Veena Devi vs State Of H.P. & Ors.

“3.

That the case of the petitioner is not similar to CWPOA No. 1077/2019. The Petitioner in CWPOA No. 1077/2019 was appointed against the backlog vacancies for Persons With Disability thus, the Petitioner was held entitled for all protection as envisaged under 1995 Act. It is further submitted that at the time of appointment of the petitioner, the 1998 Rules were in force. Since, these rules did not prescribe contract appointment as one of the modes of recruitment, appointment of petitioner made on contract basis cannot be upheld Petitioner had a right to be appointed strictly in accordance with 1998 Rules, which prescribed recruitment on regular basis only. But the present petitioner was appointed under Recruitment & Promotion Rules 2014 & 2017, wherein the provision of contract appointment was (available. Therefore, the Petitioner cannot take advantage of judgment passed in CWPOA No. 1077/2019. Hence, the benefit regarding regular appointment instead of contract appointment under disabled quota cannot be granted to the petitioner.”

4. Consideration

“ Preliminary Submission

1.

That the petitioner was appointed as Junior Office Assistant (JOA IT) against reserved vacancies of specially. abled Persons in the Education Department and joined on 15.09.2022 on contract basis under Himachal Pradesh, Department of Personnel, Junior Office Assistant (Information Technology) Class-III (Non-Gazetted) Ministerial Services, Common Recruitment and Promotion Rules, 2017. The services of the petitioner was regularized on 23.04.2025. It is further submitted that the selection of the candidates was done as per Rules. They were offered appointment on contract basis as per R&P Rules, 2017 applicable to them…..”

“Reply on merits

2.

That in reply to the contents of this para, it is respectfully submitted that the petitioner was appointed as JOA (IT) against reserved vacancies of specially-abled Persons in the Education Department and joined in the year 15.09.2022 on contract basis under Himachal Pradesh, Department of Personnel, Junior Assistant (Information Technology) Class-III (Non-Gazetted) Ministerial Services, Common Recruitment and Promotion Rules, 2017. The selection of the candidates was done as per Rules. She was offered appointment on contract basis as per R&P Rules, 2017 applicable to her. Further, the services of the petitioner was regularised vide order dated 23.04.2025…..”

“8.

Another question is whether appointment of persons with disabilities, on contract basis, can be said to be in consonance with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, ‘1995 Act’)? In my considered view the answer has to be in negative.

“9.

The 1995 Act has been enacted with most laudable object to provide equal opportunities to the persons with disabilities. Section 32 of the Act provides for identification of posts, which can be reserved for persons with disabilities whereas, Section 33 provide for reservation of such posts, which reads as under:-

“33.

Reservation of posts.—Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from— (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

10.

Thus, there is a clear mandate of law to every appropriate government to appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each is mandatorily required to be reserved for persons suffering from hearing impairment, blindness and locomotor disability or cerebral palsy.

11.

The Hon’ble Supreme Court of India in Union of India vs. National Federation of the Blinds & others, 2013 (10) SCC 772 interpreted the purpose of 1995 Act as under:-

“24)

Although, the Disability Rights Movement in India commenced way back in 1977, of which Respondent No. 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993-2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz., the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a Special Employment Exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to nonavailability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections.

25)

It is the stand of the Union of India that the Act provides for only 3% reservation in the vacancies in the posts identified for the disabled persons and not on the total cadre strength of the establishment whereas Mr. S.K. Rungta, learned senior counsel (R-1) appearing in person submitted that accepting the interpretation proposed by the Union of India will flout the policy of reservation encompassed under Section 33 of the Act. He further submitted that the High Court has rightly held that the reservation of 3% for differently abled persons in conformity with the Act should have to be computed on the basis of the total strength of a cadre and not just on the basis of the vacancies available in the posts that are identified for differently abled persons, thereby declaring certain clauses of the OM dated 29.12.2005 as unacceptable and contrary to the mandate of Section 33 of the Act.”

13.

Thus, keeping in view the object of 1995 Act there is no hesitation to hold that the purpose of reservation of posts under Section 33 of 1995 Act will not be fulfilled by making temporary, ad-hoc or contract appointments. Such an interpretation will make the very purpose of 1995 Act otiose. The reservation mandated under Section 33 of the Act will necessarily mean to provide employment, which has permanency attached to it and that can only be by way of regular appointment.”

“4.

