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Punjab-Haryana High Court
Vikram And Ors vs State Of Haryana And Others on 24 April, 2025
Neutral Citation No:=2025:PHHC:052711
CWP-14773-2022 & connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
303 (10 cases) CWP-14773-2022
Date of Decision: 24.04.2025
Vikram and others ...Petitioners
Versus
State of Haryana and others ...Respondents
With
Sr. Case No. Petitioner(s) Respondent(s)
No.
2. CWP-12714-2022 Rishu and others State of Haryana and
another
3. CWP-1137-2023 Ashok Kumar and State of Haryana and
another others
4. CWP-12848-2022 Harvinder Joon State of Haryana and
others
5. CWP-12898-2022 Vikram Singh Haryana Staff Selection
(O&M) Commission and
another
6. CWP-13023-2022 Naresh Kumar State of Haryana and
(O&M) others
7. CWP-14301-2022 Satish State of Haryana and
others
8. CWP-15279-2022 Gourav and others State of Haryana and
others
9. CWP-23349-2022 Sonu Kumar State of Haryana and
others
10. CWP-8345-2024 Sunder Ram State of Haryana and
others
11. CWP-9622-2023 Malkeet Singh Uttar Haryana Bijli
Vitran Nigam Limited
and others
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. Sunil Kumar Nehra (Sirsa), Advocate
for the petitioners (in CWP-12848-2022 & CWP-23349-2022)
Ms. Alka Chatrath, Advocate with
Ms. Dhamanpreet Kaur, Advocate and
Mr. Nikhil Singh, Advocate for the petitioner
(in CWP-9622-2023)
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Mr. Rajkapoor Malik, Advocate for the petitioner
(in CWP-14773-2022 & CWP-8345-2024)
Mr. Ravinder Malik (Ravi), Advocate and
Mr. Ritender Rathee, Advocate for the petitioner
(in CWP-12898-2022)
Mr. Jasbir Mor, Advocate and
Mr. Virender Gill, Advocate for the petitioner
(in CWP Nos.13023, 15279 and 14301 of 2022)
Mr. Aazam Khan, Advocate for
Mr. Sanjeev Kumar, Advocate for the petitioner
(in CWP-1137-2023)
Ms. Anjali Sheoran, Advocate for the petitioner
(in CWP-12714-2022)
Ms. Palika Monga, DAG, Haryana.
Ms. Nikita Goel, Advocate
for respondents-UHBVN in CWP-12898-2022.
Mr. Udit Garg, Advocate
for respondent No.2 in CWP- 14773-2022 & CWP-13023-2022
for respondent No.3 in CWP-12848-2022, CWP-23349-2022,
CWP-14301-2022, CWP-1137-2023 and CWP-8345-2024.
Mr. Nikhil Lather, Advocate for
Mr. Anurag Goyal, Advocate, for the applicant
in CM-11123-CWP-2024 in CWP-13023-2022.
****
JAGMOHAN BANSAL, J. (Oral)
1. As common issues are involved in the captioned petitions, with
the consent of both sides, the same are hereby disposed of by this common
order. For the sake of brevity and convenience, facts are borrowed from
CWP-14773-2022.
2. There are five petitioners in this petition who under Articles
226/227 of the Constitution of India are seeking setting aside of
Advertisement No.11/2019 (Category No.21) dated 25.07.2019 (Annexure
P-1) to the extent posts of Assistant Lineman under Persons with Disability
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(‘PWD’) Category have been confined to deaf and to persons suffering from
hard of hearing.
3. Haryana Staff Selection Commission-respondent No.2 vide
advertisement dated 25.07.2019 invited applications for different posts with
different Power Utilities of State of Haryana. The advertised posts included
1307 posts of Assistant Lineman with Uttar Haryana Bijli Vitran Nigam
Limited (‘UHBVNL’). The reservation policy was followed and as per the
policy, 52 posts were reserved for deaf and for persons suffering from hard
of hearing.
