{"id":266820,"date":"2009-03-30T00:00:00","date_gmt":"2009-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jyotsna-mengi-vs-chairman-on-30-march-2009-3"},"modified":"2016-01-22T10:38:22","modified_gmt":"2016-01-22T05:08:22","slug":"jyotsna-mengi-vs-chairman-on-30-march-2009-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jyotsna-mengi-vs-chairman-on-30-march-2009-3","title":{"rendered":"Jyotsna Mengi vs Chairman on 30 March, 2009"},"content":{"rendered":"
Jammu High Court<\/div>\n
Jyotsna Mengi vs Chairman on 30 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nLPASW No. 205 OF 2006    \nJyotsna Mengi \nPetitioner\nChairman,J&K PSC & ors   \nRespondent  \n!Appellant in person\n^Mrs. Seema Shekher, AAG AND Mr. D. C. Raina, Sr. Advocate with Mr.   \nF.A.Natnoo, Advocate. \n\nHon'ble Mr. Justice Barin Ghosh, Chief Justice\nHon'ble Mr. Justice Mansoor Ahmad Mir, Judge  \n DATE: 30\/03\/2009 \n: J U D G M E N T :\n<\/pre>\n
Per Barin Ghosh, CJ:\n<\/p>\n
The Jammu and Kashmir Public Service Commission
\ninvited applications for filling up of 124 posts in eight
\ndifferent services by a notification dated December 28,
\n2001. Subsequently, by notification dated November 27,
\n2002, the number of posts was raised to 138. The
\nnotifications mentioned that two posts have been reserved
\nfor disabled persons. The appellant made a representation
\n2<\/span>
\nthat, having regard to the number of posts to be filled up,
\nthe number of posts reserved for disabled persons should
\nbe more. The said representation was not addressed to.
\nThe appellant is a disabled person, for, she has locomotor
\ndisability. She responded to the advertisement and sought
\nto be considered for the posts reserved for disabled
\npersons. She was, accordingly, considered and, having
\nregard to what has been stated in the judgment and order
\nunder appeal, she was adjudged fourth best amongst
\ndisabled candidates. The appellant having thus been
\nadjudged was not accommodated in the two posts reserved
\nfor disabled persons and, hence, she filed the writ petition.
\nThe writ petition having been dismissed, the present appeal
\nhas been preferred.\n<\/p>\n
On the basis of the papers and records produced
\nbefore us there is now no dispute that the person who was
\nadjudged best amongst disabled persons was, in fact, not a
\ndisabled person and, accordingly, he was not considered in
\nthe category of disabled persons. Accordingly, the second
\nand third candidates, adjudged amongst disabled persons,
\n3<\/span>
\nhave been accommodated in the advertised two posts
\nreserved for disabled persons. In the event a third post is
\navailable. It is the contention of the appellant she should be
\naccommodated in such post.\n<\/p>\n
We have made an endeavour to ascertain whether, in
\nfact, a third post was available or not and will discuss it
\nhereinafter, but before doing so, we must highlight that the
\nmanner in which steps have been taken to fill up posts
\nreserved for disabled persons, the State has given a go-by
\nto the law made by it, namely, the Jammu and Kashmir
\nPersons with Disabilities (Equal Opportunities, Protection of
\nRights and Full Participation) Act, 1998, which came into
\nforce on May 19, 1998.\n<\/p>\n
In this connection, one must note sections 21 and 22
\nof the Act, which are set out below:\n<\/p>\n
“21. Identification of posts which can be
\nreserved for persons with disabilities.
\nThe Government shall.-\n<\/p>\n
(a) identify posts, in the establishments
\nwhich can be reserved for the persons
\nwith disabilities;\n<\/p>\n
4<\/span><\/p>\n
(b) at periodical intervals not exceeding three
\nyears, review the list of posts identified
\nand up-date the list taking into
\nconsideration the development in
\ntechnology.\n<\/p>\n
22. Reservation of posts.\n<\/p>\n
The Government shall appoint in every
\nestablishment such percentage of vacancies not
\nmore than three percent for persons or class of
\npersons with disabilities of which one percent,
\neach shall be reserved for persons suffering
\nfrom.-\n<\/p>\n
(i) blindness or low vision;\n<\/p>\n
(ii) hearing impairment;\n<\/p>\n
(iii) locomotor disability or cerebral palsy, in
\nthe posts identified for each disabilities;
\nProvided that the Government may, having
\nregard to the type of work carried on in any
\ndepartment or establishment, by notification,
\nsubject to such conditions, if any, as may be
\nspecified in such notification, exempt any
\nestablishment from the provisions of this Section.”
