Manipur High Court
Shri Thokchom Nidhubon Singh vs The State Of Manipur on 10 May, 2021
Digitally
Yumk signed by
Yumkham
ham Rother
Date:
IN THE HIGH COURT OF MANIPUR : AT IMPHAL
2021.05.10
Rother 14:39:08
+05'30'
W.P.(C) No. 114 of 2020
Shri Thokchom Nidhubon Singh, aged about 29 years, S/o Th.
Nimai Singh of Kadangband Part-II, P.O. & P.S. Lamsang, Imphal
West District, Manipur-795146.
...Petitioner
-Versus-
1. The State of Manipur, represented by the
Commissioner/Principal Secretary, Education(S), Government
of Manipur, New Secretariat Building, Babupara, Imphal West
District, Manipur-795001.
2. The Director of Education(S), Govt. of Manipur, RIMS Doctor
Colony, Lamphelpat, Imphal West District, Manipur-795004.
3. The Under Secretary (Edn./S), Govt. of Manipur, New
Secretariat Building, Babupara, Imphal West District, Manipur-
795001.
... Respondents
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the petitioner :: Smt. N. Savitri, Advocate
For the Respondents :: Shri Th. Vashum, Govt. Advocate.
Date of Hearing :: 27-04-2021
Date of Judgment & Order :::: 10-05-2021
JUDGMENT AND ORDER
[1] Heard Ms. N. Savitri, learned Advocate appearing for the
petitioner and Mr. Th. Vashum, learned Government Advocate for the
respondents.
[2] By the instant writ petition, the petitioner has prayed for
issuing a writ of mandamus or any other appropriate writ to the
respondents to recommend the name of the petitioner for appointment
W.P.(C) No. 114 of 2020 Page 1
to the post of Lecturer in Manipuri under the category of PWD
(blindness and low vision category).
[3.1] According to the petitioner, he is a physically handicapped
person belonging to category of visually handicapped person. The
Director of Education(S), Government of Manipur issued a Notification
dated 06-07-2018 inviting applications from amongst the eligible
candidates for appointment of 688 Lecturers in different subjects on
contract basis. As per the said Notification, the mode of selection ought
to be on the basis of written test and personal interview with weightage
of 80% and 20% respectively. It has further been stated in the said
Notification that there will be reservation for the differently abled
persons as per the existing norms.
[3.2] Section 34 of the Rights of Persons with Disabilities Act,
2016 (hereinafter referred to as "the Act, 2016") provides that every
appropriate Government shall appoint in every Government
establishment, not less than four percent (ie. 4%) of the total number of
vacancies in the cadre strength to be filled with persons with
benchmark disabilities of which, one percent (1%) each shall be
reserved for persons with benchmark disabilities as mentioned therein.
As per the provisions of Section 34 thereof, the number of posts to be
reserved for the persons with disabilities will be 26 i.e. 4% of 688, out
of which 6 posts are to be specifically reserved for the persons
belonging to blindness or low vision category i.e. 1% of 4%.
[3.3] Pursuant to the said Notification dated 06-07-2018, the
petitioner applied for the post of Lecturer in Manipuri; appeared the
W.P.(C) No. 114 of 2020 Page 2
written test examination and was recommended for appearing in the
interview vide order dated 17-11-2018 issued by the Director of
Education (S), Government of Manipur. Altogether 19 PWD candidates
got through the written test and appeared for the interview. When the
final selection list was notified vide letter dated 25-11-2019 issued by
the Under Secretary (Education/S), Government of Manipur, only 13
PWD candidates were found to have been recommended, out of which
2 PWD candidates belonging to the visually handicapped (blindness
and low vision) category were recommended. The said
recommendation did not show the list of candidates in order of merit,
thereby creating a room for fabrication in the matter relating to
reservation for the differently abled persons. As per the provisions of
Section 34, the State Government ought to have recommended the
names of 6 candidates in respect of the category of blindness & low
vision.
[3.4] The process of selection was very much in contravention with
the provisions of Article 14, 16 of the Constitution of India and the
provisions of the Act, 2016, as a result of which the petitioner had been
denied the appointment to the post of Lecturer in Manipuri. Hence, the
instant writ petition has been filed by the petitioner.
