Ghulam Nabi Dar vs State and Others

Muzaffar Hussain Attar,

Appellant a physically challenged person suffering from deafness about 60% of his left ear sought consideration for being selected/appointed on

the post of Physical Education Teacher when he responded to the advertisement notice No. 03/06 dated 28th Dec. 2006, in District cadre

Anantnag, as also advertisement notice No. 06/2008 dated 28th May 2008, in district cadre Kulgam. By the time the second notification was

issued, District Kulgam was carved out of District Anantnag. Being unsuccessful in the selection process, appellant filed writ petition, wherein he

prayed for issuance of writ of certiorari for quashing the process of selection as also the selection list forwarded by respondent No. 2 to

respondent No. 1. It was also prayed that respondent No. 1 and respondent No. 2 be commanded to select/appoint the petitioner on the post of

Physical Education Teacher under handicapped category for a post notified vide advertisement notice No. 03/06 and notification No. 06/08. The

ld writ court considered the writ petition on 29th April 2010 and while issuing notice, directed respondents to kept one post vacant. Respondent

No. 2 (J & K Service Selection Board) filed reply affidavit/objections, in which, it was stated that the appellant failed to reach cut off point in

Open Merit Category as he secured only 28.48 points, whereas the last cut off point was 41.43 points.

The ld writ court dismissed the writ petition vide its order/judgment dated 14th March 2012. It is this judgment/order, which is called in question

in this Latter's Patent Appeal(LPA). When the LPA was first considered by the court it was provided that on post of Physical Education Teacher

be kept reserved.

The principal ground of challenge as projected by the ld counsel for the appellant is that the respondent No. 2 has not considered the claim of

the appellant for being selected/appointed on the post of Physical Education Teacher under handicapped category and the ld writ court while

observing that the appellant applied under Open Merit Category and not ""physically handicapped category"" illegally dismissed the writ petition. Ld

counsel submitted that the ld writ court has failed to appreciate the legal position governing the case. Ld counsel submitted that 3% post(s) have

been reserved for physically handicapped persons and the appellant who sought consideration as a physically handicapped person deserved to be

selected/appointed on the post of Physical Education Teacher.

Ld counsel for respondents No. 1 and 2 submitted that in the application form the appellant specifically sought consideration as an Open Merit

Category candidate and because of his merit he secured in the selection process he could not be selected/appointed on the post of Physical

Education Teacher. Ld counsel produced record as also the original (OMR) application form of the appellant and prayed for dismissal of the

appeal.

The appellant at paragraph-5 of his writ petition has specifically pleaded that he filed application form and sought consideration for being

selected on the post of Physical Education Teacher under handicapped category in District Anantnag. At paragraph-6 of the writ petition, while

referring to the academic and technical qualification possessed by the appellant, also pleaded that he is physically challenged person which fact is

evidenced by the disability certificate issued by the authorities of the health department. The respondent No. 2 in his reply affidavit/objections while

replying to paragraph-5 of the writ petition stated that this paragraph is not denied. In respect of paragraph-6 of the writ petition, the respondent in

the reply affidavit stated that same is matter of record and further reply will be given while submitting reply to the grounds of challenge pleaded in

the writ petition. In reply to the grounds, it has been stated by the respondent No. 2 that appellant did not seek consideration for being

selected/appointed under handicapped category and did not produce handicapped category certificate issued by the concerned authority. It is also

pleaded that appellant had not bubbled the relevant handicapped category column in the application form, but has bubbled open merit category

column.

Before dealing with the submissions made by the ld counsel(s) for the parties and the facts projected in the respective pleadings, it is deemed

appropriate to refer to the relevant provisions of law.

In order to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to the persons with disabilities, the

State Legislature enacted the law called J & K Persons with Disabilities (Equal Opportunities, Protections of Rights and Full Participation) Act,

1998 (for short Act of 1998). The Act came into force on 19th May, 1998, on the day it was notified in the Government gazette.