\nA look at sections 21 and 22 of the Act would amply make it
\nclear that, unless the State Government exempts any
\nestablishment from the provisions of section 22 of the Act, it
\nis mandatory upon the Government to appoint in every
\nestablishment disabled persons and, for that matter, to
\nidentify the posts where disabled persons can be
\naccommodated. Periodical review for identifying the posts,
\n5<\/span>
\nwhere disabled persons can be accommodated, is also a
\nmandate of law. The law, at the same time, mandates that
\nsuch review should be made at intervals not exceeding
\nthree years.\n<\/p>\n
The records show that a number of establishments of
\nthe State have identified posts in which displaced persons
\ncannot be appointed, and while doing so, did not identify
\neven one single post, where they can be appointed. At the
\nsame time, the Government by notification did not exempt
\nany such establishment from the provisions of section 22 of
\nthe Act. The Government, therefore, acted and is still acting
\nin breach of the law made by the Legislature.
\nFurther more, section 22 of the Act mandates
\nreservation for disabled persons of at least 3% of the total
\nvacancies. The Government appears to have made such
\nreservation, i.e., the minimum. Section 22 of the Act further
\ndirects that 1% of the minimum of 3% vacancies shall be
\nreserved for persons suffering from blindness or low vision;
\n1% of 3% for persons suffering from hearing impairment
\nand the remaining 1% of 3% for persons suffering from
\n6<\/span>
\nlocomotor disability \/ cerebral palsy. The Government has
\nnot done so. Records placed before us demonstrate that all
\nthe reserved vacancies created for disabled persons are
\nbeing supplied by persons suffering from locomotor
\ndisability. The Government, therefore, is acting in breach of
\nthe law with impunity. We hope that the Government would
\nact in the manner the Legislature wants it to act. It is the
\nduty of the Government to identify posts in all
\nestablishments which have not been exempted and which
\nmay be supplied by a person suffering from blindness or low
\nvision and the percentage thereof should not be less than
\n1% in the establishment. Similar identification is required to
\nbe made for persons suffering from hearing impairment and
\nfrom locomotor disability or cerebral palsy and those
\nidentified posts are required to be supplied by the persons
\nhaving such disability. In course of dealing with the matter,
\nwe have found that all posts reserved for disabled persons
\nare being supplied by persons suffering from locomotor
\ndisability. We hope and expect that the Government mend
\nits ways and act in discharge of its statutory duty and
\n7<\/span>
\nobligation owing to disabled persons as recognized by the
\nLegislature.\n<\/p>\n
Coming to the case at hand, initially the appellant
\ncontended that since in terms of the notifications, 138 posts
\nwere to be filled in, there should have been at least 4 posts
\navailable for being filled up by disabled persons. Later, on
\nrealization that 3% reservation in every establishment being
\nthe mandate, she contended before us that no information
\nhas been supplied by the State as to how many vacancies
\nwere available in different establishments for which
\nrecruitment process was initiated by issuing the subject
\nnotifications. Accordingly, we directed production of
\nappropriate records, including the roster and the
\nnotifications pertaining to maintenance of roster, fixing the
\nroster points to accommodate persons with disabilities.
