Subesha Devi and Others vs State of JandK and Others

Ali Mohd. Magrey, J.â€"The two petitioners, claiming to be physically disabled, have filed this writ petition seeking quashing of advertisement

notice No. 01 of 2012 dated 24.07.2012 insofar as the same did not provide for any reservation in favour of candidates belonging to the category

of physically disabled persons. The petitioners have also prayed for a direction to the respondents to provide 3% horizontal reservation for

candidates belonging to the physically handicapped category and to consider the candidature of the petitioners for the posts so advertised under

the said reserved category. The short facts are that respondent No. 3, the Relief and Rehabilitation Commissioner (M), Jammu, pursuant to SRO

412 dated 30.12.2009 [Refer 2009 (9) JKS JK-355], issued advertisement notice No. 01 of 2012 dated 24.07.2012, inviting applications from

Kashmiri Migrants for filling up of 111 District Cadre posts of Lab Bearers and Class IV posts available in various departments as per the break

up given therein. The minimum qualification was prescribed as 10th and the maximum as 10+2. These posts had been created under the Prime

Minister's Special Package for Kashmiri Migrants (Special Drive) Recruitment Rules, 2009. The petitioners claiming to be Kashmiri migrants,

presently residing at Jammu, and possessing the requisite qualification of 10+2 also offered their candidature under the Physically Handicapped

Category. It is averred in the petition that respondent No. 3 resorted to the process of shortlisting of candidates. The list of shortlisted candidates

was notified vide notification dated 31.01.2014 and the interviews were scheduled to be held from 02.02.2014 to 12.02.2014.

The petitioners' names did not figure in the list of shortlisted candidates. It is stated that they approached the office of respondent No. 3 to

ascertain the reasons for their exclusion from the list, despite having applied under the physically handicapped category. On enquiries, they were

told that since the advertisement notice did not mention that reservation was to be provided to the candidates belonging to physically handicapped

category, therefore, their candidature had not been considered under the said category. It is averred in the petition that the petitioners immediately

represented to respondent No. 3 to provide reservation to candidates belonging to physically handicapped category and further sought permission

to participate in the selection process. Respondent No. 3 assured them that their grievances had been taken note of and that they would be

interviewed on the last date fixed for interviews, i.e., on 12.02.2014, but when they appeared in the office of respondent No. 3 for interview on

12.02.2014, they were not subjected to any interview on the ground that the advertisement notice did not prescribe any reservation in favour of

physically handicapped category candidates. The petitioners have, accordingly, filed this writ petition challenging the advertisement notice and

seeking the other reliefs as already mentioned.

Respondents in their objections, which were later treated as counter affidavit on their behalf as per the statement of their counsel, have stated

that though there was no stipulation in the advertisement notice for reservation of physically handicapped candidates, yet it was notified that while

submitting the application forms candidates can submit physically handicapped certificates so as to examine their cases for horizontal reservation. It

is averred that the petitioners submitted their application forms enclosing therewith disability certificates. Since the disability certificate of petitioner

No. 2 has not been issued by the prescribed authority, her claim cannot be considered under the said category. As regards petitioner No. 1, it is

stated that criteria for shortlisting candidates was worked out by allocating 50 points on prorate basis for the qualification of 10th and 30 points for

the qualification of 12th. On the basis of the said criteria, it is stated that in order to fall within the zone of consideration, candidates under the Open

Merit Category had to secure 43.05 points for Class IV vacancy and 48.44 for Lab Bearer; whereas under RBA category they had to secure

40.80 for the Class IV post and 40.55 for the post of Lab Bearer. Since petitioner No. 1 secured only 29.5% merit in the Open Merit Category,

she could not make the grade under Open Merit Category to be called for interview. Therefore, the claim of the petitioners to be called for

interview under the Physically Handicapped Category merited rejection.

I have heard learned counsel for the parties, perused the material brought on record and considered the matter.

The learned counsel made their submissions on the lines of their respective pleadings.

From a perusal of the advertisement notice dated 24.07.2012 and the counter affidavit filed by the respondents coupled with the submissions

made at the Bar by the learned AAG, two things become axiomatic: first, that the advertisement notice did not contain any provision prescribing

any reservation for the persons belonging to the Physically Handicapped Category; and second, even while shortlisting the candidates, the

petitioners and, may be, similarly other persons, were treated at par with those of the Open Merit Category candidates who did not belong to such

category. The course adopted by the respondents is ex facie violative of the relevant provisions of the Jammu and Kashmir Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 (for short, the Act) and the Rules framed thereunder.

The Act was enacted to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to the persons with

disabilities. Apart from providing for other measures to be taken in that behalf, Section 21 of the Act under Chapter V 'Employment' also provided

for identification of posts which can be reserved for persons with disabilities. Section 22 of the Act provided for reservation of posts. It reads as

under:

Reservation of posts

The Government shall appoint in every establishment such percentage of vacancies not less than three percent, for persons 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;

(iii) locomotor disability or cerebral palsy; in the posts identified for each disabilities:

Provided that the Government may, having regard to the type of work carried on in any department or establishment by notification, subject to

such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section.

