RAFIQ, J. - (1.) THIS writ petition has been filed by Shri Arvind Kumar Joshi who is a blind person. He is presently working as Teacher Gr. III in Government Upper Primary School, Police line, Jodhpur. Having accepted the challenge of life in a determined manner, he acquired the qualification of M. A. in first division and B. Ed. in good second division. He with deep desire to achieve success in life strived to over come the deficiency inflicted upon him by cruel hands of destiny. Having secured the employment as Teacher Gr. III he did not remain content and still yearned for progress in life.
(2.) IN response to the advertisement No. 2/2001-2002 issued by the Rajasthan Public Service Commission (for short "the R. P. S. C. ") the petitioner applied for appointment on the post of School Lecturer (Hindi ). The R. P. S. C. advertised 339 posts of School Lecturers (Hindi ). The petitioner was the only candidate who applied in response to the said advertisement against the posts of School Lecturers (Hindi) claiming reservation under the category of blinds. The R. P. S. C. issued to him admission card for appearing in the screening test conducted on 12. 05. 2002. A copy of the admission card placed on record as Annexure 2 reveals that the category of the petitioner was mentioned as "bl", which is the short form of "blind". When the result of the screening test was declared on 12. 9. 2001, the petitioner was shocked to find that he has been declared fail. Since there was reservation of 3% for handicapped candidates as per requirement of Sections 32 and 33 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act of 1995) and the petitioner was the only blind candidate who had applied for and appeared in the screening test, in that category he made inquiries from the office of the R. P. S. C. on 13. 09. 2002. He was informed that there was no reservation for the blinds for appointment on the post of School Lecturer (Hindi ). According to the respondents both blinds and partial blinds were eligible for and could be appointed only on the post of Music Teacher. In the present petition, the petitioner has assailed the action of the respondents in treating him ineligible. Case of the petitioner is that accused to Sections 32 and 33 of the Act of 1995, the respondents could not reject his candidature for appointment on the post of School Lecture (Hindi ). According to Rajasthan Disabled persons Employment Rules, 2000 (for short "the Rules of 2000) reservation on the post in question is required to be given even to the blind. The action of the respondents in treating him ineligible is therefore illegal beside being arbitrary and discriminatory. The respondent R. P. S. C. has contested the present petition and filed a detailed reply. It has raised preliminary objection as to maintainability of the present writ petition and quite interestingly the objection is to the effect that petitioner having applied in response to the advertisement and having appeared and failed in the screening test, could not be allowed challenged the selection. It has been stated that the screening test for short listing of the candidates was held on 12. 05. 2002. The petitioner also appeared in such screening test and failed to qualify the same. There was therefore no necessity to examine his eligibility conditions. It has been submitted that according to the Rules of 2000, benefit of reservation for appointment on the post of School Lecturer (Hindi) has been extended to only such physically handicapped candidates who fall in the category of "ol" and "bla" category which respectively represent the short form of orthopaedically handicapped in one leg and both legs. The petitioner by filing an additional affidavit has brought on record a subsequent but significant development in the shape of notification dated 10. 10. 2002 issued by the State of Rajasthan. The respondent State by this notification has sought to amend Rule 4 of the Rules of 2000. While the originally engraffed Rule 4 of the said Rules provided that the reservation to the extent of 3% shall be available to the candidates having disabilities identified by the State Government and included in schedule I and II appended to the said Rules. The aforesaid notification sought to substitute this rule. The substituted rule provided that reservation of 3% shall be given to candidates having disabilities as are identified by the Government of India from time to time. As a corollary thereto, schedule I and II originally appended to the Rules of 2000 were also deleted by amending Rule 6 of the said Rules by the self same notification.
