PUSHPENDRA SINGH BHATI,J. - (1.) This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers: "A. By an appropriate writ, order or direction, the respondents may be directed to grant appointment to the petitioner as Teacher Grade III in Subject Urdu under the physically handicapped category. B. Any other writ, order or direction; this Hon'ble Court deem appropriate may also be passed in favour of the petitioner."
(2.) Learned counsel for the parties jointly state that the matter is covered by the judgment rendered by this Court in S.B. Civil Writ Petition No. 11382/2017 (Mohammed Farhan v. State of Rajasthan and Ors. decided on 08.01.2018), which reads as under: " 1. These writ petitions under Article 226 of the Constitution of India have been preferred, in sum and substance, with the following prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S.B. Civil Writ Petition No. 11382/2017. 2. Petitioner has preferred this writ petition with the following prayer:- "1. By an appropriate writ order or direction, any order denying the candidature of the petitioner for his selection and appointment on the post of Teacher Grade III (Level-II) Urdu against the available of PH B.L. and PH H.I. in pursuance of the advertisement year, 2013 may kindly be quashed and set aside. 2. by an appropriate writ order or directions, the respondents may kindly be directed to consider the candidature of the petitioner for the post of Teacher Grade III (Level-II) Urdu against the category of PH B.L. and PH H.I. as per his merit status on account of non-availiability of the candidates in the Zila Parishad Jodhpur in pursuance of the advertisement year, 2013. 3. By an appropriate writ order or directions, the respondents may kindly be directed to permit the petitioner in the further selection process while consider his candidature against the available post of PH B.L and PH H.I. for the post of Teacher Grade-III (Level-II) Urdu in pursuance of the advertisement year, 2013. 4. By an appropriate writ order or direction, the respondents may klindly be directed to afford the petitioner appointment on the post of Teacher Grade-III (Level-II) Urdu in his respective category against the available two posts of PH B.L. and PH H.I. with all consequential benefits in pursuance of the advertisement year 2013 if otherwise she stands in merit. 5. Any other appropriate 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 petitioner." 3. Learned counsel for the petitioner has stated that the petitioners are qualified persons having the B.Ed. degree for being appointed as a Teacher Grade-III. The petitioner belongs to Physical Handicap Category and admittedly have participated in the Teacher Grade-III recruitment arising out of the advertisement of year 2013 whereby the combined competitive examination was held. As per the Act of Equal Opportunities, Protection of Rights and Full Participation 1995, the relevant portions dealing with the proposition of applying the reservation for the persons with the disabilities and carrying them forward are Section 33 and Section 36, which read as follows:- Section 33 - Reservation of posts.-Every appropriate Government shall appoint in every establishment such percentage of vacancies less than three per cent for persons 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. Section 36 - Vacancies filled up to be carried forward.-Where in any recruitment year any vacancy under section 33 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 in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government. 4. At the outset, learned counsel for the petitioner submits that if respondents operate the horizontal reservation for handicap persons by inter-changing the category of Blindness or Low Vision with Hearing Impairment and Locomotive Disability then the complete quota of physical handicapped persons could be filled. 5. Learned counsel for the petitioner has relied upon the judgment passed by a coordinate Bench of this Court in Gosai Ram v. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 10982/2012), decided on 11.07.2013. The relevant portion of this judgment reads as under:- "9. I have considered the rival submissions and perused the material on record. 10. Indisputably, out of the 7 posts reserved for differently abled persons belonging to the different categories of disability, 5 posts were filled in from amongst the candidates belonging to the different categories specified, however, 1 post belonging to Blindness/LV category and 1 post belonging to Hearing Impairment category remained unfilled on account of non availability of suitable persons. It is disputed before this court that the posts which remained unfilled were available to be filled in as per the mandate of Section 36 of the Act of 1995 by interchange among the 3 categories. Since, no suitable persons belonging to other 2 categories i.e. Blindness/LV and Hearing Impairment were available, obviously, by way of interchange, both the posts remaining vacant, were required to be filled in from amongst the available candidates belonging to LD/CP category. It is really strange that while making averments regarding the filling up of 1 post which remained unfilled in the Hearing Impairment category, from amongst the candidates belonging to LD/CP category, the respondents in their reply