Prof.i.Elangovan Vs. Govt.of Tamil Nadu - Court Judgment

SooperKanoon Citationsooperkanoon.com/927076
SubjectConstitution
CourtChennai High Court
Decided OnOct-13-2009
Case NumberW.P.No.28217 of 2008
JudgePRABHA SRIDEVAN; M.SATHYANARAYANAN, JJ.
ActsPersons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 33, 20, 21, 2(k); Constitution of India - Article 16(4), 16, Clause (1)
AppellantProf.i.Elangovan
RespondentGovt.of Tamil Nadu
Excerpt:
[prabha sridevan; m.sathyanarayanan, jj.] persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 - section 33, 20, 21, 2(k) -- ms.n.kavitha, learned counsel appears for the 2nd respondent university. before the first bench, the learned special government pleader submitted that the state government has issued persons with disabilities (equal opportunities, protection of rights and full participation) rules 2002 and the rule 30 provides for computation of the vacancies for the disabled persons. article 16(4) provides for vertical reservation; whereas clause (1) of article 16 provides for horizontal reservation. the state adopted a policy decision for filling up the reserved posts for handicapped persons. in terms of the 1995 act, the states were obligated to make reservations for handicapped persons.orderprabha sridevan,j1. heard mr.v.ajoy khose, learned counsel for the petitioner, mr.m.dhandapani, learned special government pleader for the 1st respondent and ms.n.kavitha, learned counsel appearing for the 2nd respondent.2. it looks like the petitioner is a crusader for the disabled. in this particular writ petition, the establishment which he focuses on is the 2nd respondent university. according to him, though there are totally 187 posts, the 2nd respondent university is not following the mandate of section 33 of the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 and while issuing an advertisement on 15.10.2008 calling for applications for appointment of 1 professor, 9 readers and 19 lecturers, reservations has been made on communal basis, but no provision has been made for persons with disabilities. it is in these circumstances, the present writ petition has been filed.3. to his application made under the right to information act, the 2nd respondent has responded that "no one is appointed under disabled quota for the above categories. the words "above categories" would refer to professor/readers/lecturers.4. ms.n.kavitha, learned counsel appears for the 2nd respondent university. according to the learned counsel, the university is following the government orders with regard to communal reservation and since there is no specific order with regard to disability reservation, their advertisement does not mention it. however, it is submitted fairly that the university would abide by any direction made by this court. in our opinion this could be the only response5. we find from the typed set of papers that this professor, who is the writ petitioner herein, has earlier filed two writ petitions and obtained favourable orders for the disabled. the first is w.p.no.27321 of 2007, where the petitioner has sought for a declaration that the advertisements issued on 18.9.2006 is violative of section 33 of the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 (hereinafter called as "act"), since it does not comply with the provisions of the act. in that case where reservation ought to have been made for 30 posts out of 1000 posts, which would be 3% of the total reservation, the prospectus provided only for 13 posts. the other grievance was that while allotting 3% reservation to the disabled category, instead of reservation of 1% each to the visually impaired, hearing impaired and orthopaedically impaired, the respondent had excluded the hearing impaired completely. before the first bench, the learned special government pleader submitted that the state government has issued persons with disabilities (equal opportunities, protection of rights and full participation) rules 2002 and the rule 30 provides for computation of the vacancies for the disabled persons. recording this, the writ petition no.27321 of 2007 was disposed of.6. again, the writ petitioner filed w.p.nos.35808 and 36777 of 2007, which is reported in (2008) 3 mlj 481, where the grievance of the writ petitioner was that the notification issued by the tamil nadu public service commission was not in consonance with section 33 of the act. the first bench took note of the total number of vacancies in each category and after referring to various judgments in respect of the rights of the persons with disabilities by the supreme court and privy council and also andhra pradesh high court, held at paragraphs 20 and 21 as follows: "20. we have therefore no hesitation to hold that the provisions of section 33 read with section 2(k) of the act would prevail over the tamil nadu state and subordinate service rules and the respondents are duty bound to provide reservation of not less than 3% in every establishment i.e, department for persons with disabilities in accordance with section 33 of the act.21. on behalf of the tnpsc, the charts showing the vacancy positions, as per section 33 read with section 2(k) of the act, are filed on record. as per the charts 80 vacancies are liable to be reserved for the post of typist and 8 vacancies for the post of steno-typist for persons with disability under notification/advertisement no.135. as regards, notification no.142, 99 vacancies are liable to be filled up from among the persons with disabilities. we are informed that for the post of typist and steno-typist, the tnpsc has received in all 2151 applications and for the post of junior assistants, bill collectors, etc., falling under grade-iv service, 524 applications have been received in disabled category. accordingly, we direct the tnpsc to fill up the said 187 vacancies exclusively by appointing eligible disabled candidates. the writ petitions are disposed of accordingly."7. in mahesh gupta and others vs. yashwant kumar ahirwar and