HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. WPSS No. 195/2006 Satish Bijalwan Vs Deputy Security Department Dehradun Approved for reporting. __________________ Not approved for reporting Date of decision 31.3.2006 Initial of Judge 2 HIGH COURT OF UTTRANCHAL AT NAINITAL WRIT PETITION NO.195 (S/S) of 2006 Satish Bijalwan s/o Sri P.N. Bijalwan r/o Leechi Baag, Chuna Bhatta Road, Kaulagarh, Post I.P.E., district Dehradun. …………Petitioner Versus 1. Deputy Secretary, Department of Animal Husbandry, Secretariat, Dehradun. 2. State of Uttaranchal through Secretary, Department of Animal Husbandry, Secretariat, Dehradun. 3. Director, Department of Animal Husbandry, Gopeshwar, district Chamoli. 4. Deputy Director, Animal Husbandry, Pashu Lok, Rishikesh, Dehradun. 5. Govind Ballabh Pant University of Agriculture and Technology, Pant Nagar, through its Vice Chairman. ………Respondents C.D. Bahuguna, Advocate for the petitioner Standing counsel for the respondents Dated: 31-3-2006 Hon’ble Rajesh Tandon,J. Heard C.D. Bahuguna, counsel for the petitioner and the Standing counsel for the respondents. Briefly stated, according to the case of the petitioner he was initially selected for the training of Para-Veterinary Surgeon in the month of March 2000 under the World Bank sponsored project, namely, ‘U.P. Diversified Agriculture Support Project, and he successfully completed training of Para-Veterinary Surgeon w.e.f. 27-03-2000 to 24.07.2000, 3 which fact is apparent on a perusal of Annexure-5 to the writ petition, and he also obtained extended period of training in Veterinary, and till November 2001 he had successfully completed one year training of Para-Veterinary Surgeon, which fact is also apparent on perusal of Annexure 6 to the writ petition. According to the petitioner, he also obtained ‘Refresher-training’ in Veterinary at Pashu-Lok, Rishikesh, District Dehradun w.e.f. 10-12-2001 and thereafter, he continued in the extended training program of Para-Veterinary Surgeon under the Govt. Veterinary hospitals/Centres in District Dehradun till June 2004. According to the petitioner, he successfully obtained training of Para-Veterinary surgeon for a long period of 3 years, and he obtained training of Artificial insemination, Sterilization of animals, Vaccination in animals and First-aid treatment of animals in village and rural areas under the supervision of the Veterinary officers of Veterinary Hospital/Centres in District Dehradun, and he would get a small consolidated remuneration from the State Govt during the period of training; and that the training of Paragraph Veterinary Surgeon was just like the training of Livestock Extension officer of a Govt. hospital. A counter affidavit has been filed by the respondents stating therein the post of Live Stock Extension Officer is not covered under the disabled quota. It is also revealed that the training for the Live Stock Extension Officer has been started from 3rd October 2005. The petitioner had papered in the written examination but he could not succeed in the said examination. Now coming to the controversy involved in the writ petition, the respondent no. 5 got an advertisement issued in 4 the daily newspaper, ‘Amar Ujala’ on 12-04-2005 and thereby called applications from the candidates for entrance examination for selection/admission for training for the purpose of appointment for the post of Livestock Extension officers in the State. The qualification in the advertisement was prescribed as Intermediate or equivalent qualification with biology as one of the subjects from the Institution located in the State of Uttaranchal and the persons domiciled in the state of Uttaranchal were allowed to apply for the post. According to the petitioner, pursuant to the advertisement dated 12-04-2005, he sent his application to the respondent no. 5 and he being a handicapped person, applied under handicapped category for the purpose of getting benefit of reservation. The entrance examination for selection/ admission for the training of Livestock Extension officers was held in the month of June 2005 and the petitioner appeared in the examination. The result of the examination was declared in July 2005, and the counseling for the admission was started from September 2005 but the petitioner was not called-for in the counseling for the selection/admission for two years training course for the post of Livestock Extension officer. The