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2022 DIGILAW 26 (MAN)

Sinam Kalpana Devi v. State of Manipur

2022-02-24

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed by the petitioners to quash the impugned selection list dated 20.12.2016 and to direct the respondents to prepare another selection list after providing three per cent quota amounting to 5 posts under Persons with Disability (PWD) category as contemplated under the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (for short, 'the said Act'). 2. Heard Mr.S.Rajeetchandra, learned counsel for the petitioners; Mr.Ibotombi, learned senior counsel for the private respondent No.3 and Mr. HS Paonam, leaernd senior counsel for the respondent No. 4. Heard also Mr.H.Debendra, learned Government Advocate for the respondent State. 3. Briefly stated, the case of the petitioners is as follows: On 5.5.2016, the Directorate of Health Services, Government of Manipur, called for applications from intending candidates for recruitment to various posts in the Department. Amongst the posts, 163 vacant posts of staff nurse were indicated. The petitioners having requisite qualification have applied under PWD category along with relevant documents. The Employment Exchange, vide letter dated 30.5.2016, forwarded five names, including the petitioners names under PWD category. 3.1. Earlier, the petitioners' names were left out in the tentative list of short listed candidates due to the mistake on the part of the concerned Department. Whereupon, based on the representation of the second petitioner dated 24.10.2016, the Department published a correct final list of candidates, wherein the first petitioner was listed at Serial No.843 and the second petitioner was listed at Serial No.847. Upon the viva-voce held on 19.11.2016, the Department had published the list of selected candidates numbering 162 and another 21 names as wait listed candidates on 20.12.2016 for appointment to the post of staff nurses. 3.2. According to the petitioners, the recruitment process is fraught with inconsistencies and in contravention of the provisions of the said Act. As per the provisions of the said Act, 5 posts out of the advertised 163 posts of staff nurses should have been reserved for PWD, whereas in the impugned selection list, only 2 persons were marked PWD and are shown selected under the general category i.e. 81 posts unreserved categories making it very clear that the Department has not followed three per cent reservation policy as contemplated by the said Act. 3.3. 3.3. According to the petitioners, pursuant to the advertisement dated 5.5.2016 and 10.5.2016, 5 persons were sponsored by the Special Employment Exchange for Physically Handicapped Persons, Employment Exchange Complex, Lamphelpat, Imphal vide letter dated 30.5.2016. Surprisingly, the selected candidate namely Konthoujam Yaiphabi Devi, appearing at Serial No.55 shown selected under the GEN (PWD) has not been sponsored by the Employment Exchange and her name does not feature in the list submitted by the Employment Exchange under PWD category. The petitioners had been denied appointment to the post of staff nurse due to non-reservation of three per cent, which is calculated to 5 posts out of 163 posts and the same ought to have been reserved under the provision of the said Act. Hence, the writ petition. 4. The official respondents 1 and 2 filed affidavit-in-opposition stating that though the petitioners raised serious allegation against one of the selected candidates, she has not been made as party in this writ petition and the writ petition is liable to be dismissed on the ground of non-joinder of necessary parties. It is stated that the Employment Exchange forwarded 5 names of the candidates for PWD. However, the name of the candidates shown or otherwise appeared at Serial No.5 has already been cancelled by the Employment Exchange itself. The authorities have notified the number of posts to be filled up for the post of staff nurses was 163, out of which 1 post of staff nurse was kept unfilled/reserved for a candidate belonging to OBC as per the direction issued by this Court in W.P.(C) No.1025 of 2016, dated 16.12.2016. Therefore, there is no illegality while notifying the list of selected candidates on 20.12.2016 and, as such, the present writ petition deserves to be dismissed. 5. It is stated that the list of selected candidates was prepared according to their merit in the selection process and the candidates who belonged to reserved categories are at liberty to include in the unreserved category, if they secure higher marks and meritorious. Though the petitioners belong to PWD category under unreserved category and OBC (Meitei) respectively, they could not be brought into the select list by virtue of overall performance and marks obtained in the selection process. As such, the selected candidates listed at Serial Nos.80 and 81 are not necessary parties in the writ petition, as the petitioners have no grievance against them. 6. As such, the selected candidates listed at Serial Nos.80 and 81 are not necessary parties in the writ petition, as the petitioners have no grievance against them. 6. It is also stated that the authorities have followed the relevant rules and memorandum pertaining to reservation for PWD as well as the other reserved categories without causing any prejudice or otherwise discrimination to all concerned. If it is presuming, but not admitted that even there are two seats remain unfilled, the petitioners cannot be brought into the select list, as they do not secure the marks, which can bring them into the select list. On the other hand, the petitioners secured lesser marks and, as such, they were not in the select list. One Konthoujam Yaiphabi, though belonged to PWD category, she was selected for the post of staff nurse according to her merit position under unreserved category. Thus, there is no question of any discrimination and violation of any of the fundamental rights of the petitioners and, as such, the petitioners are not entitled to any relief claimed in the writ petition. 