Page No.# 1/12 GAHC010011172020 2026:GAU-AS:7890 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case : WP(C)/3533/2024 SANJIB DAS SON OF LATE SURJYA MOHAN DAS RESIDENT OF VILLAGE- DEKASUNDAR P.O. AND P.S.- JAMUGURIHAT DISTRICT- SONITPUR ASSAM PIN- 784180. VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM EDUCATION (HIGHER) DEPARTMENT DISPUR GUWAHATI- 781006. 2:THE DIRECTOR OF HIGHER EDUCATION KAHILIPARA GUWAHATI- 781019. 3:THE GOVERNING BODY REPRESENTED BY THE PRESIDENT/ SECRETARY OF THE TYAGBIR HEM BARUAH COLLEGE JAMUGURIHAT DISTRICT- SONITPUR ASSAM PIN- 784189. Page No.# 2/12 4:THE PRINCIPAL TYAGBIR HEM BARUAH COLLEGE JAMUGURIHAT DISTRICT- SONITPUR ASSAM PIN- 784189. ------------ Advocate for : MR SISHIR DUTTA Advocate for : SC HIGHER EDU appearing for THE STATE OF ASSAM AND 3 ORS BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 04-06-2026 Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. S. Das, learned standing counsel, Higher Education appearing for the respondent Nos. 1 & 2 and Mr. P. Hazarika, learned counsel representing respondent Nos. 3 & 4. 2. The petitioner in the present writ petition has assailed a communication dated 28- 05-2024, issued by the Director, Higher Education, regretting the proposal submitted for appointment of the petitioner against the post of Library Assistant in the Tyagbir Hem Baruah College. The petitioner has further presented a challenge to a fresh advertisement issued on 21-06-2024, for the post of Library Assistant, against which he was earlier selected by the College authorities. The petitioner has also questioned the issuance of the second advertisement dated 21-06-2024 by now placing the post of Library Assistant against Roster Point-7 (UR). 3. The facts, in brief, requisite for adjudication of the present writ petition is noticed as under: Page No.# 3/12 On 19-05-2022, an advertisement was issued by the Principal of the Tyagbir Hem Baruah College (hereinafter referred to as “the College”), inviting applications from eligible candidates for filling up a post of Library Assistant available in the College. The said post was so advertised against Roster Point-1 for UR and was reserved for PwD candidates. The petitioner being a candidate having hearing impairment, submitted his application in pursuance to the said advertisement dated 19-05-2022, along with all requisite documents. It is projected that, thereafter, the petitioner had appeared in the selection process conducted by the College authority and it is further projected that he was selected in the said selection process against the post of Library Assistant. The selection of the petitioner by the Selection Committee having been approved by the Governing Body of the College, a proposal was put up before the Director of Higher Education, Assam for grant of approval towards appointing the petitioner as Library Assistant in the College. The proposal being received, the office of the Director, Higher Education, Assam had vide a communication dated 04-02-2023, required the Principal of the College to furnish the Post Sanctioning Letter/ Post Creation Letter in respect of the post of Library Assistant, against which the petitioner was so selected. The said documents were forwarded by the College authority to the Director of Higher Education. The College authority had also forwarded to the Director a Roster Register maintained in the College with regard to Grade-III posts. The Director of Higher Education, Assam, on a perusal of the materials placed before her along with the proposal as forwarded in respect of the selection of the petitioner, herein, against the post of Library Assistant, proceeded vide a communication dated 28-05-2024, Page No.# 4/12 to inform the Principal of the College that the proposal submitted for appointment against the post of Library Assistant was regretted. It was further highlighted that the post was advertised without rotating the Roster Point in terms of the 13 Point Roster as contained in the Appendix to Annexure-2, of the Office Memorandum dated 02-07-1997. The College authority, thereafter, after, preparing a fresh Roster by reckoning the recruitment made over the period of time against the posts forming Grade-III of the service in the College, proceeded to issue an advertisement dated 21-06-2024, for the post of Library Assistant and therein, had advertised the said post against the Roster Point- 7 (UR). The petitioner being aggrieved has instituted the present writ petition. 4. Mr. S. Dutta, learned counsel for the petitioner by reiterating the facts noticed, hereinabove, has submitted that the College authority while issuing the advertisement dated 19-05-2022, had correctly determined the Roster Point, against which the said post was so required to be filled up. It is submitted that the incumbent who was placed in the Roster Register against Roster Point-1, was no longer in service having passed on, on 30- 06-2021. It is projected by Mr. Dutta that the Roster Point-1 is reserved for Unreserved Candidate and is further reserved in terms of the provisions of holding the field, for a PwD candidate. Accordingly, he submits that on the date of the selection recruitment having already been made against all the 04 (four) posts forming Grade-III service in the College and a vacancy having arisen against Roster Point No. 1, by applying replacement theory, the College authority had not committed any error in advertising the post of Library Assistant against Roster Point-1 (UR). It is submitted that the selection of the petitioner was made in accordance with the procedure laid down in the matter and he admittedly Page No.# 5/12 being a candidate belonging to the PwD category, the recommendation made in this connection by the Governing Body of the College for his appointment was required to be accepted by the Director, Higher Education, Assam. Mr. Dutta further submits that even if there was any error in assigning the Roster Point for the recruitment in question, the petitioner not being at fault with regard to the same, the petitioner ought not to have been penalized by depriving him of his due appointment in pursuance to his selection for the post, in question. 