\nSuch records have been produced along with appropriate
\nnotifications.\n<\/p>\n
It appears hat on September 29, 1998 a notification
\nwas issued when it was directed that to effect the
\nreservation for physically disabled persons, a separate
\n8<\/span>
\nregister of 100 points shall be maintained in each identified
\nclass of posts filled through direct recruitment in which point
\nnos.1, 34 and 67 will be reserved for the physically disabled
\npersons and every Head of Department may start point no.1
\nwith any category of disability. The appellant contended
\nthat, in view of such direction, in the event a post in any
\nestablishment is filled in which it is the 34th post, there must
\nbe 2 posts available for physically disabled persons. The
\nappellant contended that in Community Development and
\nNational Extension (Gazetted) Service 34 posts were filled
\nin and, at the same time, in the Social Welfare (Gazetted)
\nService 44 posts had been filled in and, accordingly, there
\nmust be at least 4 posts available for filling up by disabled
\npersons.\n<\/p>\n
learned counsel for the State submitted that
\nGovernment order dated September 29, 1998 was not
\nacted upon. She submitted that maintenance of a separate
\nregister of 100 points for disabled persons and then filling
\nup the same by disabled persons only in point nos. 1, 34
\nand 67 did not work out. In the circumstances, the
\n9<\/span>
\nGovernment came up with another order dated March 13,
\n2001 based on Cabinet decision dated February 8, 2001.
\nThe said order, according to the learned counsel for the
\nState, authorised 3% reservation in direct recruitments
\nunder the provisions of the said Act in gazetted and nongazetted
\nposts as identified by expert committee and
\ndetailed in annexure thereto. The said annexure, as
\naforesaid, only identified posts where physically
\nhandicapped people cannot work. It was submitted that
\nbased on the said Government order, three percent posts
\nhave been reserved for persons with disability and,
\naccordingly, 1% is accommodated within the first 33 posts
\nin an establishment and then another in the next 67 posts
\navailable and the third upto the 99th post available. The
\nmanner, in which the Government has acted, as aforesaid,
\nis in breach of their obligation bestowed upon them by the
\nLegislature as contained in sections 21 and 22 of the Act.
\nThe net result is that no person suffering from blindness or
\nlow vision or from hearing impairment has been given the
\nbenefit of reservation made for them. All those vacancies of
\n3% of the total vacancies are being supplied by persons
\n10<\/span>
\nsuffering from locomotor disability. Further, it has not come
\non record that even one single person suffering from
\ncerebral palsy has obtained the benefit of reservation for
\npersons suffering from such disability. Though suffering
\nfrom locomotor disability and suffering from cerebral palsy
\nare quite different things, but since the Legislature has
\nclassified them in one category, it goes without saying that
\npersons suffering from cerebral palsy are required to
\ncompete with persons suffering from locomotor disability for
\nsupplying one vacancy reserved for them.
\nThere is no dispute that the 2 posts reserved for
\nphysically handicapped persons have been supplied by
\npersons with locomotor disability who where above the
\nappellant in the merit list of persons suffering from
\nlocomotor disability. At the same time, there is no dispute
\nthat upto 34th post in Community Development and National
\nExtension (Gazetted) Service and upto 44th post in the
\nSocial Welfare (Gazetted) Service have been supplied and,
\naccordingly, percentage-wise, 2 posts were available in the
\nsaid departments for physically handicapped persons.\n<\/p>\n
11<\/span><\/p>\n
Though the 44th post in Social Welfare (Gazetted) Service
\nhas been supplied by a physically handicapped person, but
\nno post in the Community Development and National
\nExtension (Gazetted) Service has been supplied by a
\nphysically handicapped person. The other post which has
\nbeen supplied by a physically handicapped person was in
\nthe Accounts (Gazetted) Service. Therefore, there cannot
\nbe any dispute, as contended by the appellant, that there
\nwas at least one more post available for physically
\nhandicapped persons in addition to the two posts as were
\nnotified.\n<\/p>\n
The question is should we direct that one additional
\navailable post be supplied by the appellant. The appellant
\nhas relied upon a judgment of the Hon’ble Supreme Court
\nrendered in the case of State of UP v Pawan Kumar
\nTiwari, 2005(1) Supreme 3. In that case the Hon’ble
\nSupreme Court was concerned with filling up of 93 posts of
\nCivil Judge (Junior Division) in UP Judicial Service. The
\nHon’ble Court was not concerned with an issue pertaining to
\nreservation for persons with disability; they were concerned
\n12<\/span>
\nwith reservation of 3 posts horizontally for the category of
\nfreedom fighters and ex-servicemen, but in the general
\nquota. The said judgment, therefore, is of no help to the
\nappellant. The next judgment of the Hon’ble Supreme
\nCourt, cited by the appellant, was rendered in Bhudev
\nSharma v District Judge Bulandshahr, 2007(8) Supreme\n<\/p>\n
192. In that case, the appellant before the Hon’ble Supreme
\nCourt was a blind person. He was not given the benefit of
\nreservation, although 2% reservation for physically
\nhandicapped persons was available. The Hon’ble Supreme
\nCourt found that when altogether 30 posts were to be filled
\nin, 2% thereof works out to 0.6 and the same being more
\nthan half, should have been rounded to one and,
\naccordingly, one post was available for filling up by a
\nphysically handicapped person. The Hon’ble Supreme
\nCourt, accordingly, ordered. The person who succeeded
\nbefore the Hon’ble Supreme Court in that case was a blind
\nperson which must be kept in mind.\n<\/p>\n
The Legislature in section 22 of the Act did not stop by
\nsaying that there should be reservation of 3% in the
\n13<\/span>
\nvacancies for disabled persons; they categorised disabled
\npersons and said that each such category shall be entitled
\nto 1% reservation. They also gave the chronology of such
\ncategory. The first category has been identified as blindness
\nor low vision. Therefore, the first 1%, out of the 3% of
\nvacancies to be reserved for disabled persons, is to be
\nsupplied by a person suffering from blindness or low vision.
