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2012 DIGILAW 997 (PAT)

Yogendra Ram v. State of Bihar

2012-07-20

NAVIN SINHA

body2012
ORDER Heard learned counsel for the petitioner, State and respondent no. 7. 2. The petitioner is aggrieved by order dated 28.06.2012 passed by the District Teachers Appointment Appellate Authority, East Champaran at Motihari, in Case No. 671 of 2010 filed by respondent no. 6. Allowing the appeal it sets aside the appointment of the petitioner. 3. Learned counsel for the petitioner submits that there is no infirmity in the appointment of the petitioner. The vacancy belonged to the Scheduled Caste category and she comes within the same. It was not a vacancy reserved for the Handicapped category. Respondent no. 7 did not participate in counselling held on 26.01.2009. His name did not appear in the select list dated 03.12.2009. 4. Counsel for the respondents have opposed the application. It was submitted that the vacancy was for the Handicapped (Deaf and Dumb) category. The counselling of respondent no. 7 was done under the orders of the Tribunal. The petitioner had lesser marks than respondent no. 7. The Tribunal has rightly held that there could be no sub-reservation in that category on basis of caste relying on (2007) 8 SCC 621 (Mahesh Gupta & Ors. Vs. Yashwant Kumar Ahirwar & Ors.). 5. The Tribunal is the creation of a statutory order dated 25.08.2008. Its order are final but that does not detract from the jurisdiction under Article 226 of the Constitution of India for judicial review. But the jurisdiction is not akin to the powers of a 1st Appellate Court. Scrutiny by the Court shall be confined to errors in the decision making process. If the parties have not been heard, materials have not been properly considered, irrelevant materials have been taken into consideration, evidence has been admitted behind the back or the findings are perverse, of a nature that no reasonable person would have arrived at such a conclusion on basis of the facts available, are some of the grounds on which the order may be interfered with. The order of the Tribunal cannot be scrutinized in judicial review on grounds which may not have been urged before the Tribunal and which the Tribunal may have had no occasion to apply its mind. 6. The order of the Tribunal cannot be scrutinized in judicial review on grounds which may not have been urged before the Tribunal and which the Tribunal may have had no occasion to apply its mind. 6. There is no material in the order of the Tribunal to suggest that objections of the nature taken presently that the respondent had not participated in the counselling or that his name did not figure in the select list was taken before the Tribunal. There is no pleading in the writ application that any objection taken before the Tribunal has not been considered by it thus vitiating the order. 7. The Tribunal has arrived at a finding that the vacancy was meant for the physically handicapped (Deaf and Dumb) category. If that was not contested by the petitioner before the Tribunal he cannot be permitted to raise issues today that the vacancy was not for the Physically Handicapped category but only the reserved category. If the vacancy was for the Physically Handicapped category, there is no infirmity in the findings of the Tribunal that there could be no sub-reservation on basis of caste within the same. The Tribunal has aptly referred to Mahesh Gupta holding at paragraph 12 as follows :– “12. Disability has drawn the attention of the worldwide community. India is a signatory to various international treaties and conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, 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 and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates.” Yet again (2009) 5 SCC 1 (Andhra Pradesh Public Service Commission Vs. Baloji Badhavath) it was observed at paragraph 45 as follows:– “45. Reservation of women, handicapped, etc. is on a horizontal basis. Reservation to the category of candidates has to be given irrespective of the class or category of candidates. Baloji Badhavath) it was observed at paragraph 45 as follows:– “45. Reservation of women, handicapped, etc. is on a horizontal basis. Reservation to the category of candidates has to be given irrespective of the class or category of candidates. A final selection has to be made. If such a procedure, as directed by the High Court, is to be taken recourse to, the same would give rise to a complexity.” The application is dismissed.