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2014 DIGILAW 632 (GAU)

Suman Chakraborty v. State of Assam and Ors.

2014-06-16

UJJAL BHUYAN

body2014
Ujjal Bhuyan, J. -- Heard Mr. N Dhar, learned Counsel for the petitioners and Mr. JI Borbhuiya, learned Standing Counsel, Public Health Engineering Department, Assam. Also heard Mr. BK Sarma, learned Standing Counsel, Social Welfare Department, Assam. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of Annexure-4 letter dated 15.10.2007, issued by the Deputy Secretary to the Govt. of Assam, Social Welfare Department and addressed to the Under Secretary to the Govt. of Assam, Public Health Engineering Department, Dispur in respect of forwarding of the name of respondent No. 8 for appointment as Sectional Assistant (Grade III) in Karimganj district in the Public Health Engineering Department as a physically disabled candidate under the orthopaedically handicapped category. Further prayer made is for a direction to the respondents to confer appointment to the petitioner in a Grade III post in the Public Health Engineering Department, Govt. of Assam. 3. Case of the petitioner is that he is a physically handicapped person being visually impaired. A selection was conducted by the District Level Selection Committee, Karimganj district of the Social Welfare Department, Govt. of Assam for appointment to Grade-III posts against backlog vacancies earmarked for disabled persons. Petitioner was informed by the District Social Welfare Officer, Karimganj vide letter dated 13.06.2005 that his name was forwarded by the District Employment Exchange, Karimganj for the said selection and that he should appear before the interview board on 01.07.2005. Petitioner's roll number was 65 (Karimganj). Accordingly, petitioner appeared before the interview board. Notification dated 27.02.2006 was issued by the Director of Social Welfare, Assam announcing the results of the selection held at the district level during the months of June and July, 2005 strictly in order of merit for appointment of persons with disabilities against the backlog vacancies in Grade-III and Grade-IV posts under different departments of the State. It was stated that the results were declared category and district wise. In so far Karimganj district was concerned, against one post of Lower Division Assistant (Grade III) in the Public Health Engineering Department, only the petitioner and another candidate having roll number 43 were selected under the visually impaired category. Petitioner was placed in the first position. No candidate belonging to the orthopaedically handicapped or hearing impaired was selected for the said post. 4. Despite such selection, petitioner was not appointed. Petitioner was placed in the first position. No candidate belonging to the orthopaedically handicapped or hearing impaired was selected for the said post. 4. Despite such selection, petitioner was not appointed. He, therefore, submitted representation dated 02.12.2006 before the Executive Engineer, Public Health Engineering Department, Karimganj seeking his appointment in a Grade-III vacancy in view of his selection. This was followed by subsequent representations dated 03.01.2007 and 05.04.2007, both addressed to the Chief Engineer of the Public Health Engineering Department. Similar representation was also submitted on 24.08.2007 before the Secretary to the Govt. of Assam, Public Health Engineering Department. However, the above representations did not elicit any response. 5. Ultimately, Deputy Secretary to the Govt. of Assam, Social Welfare Department issued letter dated 15.10.2007 addressed to the Under Secretary to the Govt. of Assam, Public Health Engineering Department forwarding the names of candidates selected on merit basis by the district level committees for appointment in the Public Health Engineering Department in various districts and under different categories of disabilities. The Under Secretary was requested to take necessary action for appointment. Petitioner's name was not included in the list of said candidates and in his place name of respondent No.8 was included as a candidate from Karimganj district for appointment in the post of Sectional Assistant (Grade III) in Karimganj district under orthopaedically handicapped category of disability. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 6. This case was admitted for hearing on 02.01.2008. 7. Respondent No. 6 i.e., the Chief Engineer, Public Health Engineering Department in his affidavit filed on 23.06.2009 stated that the Social Welfare Department selected physically handicapped candidates for different districts of Assam under the orthopaedically handicapped, visually impaired and hearing impaired categories for filling up 69 numbers of backlog vacancies in Grade-III and Grade-IV categories in the Public Health Engineering Department. It is stated that after verification based on information furnished by the Social Welfare Department, the vacancies in the Public Health Engineering Department earmarked for disabled persons including backlog vacancies stood at 11 for both Grade-III and Grade-IV. Accordingly, 11 numbers of disabled person from the select list were appointed in Grade-III and Grade-IV posts. It is stated that after verification based on information furnished by the Social Welfare Department, the vacancies in the Public Health Engineering Department earmarked for disabled persons including backlog vacancies stood at 11 for both Grade-III and Grade-IV. Accordingly, 11 numbers of disabled person from the select list were appointed in Grade-III and Grade-IV posts. It is further stated that due to non-availability of candidate of required category falling under the category of orthopaedically handicapped for filling up the backlog vacancy in Grade III in Public Health Engineering Department in the district of Karimganj, respondent No. 8, who was a selected candidate from Kamrup district, was appointed against the said post in Karimganj district under the category of orthopaedically handicapped. 