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Judgment
Rakesh Sagar Jain, Member J
Hearing through video conferencing with consent of both the parties
The present O.A. has been filed by applicant Tajinder Kour seeking the following reliefs:
(a) Commanding and directing the respondents to de-reserve the one post of Assistant Professor Geography from PHC category to open category as
the same has been kept reserved in violation to the Govt. order No. 62-SW of 2001 and the Reservation Rules;
(b) Directing the respondents to appoint the applicant against the said post of Assistant Professor Geography after de-reserving the same as the name
of the applicant figures in the select list under the OM category at Sr. No. 4;
(c) Restraining the respondents from cancelling the selection of the applicant made pursuant to the selection process initiated vide notification No. 10-
PSC(DR-P) of 2017 dated 27.10.2017.
Applicant has based her case on J&K Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998
(hereinafter referred to as the ‘Act’). Section 22 of the Act provides that Government shall appoint in every establishment such percentage of
vacancies not less 3%, for persons or class of persons with disabilities of which 1%, 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 disability. Section 26 of the Act
provides as under:-
Employers to maintain records
(1) Every employer shall maintain such records in relation to the persons with disability employed in his establishment in such form and in such manner
as may be prescribed.
(2) The records maintained under sub section (i) shall be open to inspection at all reasonable hours by such persons as may be authorised in this behalf
by general or special order by the Government.
It is also averred that section 54 of the Act empowers the state Government to make rules for carrying out the provisions of the Act and Sub-
Section 2 of Section 4 provides that the rules may provide for all or any of the following matters namely, clause (i) the form and the manner in which
record shall be maintained by any employer under Sub-Section 1 of section 26. In exercise of the power conferred under section 54 of the Act, J&K
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2003 were framed. Rule 37 of those Rules provides
that executive instructions for the method of computation of vacancies shall be issued under this rule from time to time. The Government in order to
maintain the record as required under section 26 of the Act and in order to compute vacancies as required under Rule 37 of Disabilities Rules
2003,issued Executive instructions in the form of Govt. Order No. 62-SW of 2001 dated 13.01.2001. Paragraph para 3.1, 3.2 and 3.3 of the aforesaid
Government order reads as under:-
“3.1. Although the recruitment of physically handicapped persons would be only against posts identified as suitable for them, while computing the
vacancies to which the reservation would apply, the total number of vacancies occurring in the said Gazetted and Non-Gazetted would be taken into
account i.e., the 3% shall have to be computed on the basis of vacancies occurring in both the identified and non-identified posts in Gazetted and Non-
Gazetted.
3.2. All Heads of Departments shall maintain a separate 100 point Register for this purpose, in which each cycle of 100 points shall be divided into
three blocks, comprising the following points:-
1st Block : point No. 1 to point No. 33
2nd Block : point No. 34 to point No. 67
3rd Block : point No. 68 to point No. 100
3.3. All the vacancies reported by the different appointing authorities will be entered in this Register for each Group of posts (Gazetted or Non-
Gazetted). The account shall be maintained on year to year basis separately for Gazetted and Non â€"Gazetted posts /services and will be closed
annually. For each block of vacancies, there shall be reserved one vacancy for the physically handicapped posts/grader identified as suitable for one or
more of the categories of the physically handicapped i..e when there are 33 vacancies in a Group, one vacancy is to be reserved for the physically
handicapped. After computing all the vacancies and determining the reservation for the handicapped, blockwise, in the manner indicated above, the
Head of Department will be required to distribute these reserved vacancies for the handicapped among different appointing authorities in the light of
the availability of vacancies in the identified categories under the various appointing authorities. Care should also be taken that 3% reservation for
physically handicapped is, far as possible, distributed equally among the three subcategories i.e. the blind, the deaf and the Orthopedically handicapped,
consistent with the appropriate identification. If the number of vacancies is such as to cover only one block or two, discretion as to which category of
the handicapped should be accommodated first should vest in the Head of the Department. He will besides this on the basis of the nature of the post,
the level of representation of the specific handicapped category in the concerned grade/ post, and the availability of the candidate of a particular
handicapped category, in so far as that can be ascertained.
Further case of the applicant is that Government enacted J&K Reservation Act, 2004 and section 3 of the Reservation Act provides for reservation
in direct recruitment for SC, ST and Socially and Educationally Backward Classes and section 23 of the Reservation Act empowered the State Govt.
to frame the rules. In exercise of powers conferred under section 23 of J&K Reservation Act, 2004 and section 22 of J&K Persons with Disabilities
Act, the Government framed J&K Reservation Rules, 2005 through the medium of SRO 294 dated 01.10.2005 and Rule 4 of Reservation Rule 2005
provides that while making direct recruitment, 3% vacancies shall be reserved for horizontal reservation in favour of physically challenged persons.
