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2013 DIGILAW 1256 (JHR)

Vikash Yadav v. State of Jharkhand

2013-11-21

SHREE CHANDRASHEKHAR

body2013
ORDER The petitioner has approached this Court seeking a direction upon the respondents for appointment on a Grade-IV post in Pakur district. 2. The brief facts of the case are that, the petitioner has been working as Jeep Driver on daily wages since 24.12.2004. Advertisement no. 1/2010 was issued for which the examination was held on 28.10.2012. The petitioner belongs to category BC-II. A panel was prepared on 16.11.2012 and it appears that one Md. Tanzim Alam who was selected in the category of BC-II declined offer of appointment. The petitioner who was put at serial no. 1 in the waiting list was expecting the offer of appointment, however, in place of petitioner, one Anil Kumar Yadav was appointed under the category BC-II and therefore, the petitioner has approached this Court. 3. A counter affidavit has been filed taking a plea that since all the posts have been filled up and pursuant to an order passed by this Court on 20.03.2012 in W.P.(S) No. 3169 of 2008, one Anil Kumar Yadav was appointed in the category BC-II, the petitioner could not be appointed though, it has been admitted that he was at serial no. 1 in the waiting list. It is stated in the counter-affidavit; 6. “That most humbly and respectfully it is stated and submitted that the petitioner has prayed for direction to the respondent to appoint his as 4th grade employee in Pakur District against the vacant post created as because one Sri Tanzim Alam who has been appointed put of BC2 category has denied to join it is further asserted that the name of the petitioner finds place at Sl. No. 2 of BC2 category and as the matter of fact the said vacancy created on denied to join by said Tanzim Alam has already has been filled up by a candidate namely Anil Kumar Yadav on the ground of disability against the Kota of BC-2 category. As such, in fact, no vacancy has been available at present indeed. So far as annexures as mention in the petition are concerned those are matter of records and needs no comments. 11. As such, in fact, no vacancy has been available at present indeed. So far as annexures as mention in the petition are concerned those are matter of records and needs no comments. 11. That with regard to the statement made in para 15 of the writ petition it is most humbly and respectfully stated and submitted that considering the actual facts and circumstances it will be evident that no vacancy is available in the event of denial to join by one Tanzim Alam as in his place a candidate of handicapped kota of BC2 category has been appointed in pursuance of Hon'ble High Court order as mentioned order and such the petition is fit to be dismissed.” 4. Mrs. Nitu Sinha, learned counsel appearing for the petitioner has submitted that though the said Anil Kumar Yadav belongs to an entirely different category, overlooking the claim of the petitioner for appointment in BC-II category, he has been appointed on a pretext of an order passed by this Court in W.P.(S) No. 3169 of 2008. She has placed reliance on the mandatory provisions of the 'Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 and contended that the appointment of the said Anil Kumar Yadav would be deemed to have been made in accordance with the mandatory provisions contained in Section 33 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995. 5. Per contra, Mrs. Sweta Singh, learned counsel appearing for the respondents – State of Jharkhand has contended that a person put in the waiting list has no right of appointment. The only right which accrues to such a person is a right of consideration for appointment. The claim of the petitioner could not be considered because this Court in the proceeding of W.P.(S) No. 3169 of 2008 by order dated 20.03.2012 directed the respondent – State to appoint one Anil Kumar Yadav who had also participated pursuant to advertisement no. 1/2010 and who also belongs to BC-II category. She has further submitted that since vacancies which were advertised, have all been filled in, the petitioner cannot be offered any appointment on the post of Peon. 6. Before deciding the issue, it would be useful to notice the relevant provisions under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: 2. She has further submitted that since vacancies which were advertised, have all been filled in, the petitioner cannot be offered any appointment on the post of Peon. 6. Before deciding the issue, it would be useful to notice the relevant provisions under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: 2. (I) “disability” means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; 2.(j) “employer” means,- i) in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and (ii) In relation to an establishment, the Chief Executive Officer of that establishment; 2(k) “establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and included Departments of a Government; 2.(o) “locomotor disability” means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy; 2.(t) “person with disability” means a person suffering from not less than forty per cent of any disability as certified by a medical authority.” 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 reserved 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. 36. 