Lpa No. 2330 of 2016 · Punjab Arh Chandigarh Njab And Haryana High Court · 2025

M Mr. Vipin Mahajan, Advocate for respondents No.1 and 2. te for Mr. Pranshu Goyal, Advocate for M Mr. Prateek Gupta, Advocate M for respondent No.3. SANJEEV PR ral) V PRAKASH SHARMA, J.(Oral) ****

1. By way way of present appeal, challenge is nge is made to the judgment dated

07.11.20 .11.2016 passed by the learned Single ingle Judge.

2. Brief fac ief facts for adjudication of this ap this appeal are that writ petitioner (respond spondent No.3 herein) had participa s for articipated in selection process for seeking a g appointment on the post of Tech ical). f Technician Grade-V (Mechanical). The post e post had been advertised initially itially on 21.04.2006, and the writ petitione titioner participated but failed to make t was make the way. Again, the post was advertise vertised in 2008. The writ petitioner itioner participated in the selection MOHIT GOYAL 2025.04.23 11:26 I attest to the accuracy and integrity of this document LPA-2330-2016 016 (O&M) process ocess but failed to make the way way again. When the post was advertise vertised in 2010, the same was kept o es of kept open for all other categories of disability ability, apart from disability of speec d the speech/hearing impairment, and the appellant pellant participated along with the writ writ petitioner. The writ petitioner again fai ain failed to make the way, and the po the post was offered to the appellant who was o was selected and appointed and jo r the and joined the post, whereafter the writ peti it petitioner challenged his appointme ointment on the ground that the post could no uld not have been offered to the appe e appellant who was orthopedically disabled abled and as the post was only require required to be filled from candidates suffering ffering from disability from speech/hea ch/hearing impairment.

3. The learn e learned Single Judge has set aside th lant. side the appointment of the appellant. The orde e order impugned was challenged, a ged, and this Court vide its order dated 02 ted 02.12.2016 stayed the operation o ation of the judgment of the Single Judge ta taking into consideration the pro f the he provisions of Section 36 of the Persons rsons with Disabilities (Equal Oppor Opportunities, Protection of Rights and Full d Full Participation) Act, 1995 (herein , (hereinafter referred to as ‘the Act’), which w ich would have application with r with respect to the selections and advertise

010. vertisements issued in the year 2010.

4. Learned arned counsel for the appellant has s of t has taken us to the provisions of Section 3 ction 36 of the Act to submit that th ged, that the post could be interchanged, once it is ce it is not filled from the category fo for which it has been earmarked initially tially in the earlier recruitment years. year, years. In the third recruitment year, since aga ce again there was no person found t p the ound to be suitable for filling up the post, the st, the same could be interchanged wi ged with persons having other kinds of disabi disabilities like the appellant. MOHIT GOYAL 2025.04.23 11:26 I attest to the accuracy and integrity of this document LPA-2330-2016 016 (O&M)

5. Learned arned counsel appearing for the the writ petitioner supports the judgmen gment passed by the learned Single J ingle Judge and submits that the writ petitione titioner had been wrongfully left out fr t out from selection.

6. We have e have carefully considered the submis is no submissions. We find that there is no challenge allenge to the selection process adopte adopted by the respondents No.1 and

2. The o The only challenge is to the action 2 in tion of respondents No.1 and 2 in interchan erchanging the post from the category ty of ategory of persons with disability of speech/h eech/hearing impairment to those pers se persons who have disability other than the n the said impairment.

7. For the p r the purpose of adjudication, it would t would be apposite to quote Section 36 of the of the Act, which reads as under: “36. Where in any recruitm uitment year any vacancy under section 33 cannot be filled up up due to non-availability of a suitable person with disabil sability or, for any other sufficient reason, such vacancy shall shall be carried forward in the succeeding recruitment year an r and if in the succeeding recruitment year also suitable perso erson with disability is not available, it may first be filled by i by interchange among the three categories and only when th n there is no person with disability available for the post in t in that year, the employer shall fill up the vacancy by appointm ointment of a person, other than a person with disability: Provided that if the nature ture of vacancies in an establishment is such that a give given category of person cannot be employed, the vacancies cies may be interchanged among the three categories with the the prior approval of the appropriate Government.”

8. The lan e language of the aforesaid prov provision is unambiguous and specifica ecifically allows the persons of other other disabilities to participate and MOHIT GOYAL 2025.04.23 11:26 I attest to the accuracy and integrity of this document LPA-2330-2016 016 (O&M) seek app ek appointment in the third recruitm cruitment year in relation to a post which ha ich has been earmarked for a partic particular disability, once no other candidate ndidate from that category is found sui nd suitable.

9. The claim e claim of the writ petitioner is also f as he also found to be not made out as he has parti s participated in the selection process t ocess three times but could not make the selec selection.

10. In view view of the aforesaid provision, wh on, which we find having not been noticed b ticed by the learned Single Judge, we e, we have no hesitation to set aside the judgm judgment dated 07.11.2016 passed by , and sed by the learned Single Judge, and uphold th ld the appointment granted to the a the appellant who has been already appointe pointed and is continuing on the said p . The said post since his appointment. The appeal is peal is accordingly allowed. The int 2016 he interim order dated 02.12.2016 passed by ssed by this Court is made absolute.

11. All pend ll pending applications also stand dispo d disposed of accordingly. (SANJE ANJEEV PRAKASH SHARMA) JUDGE DEEPINDER SINGH NALWA) (DEEP JUDGE

22.04.2025 Mohit goyal

1. Whether s 2. Whether r er speaking/reasoned? er reportable? Ye Yes/No Yes/No Ye MOHIT GOYAL 2025.04.23 11:26 I attest to the accuracy and integrity of this document