others reported in (2007) 8 scc 621, the supreme court has considered the advertisement issued by the state of madhya pradesh with regard to recruitment of handicapped persons. the supreme court has clearly expressed its view and has held as follows:10. the state in terms of article 16 of the constitution of india may make two types of reservations vertical and horizontal. article 16(4) provides for vertical reservation; whereas clause (1) of article 16 provides for horizontal reservation.11. the state adopted a policy decision for filling up the reserved posts for handicapped persons. a special drive was to be launched therefor. the circular letter was issued only for the said purpose. a bare perusal of the said circular letter dated 29-3-1993 would clearly show that the state had made 3% reservation for blinds and 2% for other physically handicapped persons. such a reservation falling within clause (1) of article 16 of the constitution has nothing to do with the object and purport sought to be achieved by reason of clause (4) thereof.13. it is a travesty of justice that despite the state clarified its own position in its order dated 1-1-2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. in its reply in the said proceedings, reference was made to the aforementioned order dated 1-1-2004 but within a short time viz. on 4-2-2004 it opined on a presumption that as the word handicapped was not mentioned in the heading of advertisement they were meant only for scheduled caste and scheduled tribe candidates. rule of executive construction was given a complete go-by. reasonableness and fairness which is the hallmark of article 14 of the constitution of india was completely lost sight of. the officers of the state behaved strangely. it prevaricated its stand only because a contempt proceeding was initiated. if the state was eager to accommodate the writ petitioner-respondent, it could have done so. it did not take any measure in that behalf. it chose to terminate the services of some of the employees who had already been appointed. such a course could not have been taken either in law or in equity. the state is expected to have a constitutional vision. it must give effect to the constitutional mandate. any act done by it should be considered to have been effected in the light of the provisions contained in part iv of the constitution of india. the state in terms of the provisions contained in part iv should have given effect to the principles embodied in article 39 of the constitution of india. whereas a reasonable reservation within the meaning of article 16 of the constitution of india should not ordinarily exist (sic exceed), 50%, as has been held by this court in indra sawhney v. union of india1, reservation for women or handicapped persons would not come within the purview thereof.14. furthermore, when the decision was taken, the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 (for short the 1995 act) had come into force. in terms of the 1995 act, the states were obligated to make reservations for handicapped persons. the state completely lost sight of its commitment both under its own policy decision as also the statutory provision.15. for the reasons aforementioned, we not only set aside the judgment of the high court but also direct that the persons whose services have been terminated in terms of order dated 4-2-2004 should be continued in service. we furthermore direct that they should be paid back wages as also other service benefits. respondent 1 could have been considered both as handicapped persons as also scheduled castes and scheduled tribes. if all the vacancies meant for scheduled castes and scheduled tribes had not been filled up, the state may consider appointing him. if he has already been appointed, the state may consider the desirability of creating a supernumerary post and continue his service therein.16. the appeals are allowed with costs.:8. it is rather unfortunate that the same writ petitioner has to come to us, complaining of non-compliance of the requirements of the disabilities act in respect of each and every educational institution in the state. we, surely, feel that once the supreme court and this court have expressed their opinion on how the act should be complied, the state has to apply the same to all departments, universities and other institutions under its control. it is no longer open to the 2nd respondent to have an option with regard to the rights of the persons with disabilities. the act uses the word "shall". it is not an option or discretion but it is a mandate.9. in these circumstances, this writ petition is disposed of as follows:a) one post has been kept vacant, pursuant to the interim order of this court. this shall be filled up out of the applicants who are orthopaedically challenged, since the turn of the orthopaedically challenged comes first. in case there is no such applicant, the post that has been kept vacant may be filled up by either visually challenged or hearing challenged in accordance with the rules.b) the second respondent university shall comply with the provisions of the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995 and rules while calling for applications in future.c) according to the learned counsel for the petitioner, six posts ought to have been reserved for the disabled persons and since now by our order, only one post will be filled up, while considering the vacancies that arise in future, first this backlog vacancies for the disabled category should be filled up as per the act and as per the judgment of the supreme court that we have extracted above.d) the 1st respondent, which has framed the rules to comply with the requirements of the act, shall give suitable directions to all the departments and institutions coming under their control to comply with the requirements of the act strictly and fully so that similar writ petitions do not have to be filed in future. no costs. the connected miscellaneous petition is closed.
Judgment:

