Akshay Surana v. State Of Rajasthan

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR D.B. Spl. Appl. Writ No. 271/2023 Akshay Surana S/o Shri Dilip Surana, Aged About 31 Years, R/o49, Income Tax Colony, Paota C Road, District Jodhpur. ----Appellant Versus 1. State Of Rajasthan, Through Its 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. ----Respondents For Appellant(s) : Mr. Vikas Balia, Sr. Adv. assisted byMr. Hemant BalaniMr. Hemant Balani For Respondent(s): Mr. Mahaveer Bishoni, AAG with Mr. Gaurav Bishnoi,Mr. Mahesh ThanviMr. Mahesh Thanvi HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment REPORTABLE 22/03/2024 1.This appeal is directed against the order dated 27.02.2023passed by the learned Single Judge, whereby the writ petition filedby the appellant has been dismissed. 2.Quintessential facts necessary for determination of thecontroversy involved in the present case are that the appellant,who suffers from 100% visual impairment, desirous of taking up a noble job of teaching, applied for the post of Lecturer (Sanskrit),pursuant to advertisement dated 12.01.2015. He, however, foundthat out of 67 posts of Lecturer (Sanskrit), which were advertised,there was no reservation provided for a candidate belonging todisabled category of blind persons and two posts, which werereserved, were ear-marked only for the disabled persons oflocomotor disability. The appellant, therefore, lodged his protestby submitting a representation before the authorities. Despite theappellant raising an objection to the manner in which thereservation was made, there being no provision for reservation fora blind person, appellant ultimately filed a writ petition before thisCourt. The writ petition was, however, dismissed by learnedSingle Judge. The learned Single Judge, while dismissing the writpetition, held that as two candidates who were earlier appointed inreserved category belonged to category of blind persons, the ruleof reservation and rotation of roster required that the reservationshould now be provided to other category i.e. locomotor category.On this fundamental premise, the writ petition was dismissed.3.Assailing the correctness and validity of the impugned orderpassed by the learned Single Judge, learned counsel for theappellant argued that the learned Single Judge has not correctlyinterpreted the rule of rotation of roster as envisaged in theprovisions contained in the Rajasthan Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation)Rules, 2011 (hereinafter referred to as the ‘Rules of 2011’). Hewould further submit that even on factual premise, the order ofthe learned Single Judge is flawed as the candidates, who wereearlier recruited in the reserved category, could not be said to be those belonging to reserved category of blind persons, in view ofthe contents of various communications and letters, which havebeen placed on record. Since the posts of Lecturer (Sanskrit) isnot identified for being filled up from amongst disabled category ofhearing impairment, the reservation is required to be provided injust and fair manner giving equal representation to remaining twocategories of blind and locomotor in the matter of reservation. Hisfurther submission is that roster rotation as provided in Rule 37 ofRule of 2011 has to be operated, keeping in view the preferencestated in Rule 36 of the Rule of 2011 wherein the category of blindpersons has been kept at the top of three categories. Therefore,it is contended that in the matter of operation of the roster of 100points, the first and third vacancy are required to be reserved forblind category. 4.In the alternative, it is argued that even if it is assumed thatreservation of two posts for disabled category was ear-markedonly for disabled persons belong to locomotor disability, in anycase, only one post was filled up and the other could not be filledup as the candidates of locomotor disability category was notavailable. Therefore, the other post was required to be filled upby providing reservation for the candidate belonging to blindcategory. In his submission, such interpretation would be in linewith the statutory mandate by providing 3% reservation under theprovisions of Section 33 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 (hereinafter referred to as the ‘Act of 1995’), which was inforce at the time of issuance of the advertisement. 5.Per contra, learned Additional Advocate General appearingfor the State, referring to the material available on record,particularly the affidavits, which have been filed by therespondents-State from time to time including an affidavit filed on21.03.2024, would submit that during the period the earlier Act of1995 was in force and in operation, when an advertisement wasissued on 31.05.2001, out of 32 posts of Lecturer (Sanskrit), onepost was reserved for locomotor disability category candiates.However, one Kaushal Kishore Gothwal belonging to disabledcategory of blind person filed writ petition before this Court and byan interim order, one post was directed to be kept vacant. Lateron, the writ petition was allowed and Kaushal Kishore Gothwal wasappointed as disabled category candidate. Thereafter, anotheradvertisement was issued on 22.06.2006 wherein 18 posts ofLecturer (Sanskrit) were advertised and one post was reserved forblind candidate, which