Jyotsna Mengi vs Chairman on 30 March, 2009

0
59
Jammu High Court
Jyotsna Mengi vs Chairman on 30 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 205 OF 2006    
Jyotsna Mengi 
Petitioner
Chairman,J&K PSC & ors   
Respondent  
!Appellant in person
^Mrs. Seema Shekher, AAG AND Mr. D. C. Raina, Sr. Advocate with Mr. F.A.Natnoo, Advocate.    

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge  
 DATE: 30/03/2009 
: J U D G M E N T :

Per Barin Ghosh, CJ:

The Jammu and Kashmir Public Service Commission
invited applications for filling up of 124 posts in eight
different services by a notification dated December 28,
2001. Subsequently, by notification dated November 27,
2002, the number of posts was raised to 138. The
notifications mentioned that two posts have been reserved
for disabled persons. The appellant made a representation
2
that, having regard to the number of posts to be filled up,
the number of posts reserved for disabled persons should
be more. The said representation was not addressed to.
The appellant is a disabled person, for, she has locomotor
disability. She responded to the advertisement and sought
to be considered for the posts reserved for disabled
persons. She was, accordingly, considered and, having
regard to what has been stated in the judgment and order
under appeal, she was adjudged fourth best amongst
disabled candidates. The appellant having thus been
adjudged was not accommodated in the two posts reserved
for disabled persons and, hence, she filed the writ petition.
The writ petition having been dismissed, the present appeal
has been preferred.

On the basis of the papers and records produced
before us there is now no dispute that the person who was
adjudged best amongst disabled persons was, in fact, not a
disabled person and, accordingly, he was not considered in
the category of disabled persons. Accordingly, the second
and third candidates, adjudged amongst disabled persons,
3
have been accommodated in the advertised two posts
reserved for disabled persons. In the event a third post is
available. It is the contention of the appellant she should be
accommodated in such post.

We have made an endeavour to ascertain whether, in
fact, a third post was available or not and will discuss it
hereinafter, but before doing so, we must highlight that the
manner in which steps have been taken to fill up posts
reserved for disabled persons, the State has given a go-by
to the law made by it, namely, the Jammu and Kashmir
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1998, which came into
force on May 19, 1998.

In this connection, one must note sections 21 and 22
of the Act, which are set out below:

“21. Identification of posts which can be
reserved for persons with disabilities.
The Government shall.-

(a) identify posts, in the establishments
which can be reserved for the persons
with disabilities;

4

(b) at periodical intervals not exceeding three
years, review the list of posts identified
and up-date the list taking into
consideration the development in
technology.

22. Reservation of posts.

The Government shall appoint in every
establishment such percentage of vacancies not
more than three percent for persons or class of
persons with disabilities of which one percent,
each shall be reserved for persons suffering
from.-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in
the posts identified for each disabilities;
Provided that the Government may, having
regard to the type of work carried on in any
department or establishment, by notification,
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this Section.”
A look at sections 21 and 22 of the Act would amply make it
clear that, unless the State Government exempts any
establishment from the provisions of section 22 of the Act, it
is mandatory upon the Government to appoint in every
establishment disabled persons and, for that matter, to
identify the posts where disabled persons can be
accommodated. Periodical review for identifying the posts,
5
where disabled persons can be accommodated, is also a
mandate of law. The law, at the same time, mandates that
such review should be made at intervals not exceeding
three years.

The records show that a number of establishments of
the State have identified posts in which displaced persons
cannot be appointed, and while doing so, did not identify
even one single post, where they can be appointed. At the
same time, the Government by notification did not exempt
any such establishment from the provisions of section 22 of
the Act. The Government, therefore, acted and is still acting
in breach of the law made by the Legislature.
Further more, section 22 of the Act mandates
reservation for disabled persons of at least 3% of the total
vacancies. The Government appears to have made such
reservation, i.e., the minimum. Section 22 of the Act further
directs that 1% of the minimum of 3% vacancies shall be
reserved for persons suffering from blindness or low vision;
1% of 3% for persons suffering from hearing impairment
and the remaining 1% of 3% for persons suffering from
6
locomotor disability / cerebral palsy. The Government has
not done so. Records placed before us demonstrate that all
the reserved vacancies created for disabled persons are
being supplied by persons suffering from locomotor
disability. The Government, therefore, is acting in breach of
the law with impunity. We hope that the Government would
act in the manner the Legislature wants it to act. It is the
duty of the Government to identify posts in all
establishments which have not been exempted and which
may be supplied by a person suffering from blindness or low
vision and the percentage thereof should not be less than
1% in the establishment. Similar identification is required to
be made for persons suffering from hearing impairment and
from locomotor disability or cerebral palsy and those
identified posts are required to be supplied by the persons
having such disability. In course of dealing with the matter,
we have found that all posts reserved for disabled persons
are being supplied by persons suffering from locomotor
disability. We hope and expect that the Government mend
its ways and act in discharge of its statutory duty and
7
obligation owing to disabled persons as recognized by the
Legislature.

Coming to the case at hand, initially the appellant
contended that since in terms of the notifications, 138 posts
were to be filled in, there should have been at least 4 posts
available for being filled up by disabled persons. Later, on
realization that 3% reservation in every establishment being
the mandate, she contended before us that no information
has been supplied by the State as to how many vacancies
were available in different establishments for which
recruitment process was initiated by issuing the subject
notifications. Accordingly, we directed production of
appropriate records, including the roster and the
notifications pertaining to maintenance of roster, fixing the
roster points to accommodate persons with disabilities.
Such records have been produced along with appropriate
notifications.

It appears hat on September 29, 1998 a notification
was issued when it was directed that to effect the
reservation for physically disabled persons, a separate
8
register of 100 points shall be maintained in each identified
class of posts filled through direct recruitment in which point
nos.1, 34 and 67 will be reserved for the physically disabled
persons and every Head of Department may start point no.1
with any category of disability. The appellant contended
that, in view of such direction, in the event a post in any
establishment is filled in which it is the 34th post, there must
be 2 posts available for physically disabled persons. The
appellant contended that in Community Development and
National Extension (Gazetted) Service 34 posts were filled
in and, at the same time, in the Social Welfare (Gazetted)
Service 44 posts had been filled in and, accordingly, there
must be at least 4 posts available for filling up by disabled
persons.

learned counsel for the State submitted that
Government order dated September 29, 1998 was not
acted upon. She submitted that maintenance of a separate
register of 100 points for disabled persons and then filling
up the same by disabled persons only in point nos. 1, 34
and 67 did not work out. In the circumstances, the
9
Government came up with another order dated March 13,
2001 based on Cabinet decision dated February 8, 2001.
The said order, according to the learned counsel for the
State, authorised 3% reservation in direct recruitments
under the provisions of the said Act in gazetted and nongazetted
posts as identified by expert committee and
detailed in annexure thereto. The said annexure, as
aforesaid, only identified posts where physically
handicapped people cannot work. It was submitted that
based on the said Government order, three percent posts
have been reserved for persons with disability and,
accordingly, 1% is accommodated within the first 33 posts
in an establishment and then another in the next 67 posts
available and the third upto the 99th post available. The
manner, in which the Government has acted, as aforesaid,
is in breach of their obligation bestowed upon them by the
Legislature as contained in sections 21 and 22 of the Act.
The net result is that no person suffering from blindness or
low vision or from hearing impairment has been given the
benefit of reservation made for them. All those vacancies of
3% of the total vacancies are being supplied by persons
10
suffering from locomotor disability. Further, it has not come
on record that even one single person suffering from
cerebral palsy has obtained the benefit of reservation for
persons suffering from such disability. Though suffering
from locomotor disability and suffering from cerebral palsy
are quite different things, but since the Legislature has
classified them in one category, it goes without saying that
persons suffering from cerebral palsy are required to
compete with persons suffering from locomotor disability for
supplying one vacancy reserved for them.
There is no dispute that the 2 posts reserved for
physically handicapped persons have been supplied by
persons with locomotor disability who where above the
appellant in the merit list of persons suffering from
locomotor disability. At the same time, there is no dispute
that upto 34th post in Community Development and National
Extension (Gazetted) Service and upto 44th post in the
Social Welfare (Gazetted) Service have been supplied and,
accordingly, percentage-wise, 2 posts were available in the
said departments for physically handicapped persons.

