Allowed

Rakesh Singh v. State of Uttarakhand

Uttarakhand HC4 Dec 2023WPSS/825/2023

Case brief

AI extract

What is this about?

This High Court quashed the reversion of six reserved posts for Differently-abled Persons and the State Government's order to carry them forward to the next selection, directing the Commission to proceed with declaring examination results immediately.

What did the court decide?

Impugned orders reverting reserved posts and carrying them forward were quashed; Commission directed to declare main examination results within 15 days.

Rakesh Singh Vs State of Uttarakhand — Pension and Retirement Benefits | Uttarakhand HC (2023)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (S/S) No. 942 of 2023

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Vinod Singh Jeena ….....Petitioner Versus State of Uttarakhand and another ….….Respondents With Writ Petition (S/S) No. 732 of 2023 Kapil Kumar and another ….....Petitioners Versus State of Uttarakhand and another ….….Respondents

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With

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Writ Petition (S/S) No. 825 of 2023

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Rakesh Singh ….....Petitioner

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Versus

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State of Uttarakhand and another ….….Respondents

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Present:-

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Mr. Sandeep Tiwari and Mr. Yogesh Kumar Sharma, learned counsel for the petitioner(s).

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Mr. Narayan Dutt, learned Standing Counsel for the State.

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Mr. Ashish Joshi and Mr. Alok Mahra, learned counsel for respondent no.2.

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Mr. Vinay Kumar, learned counsel for the intervener.

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Hon’ble Pankaj Purohit, J.

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Since all these writ petition(s) involve similar controversy, therefore they are being heard and decided together. For the purpose of brevity facts of Writ Petition No.942 of 2023, Vinod Singh Jeena is being taken up for consideration of the controversy.

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The writ petition has been filed by the petitioner challenging the advertisement dated 09.08.2021 (Annexure no.1) and notification dated 30.11.2022 (Annexure no.6) issued by respondent no.2, whereby six posts of “Physically Handicapped” category (now termed as “Differently-abled Persons”) in the Uttarakhand Combined State (Civil) Lower Subordinate Service Examination-2021 advertised pursuant to the advertisement dated 09.08.2021, have been reverted back to the Government and order dated 18.08.2023 issued by respondent no.1 whereby reversion of six posts of Differently-abled Persons to the Government has been affirmed by the State Government and decided to carry forward these 6 posts to next selection.

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The facts shorn-off unnecessary details are that an advertisement was issued by the respondent-Commission on 09.08.2021 for recruitment on different posts of State (Civil) Lower Subordinate Service. The controversy to be decided by this Court is limited with regard to the reservation meant for the Differently-abled Persons.

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Learned counsel for the petitioner submitted that petitioner participated in the Preliminary Examination and after being qualified in the Preliminary Examination, he participated in the Mains Examination, the result of which is not declared due to interim order passed by this Court qua the petitioner; however the result of other candidates have been declared. It is further contended by learned counsel for the petitioners that in the impugned advertisement the details of vacancies have been mentioned in Clause-2 of the advertisement and the vertical as well as horizontal reservation for the vacancies have also been bifurcated. He further pointed out that the advertisement impugned in the writ petition is incorrect, inasmuch as, the vacancies for each and every posts subject matter of this advertisement which have been bifurcated for horizontal reservation for the persons suffering with disability, who are entitled to get reservation for “Differently-abled Persons” category, are not as per

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law. The respondent-Commission acting on the principles of the Division Bench judgment passed in Writ Petition (S/B) No.48 of 2022, Manish Chauhan and another Vs. State of Uttarakhand and another has reverted 6 posts of Differently-abled Persons Category back to the Government and respondent no.1 vide order dated 18.08.2023 has carried forward these posts for next selection. According to learned counsel for the petitioner, it is incorrect, illegal and for deprivation of the petitioner, who will be deprived of the selection due to this arbitrary and unreasonable exercise of proper by the respondents.

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The respondent-Commission instead of giving horizontal reservation to the person belonging to the “Differently-abled Persons” category has further wrongly categorize it for one post reserved for the “Unreserved Category Candidate/Open Category Candidate” and one for “O.B.C”. This, according to learned counsel for the petitioner, is arbitrary and illegal for the reason that such categorization of giving vertical reservation to the horizontal post cannot be made by the respondent-Commission. It is brought to the notice of this Court that a similar controversy arose before the Division Bench of this Court in Writ Petition (S/B) No.49 2022, Manish Chauhan and another Vs. State of Uttarakhand and another, which was decided by this Court vide judgment and order dated 27.07.2022, wherein the advertisement impugned in the that writ petition was quashed and the respondentCommission was directed to bring out a fresh advertisement strictly in compliance with Rule 11 (4) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as “Act of 2016”) and in light of the judgment Indra Sawhney Vs. Union of India and another, reported in AIR 1993 SC 477 .

