Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 1514 (RAJ)

Dhudi Chaudhary v. R. P. S. C. , Ajmer

2010-08-19

VINEET KOTHARI

body2010
JUDGMENT Hon'ble KOTHARI, J.- The writ petitioner Ms. Dhudi Chaudhary; a physically handicapped person being disabled by both the hands applied for the post of Lecturer (History) advertised by the respondent - RPSC and claimed such appointment against the reserved vacancies for physically handicapped persons. The said advertisement was issued in the year 2001 and the petitioner was called for the interview vide Annex. 3 dtd. 4.1.2003, but was later on not offered the appointment on the ground that the physically disability in the case of the petitioner did not fall within the ambit and scope of disability prescribed for said position, namely, OUBL (orthopaedically handicap in one tog or both legs). This category of OUBL did not include the petitioner's disability which was described in the medical certificate as "Ankylosis right elbow in 90% flexion partial Ankylosis right wrist and finger, amputation thumb and index finger left panel, Ankylosis left wrist in 90% extension." The total disability was measured by the Medical Board at 60% in the said certificate. The petitioner claimed the relief in the writ petition that the petitioner deserves to be given the benefit of reservation on the said post by virtue of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the PWD) Act, 1995). The petitioner also challenged the validity of Rules framed by the State Government under the said Central enactment known as Rajasthan Employment of Disabled Persons Rules, 2000 (hereinafter referred to as the Rules of 2000) as amended vide notification dtd. 10.10.2002 issued by the State Government. 2. The second writ petition filed by Mr. Mahesh Kumar Monga is by the person who was also physically handicap in the category of OL/BL and was selected for the said appointment, but could not be provided this appointment on account of exparte interim order passed in the aforesaid first writ petition No. 1567/2003 filed by the petitioner Ms. Dhudi Choudhary in which on 10.4.2003, a coordinate Bench of this Court directed the respondents to keep one post of Lecturer (History) , which was the only post available, reserved for the petitioner Ms. Dhudi Chaudhary. 4. By the consent of the parties, final arguments were heard in both the writ petitions and both the writ petitions are proposed to be disposed of by this common order. 5. Mr. Dhudi Chaudhary. 4. By the consent of the parties, final arguments were heard in both the writ petitions and both the writ petitions are proposed to be disposed of by this common order. 5. Mr. C.S. Kotwani, learned counsel for the petitioner Ms. Dhudi Chaudhary submitted that Section 33 of the PWD Act which provides for reservation for all the three categories of physically disabled persons also provides for locomotor disability which is applicable in the present case and does not make any distinction for physical disability in the form of OUBL and disability of hands like in the case of the petitioner viz. Ankylosis and is therefore, while issuing the advertisement Annex. 1, the. respondent- State could not have provided disability of OL and BL only to be given such benefit of quota. reservation for the post of School Lecturer (History) and therefore, to this extent, the condition in advertisement as well as Rules of 2000 aforesaid deserve to be quashed. He further submitted that by the later notification dtd. 10.10.2002, the Schedule I and Schedule II to the said Rules of 2000 have been altogether deleted by the State Government and therefore, the said category of disability like OL and BL specified in the advertisement and in the said Schedule I and Schedule II of the Rules of 2000 cannot put a ban on the appointment of the present petitioner to the said post and the amendment in the Rules of 2000 by the notification dtd. 10.10.2002 deserves to be given retrospective effect. Relying upon the decision of learned Single Judge in the case of Arvind Kumar Joshi vs. State of Rajasthan reported in 2007(11) WLC 402. == RLW 2006(4) Raj. 3149, the learned counsel for the petitioner submitted that bifurcation of disability could not be made by the respondent-State for the purpose of reservation in terms of Section 33 of the PWD Act. 6. Per contra, Mr. G.R. Calla, learned counsel appearing for the State and Mr. J.P. Joshi, appearing for the RPSC vehemently, opposed the submissions made by the learned counsel for the petitioner and urged that Section 33 of the Act of 1995 clearly permitted the State Government to identify the post for each of the disabilities prescribed in Section 33 of the said Act and that identification of post was done by the respondent- RPSC in the advertisement Annex. 1 and the disability of category of OL & BL was clearly prescribed for the said post of School Lecturer (History) and the petitioner having entered in the said competition with clear open eyes and fully well knowing that her disability does not fall in the category of OL & BL, is not entitled to any relief or direction from this Court seeking mandamus against the respondents for her appointment on the said position. 