Anil Kumar vs State of Uttarakhand and Another

Barin Ghosh, C.J.—The writ petition was filed in 2004 contending that in breach of the law governing the field, no disabled person was appointed, despite the advertisement clearly held out that there is reservation for disabled persons. It was contended that no such appointment was given in view of a letter dated 21st July, 2003, written by Additional Secretary, Uttarakhand, to Secretary, Public Service Commission. This writ petition was permitted to be dismissed for default on 19th November, 2010.

An application has been filed for restoration of the writ petition and for recalling the order of dismissal dated 19th November, 2010. Since there was some delay in filing the restoration application, an application has also been filed for condonation of delay in filing the restoration application. The reason for permitting the writ petition to be dismissed for default is that the Advocate engaged by the Petitioner was busy in another court at the time when the writ petition was taken up for consideration. That is no ground or just reason for permitting a writ petition to be dismissed for default. Since that is the reason for dismissal, there is no reason, far less any reasonable reason, for condonation of delay in filing the application for restoration. The Advocate, for whose default dismissal of the writ petition took place, should be deemed to have come to know about the same the moment dismissal took place or soon thereafter. There was no just reason for him not to communicate the Petitioner of his default on the same date or within a reasonable period there from and, thereupon, the Petitioner to approach for recalling the order of dismissal within time. We are, therefore, of the view that no ground, far less any reasonable ground, has been made out either for condonation of delay in filing the restoration application or for restoring the writ petition by recalling the order of dismissal. We are, at the same time, of the view that the Petitioner suffered because his chosen Advocate sank him in the middle of the sea for no just reason. In such situation, we would have dismissed both the applications with exemplary costs. We have, however, restrained ourselves from doing so only on the ground that, if we do not allow the restoration application and consider the writ petition, there will be such infraction of law by the Additional Secretary, Uttarakhand, that the same would become beyond retrieval. We, accordingly, allow the application for condonation of delay as well as the application for restoration.

In the letter dated 21st July, 2003, written by the Additional Secretary, Uttarakhand, to the Secretary, Public Service Commission, Uttarakhand, it has been stated that in respect of the recruitment, with which we are concerned, there shall be no reservation for disabled / handicapped persons. The Secretary to the State of Uttarakhand as well as the State of Uttarakhand, itself, had no such power. The State of Uttarakhand and all its officers, including all its secretaries, are bound by law made by appropriate competent law making authority. The Central Government has made a law known as the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The State of Uttarakhand had no authority to refuse to follow and apply the provisions of the said law thus made by the Central Government. In terms of the law, thus made, unless the State Government has, by a notification, exempted any establishment or department of the State of Uttarakhand, the State Government is bound to identify posts in which handicapped persons can be appointed and to give appointment to handicapped persons to the extent of not less than 1% each from blindness or low vision, hearing impairment, locomotor disability or cerebral palsy.

In the counter affidavit, State Government has purported to contend that it has not yet been able to identify posts in establishments, which can be reserved for persons with disability. Because the State Government has not discharged one of its legal obligations on time, the same cannot, in law, permit the State Government to deny a right given by an appropriate legislature to a class of persons. We, accordingly, strike down that portion of the communication dated 21st July, 2003, referred to above, which purported to deny reservation for disabled / handicapped persons in relation to appointments, being the subject matter of the writ petition.

In view of our pronouncement as above, the Public Service Commission, even if it has made recommendations for all the posts, shall once again consider and make recommendation to the State Government of those handicapped people, who, otherwise, should have been recommended, but for the said letter dated 21st July, 2003. The above exercise must be completed by the Public Service Commission as quickly as possible, but not later than three months from the date of service of a copy of this order upon it. After the recommendation is, thus, made, State Government shall discharge its obligation in terms of the provisions of the said Central enactment in relation to posts in question and, for that matter, it shall be open to the State Government either to create additional posts or to dispense with the services of those persons, who could not be recommended but for the said letter dated 21st July, 2003.

The writ petition, accordingly, stands disposed of.