PARVEEN LATA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Petitioner has approached this Court praying for issuance of a writ of mandamus directing the respondents-authorities to consider and appoint the petitioner, who belongs to an Orthopaedically Handicapped category by converting the posts, which fall although in the handicapped category but to the visually impaired and blindness or low vision category or hearing impairment, which had been unfilled and on conversion of those posts into that of Locomotor Disability category and petitioner be issued the appointment letter to the post of Math Mistress.

(2.) It is the contention of learned counsel for the petitioner that as per the advertisement which had been issued, 39 posts were kept reserved for the disabled persons. The sub categorization was that for the orthopaedically handicapped there were 13 posts, for visually handicapped it was 13 posts and for hearing impaired 13 posts, totalling 39. The posts which have been filled are 13 orthopaedically handicapped, 3 visually handicapped and 4 hearing impaired leaving behind 19 posts, which are unfilled. The prayer primarily of the petitioner is for converting these unfilled 19 posts into Orthopaedically Handicapped category and consider the claim of the petitioner for appointment as Math Mistress in the light of the Punjab Government Instructions dated 02.05.1997 (Annexure P-2), which was in continuation and reiteration of the basic/initial Instructions dated 24.11.1982. He asserts that on the basis of these Instructions, the inter-changeability of the posts is permissible irrespective of the fact whether the said vacancies have been carried forward for even a single year. He asserts that since the initial instructions are of the year 1982, the said Instructions would be protected by the provisions of Section 72 of The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as '1995 Act'). He on this basis contends that the provisions of Section 36 of the 1995 Act shall have no bearing in the light of the Instructions dated 24.11.1982 and the respondents would have the jurisdiction and power to convert the posts into the Orthopaedically Handicapped category and fill up the post of Math Mistress. Prayer has thus been made for allowing the present writ petition by issuing a direction to the respondents to do the same.

(3.) Learned counsel for the respondents, on the other hand, has relied upon the provisions of Section 36 of the 1995 Act to contend that the provisions of Section 36 mandate that in case of non-availability of a suitable person with disability of a particular sub category, the same has to be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available then resort to inter-changeability of the said posts could be done and not prior thereto. She, therefore, contends that the prayer of the petitioner cannot be accepted. That apart, she asserts that the Instructions which had been issued in the year 1982, on which reliance has been placed by the counsel for the petitioner, would be contrary to the provisions of the statute and the said benefit cannot be granted to the petitioner as the provisions of the statute would override the Instructions. Reliance has also been placed upon the Division Bench judgment of this Court in LPA No.1898 of 2017 titled as Hardeep Singh v. State of Punjab and another decided on 14.03.2016, wherein this aspect and a similar claim of a candidate has been, on consideration, rejected. It has also been pointed out that the Special Leave Petition preferred against the said judgment has also been dismissed by the Supreme Court in Special Leave to Appeal (Civil) No.33021 of 2016 vide order dated 08.07.2019.