PUSHPENDRA SINGH BHATI, J. - (1.) 15.5.2018. - Learned counsel for the parties agree that the matter is squarely covered by the judgment passed by this Court in Ganga Ram v. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 14501/2015, decided on 03.05.201$$$). The judgment reads as under:- "1. The petitioner has preferred this writ petition under Article 226 of the Constitution of India, claiming the following reliefs: "i) By an appropriate writ, order or direction, the impugned cut off marks issued by Annexure 6 and 8 by the respondent RPSC may kindly be quashed and set aside up to the extent it does not provide cut off marks for the category of 'PH-Hearing Impairment. ii) By an appropriate writ, order or direction, the respondent-RPSC may kindly be directed to issue separate cut off marks for the 'PH Hearing Impairment' category and extend the benefit of horizontal reservation of 1% of vacancies for the said category under the provisions of Act of 1995 and Rules of 2000 and 2011 accordingly with regard to vacancies advertised for the post of Lecturer (School Education) Subject Economics by the advertisement dated 02.08.2013 (Anx.3); iii) by an appropriate writ, order or direction, the respondent RPSC may kindly be directed to consider the candidature of the petitioner for the post of Lecturer (School Education) Economics under the said category and if the petitioner after giving him benefit of reservation of PH-Hearing Impairment category is found to be meritorious, then his name may kindly be recommended to the State Government for appointment under the provisions of the Rules of 1970; iv) By an appropriate writ, order or direction the respondent State and Department may kindly be directed to provide appointment to the petitioner with all consequential benefits on the said post under the Rules of 1970; v) Any other writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case, may kindly be passed in favour of the humble petitioner; and vi) Cost of the petition may kindly be awarded in favour of the petitioner." 2. The brief facts of the case as noticed by this Court are that the petitioner belongs to the SC category and is suffering from Hearing Impairment disability. 3. The State Government issued an advertisement dated 02.08.2013 for recruitment to the post of Lecturer (School Education) in different subjects by way of School Lecturer Competitive Examination, 2013 conducted under the Rajasthan Education Service Rules, 1970. 4. Learned counsel for the petitioner has made a limited argument that though the petitioner has applied for the post of Lecturer (School Education) in pursuance of the advertisement dated 02.08.2013 but despite the fact that the State Government, in exercise of the power conferred in Section 73 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Central Act No. 1 of 1996) (hereinafter referred to as 'the Act of 1995') has framed the rules known as the Rajasthan Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2011 (hereinafter referred as 'Rules of 2011'), which provides for the same has been given in the recruitment in question. 5. Learned counsel for the petitioner has pointed out Sections 32 and 33 of the Act of 1995, which reads as follows: "32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall- (a) Identify posts, in the establishment, which can be reserved for the persons with disability. (b) at periodical intervals exceeding three year, review, the list of posts identified and up-date the list taking into consideration the developments in technology." 33. Reservation of posts.- Every appropriate Government shall appoint every establishment such percentage of vacancies less than three per cent for person or class of persons with disability of which one per cent each shall be reserved for persons suffering from- (i) blindness or low vision, (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 6. Learned counsel for the petitioner has harped upon the Rule 36 of the Rules of 2011 to establish the case that 3% of the vacancies were to be reserved for the persons or class of persons with disabilities of which, 1% each shall be reserved for persons suffering from Blind or Low Vision, Hearing Impairment, Locomotor Disability or Cerebral Palsy. 7. Learned counsel for the petitioner has also submitted that sub rule (1) of Rule 38 of the Rules of 2011 provides that where an Appointing Authority is of the opinion that functions of certain jobs of the post reserved under these rules cannot be carried out by the persons with disabilities and the Appointing Authority concerned shall indicate such post(s) to the Director/Commissioner, Social Justice and Empowerment, Rajasthan for allowing exemption from the operation of the reservation prescribed in rule 36 of these rules. Sub rule (2) of the Rule 38 of the Rules of 2011 stipulates that the case referred to by the Appointing Authority under sub rule (1) above shall be placed before the Committee by the Director/Commissioner, Social Justice and Empowerment Department. 8. Learned counsel for the petitioner states that as per sub rule (3) of the Rule 38 of the Rules of 2011, the committee constituted under sub-rule (2) shall after considering the proposals received for exemption either allow complete exemption from the operation of the reservation prescribed under rule 36 for persons with disabilities for these posts or shall transfer the reservation prescribed under rule 36 for persons with disabilities to such other category of posts where such disability would be a hindrance. 9. Learned counsel for the petitioner further states that the mandate of the Rule casts a legal obligation upon the respondents to have given 1% reservation to Hearing Impaired, in accordance with Rules of 2011 and once the State itself has decided through its own Committee, in tendum with Rule 38 (2) of the Rules of 2011 then the State shall be authorized to allow any such exemption from the operation of reservation. 10. Learned counsel for the petitioner further states that the respondents have failed to provide the details so as to connect the reservation for hearing impaired with the exemption provided for under Rule 38 of the Rules of 2011, as above. 11. Rule 36 and Rule 38 of the Rules of 2011, read as under: "36. Reservation for Persons with Disabilities.