Pragati Saikia vs State of Assam

Mr. Achintya Malla Bujor Barua, J.(Oral) - Heard Shri D.C.K. Hazarika, learned counsel appearing for the petitioner. Also heard Ms. B.D. Sarma, learned counsel appearing for the respondent Nos. 1, 2, 3 and 4 as well as Shri S. Das, learned counsel appearing for the respondent No. 5.

The case of the petitioner is that the petitioner is a physically handicapped person with 40% permanent disability in relation to the lower limb. It is the specific case of the petitioner in paragraph-2 of the writ petition, that the petitioner had applied for a Grade-III job under the 3% reservation quota in the department of Social Welfare. Accordingly, he was called for interview, vide Memo No. DSWO(T) 43/65/7 to 470 dated 18.06.2005 issued by the respondent No. 4, District Social Welfare Officer, Sonitpur, Tezpur. It is also stated that the petitioner is a holder of Degree of Bachelor of Engineering in Electrical Engineering from Gauhati University. It is the further case of the petitioner that pursuant to the call letter dated 04.07.2005, he appeared in the aforesaid interview bearing Roll No. 53 and he came out successful and his name appeared at Serial No. 1 amongst 4 candidates in the select list issued vide Notification No. DSW(E) 96/2005/46 dated 27.02.2006 issued by the respondent No. 3 against the post of Superintendent in the office of the Director of Employment & Craftsman Training, Assam. The said select list purportedly has been annexed as Annexure-B (2) to the writ petition, which bears the signature of Director of Social Welfare, Assam. On perusal of the said select list, it is seen that for type of post of Superintendent in the office of the Director of Employment & Craftsman Training, Assam, the position of the petitioner bearing the Roll No. 53 is shown in the first place in the select list.

It is the contention of the learned counsel for the petitioner that in spite of being placed in the first position, in order of merit for the post of Superintendent, no appointment has been given to the petitioner. It is also the contention of the petitioner that the select list at hand is for several other posts including the Post of ME Teacher/LP Teacher /LDA etc. in different departments and all the other appointments from the said select list have been made in respect of the said posts.

The respondent No. 5, Director of Employment & Craftsman Training, Assam has filed an affidavit dated 05.11.2015, wherein in paragraph-7, it is stated that post of Superintendent of Industrial Training Institute is a gazetted post and for this post, selection under the rules is required to be done by the Assam Public Service Commission. It is also stated in the said affidavit that there is no post of Superintendent in the Industrial Training Institute under the said Directorate.

Per-contra, Shri D.C.K. Hazarika, learned counsel for the petitioner, on the hand, refers to the ministerial staff (Directorate of Employment & Craftsmen Training, Assam) Service Rules, 1970, wherein, in Rule 3, it is inter-alia provided that the service shall comprise of the following categories, which includes (a) Registrar, (b) Superintendent and so on. By referring to the said Rule, Shri D.C.K. Hazarika makes submission that under the statutory Rules applicable to the Directorate of Employment & Craftsmen Training, Assam, there exists the post of Superintendent and hence, the averments made by the respondent authorities in their affidavit that there is no post of superintendent in the Industrial Training Institute is incorrect. It may be noticed that in the select list, Annexure-B(2), the selection is for the post of Superintendent in the Directorate of Employment & Craftsmen Training, Assam. The said select list does not refer that the selection pertains to the post of Superintendent in the Industrial Training Institute. From this point of view also the submission of respondent No. 4 that there is no post of Superintendent in the Industrial Training Institute cannot be accepted. Shri D.C.K. Hazarika, learned counsel by referring to Rule 7 of the said ministerial staff Rules applicable to the Directorate of Employment & Craftsmen Training, Assam points out that appointment in respect of Superintendent shall be made by the Appointing Authority by promotion on the basis of seniority-cum-merit from amongst Upper Division Assistant who have rendered not less than 7 years of service as Upper Division Assistant. In view of such provision of Rule 7 of the ministerial staff (Directorate of Employment & Craftsman Training) Assam service Rules 1970, the contention of the learned counsel for the petitioner is that the post of Superintendent exists for the purpose of making direct recruitment by applying the provision of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 cannot be accepted, inasmuch the Rule 7 specifically provided that it is to be filled up by only promotion not by direct recruitment. Shri D.C.K. Hazarika in order to substantiate his submission that the post earmarked under the Rules for being filled up by promotion can also be utilized to be filled up by direct recruitment by applying the provision of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protectoin of Rights and Full Participation) Act, 1995. Learned counsel has also relied upon the decision of the Hon''ble Apex Court in the case of Union of India v. National Federation for Development of Disabled reported in (2015) 13 SCC 643. The learned counsel specifically refers to paragraph Nos. 9, 10 and 11 of the said judgment. In paragraph-9 of the said judgment, the Hon''ble Apex Court has held that 3% reservation for differently disabled persons has to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. In paragraph-10 the Hon''ble Apex Court had held that the reservation has to be computed with reference to the total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion. The total number of vacancies in the cadre strength would include the vacancies to be filled up by nomination and vacancies to be filled up by promotion. In paragarpah-11, the Hon''ble Apex Court has referred to certain directions given in an earlier judgment in National Federation of the Blind Cass reported in (2013) 10 SCC 772.

