Partly allowed

Ravindra Singh Chandrawat v. State of Raj and Ors.

Rajasthan HC26 Jul 2018CW/2934/2018

Case brief

AI extract

What is this about?

In this writ petition, the petitioner sought appointment in a post reserved for blind persons where no suitable candidate was available. The Court interpreted Section 36 of the Equal Opportunities Act, 1995, mandating that if a vacancy remains unfilled due to unavailability of a specific disability category, it must be carried forward and filled by interchanging among the three disability categori

What did the court decide?

Direction to respondents to fill carried forward vacant seats for physically handicapped persons by interchanging among the three categories (blindness, hearing impairment, locomotor disability) in ac

Ravindra Singh Chandrawat Vs State of Raj… — Pension and Retirement Benefits | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 2934/2018

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Ravindra Singh Chandrawat

----Petitioner

Versus

State Of Raj And Ors

----Respondent

For Petitioner(s) : Mr. B. N. Sharma For Respondent(s) :

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Order

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26/07/2018

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Learned counsel for the petitioner at the very outset, submits that controversy raised in the instant writ application is no more res-integra in view of the adjudication by a Coordinate Bench of this Court at Principal Seat, Jodhpur, in a batch of writ applications lead case being SBCWP No. 11382/2017 (Mohammed Farhan Vs. State of Raj. & Ors.) decided on 8^th January, 2018; wherein reliance was placed on earlier adjudication in SBCWP No. 11382/2017. In the case of Mohammed Farhan (supra), the Coordinate Bench taking note of the earlier adjudication in the backdrop of Section 36 of the Equal Opportunities, Protection of Rights and Full Participation Act, 1995, observed thus:

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Learned counsel for the respondent has however pointed out that another judgment passed by Jaipur Bench of this Court in Rama Kherwal VS. State of Rajasthan & Anr. (S.B. Civil Writ Petition No.6544/2015), decided on 08.09.2015. The relevant portion of this judgment, reads as under :-

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(2 of 8)

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[CW-2934/2018]

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“I have considered the rival submissions made by the parties and perused the record.

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The undisputed fact of this case is that while issuing advertisement for the post of Teacher Gr.III (LevelII), one post was kept reserved for physically disabled candidates in the category of blind. No candidate of the said category was available for appointment after declaration of the result of the selection test. The petitioner made a claim for appointment as cut-off marks for the category was kept at 164.50, whereas petitioner has secured 167.23 marks. It is however admitted that claim of the petitioner is against the post meant for blind person. If one post remains vacant from and amongst one category out of three categories of disabled persons, how it has to be dealt with has been provided under Section 36 of the Act of 1995. For ready reference, the said provision is quoted thus:

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“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 nonavailability 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 first be filled by interchange among the three categories and only when there is no parson 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:

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

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(3 of 8)

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[CW-2934/2018]

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Section 36 of the Act of 1995 provides for carry forward of unfilled seat/post for a period of one year and if in the succeeding year also, no candidate is found available from the particular category, then to interchange from other category of person with disability. In the instant case, petitioner has not come with the pleading that one post reserved for blind person was carried forward from the preceding year. In absence of it, it is to be presumed that one post of blind person is of the current year and has to be dealt with as per Section 36 of the Act of 1995. In the light of the aforesaid provision, a direction cannot be given to the respondents to interchange the post from other category. If such a direction is given, it would be contrary to the statutory provision. At this stage, it would also be necessary to clarify that even if any rule exists in conflict to the Act, what will prevail is provisions of the Act, though Rules of 2011 are also not in conflict with the Act of 1995. For ready reference, Rules 36 & 37 are also reproduced hereunder:

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“36. Reservation for Persons with Disabilities.-In every establishment three percent of the vacancies shall be reserved for persons or class of Persons with Disabilities of which one percent each shall be reserved for persons suffering from:-

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(i) blindness or low vision;

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(ii) hearing impairment;

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(iii) Locomotor disability or cerebral palsy.

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In the posts identified for each disability by the Government of India under section 32 and such reservation shall be treated as horizontal reservation:

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Provided that where the nomenclature of any post in the State Government is different from the post in Government of India or any post in the State Government does not exist in any department of the

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(4 of 8)

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[CW-2934/2018]

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Government of India, the matter shall be referred to the Committee constituted under rule 38 for identification of the equivalent post in the State Government. The committee shall identify the equivalent post on the basis of nature of job and responsibility of each post.”

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“37. Maintenance of Rosters.- (1) All establishments shall maintain separate 100 point reservation roster registers for determining/effecting reservation for the disabled.