8. The Chief Engineer, Public Health Engineering Department thereafter filed a further affidavit on 08.10.2013. It is stated that the State Govt. had sanctioned a total of 67 Grade-III vacancies and 59 Grade-IV vacancies to be filled up during the year 2012-13, out of which 2 posts under Grade-III and 1 post under Grade-IV (total 3) were earmarked for disabled (physically handicapped) candidates. It is further stated that the validity of the select list of physically handicapped candidates notified by the Director of Social Welfare, Assam on 27.02.2006 had expired on 31.07.2011 as per speaking order of the Govt. dated 07.07.2011. It is further stated that the Public Health Engineering Department is maintaining the quota of 3% for appointment of disabled persons, and that the vacancy position for the said purpose are placed before the Govt. on yearly basis. All backlog vacancies have been filled up and there is no backlog vacancy for appointment of disabled person. 9. In the course of hearing, this Court had passed the following order on 26.02.2014: - “The contention of the petitioner in the present petition is that though he was selected for appointment as Grade IV staff against the disability quota in respect of Karimganj district, instead of appointing him the respondent No. 8 has been appointed though he was not selected for Karimganj district. To appreciate the contention as to whether the petitioner was selected in respect of Karimganj district the relevant records of selection is required to be perused which shall be produced before the next date fixed by the learned standing counsel, Social Welfare Department.” 10. To appreciate the contention as to whether the petitioner was selected in respect of Karimganj district the relevant records of selection is required to be perused which shall be produced before the next date fixed by the learned standing counsel, Social Welfare Department.” 10. On 11.03.2014 the following order was passed : - “In terms of order dated 26.02.2014, selection record has been produced by Mr. BK Sarma, learned Standing Counsel, Social Welfare Department, Assam. Record indicates that petitioner was selected and recommended against Grade-III post in the Public Health Engineering Department in Karimganj district, whereas respondent No. 8 was selected for Kamrup district. After hearing the matter at some length, both Mr. BK Sarma, learned Standing Counsel, Social Welfare Department, Assam and Mr. JI Borbhuiya, learned Standing Counsel, Public Health Engineering Department seek time to explore possibility of appointing the petitioner without disturbing the appointment of respondent No.8, which is under challenge. Time has also been sought for to produce before the Court the letter of the Public Health Engineering Department dated 24.09.2007, pursuant to which the Social Welfare Department published the list dated 15.10.2007.” 11. Finally on 03.04.2014, this Court passed the following order: - “As directed by this Court by order dated 11.03.2014, Mr. JI Borbhuiya, learned Standing Counsel, PHE has produced a copy of letter dated 24.09.2007. Letter dated 24.09.2007 shows that post of Section Assistant in Karimganj district is earmarked for orthopaedically disabled candidate. A peculiar situation has arisen in this case, where petitioner has been selected at Sl. No. 1 from Karimganj district. He is a visually handicapped candidate. Inspite of such selection, he is not being provided appointment on the ground that the post earmarked for such appointment in Karimganj district is meant to be filled up by orthopaedically disabled candidate. If that be so, the question arises why in the first place the petitioner was selected at all from Karimganj district? Considering the objective of the special drive for recruitment of disabled persons, Court is of the view that some solution is required to be found out to ensure that the petitioner is provided with appointment. Mr. BK Sarma, learned Standing Counsel, Social Welfare Department, Assam shall obtain instruction from the Commissioner & Secretary to the Govt. of Assam, Social Welfare Department so that a solution in this regard can be worked out.” 12. Mr. BK Sarma, learned Standing Counsel, Social Welfare Department, Assam shall obtain instruction from the Commissioner & Secretary to the Govt. of Assam, Social Welfare Department so that a solution in this regard can be worked out.” 12. However, nothing was thereafter informed to the Court as to what decision the Social Welfare Department as well as the Public Health Engineering Department took in the matter. 13. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been enacted by the Indian Parliament to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region, which was adopted in the meeting held at Beijing in the year 1992 of which India is a signatory. As the title of the Act indicates, this Act seeks to provide equal opportunities, protection of rights and full participation to the persons with disabilities. Disability has been defined in section 2 (i), which means blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. Each of the above disability has been explained in the definition section which is section 2. Chapter VI of the said Act deals with employment opportunities to persons with disabilities. Chapter VI comprises of sections 32 to 41. As per section 32, the appropriate Govt. shall identify posts in the establishments which can be reserved for the persons with disability. The appropriate Govt. is also required to review the list of posts identified at periodical intervals not exceeding 3 years and up-date the list taking into consideration the developments in technology. Under section 33, every appropriate Govt. 