Zaheed Ahmad vs D/o General Administration Ut Of J&k on 31 December 2024

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WP(C) No. 2165/2007 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/379/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court with following prayer: a) Certiorari quashing the selection list of pharmacist District Poonch issued by the respondent No.3 and published in the daily Excelsior on 17.3.2007. b) Mandamus commanding the respondents to give reservation to the handicapped category in the selection for the post of pharmacist; and c) With a further direction to the respondents to issue appointment order to the petitioner as pharmacist under handicapped category. d) Any other relief which this Hon'ble Court in the facts and circumstances of the case deems fit and proper be granted in favour of the petitioner.

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3. The facts of the case as averred by the petitioner in his pleadings, are as follows: - a) Vide advertisement notice No. 6 of 2004 dated 29.09.2004, Respondent No. 3 invited applications for filling up the posts/vacancies of pharmacist in District Poonch. b) The petitioner being eligible having qualification of Hr. Sec. Part II and diploma in Medial Assistants/Pharmacist and short- term course in computer education applied for the post of Medical Assistant/Pharmacist under the disability/handicapped category. In accordance with Section 22 of J&K Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act 1998, a handicapped person is entitled for reservation of 3% and according to the reservation Rules, a handicapped person shall get to the extent of 2% preferential treatment in each category class and grade with effect from 1996. Vide letter dated 27.9.2005, respondent No.3 sought clarification from the respondent No.2 with regard to the reservation to the handicapped category.

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c) The respondent No.2 sought the clarification and explanation from the respondent No.5 with regard to the reservation of the vacancies for the handicapped category vide letter dated 10.2.2006. d) Vide letter dated 17.2.2006, the respondent No.5 requested the respondent No.2 that 3% reservation for the category of disabled /handicapped may be deducted from the open merit category referred to the SSRB and finally the government through respondent No.2 vide letter dated 5.6.2006 requested the respondent No.3 to provide 3% Horizontal reservation to handicapped category out of the posts already referred. e) Respondent No.3 has issued the select list of pharmacist district Poonch which has been published in Daily Excelsior in its issue dated 17.3.2007. Being aggrieved, the petitioner is before this Court.

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4. The respondents no. 2 and 5 have filed their written statement wherein they have averred as follows: - a) In the year 2004, seventeen posts of Pharmacist in District Poonch were referred to Service Selection Board for making selection by giving roster point and break up as under. A. Open 10 posts. B. SC 0 posts C. ST 02 posts. D. RBA 03 posts. b) The Service Selection Board advertised these posts along with other categories of posts vide advertisement No. 6 of 2004 dated 29.09.2004. The petitioner in pursuance to this advertisement applied for selection but under handicapped category. The SSB vide letter dated 27.09.2005 took up the matter with the respondent no. 2 for seeking clarification regarding reservation to the handicapped category. The respondent No. 2 further sought clarification from the respondent no. 5 as to whether all categories were included

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while making reservation as per rules in force when posts were referred to Service Selection Board and why vacancy has not been kept reserved for handicapped category as there is 3% reservation for the said category from the year 1998. c) In pursuance of the letter of Respondent No. 2, Respondent No. 5 vide letter dated 17.02.2006 intimated that 3% reservation may be deducted from the open category posts referred to the SSB and in future the reservation will be kept in the said category. The respondent no. 5 vide letter dated 05.06.2006 requested the SSB to provide 3% horizontal reservation to the handicapped category out of the posts already referred as per the SRO issued by the Social Welfare Department. It is submitted that the answering respondent’s role remains nothing in this writ petition after the communication was sent to the SSB and therefore the averments made in the writ petition by the petitioner can only be replied by the said respondent.

5. The respondents no. 3 and 4 have filed their written statement wherein they have averred as follows: -

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a) Prior to filing of this Writ Petition, petitioner had filed a writ petition being SWP No. 416 of 2005 in which the respondents were put on notice and directed to file their replies. During the pendency of the writ petition, the process was concluded and select list was issued. Petitioner is claiming the benefit of HC category on the ground that he possesses a disability certificate annexed with the writ petition. From perusal of disability certificate, it is abundantly clear that petitioner has been diagnosed to be suffering from the following disability:- “Case of Post Polio Residual Paralysis of Lower Limbs with weakness of both ankles and shortening of (Left Lower Limb by 1½ )”. b) As per the provision of Government Order No. 62-SW of 2001 dated 13th March, 2001, amongst various types of disabilities, only Partially Deaf (PD) and One Arm (OA) disabilities qualify for consideration for selection to the post of Pharmacist in Health and Medical Education Department. Going by the aforesaid provisions, petitioner is not eligible for being

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considered against the said post. However, application form of the petitioner was entertained inadvertently and the petitioner was also interviewed under HC/Open Merit category. On consideration, petitioner was found to have secured 55.89 points in the process of selection but any advertant lapse contrary to the rules and norms, on the part of the answering respondents, does not confer any right on the petitioner to claim selection and consequent appointment against the said post under HC/Open Merit category in the presence of provisions of government order aforementioned dated 13th March, 2001. c) So far as the post of Pharmacist in Health and Medical Education Department is concerned, only persons with disabilities like Partially Deaf (PD) and One Arm (OA) alone are entitled to seek consideration under HC category. Since the petitioner is suffering from disabilities other than the aforementioned disabilities, as such, is not physically fit for the post and cannot claim the benefit of reservation provided to the category of HC.

