M. Srinivas vs Chairman, State Level Police Recruitment Board and Others

This writ petition is filed challenging the proceedings in Rc.No 357/R & T/Admn/1-96 dated 15-3-1997 issued by the first respondent and advertised in English Daily-Deccan Chronicle on 9-2-1997 as being illegal, arbitrary and violativc of Article 14, 16 and 21 of Constitution of India.

Earlier, this writ petition was disposed of by me by judgment and order dated 15-4-1998. In the appeal preferred by the official respondents in Writ Appeal No. 1012 of 1998, the Division Bench of this Court has set aside the judgment dated 154-1998 by remanding the matter to the learned single Judge for being considered afresh.

Heard the learned Counsel on both sides.

The short grievance of the petitioner, as made out, in the affidavit in support of the writ petition is that the impugned notification dated 15-3-1997 providing reservation, in favour of orthopaedically handicapped persons is illegal being in contravention to Rule 22(2) (b) of the Andhra Pradcsh State and Subordinate Service Rules, 1996 (hereinafter referred to as "the Rules"). The learned Counsel appearing for the petitioner urged the case of the petitioner by contending that providing reservation only in favour of orthopacdically handicapped persons is illegal. By elaborating his argument, he invited my attention to Rule 22(2)(b) of the Rules as further contended that visually handicapped person has to necessarily be considered as physically handicapped person since visually handicapped person also has suffered a physical disability, so far as his vision and eye is concerned. The petitioner being blind in one eye is a physically handicapped person and his case should have been considered for the appointment to the post of Asst.Public Prosecutor, as the petitioner has applied for the same, in time, as per the notification issued in that behalf.

By filing a detailed counter affidavit, the official respondents contended that the petitioner being visually handicapped person would not be eligible according to the roster system provided under Rule 22 of the Rules, as amended by notification dated 5-8-1997 in G.O.Ms.No.72. The learned Addl. Advocate General contended, on behalf of the official respondents, that according to the roster system out of first one hundred posts, the sixth post is reserved for visually handicapped women and the petitioner being the visually handicapped man could not be entitled to the said post, He further contended that as per the .amended Rule 22-A of the Rules, even if visually handicapped women are not available, the post is to be carried forward to the next year and as such the sixth post meant for visually handicapped women could not be given to the petitioner, since the post has to be carried forward to the next year. He also further contended that as per the roster system 106th post is meant for visually handicapped men, but the said roster point of 106th post has not reached in any one of the six zones for which the petitioner had been considered, and therefore, the petitioner could not be selected. He fiirthcr contended that the amended Rule 22-A under G.O. Ms. No.65 dated 15-2-1997 has been given retrospective'' operation with effect from 20-10-1996 and therefore the respondents had to give effect to the amended rule. At any rate, he stated that this amended Rule 22-A vide G.O. Ms. No.65, being issued on 15-2-1997 had already come into force before the second notification calling for the applications was issued. Against these contentions, the learned Counsel appearing for the petitioner contended that the petitioner had applied vide earlier notification dated 3-2-1997 and by that date G.O. Ms. No.65 was not published. Since it was published on 15-2-199*? being prospective in nature, the same could not apply to the impugned selection. He furtlier contended that there was subsequent notification dated 15-3-1997 calling for the applications not only for the post which fell vacant as on 3-2-1997 but also for the posts that felt vacant subsequent to 3-2-1997. Since the petitioner applied vide earlier notification dated 3-2-1997, the case of the petitioner has got to be considered with regard to the post that existed on that date, without taking recourse to amended Rule 22-A which came into effect with effect from 15-2-1997. He also contended that carry forward rule provided by amended Rule could be violative of Articles 14 and 16 of the Constitution and when no visually handicapped women were not available for the sixth post the same should be given to the petitioner instead of carrying it forward to the next year. Therefore, the petitioner is entitled for the relief as prayed for.

Having regard to the pleadings and arguments of both the Counsel, I find that there are few facts which are clearly admitted on both sides. It is admitted that by notification dated 3-2-1997 applications were called for the post of Asst.Public Prosecutor. It is also admitted that there was subsequent notification dated 15-3-1997. It is again admitted fact that the petitioner''s case was considered under the category of visually handicapped persons and according to the roster, sixth post is reserved for visually handicapped women and 106th post is reserved for visually handicapped men. It is again admitted fact that in the State of Andhra Pradesh, six zones arc provided for the purpose of appointment under the Presidential order.

The dispute is regarding the 6th and 106th post earmarked for visually handicapped persons according to the roster of the respective zone. According to the case of the petitioner the sixth post should come to the visually handicapped men, since as per the old Rule 22-A (2) if sufficient number of women candidates are not available, the vacancies shall be filled by men and therefore, it should come to the petitioner. But, according to the respondents, in view of the amended Rule 22-A, whenever women candidates arc not available, the same shall be carried forward to the next year and as such the petitioner is not entitled to be appointed and the amended Rule applies to the facts of this case.

