Kona Babu Rao, Visakhapatnam ... vs Govt.Of Ap By Secretary, ...
2023 Latest Caselaw 1660 AP

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                 THE HON'BLE SRI JUSTICE M. GANGA RAO

                                        &

                  THE HON'BLE SRI JUSTICE V. SRINIVAS

                          W.P No. 26172 of 2006


ORDER: (Per Hon'ble Justice M. Ganga Rao)


      The petitioner filed this Writ Petition, being aggrieved by the order passed

in O.A No. 2322 of 2001 dated 05.08.2005 by the A.P Administrative Tribunal,

Hyderabad, wherein and whereby the Tribunal dismissed the original

application, which is filed by the petitioner questioning proceedings Rc. No.

268/C1/1998, dated 08.01.2001, passed by the 2nd respondent and to set

aside the same as being illegal, arbitrary, unconstitutional and violative of

Articles 14, 16 & 21 of the Constitution of India and consequently direct the

respondent-authorities to appoint the petitioner herein as Junior Lecturer in

Economics, with effect from the date on which others were appointed in

pursuance of the Advertisement No. 3/97 with all consequential and attendant

benefits, including seniority, fixation of pay, arrears of salary, increments etc.,

by holding the action of the respondent-authorities herein in not doing so, is in

violation of G.O.Ms. No. 115, dated 03.07.1991 and the provisions of the

Persons with Disabilities (Equal Opportunities and Protection of Rights Full

Participation) Act, 1995 and judgment dated 10.09.1999 passed in O.A No.

6882 of 1998.

The erstwhile, A.P. College Service Commission, Hyderabad issued an

Advertisement No. 3 of 1997 inviting applications from the qualified and eligible

candidates for appointment to the posts of Junior Lectures in Government

Junior Colleges by direct recruitment in the State.

The zone wise recruitment was taken up i.e., limited recruitment for SCs,

ST's and PHC's giving all details. The petitioner is being fully qualified and

eligible as he passed Post Graduation in Economics with second division,

securing 52.5% marks, passed B.Ed and being blind person belonging to BC-D

community applied for the post of Junior Lecturer in Economics. In the

notification issued on 25.04.1997, the respondent-authorities have reserved

one post for Junior lecturer in Economics, under deaf and dumb category. The

petitioner fared well in the written test conducted on 01.06.1997 and based on

his performance in the said test, he was called for the interview by proceedings

Rc. No. 258/E-1/96, dated 21.07.1997, and attend the interview on

27.08.1997 and he has fared well and was waiting for the appointment orders.

But his name was not found in the list of selected candidates and therefore, he

submitted a representation on 04.09.1998 and on 11.09.1998. No physically

handicapped person in the category of dumb and deaf was responded and no

candidate is available and no person in the category of orthopedically

handicapped person was appointed. In O.A No.6882 of 1998, the Tribunal

having considered the provisions of section of 36 of the (Persons with

Disabilities (Equal Opportunities, Protection of rights and Full Participation Act

1995)(in short "Disabilities Act, 1995), but all 1995 read with G.O.Ms. No. 115

dated 30.07.1991 directed the respondent-authorities to appoint the petitioner

after getting necessary permission for this purpose from the Government, if the

petitioner is otherwise eligible, and accordingly disposed of the O.A, when the

said order is not implemented, the petitioner filed C.A No. 527/2000. After the

service of contempt notice, the respondents have rejected the claim of the

petitioner vide RC No. 268/C.1/1998, dated 08.01.2001 stating that he

otherwise not eligible for selection to the post of Junior Lecturer in Economics

in Government Junior College, as per rules. It is the case of the petitioner that

the rejection order dated 08.01.2001 is bereft of any reasons and contrary to

the provisions of section 36 of the Disabilities Act.

It is appropriate to deal with the provisions of law in respect of

appointment of Physically Handicapped persons Under Chapter VI of the

Disabilities Act,1995 deals specifically section 33 of the Act, which reads thus:

"33. Reservations of posts: Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for

persons or class of persons with disability of which one per cent 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 disability.

Provided that the appropriate 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."

As per Rule 4 of the A.P., Intermediate Education Service Rules, the rule

of reservations to various communities as envisaged in Rule 22 of the General

Rules, will apply to the Post of Junior Lecturer. According to Rule 22, roster

point Nos. 6, 31 and 56, in a cycle of 100 vacancies in a zone are reserved to be

filled in by physically handicapped persons. The physically handicapped

persons were classified into three categories based on the nature of disability

namely 1) blind, 2) deaf/dumb, 3) orthopedically handicapped. As per GO.Ms.