(3.) I have heard Mr. P. S. Bhati, learned counsel for the petitioner, Mr. Tarun Joshi, learned counsel for the respondent RPSC and Mr. Rameshwar Dave, learned Dy. Government Advocate for the State. Mr. P. S. Bhati, learned counsel for the petitioner while reiterating the arguments raised in memorandum of writ petition argued that the respondents are obliged in law to provide reservation to the physically handicapped persons for appointment on the post of School Teacher (Hindi) as per provisions contained in Sections 32 and 33 of the Act of 1995. He argued that the State of Rajasthan has framed the Rules of 2000 with a view to conferring benefit of reservation to the persons with disability including those who are blind and partially blind. The Rules of 2000 were amended by notification of the Government dated 10. 10. 2002 thereby adopting the identification of the post as required by Section 32 of the Act of 1995 made by the Government of India. He has argued that even if the post of School Lecturer (Hindi) was not identified by the State of Rajasthan for the purpose of giving reservation to the blind, schedule I and II having now been deleted by the amendment in the Rules, the identification made by the Government of India would now prevail. He has invited attention of the Court towards notification No. 178 dated 30. 6. 2001 issued by the Government of India wherein, in exercise of its powers conferred upon it by Section 32 of the Act of 1995 it has identified the posts of University/college/school Lecturers for blind and low-vision which have been respectively listed at serial No. 24-27 on page 592 of the notification. He has argued that since the notification which has been adopted by the respondent State was issued by the Government of India on 30. 6. 2001 which in turn substituted an earlier notification dated 25. 11. 1986, under which post in question was already identified for blind, the petitioner cannot be considered ineligible for the purpose of providing reservation under the Rules of 2000 on the post of School Lecturer (Hindi ). Mr. P. S. Bhati has invited my attention to the notification No. F. 12 (9) Education/1/99 dated 21. 07. 2001 issued by the State Government whereby in deviation from the earlier provision, it was decided to give reservation to the extent of 3% to deaf, dumb and blinds for admission in the Graduation course of B. Ed. /shiksha Shastri. According to him once when the State Government decided to extend reservation to the blind for admission to the B. Ed. Course which makes them eligible for appointment on the post of School Lecturer (Hindi) and they cannot deny them reservation on the post of School Lecturer (Hindi ). Mr. P. S. Bhati has also relied on an unreported decision of the Hon'ble Supreme Court in A. I. Confederation of the Blind & Anr. vs. U. O. I. & Anr. (Writ petition (Civil) No. 115/1998), a Division Bench of this Court in Shiv Kumar Singh vs. State of Rajasthan & Anr. (D. B. C. Special Appeal (Writ) No. 255/1996, decided on 14. 08. 2001) and a Single Bench, decision of this Court in Surya Prakash Sharma vs. State of Rajasthan & Anr. (S. B. C. Writ Petition No. 3702/01, decided on 13. 09. 2002 ). With the help of these judgments, he argued that physically handicapped candidates with disability of blindness cannot be denied appointment on the post of School Lecturer (Hindi) not only in the services of the Rajasthan School Education but also in Rajasthan College Education Service. On the other hand, Mr. Tarun Joshi learned counsel appearing on behalf of respondent R. P. S. C. argued that the advertisement in question by which the applications were invited for appointment on the post of School Lecturer (Hindi) was issued by the R. P. S. C. on 8. 06. 2001. According to this advertisement, reservation to the extent of 3% meant for physically handicapped candidates under the Rules of 2000 for the post of School Lecturer (Hindi) was available to only such candidates who were orthopaedically handicapped in one leg and in both legs. So far as the candidates with disability of blindness or partial blindness were concerned, reservation for them was provided only for the post of Music Teacher. He argued that the amendment brought about in the Rules of 2000 vide notification of the government dated 10. 10. 2001 would apply only prospectively and not to an ongoing recruitment process more particularly when the result of the selection was already declared prior to the issuance of the said notification on 12. 09. 2002. Now that a long period of four years has gone by since then, no relief should be granted to the petitioner particularly when appointment on all the advertised posts have already been made. He therefore prayed that the writ petition may be dismissed. ;