High Court
Case Details
WP(C) 4351/2009 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER(ORAL)
Legal Reasoning
, and Mr. S.M. T. Shisti, learned Standing Counsel appearing for the Education Department, are heard at length. Both Ms. K. Akhtar, learned counsel appearing for the petitioner 2. In this writ petition, the petitioner is aggrieved by the refusal of the State-respondents to consider her appointment as a Subject Teacher in Assamese at Dakshinpat H.S. School, Nagaon or at nearby school against 3% quota reserved for physically handicapped persons. According to the petitioner, she is an M.A. in Assamese and passed her final examination from Gauhati University in 2003 in II Class. She has additional Diploma certificate in Computer. She is also a phys ically handicapped person (Orthopadically handicapped) to the extent of 50% disa bility and claims that she is entitled to appointment to the post of Subject Tea cher in Assamese at Dakshinpat Higher Secondary School. The Director of Secondar y Education, Assam issued the advertisement dated 3.6.2007, which published in t he daily (cid:28)Assam Tribune (cid:29) inviting applications from the candidates against the e xisting post of 158 numbers of Subject Teacher in the provincialised Higher Seco ndary Schools, Assam. In that advertisement, a subject wise list was also publis hed, wherein one post of Subject Teacher in Assamese at Dakshinpat Higher Second ary School was shown to be vacant. The petitioner duly applied for the post and took part in the interview held on 30.8.2007 in the School. According to her, sh e did quite well in the interview and was satisfied about her performance. The S chool authority by the order dated 3.8.2009 published the select list wherein a total number of 127 candidates had been selected for the appointment of Post Gra duate Teachers. The name of the petitioner did not find a place in that select l ist. It was, however, mentioned in the NOTE at the bottom of the select list tha t due to the non-availability of ST(H), ST(P), SC and Physically handicapped can didates, the office of the Director of Secondary Education, Assam could not fill up the Roster points for 7 Nos. of ST(H), 3 Nos. ST(P) and 2 Nos. of SC reserve post as such these vacant posts were being filled up by general candidates. Int erestingly, no reference was however made as to whether the quota of 3% reserved for physically handicapped candidates was to filled be filled up by general can didates. It is the specific case of the petitioner that no physically handicappe d candidate was selected in the recruitment process. Aggrieved by the non-consid eration of the case of the petitioner against the quota of physically handicappe d person, this writ petition has been filed by the petitioner for appropriate re lief. 3. The Director of Secondary Education, Assam, who is impleaded as responde nt No.2, has now filed his affidavit-in-opposition. Though notice was issued to the respondent No.3, no service report has been received till now. The responden t No. 3 appears to have been correctly addressed. As there is no representation from the respondent No. 3, this writ petition is proceeded against him ex-parte. The principle stance taken by the respondent authority, as reflected in the aff idavit-in-opposition of the respondent No.2, is that the petitioner had never ap plied for the post against the quota of physically handicapped candidates. Accor ding to respondent authorities, as per the available reports, which was submitte d by the School Selection Committee, it was nowhere mentioned that the petitione r is a physically handicapped person. The respondent No.2 avers that it was the School authorities, who prepared the comparative statement which contained the m arks of academic performance, marks of the candidates who appeared before the i nterview and prepared a panel of the selected candidates for appointment of Post Graduate teachers; that the School Selection Committee forwarded the comparativ e statement to the Director of Secondary Education, Assam which was subsequently forwarded to the Commissioner & Secretary to the Government of Assam, Education (Secondary) Department for according approval for the appointments. The Commiss ioner & Secretary to the Govt. of Assam, Education (Secondary) Department after according his approval to the selected candidates directed for the appointment o f Post Graduate teachers in 127 provincialised Higher Secondary Schools in the S tate and the select list was thereafter published and notified and that the cand idates, who scored the highest marks both in the academic as well as interview, were appointed in the respective schools. According to the respondent authoritie s, the petitioner was not selected by the School Selection Committee for appoint ment to the said post and, as such, she could not be considered for appointment. These are the sum and substance of the contention of the respondent authorities . 