was filed up by giving appointment to koneKuldeep Kumar Sahgal, who was a blind person. Thereafter, whennext advertisement was issued on 21.09.2010, no post of Lecturer(Sanskrit) was advertised. Again, when the advertisement inquestion was issued on 12.01.2015, initially 64 posts wereadvertised and thereafter by way of corrigendum, three moreposts were added. He would submit that applying 100 pointsroster, it was found that earlier two posts were already filled up bythe candidates belonging to disabled category of blind persons.Therefore, both the posts were ear-marked for candidatesbelonging to locomotor disability (one post for B.L.A. category andone for O.L. category). His further submission is that the rotationof roster has to be applied in just and fair manner so as to give equal opportunity to disabled category candidates of differentnature of disability. As there was no reservation for the candidatesbelonging to hearing impairment, the reservation roster was to beoperated in an alternative manner. As earlier, two posts werefilled up by the candidates belonging to blind category, two postsunder advertisement dated 12.01.2015 were ear-marked fordisabled category of locomotor disability. Therefore, there is noillegality. He would further submit that even if it is assumed thatsince one post of locomotor disability could not be filed up forwant of suitable candidate, the post was required to be filled uponly in the manner prescribed under Rule 37(5) of the Rules of2011, which requires vacant post to be carried forward. 6.We have heard learned counsel for the parties and perusedthe material available on record. 7.The facts, which are not in dispute, are that appellant is acandidate belonging to disabled category of blind. It is not indispute that he is suffering from 100% vision impairment. 8.In order to provide equal opportunity, protection of rights asalso ensuring full participation of persons suffering with disability,the legislature enacted the Act of 1995. Reference of theaforesaid Act is being made because the advertisement in thepresent case was issued on 21.01.2015, on which date, the Act of1995 and the Rules made thereunder were in force. Theaforesaid Act was subsequently repealed by another Act known asthe Rights of Persons with Disabilities Act, 2016 (hereinafterreferred to as the ‘Act of 2016’), but the same would not have anyapplication in the present case. 9.Section 33 of the Act of 1995 provides for reservation in the following manner: “33. Reservation of posts .- Every appropriateGovernment shall appoint in every establishment suchpercentage of vacancies not less than three per cent.for persons or class of persons with disability of whichone per cent. each shall be reserved for personssuffering from- (i)blindness or low vision; (ii)hearing impairment; (iii)locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may,having regard to the type of work carried on in anydepartment or establishment, by notification subject tosuch conditions, if any, as may be specified in suchnotification, exempt any establishment from theprovisions of this section.” 10.In order to give effect to the provisions of law, the rule-making authority initially framed Rules known as the Rajasthan Employment of the Persons with Disabilities Rules, 2000, whichwere substituted by the Rules of 2011. 11.On the date of issuance of the advertisement in the presentcase, the Rules of 2011 were in force. The aforesaid facts are notbeing disputed by any of the parties. 12.The factual background of the case reveals that when earlieradvertisement was issued on 31.05.2001, out of 32 posts ofLecturer (Sanskrit), one post was reserved for locomotor categoryof disabled persons. That, however, was put to challenge bycandidate (Kaushal Kishore Gothwal) belonging to disability ofblindness, by filing a writ petition. The record shows that initiallythere was an interim order passed in that case and later on thatpetition itself was allowed by the Court vide order dated13.09.2002. In compliance of the directions passed by this Court, the said petitioner Kaushal Kishore Gothwal, who belonged toblind category, was given appointment. Since only one post wasreserved for locomotor under the advertisement dated31.05.2001, it is clear that in that recruitment process, onecandidate of blind category was given benefit of reservation. the said petitioner Kaushal Kishore Gothwal, who belonged toblind category, was given appointment. Since only one post wasreserved for locomotor under the advertisement dated31.05.2001, it is clear that in that recruitment process, onecandidate of blind category was given benefit of reservation. 13.In the next selection process, which was initiated videadvertisement dated 22.06.2006, as many as 18 posts of Lecturer(Sanskrit) were advertised and one post was reserved for blindcategory. Against that post, one Kuldeep Kumar Sahgal,belonging to blind category, was granted appointment. 14.Though learned counsel for the appellant, by referring tovarious materials and lists, would submit that two candidatesnamely Kaushal Kishore Gothwal and Kuldeep Kumar Sahgal,could not be said to be appointed against reserved category ofblind persons, in view of abundance of materials, which have beenplaced before us, particularly, in the latest affidavit, which hasbeen filed by the respondents, there is no iota of doubt thatKaushal Kishore Gothwal and Kuldeep Kumar Sahgal, both wereappointed by giving benefit of reservation for blind categorycandidates. 