D. Usharani Vs. the Chairman, Tamil Nadu Electricity Board and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/954029
CourtChennai High Court
Decided OnNov-26-2012
Case NumberW.P. No.17747 of 2012 and M.P.Nos.1 to 3 of 2012
JudgeK. CHANDRU
AppellantD. Usharani
RespondentThe Chairman, Tamil Nadu Electricity Board and Another
Advocates:For the Petitioner: L. Chandrakumar, Advocate. For the Respondents: R. Varalakshmi, Advocate.
Excerpt:
disabilities (equal opportunities, production of rights and full participation) act, 1955 - section 32 and section 33; constitution of india - article 226 -(petition filed under article 226 of the constitution of india seeking for issue of writ of certiorarified mandamus to call for the entire records on the file of the 2nd respondent pursuant to the selection list of four hundred and ten assistant engineer by direct recruitment-2012 published on 6.7.2012 in internet and quash the same in so far as it omits to reserve 3% for the differently abled category is concerned and consequently direct the respondents to consider the petitioner for the post of assistant engineer under 3% reservation for differently abled persons as per the persons with disabilities (equal opportunities, production of rights and full participation) act, 1955 section 32 and 33.) in this writ petition, the petitioner seeks for a direction to set aside the selection list of 410 assistant engineers by direct recruitment, right from the year 2012, published on 6.10.2012, in the internet and questions the said list in so far as it omits to reserve 3% for the differently abled category is concerned and consequently seeks direction to the respondents to consider the petitioner for the post of assistant engineer under 3% reservation for differently abled persons as per the provisions of the persons with disabilities (equal opportunities, production of rights and full participation) act, 1955 (for short 'central act 1/96) 2. when the writ petition came up for admission on 11.7.2012, this court directed ms.r.varalakshmi, the learned standing counsel for respondents to take notice and the respondents, by way of interim direction are directed to keep one post of assistant engineer (electrical) vacant. the said order came to be extended from time to time. 3. on notice from this court, the respondents have filed a counter affidavit dated 20.11.2012. so far as non selection of the petitioner is concerned it is stated that for the post of assistant engineer/electrical in respect of mbc(woman) eee branch, the cut off mark is 67.55, whereas, the petitioner has secured 59.39% and she has not reached the zone of selection. 4. in respect of the main contention, the respondents have stated that in terms of regulation 89(e) of the tamil nadu electricity board service regulations, as amended by (per.) b.p.(fb) no.259 the rule of reservation of 3% vacancies for physically handicapped candidates is not applicable for the post of assistant engineer, as the said post comes under the class ii category. 5. however, mr.chandrakumar, the learned counsel for the petitioner submitted that the b.p. came to be issued before the advent of act 1 of 1996, therefore the respondents cannot rely upon the said b.p. and the matter will have to be reviewed in the light of the new enactment. further it is brought to the notice of this court that an identical challenge came before this court, in respect of selection for the post of assistant engineer(electrical) held for the year 2005-2006 dated 10.2.2006, in w.p.no.4440 of 2006-v.prabakaran v. 1. the selection committee and others, wherein this court held in paragraph nos.11 to 14 has held as follows: "11. the provisions of the disabilities act are self effective. provisions of the act does not need any administrative order or instruction. in (2005) 1 pdd (cc) 241, r.manoj kumar v. the university of hyderabad, rep by its registrar, hyderabad, andhra pradesh high court has held that: "section 33 of the act mandates that not less than 3% of vacancies shall be reserved in every establishment for persons with disability. this mandate does not require for its effectuation any administrative instructions or orders of the academic or executive council. it is a self-effectuating legislative mandate. the decision of the academic or executive council of the university is required only for pragmatic facilitation of this mandate. the mandate of the legislature cannot be subverted by the leisurely approach of the respondent-university to order its affairs to in consonance with the mandate of legislation. while so it may not be appropriate to refer to the earlier g.o.ms.no.2093(social welfare department), dated 30.10.1987 and consequential proceeding permanent b.p.(ch.) no.6 dated 6.1.1993. 12. in fact to effectuate the provisions of disabilities act government of tamil nadu have identified 117 posts which are the most suitable posts for the disabled in the a and b groups of post. referring to g.o.ms.no.2093, director of rehabilitation of the disabled requested the government to issue notification by ordfering the reservation of a and b posts for the benefit of disabled persons. the director recommended for the constitution of expert committee to identify the post which are suitable for disabled persons under a and b groups. the government have identified 117 types of posts for the disabled in the a and b groups of the posts g.o.ms.no.53 dated 11.1.(2005) social welfare and nutritious meal programme (sw.4) department passed approving the list of 117 posts identified under a and b categories for reservation of 3% vacancies to the disabled persons in direct recruitment. the relevant clauses of the said g.o.reads as under: "...... 