1. Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. T.D. Majumder, learned G.A. appearing for the respondents No.1 & 2 and Mr. T. Debbarma, learned counsel appearing for the respondent No.3.
2. The petitioner is an aspirant to get recruitment to Tripura Civil Service, Grade-II has challenged the Tripura Public Service Commission''s advertisement No.04 of 2016, whereby the applications are invited in the prescribed form from the bonafide citizens of India for selection to Tripura Civil Service, Grade-II and Tripura Police Service, Grade-II. According to the petitioner, he is a physically challenged person having Low Vision. Otherwise, the petitioner has all the requisite qualifications to participate in the said selection process but in the advertisement No.04 of 2016 dated 01.05.2016, hereinafter referred to as the impugned advertisement, while giving the details of the available post under different categories, the following entry has been made:
Under Scheduled Tribe (ST) category [PH 1 ST Locomotor or
Low Vision + PH 1 ST Locomotor]. Overall distribution of the
posts/vacancies for Tripura Civil Service, Grade-II as made is:
Scheduled Caste (SC)-06, ST-11, Un-reserved (UR)-13 i.e. total 30
posts whereas for the Tripura Police Service, Grade-II the posts are
disturbed as: SC-03, ST-05 and UR-07 i.e. total 15 posts. The
posts/vacancies reserved for physically challenged person [2 Nos.]
have been earmarked for ST category. Those posts or vacancies
have been so earmarked by applying the reservation rule and those
2(two) posts are part of the total 11 (eleven) Nos. of posts
reserved for ST category candidates. According to the petitioner,
the reservation rule cannot be applied on the posts or vacancies
reserved for the physically challenged persons. For purpose of
filling up of the posts earmarked for the physically challenged
person in two categories as provided under Section 33 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995. Section 33 of the said Act
provides as under:
"33. Reservation of posts- Every appropriate Government shall appoint in every establishment such percentage of vacancies not 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."
3. It has been urged that the reservation rule cannot apply on the posts or vacancies earmarked for the physically challenged persons in terms of Section 33 of the said Act. But after selection, if it is found that the posts/vacancies earmarked for the physically challenged person, someone from SC & ST category has been selected then the said person shall be adjusted against reserved category post vertically.
4. Mr. A. Bhowmik, learned counsel appearing for the petitioner has submitted that by the notification under No.F.23(7)- GA(P&T)/98(Vol.II) dated 16.11.2012 the General Administration (Personnel & Training) Department had directed to identify the posts to be reserved under the said Act. Even in that notification, there is no direction to apply the reservation rule on the identified posts/vacancies but on a previous order under G.O. No.17 dated 31.03.2001, it has been provided that 100 Point Roster has to be modified by way of amendment for extending 100 Point Roster to 400 points to accommodate reservation for the physically challenged persons. It has been further provided in the said order dated 31.03.2001 that the categories of ''disabled persons'' have been identified and the percentage of reservation has been earmarked for 3%. That has to be adjusted at the ratio of 1% each for the persons suffering from (i) blindness or low vision (ii) Hearing impaired and (iii) Loco motor disability or cerebral palsy. It has been also provided in the said order dated 31.03.2001 that:
"The above categories of disabled persons may be adjusted against the posts indicated in the Scheduled under Sl. No.12 of the Tripura Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) First Amendment Act, 1997 as follows:
Category 1st Cycle 2nd Cycle 3rd Cycle 4th Cycle Sch. Castes Point No.44 for PH (Hearing impaired) NIL Point No.44 for Ex-Serviceman NIL Sch. Tribes Point No.45 for Ex-Serviceman Point No.45 for PH (Hearing impaired) Point No.45 for Ex-Serviceman Point No.45 for Blind or low vision Un-reserved Point No.15 for Hearing impaired. Point No.95 for Blind or low visionPoint No.15 for Locomotor or cerebral Palsy. 95 for hearing impaired.Point No.15 for Blind or low vision. Point No.72 for locomotor and 95 for hearing impaired.Point No.15 for Blind or low vision. Point No.95 for locomotor
It has been further noted that thereafter point No.44
(SC) in the 5th Cycle may be reserved for one who suffers from
blindness or low vision. Point No.45(ST) in the 6th Cycle may be
reserved for locomotor and point No.44(SC) in the 9th Cycle may be
reserved for the person of locomotor disability.
5. Mr. Bhowmik, learned counsel has submitted that such
procedure is contradictory to the provisions of Sections 32 and 33
of the said act and hence, those provisions cannot stand the
scrutiny of law, even if there are not specifically challenged. Mr.