The aforesaid claim of petitioners has been denied to them by the respondents, primarily on the ground that the Recruitment and Promotion Rules in vogue for the respective posts of petitioners, at the time of their respective appointments, provide for two modes of appointments, one by appointment on contract basis and other on regular basis. Since, the initial appointments of petitioners was in accordance with the relevant Recruitment and Promotion Rules and as such they cannot be granted the status of regular employee from the date of their initial appointments. It is also the case of the respondents that no exception can be carved in favour of the petitioners only because they have been recruited under 3% quota for disabled persons.”

“6.

The question that arise for determination in all these petitions is whether the appointments of persons with disability, on contract basis, can be said to be in consonance with the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995?

7.

The above noted question has already been decided in negative by this Court vide judgment dated 22.08.2022 passed in CWPOA No. 1066 of 2019, titled as Nitin Kumar vs. State & Anr. After discussing the relevant aspect on the issue, this Court has held as under….

8.

The cases of the petitioners in the instant petitions are squarely covered by the aforesaid judgment passed by this Court in Nitin Kumar's case and as such no exception can be carved out in their cases. Therefore, the petitions are entitled to be considered as regular employees from the date of their initial appointments. The reasons assigned in the aforesaid judgment titled as Nitin Kumar vs. State of H.P. & Ors. (supra) shall mutatis mutandis apply to the cases of the petitioners.”

“185.

Depending upon nature and mode of initial contract appointment, there are three types of verdict of the Courts.

186.

In first category of the employees they had been appointed without following the procedure prescribed in Recruitment and Promotion Rules or any Policy formulated by the State with fair and transparent procedure for appointment. In their cases Courts have categorically declared that they are not entitled for any benefits of past contract service, even after regularisation.

187.

In second category, the employees were engaged on contract basis in pursuance to the Policy of the State, duly notified, providing method of appointment in fair and transparent manner, but without following the procedure provided in Recruitment and Promotion Rules. This category of employees, after regularisation, have been extended certain service benefits like counting of contract period service for pensionary benefits and grant of increments for that period on notiona basis for calculating pension, but this set of employees have not been granted any benefit of seniority.

188.

Third category of employees is where employees, though appointed on contract, but by following the procedure prescribed in statutory Recruitment and Promotion Rules, after advertising the post and undergoing the rigour of the said process by competing in open market in the test/interview conducted by the prescribed agency, i.e. Public Service Commission. The process adopted for their appointment was identical to the procedure prescribed and adopted for regular appointment and, therefore, they were held entitled for all service benefits including seniority like regular appointees, but after regularisation.

189.

The Courts, after regularisation of the employees, but not before the regularisation, being not only similarly situated, but identically situated with respect to eligibility, process of recruitment through prescribed agency and facing of rigour of overcompetetive exam conducted by the Recruitment Agency prescribed in Recruitment and Promotion Rules and nature of offer of appointment, had extended all service benefits including seniority to such employees. It is apt to record that this category of employees were selected and appointed after issuing advertisement in consonance with Recruitment and Promotion Rules, but one set of employees was offered regular appointment but other set of employees was offered appointment on contract basis in terms of Column 15-A of the Recruitment and Promotion Rules. Not only in Taj Mohammad’s case, but in all other matters, every aspect has been taken into consideration, including Column No. 15 A of Recruitment and Promotion Rules, which contains the terms and condition of the contract service.

190.

In any case, plea of sub silentio and per incuriam does not justify the enactment of imugned Act. Merits of the judgments have already been upheld by the Apex court. Further this issue is not relevant to present lis, but competency of the respondents-State to enact a Statute to overrule the judgments, is the subject matter of present lis, otherwise also plea that judgment in Taj Mohammad’s case is sub silentio and per incuriam is also not sustainable, as the Courts have taken into consideration entire Recruitment and Promotion Rules including Column 15-A thereof. The Courts have not interfered with the terms and conditions of the contract service, but on regularisation of such service, appointees have been held entitled for certain service benefits for their past contract service followed by regular service without interruption. During currency of contract service, none of the Courts had directed to grant any service benefits to such employees over and above the terms and conditions holding the Field in the in the subject matter.

202.

Accordingly, in view of above discussion and considering the ratio of law laid down by the Apex Court, the impugned Act is quashed and set aside.

203.

In view of quashing of the impugned Act, all consequential action, omission and commission of the respondents-State and its functionaries, based on the impugned Act, are declared illegal, unconstitutional and nullify, and resultantly orders/rejection/directions, withdrawal, denying benefits or proposing recovery of already granted reliefs, based on the impugned Act, in conflict with the mandate of the Court are also quashed and set aside and competent authority(ies) is directed to ensure extension of benefits to the employees in terms of judgments passed by the competent Courts, latest by three months from today by issuing appropriate orders, if so required, in consonance with the Constitutional mandate and verdict of the Court(s).”