SATISH CHANDRA KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) AN Act known as the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was enacted by the Central Government to give effect to the proclamation on the Full Participation and Equality of the Public with disabilities in the Asian and Pacific Region. Section 60 of the said Act does prescribe for appointment of 'Commissioner for Persons with disabilities' by the State Government. Eligibility, which was prescribed for the appointment, is that he should have special knowledge or practical experience in respect of the matter relating to rehabilitation. To carry out the aim and objectives of the said Act, a Rule in terms of Section 73(i) of the said Act, was framed as Jharkhand Disabled Persons (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2003. Rule 46 of the said Rules does prescribe that one who is having proper and special knowledge in the field with respect to disabled persons, is eligible to be appointed as Commissioner Disability. In terms of the said Rule the petitioner, who was the Directorcum Secretary of a nonGovernment Organization namely 'Buddha Saikshnik vikas Parishad' working in the field of rehabilitation with various kinds of disabilities recognized by the Rehabilitation Council of India (A Statutory Body under the Ministry of Social Justice and Empowerment), was appointed as Disability Commissioner vide Notification dated 11/09/2007, but tenure of the post was not fixed. However, the State Government in exercise of its power as enshrined under Rule 46 (Kha) of the said 2003 Rules, came out with resolution no. 2000 dated 19/02/2008, whereby the tenure of the petitioner was fixed for 3 years. Subsequently, vide resolution no. 1471 dated 05/10/2009, it was extended to 5 years. One of its clauses Clause 2(Kha) of the resolution no. 200 dated 19/02/2008 (Annexure3) does stipulate that the tenure of the person appointed as Disability Commissioner can be extended for further 3 years if his services are found to be satisfactory. By virtue of the subsequent resolution no. 1471 dated 05/10/2009 (Annexure4), tenure of 3 years was extended to 5 years. In that event, the petitioner who had initially been appointed f80or 3 years, was allowed to continue to work for 5 years. Meanwhile, when the tenure of 5 years of the petitioner was about to be completed, the Chief Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India appreciating the work done by the petitioner in the field, as commendable, made recommendation vide its letter dated 25/07/2012 (Annexure7) for his reappointment. Acting upon that letter, the Minister concerned initiated a proposal for reappointment of the petitioner on the post of Disability Commissioner. On such proposal, the Departmental Secretary put a note that in order to keep transparency it would be better to go for process of selection in stead of reappointing the petitioner. When the matter came up before the Chief Secretary, he agreed to the proposal given by the Departmental Secretary. Meanwhile, the petitioner's tenure came to an end on 12/09/2012 and, hence, he relinquished the post on that day. Upon relinquishing the post by the petitioner, the Director, Social Welfare was assigned with the job of Disability Commissioner on 11/10/2012 as a time gap arrangement. Subsequently, the then Chief Minister vide its order dated 04/01/2013 approved the proposal of the Minister concerned for reappointment of the petitioner for another term. When the matter came to the Departmental Secretary, he put a note that since the term of the petitioner has come to an end on 12/09/2012 itself, it would be quite appropriate to go for a fresh appointment. The Chief Secretary having approved the said proposal, asked him to place the matter before the Government for review of earlier decision. Accordingly, when the matter was placed before the Advisor of the Governor, he agreed to the proposal to go for fresh appointment by way of selection process by advertising the post. Meanwhile, the Secretary, Social Welfare, was assigned to look after the work of the Disability Commissioner also.

(2.) THE stand, which has been taken by the State is that in terms of the provision as enshrined under Article 16 of the Constitution of India, there should be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State and, therefore, the appointment on the post of Disability Commissioner should have been made under a Rule through the process of the selection, but when the proposal was mooted out to appoint the petitioner on the post of Disability Commissioner, it was objected to by the then Chief Minister by putting note that first the rule be framed and then the appointment be made through selection committee but it seems that the then Chief Minister on being requested by the Minister concerned, reviewed its earlier decision and approved the selection of the petitioner on the post of Disability Commissioner, initially for 3 years and then for 5 years and, thereby, the mandate of the Constitution as enshrined in Articles 13, 14 and 16 was never followed. While the tenure of the petitioner was about to come to an end, a proposal was mooted out by the concerned Minister for his reappointment but by the time approval could have been accorded on the said proposal by the Chief Minister, the term of the petitioner came to an end on 12/09/2012 and, thereby, the concerned Secretary came with the proposal for review of the earlier order so that procedure as is being adopted in any other employment, be adopted keeping in view the mandate of the Article 16 of the Constitution of India. That proposal was accepted by the Advisor of the Governor and, thereby the decision taken by the then Chief Minister on 04/01/2013, for reappointment of the petitioner was rendered as nullity.

(3.) MR . Rajiv Ranjan, learned counsel appearing for the petitioner submits that after the petitioner was appointed the tenure of the post was fixed as 3 years as per the resolution dated 12/02/2008. However the term was extended to 5 years as per the resolution dated 05/02/2009 and the rest of the terms and conditions as were there under the resolution dated 19/02/2008 remained intact and, thereby, Clause 2 (Kha) of the resolution no. 20 dated 19/02/2008, prescribing for reappointment of the Disability Commissioner if the service is satisfactory, was always in force. In terms of that Clause and also in view of the recommendation made by the Chief Commissioner for persons with Disabilities, Government of India, to the effect that the services rendered by the petitioner is worth appreciable, a proposal was mooted out by the Minister concerned for reappointment of the petitioner which got approval by the then Chief Minister on 04/01/2013, which is not being given effect to on the premise that the State Government has come up with a resolution relating to the eligibility, terms and tenure of the Disability Commissioner, but that memorandum as per the stand of the State has come up later than the process initiated for reappointment of the petitioner and, thereby, that memorandum cannot be given effect to and under the circumstances, the authority be directed to come up with notification of reappointment of the petitioner in terms of the resolution dated 19/02/208 read with resolution dated 05/10/2009.