4. The petitioners are suffering from benchmark disabilities and
fall under PWD Category. They pursuant to aforesaid advertisement filed
application under PWD Category. In the application form, they pointed that
they are physically handicap. The respondent conducted written test on
14.11.2021. Final result, after scrutiny of documents, was declared on
14.05.2022. The name of the petitioners did not figure in the list of
successful candidates.
5. As per respondent, candidature of the petitioners has been
rejected on the ground that posts reserved for PWD Category were ear-
marked for ‘deaf and hard of hearing’ persons. The petitioners are neither
deaf nor hard of hearing, thus, despite being PWD, are not eligible for the
posts.
6. A battery of Lawyers addressed arguments on behalf of the
petitioners. They pleaded that Government of India in terms of provisions of
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, (for short ‘1995 Act’) has identified posts which
may be held by persons with disabilities. The Government of India vide
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notification dated 29.07.2013 has notified posts, physical requirements,
categories of disabled suitable for the job, nature of job and working
conditions. The post of Assistant Lineman is notified at Serial No.1475. As
per said notification, persons with disability of loss of one leg and hard of
hearing are eligible for the post of Assistant Lineman. The respondent has
confined reservation for persons with disability of hearing. As per
notification issued by Government of India, persons with disability of one
leg are also eligible. The State Government vide instructions dated
17.04.2017 has adopted notification dated 29.07.2013 issued by Government
of India. As the State Government has adopted notification issued by
Government of India, there is no reason to confine reservation for persons
with disability of hearing. The Government has further appointed persons
with disability of one leg in the selection process of 2023. The respondent
had also made similar appointments in 2008. The respondent has arbitrarily
denied benefit of reservation to persons with disabilities other than hearing.
7. Per contra, learned counsel for the respondent submits that as
per proviso to Section 33 of 1995 Act, an establishment of Government may
be exempted from applicability of the Act. The respondent- UHBVNL vide
letter dated 19.01.2006 requested Social Justice and Empowerment
Department to grant exemption in terms of Section 33 of 1995 Act. The
Social Justice and Empowerment Department vide communication dated
14.03.2006 (Annexure R-3/2) granted exemption from applicability of
provisions of 1995 Act, thus, provisions of 1995 Act are not applicable to
respondent. As per notification dated 29.07.2013 (Annexure P-5) issued by
Government of India as adopted by State Government vide notification
dated 03.02.2017 read with instructions dated 17.04.2017 (Annexure P-6), at
the most, persons with disability of one leg may be considered. The
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petitioners are suffering from other disabilities, thus, they cannot be
appointed on the post of Assistant Lineman. The nature of job of Assistant
Lineman is such that persons with disabilities other than hearing cannot be
selected. They cannot perform duties of Assistant Lineman.
The petitioners without any protest or demur participated in the
selection process and at this belated stage cannot be permitted to doubt
advertisement itself. It is a settled proposition of law that a candidate having
been declared unsuccessful cannot challenge selection process or
advertisement. As per judgment of Supreme Court in Tajvir Singh Sodhi
and others vs. State of Jammu and Kashmir and others, 2023 SCC OnLine
SC 344, the petitioners cannot assail terms and conditions of the
advertisement after participating in the selection process.
8. I have heard the arguments of learned counsel for both sides and
perused the record with their able assistance.
9. A two Judge Bench of Apex Court in Tajvir Singh Sodhi
(supra) has held that candidates, having taken part in the selection process
without any demur or protest, cannot challenge the same after having been
declared unsuccessful. The candidates cannot approbate and reprobate at the
same time. A candidate cannot allege that selection process was unfair or
there was some lacuna in the process just because selection process was not
palatable to a candidate.
10. In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309,
after referring to catena of judgments on the principle of waiver and
estoppel, Supreme Court did not entertain challenge to the advertisement for
the reason that the same would not be maintainable after participating in the
selection process. The relevant extracts of the judgment read as:
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“24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken part in
the process of selection with full knowledge that the
recruitment was being made under the General Rules, the
respondents had waived their right to question the
advertisement or the methodology adopted by the Board for
making selection and the learned Single Judge and the
Division Bench of the High Court committed grave error by
entertaining the grievance made by the respondents.”
