Javid Saleem vs State of J&K

Mr. Hasnain Massodi, J. - Petitioner responded to Advertisement Notice No. 01 of 2008, dated 22.04.2008, issued by respondent Board,

under Physically Handicapped category (PHC) whereby, applications were invited for 299 posts of teachers in District Pulwama. Respondent

Board while concluding selection process initiated on 22.04.2008 has also made selection for 27 posts advertised vide notification no. 05 of 2008,

dated 31st December 2008. Select list was issued. However, petitioner was not given benefit of reservation under PHC and resultantly did not find

place in Select list. Aggrieved with his non-selection he has come up with writ petition on hand.

Briefly stated, petitioner's case is that having regard to mandate of Section 22 of The Jammu and Kashmir Persons With Disabilities (Equal

Opportunities, Protection of Rights And Full Participation) Act, 1998 (hereinafter referred to as the Act) 3 percent of posts were to be set apart

for Physically Handicapped (PHC) category candidates. It is stated that one out of 3 percent of posts so set apart were to be filled up from

candidates suffering from, (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy disabilities. Petitioner is

aggrieved that respondents selected 10 candidates under PHC Locomotor category ignoring two other sub categories, i.e. (i and ii). Petitioner's

case is that he with 40 percent visual impairment deserves to be considered under 3 percent quota reserved for physically Handicapped category.

The respondents in their reply do not controvert the factual aspects of the case. It is admitted that posts, were advertised by respondent Board

vide aforesaid notifications. It is also not denied that petitioner responded to advertisement notice no. 01 of 2008 under PHC category. It is

admitted that petitioner had higher merit as against selected candidates under PHC category with locomotor disability. Respondents, however take

the stand that petitioner could not be considered under PHC category as the post of teacher was not identified vide Government Order No. 62-

SWD of 2001, dated 13th March 2001 for reservation under PHC (blindness or low vision) category. It is pleaded that in terms of aforesaid

Government order only candidates with locomotor disability or hearing impairment are to be considered for the post of Teacher in respondent

Department.

Heard and considered.

The Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1998, provides for

equal opportunities, care, protection, training and welfare of person with disabilities. Chapter V of the Act relates to the employment. Section 21 of

the Act obligates the Government to identify the posts for person with disabilities. Section 22 provides for reservation of vacancies of not less than

3 percent, for person 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 palsy. A bare look at Section 22 would reveal that candidates with

blindness or low vision, are to be granted reservation laid down in Section 22 of the Act. Petitioner with 40 percent disability, i.e. low vision,

therefore was to be considered under PHC category in terms of Section 22 of the Act.

The question whether a candidate 'with blindness of low vision' for the post of teacher would be eligible for reservation under the Act, even

when the Government does not identify the post of teacher for such reservation in terms of Section 21 of the Act, is to be answered, to end the

controversy. Respondents as already stated rely on Government Order No. 231-SW of 2011, dated 22nd December 2011 to justify petitioner's

exclusion from consideration under PHC category.

Respondents' case that petitioner did not merit consideration under blind and low vision category as the Government Order No. 62-SWD of

2001, dated March 13th 2001 did not identify post of teachers for such reservation, looses force in wake of Government Order No. 231-SW of

2011, dated 22nd December 2011. In terms of aforesaid Government order, post of a teacher is identified for blind and low vision/handicapped

by one arms/both legs.

The only question that arises is as to whether petitioner can derive any benefit from the Government order in as much as selection process to fill-

up 326 posts of teachers was initiated in April/December 2008 and selection process concluded on 24.06.2009.

Section 21 of the Act castes duty on the Government to identify posts in all establishments which can be reserved for persons with disabilities

and to periodically review the list of posts identified, after every three years and update the list, taking into consideration the development in

technology. In terms of proviso to Section 22, the Government is authorised to exempt any establishment from the provisions of Section 22, i.e.

3% reservation for blindness or low vision, hearing impairment, locomotor disability or cerebral palsy, having regard to the type of work carried

out in any Department or establishment and if the Government decided to make any exemption, it is to issue necessary notification, spelling out the

conditions subject to which such exemption is granted.

