Madras High Court
The Writ Petitions Pertain To Approval ... vs Union Public Service Commission And ... on 27 April, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2012 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.Nos.15776, 15777 and 15550 of 2004 ORDER
The writ petitions pertain to approval of appointment of the petitioners appointed as Secondary Grade Teachers (for Deaf) in C.S.I. High School for the Deaf, Kottaram, Kanyakumari District, the 4th respondent in all the writ petitions, whose student strength, as on today between VI to X, is reported to be 130. It is well known that upto Standard VIII, a Secondary Grade Teacher with diploma qualification is the competent authority to take classes and for Standards IX and X, B.Ed degree holders are required.
2. The petitioners are degree holders, having qualified Associate Degree in Science in Special Education from Bharathidhasan University, recognised by the Rehabilitation Council of India, a statutory body constituted under Rehabilitation Council of India Act, 1992.
3. As per Chapter-III, Section 19(9) of the Rehabilitation Council of India Act, 1992, the Rehabilitation Council is the competent authority to issue directions, regulations as regards the the courses and period of study or of training to be undertaken, the subject of examination and standards of proficiency therein to be obtained in any university or any institution for grant of recognized rehabilitation qualification. Needless to say that like other statutory bodies constituted under All India Council for Technical Education Act, Medical Council of India Act, Dental Council of India Act, and such other enactments, the Rehabilitation Council under the Rehabilitation Council of India Act, 1992, is also competent to issue directions and regulations in the matter of education, covered under the Act and any such directions, regulations issued are mandatory in nature, and should be given effect to by the appropriate Governments. Though the petitioners have sought for directions to approve their appointments in the post of Secondary Grade Teacher (for Deaf) in C.S.I. High School for the Deaf, Kottaram, Kanyakumari District, 4th respondent in all the writ petitions, during the course of hearing, it was brought to the notice of this Court that Rehabilitation Council of India, in its letter dated 09.10.2001 addressed to the Secretary to the Government, Department of School Education and Secretary to the Government, Department of Social Welfare, have directed that the petitioners be considered to the post of Special Educators/Primary level resource persons in CSI High School, 4th respondent herein. In order to ascertain as to whether the abovesaid departments have created any such posts in Government and aided institutions, learned Government Counsel was directed to ascertain from the departments of Social Welfare and School Education, and in particular, from the State Commissioner for the differently abled, who is also the competent authority under the Rehabilitation Council of India Act, 1992, as to whether the Government have created any such posts. There are posts like, Resource Persons, appointed with B.Ed Degree qualification in School Education Department, who train the Secondary Grade Teachers. The assistance of the officers was also sought for. Two Assistant Directors and one Joint Director from the department were present in the Court. Though one of the Assistant Directors submitted that the Government have created the post of Special Educators/Primary level resource persons in schools, materials produced donot substantiate his submission in the Court. Learned Government Counsel also could not substantiate the said submission by producing any material document. The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, has been enacted with laudable and specific objects, namely,
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment, and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-av-vis non disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.
4. As per G.O.Ms.No.602, Social Welfare Department, dated 14.08.1981, 3% vacancies/seats shall be reserved in all public services/educational institutions under all kinds of management (like, Government, Local bodies and aided management) including Universities, where the rule of reservation is applicable for the SC/ST and backward classes.
5. It is well known that the Special Act came to be enacted pursuant to the bill which was introduced, which provided for education, employment, vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities etc. For effective implementation of the provisions of the Act, there is a Chief Commissioner for persons with disabilities, at the central level and Commissioner for persons with disabilities, at the state level and they are clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take all steps to safeguard the rights of the persons with disabilities. In the background of beneficial legislation and in the light of a counter affidavit filed by the Member Secretary, Rehabilitation Council of India in W.P.No.6771/2008 filed before the Delhi High Court, which is a part of record, in the present writ petitions, and since this Court is enjoined with a duty to enforce the provisions of the Act, in exercise of the powers under Article 226 of the Constitution of India, this Court in exercise its powers suo motu has impleaded the State Commissioner for the differently abled, as a party respondent in the present writ petitions and directed the authorities to produce the files to ascertain as to whether the Government and the State Commissioner, the authority constituted under the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and under the Rehabilitation Council of India Act, 1992, have taken effective steps to implement the directions of Rehabilitation Council of India, in letter and spirit, for creation of the posts of Special Educators/Primary level resource persons in the schools, recognised by the Directorate of School Education, Chennai, and also to ascertain as to whether the provisions of the beneficial legislation enacted with laudable objects are implemented and monitored by the State Commissioner, who is the competent authority under both the Acts. Records also have been verified to ascertain as to whether the provisions of the said Act have been scrupulously followed in the matter of providing 3% reservation in service and also as to whether backlog vacancies have been filled up as per Section 36 of the Act.