The aforesaid provision of the Act makes it mandatory for the Government to make appointments in every establishment equivalent to 3% of the

vacancies from amongst the candidates with the given disabilities, of course, with power to the Government to exempt any establishment from the

application of the provision of the said Section of the Act, having regard to the type of work carried on in any such establishment. Not only this,

Section 25 of the Act provides that where in any recruitment year any vacancy under Section 22 cannot be filled up due to non-availability of a

suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year. Further,

if in the succeeding recruitment year also suitable person with disability is not available, the vacancy has to be first filled in by inter change among

the three identified categories and only when there is no person with disability available for the post in the year, it can be filled up by appointment of

a person other than a person with disability.

It may also be mentioned here that the Government has made the Jammu and Kashmir Reservation Rules, 2005 conjointly in exercise of powers

conferred on it under Section 23 of the Jammu and Kashmir Reservation Act, 2004 and Section 22 of the J & K Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1998. Rule 4 of the aforesaid Rules (hereinafter referred to as the Reservation

Rules) provides that except as otherwise provided in the Rules, available vacancies shall be reserved for direct recruitment in each service, class,

category and grade in favour of permanent residents of the State belonging to any of the categories mentioned therein which shall, as nearly as

possible, constitute the percentage of available vacancies shown against each. Sub-rule (e) of Rule 4 prescribes 3% horizontal reservation for

Physically Challenged Persons. Explanation (B) under Rule 4 says that the horizontal reservation means the reservations which would cut across

the vertical reservation (what is called interlocking reservation) and the person selected against the physically challenged quota will have to be

placed in the appropriate category, viz. if he/she belongs to the scheduled caste category, he/she will be placed in that quota by making the

necessary adjustment and similarly if he/she belongs to the open competition category, he/she will be placed in that category.

The law thus makes it mandatory to reserve 3% of the total vacancies for direct recruitment to be filled in from amongst the candidates who

are physically challenged. Consequently, it becomes obligatory on the part of the recruiting agencies to specifically notify the number of

posts/vacancies reserved for physically challenged persons in the notice advertising the posts/vacancies in an establishment so as to enable the

candidates belonging to such category to seek their consideration on the basis of their belonging to the category.

In the instant case, the advertisement notice did not make any mention about any such reservation for handicapped category candidates.

Instead, clause (4) of the advertisement notice mentioned that ""the candidates belonging to any reserved category from migrants like KBA, SC,

ST, ALC or OSC, if eligible as per prescribed qualification and other terms and conditions for any post so advertised shall be given consideration.

This clause clearly indicated that only such of the candidates as belonged to any of the aforesaid reserved categories would be given consideration.

In any case, the notice did not invite applications from persons belonging to physically handicapped category to the extent of the percentage of

posts mandated by law to be filled in from amongst candidates belonging to such category. The advertisement notice, on the fact of it, therefore, is

not in tune with the mandate of Section 22 of the Act and the Rules framed thereunder.

It is true that the Format of application appended as Annexure ""A"" to the advertisement notice required of the candidates to submit among

other certificates, a certificate evidencing the fact of their belonging to Physically Handicapped Category. But as per their own admission made in

the counter affidavit, such certificates were required to be submitted only for purposes of examining their cases for horizontal reservation, not for

according consideration to them for selection against 3% of the vacancies. The law mandates to appoint 3% of vacancies in every establishment

from amongst the candidates belonging to physically handicapped category. Examination of the category certificates may be a step to scrutinize

their genuineness; such process would not tantamount to according consideration as mandated by law.

Further, the respondents seem to be under a serious misconception about the methodology of applying horizontal reservation, inasmuch it is

stated that the Open Merit Candidates were required to secure 43.05 points for Class IV vacancy and 48.44 points for Lab Bearer post and since

petitioner No. 1 had secured only 29.5% points as per the criteria adopted for shortlisting, therefore, she was not called for interview. Admittedly,

in all 111 posts--38 posts of Lab Bearer and 73 Class IV posts--were advertised. In terms of clause (13) of the Advertisement notice, the number

of applicants to be admitted to the interview was prescribed to be five times the vacancies. Since in terms of the mandate of Section 22 of the Act,

3% of the posts/vacancies were required to be filled in from amongst the candidates belonging to Physically Handicapped Category, the

respondents were required to admit over all 15 candidates to the interview--5 candidates for the post of Lab Bearer and 10 candidates for the

Class TV posts--so because 3% of 38 posts of Lab Bearer would come to 1 post and 3% of 73 Class IV posts would come to 2 posts. Further,

the law requires that the merit of candidates belonging to the Physically Handicapped Category, whether for purposes of shortlisting or for final

selection, is not to be assessed in comparison to that of the candidates in their respective social categories, but their merit is to be determined inter

se themselves in each social category. This can be explained this way. Admittedly, petitioner No. 1 was a candidate belonging to Physically

Handicapped Category and an Open Merit Candidate. Assuming she was the only candidate in the Handicapped Category. Despite having

secured only 29.5% points on the basis of the fixed criteria as against 43.05 points secured by the last Open Merit Candidate of general category,

she would displace the last candidate possessing 43.05 marks and would, therefore, be entitled to be called for interview. In this connection, it will

be advantageous to refer to the nature of horizontal reservation and the manner of its application as explained by the Supreme Court.