petitioner filed a Writ Petition No. 1838 (S/S) of 2005 in this court and the same was disposed of finally by the order dated 23-12-2005, whereby this court directed the concerned authority to decide the representation of the petitioner dated 15-10-2005 within 10 days. The respondent no. 1 by the impugned order dated 31-01- 2006 rejected the representation of the petitioner and thereby formally rejected the claim of the petitioner for selection/admission for training of Livestock Extension officer 5 on two grounds. Firstly, that reservation has not been provided for appointment on the post of Livestock Extension officer and therefore, the application of the petitioner for selection/admission for training under reserved quota of physically handicapped persons is not maintainable. Secondly, the petitioner could not get minimum 25% marks in the written examination conducted for selection/ admission for training. The petitioner has challenged the order of the respondent no. 1 by means of the present writ petition. Counsel for the petitioner has submitted that the impugned order passed by the respondent no. 1 is illegal and is liable to be quashed on the ground that as many as 20 candidates belonging to the physically handicapped category appeared in the examination for selection/admission for the training. The petitioner has categorically stated in Paragraph. 23 of the writ petition that not a single candidate belonging to the physically handicapped category has been admitted for training. Paragraph.23 of the writ petition reads as under: “23. That it is pertinent to State it here that out of total candidates selected for training of Livestock Extension officer against 100 seats, no candidate was selected for the category of physically handicapped persons………….” The respondents have field Counter-affidavit but in the Counter-affidavit, the contents of Paragraph. 23 of the writ petition have not been denied. In view of non-denial of the contents of Paragraph. 23 of the writ petition, the averments of the petitioner to the effect that no candidate was selected for the category of physically handicapped person, stands admitted. As per submission of the counsel for the petitioner, Govt. of U.P. has enacted a legislative Act known as – “U.P. Public Services (Reservation for Physically handicapped, 6 Dependents of Freedom Fighters and Ex-Servicemen) Act, 1973 (U.P. Act no. 4 of 1993)” with a view to ensure participation of Physically handicapped person, Dependents of Freedom Fighters and Ex-Servicemen in public service employment. Under Section 3 of the U.P. Act no. 4 of 1993. 5% reservation has been prescribed for the Physically handicapped persons, Dependents of Freedom Fighters and Ex-Servicemen. The relevant portion of Section 3 of the U.P. Act no. 4 of 1993 reads as under: ` kkjhfjd #i ls fodykax vkfn ds i{k esa fjfDr;kas dk vkj{k.k& ¼ƒ½ jkT; ds dk;Zdyki ls lEcfU/kr yksd lsokvksa vkSj inks ds fy, lh/kh HkrhZ ds izØe ij fjfDr;ksa dk ikap izfr”kr fuEufyf[kr ds i{k esa vkjf{kr gksxk& ¼,d½ '`kkjhfjd #i ls fodykax] ¼nks½ LorU=rk laxzke lsukfu;ksa ds vkfJr] vkSj ¼rhu½ HkwriwoZ lSfudA As per submission of the counsel for the petitioner, in the impugned order it has been stated that the reservation under the physically handicapped category for the post of Livestock Extension officer has not been notified by department/government. However, no reason has been assigned in the impugned order as to why reservation under physically handicapped category has not been notified by the department/government, when it was mandatory for the department to prescribe reservation for the physically handicapped persons under section 3 of the Statutory Act, namely, U.P. Public Services (Reservation for Physically handicapped, Dependents of Freedom Fighters and Ex- Servicemen) Act, 1993 (U.P. Act no. 4 of 1993). The petitioner is claiming reservation for admission for the training for the post of Livestock Extension officer on the 7 strength of two legislative Acts. The first one is State legislative Act, namely, “U.P. Public Services (Reservation for Physically handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (U.P. Act no. 4 of 1993)” and the second is the Central legislative Act, namely, The persons with disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 (Act no. 1 of 1996)’ The legislative back ground behind enactment of the Act no. 1 of 1996 may be found from the ‘Statements and objects’ of the said Act, which says that Economic and Social Commission for Asia and Pacific, convened a meeting at Beijing on Ist to 5th December 1992, adopted a Proclamation on the full participation and Equality of people with Disabilities in the Asian and Pacific Region, and India was a signatory to the said Proclamation; and with a view to implement that Proclamation, the Indian Parliament legislated Act no.1 of 1996. Counsel for the petitioner has submitted that under Section 33 of the Central Act. No. 1 of 1996, it is the duty of every Government department of a State to make a provision for reservation for physically handicapped persons in all its employments/appointments. Section 33 of the Act no. 1 of 1996 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 of 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 of establishment, by notification subject to 8 such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. The term- “appropriate Government” and “establishment” has been defined in the Act no. 1 of 1996, in the following manner: Section 2 (a) appropriate Government- means (i) in relation to the Central Government , or any establishment wholly or substantially financed by that Government or a Cantonment Board constituted under the Cantonment Act,1924 (2 of 1924), the Central Government. (ii) in relation to a State Government , or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government. (iii) in respect of the Central Co-ordination committee and the State Executive Committee, the Central Government. (iv) in respect of the State Co-ordination committee and the State Executive Committee, the State Government. Section 2 (k) “Establishment’- means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956) and includes Department of a Government.” Counsel for the petitioner has submitted that the department of Animal Husbandry is a department of the Govt. of Uttaranchal and, therefore, is an establishment as defined under section 2 (k) of the Act no. 1 of 1996, and by not providing reservation for the post of Livestock Extension officer, the department of Animal Husbandry has violated the provisions as contained under Section 33 of the Act no. 1 of 1996. It has been further submitted that the department of Animal Husbandry has not even taken care of the Govt. order dated 24-07-2001, issued by the Cabined of the Government of Uttaranchal keeping in view Section 33 of the Act no. 1 of 1996, to the effect that there will be 9 3% reservation for physically handicapped persons in each employment, that is, in every Government services, Educational Institutions, Public Industries/Corporations and Local self Governments, within the State. The Govt. order dated 24-07-2001 reads as under: mRrjkapy 'kklu ou ,oa xzke fodkl kk[kk m|ku ,oa lekt dY;k.k foHkkx] la[;k&449@vkj{k.k@2004 nsgjknwu% fnukad tqykbZ 24]2001 1] leLr izeq[k lfpo@lfpo mRrjkapy 'kkluA 2] leLr ftykf/kdkjh mRrjkapyA 3] leLr foHkkxk/;{k mRrjkapyA 'kklu ds dkfeZd foHkkx ds i= la[;k 1144@dkfeZd&2&2001&53 ¼1½@2001 fnukad 18&7&2001 ds }kjk vuqlwfpr tkfr] vuqlwfpr tutkfr] vU; fiNM+k oxZ] HkwriwoZ lSfudksa] fodykax O;fDr;ksa] Lora=rk laxzke lsukfu;ksa ds vkfJrksa ds fy, jkT;k/khu lsokvksa] rFkk lkoZtfud m|eksa@fuxeksa ,oa Lok;Rr”kklh laLFkkvksa@f”k{k.k laLFkkvksa esa vkj{k.k dh O;oLFkk dh xbZ gS] fodykax tuksa ds fy, 3 izfr”kr vkj{k.k dh O;oLFkk dh xbZ gS] fodykax tu vf/kfu;e 1995 dh /kkjk 33 ds izkfo/kku ds rgr lHkh jkT;k/khu lsokvksa] f k{k.k laLFkkvksa] lkoZtfud m|eksa@fuxeksa ,oa Lok;Rr kklh laLFkkvksa esa fodykax tuksa ds fy, 3 izfr kr vkj{k.k dh O;oLFkk gS] Hkkjr ljdkj dSfcusV lfpo }kjk fodykax tu vf/kfu;e 1995 ds fofHkUUk izkfo/kkuksa ds izHkkoh dk;kZUo;u ,oa vuqJo.k gsrq lfpoksa dh ,d lfefr xfBr dh xbZ gS tks izR;sd 3 ekg esa vkj{k.k ds izkfo/kkuksa dh leh{kk djsxh] vxLr 2001 esa izxfr ls Hkkjr ljdkj dks voxr djk;k tkuk gSA vkils vuqjks/k gS fd Ñi;k v/khuLFk foHkkxksa esa tks Hkh HkrhZ dh tk;s mlesa 3 izfr’kr fjfDr;ksa ij fodykax tuksa dh fu;qfDr;ka lqfuf pr djkus dk d"V djsa RkFkk bldh izxfr fnukad 20&8&2001 rd v/kksgLrk{kjh dks Hkst nsaA rkfd Hkkjr ljdkj dks izxfr fjiksVZ Hksth tk ldsA g0 vkj0 ,l0 Vksfy;k izeq[k lfpo The respondent no. 1 has given the following finding in the impugned order, while rejecting the claim of the petitioner: 10 Hk ………mDr inksa esa i'kq/ku izlkj vf/kdkjh dk in vkPNkfnr ugha gSA ;kph }kjk fodykax dksVs ds vUrxZr i'kq/ku izlkj vf/kdkjh ds in