CWP No.10121 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10121 of 2009 Date of Decision: 25.05.2010 Sohan Singh ........Petitioner Versus State of Haryana and others .......Respondents CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. Sourabh Goel, Advocate for the petitioner. Mr. R.S.Kundu, Addl. A.G., Haryana. Mr. H.N.Mehtani, Advocate for respondents No.2 & 3. Mr. Rajbir Sehrawat, Advocate for respondent No.4. ****** PERMOD KOHLI, J. Selection/appointment of respondent No.4 to the post of Assistant District Attorney under the reserved category of Physical handicapped has been assailed in the present petition. The facts leading to the filing of the present petition are noticed hereunder:- "Respondent No.3, vide advertisement notice dated 10th December, 2008 (Annexure P-5) invited applications for the post of Assistant District Attorney in the State of Haryana. As many as 54 temporary posts of Assistant District Attorney (Group-B) were advertised. One post was reserved for physically handicapped (blind). The petitioner is CWP No.10121 of 2009 -2- Orthopedically handicapped. Since no post for orthopedically handicapped person was advertised, the petitioner did not apply under the handicapped category and chose to apply under the general category. After the written examination, the result of the selection was declared, vide result notification dated 24th February, 2009. Petitioner was placed in the panel of general category whereas three candidates with Roll Nos. 1025, 2059 & 4728 were placed under the Physical handicapped category. All these candidates were called for interview. It is stated that petitioner came to know that all the candidates placed under physical handicapped categories were Orthopedically handicapped and none of them was physically handicapped (blind). The petitioner accordingly made a presentation dated 23rd March, 2009 for his consideration under the physical handicapped category. He being Orthopedically handicapped with more than 70% disability. The petitioner also stated that since no post under physically handicapped (Orthopedic) category was advertised, he could not apply under the said category. The representation of the petitioner was rejected, vide letter dated 15th April, 2009 (Annexure P-2) only on the ground that the petitioner did not claim reservation under physically handicapped category in the application form and thus his candidature could not be considered at this stage. Petitioner made an another repesentation stating the circumstances why he did not apply under the Physically handicapped category. The respondents, however, made the final selection and appointed the respondent No.4 with Roll No.2059 as Assistant District Attorney against the reserved vacancy of Physically handicapped. This respondent is admittedly suffers Orthopedical infirmity and not Blind for which category, vacancy was advertised. The petitioner having failed to pursuade the respondents to consider his claim under Physically handicapped category has been filed this petition. CWP No.10121 of 2009 -3- In the detail reply filed by respondent No.3, it is admitted that only one vacancy under the physical handicapped category (blind) was advertised. It is also admitted position that no candidate under the said category has been selected. Respondent No.4 has been selected from Orthopedically handicapped category. Only justification rendered by the respondents for selecting the candidate from Orthopedically handicapped category without advertising the said vacancy is the government instructions dated 22nd November, 1991 (Annexure R-1). These government instructions, inter alia, provide that where in a cadre, a post is identified and not suitable for one category will be filled in by person belonging to other physically handicapped category and if no suitable person is available from the Ex-servicemen category. I have heard learned counsel for the parties and perused the record. There is no dispute in so far as the factual background is concerned. Admitted case of the parties is that one post of Physically handicapped (blind) category was advertised. From the advertisement notice (Annexure P-5), it appears that there was no stipulation in the advertisement notice for conversion of physical handicapped (blind) vacancy to physical handicapped (Orthopedic). There is also no condition allowing the candidates from other categories of physical infirmity to apply. Thus, the petitioner and may be other candidates, belonging to categories other than the Blind did not apply, rightly thinking that they are ineligible under the advertised category. Had there been any stipulation permitting other handicapped categories to apply or for conversion to other category, the petitioner or other similarly placed candidates would have applied. The Haryana Public Service Commission without providing any opportunity to all the eligible candidates belonging to categories other than the Blind from seeking their consideration has selected respondent No.4 for the post. The CWP No.10121 of 2009 -4- Commission in an totally unlawful manner itself converted the vacancy advertised for Physically handicapped (Blind) to that Physical handicapped (Orthopedic) and selected the respondent No.4. As a matter of fact, the application of respondent No.4 or for that matter any other candidate not belonging to Physically handicapped (Blind) should not have been considered against the advertised vacancy. All the physically handicapped category candidates other than the Blind category have been deprived of their right of consideration for selection/appointment without providing them any opportunity to apply. The selection of respondent No.4 is thus vitiated in law is liable to be quashed. There has been gross violation of Articles 14 and 16 of Constitution of India. This petition is accordingly allowed. Appointment of respondent No.4 is hereby set aside. Respondent-Commission is directed to re- advertise the vacancy under the Physically handicapped category specifying the sub category(s) to provide opportunity to all eligible to apply. Let fresh selection be made against the vacancy so advertise in accordance with law. 25.05.2010 (PERMOD KOHLI) Gagan JUDGE NOTE: Whether to be referred to Reporter or not: YES