Bharati Barku Khairnar Vs the State of Maharashtra and Others

WP No. 1397/2015

1

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

906 WRIT PETITION NO.1397 OF 2015

¶5

BHARATI BARKU KHAIRNAR
VERSUS

¶6

THE STATE OF MAHARASHTRA AND OTHERS

¶7

Advocate for Petitioner : Mr. Wagh Vishwas B.
Mr. SK Tambe,AGP for Respondents: Nos. 1 & 2
Mr. Shaikh R R , Adv.For R/3.

¶8

CORAM : S.S.SHINDE & P.R.BORA,JJ.

¶9

DATE :17th February, 2016.

¶10

PER COURT :

¶11

1)Heard. This petition is filed with

¶12

following prayers, -

¶13

"(B)By allowing this writ petition, to
hold and declare that the petitioner is
entitled for the post of Aarogya Sevak
Mahila (Health Assistant) pursuing to
the advertisement issued ian the month
of September, 2014.

¶14

(C)By allowing this writ petition,
the respondents may be directed to
enlist the name of the petitioner in
the final selection list from the
category of “physically impairment”.

¶15

2 WP No. 1397/2015

¶16

2)Learned Counsel appearing for the petitioner
submits that, though the post of Aarogya Sevak was
reservedforphysicallyhandicappedperson
(handicapped by one leg), the candidates from the
said category could not be selected and, therefore,
the petitioner, who is physically handicapped
(partially deaf), may be considered for appointment
on the said post. The learned Counsel invited our
attention to the provisions of Section 36 of The
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995 (for short, the said Act) and submits that,
where in any recruitment year any vacancy under
section 33 cannot be filled up due to non-

¶17

availability of a suitable person with disability or,
for any other sufficient reason, such vacancy shall
be carried forward in the succeeding recruitment year
and if in the succeeding recruitment year also
suitable person with disability is not available, it
may be first filled up by interchange among the three
categories and only when there is no person with
disability available for the post in that year, the
employer shall fill up the vacancy by appointment of
a person, other than a person with disability.

¶18

3 WP No. 1397/2015

¶19

Therefore, according to the learned Counsel appearing
for the petitioner, by invoking the provisions of
Section 36 of the said Act, the petitioner's prayer
for appointment on the post of Aarogya Sevak deserves
consideration. He further submits that, for this
year also, another advertisement is issued by the
respondents, however, the provisions of Section 36 of
the said Act are not followed. The learned Counsel
also invited our attention to the Circular issued by
the Department of Social Justice, Cultural affairs,
Sports and Special assistance of Government of
Maharashtra dated 1st July, 2003.

¶20

3)We have heard the learned Counsel for the

¶21

parties. Perused the pleadings and grounds in the
petition, annexures thereto and in particularly, the
advertisement dated 23rd August, 2014 issued by the
District Selection Committee, Aurangabad. In clause
7 of the said advertisement, post “Aarogya Sevak
(Female) is mentioned and so far as physical
handicaped category is concerned, it is written as
“Apang” (handicapped by one leg/Eka Payane Apang).
Admittedly, the petitioner does not belong to the
said category, for which the post had been advertised

¶22

4 WP No. 1397/2015

¶23

by the District Selection Committee, Aurangabad.
The petitioner belongs to physically handicaped
(partially deaf).

¶24

4)Provision of Section 36 of the said Act is
relevant, which reads thus, -

¶25

“36.Vacancies not filled up to be
carried forward, -Where in any
recruitment year any vacancy under
section 33 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 and if in the succeeding
recruitment year also suitable person
with disability is not available, it may
be first filled up by interchange among
the three categories and only when there
is no person with disability available
for the post in that year, the employer
shall fill up the vacancy by appointment
of a person, other than a person with
disability.

¶26

Provided that if the nature of
vacancies in an establishment is such
that a given category of person cannot be
employed,thevacanciesmaybe
interchanged among the three categories
with the prior approval of the

¶27

5 WP No. 1397/2015

¶28

appropriate Government.”

¶29

5)In that view of the matter, since the
recruitment process which was undertaken has been
already completed by the respondents, we are not
inclined to entertain the petition. However, in case
the District Selection Committee issues an
advertisement for recruitment for the current year,
and if the candidate from the aforesaid category,
i.e. “Apang” (handicapped by one leg)is not available
in earlier recruitment process, it is incumbent upon
Respondent Nos.2 and 3 to invoke the provisions of
Section 36 of the said Act, and advertise the said
post and in case a suitable person with disability is
not available, follow the process of interchange
among the three categories, including the category
from which petitioner has applied.

¶30

6)With the above observations, the petition

¶31

stands disposed of.

¶32

bdv/

Bharati Barku Khairnar v. the State of Maharashtra and Others

Case brief

What is this about?

What the court decided

Bharati Barku Khairnar v. the State of Maharashtra and Others

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rasmi Ikbal Kachi Vs the State of Maharashtra and Another

Purushottam Kashinath Kulkarni and Others Vs the State of Maharashtra and Others

Kedarnath Bhausaheb Dande Vs the State of Maharashtra and Others

Swami Ramanand Teerth Marathwada University through Its Registrar Vs Prakash Sambhaji Waghmare and Others

Manjusha Murlidhar Shinde Vs the State of Maharashtra and Others

Jawahar Dwarkadas Kabra Vs Jalna Education Society, Jalna and Others