ORDER

PRABHA SRIDEVAN,J

1. Heard Mr.V.Ajoy Khose, learned counsel for the petitioner, Mr.M.Dhandapani, learned Special Government Pleader for the 1st respondent and Ms.N.Kavitha, learned counsel appearing for the 2nd respondent.

2. It looks like the petitioner is a crusader for the disabled. In this particular Writ Petition, the establishment which he focuses on is the 2nd respondent University. According to him, though there are totally 187 posts, the 2nd respondent University is not following the mandate of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and while issuing an advertisement on 15.10.2008 calling for applications for appointment of 1 Professor, 9 Readers and 19 Lecturers, reservations has been made on communal basis, but no provision has been made for persons with disabilities. It is in these circumstances, the present Writ Petition has been filed.

3. To his application made under the Right to Information act, the 2nd respondent has responded that "no one is appointed under disabled quota for the above categories. The words "above categories" would refer to Professor/Readers/Lecturers.

4. Ms.N.Kavitha, learned counsel appears for the 2nd respondent University. According to the learned counsel, the University is following the Government Orders with regard to communal reservation and since there is no specific order with regard to disability reservation, their advertisement does not mention it. However, it is submitted fairly that the University would abide by any direction made by this Court. In our opinion this could be the only response

5. We find from the typed set of papers that this Professor, who is the writ petitioner herein, has earlier filed two Writ Petitions and obtained favourable orders for the disabled. The first is W.P.No.27321 of 2007, where the petitioner has sought for a declaration that the advertisements issued on 18.9.2006 is violative of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called as "Act"), since it does not comply with the provisions of the Act. In that case where reservation ought to have been made for 30 posts out of 1000 posts, which would be 3% of the total reservation, the prospectus provided only for 13 posts. The other grievance was that while allotting 3% reservation to the disabled category, instead of reservation of 1% each to the visually impaired, hearing impaired and orthopaedically impaired, the respondent had excluded the hearing impaired completely. Before the First Bench, the learned Special Government Pleader submitted that the State Government has issued Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules 2002 and the Rule 30 provides for computation of the vacancies for the disabled persons. Recording this, the Writ Petition No.27321 of 2007 was disposed of.

6. Again, the writ petitioner filed W.P.Nos.35808 and 36777 of 2007, which is reported in (2008) 3 MLJ 481, where the grievance of the writ petitioner was that the notification issued by the Tamil Nadu Public Service Commission was not in consonance with Section 33 of the Act. The First Bench took note of the total number of vacancies in each category and after referring to various judgments in respect of the rights of the persons with disabilities by the Supreme Court and Privy Council and also Andhra Pradesh High Court, held at paragraphs 20 and 21 as follows: "20. We have therefore no hesitation to hold that the provisions of Section 33 read with Section 2(k) of the Act would prevail over the Tamil Nadu State and Subordinate Service Rules and the respondents are duty bound to provide reservation of not less than 3% in every establishment i.e, department for persons with disabilities in accordance with Section 33 of the Act.

