HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.7598 of 2010 (O&M) Date of Decision: 26.08.2011 **** Ranjit Kaur & Ors. . . . . Petitioners VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. JS Gill, Advocate for the petitioner(s) Ms. Sudeepti Sharma, DAG Punjab **** SURYA KANT, J. (ORAL) (1). This order shall dispose of CWP Nos7598, 13764, 13747, 14629 & 14726 of 2010 as common questions of law and facts are involved in these cases. For brevity, the facts are being extracted from CWP No.7598 of 2010. (2). The Department of Rural Development and Panchayats, Government of Punjab issued an advertisement in the year 2001 to fill up a backlog of 51 posts (which were later on increased to 108) comprising Sevadars, Clerks, Veterinary Pharmacists etc. in the reserved category of physically-challenged persons. (3). The petitioner(s) applied in response to the above-stated advertisement for one or the other post claiming themselves to be physically-challenged persons suffering CWP No.7598 of 2010.doc - 2 – from more than 40% permanent disability. The petitioner(s) were selected and given appointments on regular basis in the year 2001. The Department received several complaints against the above-stated selection and on consideration it scrapped the selection and terminated the services of all the 108 appointees on 2nd August, 2002. The aforesaid termination orders were successfully challenged before this Court in a bunch of writ petitions including CWP No.13783 of 2002 which were allowed by a Division Bench vide judgement dated 15.03.2004 with a direction to reinstate the terminated employees though liberty was granted to the competent authority to take fresh action in the matter. (4). The petitioner(s) and other appointees were thereafter served with show cause notices and after giving opportunity of hearing their services were again terminated on 22.03.2006. (5). The above-stated orders of ‘terminating services’ were again challenged before this Court in CWP No.7561 of 2006 and during its pendency, the State Government constituted “Buttar Committee” to scrutinize the selection record and submit a report. The Committee found the selection process to be in order qua 65 persons CWP No.7598 of 2010.doc - 3 – who were accordingly re-instated, leaving 43 affected employees whose selections were found tainted. (6). The writ petition challenging the second termination order dated 22.03.2006 qua left out 43 employees, including the petitioner(s), was accordingly dismissed. (7). The aggrieved 43 employees preferred LPA No.53 of 2008 which was disposed of by a Division Bench of this Court vide order dated 22.01.2009, the operative part whereof reads as follows:- “Learned counsel for appellants submitted that in the instant LPAs cases of appellants (who are physically handicapped) have been rejected not on a serious ground like charges of corruption, dishonesty or irregularity, but on account of procedural defects. Learned counsel prayed for permission to withdraw these appeals as also the writ petitions with liberty to approach the Govt. afresh to explain the procedural defects and for a fresh consideration. Learned State counsel, on instructions from Mr. Mewa Singh, Under Secretary to Rural Development Department Punjab and Mr. Baljit Singh, Senior Assistant, RDE-5 Branch, who are present in Court stated that the State Govt, would have no objection if such representations are CWP No.7598 of 2010.doc - 4 – submitted for fresh consideration with proper explanation. Thus in terms of prayer, the writ petitions as well as the LPAs are permitted to be withdrawn. Resultantly, the impugned judgement would have not effect on the rights of the appellants. If such representations are made, as prayed for, the same shall be decided on merits within three months. We would like to make it clear that these appeals and writ petitions in so far as they relate to such appellants who have been granted relief vide the order dated 22.5.2008 are rendered infructuous and disposed of.” (Emphasis applied) (8). The petitioners and other affected employees made representation(s) pursuant to the above-reproduced order which was partly accepted reinstating 8 more employees. In this manner, out of 108, only 37 including the writ- petitioner(s) were left out. (9). The aggrieved employees/writ-petitioner(s) have again approached this Court through these proceedings. (10). The respondents have filed their reply/affidavit and while opposing the petitioners’ prayer, the only adverse material cited against them which finds mentioned in para 9 of the reply is to the following effect:- CWP No.7598 of 2010.doc - 5 – “That in compliance to the aforesaid orders, the representations of the petitioners were considered by the respondent No.2 and the same were rejected on 19.5.2009 as on the scrutiny it was found that the petitioner No.1 made a cutting on the application form vide which the word “Clerk” was created in the column of “name of post”. Petitioner No.2 applied for two posts i.e. veterinary pharmacist or Sewadar, that the petitioner No.3 applied for the post of