The provisions of Act of 1998, relevant for this case are taken note of:

Section 2(d) (iv) ""hearing impairment"" Section 2 (f) ""Establishment"" means a Corporation established by or under a Central or State Act, or an

authority or a body owned or controlled or aided by the Government or a local authority or a Government Company as defined in Section 17 of

the Companies Act, 1956 and includes departments of a Government.

Section 2 (g) ""Hearing impairment"" means loss of sixty decibels or more in the better ear in the conversational range of frequencies.

Section 2(p) ""person with disability"" means a person suffering not less then forty per cent of any disability as certified by a medical authority.

Section 22.

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

Section 23.

(1) The Government, may be notification, require that from such date as may be specified, by notification, the employer in every establishment shall

furnish such information or return as may be prescribed in relation to vacancies appointed for persons with disability that have occurred or are

about to occur in that establishment to such special Employment Exchange as may be prescribed and the establishment shall thereupon comply

with such requisition.

(2). The form in which and the intervals of time for which information of returns shall be furnished and the particulars they shall contained shall be

such as may be prescribed.

Section 25.

Vacancies not filled up to be carried forward

Wherein any recruitment year any vacancy u/s 22 cannot be filled up due to nonavailability of a suitable person with disability or, for any other

sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable

person with disability is not available, it may first be filled by inter change among to three categories and only when there is no person with disability

available for the post in the year the employer shall fill-up the vacancy by appointment of a person, other than a person with disability.

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed the vacancies may be inter

changed among the three categories with prior approval of the Government.

Chapter-II of the J & K Persons with Disability Equal Opportunities, Protection Rights and Full Participation Rules, 2003 (for short Rules of

2003), provide guidelines for evaluation and assessment of various disabilities.

Rule 37 of the Rules of 2003 is taken note of:

Rule 37. Computation of Vacancies

The executive instructions for method of computation of vacancies shall be issued under this rule from time to time.

Section 3 and 4 of J & K Reservation Act of 2004 (for short Act of 2004) is taken note of:

Section 3 Reservation in appointment Except as otherwise provided hereinafter, available vacancies to the extent as may be notified by the

Government from time to time shall be reserved for appointment by direct recruitment from amongst the person belonging to;-

(a) Scheduled Castes and the Scheduled Tribes which shall not exceed the ratio and proportion as the population of each such category bears to

the total population of the State as per the latest available census; and

(b) Socially and educationally backward classes;

Provided that the total percentage of reservation shall in no case exceed 50%:

Provided further that the Government shall exclude the services and posts, which, on account of their nature and duties are such as call for highest

level of intelligence, skill and excellence, from operation of the Act.

Section 4. Reservation not to bar appointment in open merit.

Nothing contained in section 3 shall prevent the appointment of any person belonging to any reserved category against, unreserved vacancy on the

basis of his merit and such appointment shall not result in reduction in the number of posts reserved for that category.

Rule 4 and explanation- A, B and C, Rule 7 (6) (8) of J & K Reservation Rules, 2005 (for short Rules of 2005) are taken note of:-

Rule-4 Reservation in Direct Recruitment. Except as otherwise provided in these rules, available vacancies shall be reserved for direct recruitment

in each service, class, category and grant in favour of permanent residents of the State belonging to any of the below mentioned categories which

shall, as nearly as possible, constitute the percentage of available vacancies shown against each:-

(a) Scheduled Castes 8%

(b) Scheduled Tribes 10%

Socially and Educationally Backward Classes (other than Scheduled Castes and Scheduled Tribes:

(i) Weak and under privileged Classes (social caste) 2%

(ii) Residents of areas adjoining Line of Actual Control (ALC) 3%

(iii) Residents of backward areas 3%

(d) Ex-servicemen 6% Horizontal Reservations

(e) Physically Challenged Persons 3%

Explanation (A):- The horizontal reservation to the extent of 6% of the available vacancies shall be provided to the Ex-Servicemen against such

posts only where the maximum of the pay scale does not exceed Rs. 10,500/-.