- In every establishment three percent of the vacancies shall be reserved for persons or class of Persons with Disabilities of which one percent each shall be reserved for persons suffering from:- (i) blindness or low vision; (ii) hearing impairment, (iii) Locomotor disability or cerebral palsy. In the posts identified for each disability by the Government of India under Section 32 and such reservation shall be treated as horizontal reservation. Provided that where the nomenclature of any post in the State Government is different from the post in Government of India or any post in the State Government does exist in any department of the Government of India, the matter shall be referred to the Committee constituted under rule 38 for identification of the equivalent post in the State Government. The Committee shall identify the equivalent post on the basis of nature of job and responsibility of each post." 38. Relaxation.- (1) Where an Appointing Authority is of the opinion that functions of certain jobs of the post reserved under these rules cannot be carried out by the persons with disabilities and the Appointing Authority concerned shall indicate such post(s) to the Director/Commissioner, Social Justice and Empowerment, Rajasthan for allowing exemption from the operation of the reservation prescribed in rule 36 of these rules. (2) The case referred to by the Appointing Authority under sub rule (1) above shall be placed before the Committee by the Director/Commissioner, Social Justice and Empowerment Department. The Committee shall be as under: (a) For the post in connection with the affairs of the State and falling within the purview of the Rajasthan Public Service Commission; JUDGEMENT_163_LAWS(RAJ)5_2018_1.html (b) For the posts falling outside the purview of the Rajasthan Public Service Commission:- JUDGEMENT_163_LAWS(RAJ)5_2018_2.html (3) The committee constituted under sub-rule (2) shall after considering the proposals received for exemption either allow complete exemption from the operation of the reservation prescribed under rule 36 for persons with disabilities for these posts or shall transfer the reservation prescribed under rule 36 for persons with disabilities to such other category of posts where such disability would be a hindrance. (4) Where in any recruitment year any vacancy reserved under Rule 16 cannot be filled up due to non-availability of a suitable person with disability or for any other sufficient reason, such vacancy shall be carried forward and filled up as per provisions of section 36 of the Act. (5) While selecting a person for appointment on any post identified suitable for any category of persons with disabilities, if other things are equal between the person with disability and the person without disability, preference shall be given to the person with disability even in the excess for the reservation prescribed for them." 12. Learned counsel for the respondents have at the outset, submitted that Rule 36 of the Rules of 2011 itself provides for identification of posts reserved for persons with disabilities in various groups. 13. Learned counsel for the respondents have shown the Chart/Schedule of the posts identified for the purpose of extending the reservation to the persons with disabilities in Group-C, and it is apparent from a bare perusal of the said Chart/Schedule that the posts of Lecturer (School Education) do carry the stipulation for consideration of the candidature of the hearing impaired persons. 14. Learned counsel for the respondents Mr. B.L. Bhati, makes a statement at the Bar that such identification of the posts has been made strictly in accordance with Rule 36 of the Rules of 2011, and the identification carried out by the Central Government has been adopted by the State Government for the purpose, and thus, the recruitment in question does have category of Hearing Impaired Disabled candidates for the purpose of reservation. 15. Learned counsel for the respondents make a statement that 3% reservation has been provided to the disabled persons, who can be included as per Rule 36 of the Rules of 2011, and have been identified excluding hearing impaired to be the beneficiary of the reservation meant for the disabled persons in the present recruitment. 16. Learned counsel for the respondents has relied upon the judgment of this Hon'ble Court in Smt. Radha Kumari v. RPSC and Ors. (S.B. Civil Writ Petition No. 6834/2014) decided on 16.01.2017 , which reads as follows: "The petitioner Smt. Radha Kumari, by way of the instant writ petition preferred under Article 226 of the Constitution of India had challenged the action of the respondents in selecting her as a Senior Teacher Gr.II Social Science pursuant to a recruitment notification dated 2.8.2013. The petitioner has raised a grievance that she filed her application form in the physically handicapped category (Hearing Impaired) in the questioned recruitment process. She secured 108.51 marks in the competitive examination. The respondent Rajasthan Public Service Commission who conducted the competitive examination declared the result thereof on 17.9.2014. However, in such result, cut off for the hearing impaired category was declared and only the cut off marks of Locomotors Disability(LD)/Cerebral Palsy (CP)/Blidness(BL) or Low Vision categories were declared. The petitioner claims violation of her fundamental rights guaranteed under the Constitution of India as well as under the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Act, 1995 and the Rules framed thereunder and has approached this Court by way of this writ petition praying for issuance of a direction to the respondents to select and appoint her as Sr. Teacher Gr.II Social Science Subject by giving her the benefit of reservation. The writ petition was preferred by impleading the Rajasthan Public Service commission and the Board of Secondary Education as a party respondent to the writ petition. However, subsequently an application was filed whereby the State of Rajasthan was also impleaded as a party respondent to the writ petition. Reply to the writ petition has been filed by the respondent R.P.S.C. with a specific assertion that distribution of posts was the function of the State Government which in its own wisdom did provide any reservation for the hearing impaired category in the questioned recruitment and thus the Board did declare the cut off for the said category. The petitioner obtained only 108.51 marks whereas the cut off of OBC category was declared at 319.83 marks. The BL/LV and LD-CP category cut off was also fixed significantly higher than the marks secured by the petitioner. Reply to the writ petition has been filed on