7. On the other hand, Mr. B.S. Sandhu appearing for Mr. Mahesh Kumar Monga who has also filed second writ petition No. 5869/2003 submitted that his client Mr. Mahesh Kumar Monga suffered the disability falling in the category of OL/BL and was declared successful in the said competition and was entitled to be appointed as such in view of reservation for disability which he suffered and consequently in preference over the present petitioner Dhudi Chaudhary, the petitioner in connected writ petition, namely, Mahesh Kumar Monga is entitled to be given said appointment lie also relied upon the decision of the Hon'ble Supreme Court in the case of Bhupenderpal Singh vs. State of Punjab reported in (2000) 5 SCC 262 and Dhananjay Malik vs. State of Uttaranchal reported in (2008) 4 SCC 171 in support of his contention that the petitionpr Dhudi Chaudhary having unsuccessfully participated in the process of selection without any demur, was estopped from challenging the selection crileria itself, now before this Court. 8. I have heard the learned counsels at length and bestowed my thoughtful consideration to the rival pleadings, statutes and the case laws cited at the Bar. 9. In the considered opinion of this Court, the present writ petition of petitioner Dhudi Chaudhary deserves to fail and is liable to be dismissed, whereas the counter writ petition of Mahesh Kumar Monga deserves to be allowed. 10. Section 33 of the PWD Act, 1995 relevant for the present purpose is reproduced hereunder for ready reference: "33. 9. In the considered opinion of this Court, the present writ petition of petitioner Dhudi Chaudhary deserves to fail and is liable to be dismissed, whereas the counter writ petition of Mahesh Kumar Monga deserves to be allowed. 10. Section 33 of the PWD Act, 1995 relevant for the present purpose is reproduced hereunder for ready reference: "33. 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 per cent, each shall be served for persons suffering from:- (i) blindness or low vision; (ii) hearing impairment (iii) locomotor disability or cerebral palsy in the posts 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 conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 11. The decision of coordinate Bench of this Court which was heavily relied upon by the learned counsel for the petitioner Dhudi Chaudhary in the case of Arvind Kumar Joshi vs. State of Rajasthan (supra), the coordinate Bench of this Court held that identification of the post which was made by the Central Government way back in the year 1986 providing reservation for blind persons deserves to be applied by the State Government in the Rules of 2000 also and accordingly the petitioner, a blind person in that writ petition deserved to be given appointment even though in the concerned advertisement, the State Government did not identify the said post for blind persons. Allowing the writ petition, the learned Single Judge of this Court in para 14 to 17 of the said judgment held as under: "14. The Government of India while accepting the report of the Expert Committee vide their office memorandum No. F. 36034/4/86/Estt. (SCT), dated 25th November, 1986 identified the jobs for providing reservation to the physically handicapped persons in Group A and B posts as would be evident from the extract of Serial No. 164 and 165 of the Appendix of the said O.M. which is reproduced hereunder: S.No. Nco Title Group Physical Categories Requirement of the Disabled Suitable Jobs. 1 2 3 4 5 6 164. College ST Teachers (A) 165. 1 2 3 4 5 6 164. College ST Teachers (A) 165. Lecturer BD; BLA, OL (Architecture) LA, PB, B Nature of Work Performed Working 7 8 College Teachers (Architecture College The work is performed Teachers (Arts.) mostly inside. The work placed is well lighted. They teach college students one or more Arts subjects such as History, Geography, Commerce, Sociology, Philosophy, Economics, Pol. Science, Indian or Foreign Languages such as Hindi, Sanskrit, English, etc. deliver lectures and conduct seminars. Set examination papers, conduct examination and evidence answer books. Maintain class, registers and records, May conduct research and guide research work. PO : Partial Deaf. OL: One leg affected. BLA : Both legs + arms affected, B Blind, PB : Partially blind." 15. A careful perusal of the aforesaid appendix would make it clear that the Government of India identified the post of College Lecturer for providing reservation to the blind not only in language subjects such as Hindi, Sanskrit, English, etc. but also in subjects like History, Geography, Commerce, Sociology, Philosophy, Economics and Political Science. When the Act of 1995 came in force, identification of various posts for persons having different kind of disabilities already made in O.M. dated 25th November, 1986 formed basis for such identification statutorily required by Section 32 of the Act of 1995. Such identification made by the Government of India continued to remain valid for providing reservation to disabled persons with reference to Section 32 of the Act of 1995 till this list of identified posts was updated by the Government of India vide their Notification No. 178 dated 30th June, 2001. In this list also, the post of University/College/School Teacher for the blind and low-vision was included as identified post for providing reservatior to them at Serial No. 24-27 on page 592 thereof. In this list also, the post of University/College/School Teacher for the blind and low-vision was included as identified post for providing reservatior to them at Serial No. 24-27 on page 592 thereof. In the circumstances, therefore, when the post of College Lecturer and that too in the language subject of Hindi stood identified by the Government of India with reference to the provisions of Section 32 of the Act of 1995, much earlier than the posts in question were advertised, there was no reason not to extend the benefit of reservation to the blinds in the State Government to a lower post like School Lecturer (Hindi) as one for which reservation could be given to the persons with disability of blindness, this difficulty was over come by notification dated 10th October, 2002 by which Rules 4 and 6 of the Rules of 2000 were amended thereby deleting Schedule I and II appended thereto and adopting identification on the posts made by Government of India. 