Explanation (B):- For purposes of clause (d) and (e), the horizontal reservation means the reservations which would cut across the vertical

reservation (what is called inter-locking reservation) and the person selected against the physically challenged quota will have be placed in the

appropriate category viz. if he/she belongs to the scheduled case category, he/she will be placed in that quota by making the necessary adjustment

and similarly if he/she belongs to the open competition category, he/she will be placed in that category.

Explanation (C);- For the purposes of clause(e0 reservations in recruitment shall be available for physically challenged persons for services and

posts specified u/s 212 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act,

1998 to the extent specified therein. Ie;

(i) Blindness or low vision...1%

(ii) Hearing impairment...1%

(iii) Locomotor disability or Cerebral Palsy...1%

Rule 7 (6) (8)

(6) Notwithstanding anything to the contrary contained in sub rules (1) to (5), the selection authority shall provide horizontal reservation to the

extent specified under rule 4 to the candidates under the categories ex-servicemen and physically challenged persons while preparing the roster

under the said sub-rules.

(8) For purposes of services to which Combined Competitive Examination is conducted, the reserved category candidates if selected against open

merit vacancies may also be considered for allotment of services allocable to their respective category as per their inter-se-merit/own preference

and the resultant left over vacancies in the services in open merit shall be allotted to those reserved category candidates only, as per merit-cum

preference, against whose vacancies the reserved category candidates qualifying in the open merit are considered;

Provided that physically challenged candidates shall be considered for selection in the services and against the posts identified for their respective

categories in terms of Government Order No. 62-SW of 2001 dated 13.03.2001 and in accordance with their merit-cum-preference, if otherwise

found suitable for selection.

Government order No. 62-SW 2001 dated 13th March, 2001, (Annexure-A) and relevant part of annexure-B is taken note of:-

GOVERNMENT OF JAMMU AND KASHMIR

Civil Sectt. Social Welfare Department

Sub: Reservation for disabled/Handicapped in Government Services.

Ref. Cabinet Decision No. 37/2 dated 08-02-2001.

Government Order No. 62-SWD of 2001

Dated 13/03/2001

Sanction is hereby accorded to the:

(1) Notification of the posts of Gazetted and Non-gazetted identified by an Expert Committee for appointment of Physically Handicapped/disabled

persons, to the extent of 3% reservation of direct recruitment only under the provisions of Jammu and Kashmir Persons with Disabilities (Equal

opportunities protection of rights and full participation) Act, 1988 as per details indicated in Annexure X to this order.

(2) Adoption of definitions of different types of disabilities of Physically Handicapped as per details given in Annexure A to this order; and

(3) Adoption of guidelines for effective implementation of such reservation in favour of physically Handicapped persons with the change in

nomenclature as suggested by the General Administration Department as per Annexure-B for this order.

By order of the Government of Jammu and Kashmir.

Sd/-

Principal/Secretary to

Govt.

Social

Welfare

Department.

Annexure-B

CALCULATION OF THE MEMBER OF VACANCIES

3.1 Although the recruitment of physically handicapped persons would be only against posts identified as suitable for them, while computing the

vacancies to which the reservation would apply, the total number of vacancies occurring in the said Gazetted and Non-Gazetted would be taken

into account i.e. the 3% shall have to be computed on the basis of vacancies occurring in both the identified and non-identified posts in Gazetted

and Non-Gazetted

3.2 All heads of departments shall maintain a separate 100 point Register for this purpose, in which each cycle of 100 points shall be divided into

three blocks, comprising the following points

No. 33 1st Block Point No. 1 to Point

No. 67 2nd Block Point No. 34 to Point

No. 100 3rd Block Point No. 68 to Point

3.3 All the vacancies reported by the different appointing authorities will be entered in this Register to each group of posts (Gazetted or Non-

