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2015 DIGILAW 1367 (RAJ)

Radheshyam Mali v. State of Rajasthan

2015-07-22

GOVIND MATHUR, JAISHREE THAKUR

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JUDGMENT : PER HON'BLE MATHUR, J. The Zila Parishad, Bhilwara under a notification dated 2.4.2012 invited applications from eligible persons to be considered for appointment as Teacher Grade-III in accordance with the provisions of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996'). Out of total 205 vacancies advertised six posts were kept reserved for physically handicaps. The grievance of the petitioner is that as per applicable roster for reservation at least 7 posts should have been allocated to the physically handicaps but the respondents kept only 6 posts reserved for such persons. Learned Single Bench, by judgment impugned dated 2.4.2014, dismissed the writ petition preferred by the petitioner by arriving at the conclusion that “no reservation can be provided beyond the quota prescribed in the rules and as per rules out of 205 candidates only 6 candidates can be can be provided appointment under the category of physically handicap and as per rules all the posts have already been filled in”. In appeal, the only argument advanced by Dr. (Mrs.) Nupur Bhati, learned counsel appearing on behalf of the appellant, is that according to the Rules of 1996 reservation is required to be given as per Rules and the reserved posts must be filled as per existing roster. It is submitted that as per existing applicable roster the vacancies arriving at the roster points No.1, 34 and 67 are to be filled in from the persons suffering from disability as defined under the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act of 1995') and the rules framed thereunder. In the case in hand, being the first selection made by the Zila Parishad, Bhilwara the roster was operated from serial No.1, therefore, the vacancies at roster points No.1, 34, 67, 101, 134, 167 and 201 should have been filled in from among the persons suffering from the physical disability. Per contra, the stand of the respondents is that as per the applicable roster only 6 vacancies could have been reserved for the persons having disability, therefore, learned Single Bench rightly dismissed the writ petition. Heard learned counsels and examined the legal as well as factual aspects. The Government of Rajasthan while exercising powers conferred by Section 73 of the Act of 1995 framed the rules viz. Heard learned counsels and examined the legal as well as factual aspects. The Government of Rajasthan while exercising powers conferred by Section 73 of the Act of 1995 framed the rules viz. The Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2011 (hereinafter referred to as 'the Rules of 2011'). Rule 36 of the Rules of 2011 provided that in every establishment three percent of the vacancies shall be reserved for persons or class of persons with disabilities of which one percent each shall be reserved for persons suffering from : (i) blindness or low vision; (ii) hearing impairment; and (iii) Locomotor disability or cerebral spalsy. As per Rule 37 of the Rules of 2011 all establishments are required to maintain separate 100 point reservation roster registers for determining/effecting reservation for disabled. As per sub-rule(2) of Rule 37 of the Rules of 2011 each register shall have cycle of 100 points and each cycle of 100 points shall be divided into three blocks comprising the points No.1 to 33, 34 to 66 and 67 to 100 and out of these points No.1, 34 and 67 shall be earmarked and reserved for persons with disabilities. Sub-rule (6) of Rule 37 of the Rules of 2011 provides that after all the 100 points of the roster are covered, a fresh cycle of 100 points shall start. The Government of Rajasthan looking to the provisions of Rules 36 and 37 of the Rules of 2011 reshuffled its roster table and provided reservation to the physically handicaps in consonance with Rule 37 of the Rules of 2011. Under a circular dated 6.7.2012 the Principal Secretary to the Government of Rajasthan, Department of Personnel (Group-II) conveyed to all Head of Departments in the State of Rajasthan that the vacancies reserved for handicaps should be filled-in in accordance with the Rules of 2011. On examination of the facts of present case we find ourselves in agreement with learned counsel for the appellant. In the instant matter the roster is required to be operated from point No.1 being the first process of selection by the Zila Parishad. According to Rules of 2011 and the roster applied, the vacancies available at points No.1, 34 and 67 are required to be filled in from the persons belonging to physically handicaps. In the instant matter the roster is required to be operated from point No.1 being the first process of selection by the Zila Parishad. According to Rules of 2011 and the roster applied, the vacancies available at points No.1, 34 and 67 are required to be filled in from the persons belonging to physically handicaps. As per sub-rule (6) of Rule 37 of the Rules of 2011 on completion of 100 vacancies a fresh cycle of 100 points is required to be started, therefore, the vacancies at roster points No.101, 134 and 167 are also required to be filled in from among the members who are suffering from physical disability. On completion of 200 vacancies the cycle of 100 points is again required to be operated and, therefore, the vacancies No.201 is required to be given to a physically handicap. In view of this legal position out of 205 vacancies the vacancies arriving at serial No.1, 34, 67, 101, 134, 167 and 201 are required to be filled in from among the members who are suffering from disability as defined under the Act of 1995 and the Rules of 2011. Learned Single Bench in our considered opinion failed to appreciate the Rules of 2011 in correct perspective. Learned Single Bench while dismissing the writ petition also observed that no reservation could have been given beyond the quota prescribed. Suffice to mention that the reservation is required to be applied as per roster applicable and after fulfilling existing vacancies (as 205 vacancies in present case) no vacancy shall be allocated to any reserved category (physically handicaps in present case) before arriving to the roster point earmarked for that category. The roster points have been determined on basis of the percentage prescribed for reservation for the category concerned. In the instant matter 3% reservation is available to the physically handicaps and, therefore, under 100 vacancies only 3 posts are kept reserved for them. The cycle of roster is required to be repeated after fulfilling 100 vacancies, therefore, the roster system applied is designed in such a fashion that the reservation may never cross the statutory limits prescribed. In view of the discussions made above, we are of considered opinion that the vacancy at roster point No.201 should have been given by the respondents to physically handicaps. Accordingly, this appeal is allowed. In view of the discussions made above, we are of considered opinion that the vacancy at roster point No.201 should have been given by the respondents to physically handicaps. Accordingly, this appeal is allowed. The judgment passed by learned Singh Bench dated 2.4.2014 is set aside. Respondent Zila Parishad is directed to fill up the vacancy at roster point No.201 from a person belonging to the physically handicap category. If the process of selection has already been completed during the pendency of this litigation and no vacancy from among the vacancies advertised under the notification dated 2.4.2012 is available, then the respondents shall consider candidature of a physically handicap person including the appellant by creating supernumerary post with clear understanding that the post so created shall be adjusted by reducing one post from the vacancies occurring in future vacancy years. The person, on appointment under these directions, shall be entitled for all consequential benefits except actual payment of pay and allowance connected thereto.