5. Mr. Dutta has, accordingly, submitted that the communication dated 28-05-2024, as well as the advertisement dated 21-06-2024, by which a fresh process of recruitment against the post of Library Assistant with a change in the Roster Point was so initiated would mandate interference from this Court. 6. On the contrary, Mr. S. Das, learned standing counsel, Higher Education, Assam, has submitted that the petitioner being only selected candidate, no right has accrued to him for being appointed against the post in question. It is submitted that the Director is mandated to examine the selection process along with the attending factors before granting approval to the recommendations made by the Governing Body, with regard to the recruitment against the vacant post available in provincialized Colleges in the State. It is submitted that as per the procedure mandated, the petitioner was required to appear before the Medical Board constituted at the Gauhati Medical College & Hospital (GMCH), to ascertain the extent of the disability suffered by him. It is submitted that such procedure is also followed in case of all selected candidates for various posts in provincialized Colleges of the State. Mr. Das submits that the petitioner, on being Page No.# 6/12 examined by the Medical Board of GMCH, on 10-06-2023, it was found that the disability suffered by the petitioner was to the extent of 23% only and accordingly, he cannot be deemed to be a person with “Benchmark Disability” and on this count alone, the petitioner would not be eligible to be so recruited against the post which was so advertised by reserving the same for PwD candidates. 7. Mr. P. Hazarika, learned counsel for the respondent submits that the initial Roster that was prepared by the College authority was so prepared by only considering the persons in position as on the date of preparation of the same. The persons who had earlier held the Gr-III post in the College and subsequently promoted to the next higher grade were not incorporated in the said Roster. Considering the said Roster so prepared, it being determined that the post of Library Assistant would now be required to be advertised against the Roster Point-1 (UR) by reserving the same for PwD category, the College authority had proceeded to issue the advertisement dated 19-05-2022. Mr. Hazarika admits that the petitioner was selected by the Selection Committee as constituted for the purpose of selection for the post of Library Assistant and his such selection was also approved by the Governing Body of the College. Mr. Hazarika, however, submits that when the matter was placed before the Director, Higher Education, Assam for approval, the Director had required the College authority to furnish all requisite documents in the matter. It is submitted that, thereafter, the Director, Higher Education, Assam, on consideration of the documents coming on record had come to a conclusion that the determination of the Roster Point against which the advertisement for the post of Library Assistant was so issued, was erroneous. Accordingly, vide communication dated Page No.# 7/12 28-05-2024, the proposal sent for grant of approval for appointing the petitioner against the post of Library Assistant as advertised vide advertisement dated 19-05-2022, came to be regretted. Mr. Hazarika submits that in view of the said developments taking place, no appointment order came to be issued to the petitioner in the matter. Mr. Hazarika has submitted that the selection process initiated in pursuance to the advertisement dated 21- 06-2024, although completed, however, in view of the interim directions passed vide order dated 17-07-2024, the result, thereof, has not been declared by the College authority and presently the same is kept in a sealed cover. 8. Mr. Hazarika by reiterating the submissions made by the learned standing counsel, Higher Education Department, Assam submits that the petitioner being not found to be have “Benchmark Disability”, his appointment against a post reserved for PwD candidates would not mandate to be so effected. Mr. Hazarika further submits that the petitioner on being examined by the District Standing Medical Board, Sonitpur, his disability was detected to be permanent to the extent of 10% only. Accordingly, Mr. Hazarika submits that it is the mandate of law that for being appointed against a PwD category post, a person must have “Benchmark Disability” of not less than 40%. Accordingly, it is submitted that the petitioner, herein, not having the “Benchmark Disability”, his case in pursuance to the recruitment exercise initiated vide the advertisement dated 19-05-2022, would not mandate to be taken to its logical conclusion. In the above premises, Mr. P. Hazarika submits that the claim made by the petitioner in the present writ petition would not mandate acceptance from this Court. 9. I have heard the learned counsel for the parties and have also perused the Page No.# 8/12 materials available on record. 