Gazetted). The account shall be maintained on year to year basis separately for Gazetted and Non-Gazetted posts/services and will be closed

annually. For each block of vacancies, there shall be reserved one vacancy for the physically handicapped posts/services identified as suitable for

one or more of the categories of the physically handicapped i.e. when there are 33 vacancies in a Group, one vacancy is to be reserved for the

physically handicapped. After computing all the vacancies and determining the reservation for the handicapped block wise, in the manner indicated

above, the Head of Department will be required to distribute these reserved vacancies for the handicapped among different appointing authorities

in the light of availability of vacancies in the identified categories under the various appointing authorities. Care should also be taken that 3%

reservation for physically handicapped is, as far as possible, distributed equally among the three sub categories i.e. the blind the deaf and the

Orthopedically handicapped, consistent with the appropriate identification. If the number of vacancies is such as to cover only one block or two,

discretion as to which category of the handicapped should be accommodated first sold vest in the head of the department. He will besides this on

the basis of the nature of the post, the level of representation of the specified handicapped category in the concerned grade/post and the availability

of candidate of a particular handicapped category in so far as that can ascertained.

3.4 In the event of the reservation not being utilized in the same block in which it fell due, if shall be cause forward to the next block of.

Everything created in this universe is for the benefit of human being. The nature by its Will has conferred more mental and physical prowess on

one person and less on the other person. Some human beings among us are not physically fit, some human beings suffer from different kinds of

physical deformities and disabilities. The person who suffers from some kind of physical deformity and disability is not, thus, in a position to exploit

benefits provided by the nature to the extent they are exploited by another person who does not suffer from such disabilities and deformities. By

making a person mentally and physically fit in all respects, the nature in fact has created trust in him, which is to be utilized for the benefit of that

person who suffers from any kind of mental/physical deformity and disability Physically and mentally fit persons, thus, by operation of natural laws

owe certain duties to mentally/physically disabled persons. A human being when breaths on this planet, does not pass on, by his own will, and his

mental/ physical capacities are not self created. A human being, an extra ordinary creation of nature, in fact, a miracle on this planet, cannot claim

of being mentally/physically fit and advanced than other person because of his own volition or Will. A person who is created physically and

mentally fit, thus, has definite advantage over those persons who are born mentally/physically disabled. These two types of persons, thus, form two

different and distinct classes. These two classes by their very advantages/dis-advantages cannot exploit in similar manner, their potentials and

whatever is available in this universe. The physically and mentally fit person, thus, has to share the benefits which by his physical and mental

prowess he attains or may attain with those who are physically and mentally challenged. If mentally and physically fit person will not allow the

mentally and physically challenged person a liberty to enjoy some advantages of life, then it will be a rank injustice meted out to such class of

people. The very concept of justice would mandate for allowing at least an elbow room or some space to the physically challenged person.

One such step taken by the State to achieve the aforementioned purpose has brought into the existence the Act of 1998, whereunder

reservation of post(s) have been ordered and it has been mandated in Section 22 thereof that the Government shall appoint in every establishment

to the vacancies not less than 3% of persons or class of persons with disability, of which 1%, each shall be reserved for persons suffering from

deafness, or low vision, hearing impairment, locomotor disability or cerebral palsy. The mandate contained in Section 22 of the Act of 1998, casts

a special and sacrosanct duty on the Government to provide not less than 3% of posts for the persons suffering from disabilities described in the

said Section.

Rule 4 provides for 3% horizontal reservation for physically challenged person. The Explanation-B appended to Rule 4 of the Rules of 2005,

provide that horizontal reservation would mean, that reservation which would cut across the vertical reservation ( inter locking reservation). It

further provided that the person(s) selected against physically challenged quota will have to be placed in appropriate category, viz. if he/she

belonged to Schedule cast category, she/he will be placed in that quota by making necessary adjustment. Similarly, if she/he belong to the Open

competition category, he/she will be placed in that category.