The ambit and scope of power conferred on the Government under Sections 21 and 22 of the Act and the duty cast, came up for

consideration before a Division Bench of this Court in Jyotsna Mengi v. Chairman, J&K PSC and Ors. 2010 SLJ 109:2009 (2) JKJ48

[HC] The question before the Division Bench was whether a person with a particular disability can be ignored while making selection only because

the advertised posts were not identified for such category at the time selection process was initiated. The Division Bench on making threadbare

analysis of Sections 21 and 22 and the case law on the subject observed

A look at Sections 21 and 22 of the Act would amply make it clear that, unless the State Government exempts any establishment from the

provisions of Section 22 of the Act, it is mandatory upon the Government to appoint in every establishment disabled persons and, for that matter,

to identify the posts where disabled persons can be accommodated. Periodical review for identifying the posts, where disabled persons can be

accommodated, is also a mandate of law. The law, at the same time, mandates that such review should be made at intervals not exceeding three

years.

The records show that a number of establishments of the State have identified posts in which disabled persons cannot be appointed, and while

doing so, did not identify even one single post, where they can be appointed. At the same time, the Government by notification did not exempt any

such establishment from the provisions of Section 22 of the Act. The Government, therefore, acted and is still acting in breach of the law made by

Legislature.

Furthermore, Section 22 of the Act mandates reservation for disabled persons of at least 3% of the total vacancies. The Government appears to

have made such reservation, i.e. the minimum. Section 22 of the Act further directs that 1% of the minimum of 3% vacancies shall be reserved for

persons suffering from blindness or low vision; 1% of 3% for persons suffering from hearing impairment and the remaining 1% of 3% for persons

suffering from locomotor disability/cerebral palsy. The Government has not done so. Records placed before us demonstrate that all the reserved

vacancies created for disabled persons are being supplied by persons suffering from locomotor disability. The Government, therefore, is acting in

breach of the law with impunity. We hope that the Government would act in the manner the Legislature wants it to act. It is the duty of the

Government to identify posts in all establishments which have not been exempted and which may be supplied by a person suffering from blindness

or low vision and the percentage thereof should not be less than 1 % in the establishment.

The Court relying on the law laid down in State of UP v. Pawan Kumar Tiwari, 2005 (1) Supreme 3 Bhudev Sharma v. District Judge

Bulandshahr and Anr., 2007 (8) Supreme 192 issued following directions:-

I) to identify posts in all establishments which can be reserved for persons with disabilities. Those posts must not less than 3% of the posts

available in each of the establishments of the State which have not been exempted;

II) while identifying those posts, it must be ascertained whether the vacancies therein can be supplied by a person suffering from blindness/low

vision, or whether the same can be supplied by a person suffering from hearing impairment or whether the same can be supplied by a person

suffering from locomotor disability/cerebral palsy;

III) the posts to be so identified must not in any case, be less than 1% of the total posts available in such establishments which can be supplied by

persons suffering from blindness/low vision, and, similarly, at least 1% of such posts to which can be supplied by persons suffering from hearing

impairment and at least 1% of such posts which can be supplied by persons suffering from locomotor disability/cerebral palsy;

IV) not exceeding 3 years, a review shall be made in each such establishment of the State to re-identify such posts and to update the same taking

into consideration the development in technology;

V) the first of the 3% of the total vacancies should be supplied by a person suffering from blindness/low vision; the second by person suffering from

hearing impairment and the third by the persons suffering from locomotor disability/cerebral palsy;

VI) if a person befitting the first category is not available, then the person befitting the second category may supply the vacancy, but the vacancy

available for the second category would automatically be reserved for the first category and likewise for the second category, if the vacancy

available for the second category is supplied by the third category for no one was available from the second category to supply the same, the

vacancy available for the third category would become reserved;

VII) reservation for persons suffering from disability shall be horizontal and, accordingly, a disabled person shall fill up that post which is available

in the category to which he belongs, but as a disabled person; and

VIII) deficiencies in each establishment shall be supplied soon and directions as above, would be complied with before making new direct

recruitments.

It is in compliance of directions issued in Jyotsna Mengi's case (supra) that Government Order No. 231-SW of 2011, dated 22nd December

2011 has been issued. The question is whether delay on part of Government to issue order and to identify the posts for blind and low

vision/handicapped by one arm/both legs, can be used to deprive the petitioner of a statutory right, guaranteed under Section 22 of the Act. The

petitioner with low vision, had a right under Section 22 of the Act, to be considered for 1% of the advertised posts under blind/low vision

category. He as a matter of fact had the first right amongst the candidates suffering from any of the disabilities, mentioned in Section 22 of the Act,

in as much as blind/low vision category appears as the first category under the afore-stated provision. The question whether Government Order

No. 231-SW of 2011, dated December 22nd 2011 was to be acted prospectively and would not be applicable to pending selection initiated vide

Advertisement Notice No. 01 of 2008, dated 22.04.2008 is the question that calls for an answer.