Peon and Mali-cum-Chowkidar, petitioner NO.4 applied for the post of Peon but with the hand writing of some body else after cutting made it Mali-cum-Chowkidar, petitioner No.5 applied for the post of Clerk in his hand writing and some body else entered Veterinary Pharmacist and petitioner NO.6 applied for the post of Peon, but after making cutting made it Mali- cum-Chowkidar.” (Emphasis applied) (11). Since the petitioner(s) have alleged discrimination and have claimed parity with those who have been retained in service, the respondents have also attempted to justify their action by issuing ‘show cause notices’ dated CWP No.7598 of 2010.doc - 6 – 27.07.2011 (Annexure R1) to some of the private respondents. (12). I have heard learned counsel for the parties at some length and perused the record. (13). There is indeed no quarrel that the petitioners are suffering from more than 40% permanent disability of one or the other nature. The fact that the petitioner(s) are ruralite and belong to the poor sections of the society is also impliedly admitted. (14). The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is a legislative attempt to integrate with and bring the specially-challenged persons to the mainstream. (15). One can candidly acknowledge that the petitioner(s) must have made desperate attempts to secure a source of their livelihood and with this anxiety some of them might have applied for more than one posts being fully eligible as per their academic qualification(s), and in this process might have also made some ‘cuttings’/over-writing in the application forms. The question is whether such ‘cuttings’ or submission of ‘application forms’ for more than one post per se rendered the selection process tainted? (16). The answer, in my considered view, has to be in the negative. Three fundamental considerations ought to CWP No.7598 of 2010.doc - 7 – have been kept in view, namely: (i) Whether or not the candidates were physically-challenged? (ii) Whether such candidates possessed the requisite prescribed qualifications? and (iii) Were they considered for one or the other post along with other eligible candidates and placed in the merit list? (17). No fault could be found with the selection process and/or the consequential appointment of a candidate if he satisfied these three ingredients. As has been noticed above, the respondents have not found any other irregularity or illegality in the selection process except that some of the petitioners applied for more than one post or one of them made cuttings in the application form to show that he had applied for the post of Clerk. (18). The composition of Selection Committee or its competence to make the recommendations, the existence of the duly sanctioned vacant posts and/or the deficiency/backlog in the quota of physically-challenged persons are also the admitted facts. (19). The so-called irregularities noticed by the respondents would not render the selection process vitiated by fraud, extraneous considerations or inconsistent with the mandate contained in Articles 14 & 16 of the Constitution. The irregularities noticed above do not go CWP No.7598 of 2010.doc - 8 – to the root of the matter and were liable to be overlooked being trivial in nature. The services of the petitioner(s) belonging to a ‘special’ class for whom the Authorities need to have special compassion, ought not to have been terminated on these small ‘pretexts’. (20). For the reasons afore-stated, the writ petition is allowed and the order dated 25.02.2010/04.03.2010 (Annexure P2) is hereby quashed and the petitioner(s) are ordered to be re-instated in service with all consequential benefits. CWP No.13747 of 2010 (O&M) The petitioner, in this case, is said to have relied upon the certificate of ‘permanent disability’ issued by a private doctor. Counsel for the petitioner submits that subsequently a certificate duly issued by the Civil Surgeon was submitted with the Authorities. Be that as it may, this writ petition is disposed of with a direction that the competent authority may subject the petitioner to a fresh examination before a Medical Board, and if it is satisfied that the petitioner had actually been suffering from a permanent disability on the cut-off date prescribed for submission of the application form, shall consider the claim of the petitioner sympathetically in the light of the observations made hereinabove. CWP No.13747 of 2010 is accordingly disposed of. CWP No.14726 of 2010 (O&M) CWP No.7598 of 2010.doc - 9 – At the outset, learned State counsel points out that the nature of permanent disability allegedly suffered by the writ- petitioners has been assessed to less than 40% and as such they are not entitled to claim the benefit of reservation meant for physically- challenged persons. The writ petition is accordingly dismissed, however, with, liberty to the petitioners to establish their eligibility in terms of the Government Policy before the competent authority, if so advised. With liberty afore-stated, CWP No.14726 of 2010 stands dismissed. 26.08.2011 vishal shonkar (S u r y a K a n t) Judge