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Madhya Pradesh High Court · body

2009 DIGILAW 71 (MP)

ANIL KUMAR GIRI v. VICE CHANCELOR

2009-01-15

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) THE present writ appeal has been filed by the original petitioner challenging the order dated 30. 07. 08 passed in w. P. No. 7740/07 (s) whereby the learned Single Judge has dismissed the petition. ( 2. ) THE facts leading to the present case are that the present appellant filed a petition challenging the advertisements issued by the respondents to fill up the posts of Training Associates. The two advertisements were issued 13-19th on 06. 12. 05 (Annexure P/3) and May, 2006 (Annexure P/4) to the petition. The said advertisements were challenged on the ground that the petitioner being physically handicapped candidate and no reservation up to the extent of 6% has been provided, therefore, the respondents are not justified in filling up the vacancies without there being a reservation up to 6% for physically handicapped candidates. On the basis of the aforesaid grievance the petitioner claimed the following reliefs in the writ petition which are as under:- i. May kindly be pleased to call the entire record of selection of advertisement Annexure P/3 and P/4 and further be pleased to quash such proceedings. ii. May kindly be pleased to direct the respondents to provide 6% reservations to the handicapped persons in advertisement Annexure p/6. iii. May kindly be pleased to direct the respondents to consider the candidature of the petitioner in handicapped persons quota in all the advertisements Annexure P/3, P/4 and p/6. iv. May kindly be pleased to issue any other writ or directions looking to the facts and circumstances of the case along with the cost of the petition. " ( 3. ) RESPONDENTS were noticed and it was the stand taken by the respondents that reservation has been provided up to the extent of 6% in the appointment of Class II, III and Class iv cadre for handicapped persons and the vacancies towards these categories are to be filled up by direct recruitment. It was also submitted that the physically handicapped persons for whom the 6% reservation was made could not reach to the point of reservation, therefore it was not possible for the respondents to fill up the vacancies. Thus, it was the stand that there had been reservation up to 6%. It was also the stand of the respondents that petitioner was intimated by letter dated 04. 05. Thus, it was the stand that there had been reservation up to 6%. It was also the stand of the respondents that petitioner was intimated by letter dated 04. 05. 07 (Annexure P/6-A) that no one has been selected under the handicapped category and as a consequence of the same, no person towards the 6% handicapped category could be appointed. ( 4. ) BEFORE the learned Single Judge, a rejoinder was filed on behalf of the petitioner. The same was filed on 27. 07. 08. In the rejoinder, in paragraph 4, a ground was taken by the petitioner that the reservation was not properly applied. The pleadings so raised by the petitioner in para 4 of the rejoinder is reproduced as under:- "4. The respondents have contended that the reservation for unreserved handicapped persons (6%) is done on posts subject wise. The argument totally unacceptable. Vide Annexure P-3, 142 posts are advertised. Out of these, 4 posts would go unreserved physically handicapped quota. But if you take it subject wise, serial no. 33 will never be reached and hence hundreds of posts will be filled and the unreserved handicapped persons will not get any quota. This way, the respondents will avoid giving any reservation to the handicapped persons. As per the rule position, the reserved posts, if not filled, should be carried forward. This shows the anxiety of the legislature to ensure that all the reserved posts are filled. But here the respondents are fishing for lame excuses to deny posts to handicapped quota. Similar illegality has been done in respect of 44 posts advertised vide annexure P-4. It is submitted that here also, the 33rd post should have been reserved for unreserved handicapped person. This is as per the roster shown in para 5 of the return itself. But while the respondents mentioned 6% reservation for handicapped category in Annexure P-4, even then they did not give any reservation as per the return. Now they are giving explanation that no reservation can be given as the number of posts are not sufficient. Means the respondents want to say that the averment in the advertisement annexure P-4 to the effect that there would be 6% reservation for handicapped was meaningless or a fraud. Such an argument cannot be accepted. Now they are giving explanation that no reservation can be given as the number of posts are not sufficient. Means the respondents want to say that the averment in the advertisement annexure P-4 to the effect that there would be 6% reservation for handicapped was meaningless or a fraud. Such an argument cannot be accepted. The respondents deserve to be directed to adhere to their promise (and also to the rule) that there should be 6% reservation for handicapped persons out of which 3% should be for general category handicapped persons. " ( 5. ) THE learned Single Judge came to the conclusion that the petitioner was permitted to participate in the process of selection and further came to the conclusion that respondents have provided 6% reservation to the handicapped persons. The learned Single Judge also came to the conclusion that inspite of there being a reservation, since the roster point