Jagdish Kumar vs State Of Himachal Pradesh
2021 Latest Caselaw 3823 HP

            IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                         ON THE 11TH DAY OF AUGUST, 2021

                                         BEFORE




                                                                          .
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





    CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 4462 OF 2020

    Between:-





    JAGDISH KUMAR
    S/O SHRI OM PRAKASH
    R/O VILLAGE KHADRA, POST OFFICE SERI BANGALOW,
    TEHSIL KARSOG, DISTRICT MANDI,





    H.P. 175011
                                               ... PETITIONER
    (BY MS. RANJANA PARMAR, SENIOR ADVOCATE
    WITH MR. KARAN SINGH PARMAR, ADVOCATE)

    AND

    1.       STATE OF HIMACHAL PRADESH
             THROUGH SECRETARY (PERSONNEL) TO THE
             GOVERNMENT OF H.P., SHIMLA-2.



    2.       H.P. UNIVERSITY, SUMMER HILL, SHIMLA
             THROUGH ITS REGISTRAR




                                                                  .. RESPONDENTS
    (MR. SUDHIR BHATNAGAR
    AND MR. DESH RAJ THAKUR,





    ADDITIONAL ADVOCATES GENERAL
    WITH MR. R.P. SINGH AND
    MR. NARINDER THAKUR,





    DEPUTY ADVOCATES GENERAL, FOR R-1

    MR. VIVEKANAND NEGI, ADVOCATE, FOR R-2)
    Whether approved for reporting: Yes.

         This petition coming on for orders this day, the court passed the following:

                                       ORDER

On 8.2.2017, respondent Himachal Pradesh University

issued an advertisement dated 8.2.2017, Annexure A-3 for recruitment

to various non-teaching posts in various categories, including two posts

.

of Junior Office Assistant (Information Technology) under the category

of general PWD (visually impaired/blind/ low vision). Petitioner being

eligible in all respects, applied against one post of Junior Office

Assistant (IT) reserved for visually impaired, /blind/low vision. Result of

written test conducted pursuant to aforesaid advertisement was

declared 19.7.2017, wherein petitioner was declared successful.

Respondent University vide communication dated 21.7.2017, Annexure

A-4 directed petitioner to appear for type writing test on computer on

30.7.2017, however a day before said typewriting test, petitioner by way

of communication dated 29.7.2017, requested respondents to exempt

him from typewriting test on account of his being visually

impaired/blind/low vision. However, aforesaid prayer of him was not

accepted for more than six months and as such, petitioner was again

compelled to send representation dated 10.1.2018 to respondent-

University, praying therein to grant exemption from passing typewriting

test. In response to aforesaid communication dated 10.1.2018

Registrar of University, vide annexure A-5 informed the petitioner that

request having been made by him for exemption from passing

typewriting test is not tenable under rules. Registrar of University

informed that percentage of disability of petitioner as per disability

certificate is 75% whereas, provision contained under letter No.Per(AP-

B)B(19)-31/2007 dated 10.5.2013 issued by Government of Himachal

Pradesh, provides that 100% visually impaired persons are required to

be imparted necessary basic training including computer training

.

through Composite Regional Centre (CRC), Sundernagar.. Besides

above, respondent-University also informed the petitioner that the

university has already completed recruitment process for filing posts of

Junior Office Assistant (IT) initiated vide advertisement dated 8.2.2017

Annexure A-3.

2. Being aggrieved and dissatisfied with letter dated 5.2.2018

(Annexure A-5), whereby prayer made on behalf of petitioner to grant

exemption came to he rejected, petitioner approached erstwhile

Himachal Pradesh Administrative Tribunal in OA No. 2407 of 2018.

