Shivendra Singh Parihar vs Vansana Vaidya Secretary
2021 Latest Caselaw 4875 MP

                                  1                              CONC-538-2021
        The High Court Of Madhya Pradesh
                   CONC-538-2021
   (SHIVENDRA SINGH PARIHAR AND OTHERS Vs VANSANA VAIDYA SECRETARY AND OTHERS)


Jabalpur, Dated : 01-09-2021
      Heard through Video Conferencing.

      Shri S.K. Rungta, learned Senior Advocate assisted by Shri K.V.S.
Sunil Rao, learned counsel for the petitioners.
      Shri Parag Tiwari, learned counsel for the respondent No.1.

Shri B.D. Singh, learned Government Advocate for the respondents

No.2/State.

We have heard the learned counsel for the parties at length. The dispute in the present case is as to whether the judgment of this Court dated 29.04.2020 has been correctly implemented by the respondent/contemnors or not.

It is not in dispute that as per the Rights of Persons with Disabilities Rules, 2017 (hereinafter referred to as the 'Rules of 2017'), the physically handicapped candidates are entitled to reservation to the extent of 6%. An advertisement was originally issued by the M.P. Public Service Commission

on 12.12.2017 notifying 3,462 vacancies of Assistant Professors in the Higher Education Department in 39 different subjects. A total of 384 posts were reserved therein for physically handicapped category. The computation of 384 posts was made on the basis of total cadre strength of 8,032. As against the total cadre strength, the working strength of the Assistant Professors in Higher Education Department was 4,503. The Public Service Commission however, advertised only 3,462 vacancies as against 3,529 vacancies.

Several writ petitions were filed challenging the computation of reservation of physically handicapped category, leading one being W.P. No.20649/2018 (Ghanshyam Choksey Vs. State of M.P.) . When the matter was taken up for arguments before the Court on 17.06.2019, following order was passed :-

"These bunch of petitions involve a common question 2 CONC-538-2021 of law and raise a common issue, therefore, they are heard and disposed of concomitantly.

In these bunch of the petitions, the petitioners have assailed the select list issued by the respondents in respect of appointment of Assistant Professors in various subjects.

The common ground of challenge in all these petitions is that the respondent authorities have made reservation for the handicapped categories in excess of the statutory prescribed limit. It is stated that the authorities have ignore the provisions of Section 34 of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the 'Act of 2016') and the Madhya Pradesh Rights of Persons with Disabilities Rules, 2017 (hereinafter referred to as the 'Rules of 2017') while making the reservations.

The learned Advocate General for the respondent/State submits that the authorities on examining the issues have found certain anomalies in the reservations made in respect of the handicapped categories. He submits that the authority concerned would re-examine the entire issue and selection process in terms of the provisions of Section 34 of the Act of 2016 and the Rules of 2017, make necessary changes and thereafter republish the final select list within 15 days. He submits that the impugned select list may be treated as non-est as the authorities would re-examine the matter only to the extent of the reservations and appointments made against and in respect of the handicapped categories and issue a fresh select list.

In view of the aforesaid statement made by the learned Advocate General, on instructions from the Commissioner, Higher Education, who is present in person before this Court, these petitions are disposed of."

It appears that pursuant to the statement made by the learned Advocate General on behalf of the State before the Court, the respondents have revised/reduced the vacancies of physically handicapped quota in the subject recruitment from 384 to 211 which is 6% of the total available vacancies of 3,529.

3 CONC-538-2021 In the compliance report supported by the affidavit of the Principal Secretary, Department of Higher Education, filed on behalf of respondent No.2 on 26.07.2021, it is stated in para-3, 4 & 5 as under :-

"3. It is humbly submitted that at the time when the advertisement of Assistant Professors Examination 2017 was published by the M.P. Public Service Commission (M.P.P.S.C.), the total number of sanctioned posts of Assistant Professors in the 39 subjects in the Department was 8,032. Against the said sanctioned posts 4,503 Assistant Professors were working. And, the advertisement of the Assistant Professors Examination 2017 was issued for filling up 3,462 posts out of the 3,529 posts lying vacant. A total of 384 posts were shown to be reserved for PH category in the advertisement.

4. However, against the said advertisement order dated 17.06.2019 was passed by this Hon'ble Court in W.P.No.20649/2018 as the reservation for the PH category was more than 6%.

5. Hence, in compliance of the aforesaid order of this Hon'ble Court an amended list was forwarded to the M.P.P.S.C. by the Higher Education Department pursuant to which the amended advertisement dated 19.08.2019 was issued by the M.P.P.S.C."

What appears from the stand taken by the contemnor/respondent No.2 in their compliance report is that their action in reducing the quota in the vacancies advertised for PH category from 384 to 211 is purportedly based on the direction of this Court. The revised advertisement was accordingly issued on 19.08.2019.

We have carefully gone through the order of this Court dated 17.06.2019. There is no such direction issued by this Court. On the contrary, a submission was made by the learned Advocate General that the authorities concerned would examine the entire issue and selection process in terms of Section 34 of the Act of 2016 and the Rules of 2017 and make necessary changes and thereafter republish the final select list. It was submitted that the impugned selection list made be treated as non-est as the authorities would re- examine the matter only to the extent of the reservation and appointments 4 CONC-538-2021

made against and in respect of the PH category and issue a fresh select list.

When the PH quota for recruitment to the vacancies of Assistant Professors in Higher Education Department was reduced from 384 to 211, the petitioners herein approached this court by filing W.P. No.19393/2019 and several other writ petitions were also filed. This Court, after relying on the judgments of the Supreme Court in Union of India and Another Vs. national Federation of the Blind and Others (2013) 10 SCC 772 and Government of India through Secretary and Another Vs. Ravi Prakash Gupta and Another (2010) 7 SCC 626, while allowing the writ petitions, issued the following directions :-

"29. In view of the aforesaid enunciation of law, it is elucidated that the quota for PH has to be computed on the basis of sanctioned strength and not on the basis of vacancies notified along. In other words, the PH quota shall be counted on the basis of the posts of the cadre already filled and the vacancies notified. The computation of PH quota in the revised advertisement dated 19.08.2019 is, thus, erroneous. The respondents are directed to redraw the list of PH candidates after revising the quota by computing the posts on the basis of total vacancies in the cadre strength of the cadre and thereafter to proceed for appointment in accordance with law expeditiously, preferably within a period of one month from the date of receipt of the copy of the order passed today."

Even though, the learned Government Advocate has taken the Court through para 23 and 27 of the judgment to canvas that the computation of the vacancies for the PH category has to be made on the available vacancies and not on the total cadre strength but having examined the matter threadbare, we are unable to agree. It is quiet clear from the first sentence of the aforesaid quoted operative para of the judgment passed by this Court that the quota for physically handicapped has to be computed on the basis of sanctioned strength and not on the basis of the vacancies notified alone. Thereafter, it is reinforced in the very next sentence that the PH quota shall be counted on the basis of the posts of the cadre already filled and the vacancies notified. And 5 CONC-538-2021 if anything was left to doubt, that should be clear from the pronouncement by the Court that the computation of PH quota in the revised advertisement dated 19.08.2019 is erroneous.

In view of the above, we grant one more and final opportunity to the respondents to make true and faithful compliance of the judgment of this Court in regard to the computation of the vacancies of the physically handicapped category for the recruitment in question.

Matter to come up on 25.10.2021.

                                                        (MOHAMMAD RAFIQ)                        (VIJAY KUMAR SHUKLA)
                                                         CHIEF JUSTICE                                     JUDGE


                                              Priya.P




Signature Not Verified
  SAN

Digitally signed by priyanka pithawe mishra Date: 2021.09.03 16:52:49 IST