10. The petitioner admittedly in pursuance to an advertisement issued on 19-05-2022, for recruitment against the post of Library Assistant was selected for appointment against the said post in pursuance to a selection held after issuance of the said advertisement. The said post was so advertised by denoting the same to be so placed against Roster Point-1 and further the post was reserved for PwD candidate. The selection of the petitioner, the same was not approved by the Director of Higher Education, Assam on the ground that the Roster Point-1, as assigned for the said post in the advertisement dated 19-05-2022, was so assigned without taking into account all the recruitments made to the said cadre and the determination of the said Roster Point was also held to have been so made without rotating the Roster Point in accordance with the model roster for posts having cadre strength upto 13 (thirteen) posts, as set out in the Appendix to Annexure-2 of the OM dated 02-07-1997. Admittedly a variance is found in the Roster Registers prepared by the College authority prior to the issuance of the advertisement in question and the Roster Register that was relied upon for the purpose of re-advertising the post of Library Assistant by issuance of advertisement dated 21-06-2024. The said aspect of the matter need not detain this Court, inasmuch as, the very eligibility of the petitioner, herein, for being appointed against the post of Library Assistant in pursuance to the advertisement dated 19-05-2022 is questioned by the respondents by projecting that he cannot be treated to be a person with “Benchmark Disability”, and accordingly, would not be entitled to be so appointed against the post reserved for a PwD candidate. 11. The term persons with “Benchmark Disability” is defined under the provision of Page No.# 9/12 Section 2(r) of the Rights of Persons with Disabilities Act, 2016. The said definition being relevant is extracted here-in-below:- 2. Definitions.- In this Act, unless the context otherwise requires, (r) “person with benchmark disability" means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority; 12. A perusal of the said definition of “Persons with Benchmark Disability” would reveal that it means it is in relation to a person having not less than 40% of specified disability. The petitioner, herein, is projected to be having hearing impairment. 13. Sub-Section (1) of Section 34 of the Act of 2016 being relevant, the same is extracted here-in-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 Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by Page No.# 10/12 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.” 14. A perusal of the provision of Section 34 would reveal that it is mandated, therein, that every appropriate Government shall appoint in every Government establishment, not less than 04% of the total number of vacancies in the cadre strength in each group of posts meant to be filled up with persons with Benchmark Disabilities. Accordingly, for being considered for appointment against a post identified to be so filled up by a PwD candidate, an intending candidate must possess the Benchmark Disability, i.e. having not less than 40% of the specified disability. In the present case, after the name of the petitioner was recommended by the Governing Body of the College to the Director of Higher Education, Assam seeking approval of the authority for effecting appointment in respect of the petitioner, herein, and as per the procedure put in place the petitioner and other candidates recommended by various provincialized Colleges for appointment against the post reserved for PwD candidates, were directed to appear before a Medical Board constituted in the GMCH. The petitioner, accordingly, appeared before the said Medical Board on 10-06-2023. The Medical Board upon examining the petitioner submitted its report with regard to the extent of disability suffered by the petitioner and it was noted that the petitioner suffered disability to the extent of 23% only. 15. From the affidavit filed by the respondent Nos. 3 and 4, this Court finds that, therein, a report of the District Standing Medical Board, Sonitpur was brought on record. A perusal of the said report pertaining to the examination made of the extent of disability suffered by the petitioner, it is found that the said Board had opined that the petitioner Page No.# 11/12 has mild hearing loss in his right ear and mild to moderate hearing loss to his left ear, the permanent disability of the petitioner was determined to be 10%. As noticed, hereinabove, for being appointed against a post reserved for PwD category, the intending candidate must suffer disability to the extent of 40% of the specified disability. Even if the report of the District Standing Medical Board is ignored, from the report of the Doctors examining the petitioner in GMCH, it is seen that the disability of the petitioner was determined to be 23% only. Accordingly, the petitioner does not come within the meaning of the term “Persons with Benchmark Disability” and accordingly, he cannot be held to be eligible to be appointed against a post reserved for a PwD category candidate. The said materials brought on record by the Director of Higher Education, as well as the respondent Nos. 3 and 4, have not been disputed by the petitioner in the present writ petition. No rejoinder is seen to have been filed against the affidavits filed by the said respondents and accordingly, the contention raised with regard to the extent of disability suffered by the petitioner is found to have been not disputed by the petitioner. 16. In view of the above discussions, this Court having found the petitioner to be not eligible for being considered for appointment against a post reserved for PwD category candidates, this Court would not be in a position to proceed to direct the respondent authorities to appoint the petitioner against the post of Library Assistant, as advertised vide the advertisement dated 19-05-2022. Accordingly, the claim made by the petitioner in the present writ petition, in this connection, stands rejected. Having held the petitioner to be not eligible for being considered for appointment against the post of Library Assistant, for the reasons assigned, hereinabove, this Court directs the College authority Page No.# 12/12 to take the advertisement dated 21-06-2024, issued for recruitment against the post of Library Assistant, to its logical conclusion. For facilitating the said exercise the interim directions passed by this Court vide order dated 17-07-2024, stands vacated. 17. Accordingly, the present writ petition is held to be devoid of any merit and consequently, the same stands dismissed. However, there would be no order as to cost. JUDGE Comparing Assistant