Akshay Surana v. State Of Rajasthan Through Secretary, Department Ofhigher Education, Government Of Rajasthan, Jaipur,Rajasthan.higher Education, Government Of Rajasthan, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1796/2015 Akshay Surana S/o Shri Dilip Surana aged about 23 years, R/o49, Income Tax Colony, Paota ‘C’ Road, District Jodhpur,Rajasthan. ----Petitioner Versus 1.State of Rajasthan through Secretary, Department ofHigher Education, Government of Rajasthan, Jaipur,Rajasthan.Higher Education, Government of Rajasthan, Jaipur,Rajasthan. 2.Commissioner, Special Secretary Directorate of CollegeEducation, Block-IV, Shiksha Sankul, Jawahar Lal NehruMarg, Jaipur, Rajasthan.Education, Block-IV, Shiksha Sankul, Jawahar Lal NehruMarg, Jaipur, Rajasthan. 3.Rajasthan Public Service Commission, through itsSecretary, Ajmer, Rajasthan.Secretary, Ajmer, Rajasthan. 4.Secretary, Rajasthan Public Service Commission, Ajmer,Rajasthan.Rajasthan. 5.Secretary, Department of Personnel, Government ofRajasthan, Jaipur.Rajasthan, Jaipur. ----Respondent For Petitioner(s) : Mr. Vikas Balia, Sr. Adv. assisted by Mr. Hemant Kumar Ballani and Mr. Hemant Kumar Ballani and Mr. Priyansh Arora For Respondent(s) : Mr. Himanshu Shrimali, AGCMr. Kailash JangidMr. Mahesh ThanviMr. Kailash JangidMr. Mahesh Thanvi HON'BLE MR. JUSTICE KULDEEP MATHUROrder 27/02/2023 By way of filing present writ petition, the petitioner has prayed for following reliefs:- “It is, therefore, humbly and respectfully prayed thatthis writ petition of the petitioner may kindly beallowed: - A) By an appropriate writ order or direction, therespondents may kindly be directed to keep thepost at roster point no.1 reserved for personssuffering from blindness/low vision in accordancewith the Persons with Disabilities (EqualOpportunities, Protection of Rights & FullParticipation) Act, 1995 and Rajasthan Personswith Disabilities (Equal Opportunities, Protection ofRight & Full Participation) Rules 2011 for thesubject Sanskrit in pursuance of the advertisementdated 12.01.2015 (Annex.4) B) By an appropriate writ, order or direction, therespondents may kindly be directed to applyreservation applicable to persons with disabilitiesin accordance with Persons with Disabilities (EqualOpportunities, Protection of Rights & FullParticipation) Act, 1995 and Rajasthan Personswith Disabilities (Equal Opportunities, Protection ofRight & Full Participation) Rules 2011 upon theselection process initiated vide advertisementdated 12.01.2015. C) By an appropriate writ, order or direction, therespondents may kindly be directed to afford thepetitioner appointment on the post of collegelecturer subject Sanskrit, if he falls in merit with allconsequential benefits. D) Any other appropriate writ, order or directionwhich this Hon'ble Court may deem just andproper in the facts and circumstances of the casemay kindly be passed in favour of the petitioner. E) Writ petition filed by the petitioner maykindly be allowed with costs.” Briefly stated facts of the case are that the petitioner whosuffers from physical disability of complete blindness, after puttinghard labour, obtained requisite qualifications for appointment onthe post of Lecturer (Sanskrit). The petitioner on the basis of theeducational qualifications possessed by him, applied forappointment on the post of Lecturer (Sanskrit) pursuant toadvertisement bearing No.07/2014-15 dated 12.01.2015, issued D) Any other appropriate writ, order or directionwhich this Hon'ble Court may deem just andproper in the facts and circumstances of the casemay kindly be passed in favour of the petitioner. E) Writ petition filed by the petitioner maykindly be allowed with costs.” Briefly stated facts of the case are that the petitioner whosuffers from physical disability of complete blindness, after puttinghard labour, obtained requisite qualifications for appointment onthe post of Lecturer (Sanskrit). The petitioner on the basis of theeducational qualifications possessed by him, applied forappointment on the post of Lecturer (Sanskrit) pursuant toadvertisement bearing No.07/2014-15 dated 12.01.2015, issued by the Rajasthan Public Service Commission, Ajmer. The case setup by the petitioner in the present writ petition is that as perSection 32 of the Persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1955 and Rule 36and 37 of the Rajasthan Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Rules,2011 (hereinafter referred to as ‘Rules of 2011’), 3% reservationis to be extended to physically challenged persons. Out of which,1% each shall be reserved for persons with (i) blindness or lowvision; (ii) hearing impairment; and (iii) locomotor disability orcerebral palsy. The respondents however, did not reserve any postfor the persons suffering from blindness or low vision out of thetotal 67 posts advertised on 12.01.2015 for recruitment againstthe post of Lecturer (Sanskrit). Though, one post each for BLA(Both legs, Arm) and OL (One Leg) was reserved. Being aggrievedby denial of reservation for category of persons belonging toblindness/low vision, the present writ petition has been filed. Learned counsel for the petitioner vehemently submitted thata bare look at the advertisement dated 12.01.2015 shows thatout of 67 available vacancies advertised for the post of Lecturer(Sanskrit), two posts were kept reserved for specially