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Judgment
Sunil Thomas, Member J
The applicant is a PGT (Commerce) in Jawahar Navodhaya Vidhayalaya, Kottayam. He suffers from 52% physical disability. Navodhaya Vidhayalaya Samithi (NVS) issued Annexure A2 notification dated 2.8.2019 inviting applications for the Limited Departmental Competitive Examination (LDCE) for promotion to the post of Principal and Vice Principal. 62 posts were notified which included 48 unreserved posts, 10 for SC candidates and 4 for ST candidates. Thereafter, Annexure A2 was published and examination was conducted. The applicant, who had also submitted his application participated in the examination. When the list of candidates who succeeded in the examination was published, the applicant stood much below in rank.
According to the applicant, Parliament had enacted Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995 (in short, the PWD Act), which provided reservation in public employment in favour of physically handicapped persons. The question whether the issue of reservation was applicable at the induction level and whether is to be followed in promotions had come up for consideration before the Hon’ble High Court of Delhi in Union of India v. Jagmohan Singh [WP(C) No. 11818 and 13627-28 of 2004]. By Annexure A6 judgment it was held that it equally applies in the case of promotions also. This was reiterated subsequently by the judgment of the Supreme Court in Rajeev Kumar Gupta & Ors. v. Union of India & Ors. [(2016) 13 SCC 153]. Thereafter, it was reaffirmed in Annexure A15 judgment in Siddaraju v. State of Karnataka & Ors. [(2020) 3 Scale 99]. The same issue was again reaffirmed in Annexure A16 by the Supreme Court in State of Kerala & Ors. v. Leesamma Joseph [LL 2021 SC 273]. Hence, the issue is now settled.
According to the applicant, the post of Vice Principal in schools is an identified post evidenced by the notification issued by the Government as Annexure A14. However, in breach of the Supreme Court direction and the Constitutional mandate, no reservation was provided in the case of Annexure A1 notification. Stating this, Annexure A10 representation was submitted. Since it was not responded, the OA was filed. The reliefs sought in the OA are as follows:
“1. Declare that the respondents are bound to grant reservation to physically disabled persons in the cadre of Vice Principal and to direct the respondents enforce such reservation for disabled persons in terms of the mandate of Annexure A7 judgment of the Hon’ble Supreme Court by setting apart two vacancies notified as per Annexure A2 for persons with disabilities for the post of Vice Principal.
Call for the records leading to the issue of Annexure A2 and set aside Annexure A2 to the extent the same is not in conformity with the mandate and obligation to enforce reservation for disabled persons as provided for in the Rights of Persons with Disabilities Act, 2016.
Direct the respondents to consider the applicant for appointment as Vice Principal in Navodaya Vidyalaya as against two vacancies due for persons with disabilities in view of the statutory obligation to reserve 4% of vacancies under the Right of Persons with Disabilities Act, 2016.”
Respondents appeared and filed a detailed reply statement traversing the various allegations in the OA.
By virtue of the authoritative pronouncement of the Supreme Court evidenced by Annexures A7, A15 and A16, there cannot be any dispute that the PWD Act applies in the case of the applicant’s institution also. There is also no dispute that in Annexure A1 notification, posts were not reserved for PWD candidates.
In the detailed reply statement it was contended that the Navodhaya Vidhayala Samithi is an autonomous institution and is governed by the various circulars issued by the Government of India and that regarding Group-A posts, PWD Act is not applicable. It was further pleaded that reservation to physically disabled is possible only in direct recruitment and that in the case of post of Principal and Vice Principal which is filled by promotion there cannot be any direct recruitment and also that the PWD Act is not applicable. However, the judicial mandate as affirmed in the earlier decisions does not permit such a contention. Evidently in the light of the Supreme Court verdict that the statute operates in a wider spectrum and applies in promotion also, the State and its authorities shall give effect to it and has to be followed, which is an inescapable mandate.
The learned counsel for the applicant vehemently contended that by virtue of the judicial pronouncement it is the Constitutional mandate of every institution to apply PWD Act. However, by virtue of Section 33 of the PWD Act, appropriate Government is authorized to identify posts in the establishment which can be held by the respective category of persons with benchmark disabilities in respect of vacancies reserved in accordance with the provisions of Section 34. It also mandates constitution of an expert committee with representation of persons with benchmark disabilities for identification of such posts and the appropriate Government shall undertake periodic review of the identified posts at an interval not exceeding three years. A feeble contention was set up that that in the case of Navodaya Vidyalaya the number of posts in each respective category of persons with bench mark disability has not been identified. It was further contended that element of direct recruitment was not applicable for the post of Vice Principal as per Recruitment Rules of Samiti. Acordingly, no vacancy was earmarked for physically disabled candidates. The Governing Body of Samiti has not yet notified the said Act in its institutions, it was pleaded. However, Annexure A14 is the relevant pages of Group A posts identified to be reserved for persons with disabilities. Item No. 715 therein is School Vice Principal. The categories of disabled suitable for the job are also identified.