Erstwhile Himachal Pradesh Administrative Tribunal vide order dated

4.5.2018, directed respondent-University not to fill up post against which

petitioner stands selected till next date of hearing. After abolishment of

Himachal Pradesh Administrative Tribunal, Original Application as

detailed herein came to be transferred to this Hon'ble Court and was

registered as CWPOA No. 4462 of 2020, wherein petitioner has prayed

for following reliefs:

"I) That communication dated 5th February 2018 may be quashed and set aside and respondents may be directed to appoint the applicant as Junior Office Assistant from the date of his selection with all consequential benefits, or from any other date this

Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

3. Having heard learned counsel for the parties and perused

.

the material available on record this court finds that there is no dispute

inter se parties that petitioner being eligible and qualified applied for the

post of Junior Office Assistant (IT) against one post reserved for visually

impaired category. It is also not in dispute that petitioner was declared

successful in written test, rather was the only qualified candidate in his

category, where-after he was supposed to clear typewriting test. It is

also not in dispute that a day prior to typewriting test, petitioner by way

of written communication, requested respondent-University to exempt

him from typewriting test, on account of his being visually impaired.

4. Ms. Parmar, learned senior counsel for the petitioner, while

referring to communication dated 10.5.2013 (Annexure A-6), whereby

decision of the Government to exempt disabled persons in respect of

class I to IV posts from passing typewriting test, came to be

communicated to all the Departments in the State of Himachal Pradesh,

contended that since in the year 2013, Government in consultation with

Department of Social Justice and Empowerment had decided that

instead of granting exemption from typewriting test, visually impaired

persons recruited under reserved quota of 1% may be imparted

necessary basic training including computer training through Composite

Regional Centre (CRC), Sundernagar set up by Ministry of Social

Justice and Empowerment, Government of India, there was no occasion

for respondent-University to reject the prayer having been made by

petitioner vide communication dated 29.7.2017 seeking therein

exemption from typewriting test.

.

5. Mr. Vivekanand Negi, learned counsel for the respondent-

University while fairly acknowledging factum with regard to issuance of

instructions contained in communication dated 10.5.2013, annexure A-

6, contended that since the aforesaid instructions never came to be

incorporated in Recruitment and Promotion Rules of the post in

question, there was no occasion, if any, for respondent-University to

consider the request of the petitioner for grant of exemption to appear in

typewriting test. While referring to communication dated 10.3.2017,

learned senior counsel representing the petitioner further argued that on

10.3.2017, Ministry of Social Justice and Empowerment, Government of

India, had decided that in addition to Composite Resource Centre,

Sundernagar, visually impaired persons may be allowed to undertake

requisite training from NIVH, Dehradun and Composite Training Centre,

Ludhiana, and amendment in Recruitment and Promotion Rules in this

regard shall be made by Department of Personnel separately. Ms.

Parmar, learned senior counsel argued that since pursuant to aforesaid

decision taken by Government of Himachal Pradesh as well as Union of

India, visually impaired persons were to be exempted from passing

typewriting test forthwith, claim of petitioner cannot be allowed to be

defeated on the ground that since decision circulated pursuant to

aforesaid communications dated 10.5.2013 and 10.3.2017 was not

incorporated in the Recruitment and Promotion Rules, no exemption

could be granted to the petitioner from appearing in the typewriting test.

          6.    This   court     finds   from   record   that     in   addition      to




                                                                      .

communications dated 10.5.2013 and 10.3.2017, Annexures A-6 and

A-7, Government of Himachal Pradesh vide communication dated

18.8.2017, (Annexure A-7) directed all the Heads of Departments in

Himachal Pradesh to carry out necessary amendments in Recruitment

and Promotion Rules, so that relaxation in educational qualification as

prescribed in Recruitment and Promotion Rules for appointment to

Class IV posts/services against direct recruitment quota posts in favour

of visually impaired persons may be incorporated in the Recruitment

and Promotion Rules. Pursuant to aforesaid communication

Government of Himachal Pradesh Department of Personnel made

common Recruitment and Promotion Rules for the post of Junior Office

Assistant (IT), Class III Non Gazetted, Ministerial Service in various

Departments of Himachal Pradesh, which were also adopted by

respondent-University, wherein for the first time, it came to be provided

that visually impaired persons selected under 1% quota will be

exempted from acquiring diploma in computer science/computer

applications/computer technology and passing typewriting test instead

they shall be imparted necessary basic training including computer

training through Composite Regional Centre (CRC), Sundernagar, NIVH

Dehradun and CTC, Ludhiana. It also came to be provided in

Recruitment and Promotion Rules that differently-abled persons, who

are otherwise eligible to hold clerical posts as certified being unable to

type, by the Medical Board may be exempted from passing the typing

test. The term, differently abled persons, does not cover those who are

.

visually impaired or who are hearing impaired but cover only those

whose physical disability/ deformity permanently prevent them from

typing.

