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2012 DIGILAW 91 (HP)

Shyam Singh v. State of Himachal Pradesh

2012-03-13

CHAND CHAUDHARY, KURIAN JOSEPH

body2012
JUDGEMENT Justice Kurian Joseph, Chief Justice (Oral): The writ petitioner in CWP No. 6243 of 2010 is the appellant in this appeal. He is a physically challenged person. It is seen from the academic qualification of the writ petitioner that he is Post Graduate in Chemistry and is also Doctorate in the subject. However, he could not qualify in the test conducted by the Public Service Commission for appointment to the post of Lecturer (Chemistry) against 3% quota reserved for the category of physically challenged persons. 2. Learned Single Judge dismissed the writ petition having seen the records, holding that the petitioner had not secured the minimum marks, and hence, the appeal. 3. During the pendency of the appeal, this Court had taken steps to have the matter looked into in larger interest of the physically challenged persons. It was shockingly observed with respect to the Class-I posts that not even 25% of the posts could be filled up on account of non-availability of candidates or on account of non-suitability of the candidates. In that background this Court on 10.10.2011 passed the following order: “There will be direction to respondents No.1 &2 to file an affidavit as to whether the mandatory reservation for the physically challenged persons has been made in the cadre of Principal, Higher Secondary Schools. It shall also be stated as to whether there is any physically challenged person in the post of Principal. It is seen from the information furnished by the Public Service Commission that in respect of selection made against 3% quota for physically challenged persons(s) for the last about four years, only less than 25% posts could be filled up. It is seen from the information that the remaining posts could not be filled up on account of non availability of candidates or on account of non suitability of candidates for the post(s) concerned. There will be a direction to the first respondent to file an affidavit after referring to Annexure R-3J, information furnished by the Public Service Commission, as to what the State proposes to do in view of such a back ground of non- availability of candidates in Himachal Pradesh and non suitability of candidates in Himachal Pradesh for the post(s), so as to meet the requirements of Section 33 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. The affidavit, as above, shall be filed within four weeks.” 4. The Secretary (Education) to the Government of Himachal Pradesh has filed an affidavit dated 17.12.2011. It is stated in the affidavit that the Government is committed to providing the maximum scope of employment to the people with disabilities. It is further stated in the affidavit that the Government has been inter-changing the reserved posts so that the possibility of getting qualified candidates from the other categories of disabled persons could also be explored. But even with all these exercises, the fact remains that Class-I posts in the State reserved for physically challenged persons have still remained unfilled for decades. 5. Having heard Shri Hamender Chandel, learned counsel for the writ petitioner, Shri S.P. Jain, learned Senior counsel for the Public Service Commission and Shri Ankush Dass Sood, learned Additional Advocate General for the State, we are of the view that the Government should have an over all review of the situation in terms of the objects of the legislation- Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. In this context, it would be profitable to refer to the purpose of the legislation. 6. The proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region was adopted in the meeting of the Economic and Social Commission for Asian and Pacific Region held at Beijing from 1st to 5th December, 1992. India is a signatory to the said proclamation. It was resolved to enact a suitable legislation to provide for the following aspects: “(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii)create barrier free environment for persons with disabilities; (iii)to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non-disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi)to make special provision of the integration of persons with disabilities into the social mainstream.” 7. In case in the present mode of selection, the State challenged persons, in terms of the objects of the Act, we are of the view that it is high time the State thought of alternate methods of selection. It should also be thought of as to whether such selection should be continued with the H.P. Public Service Commission or whether certain guidelines with regard to the selection in the matter of cut off marks be also prescribed so that Public Service Commission will be appropriately guided, as the Commission cannot compromise on the quality. Even in a selection in respect of the reserved quota, there cannot be any compromise on standard of merit as prescribed by the appointing authority. Of course, it is certainly open to the Appointing Authority to prescribe lesser standard, in respect of the reserved categories, in order to achieve the objects of such reservation. Therefore, the State has to think of taking some thoughtful steps, in terms of the objects of the aforesaid Act, for capacity building for such persons, who could not acquire the same capacity as their counter parts on account of their disability as otherwise there would not be full participation of such people. Capacity building can, if need be, made even after the selection. Ensuring equal and full participation of disabled persons, as stated above, is the very purpose of the Act and the State is bound to take the required steps for achieving the objects of the Act. 8. The appeal stands disposed of with a direction to the State to hold an urgent review of selection of the physically challenged persons to class-I posts in the light of the observations contained hereinabove. Appropriate action for achieving the objects of the Act, shall be taken within a period of six months.In view of the disposal of the writ petition, pending application(s), if any, shall also stand disposed of. 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