Muhammad Shafi Badoo vs State of JandK and Others

M.M. Kumar, C.J.—This Appeal under Clause 12 of the Letters Patent has been preferred by the appellant challenging the order dated

09.04.2003 passed by the learned Writ Court, dismissing his writ petition.

The appellant suffers from the disease of ' Cerebral Palsy' and has claimed benefits under the handicapped category for the post of Assistant

Engineer (Electrical). He is an Engineering (Electrical) Graduate and applied for the post of Assistant Engineer (Electrical) in response to

Advertisement Notice dated 07.12.1995, issued by the Public Service Commission (for brevity 'the Commission'). As per the advertisement, 22

posts were advertised in total and 12 out of them belonged to the open merit category. The rest of the 10 posts were to be filled from the reserved

categories. The appellant claimed his consideration in the category of handicapped persons and placed reliance on SRO 126 dated 28.6.1994. He

appeared in the screening test conducted by the Commission for short listing the candidates but he did not qualify. Accordingly, he was not called

for the interview. The appellant claimed that he deserved to be given preferential treatment as per the provisions of SRO 126 dated 28.06.1994.

In the objections filed by respondents 3 and 4, (the Commission and its Chairman respectively), it was stated that in response to the

advertisement notice, 807 candidates applied. There was some delay caused on account of interim direction issued on 03.02.1996 by the Court of

Munsiff, Srinagar in the case of Abdul Rashid and others v. State. On the basis of a communication dated 05.07.1996, issued by the Power

Development Department, three posts were required to be reserved for Scheduled Caste category on account of backlog quota, which

necessitated issuance of a corrigendum on 11.08.1997. The screening test was held allowing participation of all the eligible candidates on

14.09.1997 and the result was declared on 20.10.1997. Those who qualified the screening test were called for the interview in the ratio of 1:3. As

already stated, the appellant did not qualify the screening test and, therefore, he was not called for the interview.

The learned Single Judge non-suited the appellant on the ground that he did not qualify the screening test and therefore in terms of SRO 126

dated 28.06.1994 no benefit could have been given to him. The provision of SRO 126 of 1994 contemplated one concession for person covered

by handicapped category namely, that preferential treatment be given to such persons to the extent of 2%. The learned Single Judge on that basis

held that the expression 'preferential treatment' could only be interpreted to mean that if two persons had same marks then preference is to be

given to a handicapped person. The view of the learned Single Judge is discernible from the following paras of the judgment, which are set out

below in extenso:

The advertisement in question was issued in the year 1995 and admittedly there was no reservation for handicapped category in the said

advertisement. In the year 1995, when the advertisement notice was issued, SRO 126 was applicable. Rule 11 of the said SRO, which provides

concession to handicapped persons to the extent of 2%, reads as under:-

11.Concession.-(1)Notwithstanding anything Contained in rule 10 and subject to the provisions of sub-rule (2) of this rule, out of the total number

of available vacancies (reserved as well as unreserved) handicapped persons to the extent of 2% and ex- servicemen and children of Defence

Personnel to the extent of 5% shall get preferential treatment for selection in each service class, category and grade.

(2) If a candidate belongs to reserved category, he will be placed in that quota by making necessary adjustment and if he belongs to open category

he will be placed in that category by making necessary adjustment. This shall not affect the percentage of reservations provided under rule 10.

In terms of Rule 11, preferential treatment is to be given in the matter of selection which only means that persons belonging to a particular category

as provided in this Rule shall be preferred as against an open merit category candidate. The rule of preference only means giving preference to a

person belonging to a particular category, if he has secured equal marks with other person. Rule 11 of SRO 126 does not make any reservation

for handicapped category. It is admitted position that the petitioner could not even qualify the screening test which was meant for short listing of

candidates. Petitioner was thus not entitled to be considered for interview at all. As far screening test is concerned, question of reservation or

preference does not arise at all. It is only relevant so for as main selection is concerned.