No. 115, Womens Development Child Welfare Labour (WH Desk) Department,

dt. 30.07.1991, the overall distribution of reservation among the three

categories in the ratio of 1:1:1 for the blind, deaf and orthopedically

handicapped persons should be maintained. As per section 36 of the

Disabilities Act, 1995, if any vacancy reserved for physically Handicapped left

unfilled due to non availability of persons with specified categories of disability,

such vacancy had to be carried forward to the succeeding recruitment also,

then only, the vacancy can be filled up by interchanging among three

categories. Therefore, there is no provision in the rules to fill up any unfilled

vacancy reserved for a particular category by interchanging among three

categories, without first carrying forward the vacancy at the initial stage. In the

present case, the vacancy is reserved to be filled in by deaf and dumb

candidate. Since, no such candidate was available, the vacancy remained

unfilled and had to be carried forward to the succeeding recruitment as per

rules. In fact, one orthopedically handicapped person by name Sri G. Ravi

Stevens also filed O.A No. 1831/1998. However, the said O.A is dismissed.

The provisions of Section 36 of the Disabilities Act, 1995 to deal with the

said situation and the provisions of section 36 reads thus:

"36. Vacancies not filled up to be carried forward:- Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three 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;

Provided that if the nature of vacancies in an establishment in such that a given category of person cannot be employed, the vacancies may be interchanged among the

three categories with the prior approval of the appropriate Government.

The notification/advertisement No. 3/97, dated 25.04.1997, of

limited recruitment for SC's, ST's & PHC's, itself shows that it is a

advertisement for filling backlog vacancies as per the Rule 4 of A.P

Intermediate Education Service Rules. In the notification issued one post of the

Junior Lecturer in economics in Zone-I was reserved for deaf and dumb, and

reserving the post for deaf and dumb itself is arbitrary, incongruous and it is

nebulous decision and without specifically identifying the post, which can be

reserved for persons with disabilities. As per the provisions of section 32 and

section 33 of the Disability Act, class of persons with disability of which

one per cent 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 disability. Identification of

the post for dumb and deaf is arbitrary and contrary to the provisions of the

section 33 of the Disabilities Act, wherein deaf or dumb is not, treated as

disablement for the purpose of the Act, but, however the said post is reserved

for deaf and dumb following G.O.Ms. No.115 dated 03.07.1991, wherein over

all distribution of the vacancies reserved for physically handicapped persons

while reserving vacancies in the ratio of 1:1:1 for the blind, deaf and dumb and

orthopedically handicapped persons is to be maintained respectively. In the

said recruitment of the vacancy is unfilled due to non-availability of persons of

the specified category of disability, such vacancy needs to be filled by

interchanging among three categories after getting necessary permission for

this purpose from the Government. But contrary to the said provision, the

Tribunal relying on the provision of section 36 of Disabilities Act, 1995 holding

that if suitable candidate is not available for the specified categories even in the

succeeding recruitment also then only, the vacancy will be filled by

interchanging among three categories. There is no provision in the rules to fill

up any unfilled vacancy reserved for a particular category by interchanging

among the three categories, without first carrying forward the vacancy at the

initial stage. In the present case, the vacancy is reserved for the dumb and deaf

candidates. Since, no such disabled person was available, the vacancy

remained unfilled and had to be carried forward to the succeeding recruitment

as per rules and further holding that when Orthopedically disabled person

stands higher in the merit, and even if it is assumed that vacancy has to be

filled in by another PH candidate from any other category, then who is

orthopedically disabled has to be considered as her more meritorious but not

by the petitioner. In fact, one Sri G. Ravi Steven, who is orthopedically

handicapped person when his case was not considered for selection and

appointment against the vacancy, he filed O.A No. 1831/1998, which was also

dismissed by the Tribunal.

Sri J. Sudheer, learned counsel appearing for Sri Satish Deshpande,

learned Advocate on Record would contend that the decision taken by the

respondent-authorities to fill up the post of Junior Lecturer in Economics by

deaf and dumb candidate under the quota of physically handicapped persons

itself is an arbitrary decision. When deaf and dumb candidate is not able to

speak and hear, how can he teach the Economics to the students in the Junior

College and it is not convincing decision of the respondent-authorities and this

special limited recruitment of SC's, ST's & PHs vide advertisement No. 3/97 for

backlog vacancies itself is a second recruitment and in the regular recruitment

no disabled candidates are available. In pursuance of provisions of section 36

of the Disabilities Act read with amended special rules, the petitioner is entitled

to be appointed as Junior Lecturer in Economics, by interchanging the

specified categories as per the advertisement among the physically

handicapped persons reserved for blind, deaf and dumb and orthopedically

handicapped person. No posts are reserved for blind persons (B) whereas the

post is reserved for dumb and deaf (D) When orthopedically handicapped

persons (o) available with higher merit, interchanging of his candidature is also

rejected and subsequently, O.A is also dismissed.