7. Assailing the impugned select list dated 20.12.2016, learned counsel for the petitioners submitted that Section 33 of the said Act provides for reservation of not less than three per cent for persons or class of persons with disability. Thus, out of the advertised 163 posts of staff nurse, five posts ought to have been reserved for PWD, whereas in the impugned select list, only 2 persons were marked as PWD and are shown selected under the general category, which would show that the Department has not followed the three per cent reservation policy as contemplated by the Act and as affirmed by the Apex Court in the case of Union of India and another v. Nation Federation of the Blind and others, (2013) 10 SCC 722. 8. Learned counsel for the petitioners further submitted that the petitioners having the requisite qualification and falling under the PWD category submitted their applications along with relevant documents for the post of staff nurse and that the Employment Exchange vide letter dated 30.5.2016 forwarded 5 names, including the petitioners under the PWD category. 8. Learned counsel for the petitioners further submitted that the petitioners having the requisite qualification and falling under the PWD category submitted their applications along with relevant documents for the post of staff nurse and that the Employment Exchange vide letter dated 30.5.2016 forwarded 5 names, including the petitioners under the PWD category. Though the names of petitioners were earlier left out in the tentative list of short listed candidates, thereafter, the same has been rectified by the authorities and the Department had published final list of the candidates, wherein the petitioners names have been appeared at Serial Nos.843 and 847 respectively. He would submit that though the petitioners have attended the viva-voce held on 19.11.2016, the Department while publishing the impugned select list, omitted the names of the petitioners in the impugned select list, which act of the respondent authorities, according to learned counsel for the petitioners, is in contravention of the provisions of the said Act and therefore, the impugned select list is liable to be set aside. 9. Per contra, learned Government Advocate appearing for the respondent State submitted that the respondent authorities have notified the number of posts to be filled up for the post of staff nurse was 163, out of which, 1 post of staff nurse was kept unfilled for a candidate who belonged to OBC as per the direction of this Court in W.P.(C) No.1025 of 2016, dated 16.12.2016. He would submit that the list of selected candidates was prepared according to their merit in the selection process and the candidates who belonged to reserved categories are at liberty to include in the unreserved category, if they secured higher marks and meritorious. Though the petitioners belong to PWD category under the unreserved category and OBC (Meitei) respectively, they could not be brought into the select list by virtue of the overall performance and the marks obtained by them in the selection process. In fact, the petitioners secured lesser marks and, as such, they were not included in the select list. 10. This Court considered the submissions raised by learned counsel for the parties and also perused the material available on record. 11. In fact, the petitioners secured lesser marks and, as such, they were not included in the select list. 10. This Court considered the submissions raised by learned counsel for the parties and also perused the material available on record. 11. The grievance of the petitioners is that the Health Department has not provided the mandatory three per cent quota for PWD category, while filling up the post of staff nurse pursuant to the notification dated 5.5.2016 thereby denying the petitioners' rightful opportunity of employment in the selection process. Thus, according to the petitioners, the recruitment process is in contravention of the provision of the said Act and as per the provisions of the said Act, 5 posts out of the advertised 163 posts of staff nurse should have been reserved for PWD category. 