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2017 Supreme(Tri) 150
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Shri. Prabir Datta, son of Batu Krishna Datta – Petitioner
Versus
The State of Tripura, represented by its Secretary-cum-Commissioner to the Department of G.A (P&T) and Others – Respondents
W.P(C) No.1166 of 2016
Decided On : 07-02-2017
For the Petitioner:Mr. A. Bhowmik, Advocate
For the Respondent:Mr. T.D. Majumder, G.A, Mr. T. Debbarma, Advocate
The judgment established the need for a balanced approach in applying reservation rules to posts earmarked for Persons with Disabilities, emphasizing the interlocking reservation and the imperative to provide greater opportunities to PWDs.
Headnote:
Reservation - Tripura Civil Service Recruitment - Persons with Disabilities Act, 1995, Section 33
Fact of the Case:
The petitioner, an aspirant for Tripura Civil Service, Grade-II, challenged the recruitment advertisement, arguing that the reservation rule cannot be applied to posts earmarked for physically challenged persons under Section 33 of the Persons with Disabilities Act, 1995.
Finding of the Court:
The court found that the process followed by the respondents did not conform to the provisions of Sections 32 and 33 of the said act. It held that the impugned advertisement, concerning Persons with Disability (PWDs), could not sustain the scrutiny of law and ordered a fresh advertisement to fill the vacancies or identified posts for PWDs.
Issues: The issues revolved around the application of reservation rules to posts earmarked for physically challenged persons and the conformity of the recruitment process with the provisions of the Persons with Disabilities Act, 1995.
Ratio Decidendi: The court held that reservation for backward classes cannot be applied to the identified posts for PWDs before selection and recruitment. It emphasized the need for interlocking reservation and a fine balance between administration requirements and providing greater opportunities to PWDs.
Final Decision: The writ petition was allowed, and a fresh advertisement was ordered to be issued for the identified posts for PWDs, ensuring all eligible PWDs can apply and participate in the selection process.
Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned G.A. appearing for the respondents No.1 & 2 and Mr. T. Debbarma, learned counsel appearing for the respondent No.3.
2. The petitioner is an aspirant to get recruitment to Tripura Civil Service, Grade-II has challenged the Tripura Public Service Commission’s advertisement No.04 of 2016, whereby the applications are invited in the prescribed form from the bonafide citizens of India for selection to Tripura Civil Service, Grade-II and Tripura Police Service, Grade-II. According to the petitioner, he is a physically challenged person having Low Vision. Otherwise, the petitioner has all the requisite qualifications to participate in the said selection process but in the advertisement No.04 of 2016 dated 01.05.2016, hereinafter referred to as the impugned advertisement, while giving the details of the available post under different categories, the following entry has been made:
Under Scheduled Tribe (ST) category [PH 1 ST Locomotor or Low Vision + PH 1 ST Locomotor]. Overall distribution of the posts/vacancies for Tripura Civil Service, Grade-II as made is : Scheduled Caste (SC)-06, ST-11, Unreserved (UR)-13 i.e. total 30 posts whereas for the Tripura Police Service, Grade-II the posts are disturbed as: SC-03, ST-05 and UR-07 i.e. total 15 posts. The posts/vacancies reserved for physically challenged person [2 Nos.] have been earmarked for ST category. Those posts or vacancies have been so earmarked by applying the reservation rule and those 2(two) posts are part of the total 11 (eleven) Nos. of posts reserved for ST category candidates. According to the petitioner, the reservation rule cannot be applied on the posts or vacancies reserved for the physically challenged persons. For purpose of filling up of the posts earmarked for the physically challenged person in two categories as provided under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 33 of the said Act provides as under:
“33. Reservation of posts Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from—
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”
3. has been urged that the reservation rule cannot apply on the posts or vacancies earmarked for the physically challenged persons in terms of Section 33 of the said Act. But after selection, if it is found that the posts/vacancies earmarked for the physically challenged person, someone from SC & ST category has been selected then the said person shall be adjusted against reserved category post vertically.
4. A. Bhowmik, learned counsel appearing for the petitioner has submitted that by the notification under No.F.23(7)GA(P&T)/98(Vol.II) dated 16.11.2012 the General Administration (Personnel & Training) Department had directed to identify the posts to be reserved under the said Act. Even in that notification, there is no direction to apply the reservation rule on the identified posts/vacancies but on a previous order under G.O. No.17 dated 31.03.2001, it has been provided that 100 Point Roster has to be modified by way of amendment for extending 100 Point Roster to 400 points to accommodate reservation for the physically challenged persons. It has been further provided in
