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2012 DIGILAW 522 (JK)

Naseema Bashir v. State of J&K and Ors.

2012-08-23

M.M.KUMAR, MUZAFFAR HUSSAIN ATTAR

body2012
Muzaffar Hussain Attar. The Jammu and Kashmir Service Selection Board (for short SSB) issued advertisement notice No.01/08 dated 22nd April, 2008, whereunder besides others posts of teachers were also notified. The selection/appointments were to be made in all Districts of State of J&K. In respect of post(s) of teachers in every District, it was also provided that partially impaired and one leg handicapped would be eligible to seek consideration for being selected/appointed on the post of teacher. Besides the appellant, one Sarfaraz Maqbool Bhat, sought consideration for being selected/appointed on the post of teacher in District cadre Baramulla, as handicapped person(s). The selection list was issued by the SSB. The appellant did not figure in the said list, which constrained her to challenge the same in SWP No. 182/09. Sarfaraz Maqool Bhat also filed SWP No. 1006/09. The appellant” s disability was “locomotor upper limb” whereas, Sarfaraz Maqool Bhat was suffering from “locomotor disability in right leg”. The appellant had impleaded one Shabir Ahmad Dar as respondent in the writ petition and sought quashment of selection list to his extent. Sarfaraz Maqool Bhat was impleaded as party respondent in SWP No. 182/09. 2. The claim of the appellant in the writ petition was that she having secured 43.27 marks as compared to respondent No.5 (Shabir Ahmad), who had only secured 33.67 marks, she should have been selected/appointed as a handicapped person in view of her superior merit. The official respondents in their reply affidavit filed before the writ court have taken a definite stand that the appellant was not eligible in terms of the advertisement notice as also government order No. 62-SW 1001 dated 13th March 2001 and her application form was entertained by mistake. It was also stated that the respondent Shabir Ahmad Dar, though, was eligible for being considered for being selected/appointed on the post of teacher as handicapped person but since he had secured only 33.67 marks he could not be recommended for being appointed on the post of teacher as another physically handicapped person had secured 35.60 points. Ld single judge considered and disposed of the writ petition of the appellant as also Sarfaraz Maqool Bhat, by its order/judgment dated 10th of June 2011. The writ petition of the appellant was dismissed and that of Sarfarqz Maqool Bhat was allowed. In the writ petition of Sarfaraz Maqool Bhat, respondents were directed to proceed in the matter. Ld single judge considered and disposed of the writ petition of the appellant as also Sarfaraz Maqool Bhat, by its order/judgment dated 10th of June 2011. The writ petition of the appellant was dismissed and that of Sarfarqz Maqool Bhat was allowed. In the writ petition of Sarfaraz Maqool Bhat, respondents were directed to proceed in the matter. Sarfaraz Maqool Bhat, petitioner, in SWP No. 1006/09 because of his merit was selected for being appointed on the post of teacher as a handicapped person but his appointment could not mature in view of the interim direction passed by the Writ Court in SWP No. 182/09. 3. Mr. M.A. Qayoom ld counsel, for appellant submitted that the impugned judgment is unsustainable in law, in as much as, the appellant was subjected to selection process and she secured 43.27 points and the respondents were, thus, under legal obligation to recommend her for being appointed on the post of teacher in District cadre Baramulla. Ld counsel also submitted that in terms of the Government order No. 62-SW 2001 dated 13th March 2001, no vacancy could be filled up from handicapped person(s) against the post(s) of teachers which carried pay scale of Rs. 3050-4910; 4500-7000 and 5000-8000. Ld counsel referred to section 21 and 22 of the J&K Persons with Disabilities (Equal Opportunities, Protections of Rights and Full Participation) Act, 1998 (for short Act of 1998) and submitted that the respondents are under statutory obligation to appoint in every establishment persons or class of persons with disabilities, of which 1% each has to be reserved for persons suffering from; i) blindness or low vision; ii) hearing impairment; iii) locomotor disability or cerebral Palsy in the post(s) identified for each disabilities. Ld counsel submitted that since the appellant admittedly was suffering from disability of “locomotor upper limb” was, thus, to be appointed in view of the merit secured by her. Ld counsel further submitted that none of the parties had set up the case in pleadings that the selection/appointment in respect of the handicapped person(s) is to be made in accordance with the Government order No. 62-SW of 2001 dated 13th March 2001. Ld counsel submitted that the ld single judge has, thus, wrongly relied on the said Government order and resultantly the impugned judgment is rendered illegal. Ld counsel submitted that the ld single judge has, thus, wrongly relied on the said Government order and resultantly the impugned judgment is rendered illegal. Ld counsel also submitted that Section 22(iii), does, not exclude the disability from which the appellant is suffering. Ld counsel while placing whole-hag reliance on the said clause of Section 22 of the Act of 1998 submitted that the appellant is eligible for seeking consideration for being selected/appointed on the post of teacher as a handicapped person and in view of the superior merit secured in the selection process, she deserves to be appointed on the post of teacher. 