4. The learned counsel appearing for the petitioner contends that the case of the petitioner for her appointment against the physically handicapped quota h as been deliberately overlooked by the respondent authorities and that she actua lly applied for the post against the physically handicapped quota as evident fro m the certificated dated 22.3.2012 issued by the Principal, Dakshinpat H.S. Scho ol, Nagaon and the remark made by the same Principal on 21.3.2012 at the bottom of the candidates applied for the post of subject teacher at page 11 of the repl y affidavit dated 28-11-2011 to the effect that (cid:28)Sl. No.94 Ms. Queen Sarma, D/O Tosewar Sarma, village- Mahariati, P.O. Bebejia, Dist- Nagaon, (Assam) is a phys ically handicapped candidate (cid:29). On the basis of the certificate of the Principal of the school certifying that the petitioner was a physically handicapped candid ate for the post in question, the petitioner has clearly made out a prima-facie case that she had actually applied for the post in question against the quota fo r physically handicapped candidates. The learned Standing Counsel, Education Dep artment has strongly refuted the case of the petitioner that she ever applied fo r the post of physically handicapped person. Against the prima facie case made o ut by the petitioner, it becomes the burden is now cast upon the State-responden ts to rebut the prima-facie case made out by the petitioner with a better and im peachable evidence. It may be noted that on 4.2.2013, this Court had asked the l earned Standing Counsel to produce the records on 7.2.2013. When the matter was taken up again on 7.2.2013, the learned Standing Counsel sought for some more ti me to produce the record on the ground that the Panchayat Election was going on. However, in the interest of justice, the learned Standing Counsel was granted f urther time till 25.2.2013 to produce the record. It was observed by this Court therein that if the report was not produced for any reason, this writ petition w ould hear and dispose of the case on the basis of the materials available on rec ord. On 12.8.2013, an incomplete report was submitted by t5he learned Standing C ounsel. The original application filed by the petitioner against the physically handicapped candidate quota was not produced. As this document is found to be cr ucial for just decision of this case, the learned Standing Counsel was once agai n granted time till today to produce the original application. This Court also o bserved that if this particular document was not produced for any reason, an adv erse inference will be drawn against the respondent authority by this Court. 5. Today, Mr. S.M.T. Shisti, learned Standing Counsel, Education Department has again expressed his inability to produce the original application by conten ding that the Managing Committee of the School is the custodian of the record an d in the absence of this Committee, as a party respondent, this petition is not maintainable. In my opinion, the submission made by the learned Standing Counsel is merely an attempt to stall the proceedings of this Court or otherwise defeat the just claim of the petitioner. It may be noted that the Principal of the Sch ool is also made one of the respondents in this writ petition. No affidavit-in-o pposition is filed by him to controvert the allegation made against him, who is none other than the Member Secretary of the Selection Committee who could have b een the best person to prove that the petitioner did not apply for the post agai nst the quota for physically handicapped candidates. The conduct of the responde nt authorities in refusing to produce the original application of the petitioner , therefore, leaves me with no alternative but to draw an adverse inference that the petitioner did apply for the post in question against the quota of physical ly handicapped candidate, which was suppressed by the respondent authorities to deny her legitimate right to claim the post of Subject Teacher in Assamese at Da khinpat H.S. School against the quota reserved for physically handicapped person . Section 33 of the Persons with Disabilities (Equal Opportunities, Protection o f Rights and Full Participation) Act, 1995 mandates the State Government to appo int in every establishment such percentage of the vacancies not less than three percent for persons or class of persons with disability. The fact that the petit ioner is a physically handicapped person is not in dispute in this case. The Sta te respondents have conveniently overlooked the case of the petitioner apparentl y to make way for some favourite candidates. On the facts found by me, I am thus of the view that the petitioner has made out a case for the interference of thi s Court. 6. Resultantly, this writ petition is succeeds. The State respondents are d irected to consider the case of the petitioner for the post of Subject Teacher i n Assamese in Dakhinpat H.S. School, Nagaon or elsewhere against the quota of 3% reserved for physically handicapped persons, if necessary, by creating supernum ery post. The entire exercises shall be carried out by the respondent within a p eriod of 2 (two) months from the date of receipt of this order. 7.
Decision
With the above direction, this writ petition stands disposed of.