16. Identification of the posts on which reservation can be given to the persons with disability has to be made by the appropriate government with reference to Section 32 of the Act of 1995. "Appropriate government" has been defined in Section 2(a) to mean (i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, the Central Government, (ii) in relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government. "Blindness" has also been defined in Section 2(b) of the Act of 1995 according to which blindness refers to a condition where a person suffers from either total absence of sight; or visual acuity not exceeding 6/60 or 20/2000 (snellen) in the better eye with correcting lenses; or limitation of the field of vision subtending an angle of 20 degree or worse. It is difficult to appreciate that when blindness for the purpose of the Act of 1995 is defined by a single provision, namely, Section 2(b), how can the blind claiming reservation with reference to provisions of that Act, be treated dissimilarly by two different appropriate Governments particularly when much prior to the recruitment in question, the post of School Lecturer (Hindi) stood identified by one such appropriate Government (Government of India) which was later adopted by another. Curiously enough, when this very post was identified for the purpose of reservation of blinds by the Government of India in exercise of very same power which the State Government also possessed, how possibly could one appropriate Government feign complete blindness to such identification made by another. Such a dichotomy is very hard to appreciate and difficult to approve. Impediment of law if there was any in giving reservation to the blind on the post of School Lecturer (Hindi) was already removed one when the Government of Rajasthan decided to adopt the identification made by the Government of India by amending Rules of 2000 vide Notification dated 10.10.2002. This adoption of identification of posts which was made way back in the year 1986, in my view would relate back (sic!) to the identification as originally made by the Government of India at least from the date when Rules of 2000 were enforced and would be applicable from their inception because the source of power for both the Governments in making such identification is traceable to the same common provision, namely, Section 32 of the Act of 1995 and the recipient of the benefit of the reservation, namely, blind is also common and identifiable with reference to very same provision of the definition of blindness namely, Section 2(b) of the Act of 1995. If this were not to be interpreted so, it would simply tantamount to discriminating against the persons with disability of blindness in the State of Rajasthan vis-a-vis those claiming similar benefits with reference to the identification made by the Central Government in its services in the State of Rajasthan in giving effect and implementation of the very same Act of 1995 thereby treating equals unequally violating their right in equality enshrined in Articles 14 and 16 of the Constitution of India. Action of the respondents in not treating the petitioner eligible for reservation under the Rules of 2000 read with Section 32 of the Act of 1995 being arbitrary, capricious and discriminatory is liable to be declared illegal and unconstitutional and is accordingly so declared. 17. In the result, this writ petition is allowed. The respondents arc directed to treat the petitioner as eligible for appointment on the post of School Lecturer (Hindi) and accordingly consider his case for appointment and if found suitable appoint him on the said post with reference to the advertisement No. 2/2001-2002 issued by the-R.P.S.C. Such appointment when made shall take effect from the date of appointment given to the last candidate appointed on the post of School Lecturer (Hindi) pursuant to the said advertisement. However, since the petitioner is already working on the post of Teacher Grade III, he shall be entitled to only notional benefits. His salary shall be notionally fixed with reference to the said date of appointment. He shall however be entitled to other consequential benefits including seniority. etc. Compliance of this judgment shall be made within a period of two months from the date of service of its copy on the respondents." 