11. The Supreme Court in Somesh Thapliyal and Another v. Vice
Chancellor, H.N.B. Garhwal University and Another (2021) 10 SCC 116
has adverted to challenge to terms and conditions of advertisement or
appointment letter by a candidate after his selection. The Court has opined
that employer is always in a dominating position, thus, in case of public
employment, terms and conditions are subject to judicial scrutiny. The
relevant extracts of the said judgment read as:
“42. The submissions of the learned counsel for the
respondents that the appellants have accepted the terms
and conditions contained in the letter of appointment
deserves rejection for the reason that it is not open for a
person appointed in public employment to ordinarily
choose the terms and conditions of which he is required
to serve. It goes without saying that employer is always in
a dominating position and it is open to the employer to
dictate the terms of employment. The employee who is at
the receiving end can hardly complain of arbitrariness in
the terms and conditions of employment. This Court can
take judicial notice of the fact that if an employee takes
initiation in questioning the terms and conditions of
employment, that would cost his/her job itself.
43. The bargaining power is vested with the employer
itself and the employee is left with no option but to accept
the conditions dictated by the authority. If that being the6 of 22
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reason, it is open for the employee to challenge the
conditions if it is not being in conformity with the
statutory requirement under the law and he is not
estopped from questioning at a stage where he finds
himself aggrieved.”
12. A Two Judge Bench of Supreme Court in Munindra Kumar
and others v. Rajiv Govil and others, (1991) 3 SCC 368 has held that
candidates who have remained unsuccessful in the selection process cannot
be estopped from challenging the Rules which are arbitrary and violative of
Article 14 of Constitution of India. The relevant extracts of the judgment
read as:
“10. …………………. It may be noted that Rajeev Govil,
Vivek Aggarwal and Gyanendra Srivastava who remained
unsuccessful had filed the writ petitions after taking
chance and fully knowing the percentage of marks kept
for interview and group discussion. It is no doubt correct
that they cannot be estopped from challenging the rule
which is arbitrary and violative of Article 14 of the
Constitution, but in modulating the relief, their conduct
and the equities of those who have been selected are the
relevant considerations.”
13. A two-Judge Bench of Supreme Court in Abhimeet Sinha and
others vs. High Court of Judicature at Patna and others, (2024) 7 SCC 262
has adverted to question of maintainability of writ petition after participating
in the selection process. The Court has clearly held that principle of
estoppel cannot override the law. To non-suit the writ petitioner at the
threshold would hardly be reasonable particularly when the alleged
deficiency in the process could be gauged only by participating in the
selection process. The relevant extracts of the judgment read as under:-
“IV. MAINTAINABILITY
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18. At the outset, it is apposite to address the issue of
the maintainability of the writ petitions. It is argued by
Mr. Gautam Narayan and Mr. Purvish Jitendra Malkan
learned counsel that after having participated in the
recruitment process, the writ petitioners having not
succeeded, cannot turn around and challenge the
recruitment process or the vires of the Recruitment Rules.
It is submitted that all candidates knew about the
prescription of minimum marks for viva voce, well before
the selection process commenced and the principle of
estoppel will operate against the unsuccessful
challengers. On the other hand, the learned counsel
representing the writ petitioners argued that the principle
of estoppel would have no application when there are
glaring illegalities in the selection process. Further,
estoppel is not applicable when the arbitrariness affects
fundamental rights under Articles 14 and 16 of the
Constitution of India.
19. As argued by the learned counsel for the High
Courts, the legal position is that after participating in the
recruitment process, the unsuccessful candidates cannot
turn around and challenge the recruitment process.
However, it is also settled that the principle of estoppel
cannot override the law. Such legal principle was
reiterated by the Supreme Court in Dr.(Major) Meeta
Sahai Vs. Union of India (2019) 20 SCC 17 where it was
observed as under:
“17. However, we must differentiate from this
principle insofar as the candidate by agreeing to
participate in the selection process only accepts the
prescribed procedure and not the illegality in it. In
a situation where a candidate alleges
misconstruction of statutory rules and
discriminating consequences arising therefrom, the
same cannot be condoned merely because a
candidate has partaken in it. The constitutional8 of 22
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scheme is sacrosanct and its violation in any
manner is impermissible. In fact, a candidate may
not have locus to assail the incurable illegality or
derogation of the provisions of the Constitution,
unless he/she participates in the selection process.”
20. Guided by the above ratio, in matters like this, to
non-suit the writ petitioners at the threshold would hardly
be reasonable particularly when the alleged deficiencies
in the process could be gauged only by participation in
the selection process.”
14. As per above-quoted judgments, it is evident that a candidate
cannot be estopped from assailing clause(s) of advertisement which are
arbitrary and violative of Article 14 of the Constitution of India. The
petitioners in the present case are assailing one clause of the advertisement
on the ground that it is contrary to statutory provisions as well as
notifications issued by Government of India and Government of Haryana,
meaning thereby, question of validity of the clause is involved. As they are
assailing one clause of the advertisement which prima facie seems to be
contrary to 2016 Act as well as notifications issued thereunder, the petitions
cannot be rejected at threshold. The matter needs to be examined on merits.
15. It is settled proposition of law that terms and conditions of the
advertisement cannot be contrary to Constitution of India, Statutory
provisions and Rules. If any clause of the advertisement is contrary to law,
it is liable to be ignored or read in the manner as prescribed in the law.
16. The Parliament introduced 1995 Act to give effect to the
Proclamation on the Full Participation and Equality of the People with
Disabilities in the Asian and Pacific Region. The Act defines Persons with
Disabilities as those having not less than forty percent disability and
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identified seven categories of disabilities, namely blindness, low vision,
hearing impairment, locomotor disability, mental retardation, mental illness
and leprosy-cured. The said Act was substituted by Rights of Persons with
Disabilities Act, 2016 (for short ‘2016 Act’). 2016 Act was introduced to
give effect to the United Nations Convention on the Rights of Persons with
Disabilities and for matters connected therewith or incidental thereto.
Section 34 of 2016 Act provides for reservation for persons with benchmark
disabilities. For the ready reference, Section 34 of 2016 Act is reproduced as
below:
“34. Reservation.–(1) Every appropriate Government shall
appoint in every Government establishment, not less than four
per cent. of the total number of vacancies in the cadre
strength in each group of posts meant to be filled with
persons with benchmark disabilities of which, one per cent.
each shall be reserved for persons with benchmark
disabilities under clauses (a), (b) and (c) and one per cent.
for persons with benchmark disabilities under clauses (d) and
(e), namely:–
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy,
leprosy cured, dwarfism, acid attack victims
and muscular dystrophy;
(d) autism, intellectual disability, specific learning
disability and mental illness;
(e) multiple disabilities from amongst persons under
clauses (a) to (d) including deaf-blindness in the posts
identified for each disabilities:
Provided that the reservation in promotion shall be in
accordance with such instructions as are issued by the
appropriate Government from time to time:
Provided further that the appropriate Government, in
consultation with the Chief Commissioner or the State
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Commissioner, as the case may be, may, having regard to the
type of work carried out in any Government establishment, by
notification and subject to such conditions, if any, as may be
specified in such notifications exempt any Government
establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot
be filled up due to non-availability of a suitable person with
benchmark disability or for any other sufficient reasons, such
vacancy shall be carried forward in the succeeding
recruitment year and if in the succeeding recruitment year
also suitable person with benchmark disability is not
available, it may first be filled by interchange among the five
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
five categories with the prior approval of the appropriate
Government.
(3) The appropriate Government may, by notification,
provide for such relaxation of upper age limit for employment
of persons with benchmark disability, as it thinks fit.”
[Emphasis supplied]
17. Section 33 of 2016 Act mandates that appropriate Government
shall identify posts for reservation. Section 33 of 2016 Act reads as below:
“33. Identification of posts for reservation.–The appropriate
Government shall–
(i) identify posts in the establishments which can be
held by respective category of persons with benchmark
disabilities in respect of the vacancies reserved in
accordance with the provisions of Section 34;
(ii) constitute an expert committee with representation
of persons with benchmark disabilities for
identification of such posts; and11 of 22
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(iii) undertake periodic review of the identified posts at
an interval not exceeding three years.”
It is apt to notice here that Section 33 of 2016 Act is verbatim
replica of Section 32 of 1995 Act.
18. The Government of India vide notification dated 29.07.2013
identified posts for persons with disabilities. The said notification was issued
in exercise of power conferred by Section 32 of 1995 Act. In the said
notification, post of Groundsman/Assistant Lineman was also identified for
persons with disability. The said post was ear-marked at Serial No.1475
which is reproduced as below:
Sl. No. Designation Physical Categories Nature of job Working
of Disabled condition/Remarks
Requirements suitable for
the job1 2 3 4 5 6
XXXX XXXX XXXX XXXX XXXX XXXX
1475 Grounds SE, W, S, B OL, HH Assist the Work is performed
Man lineman in inside and outside.
the various No hazards are
aspects of involved. Worker
line works alone and
maintenance, sometimes in a
repair and group. Mobility of
construction. the person should
Prepare and be adequate.
assemble
various line
apparatus
required for
particular
work being
performed.
Employee
will be in
close
proximity to
work area in
case on
emergency
i.e. must be
able to
operate.
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19. The State Government vide notification dated 03.02.2017
adopted aforesaid notification of Government of India. In the said
notification, it was mentioned that nomenclature used includes any other
nomenclature used for comparable posts with functions identical to the posts
identified in the notification dated 29.07.2013. If a post is already held by a
person with disability, it shall be deemed to have been identified. The list of
posts being notified is not an exhaustive list. Notification dated 03.02.2017
is reproduced as below:
“HARYANA GOVERNMENT
SOCIAL JUSTICE & EMPOWERMENT DEPARTMENT
Notification
Dated: 03-02-2017No. -SW(4)/2017- In supersession of earlier
Notification No. 472-SW(4)/2011 dated 22nd December, 2011,
the Governor of Haryana is pleased to adopt the posts
Identified for persons with disabilities notified by the Ministry
of Social Justice & Empowerment (Department of Disability
Affairs), Government of India, New Delhi from time to time
and vide their Notification No. 16-15/2010-DDIII dated 29th
July, 2013 for Group A,B,C & D under Section-32 of the
Persons with Disabilities (Equal Opportunities, Protection of
Right and Full Participation) Act, 1995 (Central Act No. 1 of
1996) here in referred to as the Act, for providing reservation
under Section-33 of the Act in establishments within the
meaning of Sub-Section(k) of Section-2 of the Act and
pertaining to Haryana State.
2. The nomenclature used includes any other
nomenclature used for comparable posts with functions
Identical to the posts identified in the said notification.
3. Persons with disabilities require some aids and
appliances to overcome their disabilities. The aids and
appliances may be provided to persons with disabilities on
their appointment, keeping in view their requirement.
4. The list of posts being notified is not an exhaustive list.
The Ministries, Departments, Public Sector Undertakings and
the autonomous bodies may further supplement the list.
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5. If a post is already held by a person with disability, it
shall be deemed to have been identified.
6. If a post is identified in the feeder grade, the post in the
promotional grade should also stand identified.
Chandigarh (Amit Jha)
The 27th Jan, 2017 Principal Secretary to Govt. Haryana,
Social Justice & Empowerment Deptt."
20. The State Government besides aforesaid notification dated
03.02.2017, issued instructions dated 17.04.2017. As per said instructions,
the State Government has adopted notification dated 29.07.2013 issued by
Government of India. There would be reservations of 3% in case of direct
recruitment for Group ‘A’, ‘B’, ‘C’ and ‘D’. The reservations shall be
horizontal. Instructions dated 17.04.2017 is reproduced as below:
“Government of Haryana
General Administration Department
General Services-III Branch
No. 22/10/2013-1GSIIIDated Chandigarh, the 17th April, 2017.
To
1. All the Administrative Secretaries to Government
Haryana
2. All Heads of Departments in the State of Haryana.
3. The Commissioners, Ambala/ Hisar/ Rohtak/
Gurugram Division.
4. All the CA/MDs of all Boards/ Corporations/Public
Sector Undertakings in Haryana.