to the writ petition have remained completely silent regarding 1 post belonging to Blindness/LV category, which also remained vacant on account of non availability of the candidates belonging to the said category. As stated by learned Additional Advocate General before this court, the said post which remained unfilled on account of non availability of the candidates belonging to Blindness/LV category, has been offered for appointment to the General category. Thus, it is apparent that the respondents have deliberately suppressed the facts regarding filling up of the post, belonging to Hearing Impairment category from amongst the candidates belonging to General category de hors the provisions of Act of 1995. It is pertinent to note that Rule 37 of the Rules only deals with the Maintenance of Rosters and it in no manner operate against the mandate of the provisions of Section 36 of the Act. As noticed above, Section 36 of the Act of 1995 specifically provides that if any vacancy belonging to differently abled category cannot be filled up due to non availability of suitable person with a disability or for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in succeeding recruitment year also, suitable person with disability is available, it may first be filled by inter change among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability. As a matter of fact, the circular dated 5.9.12 relied upon by the learned AAG, only provides that posts belonging to Hearing Impairment category, which remained vacant, shall be filled in from amongst the eligible candidate belonging to Blindness/LV and LD or CP categories in the ratio of 50:50. It nowhere mandates that any of the posts reserved for differently abled persons can at all be filled in from amongst the candidates belonging to the General category, despite availability of persons with disability. Suffice it to say that an illegal action sought to be justified by the respondents on the pretext of alleged confusion prevailing, cannot be countenanced by this court. 11. Thus, the petitioner belonging to the LD/CP category being available as per his merit position in the said category for appointment on the post remained unfilled on account of non availability of the candidates belonging to Blindness/LV category, he was entitled to be appointed on the said post and the vacancy could have been filled in by appointment of the candidate belonging to General category. In this view of the matter, in considered opinion of this court, impugned action of the respondents in denying appointment to the petitioner and filling up the post from amongst the General category being in clear defiance of the provisions of Section 36 of the Act of 1995, cannot but deemed to be illegal and arbitrary and falls foul of Article 14 and 16 of the Constitution of India and therefore, the writ petition deserves to be allowed, as prayed for. 12. It is to be noticed that Act of 1995 has been enacted by the Parliament inter alia with an object to spell out the responsibility of the State towards the prevention of the disabilities, protection of rights, provision of medicare, education, training, employment and rehabilitation of persons with disabilities. Undoubtedly, it is bounden duty of the State to take all necessary steps to ensure that differently abled persons are extended equal opportunities in all spheres of development including the public employment. It is really unfortunate that the respondent authorities acting in a perfunctory manner have attempted to fill up the post meant for differently abled persons by appointment of a person other than a person with disability in gross violation of mandate of provisions of Section 36 of the Act of 1995. On the facts and in the circumstances of the case, keeping in view, the unequivocal provisions of Section 36 of the Act of 1995, this court is constraint to observe that the action of the respondents in denying the differently abled person his legal entitlement on the pretext of alleged confusion prevailing and suppressing the relevant facts from the notice of this court, apparently lacks bona fides and deserves to be highly deprecated. The petitioner has been unnecessarily dragged to the litigation and therefore, on the facts and in the circumstances of the case, the respondents deserves to be saddled with exemplary cost. 13. In the result, the writ petition is allowed. The respondents are directed to take appropriate steps and offer appointment to the petitioner on the post of Teacher Gr.III (Level-II) in the subject Sanskrit as per his merit position in the category of LD/CP differently abled persons against the post belonging to the Hearing Impairment category, which remained unfilled on account of non availability of the candidate belonging to the said category. The entire exercise pursuant to this order shall be completed by the respondents within a period of one month from the date of receipt of certified copy of this order. The petitioner shall be entitled for cost from the respondents quantified at Rs. 10,000/-." 