could not reached for handicapped persons in terms to roster therefore, the action on the part of the respondents is justified. The learned Single Judge also came to the conclusion that the respondents have come out with a specific case that reservation is worked out and points are fixed in the roster and as and when the vacancies arise, the appointment would be made. ( 6. ) THE learned Single Judge came to the conclusion that with reference to the plea raised by the petitioner in the rejoinder, the rejoinder was not available at the time of hearing. The learned Single Judge also relied upon the statement made before him on behalf of the petitioner wherein learned counsel for the petitioner made a categorical statement that "he DOES NOT WANT TO RELY upon THE REJOINDER AND WANTS TO ARGUE THE matter ON THE BASIS OF RECORD AVAILABLE ON record WITHOUT THE REJOINDER. " The aforesaid submission was accepted by the learned Single Judge and thereafter the learned Single Judge proceeded to decide the case on the basis of petition and return. ( 7. ) ON the basis of the aforesaid, it is to be seen that the main grievance of the petitioner made in the petition along with the prayer if it is to be understood was only to the extent that no reservation has been provided in the aforesaid two advertisements, Annexure P/3 and P/4 by the respondents up to 6% reservation for the handicapped persons. ( 8. ( 8. ) THE respondents while filing the return have stated that the grievance which is highlighted in the petition that no reservation was made was not correct. The respondents have also stated that reservation was provided but since no one was selected towards the quota of 6% reservation for handicapped category, therefore, no person in that category was appointed against the said quota. It was also stated that the matter with regard to reservation is covered by the roster point and the candidates belonging to the reserved category could not reach to the roster point, therefore, it was not possible for the respondents to appoint any person belonging to handicapped category. ( 9. ) ON the basis of the same the learned Single Judge, according to us rightly came to the conclusion that reservation has been provided. At the time of arguments, the counsel appearing for the appellant also could not pointed out that no reservation has been provided. While arguing the present appeal, an attempt was made on behalf of learned counsel for the appellant that even assuming that the reservation was made but the reservation as such had not been properly applied. ( 10. ) THE circular on which much emphasise is placed is the circular of the Govt. of India, Ministry of Personnel, Public grievances/department of Personnel and Training dated 27. 02. 1996 which is Annexure IA-4. It is submitted that the circular issued on the basis of same by the State Govt. is i. A.-2 dated 22. 11. 02. Para 3 of the aforesaid circular dated 27. 02. 96 is relevant which is reproduced as under:- "3. CALCULATION OF THE NUMBER of VACANCIES although the recruitment of physically handicapped persons would be only against posts identified a suitable for them, while computing the vacancies to which the reservation would apply, the total number of vacancies occurring in the said Group would be taken into account i. e. the 3% shall have to be computed on the basis of vacancies occurring in both the identified and non identified posts in Group C and Group D. 3. 2 All Head of Departments shall maintain a separate 100 point register for this purpose in which each cycle of 100 points shall be divided into three blocks, comprising the following points : ist Block -Point No. 1 to Point No. 33 2nd Block - Point No. 34 to Point no. 67 3rd Block - Point No. 68 to Point no. 100 all the vacancies reported by the different appointing authorities will be entered in this Register for each Group of post (Group C and D ). The account shall be maintained on year to year basis separately for Group C and group D posts/services and will be closed annually. For each Block of vacancies, there shall be reserved one vacancy for the physically handicapped in post/grades identified as suitable for one or more of the categories of the physically handicapped i. e. when there are 33 vacancies in a group, one vacancy is to be reserved for the physically handicapped. After the computing all the vacancies and determing the reservation for the handicapped, block-wise, in the manner indicated above, the Head of the Department will be required to distribute these reserved vacancies for the handicapped among different appointing authorities in the light of availability of vacancies, in the identified categories under the various appointing authorities. Care should also be taken that 3% reservation for physically handicapped is, as fare as possible, distributed equally among the three sub-categories i. e. the blind, the deaf and the appropriate identification. If the number of vacancies is such as to cover only one block or two, discretion as to which category of the handicapped should be accommodated first should vest in the Head of the department. He will decide this on the basis of the nature of the post, the level of representation of the specific handicapped category, in so far as that can be ascertained. 3. 4 In the event of the reservation not being utilized in the same block in which it fell due, it shall be carried forward to the next block or blocks as the case may be in the same year. In such exigencies where the reservation could not be carried forward in the subsequent three recruitment years at the end of which the reservation shall be deemed to have lapsed. 