11

Though the 44th post in Social Welfare (Gazetted) Service
has been supplied by a physically handicapped person, but
no post in the Community Development and National
Extension (Gazetted) Service has been supplied by a
physically handicapped person. The other post which has
been supplied by a physically handicapped person was in
the Accounts (Gazetted) Service. Therefore, there cannot
be any dispute, as contended by the appellant, that there
was at least one more post available for physically
handicapped persons in addition to the two posts as were
notified.

The question is should we direct that one additional
available post be supplied by the appellant. The appellant
has relied upon a judgment of the Hon’ble Supreme Court
rendered in the case of State of UP v Pawan Kumar
Tiwari, 2005(1) Supreme 3. In that case the Hon’ble
Supreme Court was concerned with filling up of 93 posts of
Civil Judge (Junior Division) in UP Judicial Service. The
Hon’ble Court was not concerned with an issue pertaining to
reservation for persons with disability; they were concerned
12
with reservation of 3 posts horizontally for the category of
freedom fighters and ex-servicemen, but in the general
quota. The said judgment, therefore, is of no help to the
appellant. The next judgment of the Hon’ble Supreme
Court, cited by the appellant, was rendered in Bhudev
Sharma v District Judge Bulandshahr, 2007(8) Supreme

192. In that case, the appellant before the Hon’ble Supreme
Court was a blind person. He was not given the benefit of
reservation, although 2% reservation for physically
handicapped persons was available. The Hon’ble Supreme
Court found that when altogether 30 posts were to be filled
in, 2% thereof works out to 0.6 and the same being more
than half, should have been rounded to one and,
accordingly, one post was available for filling up by a
physically handicapped person. The Hon’ble Supreme
Court, accordingly, ordered. The person who succeeded
before the Hon’ble Supreme Court in that case was a blind
person which must be kept in mind.

The Legislature in section 22 of the Act did not stop by
saying that there should be reservation of 3% in the
13
vacancies for disabled persons; they categorised disabled
persons and said that each such category shall be entitled
to 1% reservation. They also gave the chronology of such
category. The first category has been identified as blindness
or low vision. Therefore, the first 1%, out of the 3% of
vacancies to be reserved for disabled persons, is to be
supplied by a person suffering from blindness or low vision.
The second 1%, out of the 3% of such vacancies, should be
supplied by a person suffering from hearing impairment and
the last 1% by a person suffering from locomotor disability
or cerebral palsy. In the case before the Supreme Court,
referred to above, the appellant being a blind person, was
entitled to the first post available for disabled persons;
whereas the appellant in the case at hand is entitled to the
third post available for disabled persons. That is the
distinction. In the circumstances, and despite holding that
one more post was available for disabled persons, we are
unable to issue a direction for appointment of the appellant.
We, however, direct the State as follows:

i) to identify posts in all establishments which can
be reserved for persons with disabilities. Those
14
posts must not be less than 3% of the posts
available in each of the establishments of the
State which have not been exempted;

ii) while identifying those posts, it must be
ascertained whether the vacancies therein can
be supplied by a person suffering from
blindness / low vision, or whether the same can
be supplied by a person suffering from hearing
impairment or whether the same can be
supplied by a person suffering from locomotor
disability / cerebral palsy;

iii) the posts to be so identified must not, in any
case, be less than 1% of the total posts
available in such establishments which can be
supplied by persons suffering from blindness /
low vision, and, similarly, at least 1% of such
posts to which can be supplied by persons
suffering from hearing impairment and at least
1% of such posts which can be supplied by
persons suffering from locomotor disability /
cerebral palsy;

iv) not exceeding 3 years, a review shall be made
in each such establishment of the State to reidentify
such posts and to update the same
taking into consideration the development in
technology;

15

v) the first of the 3% of the total vacancies should
be supplied by a person suffering from
blindness / low vision; the second by the
person suffering from hearing impairment and
the third by the person suffering from locomotor
disability / cerebral palsy;

vi) reservation for persons suffering from disability
shall be horizontal and, accordingly, a disabled
person shall fill up that post which is available
in the category to which he belongs, but as a
disabled person; and

vii) deficiencies in each establishment shall be
supplied soon and directions as above, would
be complied with before making new direct
recruitments.

With the directions as above, we dispose of the
appeal.

(Mansoor Ahmad Mir) (Barin Ghosh)
Judge Chief Justice.

Jammu,
.03.2009
A. H. Khan, JR.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *