this matter as it was assigned to him by the High Court Legal Aid Services, Gwalior by the Legal Aid Officer vide letter dated 22nd February, 2008. The learned counsel has worked very hard in preparing this case and has left no stone unturned in producing the relevant material and relevant case law while arguing the matter. The efforts made by learned counsel deserves appreciation of this Court. 12. With the aforesaid, the writ petition stands allowed. No order as to costs.