3. 5 Mutual exchange in the event of non-availability of specific handicapped category is permissible. In such exigencies where the reservation could not be carried forward in the subsequent three recruitment years at the end of which the reservation shall be deemed to have lapsed. 3. 5 Mutual exchange in the event of non-availability of specific handicapped category is permissible. TO ILLUSTRATE: in an organization, the following vacancies in Group C in various categories of posts, as indicated against each, are to be filled " clerks 40 steno Grade D 20 staff Car Driver 15 sc. Assistant 35 research Asstt. 15 lab Assistant 10 total No. of posts 135 out of these posts, only Clerks, steno Grade D and Laboratory assistant in the organization are identified as fit to be manned by the physically handicapped candidates, whereas the other categories are not identified. Both the Clerks and Steno grade D are identified as suitable for orthopaedically handicapped (One arm, one leg) and blind and partially blind; whereas the post of Laboratory assistant is identified for orthopaedically handicapped (one arm, one leg) and deaf and partially deaf. In the present case, while working out the reservation for the physically handicapped, the total number of vacancies of 135 has to be taken into account (though the vacancies in the identified post are only 70 ). Accordingly, the number of vacancies reserved for the physically handicapped candidates would be 4, these vacancies would be distributed amongst the identified posts of Clerk, steno Grade D and Laboratory assistant. The reservation points the physically handicapped will utlize will be on the rosters of these identified posts. This has been amplified in para 3. 8 while distributing the vacancies among various categories of posts identified for physically Handicapped candidates, the head of Department may ensure that this reservation is distributed equally among the three sub-categories of blind, deaf and orthopaedically handicapped consistent with appropriate identification for the posts. In this case, since the post of Lab Assistant is identified for Deaf and partially deaf also, the reservation for deaf can be utilized against this post and the remaining vacancies can be distributed between Clerks and Steno Grade D. 3. 6 The reservation worked out as above may be reported to the recruiting agency while making recruitment to the identified posts. 3. 7 The manner in which the physically handicapped persons so selected, are to be adjusted is as under. 3. 6 The reservation worked out as above may be reported to the recruiting agency while making recruitment to the identified posts. 3. 7 The manner in which the physically handicapped persons so selected, are to be adjusted is as under. 3. 8 Reservation for SC/st/obcs may be called vertical reservation and the reservation for physically handicapped persons as horizontal reservation. Horizontal reservations cut across vertical reservation (in what is called interlocking reservation) and the persons selected against the physically handicapped quota have to be placed in the appropriate category; if he belongs to SC category, he will be placed in that quota and will utilize an sc Roster point and similarly if he belongs to General category, he will be placed in that category and will utilize a general category roster point. Similarly, if he belongs to OBC or ST category, he will utilize an OBC or an st roster point. FOR EXAMPLE : If in a given year there are 200 Group C vacancies, the reservation for SCs will be 30, for STs it will be 15, for OBCs it will be 54 and for General Category it will be 101. The vacancies reserved for physically handicapped will be calculated as per the procedure enumerated in para 3. 3 above. The vacancies for the physically handicapped that year will come to six and these will have to be distributed among the Visually handicapped, the orthopaedically handicapped and the hearing handicapped as explained in para 1. 1. Once these six candidates are selected against the identified posts and it is seen that one belongs to the sc category, then the one physically handicapped SC candidate will be adjusted against the 15 ST vacancies, the two physically handicapped candidate against the 101 general category vacancies respectively. In other words, the appointment is to be made on the basis of the physical handicap and the adjustment in the roster is to be made according to the category to which the person belongs. " ( 11. ) ON the basis of the same, an attempt was made by learned counsel for the petitioner that in the present case in fact the reservation as per the circular has not been followed of 6% of the reservation for the handicapped candidates. ( 12. ) IT was argued on behalf of the respondents that the aforesaid plea was raised by the petitioner in his rejoinder. ( 12. ) IT was argued on behalf of the respondents that the aforesaid plea was raised by the petitioner in his rejoinder. The facts pleaded in the rejoinder in para 4 have already been reproduced in the earlier paragraph of the judgment. On this basis, it is submitted by the respondents that though the plea was raised but before the learned Single judge, a categorical statement was made by learned counsel for the petitioner that he does not want to rely upon the rejoinder and wants to argue the matter on the basis of record available on record without the rejoinder. Thus in view of such a conduct of the counsel for the petitioner, the learned Single Judge has decided the lis on the basis of facts so alleged in the petition as well as in the return. ( 13. ) THE original petition filed by the petitioner was amended and new paragraphs 5. 