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2018 DIGILAW 728 (GAU)

RUPAK BORAH III GDR 004221 v. STATE OF ASSAM

2018-05-03

HRISHIKESH ROY

body2018
JUDGMENT & ORDER : 1. Heard Mr. Parag J. Saikia, the learned counsel appearing for the petitioners in both the cases. Also heard Mr. D. Nath, the learned Addl. Sr. Govt. Advocate, appearing for the Social Welfare Department. The authorities of the Education Department are represented by Mr. S.M.T. Chistie, the learned Standing counsel. The Health Department officers are represented by Ms. D. Borah, the learned Standing counsel. 2. The five petitioners are visually impaired persons and are claiming appointment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Disabilities Act). The appointment claim relates to the 662 vacancies earmarked for the impaired category, for which the recruitment process was initiated with the 2005 advertisement published, by the Social Welfare Department. The petitioners offered their candidature and participated in the recruitment exercise, on the basis of the call letters issued by the respective authorities of the Social Welfare Department of Sivasagar and Lakhimpur District. 3.1 The Director of Social Welfare then published the department-wise and category-wise list of selected candidates and from there, it can be seen that the first petitioner in the WP (C) No.2001/2011, Rupak Borah with Roll No.221, was selected for the post of ME School Teacher, in the Sivasagar District. Likewise, the 2nd petitioner Bikash Bordoloi with his Roll No.117, was selected for a Grade-IV post, in the Sivasagar District, under the Director of Health Services. 3.2 The three petitioners in the WP (C) No.2012/2011 had also similarly participated in the selection conducted in July, 2005, by the District Welfare Officer, Lakhimpur, but the first petitioner Asma Begum with her Roll No.NLP 059, failed to qualify. However the 2nd petitioner, Ratneswar Phukan with his Roll No.NLP 015, was selected for a Grade-IV vacancy in Lakhimpur District under the Director of Health Services. The 3rd petitioner, Ruhini Gogoi with her Roll No.NLP 002, was selected for the LP School Teachers vacancy in the same District, under the Directorate of Elementary Education, Assam. 4. However the 2nd petitioner, Ratneswar Phukan with his Roll No.NLP 015, was selected for a Grade-IV vacancy in Lakhimpur District under the Director of Health Services. The 3rd petitioner, Ruhini Gogoi with her Roll No.NLP 002, was selected for the LP School Teachers vacancy in the same District, under the Directorate of Elementary Education, Assam. 4. The following chart gives the details of the 4 successful visually impaired candidates:- Writ Petition No. Name of petitioner Roll No. Name of Post selected for Department WP (C) No.2001/2011 Rupak Borah 221 ME Teacher Elementary Education WP (C) No.2001/2011 Bikash Bordoloi 117 Grade-IV post Director of Health Services WP (C) No.2012/2011 Ratneswar Phukan 015 Grade-IV post Director of Health Services WP (C) No.2012/2011 Ruhini Gogoi 002 LP Teacher Elementary Education 5. Following their selection, the petitioners were hoping for early appointment but the respondents failed to do anything in the matter. At this stage, the Chief Commissioner, designated under Section 57 of the Disabilities Act, intervened to safeguard the rights of the disabled aspirants. The learned counsel, Mr. Parag J. Saikia, projects that a Mobile Court was held by the designated authority and he examined the grievances of the selected persons and the States obligation to fill up the backlog vacancies, earmarked for persons with disabilities, as per the advertisement, published in June, 2005. It was also noted that the recruitment process was started by the Nodal Department i.e. the Social Welfare Department, after receiving the details of the available vacancies from different Departments of the State Government. Thus the Chief Commissioner, in reference to Section 33 & 34 of the Disabilities Act, issued the following direction on 3.11.2007: ". 9. In the light of the above, the respondent department is directed as follows:- (a) Appointment of persons with disabilities out of the selected candidates on the basis of their merit against all available vacancies in the identified posts shall be made by the respondent out of the candidates recommended by Social Welfare Department as per their merit by 03-01-2008. (b) Appointment against the future vacancies in the identified posts shall be made out of the candidates with disabilities recommended by the Social Welfare Department on the basis of their merit position in the list until those eligible candidates as per the principles already decided, are accommodated. (b) Appointment against the future vacancies in the identified posts shall be made out of the candidates with disabilities recommended by the Social Welfare Department on the basis of their merit position in the list until those eligible candidates as per the principles already decided, are accommodated. If in the meantime any of the recommended candidates becomes over age by the time his/her turn comes for appointment, he/she will be given age relaxation in upper age limit to the required extent. (c) Action taken report shall be submitted by the respondent department to Commissioner, Disabilities, Govt. of Assam by 13-01-2008, indicating therein the number of candidates issued appointment letters and the action plan for appointing the remaining recommended candidates. ". 6. The above order passed by the Chief Commissioner, crystallized the right of the petitioners to secure appointment in the vacant posts, for which they have been selected. At this stage, the respective standing counsel for the Department of the Elementary Education and the Health Department, submit that before appointment is made, the appointing authority should be permitted to verify from the Social Welfare Department whether, the respective roll numbers of the writ petitioners are incorporated in the select list. 7. In the above context, this Court in the WP (C) No.929/2011 (Smti. Moromi Dutta & another vs. State of Assam), had recorded in its judgment dated 21.8.2017, that the Social Welfare Department is unable to trace out the original records of selection, pertaining to the vacancies in the PHE Department. In the present case, we can mercifully escape similar confusion since in the counter affidavit (s) filed by the Director of Social Welfare, the concerned list of successful candidates are enclosed. This list shows that barring the first petitioner Asma Begum, in the WP (C) No.2012/2011, the other four petitioners have been selected in the visually impaired category, for appointment in the respective vacancies of ME School Teacher, LP School Teacher and also in a Grade-IV vacancy under the Director of Health Services. 8. This Court in the WP (C) No.929/2011 (Smti. Moromi Dutta & another vs. State of Assam) and in the WP (C) No.4166/2011 (Naba Kumar Das vs. State of Assam) for similarly situated persons had issued direction for appointment of the selected candidates. The circumstances of the present group is identical with the litigants who secured relief through the WP (C) No.929/2011 and WP (C) No.4166/2011. Moromi Dutta & another vs. State of Assam) and in the WP (C) No.4166/2011 (Naba Kumar Das vs. State of Assam) for similarly situated persons had issued direction for appointment of the selected candidates. The circumstances of the present group is identical with the litigants who secured relief through the WP (C) No.929/2011 and WP (C) No.4166/2011. Their right to secure appointment as visually impaired person has got crystallized by their selection and also because of the Chief Commissioners order dated 3.11.2007, under the Disabilities Act. Following such conclusion, the concerned departments are accordingly directed to ensure appointment of Rupak Borah, to the post of ME School Teacher and Bikash Bordoloi to a Grade-IV vacancy in the Sivasagar District. Likewise the two selectees in Lakhimpur District i.e. Ratneswar Phukan and Ruhini Gogoi should be appointed respectively in a Grade-IV vacancy and in the post of LP School Teacher, as per the select list prepared by the Social Welfare Department. 9. The process of appointment should be completed by the concerned departmental authorities within eight weeks of receipt of this order. The respective District Social Welfare officers of the Sivasagar and Lakhimpur Districts should coordinate with the Department, where the appointment is to be made, to ensure that the selected candidates are appointed without any further difficulty. A copy of this order furnished to the counsel for the petitioners and also to the standing counsel for the Health and Elementary Education Department and the Govt. Advocate, for doing the needful. 10. With the above order, the case stands allowed without any order on cost.