Sri N. Vinod Kumar, learned Government Pleader for Services - III would

contend that the Advertisement No. 3/97 was issued inviting applications from

the qualified and eligible candidates for appointment to the post of Junior

Lecturers in Government Junior colleges by direct recruitment by way of

limited recruitment and it is not in dispute that the petitioner was allowed for

written test and based on the written test, he was allowed for interview, but the

post of Junior Lecturer in Economics is specifically reserved for the dumb and

deaf candidate as per Rule 22(c )(v) of the A.P State and Subordinate Service

Rules, read with G.O.Ms No. 115, dated 03.07.1991. As per the provisions of

36 of the Disabilities Act, the unfilled vacancy has to be carried forward and if

no person is available even in the second recruitment, the post has to be filled

by the open category candidates. Accordingly, the petitioner's case was

considered as per the order passed in O.A No. 6882 of 1998 read with G.O.Ms.

No. 115 and rejected vide Rc.No.268/C.1/98, dated 08.01.2001 as he is

otherwise not eligible for appointment in open category and the Tribunal rightly

considered the view taken by the respondents as per rules and he further made

his submissions to sustain the order passed by the Tribunal in the impugned

O.A No. 2322 of 2001, there is no unfilled vacancy which could be filled by the

applicant under article 226 of Constitution of India.

Having considering the facts and circumstances of the case, submission

of the counsel and perused the record, this Court found that in the notification

issued for selection and appointment of Junior Lecturer in Government Junior

colleges, the post of Junior Lecturers in Economics in Zone-I is reserved for

dumb and deaf candidates, which itself is incongruous decision in not

identifying the post which can be reserved for persons with disabilities as

required under the provisions of section 33 of the Disabilities Act and as per

the provisions of section 33, the physically handicapped persons under

category of i) Blindness or low vision; ii) Hearing impairment; iii)

Locomotor disability or cerebral palsy, in the posts identified for each

disability and as per the definition of disablement under section 2(a))(i)

disablement means Blindness; low vision; leprosy-cured; Hearing

impairment; Locomotor disability; mental retardation; mental illness; but

deaf and dumb is not included in the definition of disability. In the definition of

"blindness" refers to a condition where a person suffers from any of the

following conditions, namely:- total absence of sight; visual acuity not

exceeding 6/60 or 20/200 (snellen) in the better eye with correcting

lenses: or limitation of the filed of vision subtending an angle of 20 degree

or worse.

But the respondent-authorities considering Rules 22(c )(V) of the A.P

State and Subordinate Services Rules, which are prior to the coming into the

force of the Disabilities Act, without amendment to the earlier rules and G.O's

governing to fill the post with physically handicapped persons proceeded with

the same and reserved the vacancies for dumb and deaf persons as per the

section of 36 of the Disabilities Act and where there is no specific category of

persons available, in the general recruitment and in the second recruitment,

the vacancy need to be filled by interchanging the category with the seniority

weightage given in the rules, but not otherwise if the vacancy is reserved for

blind person as per the specified categories of blindness, hearing impairment

and orthopedically handicapped persons or cerebral lapsy when the blind

person is not available in the interchanging, first it goes to the hearing

impairment and later to the orthopedically physically handicapped persons

without reference to any merit obtaining in the written examination. The post

of Junior Lecturer in Economics is reserved for dumb and deaf and in fact, no

dumb and deaf candidate has responded to the notification since they know if

better that they cannot teach the students but the respondent-authorities

reserved the post for dumb and deaf, without application of mind. The action of

the respondents is only to deprive the appointment to the physically

handicapped persons by way of carrying forward the post is capricious, illegal,

arbitrary and contrary to the provisions of the Disabilities Act and the law laid

down by this Court and Apex Court.

Accordingly, the Writ Petition is allowed by setting aside the impugned

order dated 05.08.2005 passed in O.A No.2322/2001 of the Tribunal and

rejection order dated 08.01.2001. Consequently, the respondents are directed

to consider of the case of the petitioner for appointment to the post of Junior

Lecturer in Economics, with effect from the date on which others were

appointed in pursuance to the Advertisement No.3/97, with all consequential

benefits and attendant benefits, including seniority, fixation of pay, but not for

arrears of salaries, even if the vacancy is not available by creating a

supernumerary post. There shall be no order as to costs.

Miscellaneous petitions pending, if any, in this Writ Petition shall stand

closed.

__________________________ JUSTICE M. GANGA RAO

________________________ JUSTICE V. SRINIVAS

Date :

LSP

THE HON'BLE SRI JUSTICE M. GANGA RAO

&

THE HON'BLE SRI JUSTICE V. SRINIVAS

W.P No. 26172 of 2006

Date:

LSP