Case Note & Summary
The petitioner, Santosh Gajanan Khilari, a person with 60% locomotive disability of the lower limb, filed a writ petition challenging the order of the Assistant Director, Higher Education, Mumbai Division dated 13/19 March 2010, insofar as it granted his appointment to the post of Junior Clerk with effect from 1 January 2010 instead of from 7 February 2007. The petitioner was selected and appointed by respondent no.3 college as a Junior Clerk with effect from 1 March 2007, subject to approval of respondent no.1. When the college sought approval, respondent no.1 objected on the ground that the post was reserved for persons with disabilities, but since there were only 27 posts in Group C, the petitioner could not be given the benefit of reservation as it would require a minimum of 33 posts to qualify for 3% reservation. In the reply affidavit, it was stated that there were 27 sanctioned posts in Group C and 52 in Group D, and as per Government Resolution dated 6 May 2004, a 100-point reservation roster was required to be maintained cadrewise separately. The petitioner's counsel argued that the G.R. specifically provided that Group C and D posts could be clubbed together for reservation, and the college had correctly clubbed the 27 Group C posts with 52 Group D posts, totaling 79 posts, making the petitioner eligible for reservation. The court examined the G.R. and found that it indeed permitted clubbing of Group C and D posts for reservation. The court held that the college had correctly clubbed the posts and the petitioner was entitled to appointment from the date of his initial appointment, i.e., 7 February 2007. The impugned order was set aside, and respondent no.1 was directed to grant approval to the petitioner's appointment with effect from 7 February 2007 with all consequential benefits.
Headnote
A) Service Law - Reservation for Persons with Disabilities - Clubbing of Group C and D Posts - The issue was whether Group C and D posts can be clubbed together for computing 3% reservation for persons with disabilities under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 33 - The court held that as per Government Resolution dated 6 May 2004, Group C and D posts can be clubbed together for reservation, and the college had correctly computed 79 posts in Groups C and D together, making the petitioner eligible for reservation - The impugned order granting appointment from 1 January 2010 instead of 7 February 2007 was set aside (Paras 4-6).
Issue of Consideration
Whether the petitioner, a person with 60% locomotive disability, is entitled to appointment as Junior Clerk with effect from 7 February 2007 instead of 1 January 2010, and whether Group C and D posts can be clubbed together for computing reservation for persons with disabilities.
Final Decision
The court allowed the writ petition, set aside the impugned order dated 13/19 March 2010 insofar as it granted appointment from 1 January 2010, and directed respondent no.1 to grant approval to the petitioner's appointment as Junior Clerk with effect from 7 February 2007 with all consequential benefits.
Law Points
- Reservation for persons with disabilities can be computed by clubbing Group C and D posts together
- Government Resolution dated 6 May 2004 permits clubbing of Group C and D posts for reservation
- Persons with Disabilities Act
- 1995
- Section 33
Case Details
2015 LawText (BOM) (08) 102
Writ Petition No. 190 of 2011
Mohit S. Shah, C.J., A.K. Menon, J.
Mr. Uni Sariputta Paramod Sarnath for the petitioner, Mr. J.S. Saluja, A.G.P. for respondent nos.1 and 5, Ms. Pranali S. Dixit for respondent no.2
The Joint Director of Higher Education & Ors.
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Nature of Litigation
Writ petition challenging the order of the Assistant Director, Higher Education, Mumbai Division granting appointment to the petitioner as Junior Clerk with effect from 1 January 2010 instead of from 7 February 2007.
Remedy Sought
The petitioner sought quashing of the impugned order and direction to grant approval to his appointment with effect from 7 February 2007 with all consequential benefits.
Filing Reason
The petitioner, a person with 60% locomotive disability, was appointed as Junior Clerk by respondent no.3 college with effect from 1 March 2007, but respondent no.1 granted approval only from 1 January 2010 on the ground that the post was reserved for disabled persons and there were insufficient posts in Group C to qualify for reservation.
Previous Decisions
The Assistant Director, Higher Education, Mumbai Division passed the order dated 13/19 March 2010 granting appointment from 1 January 2010.
Issues
Whether the petitioner is entitled to appointment as Junior Clerk with effect from 7 February 2007 instead of 1 January 2010.
Whether Group C and D posts can be clubbed together for computing reservation for persons with disabilities under the Government Resolution dated 6 May 2004.
Submissions/Arguments
Petitioner's counsel submitted that the Government Resolution dated 6 May 2004 specifically provides that Group C and D posts can be clubbed together for reservation, and the college had correctly clubbed 27 Group C posts with 52 Group D posts, totaling 79 posts, making the petitioner eligible for reservation.
Respondent no.1 contended that reservation for disabled persons must be computed cadrewise separately, and since there were only 27 posts in Group C, no post was reserved for disabled persons.
Ratio Decidendi
The Government Resolution dated 6 May 2004 permits clubbing of Group C and D posts for the purpose of computing reservation for persons with disabilities. Therefore, the college correctly clubbed the 27 Group C posts with 52 Group D posts, totaling 79 posts, making the petitioner eligible for reservation. The petitioner is entitled to appointment from the date of his initial appointment.
Judgment Excerpts
Direction are given to keep 100 point roster for each post & to keep category wise reservation for disabled. It is difficult to determine 3% reservation for disabled person when there are minimum number of posts. As per Central Government policy the reservation of the post in Group C & D can be made together whereas for Group A & Backward Class determination of the reservation should be made as per category.
There was nothing wrong on the part of respondent no.3 college in clubbing Group C and D posts together and accordingly proceeding on the basis that out of 79 posts in Group C and D in the aggregate (27 posts in Group C + 52 posts in Group D), the petitioner was entitled to the benefit of reservation for persons with disabilities.
Procedural History
The petitioner was appointed as Junior Clerk by respondent no.3 college with effect from 1 March 2007. The college sought approval from respondent no.1, who raised an objection regarding reservation. Respondent no.1 passed an order on 13/19 March 2010 granting approval from 1 January 2010. The petitioner filed the present writ petition challenging that order.
Acts & Sections
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: Section 33