abledpersons. According to learned counsel, both the seats werereserved for the candidates belonging to locomotor disabilitywithout disclosing as to why one seat for candidates suffering fromblindness/low vision had not been reserved. According to learnedcounsel, denial of reservation for the category of blindness/lowvision is in violation of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1955 and Rule 36 and 37 of the Rajasthan Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Rules, 2011. Learned counsel submitted that the cut-off marks forphysically handicapped category is 118.40, whereas the petitionerhad secured 140.47 marks which is much higher than thecandidates, who have been placed in merit against two reservedposts for specially abled category. Learned counsel submitted thatrespondents have not followed the notification dated 21.07.2011published in the Gazette of State Government on 26.07.2011 asper which roster point Nos.33and 67 post shall be be reserved forthe persons falling in the disabled category. Learned counsel submitted that no candidate suffering fromdisability of blindness/low vision has been appointed/working onthe post of Lecturer (Sanskrit). Though, as per respondents, ShriKaushal Kishore Gothwal and Shri Kuldeep Kumar Sehgal havebeen working in the said category, on the post of Lecturer(Sanskrit). To buttress the assertion made by the respondents, learnedcounsel invited court’s attention towards roster annexed alongwith additional affidavit dated 23.09.2022 and pointed out thatthough the name of Kaushal Kishore Gothwal appears at SerialNo.154 of the roster register but in the corresponding column itreads, ‘utilized by SC’ thereby making it unclear as to whether theabove-mentioned candidate was appointed against post reservedfor SC category or under blindness/low vision category. To buttress the assertion made by the respondents, learnedcounsel invited court’s attention towards roster annexed alongwith additional affidavit dated 23.09.2022 and pointed out thatthough the name of Kaushal Kishore Gothwal appears at SerialNo.154 of the roster register but in the corresponding column itreads, ‘utilized by SC’ thereby making it unclear as to whether theabove-mentioned candidate was appointed against post reservedfor SC category or under blindness/low vision category. The Court’s attention was then invited towards serial No.98of the roster register to submit that though name of KuldeepKumar Sehgal was mentioned but in the corresponding utilisationcolumn thereof, no details have been provided, raisingdoubts/suspicion regarding him being appointed against thecategory of persons belonging to blindness/low vision. In the alternative, it was argued that if a candidate belongingto earmarked category mentioned in the advertisement dated12.01.2015 is not available then the petitioner may be selected and provided appointment as per the rules in vogue. On the strength of above submissions, it was thus prayedthat the instant writ petition deserves to be allowed by this Court. Per contra, learned counsel for the respondents submittedthat in the State of Rajasthan, the provisions with regard to 3%reservation in favour of specially abled candidates is in force sincethe year 2000. According to learned counsel for the respondents,in the year 2000, roster points available to specially abledcandidates were 33, 67 and 100[.]. In other words, the posts fallingat roster points number 33, 67 and 100 were kept reserved forpersons belonging to specially abled category. Learned counselfurther submitted that in the year 2001, requisition for 32 posts ofLecturer (Sanskrit) was sent to RPSC but since no posts fell atabove mentioned roster points, therefore, no reservation wasprovided to specially abled candidates. Learned counsel submitted that in the year 2009, againstroster point No.33, one candidate namely, Kaushal Kishore Gothwal, suffering from blindness was selected as Lecturer(Sanskrit) against the post reserved for specially abled candidates(blindness/low vision)category pursuant to the orders passed by aco-ordinate Bench of this Court at Jaipur in S.B. C.W.P.No.3959/2001. Learned counsel submitted that while S.B. C.W.P.No.3959/2001 was pending before co-ordinate Bench of thisCourt, 18 posts of Lecturer (Sanskrit) were advertised in the year2006 and as per the roster points, 1 post for specially abledcategory was reserved while taking the total numbers of posts tobe 50, i.e. 32 posts advertised in the year 2001 and 18 postsadvertised in the year 2006. It was informed to the Court that thepost belonging to specially abled category advertised in the year2006 was filled up by one Kuldeep Kumar Sehgal, against thecategory of blindness/low vision category. Learned counsel submitted that by the impugnedadvertisement No.07/2014-15 dated 12.01.2015, 67 postsofLecturer (Sanskrit) were advertised and as per the prevalentroster points, one post each was reserved for the candidatesbelonging to BLA (Both legs and one Arm)and OL (One Leg)category. It was vehemently submitted that at the time of issuance ofthe impugned advertisement dated 12.01.2015, 3% reservation infavour of specially abled persons was to be provided as peramended/changed roster points i.e. at Nos.1, 34, 67 and 101, inthis way, 4 posts out of total 117 posts (32+18+67) werereserved for specially abled candidates. Learned counsel