The learned Single Judge then proceeded to consider as to whether appellant could avail the benefits of the provisions of the Jammu and

Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998(for brevity 'the Act'). In that regard

reference was made to Section 22 of the Act, which provided for reservation to the extent of 3% for various classes of persons with disabilities as

detailed in that Section. The Act came in force on 19.05.1998 when it was published in the Government Gazette after receiving assent of the

Governor. Section 21 of the Act postulates that the Government was under obligation to identify the posts in the establishment which could be

reserved for persons with disability. Accordingly, the benefit of the Act could have been extended to the appellant only if the provisions were

applicable to the selection process initiated earlier to implementation of the Act on 07.12.1995 and the post of Assistant Engineer (Electrical) had

also been identified u/s 21 of the Act. On both counts, the learned Single Judge non-suited the appellant by observing as under:

Nothing has been mentioned either in the writ petition or in the rejoinder that the post of Assistant Engineer (Electrical) has been identified by the

Government for persons with disabilities. Even otherwise, provisions of this Act have no applicability to the selection in question. Sub-section (3)

of Section 1 of the Act says that it shall come into force on such date as the Government may by notification in the Government gazette appoint.

The Act was made applicable on 19-5-1998. Therefore, it became operative only with effect from the said date. The process for selection was

admittedly initiated on 7-12-1995 when the Public Service Commission issued notification inviting applications from the eligible candidates.

Admittedly the Act was not in existence as on as on the said date. It is settled proposition of law that once process for any selection commence,

the vacancies are required to be filled in accordance with the rules applicable at the time process is initiated and not by amended rules or law, even

if such amendment becomes operative during the currency of process.

Mr. M. M. Dar, learned counsel for the appellant, made some ambitious submissions when he argued that the provisions of the Act would be

available to the appellant and in accordance with Section 22 of the Act, 3% posts are required to be reserved for handicapped category with 1%

in each defined category of blind, orthopedic etc. According to the learned counsel, the selection process could not be completed before the

enactment of the Act and it could culminate into final selection only in the year 2003. Therefore, he claims that the benefit contemplated by the

provisions of the Act have to be extended to the appellant. In other words, being a handicapped person suffering from 'Cerebral Palsy', the

appellant deserved to be granted the benefit. He has also drawn our attention to the exercise undertaken by the State Government u/s 21 of the

Act by identifying posts vide order dated 13.03.2001(Annexure-F) and argued that the post of Assistant Engineer figures in the list (Annexure-

F1).

Mr. Chashoo and Mr. Azhar-ul-Amin, learned counsel for the respondents have, however, argued that the benefit under the Act would not be

available to the appellant because all those persons similarly situated to the appellant would be deprived of their right to be considered for

appointment to the post of Assistant Engineer(Electrical). According to the learned counsel, no such reservation for handicapped category has

been reflected in the advertisement issued on 07.12.1995 or in the corrigendum issued on 11.08.1997. In the absence of any stipulation in the

advertisement notice inviting applications from persons belonging to handicapped category it would be wholly violative of Article 14 and 16(1) of

the Constitution to confer consideration on the appellant by treating him as a candidate in the handicapped category.

Having heard the learned counsel for the parties and perusing the record, we are of the considered view that this appeal is devoid of merit and is

thus liable to be dismissed. It is not disputed that the advertisement notice was issued on 07.12.1995 to fill up 22 posts of Assistant

Engineer(Electrical). The appellant applied and took the screening test, which he failed to qualify. There was no question of finding him equivalent

in merit to any other candidate belonging to the open merit category and then extending preference to him This itself is enough to reject the claim

made by the appellant. It is well settled that preference can be given only in cases where there is a tie between a candidate belonging to

handicapped category and a candidate belonging to the open merit category. In such a case preference has to be accorded to a person belonging

to handicapped category. The aforesaid position is clear from Rule 11 of SRO 126 dated 28.06.1994 which is set out below in extenso:

Concession.-(1) Notwithstanding anything Contained in rule 10 and subject to the provisions of sub-rule (2) of this rule, out of the total number

of available vacancies (reserved as well as unreserved) handicapped persons to the extent of 2% and ex-servicemen and children of Defence

Personnel to the extent of 5% shall get preferential treatment for selection in each service class, category and grade.