The Section 22 of the Act of 1998, and Explanation-C appended to Rule 4 of Rules 2005, provide for reservation of vacancies in recruitment,

in as much as 1% of posts for persons suffering from blindness or low vision; 1% suffering from hearing impairment and 1% persons suffering from

locomotor or cerebral palsy. Rule 7 of the Rules of 2005, refers to Preparation of the Select List. Sub rule (6) provides that notwithstanding

anything contrary contained in sub rule (1) to (5), the selection authority shall provide horizontal reservation to the extent specified under rule 4 to

the candidates falling under the categories, ex-serviceman and physically challenged persons while preparing the roster under said sub rules.

Proviso to sub rule (8) of Rule 7 provide that physically challenged candidates shall be considered for selection in the services and against posts

identified for their respective categories in terms of the Government order No. 62-SW 2001 dated 13th March 2001 and in accordance with their

merit-cum-preference, if otherwise, found suitable for selection. The allocation of minimum 3% vacancies to the physically challenged persons as

provided u/s 22 of the Act of 1998, has been translated into reality in terms of Government order No. 62-SW 2001 dated 13th March 2001, and

Act 2004 and Rules of 2005.

The provisions of Act of 1998, Rules of 2003, Act of 2004 and Rules 2005 are to be appreciated by reading them conjointly so as to achieve

the purpose underlying the Act of 1998. The minimum 3% vacancies, for the persons with disabilities, to which they are to be appointed, is not a

reservation, as is understood in the common parlance. The purpose of the Act of 1998, is to carve out space in different services constituted by the

Government for persons with disabilities. A person with disability as defined in the Act of 1998 and Rules of 2003, can belong to the reserved

categories as well, as is provided in the Act of 2004 and Rules of 2005. A physically challenged person(s) who is to be appointed on minimum 3%

vacancies may belong to Schedule Tribe category, Schedule Caste category, Socially Educationally Backward classes or Open competition or

Open Merit category. The physically disabled person(s) when he seeks consideration for being selected/appointed on a post in pursuance to the

selection process initiated by the Service Selection Board, then he is to be adjusted in the relevant category to which he belongs to, being

physically disabled person, would horizontally cut across the vertical reservation. A physically disabled person if he/she belongs to open

competition/open merit category, then in pursuance to the mandate contained in Section 22 of the Act of 1998 read with Act of 2004 and Rules

2005, he/she on the basis of his/her merit in respect of 1% of vacancy will cut across the vertical reservation of open competition/open merit

category and will be adjusted in that category. Similarly physically disabled person belonging to any other reserved category would cut across

horizontally the reserved category to which he/she otherwise belongs to and will be adjusted in that category accordingly.

This is the legal position which has emerged on appreciation of provisions of law referred to in this judgment.

In terms of Government order No. 62-SW 2001 dated 13 March 2001, sanction was accorded to the notification of the gazetted and non

gazetted posts identified by the expert Committee for appointment of physically handicapped/disabled persons to the extent of 3% reservation by

direct recruitment under the Act of 1998, as per details indicated in annexure X to the said order. Sanction was also accorded to the adoption of

different types of disabilities of physically handicapped persons as per details given in annexure- A to the said order and for adoption of guidelines

for effective implementation of such reservation in favour of physically handicapped persons with change in nomenclature- as given in annexure-

B"" of the said order. Annexure- ""X"" of the said order has identified the post of Physical Education Teacher also as one such post(s).

Reverting back to the facts of this case, the appellant sought consideration for being selected and appointed on the post of Physical Education

Teacher in District cadre Anantnag in pursuance to advertisement notice no. 03/06 as handicapped person and advertisement notice No. 06/08 in

District cadre Kulgam.

The claim of the appellant at paragraph-5 of his writ petition, that he filed application form against one of the post of Physical Education

Teacher under handicapped category in District Anantnag is admitted by respondent No. 2 in its reply affidavit. The eligibility of the appellant to

seek consideration for being selected/appointed on the post of Physical Education Teacher as handicapped candidate is not otherwise in dispute. It

is also not in dispute that the appellant is physically handicapped person and his disability conforms to the disability as has been provided in the

Statutory Rules and Government order No. 62-SW 2001 dated 13th March 2001.