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 shall be reserved for persons suffering from - (i) blindness or low vision, (ii) hearing impairment, and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. The Act also provides for establishment of Special Employment Exchange to provide information in relation to vacancies earmarked for persons with disability that may have occurred or about to occur in every establishment covered by the Act. Section 36 provides for carry forward of vacancies not filled up in a particular year due to non-availability of suitable persons with disability. 14. Section 36 provides for carry forward of vacancies not filled up in a particular year due to non-availability of suitable persons with disability. 14. Having regard to the above and from the materials placed on record, it appears that the selection which was undertaken in June-July, 2005 and the merit list of which was notified on 27.02.2006 was in connection with a special drive for selection of persons with disabilities for appointment against backlog vacancies in Grade-III and Grade-IV posts under different departments of the State. It is not disputed that the petitioner is a disabled candidate under the visually impaired category. It is also not disputed that in the selection held, he was selected specifically against the post of Lower Division Assistant (Grade-III) in Karimganj district in the Public Health Engineering Department. However, the impugned communication dated 15.10.2007 shows that respondent No. 8 who was selected from Kamrup district as an orthopaedically handicapped candidate, was appointed in Karimganj district against the said Grade-III post against which petitioner was selected. In the course of hearing it was submitted by learned Standing Counsel, Public Health Engineering Department by referring to a departmental letter dated 24.09.2007 that the Grade-III post in Karimganj district was earmarked for orthopaedically disabled candidate. It is in this context that this Court had observed in the order dated 03.04.2014 that despite being selected at Sl. No. 1 from Karimganj district against the post of Lower Division Assistant in the Public Health Engineering Department, petitioner has not been provided appointment on the ground that the post earmarked for such appointment in Karimganj district was meant to be filled up by an orthopaedically disabled candidate and accordingly respondent No. 8 was appointed. Naturally the question arises as to why the petitioner was selected at all from Karimganj district against that particular post if the post was meant to be filled up by an orthopaedically disabled candidate and not by a visually impaired candidate like the petitioner. This was the query of the Court expressed in the order dated 03.04.2014. Learned counsel for the respondents have neither been able to answer the said query nor have been able to show any justification to the Court for denial of appointment to the petitioner. This was the query of the Court expressed in the order dated 03.04.2014. Learned counsel for the respondents have neither been able to answer the said query nor have been able to show any justification to the Court for denial of appointment to the petitioner. On the other hand, learned counsel for the respondents by referring to the affidavits filed have sought to argue that the validity of the select list had expired on 31.07.2011 and, therefore, claim of the petitioner based on his inclusion in the said select list would no longer survive. 15. Petitioner had approached this Court by filing the present writ petition way back on 28.12.2007 during the validity of the select list. Therefore, the above contention of the respondents that petitioner would not be entitled to any relief in view of expiry of the validity of the said list on 31.07.2011, cannot be accepted. 16. Keeping in view the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the purpose behind initiating the special drive for recruitment of persons with disabilities, claim of the petitioner for appointment by virtue of his selection as a visually impaired candidate from Karimganj district against the earmarked post of Lower Division Assistant in the Public Health Engineering Department cannot be overlooked. At the same time, though respondent No. 8 has not responded to the notice of this Court, considering the fact that he is also a physically disabled candidate and has been in employment for more than 6 years now, it would neither be fair nor just to oust him from his employment. However, having regard to the singular facts of the present case, as already noticed above, petitioner has to be provided with appointment in terms of his selection otherwise grave injustice will be caused to him. Though the Chief Engineer in his affidavit filed on 08.10.2013 had indicated that there were 3 vacancies for persons with disabilities to be filled up during the year 2012-13, he did not indicate which post was earmarked for which category of disability as is the requirement under section 33 of the aforesaid Act. Out of total 3% reservation, 1% each has to be reserved for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. 17. Out of total 3% reservation, 1% each has to be reserved for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. 17. Thus, having regard to the above and considering the matter in its entirety, this Court is of the considered opinion that it would meet the ends of justice if the petitioner is offered appointment as a visually impaired candidate against a suitable Grade-III post in the Public Health Engineering Department for any of the vacancies earmarked for physically disabled candidates, either available or against vacancies which are likely to occur in the future. Ordered accordingly. Let this exercise be completed within a period of four (4) months from the date of receipt of a certified copy of this order. Chief Engineer, Public Health Engineering Department, Assam would be the authority responsible for carrying out this order. Writ petition is allowed to the extent indicated above. No costs.