7. In nutshell, the reason cited by respondent-University for

not granting exemption to petitioner despite his being visually impaired

from appearing in written test is that since provision to exempt visually

impaired from typewriting test came to be incorporated in Recruitment

and Promotion Rules for the first time in September 2017, petitioner

who had applied for the post advertised in February, 2017 and was

called for interview on 30.7.2017, cannot be permitted to take benefit of

instructions, if any, issued in this regard in the years 2013, 2016 and

2017.

8. However, this court is unable to accept aforesaid

contention raised on behalf of respondent-University for the reason that

at the time of issuance of advertisement, annexure A-3, dated 8.2.2017,

there was no provision contained in Recruitment and Promotion Rules

with regard to exemption, rather, Government of Himachal Pradesh vide

communication dated 10.5.2013 annexure A-6 had directed all Heads

of Departments in Himachal Pradesh not to insist for typewriting test in

the case of visually impaired persons recruited under reserved quota of

1% and it was suggested that instead of exempting them from

typewriting test they may be imparted basic training including computer

training through Composite Resource Centre Sundernagar set up by

Ministry of Social Justice and Empowerment, Government of India.

.

9. Since there was no provision with regard to exemption from

typewriting test in the Recruitment and Promotion Rules, instructions

issued by Government, on 10.5.2013, were binding upon the

respondent-University inasmuch as granting exemption of typewriting

test to visually impaired persons is concerned. No doubt, administrative

instructions cannot supersede provisions contained in Recruitment and

Promotion Rules, which have a statutory sanction but if some specific

provision is not made in Recruitment and Promotion Rules,

administrative instructions issued in that regard shall be binding

under Art. 162 of the Constitution of India.

10. Reliance is placed upon judgment rendered by Hon'ble

Apex Court in P. Tulsi Das v. Govt. of A.P., (2003) 1 SCC 364,

wherein Hon'ble Apex Court has held that in the absence of Rules

under Article 309 of the Constitution in respect of a particular area,

aspect or subject, it is permissible for the State to make provisions in

exercise of its executive powers under Article 162 which is co-extensive

with its Legislative powers laying conditions of service and rights

accrued to or acquired by a citizen would be as much rights acquired

under law and protected to that extent. It would be apt to reproduce

para-14 of the judgment (supra), which reads as under:

"14. On a careful consideration of the principles laid down in the above decisions in the light of the fact situation in these appeals we are of the view that they squarely apply on all fours to the cases on hand in favour of the appellants. The submissions on behalf of the respondent-State that the rights derived and claimed by the

.

appellants must be under any statutory enactment or rules made

under Article 309 of the Constitution of India and that in other respects there could not be any acquisition of rights validly, so as

to disentitle the State to enact the law of the nature under challenge to set right serious anomalies which crept in and deserved to undone, does not merit our acceptance. It is by now well settled that in the absence of Rules under Article 309 of the

Constitution in respect of a particular area, aspect or subject, it was permissible for the State to make provisions in exercise of its executive powers under Article 162 which is co-extensive with its Legislative powers laying conditions of service and rights accrued

to or acquired by a citizen would be as much rights acquired under

law and protected to that extent. The orders passed by the Government, from time to time beginning from February 1967 till 1985 and at any rate upto the passing of the Act, to meet the

administrative exigencies and cater to the needs of public interest really and effectively provided sufficient legal basis for the acquisition of rights during the period when they were in full force

and effect. The orders of the High Court as well as the Tribunal also recognised and upheld such rights and those orders attained

finality without being further challenged by the Government, in the manner known to law. Such rights, benefits and perquisites

acquired by the Teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the Government, with impunity. Consequently we are unable to agree that the Legislature could have validly denied those rights acquired by the appellants retrospectively, not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to State. The provisions of the Act, though can be valid in its operation 'in future' can not be held valid in so far as it purports to

restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. For all the reasons stated above the reasons assigned by the majority opinion of the Tribunal could not be approved in our hands. The provisions of Section 2 and 3(a) insofar as they purport to take away the rights