6. Learned counsel for the petitioners have harped upon the issue that out of total vacancies advertised for a particular district, all vacancies are being filled by the respondents as reflected in the select list. The constitution of the select list reflects that for the category of physical handicap persons for which the candidates are available, are being filled by general category candidate. Learned counsel for the petitioner has further pointed out that in contravention to the legislative intention of Section 36 of the Act of 1995, the respondents have in fact permitted the post to be filled by General category candidate. 7. Learned counsel for the petitioner has also stated that similar vacancies had arisen for Teacher Grade-III in year 2012 and the strict operation of Section 33 and 36 was made which required intervention of this Court in the shape of precedent law so cited Gosai Ram (Supra). Learned counsel for the petitioners has further stated that the legislative intention of Section 36 of the persons with disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was that if any vacancies remained to be filled by the respective disabled persons in accordance with Section 33 of the Act then such vacancies shall be carried forward in the succeeding recruitment year and could be interchanged amongst three categories if the particular category of disabled person was available. 8. Learned counsel for the petitioner has further relied upon the judgment passed by a coordinate Bench of this Court in Pintu Kharol v. The State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 2232/2015) decided on 30.11.2016. The relevant portion of this judgment, reads as under:- "As a consequence of the above discussion, this Court is of the firm opinion that the action of the respondents in denying appointment to the petitioner in the questioned recruitment process as a Teacher Gr.III English Subject in the specially abled category despite being successful and standing in merit is highly arbitrary, unjust and unconstitutional. Resultantly, the writ petition deserves to be and is hereby allowed. The respondents are directed to offer appointment to the petitioner as a Teacher Gr.III (English Subject) in the Zila Parishad Bhilwara on the basis of his merit position against the seat reserved for specially abled category. The entire exercise as directed above shall be completed within a period of three months from today. The petitioner shall be entitled to notional benefits from the date of appointment of other successful candidates in the questioned recruitment process." 9. Learned counsel for the respondent has however pointed out that another judgment passed by Jaipur Bench of this Court in Rama Kherwal v. State of Rajasthan and Anr. (S.B. Civil Writ Petition No. 6544/2015), decided on 08.09.2015. The relevant portion of this judgment, reads as under:- "I have considered the rival submissions made by the parties and perused the record. The undisputed fact of this case is that while issuing advertisement for the post of Teacher Gr.III (Level-II), one post was kept reserved for physically disabled candidates in the category of blind. No candidate of the said category was available for appointment after declaration of the result of the selection test. The petitioner made a claim for appointment as cut-off marks for the category was kept at 164.50, whereas petitioner has secured 167.23 marks. It is however admitted that claim of the petitioner is against the post meant for blind person. If one post remains vacant from and amongst one category out of three categories of disabled persons, how it has to be dealt with has been provided under Section 36 of the Act of 1995. For ready reference, the said provision is quoted thus: "36. Vacancies filled up to be carried forward - Where in any recruitment year any vacancy under section 33, cannot be filled up due to nonavailability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is available, it may first be filled by interchange among the three categories and only when there is no parson with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government." Section 36 of the Act of 1995 provides for carry forward of unfilled seat/post for a period of one year and if in the succeeding year also, no candidate is found available from the particular category, then to interchange from other category of person with disability. In the instant case, petitioner has come with the pleading that one post reserved for blind person was carried forward from the preceding year. In absence of it, it is to be presumed that one post of blind person is of the current year and has to be dealt with as per Section 36 of the Act of 1995. In the light of the aforesaid provision, a direction cannot be given to the respondents to interchange the post from other category. If such a direction is given, it would be contrary to the statutory provision. At this stage, it would also be necessary to clarify that even if any rule exists in conflict to the Act, what will prevail is provisions of the Act, though Rules of 2011 are also in conflict with the Act of 1995. For ready reference, Rules 36 and 37 are also reproduced hereunder: "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." "37. Maintenance of Rosters.