CWP No.20560 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20560 of 2008 Decided on : 17.03.2009 Devender Singh ....Petitioner VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR. JUSTICE AJAY TEWARI Present:- Mr. R. K. Malik, Sr. Advocate with Mr. Yashdeep Singh, Advocate for the for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. AJAY TEWARI J. The admitted facts are that the petitioner who is physically handicapped person applied for the post of A Class Naib Tehsildar in pursuance to the advertisement dated 7.9.2007 vide which 44 posts had been advertised, out of which 28 were meant for general category while 3 posts were reserved for Physically Handicapped category candidates. The petitioner secured 4th position in the handicapped category. His ground in this petition is that the candidate Mr. Anand who obtained Ist position in the handicapped category had secured enough marks to have been selected in the general category and if this had been done, the petitioner would have automatically moved up one position and would have consequently been selected. In reply, the non selection of the petitioner has been defended on the ground that the benefit of moving up to the General category can be CWP No.20560 of 2008 -2- granted only to the candidate belonging to Scheduled Caste and Backward Caste and not for candidate belonging to the Physically Handicapped category. This is sought to be justified on the basis of advice rendered by the Chief Secretary, Government of Haryana in the following terms:- “Administrative Department is intimated that the instructions issued vide letter No.22/88/96-3GS-III, dated 25.6.1997 are not applicable in the present case because the persons applying against Physically Handicapped quota can be considered against their quota only. Hence, A.D. is advised to appoint Physically Handicapped candidates against their quota only.” However, apart from this bald statement, no justification has been given for this view. A similar dispute arose before the Delhi High Court which is annexed herewith as Annexure P-8 wherein learned Single Judge held as follows :- “The last grievance raised is with regard to the practice or action of the respondents in seeking to appoint merited candidates who apply on the basis of their disability, against the 3% quota under the Act even though they might otherwise be entitled to appointment in the general category on the basis of their performance on merit. It is submitted that such a practice should be stopped and the respondents ought to treat them as general candidates, leaving appropriate slots or posts to be filled by other candidates eligible in the quota earmarked under the Act…..” CWP No.20560 of 2008 -3- “On the second issue, I am of the opinion that there is no merit for the view taken by the respondents. If the provisions of the Act were made to alleviate the condition of those labouring under disabilities; the intention was never to limit their opportunities in the manner as is sought to be done. The interpretation placed by the respondents in fact subverts the objective of the enactment. If, in a given recruitment out of 100, 10 candidates applying as disabled candidates perform sufficiently well to be placed in the merit quota, nevertheless only 3 would be appointed, against the 3% quota under the Act. This illustrates the untenability of the interpretation advanced by the respondents…...” “A debate on this issue is not required, since the matter has been settled by a Constitution Bench of the Supreme Court in the judgment reported as R. K. Sabharwal and Ors. Vs. State of Punjab and Ors., JT 1995(2) S.C.351. Supreme Court held in that context, on this very issue as follows:- All the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Articles 16(4) of the Constitution of India permits the State Government to make any provision for the CWP No.20560 of 2008 -4- reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the Statement Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward CWP No.20560 of 2008 -5- class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same…..” “As is evident, the observations were made in the context of reservations under Article 16(4) of the Constitution. However, having regard to the common objective, viz affirmative discrimination by the State, to ensure representation of specified categories in public services, I am of the opinion that the law laid down also applies to other categories of reservations such as under the Act. To that extent the Act is only a means, for furthering the classification made in favour of persons with disabilities; it would be under Articles 14 and 16(1) of the Constitution of India…..” “The view taken in this judgment also conforms with to the primary objective of the Act, which is a CWP No.20560 of 2008 -6- benevolent legislation. It has been repeatedly held that benevolent enactments ought to be given liberal and expansive interpretation, and not narrow or restrictive construction (see Madan Singh Shekhawat Vs. Union of India; 1996(6) SCC 459; Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. 2004 (5) SCC 385; Babu Parasakaikadi Vs. Babu 2004(1) SCC 681)…..” “In view of the foregoing discussion, a direction is issued to the respondents to ensure that while preparing the select list, such persons claiming the benefit of the 3% quota reservation under the Act, who are even otherwise are entitled to be appointed, on the basis of their own merit, shall be treated as general category candidates and shall not be adjusted in the 3% quota, thus leaving the quota under the Act for other persons eligible to claim under it. The petition is partly allowed in the light of the above directions. No costs. Dasti.” No contrary judgment have been brought to my notice by the respondents. The second point urged is that the afore-mentioned candidate Mr. Anand is not only handicapped but also belongs to the Backward Caste category and in his application had specifically opted for being considered as a physically handicapped candidate. On this ground also he could not be shifted to the General category. In my opinion, this argument is fallacious. The option given by the aforesaid Mr. Anand was only qua Backward Caste CWP No.20560 of 2008 -7- category and for the purpose of opting for getting the benefit of one of the two reserved categories for which he was entitled. This option could have no relevance for the purpose of his entitlement to shift to the general category on obtaining the requisite merit. It is further not disputed that post of A Class Naib Tehsildar is still lying vacant. In the circumstances, this writ petition is allowed and the respondents are directed to consider the case of the petitioner for appointment as A Class Naib Tehsildar candidate within a period of two months from the date of receipt of a certified copy of this order. The petitioner would be entitled to all consequential benefits except arrears of pay (as conceded by learned counsel for the petitioner). No costs. March 17, 2009 ( AJAY TEWARI ) ashish JUDGE