15.It is also a fact stated before this Court on affidavit byrespondents that when another advertisement was issued on21.09.2010, no post of Lecturer (Sanskrit) was advertised. 16.At the time when selection process was again initiated byissuing another advertisement on 12.01.2015, in the present case,the position obtaining on record was that earlier two candidates ofblind disability category were provided benefit of reservation. Itwas for this reason that the respondents decided to provide reservation of two posts, in the disabled category, to thecandidates of locomotor disability. The question which arises forconsideration is whether this was in accordance with law or not. 17.The Rules of 2011 which were in force on the date when theadvertisement was issued on 12.01.2015, provide for the mannerin which the reservations have to be rotated by providing roster.18.While Rule 36 of the Rules of 2011 provides for reservationof different categories of disabled persons, Rule 37 of the Rules of2011 provides for maintenance and operation of roster. As theseaforesaid rules are relevant for the present case, they are reproduced as below: “36.ReservationforPersonswithDisabilities. - In every establishment three percent ofthe vacancies shall be reserved for persons or class ofPersons with Disabilities of which one percent each shallbe 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 horizontal reservation: Provided that where the nomenclature of any postin the State Government is different from the post inGovernment of India or any post in the StateGovernment does not exist in any department of theGovernment of India, the matter shall be referred to theCommittee constituted under rule 38 for identification ofthe equivalent post in the State Government. TheCommittee shall identify the equivalent post on thebasis of nature of job and responsibility of each post. 37. Maintenance of Rosters.- (1) A11establishments shall maintain separate 100 pointreservation roster registers for determining/effectingreservation for the disabled. (2) Each register shall have cycle of 100 pointsand each cycle of 100 points shall be divided into threeblocks, 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 37. Maintenance of Rosters.- (1) A11establishments shall maintain separate 100 pointreservation roster registers for determining/effectingreservation for the disabled. (2) Each register shall have cycle of 100 pointsand each cycle of 100 points shall be divided into threeblocks, 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 with disabilities-one point for each of the three categories of disabilities.The head of the establishment shall decide thecategories of disabilities for which the points 1, 34 and67 will be reserved keeping in view all relevant facts. (4) All the vacancies shall be entered in therelevant roster register. If the post falling at point no.1is not identified for the disabled or the head of theestablishment considers it desirable not to fill it up by adisabled person or it is not possible to fill up that postby the disabled for any other reason, one of thevacancies falling at any of the points from 2 to 33 shallbe treated as reserved for the disabled and filled assuch. Likewise a vacancy falling at any of the pointsfrom 34 to 66 or from 67 to 100 shall be filled by thedisabled. The purpose of keeping points 1, 34 and 67 asreserved is to fill up the first available suitable vacancyfrom 1 to 33, first available suitable vacancy from 34 to66 and first available suitable vacancy from 67 to 100by persons with disabilities. (5) There is a possibility that none of thevacancies from 1 to 33 is suitable for any category ofthe disabled. In that case two vacancies from 34 to 66shall be filled as reserved for persons with disabilities. Ifthe vacancies from 34 to 66 are also not suitable forany category, three vacancies shall be filled as reservedfrom the third block containing points from 67 to 100.This means that if no vacancy can be reserved in aparticular 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 is such asto cover only one block or two, discretion as to whichcategory of the disabled should be accommodated firstshall vest in the head of the establishment, who shalldecide on the basis of the nature of the post, the levelof representation of the specific disabled category in theconcerned grade/post etc. 19.Rule 36 of the Rules of 2011 clearly provides that for the purpose of grant of benefit of reservation, three categories namely blindness or low vision, hearing impairment, and locomotordisability or cerebral palsy have been recognized. The rule alsoenvisages that the reservation will be dependent uponidentification as may be made by the Government. It is not indispute that as far as the post of Lecturer (Sanskrit) is concerned,the post was not identified as open for reservation to disabledpersons in the category of hearing impairment. That means, thereservation was to be rotated only as between candidatesbelonging to blind category and locomotor disability category. 