Allowed

Mukesh Kumar v. State Panchyati Raj Dep Ors.

Rajasthan HC5 May 2015CW/39/2013

Case brief

AI extract

What is this about?

A visually handicapped petitioner challenged his non-appointment to a Sanskrit teacher post after the Zila Parishad failed to reserve adequate seats for physically handicapped candidates as per statutory rules. The court accepted the respondent's admission of error and ordered the petitioner's appointment.

What did the court decide?

Directed appointment of the petitioner as Sanskrit teacher Gr.III Level II with Zila Parishad Dausa within three weeks of the order, entitled to seniority and fixation benefits without discrimination

Mukesh Kumar Vs State Panchyati Raj Dep Ors. — Pension and Retirement Benefits | Rajasthan HC (2015)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

¶3

Mukesh Kumar Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No.39/2013) Date of Order: May 05, 2015. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA

¶4

Mr. Prahlad Singh, for the petitioner. Mr. Gaurav Tanwar on behalf of Mr. S.K. Gupta, AAG for the State.

¶5

BY THE COURT :

¶6

The petitioner suffers from 100% lack of eye sight and is a person with disability within the provisions of the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter the 1995 Act') and the Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2011 (hereinafter the 2011 Rules').

¶7

The petitioner having passed the BA/ B.Ed examination and the Rajasthan Teacher Eligibility Test 2011 (RTET) both level I and II has requisite qualification for appointment as a Sanskrit teacher Gr.III

¶8

¶9

Level II under the provisions of the Rajasthan Panchayti Raj Act, 1994 and Rajasthan Panchayti Raj Rules, 1996. Vacancies for appointment of 39 posts of Sanskrit teacher Gr.III level II were advertised in the year 2012 by the Zila Parishad Dausa. The petitioner applied for the said post wrote the examination held on 2- 6-2012 and passed it with 72.24% marks. Thereafter category wise cut off marks were declared by the Zila Parishad Dausa. For the blind it was 72.24%; while for those with Locomotor Disability or Cerebral Palsy (LD/CP) it was 76.83%. For those with hearing impairment no cut off marks were declared. But that is not relevant to the issue agitated in the petition.

¶10

The case of the petitioner is that there were only two candidates in the physically handicapped category i.e. the petitioner with 100% visual disability and one Poonam Sharma with LC/DP. On the basis of cut off marks, the petitioner was called for verification of documents and comparison by Zila Parishad Dausa on 4-9-2012. The petitioner's documents were found in order. The petitioner was expecting that he would be appointed to the post in issue on the basis of the roster point reservation at serial No.1 of the 100% roster for the blind. It has been submitted that in the advertisement of the 39 vacancies for appointment to the post of Sanskrit Teacher, contrary to the roster notified on 26-7-2011

¶11

¶12

under the 2011 Rules, where under two seats as point No.1 and 34

¶13

of the roster should have been reserved for the physically handicapped, only one post for the physically handicapped person was reserved, and that too wrongly allocated to a physically handicapped suffering LD/CP. And on the said post one Poonam Sharma has since been appointed as Sanskrit Teacher Grade III Level II with the Zila Parishad Dausa.

¶14

A complaint before the Commissioner for persons with disability under section 60 of the 1995 Act by the petitioner elicited a response from the Principal Secretary, Sanskrit Education under his letter dated 16-7-2012. He admitted that due to lack of knowledge of the new roster notified on 26-7-2011, the extent of quota for the physically handicapped in the 39 vacancies advertised was not correctly reflected in the advertisement. The Principal Secretary in the aforesaid letter assured that no physically handicapped person would be made to suffer for the inadvertant error which would be rectified by compensation as to seats reserved, apparently in the future as by backlog recruitment.

¶15

The petitioner is dissatisfied with the letter dated 16-7-2012

¶16

and aggrieved of his non-appointment to a post rightly his due in the quota for physically handicapped in result of the recruitment of 2012 for Sanskrit Teacher Grade III Level II with the Zila Parishad Dausa.

¶17

¶18

Mr. Prahlad Singh, counsel for the petitioner submits that the

¶19

Principal Secretary, vide his letter dated 16-7-2012 to the Commissioner under the Act of 1995 having admitted to the error in not providing reservation under the 1995 Act for the persons with disability for two posts out of the 39 vacancies advertised, a clear case of granting relief to the petitioner by his appointment to the post of Sanskrit Teacher Gr.III level II in Zila Parishad Dausa is made out. It has been submitted that in terms of roster points of reservation for the physically handicapped candidates indicated in the Notification published in Rajasthan Gazette on 26-7-2011 consequent to the Rules of 2011, the first vacancy is reserved for a physically handicapped person with blindness, the 34^th to physically handicapped suffering from hearing impairment and the 67^th to one suffering from LD/CP. It has been submitted that the petitioner is the only successful physically handicapped candidate suffering from blindness in the 2012 examination for the appointment to the post of Sanskrit teacher Gr.III level II with Zila Parishad Dausa and hence as a matter of right is entitled to appointment on the said post. It has been prayed that it be ordered accordingly. It has been submitted that the other physically handicapped candidate, Poonam Sharma suffering from LD/CP already appointed would not be adversely affected for the reason that there were only two successful

¶20

¶21

physically handicapped persons in 2012 examinations for the two reserved posts for them.

¶22

Mr. Gaurav Tanwar appearing on behalf of Mr. S.K. Gupta,

¶23

Additional Advocate General admits to the fact that the advertisement for appointment to the post of Sanskrit teacher Gr.III Level II was vitiated for reason of the administrative department not being aware of the notification dated 26-7-2011 issued under the 2011 Rules providing for roster points 1, 34 and 67 for different categories of physically handicapped candidates under the 100 point roster system applicable to the posts in issue. He also admits the fact that the petitioner was the only successful candidate in category of physically handicapped suffering from 100% visual impairment and seeking appointment to the post of Sanskrit teacher Gr.III Level II with Zila Parishad Dausa. He consequently is not in a position to deny that in the facts of the case and state of law on record, the respondents have no conceivable defence.

¶24

Having heard counsel for the parties and taking into

¶25

consideration the admitted facts of the case as also the factum of notification dated 26-7-2011 providing for reservation at point No.1 in the 100 point roster for persons suffering from blindness, I would allow this writ petition as the petitioner is the only successful

¶26

¶27

physically handicapped candidate suffering from 100% visual impairment in the examination of 2012 for the appointment to the post of Sanskrit teacher Gr.III Level II. The petitioner is therefore entitled to be appointed on the post of Sanskrit teacher Gr.III Level II with Zila Parishad Dausa. It is directed that the appointment of the petitioner on the post of Sanskrit teacher Gr.III Level II with the Zila Parishad Dausa be made within a period of three weeks from the date of receipt of certified copy of this order. The petitioner shall be entitled to all benefits i.e. seniority and fixation etc. as accrued to other successful candidates in the examination of 2012 without any discrimination except as to actual payment of wages, prior to his joining service on the post of Sanskrit Teacher Grade III Level II with the Zila Parishad Dausa. He shall be entitled only to notional benefits on that count.

¶28

The writ petition stands allowed accordingly.

(Alok Sharma), J.

arn/

All corrections made in the order have been incorporated in the order being emailed.

¶33

Arun Kumar Sharma, Private Secretary.