In Indra Sawhney Vs. Union of India (UOI) and Others, , the principal of horizontal reservation was explained thus:

We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little

clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of

convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled

Tribes and Other Backward Classes [(under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically

handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical

reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically

handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against the quota will be placed in that

quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making

necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens

remains - and should remain - the same.

Again, the method of implementing special reservation for woman, which is a horizontal reservation, was explained by the Supreme Court in

Anil Kumar Gupta and Others Vs. State of U.P. and Others, , thus:

The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation

quotas, i.e., S.C., S.T. and B.C.; the third step would be to find out how many candidates belonging to special reservations have been selected on

the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question

arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against

their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of

compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied

separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be

satisfied or may not be satisfied.)

The aforesaid position of law was also explained by this Court while deciding CMP No. 2987/2013 accompanying writ petition, SWP No.

1058/2013 & CMP No. 1702/2012 titled Aadil Bashir v. State of J & K & Ors., decided on 05.06.2014 in the following words:

The law on application of vertical and horizontal reservations thus stands elaborately settled and explained. Whereas vertical reservations create

separate slots or compartments for each of the reserved categories, say SC/ST/OSC/ALC/General according to the prescribed percentage of

reservations; horizontal reservation cuts across and shares the very same slots or compartments. In other words, a person claiming horizontal

reservation would otherwise belong either to General Category, SC category, ST Category or OSC category or ALC category and would thus be

considered against one of such vertical categories to which he may belong, but would not by itself constitute a separate slot or compartment. As a

necessary corollary, if such a candidal would belong to any of the Social Reserved Categories, he would be entitled to the same relaxed standard

as may be applicable to such Category, not because of being a PHC candidate, but because of belonging to the Social Reserved Category. If a

reserved category candidate makes the grade, he can even go into and be selected in the General Category on the basis of his merit. Further,

depending upon the nature of horizontal reservation prescribed--compartmentalized horizontal reservation or overall horizontal reservation--if in a

given category, say, for instance, General Category, the required number of PHC candidates do not come in the selection list as per the percentage

of reservation fixed for such candidates, the short fall would be made good by dislodging equal number of selected candidates of the General

Category figuring at the bottom of that category.

(Emphasis supplied)

In the instant case, the respondents firstly did not prescribe any reservation for Physically Handicapped Category candidates in the

advertisement notice. Secondly, assuming petitioner No. 2 did not have the category certificate issued by the prescribed authority, petitioner No.

1's merit for purposes of shortlisting was compared with the merit of the last general candidate in the Open Merit Category and she having had

secured the merit position lower than that candidate, has not been called for interview. Meaning thereby, her candidature has not been considered

against the 3% posts/vacancies so advertised either in the category of Lab Bearer posts or that of the Class IV posts. It is also not disclosed by the

respondents anywhere in their counter affidavit whether any physically handicapped category candidate was shortlisted and interviewed by them.

Their silence in this regard demonstrates that no such candidate was admitted to the interview. In any case, the course adopted by the respondents

is clearly violative of Section 22 of the Act and cannot be sustained.

It may be observed here that this Court is not to go into the question of validity or otherwise of any category certificate. It is for the

respondents to scrutinize whether any certificate has been issued by the competent/prescribed authority or not.

Now the question is what relief can be granted at this stage. Except the petitioners, nobody is aggrieved of the advertisement notice. In fact,

they also challenged the advertisement notice only when they were not allowed to participate in the interview process on the relevant date. At the

top of it, on the one hand the petitioners have sought quashing of the advertisement notice and, on the other hand, they have sought for issue of a

Mandamus commanding the respondents to consider their candidature for the posts advertised vide the very same advertisement notice. Besides,

there is a specific purpose behind the employment drive undertaken pursuant to the advertisement notice. The advertisement notice itself was

issued way back in July, 2012. Interviews have been conducted only this year and final selections have not yet been made. In my view, it would,

therefore, be in the interests of justice not to quash the advertisement notice or the process undertaken by the respondents pursuant thereto but,

rather, to direct the respondents to conduct the interview of the petitioners as the candidates belonging to physically handicapped category, if they

possess the disability certificates issued by the competent/prescribed authority, and consider them for appointment against the posts for which they

have offered their candidature under the said category in accordance with the law on the subject.

This petition is, accordingly, allowed to the extent and with the direction as mentioned above. The needful shall be done within 15 days from

today.

This also disposes of the connected CMP. No order as to costs.