12. On the other hand, it is the submission of learned Government Advocate that the list of selected candidates was prepared according to their merit in the selection process and the candidates who belonged to reserved categories are at liberty to include in the unreserved category, if they secure higher marks. Though the petitioners belonged to PWD category under the unreserved and OBC (Meitei) respectively, they could not be brought into the select list by virtue of the overall performance and marks obtained by the petitioners in the selection process. Therefore, the candidates listed at Serial Nos.80 and 81 are not necessary parties and the petitioners have no cliam against them. 13. It appears that on 20.1.2017, when the writ petition was taken up for admission, while issuing notice to the respondents, this Court passed the following order: 'Heard Mr.S.Rajeetchandra, learned counsel for the petitioners. Issue notice returnable within three weeks. Ms.Sundari, learned GA accepts notice on behalf of the respondents 1&2. Mr.S.Rajeetchandra, learned counsel for the petitioners submit that since there are only two petitioners and if the petition is allowed, at best it can adversely affect the result of the last two persons who have been appointed on the basis of merit. He also submits that since the petitioners belong to general category, the petitioners may be allowed to implead only the last two appointees from amongst the general candidates, i.e. respondent Nos.82&83. Accordingly, the names of the remaining private respondents stand deleted. Petitioners are to take steps for service of notice upon the aforesaid two private respondents by registered post with AD. Accordingly, the names of the remaining private respondents stand deleted. Petitioners are to take steps for service of notice upon the aforesaid two private respondents by registered post with AD. List the matter on 24th February, 2017. Interim prayer will be considered on the next returnable date.' 14. Pursuant to the order of the this Court dated 20.01.2017, the cause-title of the writ petition was amended and, accordingly, the original respondents 82 and 83 have been arrayed as respondent Nos.3 and 4 by deleting the other respondents from the array of parties. Thus, the writ petition represents only four respondents. 15. According to learned counsel for the private respondents, out of the two petitioners, the first petitioner belongs to OBC. As such, the claim of the first petitioner should be as against an OBC candidate only and claiming a post against an OBC candidates, the array of the respondents 3 and 4 (original respondents 82 & 83) who are general category candidates is quite irrational. It is also the say of the private respondents that since 200 point roster is a posts based reservation system, it should be counted starting from the recommendation made vide order dated 30.7.2016 of 21 candidates and the order dated 25.10.2016 and 2.11.2016 respectively. Out of these 23 candidates, unreserved candidates have been appointed earlier. Now, 163 vacant posts have been notified, out of which, two posts which is included in the 23 posts have been filled as aforesaid from the wait listed candidates. Thus, while counting those vacancies as per the 200 point roster as it indicates is a post based reservation system, the method of counting should be starting from the 24th of the 200 point roster being 23rd posts have already been appointed. Now counting from the 24th point, for the 163 vacancies, the last advertised vacancy falls on Serial No.186 of the roster point. Therefore, the 82 posts of unreserved candidates should have been appointed instead of 81 posts. 16. When the writ petition was taken up for hearing on 31.8.2017, this Court passed the following order: 'Heard Mr.S.Rajeetchandra, learned counsel appearing for the petitioners; heard also Mr.H.Debendra, learned G.A. for the State respondents and Ms.Harichaya, learned counsel appearing for the private respondents. Therefore, the 82 posts of unreserved candidates should have been appointed instead of 81 posts. 16. When the writ petition was taken up for hearing on 31.8.2017, this Court passed the following order: 'Heard Mr.S.Rajeetchandra, learned counsel appearing for the petitioners; heard also Mr.H.Debendra, learned G.A. for the State respondents and Ms.Harichaya, learned counsel appearing for the private respondents. Mr.S.Rajeetchandra, learned counsel appearing for the petitioners submits that there are at present 5 (five) vacancies in the posts of Staff Nurses available and as such, it is the obligation of the State respondents to reserve 2 (two) posts of Staff Nurses for the persons with disabilities as required under the Persons with disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, and accordingly, the present petition can be closed if the authorities assure reservation of at least 2 (two) posts of Staff Nurse for the persons with disability. However, Mr.H.Debendra, learned G.A., submits that he may be allowed to take necessary instructions in this regard. In view of the above submission, let the matters be listed again on 14.09.2017. Mr.Rajeetchandra, learned counsel appearing for the petitioners submits that till the authorities clarify on this issue, let 2 (two) posts of Staff Nurses remain unfilled. Accordingly, it is directed that 2 (two) posts of Staff Nurses, if available, be not filled without leave of this Court.' 