20.The roster point as has been enacted in Rule 37(2) of theRules of 2011 also clarifies that every register shall have cycle of100 points and each cycle of 100 points shall be divided into threeblocks as mentioned therein. blindness or low vision, hearing impairment, and locomotordisability or cerebral palsy have been recognized. The rule alsoenvisages that the reservation will be dependent uponidentification as may be made by the Government. It is not indispute that as far as the post of Lecturer (Sanskrit) is concerned,the post was not identified as open for reservation to disabledpersons in the category of hearing impairment. That means, thereservation was to be rotated only as between candidatesbelonging to blind category and locomotor disability category. 20.The roster point as has been enacted in Rule 37(2) of theRules of 2011 also clarifies that every register shall have cycle of100 points and each cycle of 100 points shall be divided into threeblocks as mentioned therein. 21.On a rational, fair and logical interpretation of the aforesaidRule, we find that the three blocks out of 100 points in a cycle areintended to be operated in the manner that it gives a fair andequal opportunity, by way of rotation to candidates belonging tothree different categories of blind, hearing impairment andlocomotor disability. The postulate of the Rule signifies that evenwhile granting reservation to the persons with disability, theprinciple of equality of opportunity to each of the category hasalso to be maintained. However, in the present case, the threeblocks as has been stated in the Rule have to be operated in amanner which ensures equality of opportunity in the matter ofreservation to the category of disabled candidates, who belong tothe blind category as also to those who belong to locomotordisability because the post is not identified for reservation benefitsto persons belonging to hearing impairment. 22.The three categories which have been mentioned in Rule 36,in our view, do not lay down any Rule of preference. Merementioning of the category of blind as the first category, cannot betaken as a Rule of preference. It only identifies the threecategories and the order in which these categories appear in theRule is not significant. If the Rule is taken as signifying priority orpreference of one category over the other, the very purpose ofmaintaining equality of opportunity amongst various categories,may be jeopardized and that would frustrate the object of theenactment as also go against the letter and spirit of the provisionscontained in Rule 37 of the aforesaid Rules. Therefore, on thiscount, we are not prepared to accept the submission of learnedcounsel for the appellant. 23.However, in the present case, as only two categories areavailable for being provided reservation, can it be said that oneblock has to be kept vacant without being provided anyreservation. The answer, in our opinion, is ‘no’. This is for thereason that the statutory mandate is that 3% posts have to bereserved for candidates belonging to reserved category. Thisstatutory object could be achieved only when all the blocks areoperated irrespective of whether all the three categories ofdisability are identified for reservation or not. In the present case,as there are only two categories for which the post of Lecturer(Sanskrit) has been identified, in our view, the mandate of lawand fairness as also the equality of opportunity could be ensured ifthe blocks are operated by giving benefit to the candidatesbelonging to the blind and locomotor disability category. Forillustration if the first block is reserved for candidates belonging to blind category, the second block of 34 to 66 would go tocandidates belonging to locomotor disability. The third block willbe reserved for candidates belonging to blind category. However,when the next block of 100 starts, the Rule of alternativereservation will have to be followed. This would mean that if in thefirst 100 points roster, one post in the first block has beenreserved for blind, than in that case, the second block had to startwith reservation for locomotor disability. This is for the reason thatthe three blocks are not even but odd. Any other rule will lead to asituation where the candidates belonging to either of the twocategories get more reservation than the other which will defeatthe object of maintaining equality of opportunity ensuring equalopportunity as amongst two groups of disability category. Havingso determined, the principle behind rotation of roster as envisagedunder Rule 37 of the Rules, if applied to the facts of the presentcase, we find that in earlier two recruitments, the first post wasreserved for locomotor, second was reserved for blind category.However, due to judicial intervention, first post was given to thecandidate belonging to blind category and the second also went toblind category, the next two posts were required to be reservedfor candidates belonging to locomotor category. That is what hasbeen done by the respondents. Therefore, in our view, thereservation of two posts for locomotor category in the recruitmentprocess initiated vide advertisement dated 12.01.2015, does notmilitate against the scheme of reservation and the operation ofroster as provided under the Rules of 2011. 