The question came up for consideration before this Court in Anjeel Kumar and Ors. v. State of Jammu and Kashmir 2015 (2) JKJ 785

[HC] The appellants writ petition was earlier dismissed by the writ Court on the ground that as the posts against which petitioners sought to be

considered under PHC category, were not identified by the Government for such reservation on the date selection process was initiated, benefit of

subsequent identification vide Government Order No. 231-SW of 2011, dated 22nd December 2011 would not be available to the appellants.

The writ Court order was questioned in Letters Patent Appeal. The LPA Bench while noticing the directions issued in Jyotsna Mengi's case on

13th September Jyotsna Mengi v. Chairman J&K PSC and Ors. 2009 (2) JKJ 48 [HC] held that appellants were not to be denied benefit

available to them under Section 22 of the Act and the directions issued in Jyotsna Mengi's case, only because of bureaucratic in-action. The Court

observed:-

belated identification of posts is now put against the appellants who are otherwise, eligible to be appointed under Section 22 of the Act which

mandates reservation of not less than 1% of the posts in each category in all establishments, namely, blindness or low vision, hearing impairment

and locomotor disability or cerebral palsy. The appellants are coming within the disabilities of blindness/low vision, and locomotor disability. Up to

the year 2011 persons suffering with hearing impairment alone were identified for the posts. The bureaucratic delay in identifying the posts for these

disabled persons cannot be a ground to deny appointment to the deserving physically challenged persons"". Reliance was placed by Division Bench

on law laid down in Ravi Prakash Gupta and Anr. v. Government of India and Another (2010) 7 SCC 626.

It would be advantageous to extract the observation made by the Apex Court in Ravi Prakash Gupta's case, noticed by Division Bench in

Anjeel Kumar's case:-

The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in

Section 33 of the Disabilities Act, 1995 was dependent on identification of posts suitable for appointment in such categories, as has been sought to

be contended on behalf of the Government of India in the instant case.

Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add few observations of our own in regard to the objects which

the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation

of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32

thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation

where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the

petitions before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Group

A and B posts in the IAS was undertaken after the year 2005 is not much substance.

The LPA was allowed and respondents directed to consider candidature of appellants' as per Section 22 of the Act and issue selection order

to appellants within a period of four weeks. The first respondent was directed to appoint appellants within a period of four weeks from the date of

selection order.

The case in hand squarely falls within the purview of law laid down in Anjeel Kumar's case (supra). Petitioner cannot be denied consideration

only because it took State Government, 13 long years to understand and realize the spirit and mandate of Section 22 of the Act, and a few years

to respond to the wakeup call given in Jyotsna Mengi's case and carry out the directions, issued.

Petitioner with 37.66 points in selection list, had highest merit amongst the aspirants for advertised posts under PHC category. The

respondents were to select nine candidates from amongst PHC candidates. Three out of nine vacancies were to go to the candidates with

blindness/low vision. Respondents 2 and 3 in disregard of mandate of Section 22 have selected four candidates under Locomotor disability

category. None of the candidates is selected under one leg/one arm/low vision or hearing impairment category. That all the vacancies (Three

vacancies) under blind/low vision category have remained unfilled and only four out of nine slots available to PHC category, filled up, it may not be

necessary to quash selection of four selected candidates under Locomotor category. Petitioner may be considered for selection and appointment

against one of the advertised post without disturbing the candidates i.e. respondents 5 to 8 selected under PHC category or the last candidate

under the open merit category.

The writ petition is accordingly allowed. Respondents 2 and 3, are directed to consider petitioner against the vacancy of teacher, that has

remained unfilled and is lying vacant as on date or against one of such vacancies in respect whereof selection process is under way or one post

referred to it by respondent no. 1 and to accommodate petitioner. Let consideration be accorded and recommendation made within two weeks

from the date of receipt of this order. Respondents 1 and 4 shall act on the recommendation so made and issue appointment order in favour of

petitioner within four weeks after receipt of recommendation. In case neither a vacancy out of 326 advertised vacancies is available nor any

selection process to fill teachers vacancies in District Pulwama in progress, or a post of teacher not referred to the respondent Board by

respondent No. 1 to select petitioner, selection and appointment of respondent no. 8 shall stand quashed and petitioner considered for selection

and appointment against the post, to become available in wake of quashment of respondent no. 8's selection and appointment.

Disposed of.