APPOINTMENT ON SUPERNUMERARY POST FOR DISABILITY DISCRIMINATION, WAIVING BACK WAGES BUT GRANTING NOTIONAL SENIORITY.

The petitioner, a 36-year-old individual from Jammu, holding a 10+2 qualification and suffering from 75% Locomotor Disability/Cerebral Palsy, challenged the selection process for Class-IV posts in the Law, Justice and Parliament Affairs Department.

Advertisement Notice No. 01 of 2013, dated 07.08.2013, invited applications for four Class-IV posts in Jammu Division and four in Kashmir Division.

The petitioner applied under the Physically Handicapped category for the Jammu Division posts.

The petitioner alleged that the selection of respondents 4 to 11 was flawed.

Specifically, he contended that respondents 4 to 7 were selected against the four advertised Class-IV posts in Jammu Division, and respondents 8 to 11 were selected in excess of advertised vacancies, without proper advertisement.

No candidate from the Physically Handicapped category was selected, despite statutory reservation requirements.

The selection criteria, which were not disclosed in advance and only revealed after an RTI application, allocated 40% marks for viva voce.

The petitioner asserted that this excessive weightage for viva voce for Class-IV posts (requiring minimum Matriculation and maximum 10+2 qualification) was arbitrary and enabled manipulation, leading to the selection of candidates with less academic merit, even some without the 10+2 qualification he possessed.

He also claimed that 8 appointments were made against 4 advertised posts in Jammu Division, and 39 appointments against 4 advertised posts in Kashmir Division, all in excess of advertised vacancies.

The respondents contended that the selection process adhered to rules, the 40% viva voce weightage was within their domain, and the number of posts could increase or decrease as per the advertisement.

They stated that no eligible candidate under the Physically Handicapped category was selected on merit.

The petitioner subsequently filed a rejoinder, reiterating his arguments regarding the arbitrary viva voce weightage, non-implementation of disability reservation, and appointments made in excess of advertised vacancies.

The original petition, SWP No. 2673/2015, filed before the Hon'ble High Court of Jammu & Kashmir at Jammu, was transferred to the Central Administrative Tribunal and registered as T.A. No. 3287/2020.

Whether the selection of respondents 4 to 7 for Class-IV posts was valid given the allegations regarding selection criteria and non-implementation of reservation for physically handicapped persons?

Whether the selection of respondents 8 to 11 in excess of the advertised vacancies was lawful?

Whether the selection criteria, which allocated 40% marks for viva-voce for Class-IV posts, was arbitrary and violative of constitutional provisions?

Whether the respondents failed to provide reservation to the category of physically handicapped persons as mandated by law?

Whether the petitioner is entitled to appointment against a Class-IV post?

The Tribunal primarily applied the principles of transparency and fairness in public employment, stemming from Articles 14 (equality before law) and 16 (equality of opportunity in public employment) of the Constitution of India.

It relied on established jurisprudence from the Hon'ble Supreme Court which dictates that excessive weightage to viva voce, especially for lower posts, is impermissible as it introduces arbitrariness and subjectivity, defeating the constitutional guarantee of equality.

The statutory mandate of the J&K Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, and the J&K Reservation Rules, 2005, requiring reservation for persons with disabilities, was also applied.

The principle that appointments cannot be made in excess of advertised vacancies was also implicitly referenced.

The Tribunal found that the allocation of 40% weightage for viva voce for Class-IV posts, where the minimum qualification was Matriculation and maximum was 10+2, was "ex facie excessive and unreasonable".

This excessive weightage was deemed to facilitate arbitrariness and subjectivity, undermining Articles 14 and 16, particularly since the selection criteria were not disclosed in advance.

Furthermore, the Tribunal noted that despite the statutory mandate under the J&K Persons with Disabilities Act, 1998, and J&K Reservation Rules, no candidate from the disabled category was selected, and the respondents failed to satisfactorily explain this non-compliance.

The cumulative effect of excessive viva voce weightage, non-disclosure of criteria, and non-implementation of reservation rendered the selection process arbitrary and constitutionally suspect.

While acknowledging the delay since 2013, the Tribunal decided against quashing the entire selection to avoid administrative disruption, opting instead to provide individual relief to the diligently pursuing petitioner, who was eligible and possessed higher qualifications than some selected candidates.

It held that the petitioner was denied fair consideration due to an arbitrary and non-transparent selection procedure and the non-implementation of statutory reservation.

The Tribunal directed the respondents to appoint the petitioner against one of the Class-IV posts in the concerned Division based on Advertisement Notice No. 01 of 2013.

If no vacancy was available, a supernumerary post was to be created for him.

The petitioner was granted notional seniority from the date other selected candidates were appointed, along with all consequential benefits including fixation of pay on a notional basis and continuity for pensionary and service benefits, but without back wages for the past period.

The directions were to be complied with within 12 weeks.