WPSS/430/2019 of SMT. SANGEETA RAWAT Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 1020 of 2021 (S/S)

Neema Goswami and another …….....Petitioners

State of Uttarakhand and others …..... Respondents

Mr. Shakti Singh, Advocate for the petitioners.

Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.

With

Writ Petition No. 430 of 2019 (S/S)

Smt. Sangeeta Rawat …….....Petitioner

State of Uttarakhand and another …..... Respondents

Mr. Devendra Singh Bohra, Advocate for the petitioners. Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.

With

Writ Petition No. 442 of 2019 (S/S)

Smt. Kamlesh Negi …….....Petitioner

State of Uttarakhand and another …..... Respondents

Mr. Devendra Singh Bohra, Advocate for the petitioners. Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.

With

Writ Petition No. 443 of 2019 (S/S)

Smt. Hemlata …….....Petitioner

State of Uttarakhand and another …..... Respondents

Mr. Devendra Singh Bohra, Advocate for the petitioners. Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.

With

Writ Petition No. 454 of 2022 (S/S)

Smt. Archana Dhulia

…….....Petitioner

State of Uttarakhand and another …..... Respondents

Mr. Devendra Singh Bohra, Advocate for the petitioners. Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

common question of law arises in these petitions; therefore, they are being decided by this common judgment.

2. Reference to the parties and the documents in this judgment is made with regard to Writ Petition (S/S) No.1020 of 2021 unless otherwise expressly so stated.

3. The respondent no.1, Director General of Medical Health and Family Welfare, State of Uttarakhand published an advertisement for recruitment to the post of Auxiliary Nurse Midwife (Swastha

Karyakarta) (for short, “ANM”) in the year 2016. Total 440 posts were notified with the following bifurcation:-

The petitioners applied to the post. Their

names were reflected in the merit list, but they were not offered appointments. All the petitioners belong to the General Category. The respondents made appointments against 20 vacancies alone and 33 vacancies were not filled up. The petitioners made representations, but the department did not move ahead. Subsequently, it was revealed that these 33 unfilled posts of ANM was to be filled up by the persons with disability (for short, “the PD”

5. It is the case of petitioners that, in fact, the posts of ANM is not identified under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, “the Act”). The Government Order dated 25.03.2011, does not identify the posts of ANM as that may be filled up by the PD. Not only this, it is the further case of the petitioners that when 33 posts of the General

Category were not filled up, the matter was discussed in high level meeting chaired by the respondent no.1, Director General of Medical Health and Family Welfare, State of Uttarakhand on 04.01.2019 and under Agenda 1, it was admitted in that meeting that mistake had been committed by not filling up 33 posts of ANM. The petitioners have also placed on record the noting of the Department of Personnel, which revealed that the respondents had committed mistake by not filling up the remaining 33 posts of ANM.

6. State has filed its counter affidavit. In its counter the State has admitted that 3% quota for the PD, in the selection have been extended to the various services, pursuant to the provisions of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex. Servicemen) Act, 1993.

7. It is the case of the respondent State that by Government Order dated 25.03.2011, posts were identified to be filled by the PD. The post of ANM is not identified for filling up by the PD. But, on the other hand, it is the case of the respondents, that the post of the

Health Supervisor has been so identified to be filled up by the PD, which is promotional post to the ANM.

8. The State in its counter affidavit has stated that the filling up of 33 posts for General Category candidates will be initiated only after the decision of the Government and incorporation of necessary amendment in this regard in the Uttarakhand Medical Health and Family Welfare, Health Worker and Health Supervisor, Males and Female Service Rules, 2016.

9. Heard learned counsel for the parties and perused the record.

10. Learned counsel for the petitioners would submit that the post of ANM has not been identified under Section 32 of the Act. Therefore, all the 53 posts, as advertised, were to be filled up by the General Category candidates. They could not have been kept vacant for being filled up by the PD. It is argued that the Health Department had also admitted its fault, but they did not proceed further in the matter.

11. On the other hand, learned State counsel would submit that the post of Health Supervisor is also to be filled up by the PD, which is promotional post for ANM. It is argued that unless ANM are taken from the

PD the reservation for PD to the posts of Health Supervisor, which is promotional post, cannot be operated. It is also argued that the State will make amendment and thereafter, will proceed further to fill up the vacancies. In support of his contention, learned State counsel placed reliance on the principle of law, as laid down in the case of Union of India and another vs. National Federation of the Blind and others, (2013)10 SCC 772 and State of Kerala and others vs. Leesamma Joseph, (2021)9 SCC 208.

12. In the case of National Federation of the Blind (supra) the issue was quite distinct. In that case, the Union of India had identified the post in the year 2005 and had placed an argument that the reservation has to be computed and applied only with effect from 2005 and against the vacancies to be filled up thereafter. This argument was repelled by the Hon’ble Supreme Court. In paragraph nos. 30, 31 and 32, the Hon’ble Supreme Court observed as hereunder:-

“30. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] , the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] , the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filledup from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the interdependence of Sections 32 and 33 viz. identification of posts and the scheme of reservation, rejected this contention and held as follows : (SCC pp. 633-34, paras 25-27, 29 & 31)

“25. … The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such submission would amount to accepting situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Groups and posts in the IAS was undertaken after the year 2005 is not of much substance.

26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, and posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.

