Letters Patent Appeal No. 733 of 2013 · Patna High Court · 2013
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.733 of 2013 In Civil Writ Jurisdiction Case No.10246 of 2010 With Interlocutory Application No.4342 of 2013 In Letters Patent Appeal No.733 of 2013 ====================================================== Renu Kumari, D/O Jyotish Prasad Yadav, W/O Anil Kumar Yadav, resident of village - Dadhadih, P.S. Shambhuganj, Block - Shambhuganj, Distt. – Banka. .... .... Appellant Versus 1. The State of Bihar. 2. Collector, Banka 3. District Superintendent of Education, Banka. 4. Block Development Officer, Shambhuganj Block, District – Banka. 5. Block Education Extension Officer, Shambhuganj Block, District – Banka. 6. Headmaster, Primary School Baidapur, Parmanandpur Panchayat, Shambhuganj Block, District – Banka. 7. Panchayat Secretary, Parmanandpur Gram Panchayat Shambhuganj Block, District- Banka. 8. Mukhiya, Parmanandpur Gram Panchayat Shambhuganj Block, District Banka. 9. District Teachers Employment Appellate Tribunal Banka through its Member. …… ….. Respondents-Respondents 1st Set. 10. Kavita Kumari, D/O Mahesh Prasad, W/O Manoj Kumar Singh, R/O Village - Maldih, P.S. Shambhuganj, District – Banka. .... .... Petitioner-Respondent 2nd Set. ====================================================== Appearance :
Legal Reasoning
For the Appellant : Mr. Yogesh Chandra Verma, Senior Advocate Patna High Court LPA No.733 of 2013 (9) dt.24-10-2013 2/7 Mr. Ashutosh Kumar Verma, Advocate Mr. Sushant Kumar Dutta, Advocate For the Respondent nos. 1 - 5 : Mr. Kumar Ravish, Advocate For the Respondent nos. 7-8 : Mr. Sanjay Kumar Mishra, Advocate For the Respondent no.10 : Mr. Rajendra Narain, Senior Advocate Mr. Rajiv Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 9 24-10-2013 Feeling aggrieved by the judgment and order dated 17th April 2013 passed by the learned single Judge in CWJC No.10246 of 2010, the respondent no.10, one Renu Kumari, has preferred this Appeal under Clause 10 of the Letters Patent. The matter at issue is the appointment of a Panchayat Teacher under the Gram Panchayat Parmanandpur, Block-Shambhuganj, District-Banka. On perusal of the records it emerges that pursuant to 2006 selection process, the respondent no.10, the writ petitioner, came to be appointed as a Panchayat Teacher under the Gram Panchayat Parmanandpur as an Extremely Backward Class female candidate. Her appointment came to be questioned by the appellant on the premise that the writ petitioner was appointed against the roster point no.50 reserved for a physically handicapped person. The appellant being a physically handicapped person, she had a right to appointment against the roster point no.50. The claim made by the appellant was accepted by the Block Development Officer, the competent authority on 27th November 2007. Pursuant to the said report, the writ Patna High Court LPA No.733 of 2013 (9) dt.24-10-2013 3/7 petitioner was replaced by the appellant. Feeling aggrieved, the writ petitioner approached this Court under Article 226 of Constitution in CWJC No.6775 of 2008. The said writ petition was withdrawn on 30th November 2009 with a view to availing of the remedy before the District Teacher Employment Appellate Authority. The District Teacher Employment Appellate Authority, Banka (hereinafter referred to as ‘the Appellate Authority’) under its order dated 28th May 2010 made in Case No.843 of 2009, allowed the claim of the appellant, rejected the claim of the writ petitioner and held that the roster point no.50 was reserved for a handicapped person and the appellant being a handicapped person, she had a right to appointment against the roster point no.50. Feeling aggrieved, the writ petitioner approached this Court under Article 226 of the Constitution in above CWJC No.10246 of 2010. The petition was contested by the respondent District Superintendent of Education and the appellant. The learned single Judge has held that roster point no.50 was reserved for Extremely Backward Class female candidate. The writ petitioner being an Extremely Backward Class female candidate, her appointment against the said point cannot be questioned. The learned single Judge has also noted that on the date of appointment in 2006, the appellant was not qualified for appointment as a Panchayat Teacher. She acquired the eligibility on 31st May 2007. She, therefore, could not have been appointed pursuant to the 2006 selection process. Consequently, the learned single Judge has quashed the order of the Appellate Authority and
Decision