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Learned counsel for the respondent-Commission brought to notice of this Court that on a review petition filed by the Commission, the said advertisement was retained and the Commission was directed to comply with the direction given in Manish Chauhan’s judgment as referred above. The respondent-Commission subsequently

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vide corrigendum 23.12.2022 (Annexure no.7) re-advertised the posts reserved for the “Differently-abled Persons Category” with Differently-abled sub-categories.

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It is the contention of learned counsel for the petitioner that in this selection the posts have been reverted back. This act of respondent-Commission is illegal simply for the reason that the said notification was issued by the Commission after commencement of the examination and before the declaration of the final result rather the main examination has already been conducted by the Commission.

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The writ petition was contested by the Commission by filing a detail counter affidavit, in which it has been mainly contended that the impugned examination pursuant to the advertisement dated 09.08.2021 has already been conducted and six posts meant for the candidates of “Differently-abled Persons Category” has been reverted back to the Government by the Commission, in light of the judgment rendered by Division Bench of this Court in Manish Chauhan ( supra ). It is the contention of learned counsel for the respondent-Commission that whole examination process should not be vitiated, in all these five on-going examination only for that reason.

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The State Government has filed its counter affidavit and contended that the posts which have been reverted by the Commission to the State Government belongs to “Differently-abled Persons Category”, which has been affirmed and the same was directed to carry forward to the subsequent recruitment. Such order has been passed by the State Government on 18.08.2023.

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Having heard learned counsel for the parties and on perusal of the material available on record, it appears that decision of the Commission for reverting the post belonging to the “Differentlyabled Persons Category” is highly arbitrary for the reason that in garb of compliance of the judgment and order passed by Division Bench

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referred above, this was done by the respondent-Commission. Action of the Commission appears to be illegal, inasmuch as, by such an action the persons who participated in the selection process, in the said category would be deprived of their selection pursuant to the present selection process.

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The controversy has to be viewed in light of the provisions of the Act of 2016 which provides for reservation for persons belonging to “Differently-abled Persons Category” i.e., persons suffering from disability. Sections 33 and 34 of the Act of 2016 are quoted hereinbelow for ready reference:-

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“ 33. Identification of posts for reservation.- The appropriate Government shall-

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(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

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(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

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(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

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34. Reservation. -(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:-

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(a) blindness and low vision;

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(b) deaf and hard of hearing;

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(d) autism, intellectual disability, specific learning disability and mental illness;

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(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

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Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

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Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

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(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five 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:

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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 five categories with the prior approval of the appropriate Government.

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(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.

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From perusal of the aforesaid provisions, it is clear that the State Government shall identify the post in the establishment which can be held by respective category of person with benchmark disability in respect of vacancy in accordance with provision of Section 34 of the Act of 2016. Section 34 of the Act of 2016 makes reservation not less than 4% of the total number of vacancies in the cadre strength in each group of post meant to be filed up with person with benchmark disability of which one percent each shall be reserved for person with benchmark disability under Clauses (a, b, c) and (d) of sub-section 1 of Section 34 of the Act of 2016.

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While going through the mandate of the Act of 2016 and the controversy viewed in that angle the decision of the respondentCommission by reverting the post to the State Government and

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consequent decision of the State Government vide order dated 18.08.2023, which has subsequently been impugned by the writ petitioner through amendment, runs contrary to the intent and spirit of the Act of 2016, therefore the same cannot sustain.

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In this view of the matter, this Court is of the considered opinion that the impugned order dated 30.11.2022 (Annexure no.6), whereby 6 posts reserved for the “Differently-abled Persons” were reverted back to Government is hereby quashed and further the affirmation by the Government and decision to carry-forward the same posts for the next selection vide order dated 18.08.2023 is also quashed.

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Following of the aforesaid discussion, the respondentCommission is directed to proceed with the selection process and the result in respect of 6 posts for the main examination shall be immediately declared not later than 15 days from the date of production of certified copy of this order.

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Since all writ petitions based on the similar set of facts and law, all the writ petitions are allowed. Petitioners shall be considered and recommended in accordance with their merits in the main examination; needless to say in their respective category of “Differently-abled Persons.”

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( Pankaj Purohit, J. ) 04.12.2023

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Rakesh Singh v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Rakesh Singh v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

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