Back
2015 Supreme(J&K) 26
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
N. Paul Vasantha kumar & Dhiraj Singh Thakur, JJ.
Anjeel Kumar - Petitioners
Vs.
State of J&K - Respondent
LPASW No. 163 OF 2014
Decided on: 09.03.2015
Advocate Appeared:
Mr. Abhinav Sharma, Advocate.
Mr. Gagan Basotra, Sr. AAG for R-1.
Mr. K. M. Bhatti, Advocate for R-2 & 3
Bureaucratic delay in identifying posts for physically challenged persons cannot be a ground to deny their appointment, as mandated by the Jammu and Kashmir Persons with Disabilities Act, 1998.
Headnote:
Physically Handicapped - Junior Engineer (Civil) Grade-II - Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, Sections 21, 22 - The court discussed the provisions of the Jammu and Kashmir Persons with Disabilities Act, 1998, particularly Sections 21 and 22, which mandate the identification of posts for persons with disabilities and reservation of vacancies for them. The court emphasized that bureaucratic delay in identifying the posts cannot be a ground to deny appointment to deserving physically challenged persons. The court referred to several judgments, including those of the Supreme Court, to support its interpretation of the Act and held that the appellants were entitled to succeed in their appeal.
Fact of the Case:
The appellants sought directions to the Jammu and Kashmir Services Selection Board to recommend candidates for the post of Junior Engineer (Civil) Grade-II from the physically handicapped category. The Selection Board failed to earmark posts for physically handicapped candidates, leading to the appellants filing a writ petition.
Finding of the Court:
The court found that the appellants were entitled to selection under the physically disabled category, as mandated by the Jammu and Kashmir Persons with Disabilities Act, 1998. The court held that bureaucratic delay in identifying the posts cannot be a ground to deny appointment to deserving physically challenged persons.
Issues: The main issue was whether the appellants were justified in demanding their selection under the physically disabled category for the post of Junior Engineer (Civil) Grade-II, considering the availability of vacancies and the provisions of the Jammu and Kashmir Persons with Disabilities Act, 1998.
Ratio Decidendi: The court's decision was based on the interpretation of Sections 21 and 22 of the Jammu and Kashmir Persons with Disabilities Act, 1998, which mandate the identification of posts for persons with disabilities and reservation of vacancies for them. The court also considered previous judgments, including those of the Supreme Court, to support its interpretation of the Act.
Final Decision: The court set aside the order of the Single Judge and allowed the appeal, directing the respondents to consider the candidature of the appellants as per Section 22 of the Act and issue selection orders within four weeks. The 1st respondent was directed to appoint the appellants within four weeks from the date of the selection order.
N. Paul Vasantha kumar, C.J.
1. This Letters Patent Appeal is filed against order made in SWP no. 2247/2011 dated 21.11.2014 wherein the appellants and three others have sought for directions to the Jammu and Kashmir Services Selection Board to recommend eleven candidates for the post of Junior Engineer (Civil) Grade-II from amongst the candidates belonging to Handicapped category pursuant to advertisement notice No. 08 of 2010 dated 24.12.2010 and consequently consider and select the appellants against those posts. The learned Single Judge dismissed the writ petition.
2. The writ petition was originally filed by seven persons and only four persons filed the Letters Patent Appeal.
3. The brief facts, necessary for disposal of this appeal, are as follows.
4. The Jammu and Kashmir Services Selection Board ( for brevity the Selection Board?) issued an advertisement notice No. 08 of 2010 dated 24.12.2010 inviting applications for 357 posts of Junior Engineer (Civil) Grade-II for the Public Works (R&B) Department among other posts. The qualification prescribed was three years diploma in Civil Engineering from Government recognized institute/ Indian University Degree in Civil Engineering or AMIE Section ( A&B) India. The posts were divided in the following categories:- OM: 203 SC: 29 ST: 36 RBA: 71 ALC: 11 OSC: 07 Total: 357 3% reservation was provided to the physically handicapped persons in terms of Order No. 62-SW of 2001 dated 13.03.2001. All the appellants, who possess three years diploma course in Civil Engineering and all are physically handicapped either by upper limb or lower limb deformity, applied for the said posts. The candidates were short listed by the Selection Board and a provisional select list of 326 candidates was published and the appellants could not get birth in the said select list. The appellants contended that out of 357 posts notified, only 326 candidates were selected leaving 31 posts under various categories as unfilled and out of 357 posts, 10 posts were to be filled up from the category of physically handicapped persons in view of 3% reservation meant for the said category. As per Section 22 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, 3 percentage of vacancies from amongst persons with blindness, low vision, hearing impairment or locomotor disability or cerebral palsy are to be selected. In the notification the Selection Board failed to earmark 10 posts of the candidates belonging to the physically handicapped category, hence the appellants along with three others, as stated supra, filed the writ petition before this Court with the above said prayer.
5. The writ petition was opposed by the Selection Board, stating that the total vacancies for physically handicapped persons came to 10 and in terms of the advertisement the candidates suffering from disability of partially deaf alone were eligible for the posts. As the appellants did not conform to the nature of disability in terms of the Government order issued in Order No. 62-SW of 2001 dated 13.03.2001, they were not found eligible for selection in the post of Junior Engineer (Civil) Grade-II, although four other candidates were found eligible in the said category. Merely because the appellants applied and participated in the interview that will not confer any right to seek their selection and appointment and the vacancies under the said category could not be filled up for want of eligible candidates. It is also contended that a Division Bench of this Court in the decision reported in 2009 (2) JKJ 48 (HC), (Jyotsna Mengi v. Chairman, J&K PSC and others) directed the Government to identify the posts for all the three categories for filling up the vacancies under the physically challenged quota and the Government issued Order No. 231-SW of 2011 dated 22.12.2011 identified the posts and the said identification having been made after the advertisement was issued i