gsrq vkosnu fu;ekuqlkj u gksus ds dkj.k ;kph ds izkFkZuki= ij fopkj ugha fd;k x;k rFkk i'kq/ku izlkj vf/kdkjh ds in gsrq dkmfulfyax esa cqyk;s tkus dk volj iznku djus dk dksbZ vkSfpR; ugha gSA Counsel for the petitioner has submitted that if the Government of Uttaranchal wanted that any establishment or department should be exempted from application of Section 33 of the Central Act no. 1 of 1996, it would have provided reasons therefore, and if any reasons had been provided by the government, it would have been open for this Court to examine the validity or correctness of such reasons. On a perusal of the impugned order, I find that the department of Animal Husbandry has accepted this fact that it has applied reservation for the physically handicapped persons in certain other posts of the department but has not provided such reservation for the post of Livestock Extension officer. The department has not disclosed any reason in the impugned order as to why reservation has not been provided for the post of Livestock Extension officer. In the impugned order, a reference of Govt. order dated 11-10-2004 has been given, and a plea has been taken that in that notification the post of Livestock Extension officer has not been included among those posts for which reservation has been provided. Apparently the Govt. order is silent about the reason for excluding the post of Livestock Extension officer for reservation under the physically handicapped category. The respondents even in their Counter-affidavit have not disclosed any reason as to why in the Govt. order dated 11-10-2004 the post Livestock Extension officer has not been included for providing reservation under Physically handicapped category despite the 11 fact that the State legislature and the Central legislature (Parliament) both have made provision therefore. Reason is an essence of fair play and without disclosing reason for any action taken by the government either in administrative capacity or in executive capacity would render the action of the government as arbitrary, unfair and illegal. A notification, circular or government order issued by any department or the government itself must disclose reason for the decision taken in any sphere. Counsel for the petitioner has submitted that the department of Animal Husbandry had no option but to adhere to the provision as contained under Section 33 of the Central Act, viz, ‘The persons with disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 (Act no. 1 of 1996)’ and to abide by the directions contained in the Govt. order dated 24-07-2001 issued by the Govt. of Uttaranchal, keeping in view Section 33 of the Central Act no.1 of 1996. As per submission of the learned counsel for the petitioner, under the provisions of the Central Legislative Act, namely, ‘The persons with disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 (Act no.1 of 1996)’ and the State Legislative Act, namely, “U.P. Public Services (Reservation for Physically handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1973 (U.P. Act no.4 of 1993), it is mandatory for every department of the Government to prescribe reservation in all types of appointment for the physically handicapped persons and the department concerned has no legal authority to issue any executive instruction or administrative orders in the form of any circular or notification, to 12 the contrary, otherwise it would mean to snatch legislative power of the Central as well as State Legislature under Article 245 and 246 of the of the Constitution of India by the Executive of the State. Counsel for the petitioner has submitted that the respondents have annexed another order dated 02-03-2006 along with the Short Counter-affidavit, passed by the respondent no. 2. In this order, a reference of Central Legislative Act, namely ‘The persons with disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 (Act no.1 of 1996)’ has been given but the case of the petitioner has not been examined in the light of the provisions of the aforesaid Central Legislative Act. In the subsequent order dated 02-03-2006, almost all the facts of earlier order dated 31-01-2006 have been re-iterated. Therefore, the counsel for the petitioner has submitted that the subsequent order of the department dated 02-03-2006, which is almost a copy of the earlier order of the department, deserves to be quashed under Prayer no. III of the writ petition. I