Prem Nath vs State of Jammu & Kashmir and Others

Sunil Hali, J.—In response to an advertisement notice No. 04 of 2004, dated 23rd of Sept'2004, the Petitioner along with other eligible

candidates applied for the post of Junior Engineer (Electrical) Grade-II, in the Handicapped category. The process of selection for the post was by

way of interview only. Petitioner participated in the said selection process but remained unsuccessful. It is his now selection against the

aforementioned post, which is being challenged in the present petition.

Contention raised by the Petitioner is that he completed three years Diploma Course in Electrical Engineering which was the basic qualification

fixed for the aforementioned post, and secured 60.56 marks. It is stated that candidates with lesser marks in the basic qualification have been

selected in the category to which the Petitioner belongs. Particular reference is made to Respondent No. 4, who is said to have secured 60.28

marks. The further contention raised is that in terms of Section 22 of the J&K Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation), Act, 1998, which provides for 3% reservation for Handicapped category in each department of the State, ten posts were

required to be filled from amongst the said category as the total No. of vacancies were 315, only six candidates have been selected as such under

the above category. It is stated that no reasons have been given by the Respondent-Board as to why the full quota under the above category was

not exhausted while making the selection.

Selection made by the Respondent-Board is further sought to be questioned on the ground that only 315 posts were advertised whereas, 323

candidates have been selected in all. Even in the case of other reserved categories, there was no compliance of the Reservation Rules by the

Respondent-Board. In RBA category, 63 posts were to be filled up but the total No., of candidates selected were 65; as against 30 posts in ST

category, 31 were selected and in SC category 27 candidates were selected as against 26 vacancies which were available to the said category as

per the Rules. It is, thus, contended that the whole of the selection process is not in accordance with the law and the Rules governing the subject so

far as filling up of the posts in Reserved categories is concerned.

Respondent-Board in its counter has pleaded that as per 3% horizontal reservation as provided under the rules, ten posts were kept reserved

for Handicapped category which were divided proportionately amongst the open and reserved category candidates commensurate with the total

number of posts available in the respective categories. Out of ten posts in the Handicapped category, 6 posts were allocated to the open merit

candidates, 2 posts for RBA and 1 each for SC and ST categories. It is stated that only the candidates in the Open merit category were available

and as per their ratio, six candidates belonging to Handicapped category in Open merit were selected. The rest four posts i.e. two in RBA and one

each in SC and ST categories, could not be filled due to non availability of the candidates in these categories. It is, thus, contended that the

assertion of the Petitioner is not based on the record as all the six candidates available under open category of Handicapped as per their quota,

based on the merit obtained by them, have been selected. The last selected candidate under the above category i.e. Respondent No. 4 obtained

60.86 points whereas the Petitioner obtained 53.06 points and, as such, being less meritorious, was not rightly selected.

I have heard learned Counsel for the parties.

A perusal of the advertisement notice shows that 315 posts of Junior Engineer (Electrical) Grade II were advertised. Out of these posts 170

were to be filled from the general category candidates, 63 were reserved for RBA, 30 for ST, 26 for SC, 10 for HC, 6 for OBC and 10 for ALC

categories. So far as Handicapped category, to which the Petitioner belongs, ten posts were reserved in this category under horizontal reservation.

All those disabled persons under the said category were required to be considered irrespective of their caste configuration and the posts available

were required to be filled from amongst them solely on their merit. It is only after their selection in this category, they are allocated to various

categories to which they belong. A candidate appointed under the Handicapped category, if belonging to a particular category i.e. SC/ST/General

etc., would after selection eat away the quota of the said category. It will be legally impermissible to effect select in this category on the basis of

caste or category to which they belong. Being disabled persons, they have to be first accorded consideration under the Handicapped category and

if selected, as indicated above, they have to be allocated the category to which they belong. The horizontal reservation provides that once selected,

the said candidates would eat away the quota of the category to which they belong. It does not contemplate that their selection is to be made on

further classification i.e. on the basis of caste or category to which they belong.

In the present case, as noticed above, ten posts were reserved for Handicapped category. The candidates who had applied under the said

category were required to be considered and appointed against the vacancies available on the basis of their merit. By effecting a classification in the

above category would be effecting a further reservation in the said category, which is not permissible. Reliance placed by the learned Counsel for

the Petitioner in this regard on a judgment of the Apex Court in the case reported as Mahesh Gupta and Ors. v. Yashwant Kumar Ahirwar and

Ors. 2007(6) Supreme 276, is well founded. What was observed by the Apex Court in the above case, may be noticed as under:

...A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They

constitute a special class....

The contention of the Respondents that ten posts reserved for handicapped category were required to be filled up on the basis of further

allocation from amongst the General, SC, ST and RBA categories, is thus, not sustainable. As the number of posts available in this case under

handicapped category were 10, the Respondents were supposed to select the candidates in this category on the basis of their merit irrespective of

their further classification of belonging to a particular category. It was only after their selection that they were required to be allocated the category

to which they belonged, which has not been done by the Respondents. Their action in selecting only six candidates from the handicapped category

on the basis of further classification of belonging to General category candidates is not legally permissible.

For the reasons mentioned above, this petition is allowed. The Respondent-Board is directed to recommend the name of the Petitioner as a

selected candidate under handicapped category in pursuance to the selection process initiated in terms of notification No. 04 of 2004 dt. 23rd of

Sept'04. Let the recommendation be made to the department concerned by selecting authority within a period of fifteen days from the date a copy

of this order is made to it by the Petitioner. Thereafter, Respondent-department shall take further action for issuing appointment order in favour of

the Petitioner within a further period of fifteen days after receipt of the said recommendation. The Petitioner shall be entitled to all consequential

benefits minus monetary benefits.

Writ petition is disposed of accordingly.