The claim of the appellant has been rejected only on the ground that in the application form he has sought consideration as an Open merit

category candidate and not as a person(s) belonging to handicapped category. The examination of the original application form of the appellant

would reveal that the application form consists of 24 columns. Column 6, Column 7 (a) (b) and (c) are taken note of:-

Category to which you belong.

RBA

o

SC

o

ST o

ALC o

OSC

o

OM o

(a)Do you belong to Handicapped category?

Yes o

No o

7(b) Kind of Disability.

Ortho

Vision

H/imp

O

O

O

7(c) Are you handicapped with over 40% disability?.

Yes o

No o

The appellant belonged to open merit category he, accordingly, bubbled the relevant circle in column-6 of the application form. Since he was a

handicapped person and sought consideration for 1% vacancy in terms of Act of 1998, Act of 2004, Rules of 2005 and Government order No.

62-SW 2001 dated 13th March 2001, accordingly, bubbled the relevant circle of column (b) indicating kind of disability he is suffering from, and

relevant circle of column 7(c) indicating that he is handicapped with over 40% disability. The appellant in these circumstances had made it clear

that he is seeking consideration for being selected/appointed on the post of Physical Education Teacher as an Open Merit candidate and was to be

considered against 1% vacancy being physically handicapped person.

Perusal of the appellant's application form would reveal that he has failed to bubble the relevant circle of column 7(a), though the appellant had

made its intention clear by bubbling the relevant circle in column7 (b) (c) that he is seeking consideration against 1% vacancy as a physically

handicapped person, yet it appears that he suffered confusion when he did not bubble the relevant circle in column 7(a), in as much as, the said

column provided ""do you belong to handicapped category"" when he had already bubbled the open merit category circle in column-6, which

provide ""category to which you belong"" The appellant appears to have been confused by expression ""category"" appearing in column-6 and

category"" appearing in column-7 (a). The appellant for the reason that he had already bubbled the relevant circle in column-6 which referred to

category"" did not thereafter, thus, bubble the relevant circle in column 7 (a). The column 7(a) otherwise is not properly and happily worded. It is

bound to create confusion in the minds of the competing candidates. The column-7 (a) should have provided are you ""physically handicapped

person"" Such an expression would enable the candidate to bubble the relevant circle without being confused. The non bubbling of the relevant

circle in column 7(a) for the afore-stated reasons cannot deprive the appellant from being considered for being selected/appointed on the post of

Physical Education Teacher for 1% vacancy as mandated by Section 22 of the Act of 1998. The reason for dismissing the writ petition of the

appellant as recorded in impugned judgment, is that, in the application form the appellant indicated that he applied as open merit category

candidate and not physically handicapped category candidate The ld writ court without referring to the provisions of Act 1998, Rules of 2003, Act

of 2004 and Rules of 2005 as also Government order No. 62-SW 2001(supra) has returned such a finding. The finding so returned, which

resulted into dismissal of the writ petition of the appellant, in view of our discussion in this judgment and for our reasons recorded hereinabove

cannot be sustained. We accordingly, hold that the appellant sought consideration for being selected/appointed as open merit category candidate

against 1% vacancy as mandated in Section 22 of the Act of 1998 being physically handicapped person and denial of consideration for being

selected and appointed has violated his constitutional rights as guaranteed under Article 14 and 16 of the Constitution of India.

For the above stated reasons, we allow this LPA. Set aside the judgment of the ld writ court. We direct the respondent No. 2 to consider and

recommend the name of the appellant for being appointed on the post of Physical Education Teacher in District Cadre Anantnag/Kulgam to

respondent No. 1 and respondent No. 1 to consider and appoint the appellant on the post of Physical Education Teacher in District

Anantnag/Kulgam. We further provide that the appellant shall be deemed to be within age and it shall also be deemed that relaxation in his upper

age limit is granted as he was within age at the time when he applied. The respondents No. 1 and 2 to take steps and pass the orders within a

period of eight weeks from the date copy of this order is served.

The application form along with the record be returned to ld Govt Advocate. Disposed of along with all connected CMPs.