5. Ld. counsel also referred to Division Bench judgment of this court reported in SLJ 2010(1) 109 Jyotsna Mengi v. Chairman J&K PSC/and prayed for allowing of the Latter” s Patent Appeal. Mr. S.A Naik and Mr. S. N. Ratanpuri ld counsel appearing for the official respondents submitted that the appellant was not eligible for seeking consideration for being selected/appointed on the post of teacher on the terms and conditions of the advertisement notice. Ld counsel further submitted that her application form was wrongly entertained and after it was noticed that she was not eligible, she was excluded from the zone of consideration and Sarfaraz Maqool Bhat in view of the merit he secured in the selection process was recommended for being appointed on the post of teacher. Ld counsel further submitted that because of the interim order passed by the writ court in the writ petition of the appellant, appointment could not be offered to Sarfaraz Maqool Bhat. Ld counsel prayed for dismissal of the appeal. 6. Mr. S. Manzoor, ld counsel appearing for Sarfaraz Maqool Bhat, supported the argument of ld counsel appearing for official respondents and further submitted that the Government order No. 62-SW of 2001 dated 13th March 2001 has not been challenged by the appellant in the writ petition and in absence of the challenge to the said notification she admittedly was not eligible for seeking consideration for being selected/appointed on the post of teacher. Ld counsel submitted that in this admitted factual background the appeal would merit dismissal. 7. Ld counsel submitted that in this admitted factual background the appeal would merit dismissal. 7. Section 21 & 22 of the Act of 1998, Note appended to advertisement notice No. 01/2008, Government order No. 62-SW 2001 dated 13 March 2001 and relevant part of the annexure “B” of the said Government order, Proviso to Rule-7 (8) of Jammu and Kashmir Reservation Rules 2005 (for short rules of 2005) are taken note of:- “Sec. 21. Identification of posts which can be reserved for persons with disabilities. The Government shall:- (a) identify posts, in the establishments which can be reserved for the persons with disabilities; (b) at periodical intervals not exceeding three years, review the list of posts identified and up- date the list taking into consideration the development in technology. Sec. 22. Reservation of posts. The Government shall appoint in every establishment such percentage of vacancies not has than three percent, for persons or class of persons with disabilities of which one percent, each shall be reserved for persons suffering from:- (i) blindness or law vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disabilities: Provided that the 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. “Note: The horizontal reservation for Ex. Serviceman and physically Handicapped persons to the extent of 6% and 3% respectively would mean the reservation which would cut across the vertical reservation and the persons selected shall have to be placed in the appropriate category by making necessary adjustments in respect of Physically Handicapped persons the reservation shall be available only for services and posts identified for the purpose by the competent authority under the provisions of Jammu and Kashmir persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation)Act, 1998 and to extent specified therein. Besides the nature of disability for a post indicated in Order No. 62-SW of 2001 dated 13.03.2001 shall be adhered to in letter and spirit. The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the Ex. Serviceman against such posts only where the maximum of the pay scale does not exceed Rs. 10,500/-. Sd/- (G. S. Chib) KAS Secretary, Services Selection Board J&K, Jammu. The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the Ex. Serviceman against such posts only where the maximum of the pay scale does not exceed Rs. 10,500/-. Sd/- (G. S. Chib) KAS Secretary, Services Selection Board J&K, Jammu. DIP/J-455 Dated 22.04.2008 Government Order No.62-SW of 2001 Dated 13/03/2001 Sanction is hereby accorded to the:- (1) Notification of the posts of Gazetted and Non- gazetted identified by an Expert Committee for appointment of Physically Handicapped/disabled persons, to the extent of 3% reservation of direct recruitment only under the provisions of Jammu and Kashmir Persons with Disabilities (Equal opportunities protection of rights and full participation) Act, 1988 as per details indicated in Annexure X to this order. (2) Adoption of definitions of different types of disabilities of Physically Handicapped as per details given in Annexure “A” to this order; and (3) Adoption of guidelines for effective implementation of such reservation in favour of physically Handicapped persons with the change in nomenclature as suggested by the General Administration Department as per Annexure-B for this order. By order of the Government of Jammu and Kashmir. Sd/- Principal/Secretary to Govt. Social Welfare Department. Annexure-B CALCULATION OF THE MEMBER OF VACANCIES 3.1 Although the recruitment of physically handicapped persons would be only against posts identified as suitable for them, while computing the vacancies to which the reservation would apply, the total number of vacancies occurring in the said Gazetted and Non-Gazetted 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 Gazetted and Non-Gazetted . 