implored the Court to dismiss the presentwrit petition as reservation to specially abled persons had beenprovided by the respondents by following the Rules of 2011 androster points provided therein. Having considered the submissions advanced at bar andperused the material available on record. It was vehemently submitted that at the time of issuance ofthe impugned advertisement dated 12.01.2015, 3% reservation infavour of specially abled persons was to be provided as peramended/changed roster points i.e. at Nos.1, 34, 67 and 101, inthis way, 4 posts out of total 117 posts (32+18+67) werereserved for specially abled candidates. Learned counsel implored the Court to dismiss the presentwrit petition as reservation to specially abled persons had beenprovided by the respondents by following the Rules of 2011 androster points provided therein. Having considered the submissions advanced at bar andperused the material available on record. Relevant rules of Rajasthan Persons with Disabilities (EqualOpportunities, Protection of Right & Full Participation) Rules, 2011are reproduced herein below for the sake of ready reference:- “CHAPTER-V EMPLOYMENT -34. Employment of Persons with Disabilities. For the purpose of employment, persons withdisabilities in various categories of posts are to beidentified under section 32 for reservation ofpersons with disabilities. 35.Eligibility.Notwithstandinganythingcontained in any rules or orders for the time beingin force regulating the recruitment and conditionsof service of persons appointed to the variousservices or posts in connection with the affairs ofevery establishment including the GovernmentDepartment, Persons with Disabilities shall beeligible for appointment to the posts identified forthem under rule 36 of these rules provided theyfulfill the qualifications laid down in the relevantrecruitment or service rules for the posts and arefunctionally able to perform the duties of the postsof the said services. -36. Reservation for Persons with Disabilities. In every establishment three percent of thevacancies shall be reserved for persons or class ofPersons with Disabilities of which one percent eachshall 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 disability by theGovernment of India under section 32 and suchreservation shall be treated as horizontalreservation: Provided that where the nomenclature of anypost in the State Government is different from thepost in Government of India or any post in theState Government does not exist in anydepartment of the Government of India, thematter shall be referred to the Committeeconstituted under rule 38 for identification of theequivalent post in the State Government. TheCommittee shall identify the equivalent post on thebasis of nature of job and responsibility of eachpost. 37.MaintenanceofRosters.-(1)Allestablishments shall maintain, separate 100 pointreservation,rosterregistersfordetermining/effecting reservation for the disabled. (2) Each register shall have cycle of 100points and each cycle of 100 points shall be dividedinto three blocks, comprising the following points: 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 (3) Points 1, 34 and 67 of the roster shall beearmarked and reserved for persons withdisabilities-one point for each of the threecategories of disabilities. The head of theestablishment shall decide the categories ofdisabilities for which the points 1. 34 and 67 will bereserved keeping in view all relevant facts. (4) All the vacancies shall be entered in therelevant roster register. "If the post falling at pointno.1 is not identified for the disabled or the headof the establishment considers it desirable not to (2) Each register shall have cycle of 100points and each cycle of 100 points shall be dividedinto three blocks, comprising the following points: 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 (3) Points 1, 34 and 67 of the roster shall beearmarked and reserved for persons withdisabilities-one point for each of the threecategories of disabilities. The head of theestablishment shall decide the categories ofdisabilities for which the points 1. 34 and 67 will bereserved keeping in view all relevant facts. (4) All the vacancies shall be entered in therelevant roster register. "If the post falling at pointno.1 is not identified for the disabled or the headof the establishment considers it desirable not to fill it up by a disabled person or it is not possible tofill up that post by the disabled for any otherreason. one of the vacancies falling at any of thepoints from 2 to 33 shall be treated as reserved forthe disabled and filled as such. Likewise a vacancyfalling at any of the points from 34 to 66 or from67 to 100 shall be filled by the disabled. Thepurpose of keeping points 1. 