Ashwani Kumar vs State Of J&K And Others

OM,RBA,SC,ST,ALC,OSC,TOTAL

21,7,3,4,1,0,36

necessary adjustments. In respect of physically handicapped persons, the reservation shall be available only for services, posts and type identified for",,,,,,

the purpose by the competent authority under the provisions of J&K Persons with Disabilities (Equal Opportunity, Protection of Rights and Full",,,,,,

Participation )Act, 1998 and to the extent specified thereon. Besides the nature of disability for a post indicated in the Government order 62â€"SW of",,,,,,

2001 dated 13.03.2001 read with Government Order No. 231-SW of 2011 dated 22.12.2011 shall be adhered to in letter and spirit. The horizontal,,,,,,

reservation to the extent of 6% of the available vacancies shall be provided to the Ex-servicemen against such posts only where maximum of the pay,,,,,,

scale dos not exceed Rs.10500/- (pre-revised)â€​.,,,,,,

12 The petitioner cannot claim that he was aware of the Advertisement Notification and its terms and conditions except the one reproduced above.,,,,,,

He was also supposed to be aware that the Government Order No. 62 â€"SW of 2001 dated 13.03.2001 and Government Order No. 231-SW of 2011,,,,,,

dated 22.12.2011 did not provide reservation for the category of hearing impairment and, therefore, the petitioner was not entitled to the benefit of",,,,,,

reservation provided in favour of the „persons with disabilities‟.,,,,,,

13 The plea of learned counsel for the petitioner that subsequently the Government vide its order dated 17.06.2014 revisited the posts identified for the,,,,,,

purpose of granting benefit of reservation to the „persons with disabilities‟ and in the undated list prepared after fresh exercise, for the posts of Jr.",,,,,,

Physiotherapist, the disabilities of „hearing impairment‟ and „low vision‟ were identified, as such, the petitioner is entitled to the benefit of the",,,,,,

fresh identification made in the year 2014, cannot be accepted in the face of categoric provisions of Act of 1998. For expediency, Section 21 and 22 of",,,,,,

the Act are reproduced herein below:,,,,,,

“21. Identification of posts which can be reserved for persons with disabilities- The Government shall:,,,,,,

(a) identify posts, in the establishments which can be reserved for the persons with disabilities;",,,,,,

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the development in",,,,,,

technology.,,,,,,

Reservation of posts. The Government shall appoint in every establishment such percentage of vacancies not has than three percent, 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;,,,,,,

(iii) locomotor disability or cerebral palsy, in the posts identified for each disabilities:",,,,,,

Provided that the Government may, having regard to the type of work carried on in any department or establishment by notification, subject to such",,,,,,

conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.â€​",,,,,,

14 From a reading of Section 21 of Act of 1998, it is crystal clear that with a view to give effect to the reservation in favour of „persons with",,,,,,

disabilities‟, it is necessary for the Government to first identify the posts, in the establishments which can be so reserved. It is further mandated that",,,,,,

the Government shall review the list of posts identified and update the list taking into consideration the development in technology at periodical,,,,,,

intervals not exceeding three years. As per Section 22 of Act of 1998, the Government is put under an obligation to reserve in every establishment,",,,,,,

unless it is exempted under the proviso, such percentage of vacancies not less than 3%, for the persons or class of persons with disabilities of which",,,,,,

one percentage each shall be earmarked 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 disabilities.",,,,,,

15 It is, thus, clear that the reservation to be given to the persons with disabilities under Section 22 of Act of 1998 is dependent upon the identification",,,,,,

of the posts under Section 21 of Act of 1998. In other words, identification of posts in an establishment not exempted under the proviso to Section 22",,,,,,

is sine qua non for giving effect to the reservation provided under Section 22 of the Act of 1998 for the persons with three type of disabilities.,,,,,,

16 The State of Jammu and Kashmir, as it then was, enacted the Act of 1998 only on 19.05.1998, but, the same was implemented in letter and spirit",,,,,,

only in the year 2001 when Government Order No.62 â€"SW of 2001 dated 13.03.2001 was promulgated and the posts in different establishments,,,,,,

were identified for the benefit of granting reservation for the persons with disabilities. The expression used in Section 22 i.e. “locomotor disability or,,,,,,

cerebral palsy, in the posts identified for each disabilities†is significant and clearly manifests the intention of the legislature. Unless the post is",,,,,,

identified for a particular nature of disability, the reservation envisaged under the Act of 1998 cannot be given effect to.",,,,,,