5. The Registrar General of Punjab & Haryana High
Court, Chandigarh.
6. All the Deputy Commissioners in the State of
Haryana.
7. The Registrars of all the Universities in the State of
HaryanaSubject: Grant of reservation to persons with disabilities
in Jobs under Government/ Government14 of 22
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Undertakings, Local Bodies and Universities
etc.
Sir/Madam,I am directed to invite your kind attention to the
Government instructions issued vide letter of even number
dated 15.07.2014, in which it was decided to provide 3%
horizontal reservation to persons with disabilities in case of
direct recruitment to Group C and D in total cadre posts and
in the case of Group A and B posts reservation was to be
provided only on identified posts (in direct recruitment
quota).
2. In compliance of Hon’ble Supreme Court judgement
dated 08.10.2013 passed in Civil Appeal No. 9096 of 2013
and order dated 23.05.2016 passed by the Commissioner for
Persons with Disabilities in Case No. 165 of 2015 and 184 of
2016, the State Government on reconsideration of the matter
has now decided that three (03) percent posts in case of direct
recruitment for Group A, B, C and D shall be horizontally
reserved for persons with disabilities on the total number of
posts in the cadre strength and also in the case of promotion
to Group A, B, C and D w.e.f. date of PWD Act coming into
force on the posts identified for persons with disabilities
notified by the Ministry of Social Justice & Empowerment
(Department of Disability Affairs) Government of India, New
Delhi from time to time and vide their Notification No. 16-
15/2010- DDIII, dated 29th July, 2013 adopted by the
Haryana Government Social Justice & Empowerment
Department vide their notification dated 27.1.2017 issued
vide Endst. No. 130-SW(4) 2017, dated 3.2.2017.
The above instructions may please be brought to the
notice of all concerned for strict compliance,
Yours faithfully,
Sd/-
Superintendent, GS-III Branch,
for Chief Secretary to Government Haryana”
21. As per second proviso to Section 34(1) of 2016 Act, the
appropriate Government in consultation with Chief Commissioner or the
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State Commissioner may exempt any establishment from the provisions of
this Section. Section 33 of 1995 Act is pari materia with Section 34 of 2016
Act. The respondent-UHBVNL vide application dated 19.01.2016 requested
Social Justice and Empowerment Department to grant exemption from
applicability of Section 33 of 1995 Act. The said application came to be
rejected vide communication dated 14.03.2006 of Director, Social Justice
and Empowerment Department, Haryana. The communication dated
14.03.2006 reads as under:
“From
Director
Social Justice & Empowerment department,
Haryana, Chandigarh
To
Managing Director
Uttar Haryana Bijli Vitran Nigam
Panchkula
No.8947/H-3/VK/SJE/2006
Chandigarh, Dated 14/03/2006
Subject:- Recruitment of person with disabilities-with
reference to exemption u/s 33In reference to your office memo number 15870-71
dated 19/1/2006.
Government of India under Section 33 of Persons with
Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 issued notification Sr.No.16/25-
NII, dated 31.05.2001 wherein posts have been identified for
disabled persons.
You have sought exemption for filling post of
Assistant Lineman, Shift Attendant, Lower Divisional Clerk,
Upper Divisional Clerk, Meter Reader, Chowkidar, Sewadar,
Sweeper, Security Guard. You are informed that following
class of disabled persons can work on the post of Assistant
Lineman, Shift Attendant, Lower Divisional Clerk, Upper
Divisional Clerk, Meter Reader, Chowkidar, Sewadar,
Sweeper, Security Guard.
Assistant Lineman
1 (PD) Partially Deaf16 of 22
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Lower Divisional Clerk/Upper Divisional Clerk
1 (OL, BL) 1 leg/1 arm/both legs
2 (PD/D) Partially Deaf/Deaf
Peon
1 (LV) Low Vision
2 (OA) 1 Arm, (OL) 1 Leg
3 (PD) Partially Deaf
Chowkidar (Chowkidar-cum-Form Mate)
1 (BL) Both Legs
Sweeper
1 (BL, OL) Both Legs/ 1 LegThus, on thorough scrutiny and keeping in view
Government of India notification, exemption under Section 33
cannot be granted while making appointment of Assistant
Lineman, Lower Divisional Clerk, Upper Divisional Clerk,
Chowkidar, Sewadar. For the post of Shift Attendant, Meter
Reader, Security Guard, the exemption is being deliberated
upon u/s 33 and the decision will be conveyed.
