GAHC010107742016

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C) 1223/2016

1:MD. NEKIB HUSSAIN S/O MD. MAJAHAR HUSSAIN VILL- DAMPUR FAKIR SUPA P.O. DAMPUR, P.S. HAJO DIST. KAMRUP R, ASSAM PIN - 781102.

VERSUS

1:THE GAUHATI HIGH COURT and 27 ORS REP. BY THE REGISTRAR GENERAL, GAUHATI HIGH COURT AT GUWAHATI, PIN - 781001, ASSAM.

2:THE REGISTRAR GENERAL GAUHATI HIGH COURT AT GUWAHATI PIN- 781001 ASSAM.

3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM LAW AND JUDICIAL DEPARTMENT DISPUR GUWAHATI -6.

4:THE CENTRALIZED RECRUITMENT OF THE GAUHATI HIGH COURT REP. BY THE REGISTRAR ADMN-CUM-IN CHARGE CENTRALIZED RECRUITMENT GAUHATI HIGH COURT GUWAHATI PIN - 781001 ASSAM.

5:SHRI KHANINDRA DAS

6:SHRI ANUP BAIDYA

7:SHRI NARAYAN SHARMA

8:SHRI DILIP KUMAR SHARMA

9:SHRI JITU SARMA

10:SHRI SANTANU BHATTACHARJEE

11:SHRI GILBART SINGH

12:SHRI SAMSUDDIN AHMED

13:SHRI KONDA BABU KATIPAM

14:SHRI JIBAN CH. TALUKDAR

15:SHRI UMANANDA UPADHAYA

16:MD. JAKIR HUSSAIN

17:SHRI RABINDRA THAKUR

18:MS. BARNALI DAS

19:SHRI KAMAL SARMA

20:SHRI PURUSHOTTAM SARMA

21:MS. BABY ROY

22:SHRI DHARANI BORO

23:SHRI SUROJIT ROY

24:SHRI DILIP SWARGIARY

25:SHRI R. APPA RAO

26:SHRI DIGANTA BONGJUNG

27:SHRI SEIKHOSIEM SINGSON

28:MR NGURONEI HANGSING SL. NOS. 5 TO 28 ALL ARE C/O THE REGISTRAR GENERAL GAUHATI HIGH COURT GUWAHATI PIN - 78100

Advocate for the Petitioner : MS.F INTAZ

Advocate for the Respondent : SC, GHC

BEFORE HONOURABLE MR. JUSTICE L.S. JAMIR

ORDER

Date : 26-03-2018

The Gauhati High Court issued an advertisement dated 26-11-2014 calling for applications for filling up of 12 vacant Grade-IV posts comprising of Court Attendant, Lawn Attendant, Farash, Room Attendant and Peon. In the said advertisement, it was also provided that the number of posts advertised is indicative only and may increase or decrease at the time of final selection. The last date for making application was also prescribed as 11-12-2014.

Pursuant to the advertisement dated 26-11-2014, the petitioner made his

application under the category of Person with Disabilities ('PWD' in short). After the selection process, by a Notification dated 15-10-2015, a select list was prepared and recommendations were made for appointment of 25 candidates (including one post for Law Research Institute), on merit and category wise. The present writ petition has been filed challenging the Notification dated 15-10-2015 on the ground that no recommendation has been made for PWD candidates as stipulated under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ( "the Act of 1995" in short).

Heard Mr. K.U. Ahmed, learned counsel for the petitioner. Also heard Mr. U.K. Nair, learned senior counsel assisted by Ms. N. Shymal, learned counsel appearing for the respondent Nos. 1, 2 and 4 as well as Mr. N. Goswami, learned Government Advocate appearing for the respondent No. 3/State of Assam.