12. In the opinion of this Court, the facts obtaining in the case of Arvind Kumar Joshi (supra) were distinguishable from the facts of the present case because as observed in para 15 of the said judgment, in that advertisement the State Government did not identify the post of School Lecturer (Hindi) as one for which reservation could be given to the person with disability of blindness, but in the present case, the State Government has identified the post of School Lecturer (History) for locomotor disability in the form of OIJBL which the petitioner does not admittedly have. The identification of post of School Lecturer (History) in the advertisement with disability of OUBL cannot be said to be perse arbitrary because the person with both hands not working cannot be expected to write anything on back board for the benefit of students, whereas the person with disability of one leg or both legs can still manage to write and teach the students in his class. The same is not the position with the blind person, while for the person whose both hands are impaired, it is impossible for him to write anything on the black board, a blind person with both hands working can do so. It is for this reason that in the case of Arvind Kumar Joshi where the post was not identified for the post of School Lecturer (Hindi) for the person with disability of blindness, the learned Single Judge of this Court felt persuaded to adopt the identification of post made by the Central Government way back in the year 1986 and thus came to the rescue of the petitioner and provided such benefit of reservation to him, but in the present case, the post is specifically identified for particular kind of disability for which the appropriate Government was specifically empowered to do so in Section 33 of the PWD Act. 1995. Thus such identification having been made by the State Government in the year 2000 with promulgation of aforesaid Rules of 2000 and that identification of post having been adopted in till advertisement Annex. 1 by the respondent - RPSC, it cannot be said that the State Government or the respondent- RSPC exceeded their jurisdiction or (ommitted any illegality in identification of such post for reservation for the person with physical disability in the form of locomotor disability of particulate nature, namely OL/BL. 13. The contention of the learned counsel for the petitioner that with the amendment by the notification dtd. 10.10.2002 whereby both Schedule I and Schedule II of Rules of 2000 were deleted by the State Government, the petitioner should also be held entitled to the said benefit of reservation is misconceived. It is well settled that the subordinate legislation unless specifically made retrospective in effect cannot be given such retrospective effect. The golden Rule of interpretation is plain language plain interpretation. The deletion of Schedules and consequently specifying nature of disability prescribed in the Schedules having been deleted, such amendment would apply only with prospective effect w.e.f. 10.10.2002, whereas in the present case, the advertisement in question was issued admittedly in the year 2001, at which point of time, prescribing of particular nature of physical disability in terms of Sections 33 of the PWD Act cannot be faulted. Therefore, this contention of the learned counsel for the petitioner deserves to be rejected and is hereby rejected. 14. Therefore, this contention of the learned counsel for the petitioner deserves to be rejected and is hereby rejected. 14. There is also some force in the contention of the learned counsel for the respondent Mr. B.S. Sandhu, who is also petitioner before this Court in the connected writ petition that the petitioner cannot challenge this selection process after having entered into fray with open eyes about the condition of reservation for persons with physical disability of a particular nature, which to the best of her knowledge, she knew very well in advance that she did not have that kind of physical disability, namely, OL/BL and therefore, as per the judgments of Hon'ble Supreme Court relied upon by him, the petitioner is estopped from challenging the said selection process. It is true that the petitioner Mahesh Kumar Monga has suffered for all this period since the year 2003 for 7 years and could not be appointed on the said post though he had the prescribed physical disability and was selected in the said selection process, but could not be provided appointment on account of exparte interim order granted by the coordinate Bench of this Court which has continued for all these years. 15. Consequently, this Court is of the opinion that there is nothing illegal about the Rules of 2000 and the amendment in the Rules of 2000 vide notification dtd. 10.10.2002 cannot be given retrospective effect and the judgment relied upon by the learned counsel for the petitioner in the case of Arvind Kumar Joshi (supra) is distinguishable from the facts of the present case and the writ petition filed by the petitioner Ms. Dhudi Chaudhary deserves to be dismissed and the same is accordingly dismissed with no orders as to costs. The connected writ petition No. 5869/2003 filed by Mahesh Kumar Monga deserves to be allowed and the same is allowed and the respondents are directed to give appointment to him against the said vacant post, which was kept reserved for another petitioner Ms. Dhudi Chaudhary within a period of two months from today. The said successful petitioner Mukesh Kumar Monga shall also be entitled to consequential benefits in the form of notional seniority etc., however, no monetary benefits can be granted to him for this passed period of seven years from 2003 to 2010. 16. Consequently, the writ petition No. 1567/2003 filed by Ms. The said successful petitioner Mukesh Kumar Monga shall also be entitled to consequential benefits in the form of notional seniority etc., however, no monetary benefits can be granted to him for this passed period of seven years from 2003 to 2010. 16. Consequently, the writ petition No. 1567/2003 filed by Ms. Dhudi Chaudhary is dismissed and the writ petition No. 5869/2010 filed by Mahesh Kumar Monga is allowed. No order as to costs.