KASHISH BABBAR Vs. STATE OF PUNJAB AND ORS.

JUDGEMENT

(1.) The petitioner holds the Three Years Diploma in Civil Engineering from Thapar Polytechnic College, Patiala. He has a Certificate dated October 03, 2011 to that effect. The petitioner is also a visually challenged person and suffers disability to the extent of 40% duly certified by the District Handicapped Medical Board, Muktsar and falls within the definition of disability in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act"). Therefore, he qualifies for consideration for appointment within the quota earmarked for physically handicapped persons in public employment. The Department of Punjab Water Supply and Sanitation invited applications inter alia for recruitment to the post of Junior Engineer (Civil) for which the 3rd respondent-Centre for Development of Advanced Computing (C-DAC) was nominated to draw merit from amongst the applicants and make its recommendations to the respondent department. The advertisement was issued on December 15, 2011 in the daily issue of Jagbani. A total of 55 posts were advertised out of which 27 were meant for the General category, 14 for the SC category, 7 for BC category, 4 posts for Ex-Serviceman, one post for Freedom-Fighter and 2 posts for Handicapped persons. Indisputably, the petitioner was eligible to apply for the post which he did. C-DAC made the selection through written test. In the advertisement, it was recognized that the reservation policy of the Government of Punjab issued from time to time would apply. The written test was conducted on May 06, 2012 and the petitioner appeared for the test. Thereafter, a draft list of selected candidates as per roster points was computed as well as the draft waiting list (DWL) of each category was displayed by the Department on its official website. The name of the petitioner figures at Sr. No. 1 in the DWL of Handicapped Category, whereas, the name of the 4th respondent Lakhbir Singh figures at Sr. No. 2 in the Waiting List. The candidate shown as selected is one Prabhjot Singh under the Handicapped Category of low vision. One person namely Kuldeep Singh has been shown to be appointed in the Physically Handicapped quota from the source of Loco-motor disability. The petitioner was called by the Department by a letter dated June 20, 2012 to appear a week thereafter on June 28, 2012 for checking his documents to be brought in original. These were duly checked after which a Final Selection List (FSL) was put on the official website. In the FSL, Kuldeep Singh has been shown appointed under Locomotor/Vision and his merit number figures at Sr. No. 14. At Sr. No. 45 of the FSL, Prabhjot Singh whose name figured in the Draft Selection List has been shown absent at the time of scrutiny of documents and has thus left the race. Therefore, his name was not recommended. The Selection List shows that the name of the petitioner was not recommended as he obtained marks less than 17% i.e. 16.25% out of 100 marks (mentioned 16.75% in the State's reply) in the written test. Consequently, the 4th respondent - Lakhbir Singh who was shown at Sr. No. 2 of the DWL under the Handicapped category has been shown to be selected and appointed under the Locomotor/Vision Category. The List is placed at Annexure P-8. It may be noticed that out of the two posts reserved for disabled persons were one each for visually handicapped and the other for Locomotor Disabled persons. The advertisement is silent as to bifurcation of the two advertised posts in the Physically Disabled category. However, the petitioner would go to the Punjab Government Circular letter dated May 02, 1997 to demonstrate the mode of distribution of 3% reservation for persons with disabilities in direct recruitment. These are (i) blindness or low vision (ii) hearing impairment (iii) Locomotor disability or cerebral palsy which are mentioned in Clause 3 of the Policy Circular issued in pursuance of the Act. It is a fortuitous circumstance that no candidate applied under the Hearing Impaired Category and, therefore, it is reasoned that the two advertised posts were to be distributed between the remaining category (i) and (iii) above i.e. between the visually disabled and the Locomotor disabled persons. Clause 5 of the Policy Circular lays down that the percentage of reservation at 3% should be implemented by means of 100 point roster and vacancies falling at Points 11, 40 and 71 are earmarked for the above three categories respectively. The reservation runs by the policy circular through all four classes of public service. The reservation in the circular is traced to Section 33 of the Act which deals with reservation of posts. Section 33 breaks up the reservation under the Act of not less than 3% meaning 1% of the three recognized disabilities for purposes of public employment. It is not disputed by the respondent-Department that the Policy Circular is not to be applied to an advertisement which notifies only two posts without mentioning its break up or distribution category-wise. Clause 7 of the Policy Circular guards against diversion of vacancies to the other categories, General and Reserved, Horizontal or Vertical. In absence of an eligible, available and qualified candidate from the present recruitment process any vacancy left unfilled is to be carried over for a period up to three recruitment years. More specifically, the grievance in the petition is that a post meant for low vision candidates has been passed on to Locomotor Disabled persons which is not permissible.

(2.) The department issued an advisory on April 09, 2012 regarding the present recruitment of 55 Junior Engineers in the Water Supply and Sanitation Department, Punjab. Clause 7 bases selection on marks obtained in the written test. There was no prescribed plinth of percentage achieved in the test as a cut off for eligibility. The written test was conducted after the letter was issued on May 06, 2012. The documents of candidates were scrutinized on June 28, 2012 and the result was declared on July 20, 2012.

(3.) Having failed to secure appointment, the petitioner has approached this Court for issuance of a writ of mandamus to the respondents to offer him appointment in the category of Low Vision/Physically Disabled person.