2013 Supreme(Raj) 1509

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Sangeet Lodha, J.
Gosai Ram - Appellant
Versus
State of Rajasthan and Others - Respondent
S.B. Civil Writ Petition No. 10982 of 2012.
Decided On : 11-07-2013

Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 mandates that if any vacancy belonging to a differently able category cannot be filled up due to non-availability of a suitable person with a disability, such vacancy shall be carried forward in the succeeding recruitment year and may be filled by interchange among the three categories of differently able persons.

Headnote:

PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 - SECTION 36 - RAJASTHAN PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS & FULL PARTICIPATION) RULES, 2011 - RULE 37 - APPOINTMENT OF TEACHER GR. III (LEVEL-II) IN SUBJECT SANSKRIT - FILLING UP OF VACANCIES RESERVED FOR DIFFERENTLY ABLED PERSONS - INTERPRETATION OF SECTION 36 OF THE ACT OF 1995 - APPLICABILITY OF RULE 37 OF THE RULES OF 2011 - ENTITLEMENT OF THE PETITIONER TO APPOINTMENT ON THE POST.

Fact of the Case:

The petitioner, a person with disability belonging to the Locomotor Disability (LD)/Cerebral Palsy (CP) category, applied for appointment as a Teacher Gr. III (Level-II) in the subject Sanskrit. Out of 7 posts reserved for differently able persons, 3 were to be filled from Blind/Low Vision (LV) category, 2 from LD/CP category, and 2 from Hearing Impairment category. The petitioner secured 161.32 marks, while the cut-off marks for the LD/CP category was 163.6 marks. The respondents filled up 3 posts from the LD/CP category, 1 from the Hearing Impairment category, and 1 from the Blind category, leaving 2 posts vacant. The petitioner challenged the appointment of a candidate from the General category to one of the vacant posts, arguing that the vacancy should have been filled by interchange among the three categories of differently able persons as per Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the Act of 1995).

Finding of the Court:

The court held that the respondents were obligated to fill up the vacant posts from among the candidates belonging to other differently abled categories, as per the mandate of Section 36 of the Act of 1995. The court found that the respondents had filled up one of the vacant posts from the General category, which was illegal and arbitrary. The court also held that Rule 37 of the Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Rules, 2011 (the Rules of 2011) did not operate against the mandate of Section 36 of the Act of 1995.

Issues: 1. Whether the respondents were obligated to fill up the vacant posts from among the candidates belonging to other differently abled categories, as per the mandate of Section 36 of the Act of 1995? 2. Whether the respondents' action in filling up one of the vacant posts from the General category was illegal and arbitrary? 3. Whether Rule 37 of the Rules of 2011 operated against the mandate of Section 36 of the Act of 1995?

Ratio Decidendi: The court relied on Section 36 of the Act of 1995, which provides that if any vacancy belonging to a differently able category cannot be filled up due to non-availability of a suitable person with a disability, such vacancy shall be carried forward in the succeeding recruitment year and may be filled by interchange among the three categories of differently able persons. The court also noted that Rule 37 of the Rules of 2011 only dealt with the maintenance of rosters and did not operate against the mandate of Section 36 of the Act of 1995.

Final Decision: The court allowed the petition and directed the respondents to offer appointment to the petitioner on the post of Teacher Gr. III (Level-II) in the subject Sanskrit against the post belonging to the Hearing Impairment category, which remained unfilled on account of non-availability of the candidate belonging to the said category. The court also directed the respondents to pay the petitioner Rs. 10,000/- as costs.