[4] The stand of the respondents as indicated in their affidavit
filed by the Dy. Secretary (Education/S), Government of Manipur is that
as per the OM dated 11-11-2009 issued by the Department of
Personnel & Administrative Reforms (Personnel Division), Government
of Manipur, the seats to be reserved for the differently abled persons in
W.P.(C) No. 114 of 2020 Page 3
the State was 3% of the vacancies in Group A, B, C and D posts with
1% each for the persons suffering from (i) blindness or low vision; (ii)
hearing impairment and (iii) locomotor palsy. The total 688 posts for
appointment to the posts of Lecturers on contract basis were
distributed to 22 subjects including 100 posts for the subject of
Manipuri. Since the appointment of 42 posts of different tribal dialects
had been deferred, the written test was conducted on 11th and 13th
May, 2018 in respect of 646 posts in 13 subjects. The OM dated 15-01-
2018 issued by the DOPT, Government of India for the reservation of
seats for the persons with benchmark disabilities reserving 4% seats as
defined in the Act, 2016, was adopted by the State Government only on
26-02-2020 and therefore, the OM dated 11-11-2009 issued by the
Department of Personnel & Administrative Reforms, Government of
Manipur being in operation, was applicable with the result that the
candidate belonging to PWD candidate could be considered for
appointment against 3% reservation and only 18 PWD candidates got
through written test and interview.
[5] From the pleadings as aforesaid, it is seen that the petitioner
is a differently abled person belonging to the category of blind or low
vision who applied for appointment as a Lecturer in Manipuri. As per
the OM dated 11-11-2009, in respect of direct recruitment, 3% of the
vacancies is reserved for the persons belonging to differently abled
person in Group A, B, C, and D posts with 1% each of them suffering
from (i) blindness or low vision; (ii) hearing impairment and (iii)
locomotor palsy. As per the stand of the State Government, out of 688
W.P.(C) No. 114 of 2020 Page 4
posts advertised for direct recruitment, the written test was conducted
only in respect of 646 posts. As many as 18 candidates belong to the
category of differently abled persons, were qualified in the tests. But it
is not clear as to how these 18 candidates were to be accommodated
in 13 subjects. There were 100 posts, so far as the subject of Manipuri
for which the petitioner applied, is concerned. If that be the case, there
were three seats available for the persons belonging to the category of
differently abled persons and that too, one seat each for the persons
suffering from (i) blindness or low vision; (ii) hearing impairment and (iii)
locomotor palsy. In other words, one person from each of the three
categories of persons, will have to be appointed as Lecturer in the
subject of Manipuri.
[6] The grievance of the petitioner is that although three seats in
the subject of Manipuri were reserved for the category belonging to
differently abled persons, the same have not been equally divided and
given to the three categories of differently abled persons. In other
words, one seat each will have to be given to the three categories of
differently abled persons but the same had not been done by the
respondents. Three seats which were reserved for the differently abled
persons in the subject of Manipuri, ought to have been given to the
three categories of differently abled persons and instead of doing that,
three seats have been given to two categories only, while denying a
seat to the third category. In order to support his contention, Ms. N.
Savitri, learned counsel appearing for the petitioner has drawn the
attention of this Court to the letter dated 25-11-2019 of the Under
W.P.(C) No. 114 of 2020 Page 5
Secretary (Edn/S), Government of Manipur addressed to the Director of
Education(S), Manipur conveying the approval for appointment of
Lecturers on contract basis. A list of selected candidates approved for
appointment on contract basis was enclosed therewith as Annexure-A.
Out of 70 selected candidates leaving aside the seats reserved for the
ST candidates, three candidates belonging to differently abled persons,
are found to have been selected at serial No.13, 16 and 61. The
contention of the learned counsel appearing for the petitioner is that as
the Act, 2016 came into force on 19-04-2017 and in terms thereof, an
OM dated 15-01-2018 came to be issued by the Government of India,
the question of adoption of the Act by the State Government would not
arise at all, for which she relied upon some of the decisions rendered
by the Hon'ble Supreme Court including one rendered in Rajasthan
State Industrial Development and Investment Corporation Vs.
Subhash Sindhi Co-operative Housing Society, Jaipur & ors, AIR
2013 SC 1226 and that the OM dated 11-11-2009 would be deemed to
have ceased to operate from 19-04-2017, the date on which the Act,
2016 came into force. It has further been submitted that out of three
candidates selected, two candidates are from the category of locomotor
palsy, while one from the category of hearing impairment and none
from the category of blindness or low vision which is in violation of the
OM dated 11-11-2009. Apart from the legal issue being submitted by
her, her contention on facts can be said to have some merit for the
reason that there is no averment in the affidavit filed on behalf of the
State Government as to how two persons of the same category have
W.P.(C) No. 114 of 2020 Page 6
been appointed as Lecturer in the subject of Manipuri, may be,
because there is no specific averment about it in the writ petition as
well. This contention of the counsel appearing for the petitioner is not
based on the averments made in writ petition. What have been stated
in the writ petition, are that out of six seats to be reserved for the
category belonging to blindness and low vision, only two had been
recommended and therefore, the name of the petitioner also ought to
have been recommended for the appointment. Be that as it may, the
document namely the letter dated 25-11-2019, mentioned hereinabove,
speaks for itself and as per the list of selected candidates enclosed
therewith in respect of the subject of Manipuri, the candidate at serial
No.16 belongs to the reservation category of UR(HI), while the
candidates at serial No.13 and 61 belong to the reservation category of
UR(OH) and OBC M(OH) respectively. The abbreviated terms "HI" and
"OH" used against the selected candidates are not defined in the OM
dated 11-11-2009, nor are they included in the list of disabilities in
respect of which the disability certificate is to be issued by the Institute/
Hospital as mentioned in the proforma certificate appended to the said
OM. Although the said abbreviated term "OH", no doubt, appears to
have referred to one of the categories of the differently abled persons
and in particular, the category of locomotor palsy, the same has not
been clearly spelt out in the selection list. But the fact remains that out
of the three seats reserved for the differently abled persons, one
candidate is selected against reservation category of UR(HI), while two
candidates are selected against the reservation category of UR(OH)
W.P.(C) No. 114 of 2020 Page 7
and OBC M(OH) which means that two candidates are selected against
the same category which is impermissible under the provisions of the
OM dated 11-11-2009. What the said OM provides, is that one
candidate shall be selected against each of the categories, which
appears to have not been done in the present case. Therefore, the
selection of candidates in respect of the subject of Manipuri appears to
be incorrect, so far as the application of the reservation of seats for the
differently abled persons in the subject of Manipuri is concerned.
[7] One aspect which needs to be considered by this Court at this
juncture, is the contention of the learned Government Advocate that the
appointment of the Lecturers on contract basis was for a period of one
year which has expired and therefore, there is no point of considering
the issue involved herein, to which it has been submitted by the
counsel appearing for the petitioner that the Lecturers appointed on
contract basis for a year, are being allowed to continue rendering their
services. However, no material has been placed on record by either of
the counsels appearing for the parties to show that either the Lecturers
are being allowed to continue rendering their services or their services
have been terminated on the expiry of the term of contract. Be that as it
may, the fact remains that the selection of candidates against the seats
reserved for the differently abled persons in respect of the subject of
Manipuri is illegal being violative of the provisions of the OM dated 11-
11-2009 issued by the State Government. However, if the term "OH"
refers to or is meant for the persons belonging to blindness & low vision
category, the petitioner may not have a good case, unless he secures
W.P.(C) No. 114 of 2020 Page 8
more marks than the two candidates who have been recommended for
appointment in the subject of Manipuri. It is the State Government only
which has to examine it and clarify the same to the petitioner, as the
recommendation made for appointment as Lecturer in various subjects,
is stated to have not been made in order of merit, as is evident from the
document itself. If the abbreviated term "OH" is meant for the category
of locomotor palsy, the petitioner is definitely entitled to his appointment
as Lecturer in the subject of Manipuri.
[8] In view of the above, the instant writ petition stands disposed
of with the direction that the Respondents shall consider the case of the
petitioner, in terms of the observations made hereinabove, for
engagement/ appointment as Lecturer in the subject of Manipuri on
contract basis against the seats reserved for the differently abled
persons and in particular, against the seat reserved for the persons
suffering from blindness or low visions. This exercise shall be done
within a period of one month from the date of receipt of a copy of this
judgment and order. If the selected candidates are still being allowed
by the State Government to continue with their contractual engagement
and at the same time, if the petitioner is found to be entitled to
engagement in the subject of Manipuri, an appropriate order shall be
issued in respect of the petitioner within two weeks after the expiry of a
month as mentioned hereinabove.
JUDGE
Dhakeshori
W.P.(C) No. 114 of 2020 Page 9
