Karnataka High Court
Principal Distirct And Sessions ... vs Sri A Lakshmi Narayana on 10 March, 2022
Bench: Chief Justice, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 10th DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT APPEAL No.46/2022 (S-RES)
BETWEEN:
PRINCIPAL DISTIRCT AND
SESSIONS JUDGE
KODAGU DISTRICT
MADIKERI-571 201
... APPELLANT
(BY SMT B.V.VIDYULATHA, ADVOCATE)
AND:
SRI A. LAKSHMI NARAYANA
AGED ABOUT 51 YEARS,
S/O LATE K.P.ANNAIAH
R/AT NO.2/515, 9TH WARD
2ND ARKANATHA ROAD,
K .R.NAGAR TOWN, K.R.NAGARA
MYSURU DISTRICT-571 602
... RESPONDENT
(BY SRI B.S.NAGARAJ, ADVOCATE FOR C/R1)
---
THIS WA IS FILED UNDER SECTION 4 OF THE HIGH
COURT ACT PRAYING TO CALL FOR RECORDS IN WP
NO.2393/2019 (S-RES) SET ASIDE THE ORDER OF THE
LEARNED SINGLE JUDGE PASSED IN WP NO.2393/2019
(S-RES) DATED 08.10.2021 AND ETC.
THIS WA COMING ON FOR ORDERS THIS DAY,
S.R.KRISHNA KUMAR, J., MADE THE FOLLOWING:
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JUDGMENT
This intra-Court appeal is directed against the
impugned order dated 08.10.2021 passed in
W.P.No.2393/2019 by the learned Single Judge,
whereby, the said petition filed by the respondent was
allowed by quashing the impugned Notification bearing
No.4/2018 dated 14.12.2018 as well as Endorsement
bearing No.44205:2018 dated 27.12.2018 and thereby
directing the appellant to consider the case of the
respondent to the post of Process Server under the
category 'GM-PH', if the respondent was otherwise
eligible and appoint the respondent as a Process Server.
2. Heard the learned counsel for appellant and
learned counsel for the respondent and perused the
material on record.
3. In addition to reiterating the various
contentions urged in the appeal and referring to the
material on record, learned counsel for the appellant
submitted that the impugned order was contrary to
Sections 33 and 34 of the Rights of Persons with
Disabilities Act; that the respondent was not eligible to
seek appointment under Notification dated 30.10.2013
to the post of Process Server, since the same applied
only to the persons who are visually impaired; that the
Government Order dated 01.08.2009 relied upon by the
learned Single Judge could not have been made the
basis to uphold the claim of the respondent that there
was no error committed by the appellant in rejecting the
claim of the respondent, who was undisputedly hearing
impaired and not visually impaired as required for his
appointment and that the decision relied upon by the
learned Single Judge was not applicable to the facts of
the instant case. It is therefore contended that the
impugned order passed by the learned Single Judge is
erroneous and contrary to law as well as the material on
record and that the same deserves to be set aside.
4. Per contra, learned counsel for the respondent,
in addition to supporting the impugned order submits
that there is no merit in the appeal and that the same is
liable to be dismissed.
5. A perusal of the material on record including
the impugned order will clearly indicate that the learned
Single Judge has correctly and properly considered and
appreciated the entire material on record including the
relevant statutory provisions, Notifications etc., and has
recorded a finding that the Government Order dated
01.08.2009 which enables and entitles the respondent
to seek appointment under the physically handicapped
quota, in the event no candidate belonging to physically
handicapped (low vision) was available and was in force
as on 30.10.2013, on which date, the Notification was
issued inviting applications for the post of a Process
Server. The learned Single Judge has also held that the
Circular dated 19.02.2018 relied upon by the appellant
was only prospective in nature and the same cannot be
applied retrospectively for the purpose of rejecting the
claim of the respondent. While arriving at the aforesaid
conclusion, the learned Single Judge is held as under:-
"2. The respondent, by notification dated
30.10.2013 invited applications from eligible
candidates to fill up two posts of Process Server.
Out of two posts, one post was reserved for
category 2A and the other was reserved for
General Merit (PH) (Vision Impairment). The
qualification prescribed was SSLC. The petitioner
applied for the post of Process Server claiming
reservation under 2A category as well as physically
challenged quota. The petitioner was called for
interview under notice dated 27.09.2018
(Annexure-E). Annexure-F indicates the marks
obtained by the petitioner in the interview i.e., 6.5
out of 10 marks. Under notification dated
26.10.2018 (Annexure-G) of the respondent, one
post of Process Server was filled up which was
meant for category 2A Rural. But one post meant
for General Merit (Physically Handicapped) (for
short 'GM-PH') (blind/low vision) was not filled up
and in that regard, it is stated that a fresh
notification would be issued. The petitioner named
in additional list in the said notification. Thereafter,
the petitioner is said to have submitted
representation on 19.12.2018 to consider his
candidature for appointment as Process Server
against the post of GM-PH, to which the respondent
issued endorsement dated 27.12.2018 stating that
circular dated 19.02.2018 would not permit
appointment of a physically challenged person of a
different category. Thereafter, a fresh notification
dated 14.12.2018 (Annexure-A) for appointment of
21 posts of Process Servers including one backlog
post was published. Aggrieved by the impugned
endorsement, as well as fresh notification for
recruitment of one backlog post to Process Server,
the petitioner is before this Court.
3. Learned counsel for the petitioner contends
that the petitioner is physically challenged person
having 45% of hearing impairment and to
substantiate the same, he has produced Annexure-
D/Certificate issued by the Medical Board,
K.R.Hospital, Mysore. Further, he submits that in
pursuance of the notification dated 30.10.2013
(Annexure-B), the petitioner applied for the post of
Process Server claiming reservation under 2A
category as well as Physically Challenged. It is
submitted that out of two posts of Process Server,
one post was reserved to 2A category and one for
General Merit-Physically Challenged ('GM-PH' for
short). Learned counsel invites attention of this
Court to Annexure-F wherein the petitioner is
awarded 6.5 marks out of 10 marks in the
interview. Learned counsel contends that the
respondent committed grave illegality in not
selecting the petitioner for the post of Process
Server reserved for GM-PH. It is his submission
that even though the petitioner had applied for the
post of Process Server under 2A category and had
also produced Certificate of Disability, the
Respondent has failed to consider the candidature
of the petitioner for the post of Process Server
reserved for Physically Challenged under General
Merit category. It is his submission that even a
candidate who had applied under reserved category
would be entitled for consideration of his case
under General Merit category. It is his submission
that the post under notification dated 30.10.2013
was reserved for Physically Challenged (low vision),
but as the candidate belonging to GM-PH (low
vision) was not available, as per the Government
Order dated 01.08.2009, the post reserved for
Physically Handicapped could be filled up by a
candidate belonging to Physically Handicapped
having other disabilities. Since the petitioner was a
physically challenged candidate having hearing
impairment, ought to have been considered in view
of the above stated Government Order. Thus, the
learned counsel for the petitioner prays for allowing
the writ petition and to direct the respondents to
consider the case of the petitioner for appointment
for the post under GM-PH.
4. Per contra, Sri.S.Y.Shivalli learned counsel
appearing for the respondent submits that, the
petitioner applied for the post of Process Server
under 2A category and the petitioner has not
applied for the post reserved for GM-PH.
Moreover, he submits that the post of Physically
Handicapped was reserved for Physically
Handicapped (blind/low vision) and the post is not
reserved for hearing impaired under Physically
Handicapped. Thus, he submits that the petitioner
having hearing impairment cannot claim the post
reserved for Physically Handicapped (low vision).
Since the petitioner had applied under 2A category,
his application is not considered for GM-PH
category. Further, he invites attention of this Court
to the Circular dated 19.02.2018 to contend that
the Government directed to fill up the posts
reserved for Physically Handicapped of the same
disability and not to transfer the said Physically
Handicapped post to other disabled persons. Thus,
he prays for dismissal of the writ petition.
5. It is not in dispute that the petitioner
submitted his application in pursuance of the
Notification dated 30.10.2013 for the post of
Process Server claiming reservation under 2A
category as well as under Physically Challenged
quota as could be evidenced from the application of
the petitioner, which is made available during the
course of hearing by the respondent's counsel. A
perusal of the application submitted by the
petitioner indicates that the petitioner had claimed
reservation of 2A category under column No.14 and
under column 15, the petitioner had claimed
reservation under Rural as well as Physically
Handicapped.
6. The Hon'ble Apex Court in MAHESH GUPTA
AND OTHERS Vs. YASHWANT KUMAR AHIRWAR
AND OTHERS reported in (2007) 8 SCC 621 was
considering a case arising out of special
recruitment drive and circular of the State of
Madhya Pradesh as regards recruitment of
handicapped persons, observed that, a disabled is
a disabled. The question of making any further
reservation on the basis of caste, creed or religion
ordinarily may not arise to constitute a special
class.
7. Article 16 of the Constitution of India
empowers the State to make provision for the
reservation in appointments or posts. Under Article
16(4) the State could make reservation in
appointments or posts to Scheduled Caste and
Scheduled Tribes and backward class of citizens.
Under Article 16(1) and Article 15(3), Special
reservations could be made in favour of Physically
handicapped or women. Social reservations in
favour of Scheduled Castes, Scheduled Tribes and
backward classes under Article 16(4) are vertical
reservations. Special reservation in favour of
Physically handicapped, women, under Article
16(1) and 15(3) are horizontal reservations. The
Hon'ble Apex Court in the case of RAJESH KUMAR
DHARIA v/s RAJASTHAN PUBLIC SERVICE
COMMISSION reported in (2007)8 SCC 785, while
discussing horizontal women reservation has
observed that, special reservation in favour of
physically handicapped, women under Article 16(1)
or Article 15(3) are horizontal reservations and
reservations under Article 16(4) social reservations
in favour of Scheduled Caste and Scheduled Tribes
and OBC are vertical reservations. Further, it is
observed that, where vertical reservation is made
in favour of a Backward class under Article 16(4),
the candidates belonging to such backward class,
may compete for non-reserved posts and if they
are appointed to the non-reserved posts on their
own merit, their number will not be counted
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against the quota reserved for respective backward
class.
8. The Notification dated 30.10.2013 inviting
applications would indicate that out of 2 posts of
Process Server, one post was reserved for category
2A and other post was for Physically Challenged
(low vision) under General Merit category. As on
the date of notification the persons with Disabilities
(Equal Opportunities, Protection Of Rights and Full
Participation) Act, 1995 was in force and
subsequently the same was repealed under the
Rights of Persons with Disabilities Act, 2016, which
came into force on 27th December 2016. A person
claiming reservation under 2A category or any
other reserved category would be entitled for
consideration of his case under General Merit quota
also. When one post is reserved for Physically
Challenged under General Merit, the respondent
ought to have considered the case of the petitioner
for the said post, reserved for Physically
Handicapped under General Merit. It is true that
under the recruitment notification, reserved post of
Physically Handicapped is earmarked for low vision.
But, it is an admitted fact that no candidate
belonging to Physically handicapped (low vision)
was available nor made an application in pursuance
of the notification. It is also an admitted fact that
the petitioner was the only candidate who had
applied under Physically handicapped. The
petitioner is a physically handicapped having
hearing impairment. Annexure-D/Certificate for
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the Persons with Disabilities issued by the Medical
Board of K.R.Hospital, Mysore depicts that the
petitioner suffers from 45% hearing impairment.
When a candidate belonging to Physically
Handicapped (low vision) was not available, the
respondent ought to have considered the
candidature of the petitioner who was Physically
Handicapped with hearing impairment as required
under the Government Order dated 01.08.2009.
The order portion of the relevant Government
Order reads as follows:
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retardation/Mental illness) ºÉÆA¢gÀĪÀªÀjUÉ «ÄøÀ°j¸À®Ä
DzÉò¸À¯ÁVzÉ. F «ÄøÀ¯ÁwAiÀÄ£ÀÄß eÁjUÉƽ¸À®Ä ¢£ÁAPÀ
4.1.2008gÀ DzÉñÀ ¸ÀASÉå: ¹D¸ÀÄE 53 ¹£É¤ 2007gÀ°è
¤UÀ¢¥Àr¹gÀĪÀ 20 ©AzÀÄUÀ¼À gÉÆøÀÖgÀ£ÀÄß 100 jPÀÛ ¸ÁÜ£ÀUÀ½UÉ
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zÀȶ֪ÀiÁAzÀåvÉAiÀÄļÀîªÀjUÉ, 44£Éà ©AzÀĪÀ£ÀÄß ±ÀæªÀt
zÉÆõÀªÀżÀîªÀjUÉ, 64£Éà ©AzÀĪÀ£ÀÄß ZÀ®£ÀªÀ®£À ªÉÊPÀ®å
EgÀĪÀªÀjUÉ ªÀÄvÀÄÛ 84£Éà ©AzÀĪÀ£ÀÄß PÀĵÀ×gÉÆÃUÀ¢AzÀ
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- 12 -
C¸Àé¸ÀÜvÉ ºÉÆA¢gÀĪÀªÀjUÉ «ÄøÀ°j¸ÀvÀPÀÌzÉÝAzÀÄ ªÀÄvÀÄÛ F
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(underlined by me)
9. A careful reading of the above portion of the
Government Order makes it clear that when
Physically Handicapped candidate belonging to a
particular disability which is reserved under the
Notification is not available, the said post reserved
for Physically Handicapped could be filled up by a
candidate who suffers from other physical disability.
The said Government Order was in force as on the
date of Notification dated 30.10.2013 inviting
applications to fill up the post of Process Server. The
circular dated 19.02.2018 which is relied on by the
respondent has come into force subsequently and a
reading of the circular dated 19.02.2018 makes it
clear that it is made applicable prospectively stating
that, the instructions shall be taken note of while
notifying the vacancies in future. Thus, the
respondents committed grave error in not
considering the candidature of the petitioner for the
post of Process Server under GM-PH.
10. For the reasons stated above, the writ
petition is allowed. The Notification bearing
No.4/2018 dated 14.12.2018 (Annexure-A) insofar
as inviting applications for backlog physically
handicapped (low vision) as well as endorsement
bearing No.44205:2018 dated 27.12.2018
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(Annexure-J) are quashed. The respondent is
directed to consider the case of the petitioner to the
post of Process Server under GM-PH, if the petitioner
is otherwise eligible and appoint the petitioner as
Process Server.
Time for compliance: 8 weeks from the date of
receipt of a copy of this order".
6. It is relevant to state that having regard to the
facts on hand, no reliance can be placed upon Sections
33 and 34 of the Rights of Persons with Disabilities Act
by the appellant in support of its contentions. Upon re-
examination and re-evaluation of the entire material on
record, we are of the considered opinion that the
impugned order passed by the learned Single Judge, in
the facts and circumstances obtaining in the instant
case is fair, reasonable, just, equitable, correct and
proper by assigning cogent and valid reasons and the
same does not suffer from any illegality or infirmity nor
can the same be said to be perverse or capricious
warranting interference by this Court in the present
appeal.
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7. Accordingly, we do not find any merit in the
appeal and the same is hereby dismissed.
SD/-
CHIEF JUSTICE
SD/-
JUDGE
Srl.