3.2 All heads 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 1st 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 3.3 All the vacancies reported by the different appointing authorities will be entered in this Register to each group of posts (Gazetted or Non- Gazetted). The account shall be maintained on year to year basis separately for Gazetted and Non-Gazetted posts/services and will be closed annually. The account shall be maintained on year to year basis separately for Gazetted and Non-Gazetted posts/services and will be closed annually. For each block of vacancies, there shall be reserved one vacancy for the physically handicapped posts/services 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 computing all the vacancies and determining the reservation for the handicapped block wise, in the manner indicated above, the Head of 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 far as possible, distributed equally among the three sub categories i.e, the blind the deaf and the Orthopedically handicapped, consistent with 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 sold vest in the head of the department. He will besides this on the basis of the nature of the post, the level of representation of the specified handicapped category in the concerned grade/post and the availability of candidate of a particular handicapped category in so far as that can ascertained. He will besides this on the basis of the nature of the post, the level of representation of the specified handicapped category in the concerned grade/post and the availability of candidate of a particular handicapped category in so far as that can ascertained. 3.4 In the event of the reservation not being utilized in the same block in which it fell due, if shall be cause forward to the next block of Rule 7 (8) For purposes of services to which Combined Competitive Examination is conducted, the reserved category candidates if selected against open merit vacancies may also be considered for allotment of services allocable to their respective category as per their inter-se-merit/own preference and the resultant left over vacancies in the services in open merit shall be allotted to those reserved category candidates only, as per merit-cum preference, against whose vacancies the reserved category candidates qualifying in the open merit are considered; Provided that physically challenged candidates shall be considered for selection in the services and against the posts identified for their respective categories in terms of Government Order No. 62-SW of 2001 dated 13.03.2001 and in accordance with their merit-cum-preference, if otherwise found suitable for selection.” The advertisement notice No. 01/2008 to which both the appellant and Sarfaraz Maqool Bhat responded and sought consideration for being selected/appointed on the post of teacher in District Cadre, Baramulla, as handicapped person(s), specifically provided that partial impairment and one leg handicapped person(s) are eligible. The Note appended to the said advertisement notice also provided that the nature of disability for post indicated in order No. 62-SW of 2001 dated 13th March 2001 shall be adhered to in letter and spirit. Annexure appended to government order No. 62-SW of 2001 dated 13th March 2001 provide that reservation for appointment to the post(s) of teachers under the Act of 1998 with 1% reservation is restricted to the “partially deaf and persons with one leg disability”. Admittedly on the terms and conditions of the advertisement notice No. 01/08 and note appended thereto only persons who were physically handicapped and suffering from partial deafness and with one leg disability were eligible for seeking consideration for being selected/appointed on the post of teacher. The disability of the appellant, admittedly was not covered by the eligibility condition of the advertisement notice No. 01/08 and note appended to the said advertisement notice. The disability of the appellant, admittedly was not covered by the eligibility condition of the advertisement notice No. 01/08 and note appended to the said advertisement notice. The appellant, was not eligible for seeking consideration for being selected/appointed on the post of teacher in District cadre Baramulla. Her application form was entertained wrongly. For the afore-stated reasons she was ineligible candidate so far her claim for being selected/appointed as handicapped person is concerned. The candidate who conformed to the terms and conditions of the advertisement notice No. 01/08 constitute one class and appellant on the terms and conditions of same advertisement notice belonged to class of ineligible candidates so far her claim as a handicapped person was concerned. The SSB committed illegality in clubbing the eligible and ineligible candidates together, as because, the appellant an ineligible candidate was allowed to participate in the selection process along with the eligible candidate(s) and her merit was also adjudged. The mistake committed by SSB could not clothe the petitioner with any right in law, as she from day first was ineligible candidate so far her claim to the extent for seeking consideration for being selected/appointed on the post of teacher as handicapped person(s) is concerned. The SSB by adopting such a mode violated the constitutional rights guaranteed under Article 14 and 16 of the Constitution of India, of those candidates who were eligible, by clubbing the appellant an ineligible candidate with them. The SSB, however, rectified its mistake by not recommending the name of the appellant to the appointing authority. In absence of challenge to Government order No. 62- SW of 2001 dated 13th March 2001, the writ petition deserved to be dismissed in limine, as in the writ petition the appellant had sought issuance of writ of certiorari to quash the selection list to the extent of respondent No.5 and prayed for issuance of mandamus directing the respondents to select and appoint the petitioner on the post of teacher in district cadre, Baramulla, in handicapped category. The fate of the appellant, was determined by the Government order No. 62-SW of 2001 dated 13th March 2001, when her disability was not included in the category of handicapped person(s) for whom post(s) of teachers were ear marked in accordance with the mandate contained in Section 22 of the Act of 1998. The appeal on this score would require to be dismissed. 8. The appeal on this score would require to be dismissed. 8. Since the ld counsel for the appellant referred to section 21 and 22 of the Act of 1998 and argued that the appellant would be entitled to be selected and appointed on the post of teacher as handicapped person in view of the mandate contained in Section 22 of the Act of 1998, same would require to be answered. Chapter V of the Act of 1998 deals with “employment”. 9. Section 21 of the Act of 1998 provides for identification of post(s) which can be reserved for persons with disability. Clause (b) of Section 21 provide that at periodical intervals not exceeding three years, the government shall review the list of posts indentified and update the list taking into consideration the development in technology. It appears that section 21 of the Act of 1998 has not been complied with as even in 2008 reliance is placed on Government order No. 62-SW 2001 dated 3th March 2001, where-under posts have been identified in different services/cadres and class of services, against which physically disabled persons would be selected and appointed. The government is duty bound to comply with the mandate contained in Section 21 of the Act of 998 and undertake an exercise to update the list of posts which had been identified in terms of the aforementioned government order. The reliance placed by ld counsel for the appellant on Section 22 is misplaced, because it has been mandated that government shall appoint in every establishment such percentage of vacancies not less than 3%, for persons or class of persons with disability of which 1% each has to be reserved for persons mentioned in three categories in the said Section. In view of the language and expression used in section 22 of the Act of 1998 the appointments have reference to “persons or class of persons” which in unequivocal terms permits the authority to provide vacancies for persons or class of persons who are suffering from disabilities. The government, for the post(s) of teachers has considered locomotor disability of one leg, relevant while identifying the post of teacher. All the persons suffering from locomotor disability of any kind cannot, thus, stake claim for being selected/appointed on the post of teacher or for that matter any other post. The government, for the post(s) of teachers has considered locomotor disability of one leg, relevant while identifying the post of teacher. All the persons suffering from locomotor disability of any kind cannot, thus, stake claim for being selected/appointed on the post of teacher or for that matter any other post. The discretion has been conferred on the government to choose “persons or class of persons” for such reservation. The government has chosen persons who suffered locomotor disability of one leg for being appointed on the post of teacher against 1% reservation, as is mandated in section 22 of the Act of 1998. Proviso appended to Rule-7(8) of Rules of 2005 also provides that physically challenged persons (s) shall be considered for selection in the service and against the post(s) identified for their respective categories, in terms of government order No. 62-SW 200 dated 3th March 2001. The argument of the ld counsel for the appellant for the afore-stated reasons cannot be accepted. 10. Further contention of the ld counsel for the appellant is that no post of teacher has been identified in government order No. 62-SW 2001 dated 13th March 2001 in respect of partially deaf and candidates suffering from one leg disability for the post of teachers carrying pay scales mentioned in the said order. This argument has also to fail as in the advertisement notification the post of teacher has been mentioned and it has also been provided that candidate with partial disability and one leg disability would be eligible for seeking consideration for being selected/appointed on the post of teacher. It has not been mentioned therein that only the post of teacher carrying particular pay scale could be filled up from amongst handicapped persons. The government order No. 62-SW of 2001 dated 13th March 2001 does not exclude post(s) of teachers carrying these pay scales from the operation of government order No. 62-SW 2001 dated 13th March 2001. The official respondents have not taken such a stand before the writ court. The contention so raised cannot be accepted. 11. The judgment referred to by ld counsel for the appellant has not been handed down in the same factual background as is available in this case. The appellant thus cannot derive any benefit from it. 12. The official respondents have not taken such a stand before the writ court. The contention so raised cannot be accepted. 11. The judgment referred to by ld counsel for the appellant has not been handed down in the same factual background as is available in this case. The appellant thus cannot derive any benefit from it. 12. This appeal would further suffer collapse, because the ld writ court disposed of two writ petitions by one common judgment, as judgment passed in Sarfaraz Maqbool Bhat” s case has not been challenged and same has attained finality. This appeal on this score is also liable to be dismissed. 13. For our above stated reasons, this LPA is dismissed. Before parting with this judgment we deem it appropriate to remind the State of J&K that they are duty bound to comply with the Section 21 of the Act of 1998. The respondent-state to initiate steps for complying with the mandate contained in section 21 of the Act of 1998.