Sofi Omer Rashid vs State Of Jammu And Kashmir & Ors

Ali Mohammad Magrey, J

In this petition, the petitioner has prayed for the grant of following relief(s) in his favour:

"That a writ of mandamus may be issued and the respondents may be directed to implement section 33 of the J&K Persons with Disabilities Act, 2018 (Erstwhile section 25 of Act, 1998), strictly in letter and spirit without any deviations with further direction that the posts which remain unfulfilled in the notification of 2015 be carried forward as per section 33 of JK persons with disabilities Act, 2018 and add them with the impugned notification issued in 2017.

That by issuance of a writ of Mandamus, this Hon'ble Court may be pleased to direct the respondents to consider and decide the representation/ complaint lodged by the petitioner before proceedings further.

That a writ of prohibition may be issued and the respondents may be prohibited from going further with the selection process till the genuineness/ authenticity of the certificates of the candidates shortlisted under Physically challenged category be ascertained so that the genuine candidates are not put to disadvantage like that of in notification issued in 2015.

That by issuance of writ of Mandamus, respondents may be directed to consider and appoint the petitioner against the post of Assistant Storekeeper cum clerk against the physically handicapped category with all consequential benefits and prohibited from going further with the selection process and first check the genuineness of the certificate of the candidates shortlisted under Physically challenged category so that the genuine candidates are not put to disadvantage like they were in notification issued in 2015."

The case of the petitioners, in nutshell, is that the petitioner has applied for the post of Assistant Storekeeper-cum-Clerk (Food, Civil Supplies & Consumer Affairs Department), Division Kashmir, advertised vide advertisement notification No.03/2017 under item No.01 and has been provisionally shortlisted for selection. Petitioner claims that he has been placed under handicapped category (Locomotor) at serial No.06 in RBA category and that the candidates from serial Nos. 1 to 5 are not entitled to the benefit of disability as they do not have the benchmark disability in terms of the Jammu and Kashmir Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1998. The petitioner pleads that he has also approached the Jammu & Kashmir Services Selection Board (for short the respondent Board) for considering his claim with reference to benefit of selection in RBA category by giving proper weightage to the disability under handicapped category, however, despite lapse of a considerable period of time, no action with respect thereto has been taken by the respondent Board constraining the petitioner to file the instant petition before this Court for the above stated relief(s).

When this matter was taken up on motion hearing, i.e., on 6th of February, 2019, this Court, while issuing notice to the respondents, directed the Services Selection Board to take decision on the representation of the petitioner and unless the said decision is taken, the selection shall not be finalized in the category under question.

The respondents, thereafter, filed two status reports; one dated 24th of September, 2019 and the other on 17th of October, 2019, stating therein that in compliance of the directions passed by this Court, the matter was taken up with the competent authority/ District Medical Boards, Srinagar, Budgam, Ganderbal and Pulwama for ascertaining the nature of disability/ validity and genuineness of the disability certificates issued in favour of the petitioner and other shortlisted candidates. The respondents have also stated that in order to expedite the requisite action in the matter and for finalization of selection for the post of Assistant Storekeeper-cum-Clerk, Divisional Cadre, Kashmir, advertised pursuant to advertisement notice No. 03/2017 dated 12th of May, 2018 (Item No.01), in a time bound manner, certain reminders were sent to the concerned Chief Medical Officers/ competent authorities through Special Messengers/ officials of the respondent Board, through fax and by Speed Post. It is also contended that the respondents are pursuing the matter vigorously with the concerned District Medical Boards who have issued the disability certificates in favour of the petitioner as well as in favour of the shortlisted candidates and that, on 3rd of October, 2019, the response has been received from the Chief Medical Officer, Ganderbal, vide communication dated 1st of October, 2019, however, the response from the other Medical Boards/ Chief Medical Officers is still awaited as on date.

The respondents plead that upon receipt of the requisite information from the other Medical Boards, they will examine the claim of the petitioner and, accordingly, finalize the selection for the post in respect of the physically handicapped category expeditiously.

A perusal of the pleadings on record brings it to fore that the Board, in pursuance of the directions passed by this Court, is in the process of considering the case of the petitioner and, in this behalf, the issue has been taken up with the District Medical Boards of Srinagar/ Budgam, Ganderbal and Pulwama for ascertaining the nature of disability/ validity and genuineness of the disability certificates issued in favour of the petitioner and other shortlisted candidates. It is also forthcoming from the record of the pleadings that the Chief Medical Officer, Ganderbal, vide communication dated 1st of October, 2019, has submitted his response to the respondent Board, but the response from the other Medical Boards is still awaited, thereby resulting in delay in the process of considering the claim of the petitioner. The respondent Board have also made it clear that upon receipt of the requisite information from the other Medical Boards, the claim of the petitioner will be considered and selection for the post in question finalized, accordingly.

In view of the aforesaid position obtaining in the matter, in my considered opinion, no useful purpose can be achieved by keeping the instant petition pending and same can be disposed of with a direction to the respondent Board to consider the claim of the petitioner in light of the response received by them/ to be received by them from the concerned District Medical Boards as regards the genuineness or otherwise of the disability certificates issued in favour of the petitioner and other shortlisted candidates and, accordingly, finalize the selection in question.

When asked, the petitioner, present in person before the Court, submits that he is not averse to the disposal of the Writ petition on the above terms, but his only concern is that the respondents, besides being directed to take the aforesaid process to its logical conclusion with utmost dispatch, may also be directed to afford an opportunity of hearing to the petitioner in the process of consideration of his claim by the respondents.

In the above background, the instant petition is disposed of with a direction to the respondent Board/ respondent No.4 herein to consider the claim of the petitioner in light of the response received by them/ to be received by them from the concerned District Medical Boards as regards the genuineness or otherwise of the disability certificates issued in favour of the petitioner and other shortlisted candidates and, accordingly, finalize the selection in question, of course, in accordance with the law and the rules governing the field and after affording a proper hearing to the petitioner. Let the aforesaid exercise be completed by the respondent Board as expeditiously as possible, preferably within a period of two months from the date the certified copy of this order is made available to them by the petitioner. The petitioner may, on his part, make available all the relevant documents in his possession before the respondent Board so as to facilitate an early decision in the matter.

Writ petition disposed of on the above terms, alongwith all connected.