24.However, the alternative submission made by learnedcounsel for the appellant has considerable force. It is not in dispute that though two posts were reserved for candidatesbelonging to locomotor category, only one post was filled up andthe other candidate of locomotor disability was not available. Thisis clear from the results annexed with the affidavit filed by thepetitioner. On this aspect, there is no dispute raised by therespondents. Therefore, in such circumstances, when out of twoposts reserved for disability category of locomotor, one remainsunfilled then question arises how that post is required to be filledup. 25.The answer lies in provisions contained in Rule 37(5) of theRules of 2011. The provisions contained in sub-Rule (5) providethat where none of the vacancies from 1 to 33 is suitable for anycategory of disability, in that case, two vacancies from 34 to 36shall be filled as reserved for persons with disabilities. If vacanciesfrom 34 to 66 are also not available for any category then threevacancies shall be filled up as reserved from the third blockcontaining points from 67 to 100. If no vacancy can be reserved ina particular block then the eventuality is met with the Rule that itshall be carried forward in the next block. 26.The aforesaid provision does not mean that the vacancy is tobe carried forward to the next recruitment process. The Rulemandates that rotation carried forward has to be from one blockto the other block. This obviously is meant to advance theobjective of reservation by ensuring that if a candidate of oneparticular disability category is not available, it could be filled upfrom amongst candidates of another disability category. 27.The operation of Rule in the aforesaid manner woulddefinitely allow a candidate of one reserved category to seek 26.The aforesaid provision does not mean that the vacancy is tobe carried forward to the next recruitment process. The Rulemandates that rotation carried forward has to be from one blockto the other block. This obviously is meant to advance theobjective of reservation by ensuring that if a candidate of oneparticular disability category is not available, it could be filled upfrom amongst candidates of another disability category. 27.The operation of Rule in the aforesaid manner woulddefinitely allow a candidate of one reserved category to seek benefit of reservation if even though his turn in his respectiveblock has not come, if the candidate of reserved category for thatblock is not available. As a consequence, if a candidate belongingto locomotor category is not available, the post cannot be keptvacant but it should be given to the disabled candidate of the nextcategory. If we operate the Rule in this manner, it is clear that thecandidate belonging to locomotor category was not available, itgoes to candidate belonging to blind category i.e. the appellantherein. 28.Therefore, in view of above consideration, we are of the viewthat though two posts were rightly reserved for locomotorcategory, in the event of one post having remained unfilled,mandate of Rule 37(5) of the Rules of 2011, required therespondents to provide reservation to candidates belonging toblind category. It is undisputed that in that event, the appellantwould have emerged as candidate for empanellment in the list ofreserved category for appointment. 29.Learned counsel for the respondents also discloses to theCourt that in the last recruitment which was initiated in the year2020, the appellant has otherwise been selected as a candidatebelonging to reserved category. 30.In view of above consideration, we are of the view thatdenial of appointment to the appellant pursuant to theadvertisement dated 12.01.2015 was illegal and contravention ofRules relating to reservation. Therefore, he is entitled to beappointed under that very advertisement and against the vacancywhich has been kept vacant under the impugned order passed bythe Court. We direct the respondent-State to forthwith issue order of appointment in favour of the appellant. We must make it clearthat the appellant will be entitled to consequential benefits ofappointment from due date on which he would have been grantedbut for denial by the respondents. In other words, he would beentitled to appointment from the same date the other candidate oflocomotor category has been appointed under the advertisementdated 12.01.2015. 31.Normally while granting such benefit of appointment withconsequential benefits from earlier date, this Court does not grantany actual benefit of pay or perks. However, in the present case,this case poses a special circumstance. The appellant was acandidate belonging to disability category and is suffering from100% vision impairment. Therefore, keeping that in view, we areinclined to direct that actual benefits shall also be extended to theappellant and all other consequential benefits flowing therefromshould also be extended to him. The order of this Court insofar asissuance of appointment order is concerned, should be compliedforthwith by issuing appointment order within a period of 45 days.For other consequential benefits, necessary exercise will berequired to be undertaken and brought to its logical end withinnext three months. 32.With the aforesaid observations and directions, this appeal isallowed and the impugned order passed by the learned SingleJudge is set aside. (MUNNURI LAXMAN),J (MANINDRA MOHAN SHRIVASTAVA),CJ