No Appointment For Visually Impaired Candidate If Such Vacancy Is Not Requisitioned In The Advertisement: Gujarat High Court
"The provisions of the 2016 (Rights of Person with Disability) Act do not envisage a situation to give appointment to a person in absence of any vacancy in the category," the Gujarat High Court has held. Justice Biren Vaishnav observed so while hearing a writ petition under Article 226 of the Constitution, wherein the Petitioner, a visually impaired candidate, was aggrieved by...
"The provisions of the 2016 (Rights of Person with Disability) Act do not envisage a situation to give appointment to a person in absence of any vacancy in the category," the Gujarat High Court has held.
Justice Biren Vaishnav observed so while hearing a writ petition under Article 226 of the Constitution, wherein the Petitioner, a visually impaired candidate, was aggrieved by non-appointment to the Saurashtra Gramin Bank, for the reason that no vacancy for visually impaired (VI) category was requisitioned.
The petitioner, who also belonged to the SC community, claimed that merely because he belonged to VI category, his candidature could not be rejected.
Disagreeing, the High Court held,
"if the petitioner is to be considered for the VI category, since the respondent No.2 Bank did not notify any vacancy in the VI category and the petitioner having applied under SC – VI category, the petitioner cannot be given appointment. The provisions of the 2016 Act do not envisage a situation to give appointment to a person in absence of any vacancy in the category."
The Court further noted that the petitioner applied claiming and pressing for his claim against SC vacancy.
Even if that is taken into account, the Court said, the petitioner does not qualify the age criteria.
"Pursuant to the criteria of age, even if the petitioner is given five years relaxation, taking his date of Birth as 1.6.1987, he was beyond the permissible relaxation for the SC category," the Court noted.
Background
The Petitioner had applied for the post of Office Assistant in response to advertisement issued by Institute of Banking Personnel Selection. The Petitioner contended that he was provisionally allotted to the Saurashtra Gramin Bank but vide an email dated 20th March 2021, the Bank informed that there was no specific request for a visually impaired candidate and he had been referred to IBPS.
The Petitioner contended that merely because he belonged to VI category, his candidature could not be rejected. Such exclusion would also amount to a violation of Rights of Person with Disability Act, 2016 and Persons with Disability (Equal Opportunity Protection of Rights and Full Participation) Act, 1955. The Petitioner had secured marks far above the cut off.
Per contra, the Respondent-Bank submitted that the Bank had not requested for any VI candidate. The IBPS had invited only SC candidates and not VI candidates. Mere provisional admission, per the Bank, did not imply necessary employment. Additionally, the Petitioner had 40% benchmark disability and there was no question of considering the candidature of the Petitioner in any category other than which he had applied. Moreover, the Petitioner was aged 33 years- beyond permissible relaxation for SC category.
Judgement
The Bench while appreciating the facts, observed that the Petitioner's first option was the Saurashtra Bank through the SC category. However, he later insisted on being considered for a vacancy in the VI category. According to the Bench, the Petitioner was trying to take advantage of the uncertain stand of the recruiting agency which sent him an e-receipt showing his candidature for SC-VI category. The Bank, clearly, had not requisitioned any vacancy in the VI category as evident from a letter from Respondent Bank to Respondent-IBPS.
Therefore, the Bench enumerated two conditions under which the petition could not be entertained:
- The Petitioner had claimed his vacancy against SC vacancy. Further, the age of the Petitioner was not suitable.
- The Bank had no vacancy against VI category.
Accordingly, the petition was dismissed.
Case Title: SOLANKI VIPULKUMAR VIRABHAI Versus INSTITUTE OF BANKING PERSONNEL SECTION (IBPS)
Citation: 2022 LiveLaw (Guj) 55
Case No.: C/SCA/6403/2021
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