17. According to the parties, two posts of staff nurses were kept vacant pursuant to the interim order of this Court till date. 18. As could be seen from the materials produced by the parties, when the tentative list of short listed candidates was published, the names of the petitioners were left out due to mistake on the part of the Department. At that point of time, the second petitioner submitted a representation dated 24.10.2016 to the Director of Health Services pointing out the mistakes and highlighted the other anomalies such as non-indication of the PWD quota in the advertisement and in the final list of eligible candidates. Pursuant to the representation of the second petitioner, the Department had published the corrected final list of the candidates, wherein the name of the first petitioner appeared at Serial No.843 and the second petitioner's name appeared at Serial No.847. Thereafter, the petitioners have also attended the viva-voce conducted on 19.11.2016. Pursuant to the representation of the second petitioner, the Department had published the corrected final list of the candidates, wherein the name of the first petitioner appeared at Serial No.843 and the second petitioner's name appeared at Serial No.847. Thereafter, the petitioners have also attended the viva-voce conducted on 19.11.2016. While the Department had published the list of selected candidates on 20.12.2016 numbering 162 and another 21 names as wait listed candidates for appointment to the vacant posts of staff nurses, the names of the petitioners were not found in it. Aggrieved over the impugned final select list, the petitioners are before this Court. 19. Out of 163 advertised posts of staff nurse, 162 posts were notified as selected candidates by the impugned selection list dated 20.12.2016 and one post was kept reserved for the meritorious sports person in view of the interim order dated 16.12.2016 passed in W.P.(C) No.1025 of 2016. The said writ petition was disposed of by this court on 13.01.2017 directing the respondents to consider the case of the petitioner therein for appointment to the post of staff nurse against 5% sports quota reserved for meritorious persons and the said exercise was directed to be completed within a period of one month from the date of passing the said order. Pursuant to the said direction, an appointment order was also issued. 20. It appears that pending writ petition, in order to verify the eligibility of the petitioners for appointment to the post of staff nurse reserved for PWD category, a Committee consisting of three members was constituted pursuant to the direction of the Principal Secretary (Health & FW) Department. Accordingly, the Committee held its meetings on 1.9.2018, 7.9.2018 and 18.9.2018 respectively for verifying the eligibility of the petitioners and finally the Committee had submitted its report and the same was also placed on record for perusal of this Court. 21. On a perusal of the report of the Committee, it is seen that candidates belonging to the PWD category have applied for the post of staff nurse, which include the petitioners under the category of OBC(M) and General respectively. Out of the 5 PWD candidates, three candidates were selected based on the marks obtained by them, leaving the petitioners unselected. On a perusal of the report of the Committee, it is seen that candidates belonging to the PWD category have applied for the post of staff nurse, which include the petitioners under the category of OBC(M) and General respectively. Out of the 5 PWD candidates, three candidates were selected based on the marks obtained by them, leaving the petitioners unselected. The Committee had also examined the total marks obtained by the petitioners, namely, the first petitioner had obtained 51.45 marks and the second petitioner had obtained 50.02 marks. 22. On a further perusal of the report of the Committee, it reveals that the Director of Health Services issued a Memorandum dated 1.9.2018 calling upon the petitioners to appear physically on 7.9.2018 at 11.30 a.m. and also directed them to produce the original documents of educational qualifications, disability certificates issued by the competent authority, admit card and other relevant documents pertaining to the recruitment of staff nurse. Accordingly, on 7.9.2018, the petitioners have appeared and the Committee had examined the physical disability of the petitioners and found them as genuine and collected the documents from them. Finally, the Committee had given its findings as under: '(a) As per the above notifications dated 5th May, 2016 and 10th May, 2016, the number of advertised posts of Staff Nurse was 163 (one hundred and sixty three) and it was also clearly mentioned in the notifications that the reservation will be provided for ST/SC/OBC/PWD as per the reservation policy of Government of Manipur. (b) The reservation quota for Persons with Disabilities as per the Section 33 of the Act is 3%. Taking 3% of 163 advertised posts come to 4.89% which may be rounded of to 5 (five) number of posts. It was further seen from the records that 3 (three) candidates were recommended and appointed to the post of Staff Nurse from amongst 5 (five) applied candidates. It was observed from the available records that the Selection Committee has recommended 3 (three) PWD candidates listed in Para 6 for appointment to the post of Staff Nurse on the ground of merits. (c) All 5 (five) candidates listed in the Para No.5 above were found to be in the category of PWDs. It was observed from the available