The Principal, Belda College v. The State Of West Bengal And Others.

Protik Prakash Banerjee, J.:— Two sets of appeals are before this Court. The appellants in both cases are aggrieved by the same order. This is the order dated July 5, 2017 passed by the Learned Single Judge. In W.P. No. 2351 (W) of 2017 [Sri. Shibu Sarkar v. State of West Bengal]. By this order, the Learned Single Judge allowed the writ petition under Article 226 of the Constitution of India and declared the appointment of the Appellant in MAT No. 1192 of 2017 (respondent No. 21 in the writ petition) and any consequential action taken in aid of such appointment to be a nullity. MAT No. 1191 of 2017 has been preferred by the college authorities, being the Principal of the College represented by Mr. Soumen Kumar Dutta and Mr. G.N. Imrohi. MAT No. 1192 of 2017 has been preferred by the respondent No. 21 in the writ petition, being the appointee, whose appointment was declared to be a nullity. He is represented by Mr. L.K. Gupta, Learned Senior Advocate, ably assisted by Mr. Ataraup Banerjee and instructed by Mr. Tapodip Gupta, Learned Advocates. These appeals were consolidated and heard analogously, alongwith the interlocutory applications made therein, by consent of the parties expressed through their learned Advocates.

2. In the writ petition, the principal challenge was to the appointment of persons pursuant to the declaration of vacancies by the employer, the Belda College, on May 24, 2016. The relevant principal prayers are as follows:—

a. A writ of and/or in the nature of Mandamus to issue commanding the respondent authorities concerned to take immediate and/or appropriate steps to cancel all the appointments already given to the candidates thereby cancelling and/or setting aside the advertisement being memo No. B.C./1626/16 dated May 24, 2016 from the office of the Principal, Belda College, District-Paschim Medinipur declared about the vacancies at Belda College in the category of Group C & Group D.

b. A writ of and/or in the nature of Mandamus to issue commanding the respondent authorities to take immediate and/or appropriate steps to issue a new notification thereby inviting applications from various candidates for Job Vacancy at Belda College.

c. A writ of and/or in the nature of Mandamus to issue commanding the respondent authorities to consider the representation dated January 4, 2017 made by the petitioner before the respondent authorities and dispose of the same by passing a reasoned order after giving a chance of hearing to the petitioner within a stipulated period of time.

d. A writ of and/or order and/or direction in the nature of Certiorari do issue calling upon the respondents and/or each of them, their servants, agents or assigns to certify and transmit to this Hon'ble Court all the records relating to the instant matter so that necessary orders may be passed and conscionable justice be done.

e. Rule Nisi in terms of prayers (a) to (d) above.

f. An Order may be passed thereby directing the respondent authorities to take immediate steps to cancel all the appointments already given to the candidates thereby declaring the advertisement being memo No. B.C./1626/16 dated May 24, 2016 from the office of the Principal, Belda College, District-Paschim Medinipur as illegal.

g. An Order may be passed thereby calling for a status report from the respondent authorities disclosing the names of candidates to whom appoint (sic!) already given by virtue of the advertisement being memo No. B.C./1626/16 dated May 24, 2016 from the office of the Principal, Belda College, District-Paschim Medinipur and the reasons thereof.

h. Ad-interim order in terms of prayer (f).

i. Costs of and incidental to this application be paid by the respondents.

j. Such further and/or other order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.

3. The selection process impugned resulted in the appointment of those persons who had been originally impleaded as respondents No. 15 to 22 in the writ petition, but pursuant to leave being granted by the Learned Single Judge, on February 22, 2017, the respondents No. 15 to 20 and 22 were struck off the array and the register and their names and styles expunged, presumably because only the respondent No. 21 in the writ petition had obtained appointment as a person with disability, since, as shall become clearer, it is on the point of whether the respondent No. 21 in the writ petition with an alleged disability of hearing impairment was entitled to be appointed to a post which the petitioner claims was to be reserved for a person with the disability of visual impairment, which was at res in the writ petition and is in these appeals.

4. The appeals are contested by the Writ Petitioner-who is the respondent No. 15 in MAT No. 1191 of 2017 and the respondent No. 1 in MAT No. 1192 of 2017-while the official respondents have joined together to impeach, once again before the Appellate court, the locus of the writ petitioner to have instituted the writ petition and have thus supported the Appellants. On merits, the records do not show that the Appellants have much to say, though that did not stop them from going on and on like an ocean of stories.

5. Perhaps this discussion will be more comprehensible if we infuse it with the bare facts necessary to appreciate the scope of the controversy.

The FACTS:

6. The Appellant in MAT No. 1191 of 2017 declared job vacancies at Belda College in Group C and Group D categories by a Memo No. B.C./1626/16 dated May 24, 2016. These job vacancies, admittedly, were covered by the model 100-point roster prescribed by the State of West Bengal. This roster was prescribed in exercise of powers conferred by Section 14 read with Sections 13 and 3(b) of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999. This roster was made with due regard to the 100-point roster introduced by the Backward Classes Welfare Department, by Notification No. 6320-BCW/MR-84/10 dated September 24, 2010 in compliance with the provisions of the West Bengal Scheduled Caste and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976 (WB Act 27 of 1976) and the West Bengal Commission for Backward Classes Act, 1993 (WB Act 1 of 1993). His Excellency the Governor of West Bengal was also pleased to include as part of the said 100-point roster directions for reservation for persons with disabilities as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 by way of implementing it in West Bengal. By this each of the three points being 12, 42 and 72 Of the 100-point roster, reserved for the persons with disabilities were and are mandatorily to be filled by persons suffering from (i) Blindness or Low Vision (ii) Hearing Impairment and (iii) Loco-motor disability or Cerebral Palsy, respectively in order to ensure one per cent reservation for each of the three categories of persons with disabilities. Relaxation of the upper age-limits for Scheduled Castes, Scheduled Tribes, Other Backward Classes Category A and Category B, persons with disabilities, ex-servicemen and exempted categories applied in respect of the criteria prescribed for filling the vacancies meant for the respective categories.

7. It is the case of the writ petitioner (respondent No. 15) that according to the 100-point roster, the 12 vacancy was to be reserved for persons suffering from the disability of “blindness or low vision” or visual impairment and not for any person suffering from the disability of hearing impairment (paragraph 12 of the writ petition). He relies upon Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for this proposition. This position is admitted by the parties. It is the further case of the writ petitioner that the Appellant in MAT No. 1192 of 2017-who is the respondent No. 21 in the writ petition-if he at all suffers from any disability, according to the disability certificate (whose validity and authenticity he also disputes) issued by the competent authority, it is from hearing impairment. Despite the aforesaid, the said Appellant in MAT No. 1192 of 2017 was not only allowed to participate in the process of selection for the vacancies in the post of Group D referred to in paragraph 4 by the authorities of the Belda College but was selected and appointed as a Laboratory Attendant (Zoology). The writ petitioner has challenged not merely this appointment as being wholly without jurisdiction but the entire process of selection on the ground that it was politically motivated, vitiated by nepotism, and that the said Appellant in MAT No. 1192 of 2017 (respondent No. 21 in the writ petition) was not suffering from any disability since he had a driver's licence and had been certified by the Life Insurance Corporation of India authorities who had insured his life as not having any disability and was at any event not disabled by way of visual impairment which would allow him to be selected for the vacancy according to the 12 point of the said 100-point roster. It is the writ petitioner's specific averment that the name of the respondent No. 21 had never been sponsored by the special employment exchange. This is the briefest possible summary of the case of the writ petitioner.

8. The Appellants in both the appeals have impeached primarily the locus of the Writ Petitioner to impeach either the appointment or the process of selection. It is the case of both the Appellants that where the Writ Petitioner did not even apply for the selection process, or offer himself for selection, the writ petition did not lie. This is a restatement of the stand taken before the Learned Single Judge that the writ petitioner not having participated nor attempted to participate in the selection process is estopped from challenging it. I am thankful that the restatement was made, on the same facts and pleadings, because I have always been under the impression that the true position of law in India has been that one who has participated in a selection process and after being unsuccessful has thereafter challenged the process itself, is deemed to have waived his right to do so, unless he pleads and establishes that his challenge was on the basis of something he could not have known before the results were declared and had not, in fact, known it.

9. A weaker challenge was on the ground submitted from the Bar that the writ petition was affirmed only on January 25, 2017, when the selection process had been initiated on May 24, 2016 and the interviews were held on October 30 and 31, 2016 and the writ petition was made only thereafter for extraneous purposes, at someone else's behest, since there was an earlier writ petitionchallenging the selection process at the instance of someone who had participated in the process but that had been unsuccessful. This was in the case of W.P. No. 27987 (W) of 2016 [Kartik Maity v. Vidyasagar University] which was dismissed by a Learned Single Judge of this Court on December 14, 2016. The collegeauthorities being the Appellant in MAT No. 1191 of 2017 would suggest that the said earlier writ petitioner challenged the appointment of the appellant in MAT No. 1192 of 2017 made on November 2, 2016, on the ground that he had no disability and after its dismissal, at his behest, the instant writ petition was filed by the respondent No. 1 in MAT No. 1192 of 2017. It was argued that the fact of the earlier writ petition had been suppressed in the present writ petition and further, there was no explanation for the delay of the writ petitioner in even making a representation to the authorities and why he chose to wait until the entire process was completed and appointments made, before challenging the memorandum declaring the vacancies issued on May 24, 2016 and thus the writ petition had deserved the fate of dismissal. Very strangely, in the copy of the writ petition which was annexed to CAN 6705 of 2017 in MAT No. 1191 of 2017 preferred by the college authorities, while there is no averment about the earlier writ petition, I find that the order dated December 14, 2016 appears in between Annexures “P6” and “P7”, at page 85 which appears also at page 75 of CAN 6706 of 2017, in MAT No. 1192 of 2017. I have found out that in the original writ petition it appears also at page 53. Therefore, though there is no averment about the earlier writ petition, at least the order of dismissal has been annexed. I quite fail to understand the rationale behind annexing an order which is material without averring anything about it in the body of the writ petition-if this is a new style of trying to avoid the allegation of abuse of process, I must condemn it in the strictest of terms. However, since both the sides relied upon it, perhaps it cannot be said that there was suppression of the earlier writ petition and its order-it can be explained, as it was, from the Bar, that it is a case of faulty draftsmanship.

10. On merits, the Appellants have also referred to the fact that the 12 point in the 100-point roster, though reserved for persons with disability of visual impairment, was in this case in respect of the post of Laboratory Attendant (Zoology) and that in the event the order of the Learned Single Judge stands, “in that event the laboratory work cannot be performed by a 100% blind man” (paragraph 10 of CAN 6705 of 2017). The Appellant Principal has in fact averred at paragraph 3 of CAN 6705 of 2017 “in terms of such advertisement as well as sponsored list, the blind man was not available but the other category like Hearing Impairment and Loco motor Cerebral Palsy was available. Accordingly, the resolution was taken to that extent that Zoology is a laboratory based subject and the blind man cannot do such work for laboratory to assist thereby and it was resolved by the resolution of the Governing Body that the present post, i.e., 12 post to be filled up by the persons applied from the PWD category and the blind man is not available. Accordingly, the 42 post earmarked as PWD Category should be filled up by the blind man/low vision.” (Paragraph 5 of CAN 6705 of 2017).

11. An additional point was raised by Mr. L.K. Gupta, Learned Senior Advocate appearing on behalf of the Appellant in MAT No. 1192 of 2017, that the statute as interpreted by the Hon'ble Supreme Court spoke of reservation of posts for the disabled after identifying the posts according to the roster, and not of merely reserving vacancies. It was his submission that the purpose of identification of the posts for reservation according to the 100-point roster in case of the disabled was to ensure that mechanical mapping of a point in the roster with any post whatsoever would not be done; if the State of West Bengal had done this at the outset, before the college had duly notified vacancies, then situations like the present, where a person who was 100% visually impaired was supposed to be the Laboratory Attendant (Zoology) would not have arisen. After all, teachers and laboratory attendants are appointed not just for their livelihood but to instruct students, which is the purpose for which a college is established and runs-if the person appointed as a laboratory attendant is physically incapable of attending in the laboratory the students will suffer. It was his further case that colleges not meant primarily for providing employment to the incompetent in the name of affirmative action, but for the benefit of the students.

12. On behalf of the writ petitioner the challenge to his locus to institute and maintain the writ petition was explained thus in the pleadings:—

Paragraph 17 of the writ petition: “The petitioner states that the name of Sri. Keshab Chandra Dey was not recommended by the special employment exchange and the written examination was conducted on plain papers violating the norm and regulations prescribed for conducting the examinations. The petitioner further states that in any recruitment year if 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 year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no parson (sic) 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.”

Paragraph 18 of the writ petition: “The petitioner states that he is 100% blind having certificate to that effect and Schedule Caste certificate as well and he is otherwise eligible to sit in the aforesaid examination on the next year but he will not be able to sit for the examination due to nepotism since the post for exempted category of visual impairment has been fulfilled by Sri. Keshab Chandra Dey and the same can't be carried forward on the next year.”

Paragraph 19 of the writ petition: “The petitioner states that in the present case since the post for exempted category of visual impairment has already been filled up by a person who is neither visually impaired nor suffers from any other disability, the petitioners write (sic for “right”) to participate in the next year examination for Group D post unreserved (E.C.) has been curtailed. Thus the petitioner was compelled to send a representation dated January 4, 2017 and the same was duly received by the respondent authorities on respective dates. In the said representation the petitioner has prayed fora direction to cancel all the appointments already given to the candidates thereby declaring the notification dated 24.5.2016 (for Job Vacancy at Belda College) as illegal on an urgent basis preferably within a period of three days from the date of communication of the letter. The respondent authorities are sitting idle in spite of receiving the aforesaid representation thereby not taking appropriate steps against the illegality.”

13. Therefore, the writ petitioner has made out a case that he is not disentitled to institute the writ petition because he did not apply for the selection process in the recruitment year 2016-2017. It is his case that in case there was non-availability of a suitable person with disability-in this case, for the purposes of the 12 point in the 100-point roster-he was entitled to have that vacancy carried forward by the Belda College to the succeeding recruitment year, when he could have applied for the selection process to that post, and that his cause of action arose when a person whose disability though not of visual impairment was nonetheless appointed to that vacancy covered by the 12 point of the roster, thereby depriving him of a right to participate in the process of selection to that post under such 12 point of the 100-point roster in the succeeding year. Thus, he says, he has sufficient locus.

14. I pass over the puerile attempt made by Mr. Soumen Dutta, the Learned Advocate appearing for the college authorities, to mislead the Court by trying to rely upon obviously doctored registers and documents from which he attempted to show that the said 12 point in the roster, being a new post created for the first time on January 22, 2016 was in the 100 point roster for non-teaching staff with effect from March 27, 1990 by Notification being G.O. No. 90-Edn (C.S.)/4E—44/95, whereas the post created by the same notification on the same date being 13 point in the roster was in the 100 point roster for non-teaching staff with effect from March 1, 2011, on two different but consecutive pages of the register. The originals of the register were called for and interpolation was detected from the different quality and age of the said consecutive pages. I do not ignore this abuse of process but apart from a faint feeling of disgust, it is not relevant to the adjudication of the questions raised in the appeals.

15. Based on the above, the Learned Single Judge recorded the reliance placed by the parties on the provisions of Sections 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, quoted the same and referred to the following authoritative decisions of the Hon'ble Supreme Court:—

a. In Re Ramchandra Murarilal Bhattad v. State of Maharashtra reported in (2007) 2 SCC 588 at paragraph 47.

b. In Re: Bhavnagar University v. Palitana Sugar Mill (P) Ltd. reported in (2003) 2 SCC 111 at paragraph 40, Both the judgements were cited as authorities for the proposition that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

16. The Learned Single Judge also analyzed the facts of the case to come to the conclusion that the correct statutory procedure was not followed and that the decision of the Director of Public Instructions, being the appropriate authority in the government for approval of interchange of categories of disability was not a prior decision but an ex-post-facto decision not permitted by law. Accordingly, the writ petition was allowed by the order dated July 5, 2017 in the manner mentioned in paragraph 1 of this judgement.

17. Now that the skeleton of the case made out by the parties has been noted, time has come to flesh it out with the law, not only the statutory provisions, but also their authoritative interpretation.

The LAW

18. Neither before the Learned Single Judge nor before the appellate court did either party argue the matter based on the law which came into force with effect from April 19, 2017 being the Rights of Persons with Disabilities Act, 2016. This law came into force prospectively. Therefore, I too shall restrict myself to the provisions of the law which prevailed at the time when the memorandum was issued by the college authorities (employers) declaring vacancy and which was in vogue when the selection process was initiated and completed, being the said Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

19. Both before this Court and the Learned Single Judge, the parties have relied upon the provisions of Sections 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. In addition, before this Court, the Appellant in MAT No. 1192 of 2017 has relied upon Section 32 of the said Act of 1995. It will be profitable to see what they provide.

PERSONS with DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION of RIGHTS AND FULL Participation) Act, 1995

“Section 32:-Identification of posts which can be reserved for persons with disabilities.

Appropriate Governments shall—

(a) identify posts, in the establishments, which can be reserved for the persons with disability;

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.”

“Section 33-Reservation of Posts: Every appropriateGovernment 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.”

“Section 36-Vacancies not 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 not 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.”

20. Based on the aforesaid, Mr. L.K. Gupta, Learned Senior Advocate, has urged that there is a distinction between “posts” and “vacancies”. First there must be identification of posts, and when vacancies are declared, the reservation in respect of the vacancies to those posts would apply. He would argue that here the State of West Bengal, being the appropriate government, not having identified the posts, reservation may be there, but an appointment cannot be vitiated by not following Section 33 or Section 36 of the Act of 1995 since appointment to a vacancy in a post reserved for the disabled requires as a precondition, identification of the post which can be filled by a person with a particular disability. By way of example he submits that where the nature of work in a post entails that a person must be able to see, being visually impaired will defeat the purposes of filling the post; he submits that in such a case there may be identification of a post with a particular type of disability as provided by the statute. He relies upon the judgement of the Hon'ble Supreme Court speaking through a Bench of 3 Hon'ble Judges, in the case of Union of India v. National Federation of the Blind, reported in (2013) 10 SCC 772 which has explained the ratio of the judgement in the case of Government of India through Secretary v. Ravi Prakash Gupta, reported in (2010) 7 SCC 626.

21. However, this judgment, if read in its entirety, does not aid the Appellant in MAT No. 1192 of 2017. Rather than summarize the judgment of the Apex Court in my own words, I think it would be better if the ex-cathedra pronouncement and the ratio are allowed to speak for themselves.

22. It has been held by the Hon'ble Supreme Court in the case of National Federation of the Blind (supra), as follows:—

30. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In Ravi Prakash case [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448], the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the interdependence of Sections 32 and 33 viz. identification of posts and the scheme of reservation, rejected this contention and held as follows: (SCC pp. 633-34, paras 25-27, 29 & 31)

“25. … the submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Groups A and B posts in the IAS was undertaken after the year 2005 is not of much substance.

26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.

29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.

31. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the special leave petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court.”

(emphasis in original)

31. In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448] that Section 32 of the Act is not a precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33.

32. Apart from the reasoning of this Court in Ravi Prakash Gupta [(2010) 7 SCC 626 : (2010) 2 SCC (L&S) 448], even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz. reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible.

33. A perusal of Section 33 of the Act reveals that this section has been divided into three parts:

33.1. The first part is:

“33. Reservation of posts.—Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability….”

It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the section.

33.2. The second part of this section starts as follows:

“… of which one per cent each shall be reserved for persons suffering from—

(i) blindness or low vision;

(ii) hearing impairment; and

(iii) locomotor disability or cerebral palsy,

In the posts identified for each disability:”

From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word “of which”. The word “of which” has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. “… identified posts” in this very first part which deals with the statutory obligation imposed upon the appropriate Government to “appoint not less than 3% vacancies for the persons or class of persons with disabilities”. In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are “in the identified posts for each disability” and not “of identified posts”. This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz. blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived.

33.3. The third part of the section is the proviso which reads thus:

“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.”

The proviso also justifies the abovesaid interpretation that the computation of reservation has to be against the total number of vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.

34. In this regard, another provision of the said Act also supports this interpretation. Section 41 of the said Act mandates the appropriate Government to frame incentive schemes for employers with a view to ensure that 5% of their workforce is composed of persons with disabilities. The said section is reproduced hereinbelow:

“41. Incentives to employers to ensure five per cent of the workforce is composed of persons with disabilities.—The appropriate Governments and the local authorities shall, within the limits of their economic capacity and development, provide incentives to employers both in public and private sectors to ensure that at least five per cent of their workforce is composed of persons with disabilities.”

35. Thus, on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3% in the establishments of appropriate Government, the legislature intended to ensure 5% of representation in the entire workforce both in public as well as private sector.”

37. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfil its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy.

38. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the establishment concerned will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in Group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of Store Attendant in Group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of “Farash”, Group D post identified for that category of disability. It was argued on behalf of the Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment.

39. It has also been submitted on behalf of the appellants herein that since reservation of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre strength according to the OM dated 29-12-2005 but the actual import of Section 33 is that it has to be computed against identified posts only. This argument is also completely misconceived in view of the plain language of the said section, as deliberated above. Even for the sake of argument, if we accept that the computation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservation between Group A and B posts or Group C and D posts respectively. As such, one statutory provision cannot be interpreted and applied differently for the same subject-matter.

40. Further, if we accept the interpretation contended by the appellants that computation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has shown that identification has never been uniform between the Centre and the States and even between the departments of any Government. For example, while a post of middle school teacher has been notified as identified as suitable for the blind and low vision by the Central Government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc. This has led to a series of litigations which have been pending in various High Courts. In addition, Para 4 of the OM dated 29-12-2005 dealing with the issue of identification of jobs/posts in sub-clause (b) states that list of the jobs/posts notified by the Ministry of Social Justice and Empowerment is not exhaustive which further makes the computation of reservation uncertain and arbitrary in the event of acceptance of the contention raised by the appellants.”

23. On the basis of the above ratio, the Hon'ble Supreme Court was pleased to pass the following directions:—

“Directions

55. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:

55.1. We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29-12-2005 and the subsequent OMs consistent with this Court's order within three months from the date of passing of this judgment.

55.2. We hereby direct the “appropriate Government” to compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons within a period of three months from today and implement the same without default.

55.3. The appellant herein shall issue instructions to all the departments/public sector undertakings/government companies declaring that the non-observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and the Nodal Officer in department/public sector undertakings/government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.”

24. It is therefore not possible to accept the submissions of Mr. L.K. Gupta, Learned Senior Advocate, that unless the posts are identified, there can be neither any reservation nor any appointment made de hors the reservations mandated by the statute can be said to be vitiated. The Hon'ble Supreme Court, as extracted above, on considering the conjoint effect of Sections 32, 33 and 36 of the Act of 1995 has clearly laid down the law that “The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived” and the Apex Court has also held that the argument thatthe actual import of Section 33 is that it has to be computed against identified posts only is an argument which is also completely misconceived. The law as laid down and interpreted by the Hon'ble Supreme Court is without any scope of ambiguity and in fact non-observance of the scheme of reservation as laid down by the Apex Court has been held to be an act of non-obedience. Therefore, I do not hesitate to hold that where the scheme of reservation which entails reservation of 3% of the vacancies such that one percent each is for each of the specified categories of disability, has not been adhered to, the selection process in respect of the person alleged to be disabled, is vitiated and a nullity. Admittedly, the reservation was of 3% of posts of which 1% was for visually impaired. Admittedly, the 12 item in the 100 point roster-applicable in the present case-was for a person with the disability of visual impairment. Admittedly, the person who was appointed to such post appearing as the 12 item in the roster (Laboratory Assistant (Zoology)] was not visually impaired, but even according to his own case, was suffering from hearing impairment. Admittedly therefore, there has been violation of the statutory provisions as implemented in West Bengal by giving the said appellant in MAT No. 1192 of2017 employment as a Laboratory Attendant (Zoology) and the law laid down in the case of National Federation of the Blind (supra). I therefore agree with the finding of the Learned Single Judge in this regard.

25. The appellant in MAT No. 1192 of 2017 claims that his appointment was made on November 2, 2016 and the record shows that it is correct.He says that be college authorities resolved on October 13, 2016 to “earmark the post of Lab Attendant (Zoology) for PWD with Hearing impairment and the next 42 post be reserved for 100% blind/Low Vision as per 100 point roster.” the college authorities, (appellant in MAT 1191 of 2017) submit that not only was the appointment made pursuant to the said resolution of the governing body of the college, the college authorities also sought “permission to carry forward 12 Position (PWD) of the 100 Point Roster earmarked for Blindness or Low Vision Category to 42 position (P.W.D.) of the R.O.A. In case of appointment of Lab. Attendant in Zoology Department of Belda College”, from the appropriate government. Unfortunately, the permission was sought from the appropriate government only on March 10, 2017 whereas the resolution was made on October 13, 2016 and the appointment was given on November 2, 2016. Quite apart from the question of whether this could have been done under the first part of Section 36 of the said Act of 1995, evenwhen such an inter change is to be made, the statute by way of the proviso to Section 36 aforesaid mandates “prior approval of the appropriate Government”.In the present case, an approval sought on March 10, 2017 for an appointment made on November 2, 2016 after an interchange was resolved to be done on October 13, 2016 is admittedly not a prior approval.

26. Therefore, on the face of the records it an admitted position that the college authorities did not take prior approval but admittedly inter changed the vacancies amongst the three categories and only after giving appointment, and after the illegality had been detected by the writ petitioner and representation made against it, sought approvalto do so. The judgment in the case National Federation of the Blind (supra) of does not make the proviso or infact any part of Section 36 of the Act of 1995 capable of such relaxation whereby the mandate for prior approval can be converted to a subsequent approval which too was applied for only after the present writ petitioner made his representation on January 4, 2017 challenging the illegality of the entire selection process and appointment. At best it is an afterthought. At worst it is a naked attempt by the college authorities to exploit the opportunities which are rife for the unscrupulous in the chasm created by education and employment in educational institutions.

27. I am thus completely in agreement with the finding of the learned single judge as mentioned in paragraph ‘D’ of the impugned order dated July 4, 2017 that the post facto approval of the inter change in the vacancies given after the appointment is not merely illegal but is an egregious violation of the statutory provision regarding prior permission rendering the entire process into a nullity by way procedural ultra vires in terms of the judgements referred to by the learned single judge both in the case of Ramchandra Murarilal (supra) and Bhavnagar University (supra). I therefore affirm the finding of the Learned Single Judge in this regard.

28. Lastly, I come to the question of whether in terms of Section 36 and its Proviso, of the Act of 1995, the vacancies could at all have been exchanged, even if there had been prior approval. The locus of the writ petitioner as pleaded by him and extracted by me, in the earlier portions of this judgement, is inextricably connected with the question. Section 36 has been extracted in its entirety in paragraph 19 of this judgement and the effect of the said Act of 1995 so far as reservation and the mandate on the appropriate governments has also been dealt with extensively in paragraphs 22 and 23 of this judgement. It only remains for me to construe Section 36 and its proviso aforesaid, to ascertain when interchange of the vacancies reserved for the different categories of those with disability can be done.

29. As I scan Section 36 and its proviso, it appears to me that the proper manner of construing them, keeping in mind the plain meaning of the words while being guided by the purpose of the provision while considering the beneficial and welfare statute as a whole, is as follows:—

a. A situation may arise that in any recruitment year a vacancy within the meaning of Section 33 of the Act of 1995, reserved for a disabled person cannot be filled up either because there is no suitable person with that specified kind of disability or for other sufficient reason.

b. In such case the vacancy (the use of the singular rather than the plural is to be noted) shall be carried forward in the succeeding recruitment year.

c. If in the recruitment year referred to in sub-paragraph (b) above also a suitable person with disability is not available, then and only then it may first be filled by interchange among the three categories. This presupposes that there is a vacancy according to the 100 pointroster reserved for a person with a specified disability among the three categories of disabilities mentioned in Section 33 of the Act of 1995, and there is no suitable candidate with that type of disability but there are other candidates with some other category of a specified disability within the meaning of Section 33. Only then can there be an interchange amongst the categories for which reservation has been made.

d. Only if there is no person with any of the categories of disability available for the post in even that year as referred to in sub-paragraph (b) above, the employer shall fill up the vacancy by a person other than a person with disability.

e. The proviso, which carves out an exception, applies only when the nature of vacancies (plural and not singular) in the establishment is such that a given category of persons cannot be employed, and only then would the employer have a right to apply to the appropriate government for approval of interchange of the of the vacancies among the three categories, and only after such approval is granted by the appropriate government, can the vacancies be interchanged and appointment be given.

30. If the above interpretation of Section 36 of the Act of 1995 is applied to the present case, it will be clear that the statute envisaged that once the applications were received by the employer and the names sponsored by the special employment exchange had been received, for the posts for which vacancies were declared, the employer being the college authorities were required to screen the applications to find who were the eligible candidates for the reserved categories and among them, who were the eligible candidates for the reservation made for the three categories of persons with disability, according to the said 100 point roster. The creation of new posts notified by the appropriate government on January 22, 2016 clearly indicated that of the 7 posts according to the 100 pointroster, the post of Laboratory Attendant (Zoology) was the 12 point in the roster, and was thus reserved for a person with disability. The order notified by the appropriate government by Notification dated March 1, 2011 bearing No. 50-Emp/1M-25/98 issued by the Chief Secretary to the Government of West Bengal at Note 2, clearly mentions that the 12 point in the roster was reserved for persons with the disability of Blindness or Low Vision. It was the only vacancy declared by the college authorities for a person with disability as aforesaid. Therefore, once the college authorities found that there was no suitable person with such disability for that only vacancy reserved for a person with the disability of blindness or low vision, they could do either of two things: to either carry the vacancy forward to the succeeding recruitment year, and if in the succeeding recruitment year also there was no suitable candidate with that specified category of disability (blindness or low vision) to interchange the vacancy with a person having some other category of a specified disability without seeking prior permission OR in the ALTERNATIVE to apply to the appropriate government for prior permission to interchange the vacancies such that the said vacancy in the 12 point of the roster could be filled by a person with some other category of a specified disability if the necessity of filling the vacancy of a Laboratory Attendant in Zoology could not permit such delay. Once the college authorities decided not to ask for prior approval and went ahead with the selection process up to the interview, it was no longer open for them to interchange the vacancy as they did. They could not even ask for approval thereafter, as I have held above. They had just the duty to carry forward the said vacancy ascribed to the 12 point of the roster to the succeeding recruitment year and thereafter proceed as stated above. If they had carried forward the vacancy aforesaid to the succeeding recruitment year instead of appointing the Appellant in MAT No. 1192 of 2017 to the said vacancy, though he was not suffering from the disability of blindness or low vision, then the Writ Petitioner would have had the opportunity to participate in the said selection process for the said succeeding year. However, by appointing the Appellant in MAT No. 1192 of 2017 to the said vacancy, this right of the writ petitioner was taken away by the college authorities in collusion with the State of West Bengal, the appropriate government and its functionaries. Therefore, the writ petitioner has rightly averred that he has locus to maintain the writ petition and is a person aggrieved by such appointment and such vitiated selection process even without having participated in the process of selection initiated by the declaration of vacancy on May 24, 2016.

31. So far as the question of delay in approaching the writ court is concerned, from the above analysis it ought to be clear that the writ petitioner was aggrieved by the fact that the appointment, without prior approval from the appropriate government for any exchange of the vacancies inter se the specified categories of disability, of a person who was not suffering from the disability of blindness or low vision was made for the vacancy reserved for such a disability. The appointment was admittedly made on November 2, 2016. Therefore, such cause of action did not arise before November 2, 2016. The writ petitioner made his representation on January 4, 2017 and the writ petition was affirmed on January 25, 2017 on the specific allegation that the respondent authorities in the writ petition did not ameliorate the grievances raised. This delay of a little more than two months in making the representation and around two months and 23 days in filing the writ petition from the arising of the cause of action, does not appear to be such a delay-keeping in mind the utter nullities brought before the Court-as would disentitle the writ petitioner from availing of equitable remedies. of course, it would have been better if the writ petitioner had explained this in so many words, instead of leaving the Court to come to the logical inference from the records annexed to the writ petition. That may have been the fault of the draftsman-since learned advocates draft the writ petition and the litigants take responsibility for it-but I cannot shut my eyes to the blatant fact that it was only after the writ petition was instituted after affirmation on January 25, 2017, that the college authorities woke up to the fact, as late as on March 10, 2017, that what they had done was illegal and only then applied for approval of the interchange in the vacancies for persons with disability, as aforesaid. The writ petitioner could have in fact waited until March 10, 2017 to take advantage of this nullity before filing the writ petition. Therefore, I hold that the writ petition is not barred by reason of any unconscionable or unreasonable delay in approaching the Court.

32. Thus, the entire selection process and the appointment of the Appellant in MAT No. 1192 of 2017 is incurably and fatally vitiated by procedural ultra vires as I have held above and are nullities. They cannot be sustained.

33. Accordingly I also affirm these findings of the Learned Single Judge as in Findings B), C) and E) of the judgement dated July 5, 2017 impugned before this Court.

34. Once I have found that the selection procedure and the appointment are both nullities, there can be no question of interfering with the order dated July 5, 2017 which is therefore affirmed.

35. In view of the fact that on questions of law on the basis of the admitted facts I have held that the procedure of selection and the appointment are nullities, it is not required to decide the other questions raised by Mr. Chakraborty, for the writ petitioner, that the Appellant in MAT No. 1192 of 2017 is not a person with any disability and does not even have any disability of hearing impairment whether because he has a driving licence or because he has life insurance where he was allegedly held to be perfectly fit. His appointment is, was and continues to be illegal, being a nullity at law, on the basis of the admitted facts relating to the procedure adopted by the college authorities and the appropriate government in appointing him. Nothing else is required to be said about the disability alleged by the said Appellant in MAT No. 1192 of 2017. Besides his disability as alleged by him has been upheld by the Learned Single Judge by the order dated December 14, 2016 passed in the case of Kartik Maity (supra) being W.P. No. 27987 (W) of 2016. It has not been challenged. It has become final. It cannot be reopened collaterally in this appeal by the present writ petitioner.

36. Thus, I dismiss both MAT No. 1191 of 2017 and MAT No. 1192 of 2017 and the connected applications for stay. Fresh process is to be initiated in accordance with law. Consequentially the stay of operation of the order dated July 5, 2017 granted on November 24, 2017 stands vacated. In view of the fact that the Appellant in MAT No. 1191 of 2017 had attempted to mislead this Court by relying upon doctored documents which the Appellant later admitted was a mistake without ill-motive, as recorded by the Court on December 18, 2017, no further proceeding is taken against him, except that the said Appellant is to bear the costs of the appeal in MAT No. 1191 of 2017 which are assessed to be 60 GMs, to be paid to the Respondent No. 15/Writ Petitioner in MAT No. 1191 of 2017. There shall be no order as to costs in respect of MAT No. 1192 of 2017 and the parties shall bear their own costs.

Dipankar Datta, J.:— I agree.

37. Prayer for stay of operation of the order made by Mr. Dutta, learned advocate for the appellant is considered and rejected.