On perusal of paragaraph Nos-9, 10 and 11, at the said judgment, no such provision by the Hon''ble Apex Court is discernible which provides that the post earmarked to be filled up by promotion, as per the Rules, can also be filled up by direct recruitment by applying the Sections 32 and 22 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

In such view of the matter, the submission of the learned counsel for the petitioner that the post of Superintendent in the Director of Employment & Craftsmen Training, can be filled up by direct recruitment by making applicable the provision of Sections 32 and 33 of the Disabilities Act, cannot be accepted.

In view of the aforesaid findings, this Court is the of the view that the stand of the Director of Employment & Craftsmen Training that there is no such vacancy of the post of Superintendent available in the directorate for being filled up by direct recruitment pursuant to the select list referred by the petitioner is to be accepted.

In this respect, it may be stated that in the writ petition, the petitioner had made an application to the Directorate of Social Welfare on his own and not pursuant to any advertisement and the Directorate of Social Welfare without any assessment of the available vacancy and merely based upon such application had issued a call letter to the petitioner. From the said facts also, it cannot be ascertained that the selection made by the Director of Social Welfare was against any existing vacant post of superintendent in the Director of Employment & Craftsmen Training, Assam.

At this stage learned counsel for the petitioner, Shri D.C.K. Hazarika has pointed out to the Annexure-B notification dated 27.02.2006 issued under the signature of Director of Social Welfare, Assam, where the said notification provides that pursuant to the direction of this court in WP(C) 7402 and as per the approval accorded by the State Level Selection Committee for selection of persons with disabilities against backlog vacancies in Grade-III and Grade-IV posts under different department in the state, the said director is pleased to announce the result of the test held at the district level during the months of June and July 2005. On perusal of the said notification it brings to the notice of this court that the said notification is pursuant to the backlog vacancies in Grade-III and Grade-IV posts under different departments in the state. The said notification on its own does not state that the selection was also made for any vacant post of Superintendent in the Director of Employment & Craftsmen Training. It is provided that while not accepting the case of the petitioner that there was any vacant post of Superintendent in the Director of Employment & Craftsmen Training, but be that as it may, in view of the notification dated 27.02.2006 of the Director of Social Welfare, the Director of Social Welfare is to examine the case of the petitioner as to against which vacancy Annexure-B(2) select list was made. Upon such examination, if the Director finds that there were some existing vacancies in the post of superintendent for which the selection of the petitioner was made, the Director would take appropriate steps to appoint the petitioner against any such vacancy.

The above exercise shall be completed within a period of 3 (three) months from the date of receipt of a copy of this order.

In terms of the above, this petition is disposed of.