.

from 10-2-1967 and obligates those who had them to repay or

restore it back to the State is hereby struck down as arbitrary, unreasonable and expropriatory and as such is violative of Articles

14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached

courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application."

11. Though from the year 2013, instructions to not insist the

visually impaired persons to pass typewriting test were being repeatedly

issued by Government of Himachal Pradesh to all the Heads of

Departments in Himachal Pradesh, but vide communications dated

10.3.2017 and 18.8.2017, all Departments were directed to make

provisions with regard to imparting basic training including computer

training to visually impaired persons through CRC Sundernagar, set up

by Ministry of Social Justice and Empowerment, Government of India.

12. Though first instruction in this regard was issued on

10.3.2017, but yet respondent-University without making suitable

amendment in Recruitment and Promotion Rules, proceeded to go

ahead with the advertisement issued by it vide communication dated

8.2.2017 for filling up various posts in Himachal Pradesh University. In

the normal course, respondent-University after receipt of

communication dated 10.3.2017, ought to have issued fresh

advertisement after making necessary amendments in the Recruitment

.

and Promotion Rules as were suggested vide communication dated

10.5.2013,10.3.2017 and 18.8.2017, Annexures A-6 and A-7.

13. Since the petitioner after having cleared written test was

invited for interview vide communication dated 21.4.2017, Annexure A-

4 and petitioner had requested to exempt him from typewriting test,

respondent-University ought to have exempted the petitioner from

typewriting test in terms of decision taken by Government of Himachal

Pradesh vide communication dated 10.5.2013, wherein it was decided

that instead of granting exemption in typewriting test visually impaired

may be imparted necessary basic training including computer training

through Composite Resource Centre Sundernagar.

14. Since the petitioner at the time of making application was

75% disabled, he was otherwise eligible to be exempted from

typewriting test in terms of instructions contained in communication

dated 10.5.2013, Annexure A-6. As has been observed herein above,

there was no provision for exemption from typewriting test in

Recruitment and Promotion Rules and as such, administrative

instructions issued by Government of Himachal Pradesh granting

exemption from typewriting test to visually impaired persons were

applicable and as such, action of respondents in rejecting the prayer of

petitioner to grant him exemption, is not sustainable being in total

violation of administrative instructions issued by Government of

Himachal Pradesh. Otherwise also providing reservation to the Persons

with Disabilities pursuant to enactment of legislation in this behalf, is a

.

welfare step to ensure equal participation of differently abled persons in

the mainstream.

15. Mr. Vivekanand, learned counsel for the respondent argued

that since the process of selection initiated vide advertisement dated

8.2.2017, Annexure A-3 stood completed after expiry of one year,

prayer having been made by petitioner cannot be accepted at this

stage, however, this court is not in agreement with aforesaid submission

of Mr. Negi, for the reason that the erstwhile Himachal Pradesh

Administrative Tribunal vide order dated 4.5.2018 has already directed

respondent-University not to fill up one post against which petitioner

was selected. Shri Negi, otherwise has fairly admitted that one post of

Junior Office Assistant (IT) is still vacant.

16. Consequently, in view of detailed discussion made above,

present petition is allowed and respondent-University is directed to

complete selection process of petitioner to the post of Junior Office

Assistant (Information Technology), without insisting upon him to pass

typewriting test. Since the petitioner is fighting for his claim since 2018,

this court hopes and trusts that needful will be done by respondent-

University within one month.

(Sandeep Sharma), Judge August 11, 2021 (vikrant)