(2) If a candidate belongs to reserved category, he will be placed in that quota by making necessary adjustment and if he belongs to open category

he will be placed in that category by making necessary adjustment. This shall not affect the percentage of reservations provided under rule 10.

(Emphasis added)

We are of the considered opinion that the learned Single Judge did not commit any error in law by interpreting Rule 11 by concluding that the rule

of preference only meant that when two persons secure equal marks, then preference has to be given to a person belonging to handicapped

category. The view of the learned Single Judge is supported by a catena of judgments. In the case of Gujarat Sales Tax Non-Gazetted Employees

Association v. State of Gujarat, 1977 Lab IC 1425 some pertinent observations were made which are set out below in extenso:-

It is true that Commerce graduates having Accountancy as the subject and candidates having other prescribed qualifications are required to be

preferred under the proviso to clause (a). However, as earlier stated, the rule of preference operates at the stage of appointment and, that too,

provided all other things are equal, and it will still continue to operate even in the restricted field of choice. Therefore, amongst First Class graduate

of various faculties, graduates, belonging to the Commerce faculty having Accountancy as a subject, or candidate having other prescribed

qualifications, will have to be preferred, provided everything else is equal, at the stage of final selection. It would be unreasonable, indeed illogical,

to hold, however, that the preference clause contains a fait to the effect that at the stage of screening a Third Class Commerce graduate must be

grouped with a First Class of another faculty and that he could be eliminated only at the stage of final selection. Such is not the effect and

intendment of the preference clause and to place it on such an absolute pedestal would render the underlying object of the Recruitment Rules

nugatory and make the process of selection cumbersome.

The aforesaid view is reiterated in later judgments including Bibhudatta Mohanty Vs. Union of India (UOI) and Others, , The Secretary, Andhra

Pradesh Public Service Commission Vs. Y.V.V.R. Srinivasulu and Others, and State of U.P. and Another Vs. Om Prakash and Others, .

In the present case, the appellant did not qualify the screening test and could not progress beyond the short listing process. In such a situation

he could not have succeeded. The writ petition filed by him has been rightly dismissed on that score.

The argument of Mr. Dar, learned counsel for the appellant that the benefit of the Act deserves to be extended to the appellant again is without

any substance. It is well settled that in cases of direct recruitment the amended provisions would have no retrospective application unless there is a

stipulation in that regard in the advertisement notice itself. For the aforesaid purposes, we may place reliance on various judgments of the Supreme

Court rendered in the cases of Arjun Singh Rathore and Others Vs. B.N. Chaturvedi and Others, and State of Bihar and Others Vs. Mithilesh

Kumar, . Therefore, the Act which was promulgated in 1998 would not apply to selection process initiated in the year 1995 because there is no

clause in the advertisement notice that candidate with handicap as per the Act could apply nor any corrigendum issued. Therefore, their

fundamental right of equality under Article 14 and 16(1) of the Constitution would be defeated on such an interpretation.

The matter does not end there. Presuming that the benefits under the Act are available to the appellant, still he cannot succeed. u/s 21 of the

Act, the posts are required to be identified. In the Government Order No. 62-SW of 2001 dated 13.03.2001 (Annexure-F), an exercise has been

undertaken. In respect of the Engineering Department, the post of Assistant Engineer has been identified for grant of benefit of handicap quota.

However, the same is confined to those applicants who are partially deaf and have one leg. The medical certificate issued in favour of the appellant

on 21.12.1994 (Annexure-C) only say that he is physically handicapped in respect of left Hemiperesis due to Cerebral Palsy. Accordingly, he

would not answer the nature of handicap, which is required for the identified post.

As a sequel to the above discussion, this appeal fails and the same is dismissed. However, keeping in view the peculiar facts and circumstance,

we leave the parties to bear their own cost.