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(2) Each register shall have cycle of 100 points and each cycle of 100 points shall be divided into three blocks comprising the following points:

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1st Block- Point No. 1 to point No. 33 2nd Block-Point No. 34 to point No. 66 3rd Block- Point No. 67 to point No. 100

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(3) Points 1, 34 and 67 of the roster shall be earmarked and reserved for persons with disabilitiesone point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts.

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(4) All the vacancies shall be entered in the relevant roster. If the post falling at point no. 1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy

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(5 of 8)

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[CW-2934/2018]

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from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities.

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(5) There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block.

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(6) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.

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(7) If the number of vacancies in a year is such as to cover only one block or two, discretion as to which category of the disabled should be accommodated first shall vest in the head of the establishment, who shall decide on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc.” The perusal of rule does not show any arrangement contrary to what has been provided under Section 36 of the Act of 1995. In the light of discussion made above, prayer made by the petitioner cannot be accepted. So far as judgment in the case of Abid Solanki (supra) is concerned, it has been decided on its own fact. The learned counsel therein did not bring Section 36 of the Act of 1995 to the notice of the court. Thus judgment in the case of Abid Solanki (supra) would not provide any assistance to the petitioner.”

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Thus, the emphasis of the learned Additional Advocate General Mr. SS Ladrecha is that in accordance with Section 36 of the Act of 1995, the

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(6 of 8)

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[CW-2934/2018]

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respondents are required to carry forward the vacancies to the next year and if the respective physical handicap person is not available, the same could be inter-changed between the categories of physical Handicap person, however, even then if the post remained vacant then it could be filled by General category persons.

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Thus, the basic dispute regarding the recruitment of Teacher Grade-III is operating the benefit of physically handicap quota under Section 33 and deciding the consequence of a person of the stated disability being not available in the recruitment process.

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After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that the mandate laid down in Section 36 of the Act of 1995 is conclusive and each precedent law requires the respondent to operate the clear mandate given in Section 33 and 36. Thus, the respondents are directed that the persons of Blindness / Low Vision, Hearing Impairment and Locomotive disability or Cerebral palsy shall be appropriately considered in the 3% seats reserved for them in their own category and in case, such post remained unfilled in the similar recruitment in 2012 then Section 36 shall be operated and respondents shall fill the carried forward seats by inter-changing the candidates of these three disabilities mentioned in Section 33 of the Act of 1995. The respondents shall be required to do the following :-

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A. Determine the total vacancies of physically handicapped which are 3% in the recruitment of 2012 and give the exact details of the reservation implemented in 2012 in the sub-categories mentioned in Section 33 of the Act of 1995.

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(7 of 8)

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[CW-2934/2018]

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B. Whatever seats of disabled persons due to nonavailability of respective category of candidates from 2012 which were not filled by their respective categories, the same number of seats shall be filled in 2013, by the respondents by inter-changing the respective categories in the spirit of Section 36 of the Act of 1995.

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Further, the 2013 physically handicapped candidates shall be given appointment in their respective categories as per the Section 33 but if the seats remained unfilled in the 2012 recruitment then the inter-change shall be permissible for the respondents to make the necessary recruitment to the same number of seats unfilled in accordance with Section 36 of the Act of 1995 in 2013 recruitment. The respondents shall be required to demarcate exact number of seats @ 3% of the total number of seats which are recruited and are being recruited for the year 2012 and 2013 and take the decision strictly in terms of Section 33 and 36. It is further made clear that the respondents shall be required to give effect to the legislative intentions in the Section 36 of the Act of 1995 and permit inter-change amongst the physically handicapped candidates. In case, the particular category of physical handicapped persons is not available and in case the same was also not available in the previous recruitment year on account of the particular physical handicap person being not available then such inter-change between the physically handicapped persons shall be legally determined and implemented by the respondents within a period of 3 moths from today for the recruitment year 2013.

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On the aforesaid consideration, if seats of physically handicapped persons are found vacant for the year 2013 which could not be filled by their respective categories in 2012, then the petitioners shall be given appointment appropriately in accordance

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(8 of 8)

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[CW-2934/2018]

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with their merit by giving effect to the inter-change amongst the physically handicapped persons.

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The writ petitions are disposed of accordingly.

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Learned counsel for the petitioner submits that for the controversy is identical, and therefore, prays for disposal of the instant writ application, in terms of the order in the case of Mohammed Farhan (supra).

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Ordered accordingly.

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(VEERENDR SINGH SIRADHANA),J

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Pooja/87

Ravindra Singh Chandrawat v. State of Raj and Ors.

Case brief

What is this about?

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Ravindra Singh Chandrawat v. State of Raj and Ors.

Case brief

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