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J&K High Court · body

2009 DIGILAW 589 (JK)

Yash Paul v. State

2009-11-26

J.P.SINGH

body2009
1. Petitioner has filed this Writ Petition questioning the selection of respondent Nos. 7 to 18 as Junior Engineer (Electric) Grade-II State Cadre under Handicapped Category questioning inter alia 3% Horizontal Reservation provided for Partially Deaf candidates only under the Handicapped Category, as ultra vires the Constitution, besides being illegal and arbitrary. 2. According to the petitioner, his name had figured in the list of candidates who had been invited by the Jammu and Kashmir Services Selection Board for interview, but the Board had acted illegally in selecting respondent Nos. 7 to 18, ignoring his higher merit. 3. The challenge to 3% Horizontal Reservation provided to Partially Deaf Candidates only, under the Handicapped Category, is founded on the ground that the respondents had violated the guidelines issued by the Ministry of Human Resources Development, Government of India, and the provisions of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, besides the provisions of Government Order No.62-SW of 2001 dated 13.03.2001. 4. The selection of Amarat Bushan, respondent No. 17, has been questioned on the ground that he did not belong to the Category of Partially Deaf candidates and was thus not entitled to be selected for the post of Junior Engineer (Electric) Grade-II. 5. The Jammu and Kashmir Services Selection Board and respondent Nos. 7 to 18 have justified the selection made by the Board saying that it had been made according to the provisions of SRO-294 of 2005 and Government Order No. 62-SW of 2001 dated 13.03.2001, in terms whereof, the Government of the Jammu and Kashmir in the Social Welfare Department, had identified Handicapped Categories, entitled to Horizontal Reservation, in various Departments of the State Government, including the Engineering Department where the Reservation had been provided only for Partially Deaf candidates, for the posts of Junior Engineer. 6. According to the Board, on reference of the Power Development Department of the State Government, 343 posts of Junior Engineer (Electric) Grade-II were advertised vide Advertisement Notice No. 04 of 2007 dated 19.11.2007 and during the selection process, 89 more posts of Junior Engineers were advertised by the Board vide Notification No. 09 of 2008 dated 14.07.2008. 7. 6. According to the Board, on reference of the Power Development Department of the State Government, 343 posts of Junior Engineer (Electric) Grade-II were advertised vide Advertisement Notice No. 04 of 2007 dated 19.11.2007 and during the selection process, 89 more posts of Junior Engineers were advertised by the Board vide Notification No. 09 of 2008 dated 14.07.2008. 7. It was during the selection process undertaken by the Board that Application Forms of some of the candidates, not conforming to the disability, advertised for the post of Junior Engineer (Electric) Grade-II, were also inadvertently entertained and some of these candidates were allowed to be interviewed too. The error was, however, later corrected while preparing the Select list. The Handicapped Category candidates, not conforming to the provisions of Government Order of March 13, 2001, were, thus, deleted from the zone of consideration. A total number of fifteen eligible candidates conforming to the prescribed eligibility and nature of the disability, as envisaged under Government Order of March 13, 2001, were placed in the Final list and recommended for appointment. Against the Open Merit Category, thirteen candidates were recommended in the Handicapped Category, and one each was recommended under the Handicapped Category for the vacancies reserved for Schedule Tribe and OSC Categories. As one of the candidates belonging to the Handicapped Category in the Open Merit Category had succeeded in making Grade in the Open Merit Category so he was not indicated in the list of fifteen candidates. 8. The petitioners disability being "Ortho", he was ineligible to seek selection against the post of Junior Engineer (Electric) under the Handicapped Category. The last selected candidates under OM/HC category had secured 48.29 points, under the ST/HC category 50.74 points and under the OSC/HC category 52.87 points. All these candidates were Hearing Impaired and as such, were eligible for selection in terms of Government Order of March 13, 2001. 9. The petitioners higher merit to respondent Nos. 7 to 18, would not make him eligible to seek selection for the advertised posts because he did not belong to the notified Handicapped Category of only Partially Deaf candidates. 10. 9. The petitioners higher merit to respondent Nos. 7 to 18, would not make him eligible to seek selection for the advertised posts because he did not belong to the notified Handicapped Category of only Partially Deaf candidates. 10. I have considered the submissions of learned counsel for the parties and gone through the Provisions of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 and Government Order No. 62-SW of 2001 dated 13.03.2001, placed on records along with its Annexure-X by learned counsel for the Board. 11. The Notifications issued by the Jammu and Kashmir Services Selection Board, specifically provide for 3% Reservation under the Handicapped Category for only Partially Deaf candidates. The petitioner does not fall in the notified Handicapped Category. He as such was ineligible to seek consideration against the posts of Junior Engineer (Electric) Grade-II in the Power Development Department under the Handicapped Category, in that, his Ortho disability, would not make him eligible to compete for the posts, reserved only for Partially Deaf Candidates. 12. Petitioners plea that the Board had violated the provisions of Government Order No.62-SW of 2001 dated 13.03.2001, in notifying posts under the Handicapped Category, only for Partially Deaf Candidates, is misconceived. 13. This is so because it is this Government Order, which, on the basis of an Expert Committee, appointed by the Government for the purpose, had identified the Gazetted and Non-Gazetted posts where 3% Reservation for direct Recruitment was provided to the candidates, suffering from different kinds of Disability. It is provided in annexure-X to the order that for the posts of Junior Engineer (Electric) Grade-II, 3% Reservation under the Handicapped Category would be available only to "Partially Deaf" and "Deaf" candidates. The petitioner has not indicated anywhere in the Writ Petition as to how, the identification of Junior Engineer Electricals Posts for Partially Deaf and Deaf candidates only, by the Government was arbitrary, unreasonable or unconstitutional. 14. The petitioners learned counsel was unable to demonstrate as to how the identification of the Posts of Junior Engineer (Electric) Grade-II under the Handicapped Category for Partially Deaf candidates only, was bad in law. 15. 14. The petitioners learned counsel was unable to demonstrate as to how the identification of the Posts of Junior Engineer (Electric) Grade-II under the Handicapped Category for Partially Deaf candidates only, was bad in law. 15. Petitioners plea that the respondents had violated the provisions of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 and the guidelines issued by the Central Government in this behalf, needs to be noticed only for its rejection, in that, neither any submission was made in this respect nor has any basis been laid in the Writ Petition to support the plea. 16. The petitioners another plea that Amarat Bushan-respondent No. 17s selection was bad in law as he had not applied under the Handicapped Category too, is not substantiated, in that, it has been specifically stated by the Board that respondent No. 17 had applied under the notified Handicapped Category. 17. The petitioner cannot claim premium on the Boards inadvertent error in entertaining his Application and indicating his name in the list of short listed candidates, to seek selection on the basis of his higher merit, in that, being not belonging to the category of candidates notified as eligible to compete against the Handicapped Category, the petitioner can neither seek selection against the notified posts nor can he question the selection of the respondents who have been found eligible and suitable therefor. 18. No case for admission of the Writ Petition has thus been made out. 19. This Writ Petition is, accordingly, dismissed, lifting the interim order of August 27, 2009.