Rule 5 of Reservation Rules, 2005 provides that with a view to give effect to the reservation, the appointing authority shall, in respect of each service,
class, category and grade in the services and posts under the State, maintain a roster of 100 vacancies in the form given hereinafter and sub-rule 2 of
Rule 5 provides that the roster shall be maintained as a running account from year to year and will start at the commencement of a year at the point
following the points which was utilized at the end of the previous year. Rule 6 of Reservation Rules provides that the responsibility for custody,
maintenance and updating the roster for State Cadre posts shall ordinarily be with the administrative department in the Government.
It is further averred in the O.A. that after the coming into the force of reservation rules of 2005 which provide for 3% reservation for physically
challenged persons while making direct recruitment, the Higher Education Department i.e. respondent no. 1 for the first time referred 3 posts of
lecturers in geography to the J&KPSC for which selection was made and consequently 3 candidates were appointed as lecturer geography vide Govt.
Order No. 201-HE of 2007 dated 12.09.2007 (Annexure-A1 with the OA). It is stated that thereafter respondent no. 1 referred four more posts of
lecturers in geography to PSC and accordingly after the selection, vide Govt. Order no. 272-HE of 2009 dated 03.12.2009 (annexure-A2 with OA)
four more candidates were appointed as lecturers in geography making a total of 7 candidates and since Govt. Order No. 62-SW of 2001 with
particular reference to para 3.2 and para 3.3 in clear and categoric terms provided that for offering 3% reservation to physically challenged persons,
there shall be first block starting from point no. 1 to point No. 33 and para no. 3.3 provides that when there were 33 vacancies in a group, one vacancy
is to be reserved for handicapped, as such, by the time 7candidates were appointed first block starting from point no. 1 to point no. 33 was not
exhausted, therefore, no vacancy was offered to physically challenged persons.
6) It is the case of applicant that thereafter, in the third attempt respondent no. 1 referred 43 more vacancies of lecturers and were accordingly
advertised by the PSC vide Notification No. 12-PSC (DR-P) of 2014 dated 29.05.2014 (Annexure-A4 with the OA),(subsequently nomenclature
changed as Assistant Professor, in view of UGC Regulations) and for the first time one post was reserved by way of horizontal reservation in favour
of handicapped category candidates out of those 43, thereby the total points reached were 50 i.e. 3+4+43 =50, which includes 33rd point i.e. last point
in first block, therefore, rightly one post was reserved for handicapped category candidates, though legally speaking separate vacancy was not
required to be reserved and reflected in the advertisement, inasmuch as horizontal reservation cuts across the vertical reservation and a candidate
belonging to horizontal reserved category gets adjusted in his respective vertical category to which he belongs, i.e. if he belongs to open merit he will
oust /exclude the last candidate from OM category and if he belongs to SC or ST category he would exclude /oust the last candidate under SC or ST
category.
Keeping in view the clear understanding by the Govt. of para 3.2 and 3.3 of Govt. Order No. 62-SW of 2001 dated 13.03.2001 that 33rd point was
required to be reserved for handicapped category candidates, therefore, rightly while advertising 43 vacancies in the year 2014,one vacancy was
reserved for physically challenged person, inasmuch as prior to 2014 advertisement, only seven candidates stood already appointed. Therefore, 33rd
point was consumed only when 43 vacancies were advertised which made it to total of 50 vacancies, as such, the next vacancy i.e. second vacancy
for handicapped category candidates was required to be offered in the second block when 67thvacancy was to be referred and was to be advertised.
Thereafter in the fourth attempt respondent no. 1 referred ten more vacancies of lecturers/Assistant Professors in geography to PSC including 1 for
handicapped category candidates under horizontal reservation category though the same was factually incorrect, as by the time 10 more vacancies
were referred in the year 2017, advertised by the PSC vide notification No. 10-PSC(DR-P) of 2017 dated 27.10.2017 (Annexure-A6 with the OA), by
that point of time 67th point in second block was yet to be consumed/exhausted /reached, as such there was no occasion for advertising one vacancy
under handicapped category candidates. Out of 10 vacancies advertised, four vacancies were advertised under the OM category.
The applicant being eligible, applied for the post of Assistant professor in geography pursuant to notification No. 10-PSC(DR-P) of 2017 dated
27.10.2017 under OM category and sought consideration against the four vacancies advertised under OM category and respondent no. 3 also
responded to the aforesaid advertisement under handicapped category.