Therefore, inform this office after filling post of
Assistant Lineman, Lower Divisional Clerk, Upper Divisional
Clerk, Chowkidar, Sewadar, Sweeper. The said list can be
accessed via internet on www.eedisabilities.nic.in.
Sd/-
Social Justice & Empowerment department,
Haryana”
[Emphasis Supplied]
22. From the perusal of communication dated 14.03.2006 of
Director, Social Justice & Empowerment Department, it is evident that
exemption sought by respondent was denied whereas respondent in its reply
as well as during the course of hearing attempted to impress upon the Court
that there is exemption under Section 33 of 1995 Act in favour of the
respondent, thus, there was no need to comply with mandate of 2016 Act.
The said authority has categorically asked the respondent to comply with
Government of India notification dated 31.05.2001 and further denied
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exemption under Section 33 while making appointment of Assistant
Lineman. The Social Justice & Empowerment Department rejected
application of the respondent seeking exemption under Section 33 of 1995
Act but it mis-leading this Court vehemently pleaded that there is exemption
in its favour. Act of respondent is reprehensible. Both the agencies i.e.
Selection Commission and Power Utility have acted in an irresponsible
manner. It is apt to notice here that in 2006, notification dated 31.05.2001 of
Government of India was in force and at the time of issuance of impugned
advertisement notification dated 29.07.2013 was in force which has
identified post of Assistant Lineman for persons with disability of one leg
and hard of hearing.
23. The communication dated 14.03.2006 was based upon
Government of India notification dated 31.05.2001. The Government of
India in exercise of power conferred by Section 32 of 1995 Act issued
another notification dated 29.07.2013 whereby scope of posts was enlarged.
As per notification dated 29.07.2013, persons with disability of one leg and
hard of hearing are eligible for the post of Groundsman. On being
confronted with Entry No.1475 of said notification, the respondent
attempted to plead that post of Assistant Lineman falls under Entry No.1206
which is reproduced as below:
1206 Lineman S, R, ST, BN, W, HH To do works Should have
(Field) MF given by the functional
superiors communication skill
with assistive
listening devices.
From the reading of above quoted Entry, it is evident that it is
applicable to Lineman (Field) whereas post in question is Assistant
Lineman. The designation mentioned under serial No.1475 is Groundsman
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and under column of nature of job, it is clearly recorded that Groundsman
would assist the Linemen in the various aspect of line maintenance, repair
and construction. Thus, Assistant Lineman is not equal to Lineman (Field)
whereas he is equal to Groundsman.
24. It is further apt to notice that respondent filed an affidavit dated
03.05.2017 before this Court in CWP-18665-2013 wherein it was deposed
that as per duty charter, an Assistant Lineman is basically a Groundsman to
help the Lineman. Duty chart of Assistant Lineman was enclosed with said
affidavit. The relevant extracts of the affidavit as well as contents of duty
chart are reproduced as below:-
“Affidavit
2. That as per duty Assistant Lineman is charter,
basically an a groundman to help the Lineman and is
entrusted with field job only. Photocopy of duty charter
of Assistant Lineman/Lineman is annexed herewith as
Annexure R-1/2 for kind perusal of this Hon’ble
Court.”
DUTIES OF ASSISTANT LINEMAN
“The Assistant Lineman is basically a groundsman to
help the Lineman. He will be assigned the following
duties when posted in operation organisation:-
1. Assisting the LM in the performance of duties at
ground carrying the T&P and ladders wherever
required.
2. Helping the lineman in the construction of works by
carrying material to the location of work, digging
of pits, erection of poles and sagging of conductors.
3. Replacement of fuses at the consumers premises.
4. To work on the overhead lines as LM, if so
authorised in writing by a gazetted officer for
construction and maintenance of lines, mains and
services.
