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2014 DIGILAW 260 (JK)

Anil Kumar Sharma v. Union Of India

2014-06-30

ALI MOHAMMAD MAGREY

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1. Challenging the selection of private respondents, made for the posts of Fireman by respondents 1 and 2, petitioner seeks a direction in the name of respondents to the effect that selection/ appointment of respondents 3 to 5 made under general category be quashed; consider and appoint the petitioner for the said post under general category reserved for handicapped persons in terms of the advertisement notice. 2. The controversy, as per the pleadings, is simply that an advertisement Notice, by virtue of which posts in dispute were sought to be filled up, was responded to by all the aspiring candidates including the petitioner and respondents 3 to 5. Petitioner had applied for a post out of the three posts of general category reserved for physically handicapped (HH) category. For the sake of convenience the description of the posts as reflected in the advertisement is reproduced hereunder, thus:- Designation of post Total No. of posts Scale of pay Category reserved for Number of posts Age Qualification FIREMAN 06 PB-1 Rs. 5200- 20200+ Grade Pay Rs. 1900/- SC 02 18-30 Yrs Matriculation Pass OBC 01 UR (Gen) 03 Total 06 P.HP 01 (HH) 01 As mentioned at para 3 (a) & (b) below ESM para 2 (b) below refers 3. Petitioner participated in the selection process but was not selected, for, allegedly, he did not satisfy the conditions of the advertisement notice and for not performing well. 4. Aggrieved of his exclusion, petitioner challenges the selection of private respondents on the ground that respondents 3 to 5 have been selected from amongst General Category candidates, therefore, the post reserved for handicapped category has been merged in the general category, consequently the selection made for the posts is bad in law, therefore, requires to be quashed. 5. Respondents have resisted the petition on the ground that the selection has been made strictly as per eligibility and merit, obtained by the candidates in the process of selection. The petitioner has no right whatsoever on the post being suffering from dual disability viz. 100% speaking and 100% hearing disability, therefore, falls outside the purview and mandate of advertisement notice. 6. The contention of respondents 3 to 5 is no different. The petitioner has no right whatsoever on the post being suffering from dual disability viz. 100% speaking and 100% hearing disability, therefore, falls outside the purview and mandate of advertisement notice. 6. The contention of respondents 3 to 5 is no different. It is contended that petitioner is suffering from dual disability and respondents 3 to 5 have been selected for the posts meant for general category candidates, therefore, there is no question of post meant for reserved category having been merged with the general category. 7. Heard learned counsel for the parties and considered the matter. 8. Petitioner has come to the court and sought the reliefs prayed for on the sole ground that the posts advertised for have been filled up in disregard of the mandate of the advertisement notice as the post reserved for, from amongst the general category posts, physically handicapped (hard of hearing) candidates has been filled up from the general category, therefore, the right of the consideration has erroneously denied to him despite having performed well in the selection process. 9. I do not see any merit in the claim of the petitioner for the reason that firstly the petitioner does not come within the ambit of the advertisement notice because of being suffering from dual disability i.e. 100% speaking and hearing disability, therefore, petitioner’s eligibility itself overshadows the contention of merging of the post reserved for physically handicapped (hard of hearing) with the general category. The point, if at all open to challenge, is available to a person suffering from such disability alone. Secondly, the reply filed by the respondents and the record made available makes it quite apparent that petitioner’s performance has not been as satisfactory as would lead to his selection for the said post, thus, the claim of the petitioner goes on this score also It is additionally stated that selection made against the posts in question is not challenged on eligibility count; therefore, the selection on that score also stands. Thus it does not appear to be a case where interference is needed. 10. The application of the mandate of law as laid down by Apex Court in case Rajesh Kumar Daria v. Rajasthan Public Service Commission and Ors., would come into play only when petitioner’s eligibility for the post is established and when exclusion of the petitioner is proved to have been made erroneously too. 11. 10. The application of the mandate of law as laid down by Apex Court in case Rajesh Kumar Daria v. Rajasthan Public Service Commission and Ors., would come into play only when petitioner’s eligibility for the post is established and when exclusion of the petitioner is proved to have been made erroneously too. 11. Having regard to above narration the writ petition is held to be without any merit, therefore, dismissed along with all CMPs. Interim direction, if any, shall stand vacated. 12. Record of the case be returned to Mr. Makroo, learned ASGI.