According to the learned ACGSC, thus the Government has specifically identified the posts in the establishment, the posts in which the PWD Act is applicable and also the respective category of persons with benchmark disabilities in respect of whom vacancies are reserved in accordance with Section 34 of the PWD Act. Since the respondents have a legal and statutory obligations to give effect to the Act, there is no requirement of a declaration as sought in prayer (i).
Having regard to the fact that Annexure A1 notification is not in accordance with the directive of the Supreme Court and the Constitutional mandate, necessarily the selection process is liable to be interfered.
However, according to the learned ACGSC there are reasons to decline such a relief. In the reply statement filed by the respondents, it is stated that Annexure A2 notification was dated 2.8.2019. By Annexure A5 application the applicant requested to participate in the LDCE. The computer test was fixed on 3.10.2019. 1,305 candidates including the applicant appeared for the examination. The DPC was held on 21.11.2019, which recommended the select panel of candidates. It shows that the applicant was qualified and was ranked 744. It is stated in the reply statement that considering the number of vacancies and the rank of the applicant there is no chance of applicant being recommended for appointment to the above post. The OA was filed only much later after finding that the applicant did not satisfy and was not successful in the examination. In spite of above none of the persons who participated in the examination or at least persons who are likely to be affected by the present process of selection, are made parties. Without them in the party array and without giving them an opportunity of being heard no relief affecting them can be granted. OA is liable to be rejected on that ground, it was contended.
In the course of hearing it was pointed out that a subsequent notification was issued dated 29.6.2022 inviting applications for the LDCE for promotion to the posts of Principal and Vice Principal. In that, in compliance with the provisions of the PWD Act, posts were notified for the vacancies of Principal and Vice Principal under the Act. Hence, there need not be any direction to the respondents to implement the statute.
The question whether a contention that appropriate posts in the establishment which can be held by respective category of persons with bench mark disabilities in respect of vacancies in accordance with the provisions of Section 34 have not been identified or that the total number of posts have not been earmarked or that the Rules have not been framed for providing reservation to those categories falling under the PWD Act, should stand in the way of granting the benefit of the Act was the subject matter of consideration before the Hon’ble Supreme Court in Leesamma Joseph’s case (supra). The Hon’ble Supreme Court had considered four specific aspects viz.; whether the 1995 Act mandates reservations in promotions for persons with disabilities, whether reservation under Section 33 of 1995 Act is dependent upon identification of posts as stipulated by Section 32, whether in the absence of a provision in the Rules for reservation in promotion for PWD, whether promotion can be denied to a PwD, and lastly whether the relief was liable to be granted to a person for promotion despite the fact that the applicant was not appointed in the PWD quota initially. Answering point No. (1) it was held relying on the earlier decisions in Rajeev Kumar Gupta’s case (supra) that once post is identified, it must be reserved for PwD irrespective of the mode of recruitment adopted by the State for filling up of the said post and a direction was issued to the Government to extend 3% reservation to PwD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. It was held by the Supreme Court that the requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre. Answering the question whether the reservation under Section 33 was dependent upon identification of posts as stipulated by Section 32, it was held that what was required was identification of posts in every establishment, until exempted under proviso to Section 33. Though the identification of the posts was a prerequisite to appointment, the appointment cannot be frustrated by refusing to comply with the prerequisite. The Supreme Court relied on the 3 Judges bench decision in Union of India v. National Federation of the Blind [(2013) 10 SCC 772]. Dealing with the question whether in the absence of the provision in the Rules for reservation in promotion for PwD, it was held that once the post is identified, the logical conclusion would be that it would be reserved for PwD who have promotion, as it flows from the legislation and this is the basis of the mandate of the decision in Rajeev Kumar Gupta’s case (supra) and in Siddaraju’s case (supra).
The authoritative pronouncement of Supreme Court clinches the whole issue involved in the present case. None of the contentions set up by the respondents to resist the claim of applicant is sustainable in the light of the above decision. Necessarily the applicant is entitled for the relief, on the strength of PWD Act.
This Tribunal had passed an interim order on 11.12.2019 in MA No.1208 of 2019, by which the respondents were directed to keep one vacancy of Vice Principal either at JNV, Thiruvananthapuram or at JNV, Kottayam unfilled till the disposal of OA was considered. It emerges that one post is kept vacant.
In the light of the above discussion, we are inclined to allow the Original Application in part by directing the respondents to ascertain as to whether the applicant is the eligible PWD candidate among the candidates who have been successful and after ensuring that he is otherwise qualified to be appointed to the vacant post, appropriate orders shall be issued appointing him in the vacancy which is kept vacant. Necessary orders shall be passed within a period of one month from the date of receipt of a copy of this order.
Original Application is allowed to the above extent. No costs.