7-A and 5. 7-B were inserted. The reading of the aforesaid paragraphs, according to us do not make out a case entitling the present appellant to raise a point that reservation though was made but was not properly applied. The plea as such only relates to the aspect that the plea raised by the respondents that reservation is provided is not correct. There is nothing even in the pleadings of the petition that after having reserved 6% of the posts for physically handicapped persons, the same was not properly followed. This particular plea was only made for the first time by the petitioner in para 4 of the rejoinder. ( 14. ) ON the basis of the aforesaid, the question in the present case is that though a plea was raised by the present appellant by way of rejoinder to the extent that reservation though was made but was not properly followed but the said plea was amended by the learned counsel for the petitioner then the question is whether the learned appellate Court is within its jurisdiction to permit the petitioner to raise the question or plea which was already abandoned on behalf of the petitioner by the learned counsel for the petitioner/appellant. The question as such has been considered by the Apex Court in 2006 (6) SCC 467 Sanjay kumar and Others Vs. Narinder Verma and Others. The relevant para 13 reads as under:- "13. The question as such has been considered by the Apex Court in 2006 (6) SCC 467 Sanjay kumar and Others Vs. Narinder Verma and Others. The relevant para 13 reads as under:- "13. Mr Raju Ramachandran, learned senior Counsel appearing for the third respondent in Civil Appeals Nos. 5430-34 of 2004, however, urged that one of the grounds of challenge before the division Bench was that the statutory qualification was discriminatory. He, therefore, contended that in view of the said contention it was open to the High court to read down the offending Rule instead of striking it down. Having read the portion of the impugned judgment on which this argument is based, we are not satisfied that such a contention was really urged. It is not in dispute that the writ petitions were not directed towards challenge to the applicable Rules. Merely because an argument was made in the letters patent appeal that the Rules were discriminatory, it was not open to the high Court to have struck down the rules. The Letters Patent appeals could have proceeded only on the basis of the writ petitions and the judgment of the learned Single Judge, which was being challenged. There being no substantive challenge to the Rules, there was no question of striking down the Rules, nor was there any situation of reading down the Rules. Reliance placed by Mr Raju Ramachandran on the judgment of this Court in Umesh chandra Shukla v. Union of India is of no avail. That was entirely a different situation where this Court was of the view that the applicable Rules had not been followed as the select list had been interfered with by exercising a power which did not arise from Rule 18 of the applicable Rules to fix the minimum marks in order to include candidates in the final select list. Such is not the situation before us and, therefore, this authority is of no help to us. " ( 15. ) THUS, on the basis of the ratio laid down by the Apex court (supra), it is crystal clear that even though the plea was raised and the plea as such was not pressed upon or even waived then the party as such was not justified in insisting the same plea before the learned appellate Court which was already abandoned. ( 16. ( 16. ) IN this reference, it is also pertinent to note that the prayer of the petitioner was that the entire selection process be quashed. The persons who were already selected, for the purposes of quashing the entire selection process should have been impleaded as a party. In the present case, petitioner has not chosen to implead them as the necessary party. The Apex Court in 1996 (2) SCC 19 Rajbir Singh Vs. State of Haryana and another and 1996 (7) SCC 759 (V. P. Shrivastava Vs. State of M. P. and Others) has held that there cannot be effective adjudication in the absence of necessary parties as respondents and accordingly the petition suffers with non joinder of necessary parties as the respondents. In view of the aforesaid, the submission so made by learned counsel for the appellant that reservation was not properly followed even otherwise cannot be accepted in the absence of necessary parties who are selected and whose rights may be adversely affected in case the petitioner is permitted to raise the question as such. ( 17. ) IN view of our considered opinion, the plea which was raised on behalf of the petitioner/appellant that though the reservation was made but the same was not properly followed or implemented in terms to circulars issued by the central Govt. as well by the State Govt. cannot be permitted to be raised. ( 18. ) UNDER the circumstances, we agree with the findings which have been arrived at by the learned Single Judge that the petitioner/appellant was permitted to participate in the selection but he could not succeed and alternatively the learned Single Judge has also rightly came to the conclusion that though the reservation was provided but in terms to the roster point, the vacancies were not available for them, as per the roster for the handicapped candidates. ( 19. ) CONSEQUENTLY, the present writ appeal being devoid of substance is dismissed without any order as to costs.