- (1) All establishments shall maintain separate 100 point reservation roster registers for determining/effecting reservation for the disabled. (2) Each register shall have cycle of 100 points and each cycle of 100 points shall be divided into three blocks comprising the following points: 1st Block-Point No. 1 to point No. 33 2nd Block-Point No. 34 to point No. 66 3rd Block-Point No. 67 to point No. 100 (3) Points 1, 34 and 67 of the roster shall be earmarked and reserved for persons with disabilities-one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts. (4) All the vacancies shall be entered in the relevant roster. If the post falling at point no. 1 is identified for the disabled or the head of the establishment considers it desirable to fill it up by a disabled person or it is possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities. (5) There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block. (6) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start. (7) If the number of vacancies in a year is such as to cover only one block or two, discretion as to which category of the disabled should be accommodated first shall vest in the head of the establishment, who shall decide on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc." The perusal of rule does show any arrangement contrary to what has been provided under Section 36 of the Act of 1995. In the light of discussion made above, prayer made by the petitioner cannot be accepted. So far as judgment in the case of Abid Solanki (supra) is concerned, it has been decided on its own fact. The learned counsel therein did bring Section 36 of the Act of 1995 to the notice of the court. Thus judgment in the case of Abid Solanki (supra) would provide any assistance to the petitioner." 10. Thus, the emphasis of the learned Additional Advocate General Mr. S.S Ladrecha is that in accordance with Section 36 of the Act of 1995, the respondents are required to carry forward the vacancies to the next year and if the respective physical handicap person is available, the same could be inter-changed between the categories of physical Handicap person, however, even then if the post remained vacant then it could be filled by General category persons. 11. Thus, the basic dispute regarding the recruitment of Teacher Grade-III is operating the benefit of physically handicap quota under Section 33 and deciding the consequence of a person of the stated disability being available in the recruitment process. 12. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that the mandate laid down in Section 36 of the Act of 1995 is conclusive and each precedent law requires the respondent to operate the clear mandate given in Section 33 and 36. Thus, the respondents are directed that the persons of Blindness/Low Vision, Hearing Impairment and Locomotive disability or Cerebral palsy shall be appropriately considered in the 3% seats reserved for them in their own category and in case, such post remained unfilled in the similar recruitment in 2012 then Section 36 shall be operated and respondents shall fill the carried forward seats by inter-changing the candidates of these three disabilities mentioned in Section 33 of the Act of 1995. The respondents shall be required to do the following:- A. Determine the total vacancies of physically handicapped which are 3% in the recruitment of 2012 and give the exact details of the reservation implemented in 2012 in the subcategories mentioned in Section 33 of the Act of 1995. B. Whatever seats of disabled persons due to non-availability of respective category of candidates from 2012 which were filled by their respective categories, the same number of seats shall be filled in 2013, by the respondents by inter-changing the respective categories in the spirit of Section 36 of the Act of 1995. 13. Further, the 2013 physically handicapped candidates shall be given appointment in their respective categories as per the Section 33 but if the seats remained unfilled in the 2012 recruitment then the inter-change shall be permissible for the respondents to make the necessary recruitment to the same number of seats unfilled in accordance with Section 36 of the Act of 1995 in 2013 recruitment. The respondents shall be required to demarcate exact number of seats @ 3% of the total number of seats which are recruited and are being recruited for the year 2012 and 2013 and take the decision strictly in terms of Section 33 and 36. It is further made clear that the respondents shall be required to give effect to the legislative intentions in the Section 36 of the Act of 1995 and permit inter-change amongst the physically handicapped candidates. In case, the particular category of physical handicapped persons is not available and in case the same was also not available in the previous recruitment year on account of the particular physical handicap person being not available then such inter-change between the physically handicapped persons shall be legally determined and implemented by the respondents within a period of 3 moths from today for the recruitment year 2013. 14. On the aforesaid consideration, if seats of physically handicapped persons are found vacant for the year 2013 which could not be filled by their respective categories in 2012, then the petitioners shall be given appointment appropriately in accordance with their merit by giving effect to the inter-change amongst the physically handicapped persons. 15. The writ petitions are disposed of accordingly. "
(3.) In light of the aforequoted judgment, the present writ petition is also disposed of in the same terms.;