records that the Selection Committee has recommended 3 (three) PWD candidates listed in Para 6 for appointment to the post of Staff Nurse on the ground of merits. (c) All 5 (five) candidates listed in the Para No.5 above were found to be in the category of PWDs. (d) Sinam Kalp[ani Devi and Lourembam Sanahanbi Devi left out in the recommended list of selection as they were not merited by marks as compared to the marks obtained by the last selected candidates of al categories in Para 9. (e) 2 (two) vacancies exist, since the selected candidate at Sl.No.1 in the General and Sl.No.106 in the OBC (MP) categories have not submitted their Offer Forms to the competent authority. It is also learnt that a Writ Petition No.679 of 2018 is being filed by D.Toshim Maring, the first wait list candidate under General category claiming for appointment to the vacant seat vacated or otherwise surrendered by the select list candidates at Sl.No.1 i.e. Mangte Jimi Kom which is pending before the Hon'ble Court and the other existing 1 (one) post remains unclaimed yet.' 23. Thus, the findings of the Committee are to the effect that all the 5 candidates, including the petitioners, were found to be in the category of PWD category. The petitioners' physical appearance was also verified by the Committee on 7.9.2018 and found them as genuine. The Committee had also observed in its report that the petitioners were left out in the recommended list of selection, as they were not merited by marks as compared to the marks obtained by the last selected candidates of all categories. 24. Admittedly, out of 5 candidate, the Department had selected three candidates, who have obtained 71.59, 66,43 and 68.15 marks respectively. The first petitioner obtained 51.45 marks, while the second petitioner obtained 50.02 marks. Thus, the next candidates to be considered for selection are the petitioners only, as under PWD category only 5 persons applied. Thus, the petitioners cannot be compared to the marks obtained by the last selected candidates of all categories as contended by the respondent State. Once the petitioners have been categorised as PWD, in the category of PWD, they should be selected as they are the next persons to be selected under PWD category. 25. Thus, the petitioners cannot be compared to the marks obtained by the last selected candidates of all categories as contended by the respondent State. Once the petitioners have been categorised as PWD, in the category of PWD, they should be selected as they are the next persons to be selected under PWD category. 25. At this juncture, it is pertinent to point out that time and again the Apex Court held that computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., computing three per cent reservation on total number of vacancies in the cadre strength which is the intention of the legislature. 26. There is no quarrel that as per Section 33 of the Act and also the settled law, 5 posts, out of the advertised 163 posts of staff nurse, should have been reserved for PWD category. However, while issuing the impugned selection list, the respondent authorities have failed to follow the three per cent reservation policy as contemplated by the said Act and omitted the petitioners' name, though they were found to be genuine candidates, as observed by the Committee. 27. As stated supra, pursuant to the interim order two posts of staff nurses remain unfilled and learned Government Advocate also reported that the said two posts of staff nurse are lying vacant till date. Since the petitioners have established their case, they are eligible to be appointed in the said two posts. 28. At the end, it is opposite to mention that employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community. 29. The Government of India and the State Governments and also the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. 29. The Government of India and the State Governments and also the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the said Act was enacted way back in 1995, the disabled people have failed to get required benefit until today. 30. For all the reasons aforesaid and based upon the Committee's report, this Court is of the view that the petitioners are genuine candidates as per the report of the Committee and they have been left out in the recommended list of the impugned selection. Since on merit also, the petitioners are eligible to be appointed as staff nurses under PWD category, this Court is also of the view that they have to be appointed in the unfilled two posts kept vacant pursuant to the interim order of this Court to meet the ends of justice. 31. In the result, (a) The writ petition is allowed. (b) The impugned selection list dated 20.12.2016 in so far the petitioners are concerned is set aside. (c) The official respondents are directed to prepare a revised selection list including the names of the petitioners under PWD category and, accordingly, appoint them as staff nurses in the two posts kept vacant pursuant to the interim order of this Court dated 31.08.2017. (d) The said exercise is directed to be completed within a period of four weeks from the date of receipt of a copy of this order. (e) No costs. 32. Registry is directed to issue copy of this order to both the parties through their WhatsApp/e-mail.