29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions

of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.

31. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the special leave petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court.”

pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] that Section 32 of the Act is not precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33.

32. Apart from the reasoning of this Court in Ravi Prakash Gupta [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] , even reading of Section 33, at the outset, establishes vividly the intention of the legislature viz. reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible.”

13. In the case of Leesamma Joseph (supra), the question no.2 posed by the Court, as to whether filling up of the vacancies under Section 33 of the Act is dependent upon identification of post under Section 32 of the Act and the answer is given in affirmative. In para 21 the Hon’ble Supreme Court first posed the question and thereafter, answered it, which is as herunder:-

“II. Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?

21. On plea of the learned Amicus Curiae, which we unhesitatingly accept, there can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as tool to frustrate the benefits of reservation under Section 33. In fact, identification of posts for purposes of reservation had to take place immediately after the 1995 Act. resistance to such reservation is obvious from the delaying tactics adopted by most of the Government authorities in truly implementing the intent. It thus shows that sometimes it is easier to bring legislation into force but far more difficult to

change the social mindset which would endeavour to find ways and means to defeat the intent of the Act enacted and Section 32 was classic example of the same. In Union of India v. Ravi Prakash Gupta [Union of India v. Ravi Prakash Gupta, (2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] also, this Court mandated the identification of posts for purposes of reservation. Thus, what is required is identification of posts in every establishment until exempted under proviso to Section 33. No doubt the identification of the posts was prerequisite to appointment, but then the appointment cannot be frustrated by refusing to comply with the prerequisite. This view was affirmed by larger Bench of three Judges in Union of India v. National Federation of the Blind [Union of India v. National Federation of the Blind, (2013) 10 SCC 772 : (2014) 2 SCC (L&S) 257] .”

Admittedly, the State had notified the

vacancies for General Category candidates for ANM. The vacancies were 53. 20 posts have been filled up, but 33 posts have not been filled up. They are vacant.

15. It is also settled law that even selected

candidate has no absolute right to get appointment. It is the discretion of the employer whether to recruit or not to recruit depending upon the circumstances. But, again the decision appointing or not appointing has to qualify the judicial scrutiny. There should be reasons for taking such actions. It is settled law that selected candidate does not get vested right to get appointment. In the case of Commissioner of Police and another vs. Umesh Kumar, (2020)10 SCC 448. In para 19 the Hon’ble Supreme Court observed as hereunder:-

“19. The real issue, however, is whether the respondents were entitled to writ of mandamus.

This would depend on whether they have vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB v. Malkiat Singh [Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22 : 2006 SCC (L&S) 235] , this Court held that the mere inclusion of candidates in selection list does not confer upon them vested right to appointment. The Court held : (SCC p. 26, para 4)

“4. … the High Court [Malkiat Singh v. Punjab SEB, 1999 SCC OnLine P&H 75 : ILR (1999) 2 P&H 329] committed an error in proceeding on the basis that the respondent had got vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] which reads : (SCC pp. 50-51) ‘7. It is not correct to say that if number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up allor any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrarymanner. The decision not to fill up the vacancies hasto be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the

candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488] , Neelima Shangla v. State of Haryana [Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122 : 1985 SCC (L&S) 174] .’”

(emphasis supplied)”

16. It may be re-iterated that “The decision not

to fill up the vacancies has to be taken bona fide for appropriate reasons.” It cannot be arbitrary decision.

17. In the instant case, what has been stated by the State is that in future the post of ANM will be identified, under Section 32 of the Act, to be filled up with the PD and the remaining 33 vacancies shall be filled up thereafter.

18. It is admitted that in meeting, headed by the respondent no.1, Director General of Medical Health and Family Welfare, State of Uttarakhand held on 04.01.2019 (Annexure No.8), it was resolved that the appointment to the post of ANM should be undertaken pursuant to the Government Order dated 25.03.2011, which identified the posts which were to be filled up by the PD. In it, the post of ANM is not included. This is not

disputed in paras 11 and 12 of its counter affidavit filed by the State.

19. The noting of the Department of Personnel, according to the State is merely an opinion. The question is, as to what final action has been taken by the Government on the noting of the Department of Personnel?

20. It is true that the noting also does not give any right to the petitioners. The facts remains that in his meeting president over by the respondent no.1 on 04.01.2019, it was resolved under Agenda 1, that the post of ANM was earlier included in Government Order to be filled up by the PD by way of Government Order dated 14.03.2005. But, it was amended by the Government Order dated 10.11.2010 and 25.03.2011 and now the post of ANM has been deleted from the identified post.

21. Now, the law as is stood on the date of publication of notice was that the post of ANM was not identified under Section 32 of the Act for appointment by the PD. This has been accepted by the State Government. The record also confirmed that, in fact, earlier the post of ANM was identified to be filled up by the PD. State has not come up with any study that the

post of ANM has to be filled up by the PD for the specified reasons. The qualified candidates may not be denied appointment. The denial of the appointment of the qualified candidates cannot be said to be reasonable. It is arbitrary. Therefore, this Court is of the view that these petitions deserve to be allowed.

22. The petitions are allowed.

23. The respondents are directed to proceed for filling up of the remaining 33 posts of the ANM in accordance with the advertisement issued by them within two months from today.

Sanjay

(Ravindra Maithani, J.) 09.11.2022