has directed that the writ petitioner be restored in service forthwith after removing the respondent no.10, the present appellant. Therefore, this Appeal. Patna High Court LPA No.733 of 2013 (9) dt.24-10-2013 4/7 Learned counsel Mr. Yogesh Chandra Verma has appeared for the appellant. He has strenuously urged that the appellant being a handicapped person belonging to Backward Class, the roster point no.50 having been reserved for physically handicapped person, pursuant to the legislative enactment and the Government Circulars, the appellant has a preferential right to appointment. He concedes that on the date of selection, the appellant was not qualified for appointment as a Panchayat Teacher. However, he has submitted that under the prevailing policy of the State Government, the eligibility can be relaxed in case of handicapped person. In support of his submission, he has relied upon Government Circulars dated 2nd November 2002 and of 5th January 2007. He has also relied upon the above referred report made by the Block Development Officer on 27th November 2007. Learned advocate Mr. Kumar Ravish has appeared for the respondent State Government. He has submitted that under the Circular dated 2nd November 2002, the State Government has made provision for reservation of one post for physically handicapped amongst vacancies nos.1 to 33; 34 to 67 and 68 to 100. Therefore, it cannot be said that any particular point has been reserved for physically handicapped person. He has further submitted that paragraph 2 of the said Circular provides that physically handicapped person can be appointed against the category to which such person belongs. If there is no roster point for specific category, the appointment may be made against un- reserved category and that the next roster point of the said category will be converted into an unreserved category. Learned advocate Mr. Rajendra Narain has appeared Patna High Court LPA No.733 of 2013 (9) dt.24-10-2013 5/7 for the respondent no.10-writ petitioner. He has supported the judgment of the learned single Judge. He has submitted that in no case, the appellant, who was not qualified for appointment, could have been appointed as Panchayat Teacher in 2006, nor can the appointment of the writ petitioner be avoided to accommodate the appellant. The Government of India has enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for ensuring adequate opportunities to the handicapped persons and has made reservation to the extent of 3% in the public employment. With a view to discharging the said statutory obligation, the State of Bihar on 2nd November 2002 issued a Circular in respect of the manner in which the reservation for the handicapped person to the extent of 3 percent be implemented. Under the said Circular, the 100 point roster is divided into three parts for one reservation in each part, viz; 1 to 33, 34 to 67 and 68 to 100. The said Circular also provides that the handicapped person be appointed against the roster point of the category to which he or she belongs. If no such roster point is available in the particular category, the appointment may be made against an un-reserved category and the next roster point of the said category be converted into an un-reserved category. The said Circular has specifically referred to the roster point nos. 17, 50 and 84 for appointment of a handicapped person. In case the recruitment is not made at a time, the reservation may be made in the recruitment process where the appointments are being made against the roster points which contain the roster point nos.17, 50 or 84. In other words in a case where recruitment is not made for the vacancies against roster points no.1 to 33 but only a part of it, Patna High Court LPA No.733 of 2013 (9) dt.24-10-2013 6/7 the reservation for handicapped person be implemented in the selection process, where the roster point no.17 is included; say the recruitment is made against roster point nos.12 to 25 one vacancy will be reserved for handicapped person. The said Circular, therefore, cannot be pressed into service to claim appointment as a handicapped person against the roster point nos.17, 50 or 84. Such a claim can be made against selection where point nos. 17, 50 or 84 is included. In the present case, it cannot be disputed that the appointments were being made against roster point nos. 50 to 58. The appellant, if qualified, could have claimed appointment as a handicapped person amongst the said 9 vacancies, but not particularly against roster point no.50. The roster point no.50 having been reserved for Extremely Backward Class female candidate, the appointment of the writ petitioner against the said roster point no.50 could not have been questioned. At the best the appellant, being a Backward Class female candidate, could have been appointed against roster point no.58 reserved for backward class female candidate. It is not in dispute that neither the appellant claimed reservation in general for the said selection process, nor did she claim appointment against the roster point no.58. Her precise claim for appointment against roster point no.50 was misconceived and could not have been entertained. Further, admittedly, on the date of selection the appellant was not qualified for appointment as a Panchayat Teacher, nor had the eligibility been relaxed in her favour. The claim of the appellant for appointment as a Panchayat Teacher as a handicapped person was not tenable. The learned single Judge has rightly allowed the Patna High Court LPA No.733 of 2013 (9) dt.24-10-2013 7/7 writ petition and has rightly rejected the claim of the appellant. For the aforesaid reasons, we see no merit in the Appeal. The Appeal is dismissed. Interlocutory Application stands dismissed. (R.M. Doshit, CJ) (Ashwani Kumar Singh, J) AFR Sunil/-