find that there is no legal obstacle in extending the scope of Prayer no. III of the writ petition for quashing the subsequent order of the department dated 02-03-2006. Counsel for the petitioner has submitted that the notification dated 11-10-2004 as referred in the impugned orders dated 31-01-2006 and 02-03-2006, have no force of law for two reasons, firstly, a Circular/G.O./or notification may be in the form of an Executive order or Administrative instructions, which can not override a Statutory provison of law, secondly, the Central Act no.1 of 1996 has the overriding effect not only over Executive order or Administrative instructions issued by the State Government but also over any State Legislative Act, if any of the 13 provisions of the State Legislative Act, is repugnant or inconsistent with the provisions of the Central Act. Counsel has further submitted that in view of the fact that under Article 254 of the Constitution of India, any provison of any State Legislative Act to the extent it is contrary or inconsistent or repugnant to the provisions of any Central Act, would be void, the State Legislature may not be competent in law to legislate such law which may override any provison of any Central Act, and, therefore, if the State Government makes any such plea in the impugned order, which goes against the provisions of any Central Act, if would be wholly illegal. Article 254 (1) of the Constitution of India reads as under: “254. Inconsistency between laws made by Parliament and laws made by the Legislature of a States- (1) If any provison of law made by the Legislature of a State is repugnant to any provison of law made by parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matter enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.” Counsel for the petitioner has referred and relied a case- Union of India Vs. Somasundaram Viswanath and others, reported in A.I.R. 1988 SC 2255, wherein the Apex Court has observed the following in Paragraph.6 of the judgment: 14 “6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. if there is conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature, the law made by the appropriate legislature prevails.” Counsel for the petitioner has also placed reliance on the case Palura Ramkrishnaiah and others Vs. Union of India, reported in A.I.R. 1990 SC 168 wherein three Judge Bench of Apex Court observed the following in Paragraph.11 of the judgment:- “11. It is thus apparent that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule.” I find force in the submission of the learned counsel for petitioner and, therefore, hold that neither the State Govt. may be competent to issue an Executive order nor the State Legislator may be competent to legislate any law, which may override a provision of any Central Act. Counsel for the petitioner has relied upon the case M/S Travancore Rayons Ltd. Vs. the Union of India reported in AIR 1971 SC 862, wherein the Apex Court has made following observation on the point of disclosing reason in Paragraph.11 of the judgment: 15 “11…………….. The Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as deterrent against possible arbitrary action by the executive authority…………………” The counsel for the petitioner has also relied upon the case - The Siemens Engineering & Manufacturing Co. of India Ltd. Vs TheUnion of India and Another reported in AIR 1976 SC-1785, wherein the following was observed by the Three judges Bench of the Apex court, in Paragraph.6 of the judgment: “6. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law”. Counsel for the petitioner has also referred and relied a Constitution Bench decision rendered in the case-Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others, reported in AER 1990 SC-100, wherein the following was observed by the Constitution Bench of the Apex court, in Paragraph.11 of the judgment: “11. Notice of hearing may or may not. be given, opportunity in the form of an enquiry may or may not be given, yet arbitrariness and discrimination and acting whimsically must be avoided. These powers must, therefore, be so read that the powers can be exercised on reasons, reasons should be recorded, reasons need not always be communicated must be by authorities who are competent and are expected to act fairly, objectively and independently……… .” I find considerable force in the submission of the learned counsel for the petitioner and, therefore,