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5. Any other job when specifically ordered by the
JE/SDO.
6. In case ALM is authorised to work as Lineman, then
he will perform the duties of lineman, if he is not
attached with lineman and is asked to do so by
JE(F)/JE(I)/SDO.
Under Secretary/GA
UHBVN, Panchkula”
25. From the aforesaid affidavit, there does not remain even an iota
of doubt that Assistant Lineman is Groundsman. The respondent while
adjudication of CWP-18665-2013 pleaded that Assistant Lineman is
Groundsman whereas before this Court is taking somersault and pleading
that Assistant Lineman is different from Groundsman. The stand of
respondent is depricable. The respondent is making every endeavour to deny
substantial benefit to the petitioners.
26. The Government of India issued notification dated 29.07.2013
in exercise of power conferred by Section 32 of 1995 Act. By said
notification, posts as well as disabilities were identified. The post of
Assistant Lineman was also identified and persons with disability of one leg
and hard of hearing were declared eligible for the post. The State
Government without any amendment has adopted notification dated
29.07.2013 by way of State notification dated 03.02.2017. The respondent
has further issued instructions dated 17.04.2017 whereby it has been
clarified that State Government has adopted notification dated 29.07.2013 of
the Central Government. The respondent was bound to comply with
notification dated 29.07.2013 of Government of India in true spirit and
without tinkering with it. The exemption sought by respondent stands
rejected by competent authority. Thus, respondent was duty bound to
implement notification dated 29.07.2013 read with notification dated
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03.02.2017 and instructions dated 17.04.2017. The respondent acting
beyond its jurisdiction and contrary to aforesaid statutory provisions has
confined benefit of reservation to persons with disability of hard of hearing
whereas persons with disability of one leg are equally entitled for the post. It
is apt to mention here that notification of 2001 issued by Government of
India identified post of Assistant Lineman for persons with disability of
hearing whereas notification dated 29.07.2013 identified for persons with
disability of one leg as well as hard of hearing.
27. The respondents during the course of hearing conceded that
while making appointments in 2023, persons with disability of one leg have
been considered and offered appointment letter. The reservation to persons
with disability is governed by 2016 Act and notifications issued thereunder
by Central as well as State Government. The reservation to persons with
disability of one leg has been granted on the basis of 2016 Act read with
2013 notification of Government of India and 2017 notification of State
Government.
There is no change in the legal position from 2013 to 2024. In
the absence of change in legal position, there was no reason to deny benefit
of reservation to persons with disability of one leg in 2019-2020 and grant in
2023. The stand of respondent is contradictory, arbitrary and whimsical. The
respondent has attempted to deny substantial benefit to persons who are
unfortunately suffering from physical disabilities. The respondent was bound
to comply with 2016 Act and notification issued thereunder. The respondent
instead of adopting pragmatic, compassionate and holistic approach has
followed pedantic and harsh approach.
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28. In the wake of above discussion and findings, this Court is of
the considered opinion that respondent has wrongly rejected candidature of
persons with disability of one leg. The petitions are allowed and
respondents are directed to consider all those petitioners who are with
disability of one leg. It is made clear that petitioners suffering with other
benchmark disabilities, on account of this judgment, would not be eligible
for the post of Assistant Lineman.
29. It is further clarified that date of joining of petitioners shall be
their date of appointment for all intent and purposes. The respondents would
be at liberty to examine other terms and conditions of advertisement while
considering claim of persons with disability of one leg. The needful shall be
done within 10 weeks from today.
30. This order may prompt fence sitters to approach this Court. The
benefit of this order shall be available only to present petitioners and it
would not be available to any fence sitter otherwise there would be no end of
litigation and it may open Pandora’s Box.
31. The respondent No.3- Uttar Haryana Bijli Vitran Nigam
(UHBVN) is hereby burdened with costs of Rs.1,25,000/- for making false
averments in the written statement. The costs shall be deposited within three
months from today with PGI Poor Patient Fund.
(JAGMOHAN BANSAL)
JUDGE
24.04.2025
Ali/Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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