Mr. K.U. Ahmed, learned counsel for the petitioner submits that under the Act of 1995, 3% reservation is made for persons or of persons with disabilities. However, the respondents in the advertisement dated 26-11-2014, despite indicating the minimum age and maximum age for PWD candidates, no reservation was made and therefore, he submits that the advertisement dated 26-11-2014 is not in consonance with the provision laid down under the Act of 1995. He also submits that the advertisement dated 26-11-2014 provided for filling up of only 12 vacant Grade-IV posts whereas, by the Notification dated 15-10-2015, recommendations were made for filling up of 25 candidates (including one post for Law Research Institute). He, therefore, submits that the select list is not in conformity with the advertisement dated 26-11-2014. Learned counsel for the petitioner submits that as the petitioner had applied as a PWD candidate and that the respondents having accepted his application and had also notified the minimum age and maximum age of PWD candidates in the advertisement dated 26-11-2014, the respondents were duty bound to have made 3% reservation for the PWD candidates and therefore, the whole selection process stands vitiated and that the respondents be directed to readvertise the posts or in the alternative, the case of the petitioner may be considered by the respondents for appointment under 3% reservation. To fortify his

submissions, learned counsel for the petitioner has placed reliance in the case of Union of India-vs-National Federation of the Blind and Others, reported in (2013) 10 SCC 772.

Mr. U.K. Nair, learned Standing Counsel, Gauhati High Court, on the other hand, submits that the petitioner while making his application, did not have a valid disability certificate inasmuch as, the disability certificate which was issued to the petitioner on 19-11-2008 had expired on 20-11-2014. As the last date for receiving applications in terms of the advertisement dated 26-11-2014 was 11-12-2014, the petitioner on that date did not have a valid disability certificate and therefore, the respondents had considered the case of the petitioner under the general category. While admitting the fact that 3% reservation was to have been made for PWD in the advertisement dated 26-1q1-2014, he submits that when the advertisement was made, the respondents were yet to identify specific posts for persons with specific disabilities and therefore, such reservations could not be made in the advertisement. He submits that the respondents have taken all initiatives for indentifying the posts and finally, the same has culminated by issuance of a Notification dated 05-06-2017 where identifications of posts for appointment of persons with disability in the Principal Seat of the Gauhati High Court has been notified. It is also submitted that the respondents after the Notification dated 05-06-2017 has been making reservation for appointment of PWD.

I have considered the submissions forwarded by the learned counsel for the parties.

It is an admitted fact that in the advertisement dated 26-11-2014, no reservation has been made for PWD. It is also an admitted fact that when the petitioner had made his application pursuant to the advertisement dated 26-11-2014, he did not have a valid disability certificate. The petitioner was issued with a fresh disability certificate only on 13-02-2015 which is annexed to the writ petition as Annexure-2. Therefore, in the considered opinion of this Court, when the petitioner had made his application without a valid disability certificate, the respondents could not have considered the case of the petitioner under the category of PWD.

In that view of the matter, the petitioner cannot claim to have participated in the selection process pursuant to the advertisement dated 26-11-2014 as a PWD.

This Court has also taken into consideration the submission made by the learned Standing Counsel, Gauhati High Court that identification of posts was notified by Notification dated 05-06-2017. In the absence of any identification of posts, this Court is of the considered opinion that the respondents could not have made any reservation in the advertisement dated 26-11-2014 despite the stipulation provided in the Act of 1995. Further, Section 32 of the Act of 1995 provides for identification of posts which can be reserved for PWD. In the absence of any steps having been made by the respondents pursuant to the requirements under Section 32 of the Act of 1995, no reservation could have been made in the advertisement dated 26-11- 2014.

This Court has also taken into consideration the reliance made by the petitioner in the case of National Federation of the Blind (supra). However, on a consideration of the same, I am of the considered opinion that the factual matrix of the said case is different from the present case and therefore, the reliance made by the learned counsel for the petitioner is not applicable to the case in hand.

In the facts and circumstance of what has been discussed hereinabove, there is no merit in the present writ petition and the same is accordingly dismissed.

JUDGE

Comparing Assistant