It is, no doubt, true that vide notification dated 3-2-1997, applications were called for about 58 vacancies of the Asst-Public Prosecutors. But, vide notification dated 15-3-1997, applications were called for 85 vacancies clearly stating that this notification is issued in continuation of the earlier notification dated 3-2-1997. It is further stated in the notification that the persons who have already applied earlier need not apply once again and that their applications filed in pursuance of the notification dated 3-2-1997 would be considered under the notification dated 15-3-1997. In this view of the matter, the net result would be vide notification dated 15-3-1997, the notification dated 3-2-1997 is modified while extending the last date for receipt of applications by 15-4-1997. If the things stood as that there could be an arguable case as to whether the law as on 3-2-1997 was applicable or the law as on 15-3-1997. But it is necessary to be noted that the amended notification vide G.O.Ms.No.65, dated 15-2-1997 has been given retrospective effect with effect from 28-10-1996 with regard to the roster system for women. The note No.2 added at the end of amended Rule''22 vide G.O. Ms. No.65, dated 15-2-1997 clearly stated that "(he principle of carry forward of vacancies in respect of women shall be with effect from the 28th October, 1996". The noteNo.3 further provided that "the principle of roster points for women candidates shall be with effect from the 1st August, 1996." The other note No.2 after Rule 22-A also farther provides that "the principle of reservation for women candidates to the extent of 33-1/3% in the matter of direct recruitment shall be with effect from the 28-5-1996 (G.O.Ms.No�37, General Administration (Scr.D) Department, dated 28-5-1996). Thus, when Rule 22-A of the Rules as amended vide G.O.Ms.No.65, dated 15-2-1997 is given retrospective operation with effect from October, 1996, the said amended law shall be taken as if it was in force as on the date of both the notifications dated 3-2-1997 and 15-3-1997 by which applications were called for the posts in question. If that is so, what is to be seen is the effect of the amendment regarding the roster point in question.

As per the roster provided by amended Rule 22-A of the Rules, the sixth post is meant for physically handicapped women. The case of the petitioner is that since the visually handicapped women are not available, the same should be given to the petitioner who is visually handicapped man and that visually handicapped man is nevertheless a physically handicapped person. The fact that the petitioner is a visually handicapped man is not disputed by the respondents. But according to them, the sixth post is necessarily to be carried forward whenever visually handicapped women candidates are not available and therefore, the same cannot be filled up by the petitioner who is a visually handicapped man.

I am of the opinion that there is substance in the argument of the respondents Even though there are Special Rules applicable to the post of Asst.Public Prosecutors issued vide G.O. Ms. No. 188, dated 30-3-1992, but vide Rule 4(a) of the Special Rules, sub-rule(2) of General Rule 22-A is made applicable for appointment by direct recruitment to the various posts covered by the Special Rules. If that is so, one has to fell back on General Rule 22-A of the Rules. Under Clause (22) of Rule 2 of the Rules, physically handicapped person has been defined as a person who is blind, deaf or orthopaedically handicapped. From this it follows that visually handicapped person is included within the definition of physically handicapped person along with orthopacdieally handicapped persons. Now, by Rule 22-A as amended by G.O. Ms. No.65, dated 15-2-1997, a provision has been made for appointment according to the roster to the persons who are physically handicapped. Point No.6 at the roster is earmarked for physically handicapped women. It is also not disputed that vide G.O. Ms. No.72, dated 5-8-1997, sixth post is reserved for visually liandicapped women in the first 100 roster cycle and 106th post is earmarked for visually handicapped men in the second roster cycle in between 101 and 200. This G.O. Ms. No.72, dated 5-8-1997 has been issued in modification of the earlier orders in G.O. Ms. No.41, dated 1-8-1996 and Memo No.l27/SP/A2AVH/97 dated 22-4-1997 as referred to in the G.O. itself. Admittedly, this G.O. has been issued subsequent to notifications in question issued on 3-2-1997 and 15-3-1997. But, this G.O. Ms. No.72, though issued on 5-8-1997, has not been given any retrospective effect, so far as reservation to the visually handicapped men and women are concerned. Assuming for the sake of the argument that this G.O. Ms. No.72 is not applicable to the facts of the petitioner''s case, even tlien the petitioner cannot stand any chance as long as the sixth point is meant for visually physically handicapped women. As I have already noted above, the carry forward rule applicable to women has been given retrospective effect from October, 1996, very much prior to the calling of the applications and if that is so, if the visually handicapped women arc not available, the same has to be carried forward to the next selection and the same cannot be claimed by the visually handicapped men. In that event, the petitioner may liave a chance for 106th post which again is earmarked for visually handicapped men. But, as contended by the respondents, the roster point of 106 has not reached in any one of the six zones worked out under the Presidential Order and adopted under the Special Rules applicable to the post in question issued vide G.O. Ms. No. 188, Home (Courts-C) Department, dated 30-3-1992. Under Rule 10 of the Special Rules, six zones have been adopted as unit for appointment or for transfer or for promotion. If 106th point has not reached in any one of the six zones, the petitioner being a visually handicapped man, has no chance to get the post. Under the Special Rules, roster system has got to be followed taking each zone as unit.

However, the learned Counsel for the petitioner relied upon a judgment of this Court in K. Eswara Dutt Vs. Chairman, Food Corporation of India, New Delhi and Others, , contending that the law as on the date of the earlier notification has to be applied to the facts of this case. But, as I have already held, in view of the fact that the amended Rule 22-A of the Rules has been given retrospective effect with effect from October, 1996, and both the notifications being subsequent to that date, the amended Rule has to apply. Therefore, the decision cited by the learned Counsel is not applicable to the facts of this case. In the above judgment, this Court was considering the rule applicable for the purpose of promotion as on the date the post fell vacant. But, that is not the kind of dispute in the present case. However, the learned Counsel for the petitioner relied upon a judgment of the Supreme Court in Raj Kumar Vs. Union of India (UOI) and Others, and Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, . The principles laid down by the Hon''ble Supreme Court in these judgments do not apply to the case of the petitioner since in the instant case the amended Rule has been given retrospective operation with effect from October, 1996. The learned Counsel for the petitioner also relied upon a reported judgment of this Court dated 31-8-1998 passed in WP No. 18307 of 98 and batch. But the said judgment''also docs not apply to the facts of this case as the said case is distinguishable from the facts of this case.

For all the above reasons, I find that there are no merits in this writ petition and it is accordingly dismissed, but in the circumstances without an order as to costs.