Bhowmik, learned counsel has relied on a decision of the apex
court in Indra Sawhney etc. vs. Union of India, reported in AIR
1993 SC 477, where it has been observed as under:
"95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ''vertical reservations'' and ''horizontal reservations''. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."[Emphasis added]
6. Mr. Bhowmik, learned counsel having referred the said proposition has submitted that the identified posts for the persons with disability, PWD in short, falls under Clause-1 of Article 16 of the Constitution of India. For those posts, first the horizontal reservation would apply and thereafter, the reservation would be interlocked against the vertical reservation. The persons selected by means of horizontal reservation belonging to SC category or the UR category they would be interlocked under the vertical reservation by adjustment. It may be mentioned that here is no challenge in the writ petition regarding the identification of posts. The identification would be made by the appropriate government under Section 33 of the said Act.
7. Mr. T. Debbarma, learned counsel appearing for the respondent-TPSC and Mr. T.D. Majumder, learned counsel appearing for the respondents No.1 & 2 have submitted that in terms of Section 32 of the Act, the posts have been identified for PWDs under the distinct category as provided under Section 32 of the said Act. Accordingly, those posts as reflected in the impugned advertisement have been identified. Mr. Debbarma, learned counsel appearing for the TPSC has contended that the Public Service Commission has acted on the requisition made by the respondent No.2.
8. Mr. Majumder, learned G.A. appearing for the respondents No.1 & 2 has further submitted that following the 4th Cycle of 100 Point Roster, the posts in the TCS, Grade-II have been identified. In the process no post has been found for UR(PH) category as there is no such vacancy in the said category. However, Mr. Majumder, learned G.A has not elaborated how a separate and distinct scheme of reservation can be moulded by applying the reservation rule under Article 16(4) of the Constitution as in Indra Sawhney (supra) such moulding has been discarded.
9. After appreciating the contentions of the learned counsel for the parties, it appears that the process that has been followed by the respondents is not in conformity to the provisions of Sections 32 and 33 of the said act. The reservation for backward classes is called vertical reservation and the reservation for the persons with disability (PWDs) and Ex-serviceman is called horizontal reservation. The horizontal reservation cuts across the vertical reservation and that process is called interlocking reservation. The persons selected against the quota for the persons with the disabilities (PWDs) have to be placed in the appropriate category viz. SC/ST/UR depending on the category to which they belonged in the roster, meaning for reservation of SCs/STs etc. To illustrate, if any given year, there are 2(two) vacancies reserved for the persons with disabilities (PWDs) and out of two persons with disabilities(PWDs) so appointed, one belongs to SC and the other to the unreserved category, then the disabled SC candidate shall be adjusted against the SC point against the reservation roster and the unreserved category against unreserved point in the relevant reservation roster. In case, none of the vacancies falls on point to reserve for the SC, the PWD belonging to SC shall be adjusted in future against the next available vacancy reserved for SC. Thus, it is amply clear that initially the posts/vacancies will not be earmarked for reserved category even following the 4 Cycles of 100 Point Roster. In this regard, in Rajeev Kumar Gupta and others vs. Union of India and others, reported in AIR 2016 SC 3228, the apex court has observed as under:
"24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post."[Emphasis added]
10. Again in Rajeev Kumar Gupta (supra) it has been held that Article 16(1) is an instance of classification. The principle is that the State shall not discriminate (which normally includes preference) on the basis of any one of the factors mentioned in Article 16(1). Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. It may, therefore, be said that the reservation under Article 16(1) of the Constitution curves out an exception from the reservation as provided being enabled by Article 16(4) of the Constitution. Hence, before selection and recruitment, the reservation for backward classes [such as SCs/STs] cannot be applied to the identified posts for the persons with disability (PWDs). Initially, they shall be selected and recruited and thereafter, considering their status they shall be adjusted in the 4 Cycles of 100 Point Roster by way of interlocking reservation.
11. Having held thus, this Court is of the considered view that the impugned advertisement so far it is concerned with the Persons with Disability [PWDs] cannot sustain the scrutiny of law and accordingly, the same is interfered with. For those posts a fresh advertisement be issued to fill up those vacancies or the identified posts along with the other candidates, if practicable. If needed, a fresh requisition be issued by the respondents No.1 & 2 in that event. Such requisition be issued within 7(seven) days from today and the impugned advertisement shall be published with a fresh schedule so that all categories of eligible PWDs can apply and participate in the selection process.
In the result, the writ petition is allowed to the extent
as indicated above.
There shall be no order as to costs.