behalf of the respondent no. 2 Secondary Board of Education wherein a specific plea is taken that under Rule 32 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Rules, the Government has the power to identify particular category of disablement for the posts advertised looking to the nature of the job requirement. The category of hearing impaired was identified and included for recruitment in the Sr. Teacher Gr.II Social Science wherein reservation was only provided to Locomotor/Blind or Low Vision category candidate considering the fact that conversation between Teacher and student is imperative for imparting education in the Social Science subject. Thus, the petitioner was simply treated to a OBC woman candidate and in the physically disabled category. She did obtain cut off marks in the merit of OBC category and thus could be selected in the questioned recruitment process. I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record. It cannot be denied that the State Government while applying disabled reservation, has the power to identify the particular post looking to the nature of disability in view of Rule 32 Rajasthan Persons with Disabilities (Equal opportunities, Protection of Rights and Full participation) Rules, 2011. Specific case as set up in the reply of the respondent no. 2 is that the posts of Sr. Teacher Gr.II in Social Science was identified under the Rules for being offered to candidates having hearing impairment and that is why reservation was provided for the said category. The said plea taken in the reply of the respondent no. 2 has been controverted by the petitioner till date. That apart, the justification behind the action in providing reservation to the hearing impaired category while making recruitment on the posts of Sr. Teacher Gr.II in Social Science subject is unexceptional. A teacher in Social Science subject while imparting education would be required to extensively interact with the students and that is why a conscious decision has been taken by the respondents to provide reservation to this category of physically challenged candidates while making selection of teaching for the Social Science subject. The decision being in accordance with the statutory provisions cannot be questioned. Resultantly and as the petitioner failed to obtain requisite cut off marks in the OBC category, this Court is of the firm opinion that she was entitled to be selected as Sr. Teacher Gr.II in the questioned recruitment process. Consequently, the writ petition being devoid of any merit is hereby rejected." 17. Learned counsel for the respondents stated that the aforementioned precedent law is directly applicable to the present set of facts as it also pertained to the post of Lecturer (School Education). 18. After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that since the advertisement itself reflects the applicability and adoption of Rules of 2011 for the purpose of carrying out the recruitment by the respondents in pursuance of advertisement dated 02.08.2013 for the post of School Lecturer Competitive Examination, therefore, the precedent law cited is absolutely applicable in the present case. 19. This Court further takes note of the fact that Rule 36 of the Rules of 2011 provides for the reservation for persons with disabilities particularly, the three categories of disabilities mentioned therein, which have also been referred hereinabove, in relation to the posts identified for each disability by the Government of India under Section 32 of the Act of 1995 and such reservation shall be treated as horizontal reservation. The further stipulation that where the nomenclature of any post in the State Government is different from the post in Government of India or any post in the State Government does exist in any department of the Government of India, the matter shall be referred to the Committee constituted under rule 38 for identification of the equivalent post in the State Government. The Committee shall identify the equivalent post on the basis of nature of job and responsibility of each post. 20. Learned counsel for the respondents have rightly pointed out that Rule 38 of the Rules of 2011 is only pertaining to relaxation of exemption from operation of reservation as prescribed in Rule 36, which can be done only after the posts are identified as per Rule 36, and thereafter, if there is any kind of distinction in nomenclature of any post in State Government, as compared to Central Government, then the identification of the equivalent post by the Committee, as per Rule 38, shall be done on the basis of nature of job and responsibility of each post. 21. This Court also finds strength in the arguments of learned counsel for the respondents that the identification of the posts so made by the State Government, is as adopted from identification made by Government of India whereby the posts have been identified for each disability, and such posts are thereby demarcated in the Schedule. The said Schedule reads as under: POST IDENTIFIED FOR BEING HELD BY PERSONS WITH DISABILITIES (OH including CP and LC, VH and HH) IN GROUP C JUDGEMENT_163_LAWS(RAJ)5_2018_3.html 22. In light of the aforementioned precedent law and the aforementioned specific provisions made for identification of the posts for each disability, this Court finds that the posts which are under advertisement have already been identified for other disabled categories while excluding the category of Hearing Impaired for the purpose of Lecturer (School Education) and thus, 3% reservation has been granted. This Court derives its conclusion on the basis of statement made by learned counsel for the respondents Mr. B.L. Bhati that the State of Rajasthan has adopted the identification of posts for each disability as made by the Central Government. Thus, the post in question is well identified and demarcated for disability excluding disability of hearing impaired and thus, 3% reservation for disabled has been given in the spirit of Section 33 of the Act of 1995 and Rule 36 of the Rules of 2011 to the category identified. 23. In this view of the matter, the present writ petition does not call for any interference and same is accordingly dismissed. It is needless to say that if hearing impairment is appointed on the post in his own respective category, this judgment shall not be an impediment in undertaking such an exercise."
(2.) In light of the aforequoted judgment, the writ petition is dismissed in the same terms. Petition Dismissed.;