36. Vacancies not filled up to be carried forward – Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.” 7. A perusal of the documents on record indicates that it has not been denied by the respondents that the petitioner was put at serial no. 1 in the waiting list in the BC-II category. It is also admitted that one Md. Tanzim Alam who was selected in the BC-II category had declined to join and thus the post under the BC-II category became vacant. From the advertisement issued, I do not find the total number of vacancies or the category-wise vacancies declared in the said advertisement. The appointment letter of Anil Kumar Yadav would disclose that he has been suffering from 'locomotive disability'. 8. A perusal of the order passed on 20.03.2012 in W.P.(S) No. 3169 of 2008 would disclose that the respondents were directed to consider Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads as under: 3. “..........Respondent no. 3 will also consider the mandatory provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, while deciding the claims of the present petitioner. Section 33 of the aforesaid Act reads as under: 33. “..........Respondent no. 3 will also consider the mandatory provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, while deciding the claims of the present petitioner. Section 33 of the aforesaid Act reads as under: 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 reserved 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. 4. If the decision is taken in favour of the petitioner, the benefits of the decision will be extended to the petitioner within further period of four weeks, after the decision is taken.” 9. I further find that the State of Jharkhand has issued a Circular dated 10.10.2002 which provides that posts would be reserved for persons suffering from locomotive disability and 6cerebral palsy. 10. In “Union of India & Anr. Vs. National Federation of the Blind & Ors.”, reported in JT 2013 (13) SC 364, tracing history of this beneficial legislation, the Honble Supreme Court has observed as under: 20. “India as a welfare State is committed to promote overall development of its citizens including those who are differently abled in order to enable them to lead a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The roots of statutory provisions for ensuring equality and equalization of opportunities to the differently abled citizens in our country could be traced in Part III and Part IV of the Constitution. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are not provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour. 21. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are not provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour. 21. Although, the Disability Rights Movement in India commended way back in 1977, of which Respondent No. 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 19932002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz, the Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a Special Employment Exchange for them.” 11. On a perusal of the provisions under the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 and the Circular dated 10.10.2002 issued by the State of Jharkhand, I find that reservation for the category of persons to which the said Anil Kumar Yadav belongs, is mandatory. I further find that in W.P.(S) No. 3169 of 2008 by order dated 20.03.2012, this Court had directed the respondents to consider the claim for appointment of the said Anil Kumar Yadav in view of Section 33 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 and offer appointment to said Anil Kumar Yadav. In view of the aforesaid, I find that since the petitioner who belongs to category BC-II and who was admittedly at serial no. 1 in the waiting list, would not have been denied appointment on the post of Peon on the plea that one Anil Kumar Yadav has been appointed pursuant to order passed by this Court. I find that the order passed by this Court in W.P.(S) No. 3169 of 2008 cannot be used by the respondents to deny the petitioner's appointment under BC-II category. 12. Mrs. I find that the order passed by this Court in W.P.(S) No. 3169 of 2008 cannot be used by the respondents to deny the petitioner's appointment under BC-II category. 12. Mrs. Sweta Singh, learned counsel appearing for the respondents contended that the persons selected against the quota for persons with disabilities have to be placed in the appropriate category such as, SC/ST/OBC/General candidates according to the category to which they belong and therefore, the said Anil Kumar Yadav was offered appointment in the BC-II category as he belongs to the BC-II category. I am of the opinion that the contention advanced by the learned counsel for the respondents is not tenable as in the present case neither the total number of vacancies was disclosed nor category-wise vacancy has been disclosed. Even the identification of the post in terms of Section 32 of the Act is not necessary for extending benefit under the Act. In Government of India through Secretary and Anr. Vs. Ravi Prakash Gupta & Anr. reported in (2010) 7 SCC 626 , the Hon'ble Supreme Court took note of such a situation and held as under: 25. “...........The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade 'A' and 'B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance.” 13. In view of the aforesaid, this writ petition is allowed. Petition allowed.