Dismissed

Niroj Patel v. State

Orissa HC2 Aug 2016WP(C)/130/2010

Case brief

AI extract

What is this about?

The court dismissed a writ petition filed by a male orthopedically handicapped candidate who was not selected for the post of Sikshya Sahayak despite securing the second highest marks. The authorities had filled the reserved pool based on category (blind, hearing impaired, locomotor), with the third post reserved for women under specific State Rules. The court held the selection was legal as the p

What did the court decide?

The writ petition was dismissed; no interference with the Collector's order.

Niroj Patel Vs State — Pension and Retirement Benefits | Orissa HC (2016)

¶1

W.P.(C) No.130 of 2010

¶2

05. 02.08.2016 None appears for the petitioner.

¶3

 However Mr. Buddhiman Rout, learned counsel for School and Mass Education Depa
rtment is present.

¶4

 This writ petition is of the year 2010 and pleadings are complete, as such the
 case is decided on the material available on record.

¶5

 This writ petition is against the order dtd.9.10.2009 passed by the Collector,
 Bargarh whereby and where under the representation filed by the petitioner regarding her sele
ction as Swechha Sevi Sikshya Sahayak has been rejected.

¶6

 The case of the petitioner in brief is that in the light of an advertisement,
she had made application for consideration of her candidature to be selected as Sikshya Sahaya
k in Paikmal Block under physically handicapped category being an untrained +2 qualified candi
date.

¶7

 As per the advertisement the total number of vacancies are to be distributed a
mong +2 CT and B.Ed. category. The petitioner who was an untrained candidate his candidature w
as considered in respect of CT category.

¶8

 The total number of vacancies advertised was 112 out of which 78 vacancies wer
e meant for CT category. The petitioner claims to be engaged under P.H. category and according
 to the petitioner the authorities have not followed the provision of reservation as provided
to the P.H. category which provides that 3% post is to be reserved for physically handicapped
candidates.

¶9

 When the petitioner has not been selected, he has filed writ petition before t
his court being W.P.(C) No.15813 of 2008 and this court has directed the Collector, Bargarh to
 take decision in accordance with law, in terms thereof the Collector has passed order but rej
ected the claim of the petitioiner, being aggrieved the petitioner is before this court by way
 of this writ petition on the ground that the Collector has not appreciated the fact that ille
gality has been committed in the selection process.

¶10

 It has been stated that there is violation of provision of Sec.33 of the Perso
ns With Disabilities (Equal Opportunities Protection of Rights) etc. in short P.W.D. Act, 1995
 which stipulates that every appropriate Government shall appoint in every establishment such
percentage of vacancies not less than 3% for persons or class of persons with disability of wh
ich one percent each shall be reserved for persons suffering from (i) blindness or low vision,
 (ii) hearing impairment, and (iii) locomotor disability of recebral palsy. But in the instant
 case the authority without following the principle filled up the same by other candidates.

¶11

 It has been stated that the authorities have also not followed Sec.36 of the s
aid which provides that if in any recruitment year any vacancy under Section 33 cannot be fill
ed up due to non-availability of suitable person with disability or for any other sufficient r
eason, 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 firs
t be filled by inter change among the three categories and only when there is no person with d
isability available for the post in that year, the employer shall fill up the vacancy by appoi
ntment of a person other than a person with disability.

¶12

 According to the petitioner in the instant case although the petitioner was an
 eligible candidate and secured second position in that selection, but illegally deprived from
 the appointment.

¶13

 Counter affidavit has been filed on behalf of opposite party no.4 inter alia s
tating therein that the provision of Orissa Reservation of Vacancies Act has been followed whi
ch provides to keep 3% of post reserved for physically handicapped category and out of these t
hree posts 1st post will go to the candidate who is blind, 2nd post will go to the candidate w
ho is deaf and 3rd post will go to the candidate who is orthopedically handicapped and besides
 that one post out of those three posts will be reserved for women candidate.

¶14

 The petitioner being a physically handicapped person his case would have been
considered after visually handicapped and hearing impaired candidates taken into consideration
 but as the third post is meant for women physically handicapped, the petitioner did not come
within the zone of consideration.

¶15

 It has been stated that in orthopedically handicapped category one Hirakar Pra
dhan having secured 49.333% of marks in comparison to 43.000% marks secured by the petitioner
was given engagement. In the third vacancy one Chandrakant, orthopedically handicapped candida
te has been given engagement and as third post is meant for women candidate.

¶16

 It has further been stated that name of the petitioner was shown at Sl. No.2 i
n the provisional merit list which has subsequently been rectified by providing the name of th
e petitioner at sl. No.1 of the waiting list.

¶17

 It has been submitted that the Collector after taking all these aspect of the
matter has passed the order, hence the same suffers from no infirmity and in that pretext ther

¶18

e is no need to interfere with the order.

¶19

 Heard the learned counsel for opposite party State and perused the pleading,
annexures and the counter affidavit.

¶20

 From its perusal it is evident that one advertisement has been published by th
e functionary of State Government on 13.10.2006 inviting application for the post of Sikshya S
ahayak. In the advertisement the total number of vacancies have been distributed between C.T.
qualified category and B.Ed. qualified category. Out of the total vacancy advertised 78 vacanc
ies were meant for C.T. category. The petitioner was a candidate under untrained +2 qualified.
 The petitioner who is physically handicapped candidate had participated in the selection proc
ess after making application in this regard but he has not been selected, being aggrieved with
 non-selection he has filed writ petition being W.P.(C) No.15813 of 2008 and the same was disp
osed of directing the Collector to take decision and accordingly the Collector has taken decis
ion and rejected the grievance of the petitioner. The petitioner being aggrieved with the orde
r passed by the Collector has filed this writ petition.