Since the selection was required to be made on the basis of academe merit, research publications, and presentations followed by the interview,
therefore, PSC issued notice dated 20.10.2020 (AnnexureA7 with OA), in which schedule of the interviews was notified and the applicant was
scheduled to be interviewed on 23.11.2020. The applicant accordingly appeared in the interview under OM category. Since 67th point was yet to be
exhausted in the second block as provided in para 3.3 of Govt. Order No. 62-SW of 201 dated 13.03.2001, the mistake was rectified by the PSC in
consultation with respondent no. 1 and no candidate was selected from handicapped category and consequently select list was issued by PSC vide
notification no. 03-PSC(DR-S) of 2021 dated 05.01.2021 (Annexure-A8 with OA) in which the name of the applicant figured at sr. no. 4 under the
OM category with merit of 57.17 points and no candidate from the handicapped category was selected.
It is also averred in the O.A. that since the select list was issued way back on 05.01.20, and the name of the applicant was not being
recommended for appointment by PSC to respondent no. 1, constrained under those circumstances, the applicant approached respondent no. 1 and
was informed that since the applicant is the last selected candidate under OM category out of 4 vacancies advertised and since 1 vacancy was
required to be offered to handicapped category candidate and the handicapped category candidate i.e. respondent no. 3 being the most meritorious
amongst handicapped category candidates belongs to OM category, therefore, by way of horizontal reservation, he would cut across the vertical
reservation and shall be adjusted in place of the applicant and the applicant shall be ousted /removed from the selection list being the last candidate
selected under the OM category.
Hence, the present application was filed in the Hon’ble High Court vide order dated 12.02.2021, respondents were restrained from appointing
any person from physically handicapped category and to maintain status quo with regard to the selection of the applicant.
We have heard and considered the arguments of Mr. Abhinav Sharma, learned counsel for applicant and Mr. F.A Natnoo, learned counsel for
J&K Public Service Commission, Mr. R.A. Jan, learned counsel for the private respondent No.3 as well as Mr. Rajesh Thapa, learned DAG for the
official respondents and gone through the material on record.
In the present case, since section 26 of the Disabilities Act, 1998 provides for maintenance of record the employer and rule 37 of the Persons with
Disabilities Rules, 2003 provides for issuance of executive instructions for method of computation of vacancies and the Executive Instructions were
issued vide Govt. Order no. 62-SW of 2001 dated 13.03.2001 in the form of para 3.2. and 3.3 as well. Therefore, it was for respondent no. 1 i.e.
Secretary of Higher Education Department to deal with the contentions raised by the applicant in paragraph 4.10 of the OA read with paragraph 5.2
and 5.3 of the grounds in the OA and to demonstrate how in the absence of utilization of 67th point in second block, second vacancy could have been
offered to handicapped category candidates, as w.e.f. coming into the force of Reservation Rules, 2005, for 3%reservation in direct recruitment only
50 posts of lecturers/Assistant Professor Geography stood filed up by 2014 and rightly at point no. 33, one post was reserved in the year 2014 when
43 vacancies were advertised and going by the stand of the Govt. and paragraph No. 3.2 &3.3 of the Govt. order No. 62-Sw of 2001, the second
vacancy was to be offered only on reaching the 67th point which was yet to be reached. At the time of reference of vacancies in 2017 and the time of
issuance of advertisement in the year 2017, only 10 additional vacancies were advertised making it to 60 i.e. 3+4+43 +10= 60, as such second vacancy
could not have been offered to the handicapped category candidate, however, the respondent no. 1 in its counter affidavit did not deal with any of the
contentions raised by the applicant in reach para 4.10, para 5.2 or para no. 5.3 of the T.A.
In so far as respondent no. 2 i.e. PSC is concerned, in its counter affidavit with particular reference to reply to para 4.8 to 4.10, it is stated that it is
for the administrative Department i.e. respondent no. 1 to maintain the roster, yet in the aforesaid para contrary to its own stand states that
nonetheless the assumption of the applicant that candidate from the reserved category is to be provided reservation at the last end of the block is
illegal and misconceived in view of the law laid by the Hon’ble Supreme Court of India in case titled UOI & anr v/s National Federation Blind &
ors, (2013) 10 SCC 772.
It be also noted that respondent no. 3 in his separate counter affidavit did not deal with any of the contentions raised by the applicant in para 4.10,
5.2 and 5.3 of the TA and mainly relied upon Rule 4, Rule 7 (6) and proviso to Rule 8 of Reservation Rule, 2005 which had no bearing on the issue at
all.