6. based on the announcement made by the hon'ble chief minister the government approve the list of 117 posts identified under group a and b categories under the purview of teachers recruitment board and the tnpsc for the persons with disabilities. the government also direct that 3% of the vacancies in direct recruitment for the identified posts of a and b groups, where the rule of reservation is applicable for the scs/sts, b.cs and other communities, shall be reserved for the disabled persons. if only one post is available for recruitment in these categories, the usual procedure for recruitment will be followed. in so far as executive posts are concerned the individual shall produce a certificate of physical fitness from the medical board to the effect that their handicap will not affect the performance of the job to which he/she has been selected before appointment. 7. the list of the 117 categories of posts identified as most suitable for the different categories of the disabled persons in a and b groups in direct recruitment is given in the annexure to this order." 13.it is relevant to note though various categories of a and b groups are identified. assistant engineers/electrical of tneb have not been identified and approved to provide reservation of 3% of vacancies. as per permanent b.p.(ch) no.6 reservation of vacancies provided for physically handicapped persons need not be made in respect of recruitment of post in class i and ii services. in g.o.ms.no.53 whereby the government have identified 227 posts under a and b groups, tneb has not been included. while so, it cannot be contended that the selection process is vitiated due to violation of provisions of disabilities act or the government orders. 14. it is pertinent to note that the petitioner has not challenged the selection process even before its commencement on the ground that no reservation was made for the persons with disability. having been unsuccessful in the selection process, it is not open to the petitioner to challenge the selection. it is not as if, tneb has not selected the physically handicapped candidates. in para 17 of the counter it is averred in the selection of the posts of assistant engineers, 14 physically handicapped candidates were selected on merits (oc-1; bc-7, mbc/dc-3; sc/st-3) and they have been referred to director of medical and rural health services for constitution of medical board to assess their suitability or otherwise to the post of assistant engineer. though not stated in explicit terms in the selection list, there had been fair justice to the disabled persons by appointing as many as 14 candidates." 6. therefore the contention that the provisions of act were not taken note of may not be correct. whereas, r.varalakshmi, the learned counsel for the respondents also brought to the notice of this court the division bench judgment of this court in w.p.no.14500/2011-k.vijayan v. government of tamil nadu and others. the said writ petition was dismissed on 10.4.2012. the writ petition was filed in public interest seeking for a direction to the tangbdco to fill up the vacant posts reserved for persons with disability, so as to meet the minimum reservation of 3% provided in favour of them under section 33 of the persons with disabilities act (central act 1/96) by conducting s special recruitment drive. 7. the division bench, after notice to the tangbdco in paragraph nos.2 and 4 has held as follows: "2.by order dated 16th august, 2011, we had directed the respondents 3 & 4 to file a counter affidavit. a counter affidavit has been filed today by respondents 3 & 4 stating that for all posts, except class i and ii, differently abled persons are being given 3% reservation in compliance of the mandatory requirements of the act. 3.the respondents have stated that based on b.p.(ch.) no.6, dated 6.1.1993, the 3% reservation for differently abled persons is being followed to fill up the vacancies in the initial level posts (class iii & iv services) in tangbdco through direct recruitment. the respondents have stated that while filling up the vacancies in class iii & iv services through direct recruitment, the 3% reservation for differently abled persons is followed and apart from that, may differently abled persons got selected based on merit of marks and communal roster and appointed in the initial level posts in tangbdco in recent years. the respondents have further stated that the entire selection process in class iii & iv categories is being made following section 33 of the disabilities act, which states that it is mandatory to reserve 3% for physically handicapped persons. further, by following 3% reservation system, physically handicapped persons are selected and appointed in class iii and iv categories through direct recruitment by tangbdco. 4. considering the counter affidavit, we are of the view that no further direction is needed to be issued in this petition. we hope and trust that the respondents shall comply with the mandatory provisions of the act as assured in the counter affidavit." 8. thus, it can be seen from the above passage that the court did not deal with class-i and ii posts, and gave direction to the tangbdco only in respect of class iii and iv posts. 9. even otherwise under section 32 of the persons with disabilities (equal opportunities, protection of rights and full participation) act, 1995, the appropriate government has to identify posts, in the establishment, which can be reserved for persons with disability and by periodical interview, the list will have to be reviewed by updating the list and after taking note of the consideration the developments and technology. 10. in the present case the petitioner himself relies upon 3% g.o which was not issued in terms of act 1/96. on the other hand, as already found by this court in the judgment in v.prabhakaran's (w.p.no.4440 of 2006) case, referred to supra, the state government, while identifying the number of posts, had excluded the ‘a’ and ‘b’ categories of posts and subsequently, the matter was reviewed and out of the unreserved posts identified in group ‘a’ and ‘b’ categories, the posts of assistant engineer/electrical was not identified and approved. in the light of the same, the contention raised by the petitioner cannot be countenanced. 11. in the result, the writ petition is dismissed. however, there is no order as to costs. consequently, connected miscellaneous petitions are dismissed.
Judgment:

(Petition filed under Article 226 of the Constitution of India seeking for issue of writ of certiorarified mandamus to call for the entire records on the file of the 2nd respondent pursuant to the selection list of Four hundred and ten Assistant Engineer by direct recruitment-2012 published on 6.7.2012 in internet and quash the same in so far as it omits to reserve 3% for the Differently Abled Category is concerned and consequently direct the respondents to consider the petitioner for the post of Assistant Engineer under 3% reservation for Differently Abled persons as per the Persons with Disabilities (Equal opportunities, Production of Rights and Full participation) Act, 1955 Section 32 and 33.)

In this writ petition, the petitioner seeks for a direction to set aside the selection list of 410 Assistant Engineers by direct recruitment, right from the year 2012, published on 6.10.2012, in the internet and questions the said list in so far as it omits to reserve 3% for the Differently Abled Category is concerned and consequently seeks direction to the respondents to consider the petitioner for the post of Assistant Engineer under 3% reservation for Differently Abled persons as per the provisions of the Persons with Disabilities (Equal opportunities, Production of Rights and Full participation) Act, 1955 (for short 'Central Act 1/96)

2. When the writ petition came up for admission on 11.7.2012, this Court directed Ms.R.Varalakshmi, the learned Standing counsel for respondents to take notice and the respondents, by way of interim direction are directed to keep one post of Assistant Engineer (Electrical) vacant. The said order came to be extended from time to time.

3. On notice from this Court, the respondents have filed a counter affidavit dated 20.11.2012. So far as non selection of the petitioner is concerned it is stated that for the post of Assistant Engineer/Electrical in respect of MBC(woman) EEE Branch, the cut off mark is 67.55, whereas, the petitioner has secured 59.39% and she has not reached the zone of selection.

4. In respect of the main contention, the respondents have stated that in terms of Regulation 89(e) of the Tamil Nadu Electricity Board Service Regulations, as amended by (Per.) B.P.(FB) No.259 the Rule of Reservation of 3% vacancies for physically Handicapped candidates is not applicable for the post of Assistant Engineer, as the said post comes under the Class II category.

5. However, Mr.Chandrakumar, the learned counsel for the petitioner submitted that the B.P. came to be issued before the advent of Act 1 of 1996, therefore the respondents cannot rely upon the said B.P. and the matter will have to be reviewed in the light of the new enactment. Further it is brought to the notice of this Court that an identical challenge came before this Court, in respect of selection for the post of Assistant Engineer(Electrical) held for the year 2005-2006 dated 10.2.2006, in W.P.No.4440 of 2006-V.Prabakaran v. 1. The Selection Committee and others, wherein this Court held in paragraph Nos.11 to 14 has held as follows:

"11. The provisions of the Disabilities Act are self effective. Provisions of the Act does not need any administrative order or instruction. In (2005) 1 PDD (CC) 241, R.Manoj Kumar v. The University of Hyderabad, rep by its Registrar, Hyderabad, Andhra Pradesh High Court has held that:

"Section 33 of the act mandates that not less than 3% of vacancies shall be reserved in every establishment for persons with disability. This mandate does not require for its effectuation any administrative instructions or orders of the academic or executive council. It is a self-effectuating legislative mandate. The decision of the academic or executive council of the University is required only for pragmatic facilitation of this mandate. The mandate of the legislature cannot be subverted by the leisurely approach of the respondent-university to order its affairs to in consonance with the mandate of legislation.

While so it may not be appropriate to refer to the earlier G.O.Ms.No.2093(Social Welfare Department), dated 30.10.1987 and consequential proceeding permanent B.P.(Ch.) No.6 dated 6.1.1993.

12. In fact to effectuate the provisions of Disabilities Act Government of Tamil Nadu have identified 117 posts which are the most suitable posts for the disabled in the A and B groups of post. Referring to G.O.Ms.No.2093, Director of Rehabilitation of the Disabled requested the Government to issue notification by ordfering the reservation of A and B posts for the benefit of disabled persons. The Director recommended for the constitution of expert committee to identify the post which are suitable for disabled persons under A and B groups. The Government have identified 117 types of posts for the disabled in the A and B groups of the posts G.O.Ms.No.53 dated 11.1.(2005) Social Welfare and Nutritious Meal Programme (SW.4) Department passed approving the list of 117 posts identified under A and B categories for reservation of 3% vacancies to the disabled persons in direct recruitment. The relevant clauses of the said G.O.reads as under:

"......

6. Based on the announcement made by the Hon'ble Chief Minister the Government approve the list of 117 posts identified under Group A and B categories under the purview of Teachers Recruitment Board and the TNPSC for the persons with disabilities. The Government also direct that 3% of the vacancies in direct recruitment for the identified posts of A and B groups, where the rule of reservation is applicable for the Scs/STs, B.Cs and other communities, shall be reserved for the disabled persons. If only one post is available for recruitment in these categories, the usual procedure for recruitment will be followed. In so far as Executive posts are concerned the individual shall produce a certificate of physical fitness from the Medical Board to the effect that their handicap will not affect the performance of the job to which he/she has been selected before appointment.

7. The list of the 117 categories of posts identified as most suitable for the different categories of the disabled persons in A and B groups in Direct Recruitment is given in the Annexure to this order."

13.It is relevant to note though various categories of A and B groups are identified. Assistant Engineers/Electrical of TNEB have not been identified and approved to provide reservation of 3% of vacancies. As per Permanent B.P.(Ch) No.6 reservation of vacancies provided for physically handicapped persons need not be made in respect of recruitment of post in Class I and II Services. In G.O.Ms.No.53 whereby the Government have identified 227 posts under A and B groups, TNEB has not been included. While so, it cannot be contended that the selection process is vitiated due to violation of provisions of Disabilities Act or the Government orders.

14. It is pertinent to note that the petitioner has not challenged the selection process even before its commencement on the ground that no reservation was made for the persons with disability. Having been unsuccessful in the selection process, it is not open to the petitioner to challenge the selection. It is not as if, TNEB has not selected the physically handicapped candidates. In para 17 of the counter it is averred in the selection of the posts of Assistant Engineers, 14 physically handicapped candidates were selected on merits (Oc-1; BC-7, MBC/DC-3; SC/ST-3) and they have been referred to Director of Medical and Rural Health Services for constitution of Medical Board to assess their suitability or otherwise to the post of Assistant Engineer. Though not stated in explicit terms in the selection list, there had been fair justice to the disabled persons by appointing as many as 14 candidates."

6. Therefore the contention that the provisions of Act were not taken note of may not be correct. Whereas, R.Varalakshmi, the learned counsel for the respondents also brought to the notice of this Court the Division Bench judgment of this Court in W.P.No.14500/2011-K.Vijayan v. Government of Tamil Nadu and others. The said writ petition was dismissed on 10.4.2012. The writ petition was filed in public interest seeking for a direction to the TANGBDCO to fill up the vacant posts reserved for persons with disability, so as to meet the minimum reservation of 3% provided in favour of them under Section 33 of the persons with Disabilities Act (Central Act 1/96) by conducting s special recruitment drive.

7. The Division Bench, after notice to the TANGBDCO in paragraph Nos.2 and 4 has held as follows:

"2.By order dated 16th August, 2011, we had directed the respondents 3 & 4 to file a counter affidavit. A counter affidavit has been filed today by respondents 3 & 4 stating that for all posts, except Class I and II, differently abled persons are being given 3% reservation in compliance of the mandatory requirements of the Act.

3.The respondents have stated that based on B.P.(Ch.) No.6, dated 6.1.1993, the 3% reservation for differently abled persons is being followed to fill up the vacancies in the initial level posts (Class III & IV services) in TANGBDCO through direct recruitment. The respondents have stated that while filling up the vacancies in Class III & IV Services through direct recruitment, the 3% reservation for differently abled persons is followed and apart from that, may differently abled persons got selected based on merit of marks and communal roster and appointed in the initial level posts in TANGBDCO in recent years. The respondents have further stated that the entire selection process in Class III & IV categories is being made following Section 33 of the Disabilities Act, which states that it is mandatory to reserve 3% for physically handicapped persons. Further, by following 3% reservation system, physically handicapped persons are selected and appointed in Class III and IV categories through direct recruitment by TANGBDCO.

4. Considering the counter affidavit, we are of the view that no further direction is needed to be issued in this petition. We hope and trust that the respondents shall comply with the mandatory provisions of the act as assured in the counter affidavit."

8. Thus, it can be seen from the above passage that the Court did not deal with Class-I and II posts, and gave direction to the TANGBDCO only in respect of Class III and IV posts.

9. Even otherwise under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the appropriate Government has to identify posts, in the establishment, which can be reserved for persons with disability and by periodical interview, the list will have to be reviewed by updating the list and after taking note of the consideration the developments and technology.

10. In the present case the petitioner himself relies upon 3% G.O which was not issued in terms of Act 1/96. On the other hand, as already found by this Court in the judgment in V.Prabhakaran's (W.P.No.4440 of 2006) case, referred to supra, the State Government, while identifying the number of posts, had excluded the ‘A’ and ‘B’ categories of posts and subsequently, the matter was reviewed and out of the unreserved posts identified in Group ‘A’ and ‘B’ categories, the posts of Assistant Engineer/Electrical was not identified and approved. In the light of the same, the contention raised by the petitioner cannot be countenanced.

11. In the result, the writ petition is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petitions are dismissed.