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2012 DIGILAW 28 (ORI)

Alaka Behera v. State of Orissa

2012-01-16

ARUNA SURESH

body2012
JUDGMENT ARUNA SURESH, J 1. Petitioner had filed her candidature for consideration for the post of Sikhya Sahayak (88) under Physically Handicapped category for Basudevpur Block under Bhadrak district in pursuance of an advertisement dated 14.10.2006. As per the advertisement, selection to the post of SS was to be made only on the basis of the marks secured in B.A., B.Ed. Examination. Petitioner claims that she had secured 45.22% of marks in the qualifying examination of B.A., B.Ed. Her name appeared in the provisional list at SL.No.59. She was duly selected for engagement as SS under the Physically Handicapped category & was called upon to sign the agreement. Petitioner accordingly signed the agreement, but was not issued with any engagement letter on the plea that the said list was to be revised as the Orissa Reservation of Vacancies Act had not been followed. Her grievance is that since Physically Handicapped category itself is a reserved category independent of the reservation for the post of S.C., S.T. & SEBC candidates, the authorities published a final select list by giving reservation within reservation & the S.C. & S.T. candidates were accommodated in the vacancies reserved under the Physically Handicapped category & the person having secured lesser marks have been given engagement ignoring her claim. 2. Respondents have disputed the claim of the Petitioner. It is averred in the counter affidavit that no post under the SEBC Female Physically Handicapped category of B. Ed. Pool was to be filled up during the, last selection process of Sikhya Sahayak, 2007-07. It was on the basis of the Government instruction that different categories, such as, SC, ST, SEBC & UR were to be filled up keeping in view the number of vacancies duly published & as per the guideline, the Physically Handicapped person falling in any of those category was entitled to claim reservation in that category only. It is also submitted that since the panel list has expired with lapse of time of one year the Petitioner has no right to claim any appointment. 3. Learned Counsel for the Petitioner has submitted that the Respondents have ignored the decision of the Supreme Court in the case of Mahesh Gupta & ors v. Yashwant Kumar Ahirwar, reported in (2007) 8. S.C.C. 621 wherein it is clearly held that there cannot be any reservation within reservations. 3. Learned Counsel for the Petitioner has submitted that the Respondents have ignored the decision of the Supreme Court in the case of Mahesh Gupta & ors v. Yashwant Kumar Ahirwar, reported in (2007) 8. S.C.C. 621 wherein it is clearly held that there cannot be any reservation within reservations. He has submitted that in view of this Judgment, the post reserved for Physically Handicapped category should be filled from the handicapped candidates as per the merit & the authorities should not again reserve the post for the persons from handicapped category. 4. The State has adopted a policy decision for filling up to reserved posts for handicapped persons in view of enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995, (hereinafter to be referred to as "Act, 1995"). In terms of the Act, 1995, the States were obliged to make reservation for handicapped persons. Therefore, the question of making any further reservation on the basis of class, creed or religion ordinarily might not arise as handicapped persons constitute a special class. The object behind rehabilitation of disable persons is to enable them to take fresh task involving physical ability or mental alertness & also to make them economically independent & to develop their own personality & overlook the attitude of the society which looks upon them as an object of charity & pity for the physical deformity he/she suffers from. The advertisement has specifically made special reservation for the handicapped persons irrespective of the category to which they belong whereas various other vacant posts were required to be filled up by SC/ST, OBC/SEBC candidates. However, the advertisement does not further classify the handicapped candidates as belonging to SC/ST, OBC/SEBC & general category candidates. The rule of executive construction has to be kept in mind while considering the impugned advertisement & the selection made by the Government. The interpretations given by the Petitioner to various clauses of the advertisement are inconsistent & devoid of any merit. Petitioner did not keep in mind the rule of executive construction followed by the Department while advertising the vacancies & in the final selection of candidates. 5. In Mahesh Gupta's case (supra) where similar question of law crept up for consideration, it was observed:- "11. The State adopted a policy decision for filling up the reserved post for handicapped persons. Petitioner did not keep in mind the rule of executive construction followed by the Department while advertising the vacancies & in the final selection of candidates. 5. In Mahesh Gupta's case (supra) where similar question of law crept up for consideration, it was observed:- "11. The State adopted a policy decision for filling up the reserved post for handicapped persons. A special drive was to the launched therefore. The circular letter was issued only for the said purpose. A bare perusal of the said circular Letter date 29.3.1993 would clearly show that State had made 3% reservation for blinds & 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object & purport sought to be achieved by reasons of Clause (4) thereof. 12. Disability has drawn the attention of the worldwide community. India is a signatory to various international treaties & conventions. The State, therefore, took policy decision to have horizontal reservation with a view to fulfill its constitutional object as also its commitment to the international community. A disable is disable. The question of making any further reservation on the basis of cast, 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 persons at the outset, but as noticed hereinbefore the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Caste & Scheduled Tribe candidates & other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes & general category candidates. 14. Furthermore, when the decision was taken the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (for short "the 1995 Act") had come into force. In terms of the 1995 Act, the Sates were obligated to make reservation for handicapped persons. The Sate completely lost sight of its commitment both under its own policy decision as also the statutory provision." 6. Thus, is clear that Petitioner could have been considered as handicapped & also SEBC candidate & she could have been given engagement in either of the vacancies. Therefore, I find that the decision taken by the authorities is not correct & is contrary to the observation of the Apex Court in Mahesh Gupta's case (supra). Thus, is clear that Petitioner could have been considered as handicapped & also SEBC candidate & she could have been given engagement in either of the vacancies. Therefore, I find that the decision taken by the authorities is not correct & is contrary to the observation of the Apex Court in Mahesh Gupta's case (supra). It is needless to say that in W.P. (C) Nos. 5606 & 5608 of 2008 filed by the candidates, who had applied in pursuance of the same advertisement dated 14.10.2006 direction was issued to the Collector, Bhadrak to reconsider the matter so far as it related to the selection of the Petitioners in those two Writ Petitions in consonance with the decisions of the Supreme Court & the said two Petitioners have already been given engagement in compliance of the direction issued. 7. Hence, the petition is allowed. The Collector, Bhadrak is directed to reconsider the matter relating to the appointment of the Petitioner for the post of SS favorably strictly in consonance with the decision of the Supreme Court in Mahesh Gupts's case (supra) within two months of receipt of certified copy of this order. The Petitioner be accommodated in one of the vacancies, if lying vacant & in case no such vacancy is available, Respondents may consider the desirability of creating supernumerary post for her engagement. Petition allowed.