21. On behalf of the TNPSC, the charts showing the vacancy positions, as per Section 33 read with Section 2(k) of the Act, are filed on record. As per the charts 80 vacancies are liable to be reserved for the post of Typist and 8 vacancies for the post of Steno-Typist for persons with disability under Notification/Advertisement No.135. As regards, Notification No.142, 99 vacancies are liable to be filled up from among the persons with disabilities. We are informed that for the post of Typist and Steno-Typist, the TNPSC has received in all 2151 applications and for the post of Junior Assistants, Bill Collectors, etc., falling under Grade-IV Service, 524 applications have been received in disabled category. Accordingly, we direct the TNPSC to fill up the said 187 vacancies exclusively by appointing eligible disabled candidates. The Writ Petitions are disposed of accordingly."

7. In Mahesh Gupta and others vs. Yashwant Kumar Ahirwar and others reported in (2007) 8 SCC 621, the Supreme Court has considered the advertisement issued by the State of Madhya Pradesh with regard to recruitment of handicapped persons. The Supreme Court has clearly expressed its view and has held as follows:

10. The State in terms of Article 16 of the Constitution of India may make two types of reservations vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation.

11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The circular letter was issued only for the said purpose. A bare perusal of the said Circular Letter dated 29-3-1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof.

13. It is a travesty of justice that despite the State clarified its own position in its order dated 1-1-2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1-1-2004 but within a short time viz. on 4-2-2004 it opined on a presumption that as the word handicapped was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of executive construction was given a complete go-by. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner-respondent, it could have done so. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist (sic exceed), 50%, as has been held by this Court in Indra Sawhney v. Union of India1, reservation for women or handicapped persons would not come within the purview thereof.

14. Furthermore, when the decision was taken, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the 1995 Act) had come into force. In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.

15. For the reasons aforementioned, we not only set aside the judgment of the High Court but also direct that the persons whose services have been terminated in terms of order dated 4-2-2004 should be continued in service. We furthermore direct that they should be paid back wages as also other service benefits. Respondent 1 could have been considered both as handicapped persons as also Scheduled Castes and Scheduled Tribes. If all the vacancies meant for Scheduled Castes and Scheduled Tribes had not been filled up, the State may consider appointing him. If he has already been appointed, the State may consider the desirability of creating a supernumerary post and continue his service therein.

16. The appeals are allowed with costs.:

8. It is rather unfortunate that the same writ petitioner has to come to us, complaining of non-compliance of the requirements of the Disabilities Act in respect of each and every Educational Institution in the State. We, surely, feel that once the Supreme Court and this Court have expressed their opinion on how the Act should be complied, the State has to apply the same to all Departments, Universities and other institutions under its control. It is no longer open to the 2nd respondent to have an option with regard to the rights of the persons with disabilities. The Act uses the word "shall". It is not an option or discretion but it is a mandate.

9. In these circumstances, this Writ Petition is disposed of as follows:

a) One post has been kept vacant, pursuant to the interim order of this Court. This shall be filled up out of the applicants who are orthopaedically challenged, since the turn of the orthopaedically challenged comes first. In case there is no such applicant, the post that has been kept vacant may be filled up by either visually challenged or hearing challenged in accordance with the Rules.

b) The second respondent University shall comply with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rules while calling for applications in future.

c) According to the learned counsel for the petitioner, six posts ought to have been reserved for the disabled persons and since now by our order, only one post will be filled up, while considering the vacancies that arise in future, first this backlog vacancies for the disabled category should be filled up as per the Act and as per the judgment of the Supreme Court that we have extracted above.

d) The 1st respondent, which has framed the Rules to comply with the requirements of the Act, shall give suitable directions to all the Departments and Institutions coming under their control to comply with the requirements of the Act strictly and fully so that similar Writ Petitions do not have to be filed in future. No costs. The connected Miscellaneous Petition is closed.