\nThe second 1%, out of the 3% of such vacancies, should be
\nsupplied by a person suffering from hearing impairment and
\nthe last 1% by a person suffering from locomotor disability
\nor cerebral palsy. In the case before the Supreme Court,
\nreferred to above, the appellant being a blind person, was
\nentitled to the first post available for disabled persons;
\nwhereas the appellant in the case at hand is entitled to the
\nthird post available for disabled persons. That is the
\ndistinction. In the circumstances, and despite holding that
\none more post was available for disabled persons, we are
\nunable to issue a direction for appointment of the appellant.
\nWe, however, direct the State as follows:\n<\/p>\n
i) to identify posts in all establishments which can
\nbe reserved for persons with disabilities. Those
\n14<\/span>
\nposts must not be less than 3% of the posts
\navailable in each of the establishments of the
\nState which have not been exempted;\n<\/p>\n
ii) while identifying those posts, it must be
\nascertained whether the vacancies therein can
\nbe supplied by a person suffering from
\nblindness \/ low vision, or whether the same can
\nbe supplied by a person suffering from hearing
\nimpairment or whether the same can be
\nsupplied by a person suffering from locomotor
\ndisability \/ cerebral palsy;\n<\/p>\n
iii) the posts to be so identified must not, in any
\ncase, be less than 1% of the total posts
\navailable in such establishments which can be
\nsupplied by persons suffering from blindness \/
\nlow vision, and, similarly, at least 1% of such
\nposts to which can be supplied by persons
\nsuffering from hearing impairment and at least
\n1% of such posts which can be supplied by
\npersons suffering from locomotor disability \/
\ncerebral palsy;\n<\/p>\n
iv) not exceeding 3 years, a review shall be made
\nin each such establishment of the State to reidentify
\nsuch posts and to update the same
\ntaking into consideration the development in
\ntechnology;\n<\/p>\n
15<\/span><\/p>\n
v) the first of the 3% of the total vacancies should
\nbe supplied by a person suffering from
\nblindness \/ low vision; the second by the
\nperson suffering from hearing impairment and
\nthe third by the person suffering from locomotor
\ndisability \/ cerebral palsy;\n<\/p>\n
vi) reservation for persons suffering from disability
\nshall be horizontal and, accordingly, a disabled
\nperson shall fill up that post which is available
\nin the category to which he belongs, but as a
\ndisabled person; and\n<\/p>\n
vii) deficiencies in each establishment shall be
\nsupplied soon and directions as above, would
\nbe complied with before making new direct
\nrecruitments.\n<\/p>\n
With the directions as above, we dispose of the
\nappeal.\n<\/p>\n
(Mansoor Ahmad Mir) (Barin Ghosh)
\nJudge Chief Justice.\n<\/p>\n
Jammu,
\n.03.2009
\nA. H. Khan, JR.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-266820","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nJyotsna Mengi vs Chairman on 30 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jyotsna-mengi-vs-chairman-on-30-march-2009-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jyotsna Mengi vs Chairman on 30 March, 2009 - 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