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6. Heard learned counsel for the parties and perused the pleadings made by them.

7. In the present case, the petitioner is aggrieved by the Select list of Pharmacist district Poonch, issued by the Respondent No. 3, which has been published in Daily Excelsior in its issue dated 17.03.2007.

8. The contention of the learned counsel for the petitioner is that since 2004, the respondents are not giving any reservation to the disabled persons as per the reservation Rules of Jammu and Kashmir Persons and Disability (Equal Opportunity, Protection of Rights and Full Participation) Act, 1988. No reservation has been given to disabled persons till date.

9. Per contra, learned counsel for the respondents argued that the reservation is only provided to Partially Deaf (PD) and One Arm (OA) disabled persons. So far as the post of Pharmacist in the Health and Medical Education is concerned, petitioner does not have the disability aforesaid, as such, was not entitled to the benefit of reservation provided to HC persons. However, application form of the

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petitioner was entertained inadvertently and the petitioner was found to have secured 55.89 points in the process of selection but any advertant lapse contrary to the rules and norms, on the part of the answering respondents, does not confer any right on the petitioner to claim selection and consequent appointment against the said post under HC/Open Merit category in the presence of provisions of government order dated 13th March, 2001.

10. In the present case, it has been come to light that under Section 21 of the J & K Persons with Disabilities Act, 1998, the government has been empowered to identify the posts, for which the reservation under different types of disabilities under the handicapped category could be made. In this exercise of power, the government has come up with Govt. Order No. 62-SW of 2001 dated 13th March, 2001. So far as the post of Pharmacist is concerned in Health and Medical Education Department is concerned, only persons with disabilities like Partially Deaf (PD) and One Arm (OA) alone are entitled to seek consideration other than the aforementioned disabilities, as such, is not physically fit

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for the post and cannot claim the benefit of reservation provided to the category of handicapped.

11. Petitioner is claiming the benefit of Handicap category on the ground that he possesses a disability certificate annexed with the writ petition. From perusal of disability certificate, it is abundantly clear that petitioner has been diagnosed to be suffering from the following disability: - “Case of Post Polio Residual Paralysis of Lower Limbs with weakness of both ankles and shortening of (Left Lower Limb by 1½ )”.

12. As per the provision of Government Order No. 62-SW of 2001 dated 13th March, 2001, amongst various types of disabilities, only Partially Deaf (PD) and One Arm (OA) disabilities qualify for consideration for selection to the post of Pharmacist in Health and Medical Education Department. Going by the aforesaid provisions, petitioner is not eligible for being considered against the said post as he does not possess requisite disability certificate, as per provisions.

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13. As per judgment of Union of India & Anr. v. National Federation of the Blind & Ors., it was held as under: “37. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfil its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy. 38. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the establishment concerned will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in Group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of Store Attendant in Group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against

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the post of “Farash”, Group D post identified for that category of disability. It was argued on behalf of the Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the 5 (2013) 10 SCC 772 9 above interpretation of the section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment.” (Emphasis Supplied)”

14. Since the posts of Pharmacist in Health and Medical Education Department is not identified to be filled up from amongst the candidates having “Case of Post Polio Residual Paralysis of Lower Limb with weakness of both ankles and shortening of (Left Lower Limb by 1½”), the appellant could not be appointed against such category of post, even though he has appeared in the selection process. As it is clear that reservation is only provided to Partially Deaf (PD) and One Arm (OA) disabled persons, the petitioner herein

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is not eligible for appointment against the post of “Pharmacist” in Health and Medical Education Department in terms of the advertisement. The petitioner cannot claim appointment against the post reserved for Partially Deaf (PD) and One Arm (OA) disabled persons only for the reason that he has “Case of Post Polio Residual Paralysis of Lower Limb with weakness of both ankles and shortening of (Left Lower Limb by 1½)” when such post was not reserved for the “Pharmacist” in Health and Medical Education Department.

15. Keeping the above facts in view, the TA lacks merit and deserves to be dismissed.

16. Accordingly, the TA is dismissed.

17. However, there shall be no orders so as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit /