Bharadwaj Naik v. Tspsc., Rep. By Secy., Hyd., And 2 Others,

[ 321e ] HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAO (Special Original Jurisdiction) THURSDAY,THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI WRIT PETITION NO: 38558 OF 2016 Between:

Bharadwaj Naik, S/o Banoth Bhadru Naik, Aged about24 R/o 11-946, Road No. 2, Laxmi Nagar Colony Kothapet, ye Sa ars, Un-employed, roomagar, Hyderabad ,..PETITIONER AND

1. Telangana State Public Service Commission, Represented by its Secretary, Hyderabad, Telangana State.

2. State of Telangana, Rep. by its Principal Secretary to Government, Municipal Administration & Urban Development Department, Secretariat, Hyderabad.

3. The Engineer-in-Chief, Public Health & Municipal Engineering Department, T.S , Hyderabad.

RESPONDENTS i Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of a Writ of Mandamus declaring that the Petitioner is entitled to be appointed as Assistant Engineer/Technical Officer in the vacancies reserved for Physically Handicapped (H-H) candidates in accordance with the options exercised by the petitioner pursuant the recruitment notification No.09/2015 dated 29-08-201 5 issued by the 1st respondent with all consequential benefits in accordance with the provisions of S. 33 of "The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955" and the orders issued in G.O.Ms.No.

31 Women Development, Child Welfare & Disabled Welfare (DW) Department, dated 01 .12.2009 by holding the action of the respondents in denying and depriving selection and appointment to the petitioner as Assistant Engineerffechnical Officer by omitting his name from the Result Notification dated 22.08.

.7 ) S.33 of "The Persr ns With Disabilities (Equal Opportrnities, Protection of Rights and Full Participati rn) Act, 1995" and the orders issued in O.O.Ms.No.31 Women Development, Chi d Welfare & Disabled Welfare (DW) Department dated 01 .12.2009 and in "iolation of Articles l4 and 16 of the Constitution of lndia. Counsel for the Pr titioner: SRl. SRINIVASA RAO MADIRA.,L, Counsel for the Rr spondent No.1: SRI D. BALAKISHAN R,\O (SC FOR TSPSC) Counsel for the Rr,spondent Nos.2 & 3: GP FOR SERVICES - I FOR GP FOR MEDICAL HEALTH & Fr\MILY WELFARE The Court made tl e following: ORDER &';

THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI W.P.No. 38558 of 2O16 ORDER:

Thiswrit petition has been filed by the petitioner seeking a writ of marrdamus declaring that the petitioner is entitled to be appointed as Assistant Engineer/Technical Officer in the vacancies reserved for Physica-lly Handicapped (HH) candidates in accordance with the options exercised by the petitioner pursuant to the recruitment notification No.9/2015, dated 29.08.2015, issued by the respondent No.1 with all consequential benefits in accordance with provisions of Sec.33 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the orders issued in G.O.Ms. 31 Women Dev lopment, e Child Welfare and Disabled Welfare (DW) Department, dated o1.r2.2009.

2.

The brief facts leading to the filing of the present writ petition are that the petitioner is B.Tech. Graduate in Mechanical Engineering and belongs to Scheduled Tribe Community and was entitled for the benefit of rule of reservation in appointments under the category of physically handicapped as he suffered from 69% hearing disability and therefore, he was entitled for the benefit of reservation trnder the Hearing Handicapped (HH) quota in terms of \ l ./ ./ \ !

) W.l'.No.38558 of 2016 order of G.C.Ms.31, dated 01.12.2OO9. The I'SPSC had issued notification N r.9/2O15, dated 29.08.2015 inviting applications from the eligible randidates for filling up of 563 vacancies in the Assistant En1 ;ineers category in various Government Departments. Since the pr titioner was eligible and qu alifie,l in terms of the notification, I e applied for the post of Assistanl Ongineer/Technical Officer and eccordingly, Hall Ticket bearing Nc. 9150114891 was issued to hinr. Subsequent to the issuance of the notification, the vacancies we'e lncreased to around 1,044, but :I()wever, as per the terms and conditions stipulated in the rrotification dated 29 .OB .2015, recruitment shall be made only lbr the vacancies notified befor: the examinations. The petitioner aJ;peared for written examination held on 07.11"2015 and qualifir,:d in the same. Thereafter, 1e was called for verification c,f certificates on 25 /26.04 .2O t6 and his certificates were duly ver:ified. The petitioner was instruct :d to exercise options and accordingty he opted in the following ord :r:

I ame of I )epartment the Zone Post Preference Number I -rigation & I )epartment A-F) () CAD I ublic Health and I {unicipal Engineering CC AE

-----7, l .r W.P.No.38558 of 2016 Pubiic Health and Municipal Engineering AE Public Health and Municipal Engineering TO Irrigation & Department CAD AE Public Health and Municipal Engineering AE Public Health and Municipal Engineering TO 3.

Thereafter, the petitioner was sent to medical examination at ENT Hospital, Koti, Hyderabad, vide letter no.513/RS20/AEsl2Ol5, dated 19.05.2016 referring to G.O.Ms.31, dated Ol.l2.2OO9. Upon examination, it was found that the percentage of the petitioner's hearing disability is 690/o. As per Appendix-Ill appended to G.O.Ms.31, paragraph (B) dealing with Speech and Hearing Disability, caldidates with 51% to 7 O%o suffers froln severe entitled for selection. The hearing impairment and thus, are get selected as Assistant petitioner was therefore expecting to Engineer/Technical Officer as per the options exercised by him. It is submitted that the respondents have published the result for the notilication of Physical Handicapped candidates on 22.08.2016, but to his shock, the petitioner's name was not in the list. On approaching the office of the respondent No.l, the petitioner was orally informed that he is not having 75% disability and therefore,

+ tM.P.No.38558 of 2016 ''

his claim rvas overlooked. The petitioner inrmediatell' submitted a representation to the respondent No.1 on ?.4.O8.2016 stating that only 11 perso.l rs were selected leaving all tho otht:r vacancies meant for Hearing Ir rpaired unfilled without any justificrttion, and that it has been cert fied that he is suffering from 6!)9/o hearing disability. When his c€ se was not considered, the petitirrner approached Andhra Prad:sh Administrative Tribunal (AP,{Tj, }{yderabad, by instituting O 4.I'{o.3466 of 2016 and during the pendency of the same, the Government of India had issue d notilication vide GSR No.888 (E), dlted 15.09.2016 to the effect rhat thr: Andhra Pradesh Administratir e Tribuna-l shall cease to h:rve 'lrrisdiction over the State of Tela ngana. In view thereof, the prresr:rrt writ petition was frled.

4.

The lee rned counsel for the petitioner submitted that as per the Annexur:-l appended to the recruitment notification, disclosed that in all 1{, vacancies were earmarked for Physica-lly Handicapped Category, fo:- Post Code 1 to 5 out of w'hich, 13 vacancies were reserved for physically handicapped Candidates, against Post Code 3 to 5. Aga inst Post Code 3 i.e., Assistant Engineering (Civil or Mechanical) in Public Health and Mtrrricipal Engineering Department one vacancy was reserved for l-Learing handicapped (HH) candid etes under city cadre and likewise olle vacancy in each

{ W.P.No.38558 of 2016 Zones, V and VI were reserved for HH candidates. It is lsubmitted that the post meant for hearing impaired have not bee{ Iiled up and the respondent have choosen to overlook his claim fol selection l in utter disregard to the provisions of 1995 Act and G.O.Ms.31, dated 01.12.2009" Therefore, he sought consideration of s case for appointment to the post of Assistant Engineer/Technioal Officer pursuant to the notilication dated 29.O8.2llswith all con$equential lr benefits.

Learned counsel for the petitioner has drawn the attention of this Court to the notilication dated 29.OA.2O15 and particularly to para V thereof dealing with important legal provisions governing the recruitment process. Sub para of 5 of para V deals with Zonal flocal candidates and it provides that the Zona) and Local Reservations shall be followed as per para-8 of A.P.Public Employment (Organization of Local Cadres and Regulation oi Direct Recruitment) Order, 1975, within the meaning of Sections 3 & 97 of A.P.State Reorganization Act 6 of 2014. He has also drawn the att tion of this Court to Annexure-I and table 3 of the notification to demonstrate that one post of hearing impaired is reserved Zone-6 1n for women and in the city cadre for general candidates, on epost of hearing impaired was reserved.

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(i W.P.No.38558 of 2016 6.

Learned counsel for the petitioner relied upon the order of this Court the int:rim order dated 02.12.2016 in W.F'.M.P.No.475O2 of 2016 in W.P.Iio.38558 of 2016 wherein this Court has observed that merelg becan, se the ENT hnspital ufule assess in.g the petitioner's impairment a; 69%0, uronglA treated his intpainnent as "Moderate" and not "seutre", petitioner cannot be denied the etmploAmerut as the percentage oJ impairment 69% is not disputed He submitted that in view of the arove direction of this Court, the resprondents ought to have conside'ed the case of the petitioner for appointment instead they are tal. ing a different stard in tht: cor n ter rvhich is not sustainable. It is submitted that the responcrents are trying to substitute tL e reasons for rejecting the case of the petitioner by adopting ped rntic approach and raising conterllions in the counter affidavit whi< h were not raised eariier, for deny.ng the claim of the petitioner.

7 .

The rer pondents have not only filed a c()unter affidavit but have also iled additional counter affidavit arrd accordingly, submitted th at after verification of the certificates of the petitioner, it was found that the petitioner is not a local camdidate of thc city cadre, but tl at he belongs to Zone-VI and thert: is only one post of physically h: ndicapped, which is also reserved for women in Zone \ i VI. It is furtl rer submitted that as far as tire clzr-im of the petitioner

i W.P.No.3 for city cadre is concerned, he submitted that aJter verification of the school certificates of the petitioner, it was found tha he does t not belongs to city cadre and therefore, cannot be conside d for the post of general candidate, reserved for hearing impaired i the city n cadre.

8.

Both the counsel relied upon their respective contentions. 9.

l,earned counsel for the petitioner has further furnished before this Court the information obtained by the petitioner an{ also by some other candidates under the Right to Informatio{r Act to demonstrate that the posts reserved for hearing impaired i1 the city cadre is still kept vacant and therefore, he submitted that by appointing tJre petitioner to the said post, there is no prejudice caused to any other candidate.

10, Learned counsel for the petitioner had also drawn the attention of this Court to the Presidential Order whereby 7 % of the posts are kept vacant for local candidates and submitt that if there are no local candidates available, then the posts ould be filled up with non-local candidate who are otherwise eligible. He further submitted that in the notihcation also it is not s ted that ta the post shall be filled up only by local candidates. \ ''t

W.l'.No.38558 of 2016 1 I . Having regard to the rival contentions ald the material o1l record, it is roticed that the petitioner is qualihed for the post of Assistant En 5ineer/Technical Officer and trccor<lingly, he has been found qualifi:d in the vritten examination al<l his case was not considered o rly on the ground that the disability of 69% is not sufficient to :onsider him as physically h,andicaoped person. This Court in the earlier proceedings, had clalifiecl that a person with 69oh hearinl impairment is to be considererl under phlzsically hearing han,licapped quota. After going through the notification issued by the Government, it is noticed that in ttre city cadre, for the general cand date, one post is kept vacant.

As pr:r the Presidential Order, the preference has to be given to the local candidates, however, if tl rere are no local candidates, posts 'will have to be filled up by an elig ible non-local candidates. Admittecl5,, the post has not been filled ul) as on today, therefore the responclents are directed to consider the case of the petitioner and appoint trirn to the post from the date oth,:r such candidates have been appcir:Ltecl. However, the petitioner sh ill not be entitled to the back wag3r;, but the notional service from .he date of appointment of other curclidates till the C-ate of actual joi fng shall be treated as conl.inuity of service for the \ purpose of re tirement benelits only.

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tr ,P.N 8558 of20l6 o.3 sh The writ petition is accordingly a_llowed. There LZ.

a,ll be no order as to costs.

Miscellaaeous applications, if any pending, shall also stand closed.

That Rule Nisi has been made absolute as above. Witness the Hon'ble the Chief Justice UJJAL BHUYAN, on this Thursday, the Twentieth day of October, Two Thousand and Twe nty Two.

HI R //TRUE COPY// ICER To, The Secretary, Telangana State Public Service Commission, Hyderabad, Telangana State.

The Principal Secretary to Government, Municipal Administration & Urban Development Department, State of Telangana, Secretariat, Hyderabad. The Engineer-in-Chief, Public Health & Municipal Engineering Department, T.S., Hyderabad.

One CC to SRl. SRINIVASA RAO MADIRAJU Advocate [OPUC] Two CCs to GP for Services-|, High Court for the State of Telangana at Hyderabad. [OUT] Two CCs to GP for Medical Health and Family Welfare, High Court for the State of Telangana at Hyderabad. [OU!

One CC to SRl. D BALAKISHAN RAO(SC FOR TSPSC) [OPUC] Two CD Copies One Spare Copy 7II CH SB R AY,-

j HIGH COUF T DATED:2011012022 .,i ,,/.-:.'

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ORDER

? B [tI ?!Il- ( \ W.P.No.38558 of 2016 /^)-v ALLOWING THE WRIT PETITION WITHOUT GOSTS \--