Therefore, keeping in view the contentions raised by the applicant and in para 4.10, 5.2 and 5.3 of the OA and silence observed by respondent no.
1 in its counter affidavit who had to deal with all the contentions being custodian of the roster and relying upon paragraph No. 3.2 and 3.3 of the Govt.
Order No. 62-SWof 2001 had rightly offered 1st vacancy to handicapped category candidates after coming into force of reservation rule, 2005 only in
the year 2014 when 43 vacancies were advertised which made it to a total of 50 starting from 3 appointments in the year 2007 and 4 appointment in
the year 2009,yet failed to justify its stand how and in what manner at the time of issuance of advertisement in the year 2017 when only 10 vacancies
were advertised making it to 60 only, could second vacancy be offered to the handicapped category candidates unless and until 67th point in second
block was to be reached and the only plea taken in the counter affidavit is by respondent no. 2 i.e. PSC which had no locus to justify the same,
inasmuch as its counter affidavit PSC has itself stated that it is for respondent no. 1 to justify, yet took upon itself the task of Govt. and relied upon the
judgment of the Hon’ble Supreme Court titled UOI & anr v/s National Federation Blind & ors, (2013)10 SCC 772 which judgment was not at all
applicable in the facts of the present case, as in the aforesaid judgment the reliance was placed by the Hon’ble Supreme Court upon Executive
Instructions issued by GOI Department of personnel and training on 29.12.2005, evident from para 13 of the aforesaid judgment and the aforesaid
memorandum in clear and categoric terms had provided that there shall be 3 blocks starting from point no. 1 to point no. 33 for first block, point no. 34
to point no. 66 for second block and point 67 to 100 in third block as is evident from para 13 of the judgment in which para 15 of the office
memorandum is reproduced and para 15 clause (c) of the office memorandum in clear and categorical terms provided that point no. 1 is first block,
point no. 34 in second block and point no. 67 in the third block shall be earmarked and reserved for persons with disabilities i.e. 1 point for each of
three categories of disabilities, whereas the executive instructions issued by erstwhile State of J&K in the form of Govt. Order no. 62-SW of 2001
dated 13.03.2001 did not provide for earmarking and reservation of 1st,34th and 68th point for handicapped category candidates but providesfor 33rd,
67th and 100th points in three separate blocks which were rightly followed by respondent no. 1 in the year 2014 when 50th vacancy was filled up and
for the first time one vacancy was offered to handicapped category candidates. Therefore, the second vacancy was required to be offered at 67th
point which was yet to be reached in 2017, and in 2017 vacancies were advertised making it to a total of 60 only.
Even if the executive instructions in the form of Govt. Order No. 62-SW of 2001 dated 13.01.2001 are ignored, the respondent no. 1 cannot apply
the roster at his own sweet will, caprice and whims, as the Reservation Rules, 2005, with particular reference to Rule 5(2) stipulates that the roster
shall be maintained as a running account from year to year and even if the stand of the PSC is to be accepted in view of the judgment of the
Hon’ble Supreme Court, which judgment otherwise has no application at all in the facts and circumstances of the present case, in that eventuality
also the first vacancy was required to be offered to handicapped category candidates in the year 2007 when 3 candidates were appointed and second
was required to be offered in the year 2014 when 43 vacancies were advertised and total vacancies reached were 50 which includes 34th point and,
who knows at that point of time in the year 2014 handicapped category candidates were available or not and even if available, who knows to which
category he could belong whether OM, SC, ST, ALC or RBA and to whom he could have cut across by way of horizontal reservation in the year
2014 is not known to anyone but certainly even in that eventuality 3rd vacancy was to be offered at point No. 67th which was yet to be reached, as in
the year 2017 only 10 vacancies were advertised and only 60th point had reached. Therefore, in no circumstances, the right of the applicant could
have been taken away by respondent no. 3.
In view of the above facts and circumstances of the case, the TA is allowed and respondent no. 2 is directed to recommend the name of the
applicant to respondent no. 1 for her appointment as Assistant professor in Geography under OM category, pursuant to her selection made by J&K
PSC vide notification No. 03-PSC (DR-S) of 2021 dated 05.01.2021 with all consequential benefits including notional seniority, and fixation of pay,
though without any arrears of salary w.e.f. the date the selected candidates were appointed against posts of Assistant professors in other disciplines
advertised vide same advertisement Notice no. 10-PSC(DR-P) of 2017 dated 27.10.2017, but the applicant was wrongfully denied her right to the
appointment since January, 2021. No costs.