34 and 67 asreserved is to fill up the first available suitablevacancy from 1 to 33, first available suitablevacancy from 34 to 66 and first available suitablevacancy from 67 to 100 by persons withdisabilities. (5) There is a possibility that none of thevacancies from 1 to 33 is suitable for any categoryof the disabled. In that case two vacancies from 34to 66 shall be filled as reserved for persons with.disabilities. If the vacancies from 34 to 66 are alsonot suitable for any category, three vacancies shallbe filled as reserved from the third blockcontaining points from 67 to 100. This means thatif no vacancy can be reserved in a particular block,it shall be carried into the next block. (6) After all the 100 points of the roster arecovered, a fresh cycle of 100 points shall start. (7) If the number of vacancies in a year issuch as to cover only one block or two. discretionas to which category of the disabled should beaccommodated first shall vest in the head of theestablishment, who shall decide on the basis of thenature of the post, the level of representation ofthe specific disabled category in the concernedgrade/post etc.” At the outset, it may be noticed that this Court vide orderdated 11.09.2019 directed respondents to clarify by filing anaffidavit as to why both the posts reserved for specially abled category were offered to the candidates under the category oflocomotive disability and why not to specific impairments. Twodetailed affidavits along with relevant documents, sworn on23.09.2022 and 09.01.2023 have been filed on behalf of therespondents indicating that four posts for specially abled categorywere kept reserved in order to provide 3 % reservation to them,out of total 117 posts. In the affidavit, it has been mentioned that two personssuffering from disability of blindness/low vision are alreadyworking in the department, therefore, in the impugnedadvertisement dated 12.01.2015, reservation was provided to thecandidates belonging to BLA (Both legs, Arm) and OL (One Leg)against posts reserved for specially abled persons. In view of aforesaid affidavits and appended supportingdocuments, this Court has no hesitation in coming to a conclusionthat for implementation of the Rules of 2011, four posts ofLecturer (Sanskrit) were reserved for specially abled candidatesand out of these 4 posts, 2 posts had already been filled up byproviding appointment to two candidates (Kaushal KishoreGothwaland Kuldeep Kumar Sehgal) in the specific category ofblindness/low vision. In view of aforesaid affidavits and appended supportingdocuments, this Court has no hesitation in coming to a conclusionthat for implementation of the Rules of 2011, four posts ofLecturer (Sanskrit) were reserved for specially abled candidatesand out of these 4 posts, 2 posts had already been filled up byproviding appointment to two candidates (Kaushal KishoreGothwaland Kuldeep Kumar Sehgal) in the specific category ofblindness/low vision. It is also not in dispute that out of aforementioned 2candidates, one candidate namely Kaushal Kishore Gothwal wasprovided appointment in the year 2008 against the advertisementissued in the year 2001-02, pursuant to the decision of co-ordinate Bench of this Court at Jaipur in S.B. C.W.P.No.3959/2001. A plain reading of Rule 36 of the Rules of 2011 leaves noroom of doubt that out of total vacancies available in everyestablishment, 3% of the vacancies shall be reserved for personsor class of persons with disabilities, of which 1% each shall bereserved for persons suffering from:- (i) blindness or low vision; (ii) hearing impairment and; (iii) locomotor disability or cerebral palsy. Rule 37 of the Rules of 2011 further mandates that ahundred point reservation roster register shall be maintained byall establishments for determining/effecting reservation fordisabled/specially abled and points 1, 34 and 67 of the roster shallbe earmarked and reserved for persons with disabilities- 1 pointfor each of three categories of disabilities. The Rules of 2011 also exempt any Governmentestablishment from filling up vacancy by appointing personssuffering from benchmark disabilities having regard to the natureof work carried out in the establishment. The Rules of 2011 have thus been framed with a view toproviding persons suffering from different disabilities viz.,blindness or low vision; hearing impairment; and locomotordisability or cerebral palsy with equal opportunity of beingappointed in the establishment. In view of the fact that two persons (Kaushal KishoreGothwal and Kuldeep Kumar Sehgal) suffering from blindness/lowvision are already working in the respondent-department out ofthe four available posts reserved for specially abled candidates, any direction by this Court to grant appointment to the petitioneron the post of Lecturer (Sanskrit) against seats reserved for othercategories of specially abled viz. persons with locomotivedisabilities would be detrimental to the object sought to beachieved by rules. The seats reserved for persons suffering fromlocomotor disability or cerebral palsy have rightly been advertisedon 12.01.2015 by RPSC in conformity with roster register providedunder Rule 37 of Rules of 2011. If the petitioner is extendedappointment in the category of blindness/low vision against postsreserved for locomotive disability, especially when two personshave already been accorded appointment against such category, itwill be clearly violative of Right to Equality enshrined in Article 14and 16 of Constitution of India. Suffice it to observe that keeping in view the provisions ofRule 37 of Rules of 2011, if a specially abled person meeting therequirements enumerated in advertisement dated 12.01.2015 isnot available, then the case of the petitioner shall be consideredobjectively by the respondents. In the result, the instant writ petition stands dismissed beingdevoid of merit. All pending applications stand disposed of. No order as to costs. (KULDEEP MATHUR),J Prashant/-