17 The Hon‟ble Supreme Court as also this Court in the judgments cited by learned counsel for the petitioner was seized of the situation where the,,,,,,

relevant Government had failed to carry out the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full",,,,,,

Participation) Act, 1995 (Central) and the Act of 1998 (State) and held that the failure on the part of the Government to perform its statutory duty of",,,,,,

identifying the posts and updating the list periodically, cannot and should not work to the prejudice of the persons with disabilities. Taking note of the",,,,,,

benevolent and beneficial nature of the legislation, the Supreme Court directed the respondents-authorities to accommodate the petitioners. However,",,,,,,

in the instant case, the respondents purportedly in due deference to the directions issued by the Division Bench of this Court in the case of Anjeel",,,,,,

Kumar (supra) undertook the exercise to revise and update the list of posts identified for the purpose of granting reservation under the Act of 1998.,,,,,,

The exercise resulted in issuance of Government Order Government Order No. 231-SW of 2011 dated 22.12.2011.,,,,,,

18 For the reasons which are well within the domain of experts, the post of Jr. Physiotherapist was not identified for the benefit of granting reservation",,,,,,

in favour of persons suffering with requisite disability of hearing impairment. When advertisement notification was issued in the year 2012, the latest",,,,,,

exercise in the shape of Government Order No. 231-SW of 2011 dated 22.12.2011 was in existence and the same was duly indicated in the note,,,,,,

appended at the foot of the Advertisement Notification (supra). The petitioner being well aware that there is no reservation for his type of disability,,,,,,

provided in the Government Order No. 231-SW of 2011 dated 22.12.2011 participated in the selection process with his eyes wide open and did not,,,,,,

raise any protest or objection. He, however, felt aggrieved only when because of his merit in the written test, he was excluded from the zone of",,,,,,

consideration and was not shortlisted for vive-voce.,,,,,,

19 I am aware that there could be no estoppel against the statute, but, in the instant case, it is not the case of the petitioner that the respondents have",,,,,,

violated any statutory provisions, nor he has assailed the Government Order No. 231-SW of 2011 dated 22.12.2011 on any ground whatsoever. The",,,,,,

only case of the petitioner as projected by learned counsel for the petitioner is that in the year 2011, the Government identified the posts of Jr.",,,,,,

Physiotherapist for the purpose of granting benefit of reservation to the „persons with disabilities‟ like hearing impairment and that notification,,,,,,

should operate retrospectively and, therefore, at least one post should fall in the kitty of the petitioner. I am not impressed with the argument.",,,,,,

20 It is not the case where the respondents have failed to carry the mandate of law. Right from the year 2011, there has been periodical revision, one",,,,,,

made in the year 2013 and one in the year 2014. This updation of the list is left to the experts in the domain and the Court cannot substitute its opinion,,,,,,

and say that the post of Physiotherapy or for that matter, any particular post should have been identified for giving the benefit of reservation under the",,,,,,

Act of 1988 with respect to the disability. As provided in clause (b) of Section 21 of Act of 1998, it is for the Government to undertake periodical",,,,,,

review of the list of posts identified and update the same taking into consideration the development in the technology. That being so, it cannot be said",,,,,,

that there was some failure or neglect on the part of the respondents to undertake the periodical review. The situation in the case of Anjeel Kumar,,,,,,

(supra) was different. The first Government order noted above was issued in the year 2001 and till the year 2011, there was no review/revise of the",,,,,,

list of posts identified for the purpose of horizontal reservation envisaged under the Act 1998. From the year 2011 onwards, the Government has not",,,,,,

shown any remissness or negligence and has acted as per the mandate of the law. The post of Physiotherapy has now been identified for the purpose,,,,,,

of granting the reservation in favour of the persons with disability like hearing impairment and low vision and, therefore, the same will enure to the",,,,,,

benefit of those who seek their selection and appointment after promulgation of Government Order 17.06.2014.,,,,,,

Applying the Government order retrospectively to the pending selection or even to the selection which has already been concluded would be,,,,,,

creating administrative chaos and unsettling the settled things. I am not inclined to do so.,,,,,,

22 In the light of the preceding analysis, this petiton is found to be without any merit and is, accordingly, dismissed.",,,,,,

23 In view of dismissal of instant petition, nothing survives for consideration in SWP No. 3446/2014 and the same is also dismissed.",,,,,,