¶21

 Before dealing with the fact of the case it would be relevant to state the pro
vision of Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules,
 1994 (herein after referred to as the Rules, 1994). This rule has been formulated by the Stat
e Government in exercise of power conferred by the proviso to Article 309 of the Constitution
of India.

¶22

 Rule 4 of Rules, 1994 contains a provision for reservation and the specific pr
ovision has been made to provide benefit of reservation to different categories of candidates,
 one being the physically handicapped for which 1% post has been earmarked for women candidate
. For ready reference Rule 4 is being quoted herein below:-

¶23

 4. Reservation (1) The following percentage of vacancies out of the total vac
ancies arising in a year in Class-II, specially declared gazette, Class-III and Class-IV servi
ces / posts to which women candidates are eligible to be appointed and which are filled up by
way of direct recruitment, shall be reserved for the women candidates.
Category
Women(1)
Men(2)
Total(3)
(4)Physically handicapped
Sports man
Ex-Servicemen
1%General candidate
0.33%

¶24

2%18.33%
0.67%
3%
3%6.67%
1%
3%
55% (2) Notwithstanding anything contained in Sub-rule (1), reservation made in fa
vour of women candidates in excess of 30% of the total vacancies in the Class-II, specially de
clared gazetted, Class-III and Class-IV services / posts shall continue.

¶25

 (3) If in any year, the vacancies reserved for a particular category of women
candidates specified under Sub-rule (1) remain unfilled due to non availability of suitable wo
men candidates belonging to the respective category, the unfilled vacancies shall be filled up
 by suitable male candidates of the same category:

¶26

 Provided that in case of non-availability of suitable male candidate of that c
ategory, the vacancy shall be filled up by women candidate of general category.
 There are total 112 vacancies out of which 78 vacancies has been earmarked for
 CT category. The competent authority has followed the provision of Section 33 by keeping 3% o
f the vacancies under CT category to be filled up from among physically handicapped. The 3% of
 vacancies of total vacancy of CT category, i.e. 78 has been assessed as 3 after following the
 principle of rounding off.

¶27

 As per the provision of the Act 1995, in consonance thereof Government of Odis
ha has also formulated their rules according to which the 1st post has been earmarked for the
blind or low vision, 2nd post for hearing impaired and 3rd post for locomotor disability or ce
rebral palsy.

¶28

 The authorities have followed the rule of Orissa Civil Services (Reservation o
f Vacancies for Women in Public Services) Rules, 1994 which provides 1% of post to be reserved
 for women candidate. There is no dispute about the fact that the petitioner was orthopedicall
y handicapped being male candidate and as such the 3rd post which according to Rule 1994 has t

¶29

o be reserved for women candidate and accordingly the same has been reserved for women candida
te, in view thereof the case of the petitioner has not been taken into consideration since he
is not coming under the consideration zone.

¶30

 Section 36 of the Rules 1994 provides that if in any recruitment year any vaca
ncy under Section 33 cannot be filled up due to non-availability of suitable person with disab
ility or for any other sufficient reason, such vacancy shall be carried forward in the succeed
ing recruitment year and if in the succeeding recruitment year also suitable person with disab
ility is not available, it may first be filled by inter change among the three categories.

¶31

 It is not the case of the petitioner that even after the vacancy has been carr
ied forward to the succeeding year no women candidate are available, rather his case is that o
n the same earmarked year since he is suffering from locomotor disability, hence for the said
recruitment year his case ought to have been considered but that is not the legal position.

¶32

 In the physically handicapped category one Hirakar Pradhan has been selected o
n account of the first post which was meant for visually impaired category was not available.
Hirakar Pradhan has been selected also by taking into consideration the candidature of the pet
itioner and after comparing the marks secured by Hirakar Pradhan and the petitioner wherein Hi
rakar Pradhan has secured 49.333% whereas petitioner has secured 43.000%, hence Hirakar Pradha
n has been selected over and above the petitioner.

¶33

 There is no question for consideration of selection in the 3rd vacancy because
 the 3rd vacancy which has been reserved for women as per provision of Rules 1994.

¶34

 The petitioner being aggrieved with her non-selection has approached the Colle
ctor and in the light of the order passed by this court the Collector after taking into consid
eration the provision of Rule 1995 and 1994 and also considering the fact that the petitioners
 candidature was considered under the orthopedically handicapped category but one Hirakar Prad
han has been found to be more meritorious and suitable, hence selected. The petitioner contend
s that he ought to have been selected under the 3rd post but this contention of the petitioner
 cannot be accepted for the reason that there is specific provision contained in Rules 1994 wh
ich provides that a post be kept reserved for women candidate and considering this aspect of t
he matter the Collector has passed the order rejecting the claim of the petitioner.

¶35

 Considering the reason mentioned in the order and also in the backdrop of the
facts of this case, in my considered view there is no infirmity in the order passed by the Col
lector and the same warrants no interference.

¶36

 Accordingly, the writ petition stand dismissed.

¶37

 ... S.N. Prasad, J.

¶38

mkp
8

Niroj Patel v. State

Case brief

What is this about?

What did the court decide?

Niroj Patel v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Case details

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