6. Before adverting to the above issues, this Court deems it fit to extract few provisions of the Act and the rules framed thereunder.
7. As per Section 2(a)(ii), in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government.
8. As per Section 2(a)(iv), appropriate Government in respect of the State Coordination Committee and the State Executive Committee, is the State Government.
9. As per Section 2(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controller or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) and includes Department of a Government.
10. As per Section 2(w), "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels.
11. As per Section 2(x), "Special Employment Exchange" means any office or place established and maintained by the Government for the collection and furnishing of information, either by keeping of registers or otherwise, respecting----
(i) persons who seek to engage employees from amongst the persons suffering from disabilities;
(ii) persons with disability who seek employment;
(iii) vacancies to which person with disability seeking employment may be appointed.
12. As per Section 2(y) "State Coordination Committee" means the State Coordination Committee constituted under sub-section (1) of section 13.
13. Chapter III deals with the Constitution of the State Co-ordination Committee. The Functions of the State Co-ordination Committed as per Section 18, are as follows:-
18. Functions of the State Co-ordination Committee. -
(1) Subject to the provisions of this Act, the function of the State Co-ordination Committee shall be to serve as the state focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities. (2) In particular and without prejudice to the generality of the foregoing function the State Coordination Committee may, within the State perform all or any of the following functions, namely:-
(a) review and coordinate the activities of all the Departments of Government and other Governmental and Non-Governmental Organizations which are dealing with matters relating to persons with disabilities.,
(b) develop a State policy to address issues faced by persons with disabilities;
(c) advise the State Government on the formulation of policies, Programmes, legislation and projects with respect to disability;
(d) review, in consultation with the donor agencies, their funding from the perspective of their impact on persons with disabilities;
(e) take such other steps to ensure barrier-free environment in public places, work places, public utilities, schools and other institutions; Provided that while nominating persons under this clause, the State Government shall nominate at least one woman and one person belonging to Scheduled Castes or Scheduled Tribes;
(f) monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities;
(g) to perform such other functions as may be prescribed by the State Government.
14. As per Section 19, the State Government shall constitute a committee to be known as the State Executive Committee to perform the functions assigned to it under this Act. The Functions of the State Executive Committee are enumerated in Section 20 of the Act:-
(1) The State Executive Committee shall be the executive body of the State Co-ordination Committee and shall be responsible for carrying out the decisions of the State Co-ordination Committee.
(2) Without prejudice to the provisions of sub-section (1), the State Executive Committee shall also perform such other functions as may be delegated to it by the State Co-ordination Committee.
15. As per Section 29, appropriate Governments shall set up adequate number of teachers' training institutions and assist the national institutes and other voluntary organizations to develop teachers' training programmes specializing in disabilities so that requisite trained manpower is available for special schools and integrated schools for children with disabilities.
16. Chapter VII deals with employment and Section 32 deals with Identification of Posts which can be reserved for persons with disabilities, which reads as follows:-
As per the said Section the appropriate Governments shall,
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
17. As per Section 33, Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability;
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
18. Section 36 deals with Vacancies not filled up to be carried forward which reads as follows:-
Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no parson with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.
19. As per Section 38, (1) The appropriate Governments and local authorities shall by notification formulate schemes for ensuring employment of persons with disabilities, and such schemes may provide for-
(a)the training and welfare of persons with disabilities;
(b) the relaxation of upper age limit;
(c) regulating the employment;
(d) health and safety measures and creation of a non-handicapping environment in places where persons with disabilities are employed;
(e) the manner in which and the persons by whom the cost of operating the schemes is to be defrayed; and
(f) constituting the authority responsible for the administration of the scheme.
20. As per Section 61, the Commissioner within the State shall-
(a) co-ordinate with the departments of the State Government for the programmes and schemes, for the benefit of persons with disabilities;
(b) monitor the utilization of funds disbursed by the State Government;
(c) take steps to safeguard the rights and facilities made available to persons with disabilities;
(d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner.
21. As per Section 65, (1) the Commissioner shall prepare in such form and at such time for each financial year as may be prescribed by the State Government an annual report giving a full account of his activities during the previous financial year and forward a copy thereof to the State Government.
(2) The State Government shall cause the annual report to be laid before each State Legislature along with the recommendations explaining the action taken or proposed to be taken on the recommendation made therein insofar as they relate to the State Government and the reasons for non-acceptance, if any, of any such recommendation or part.
22. Rules have been framed in exercise of the powers conferred under sub Sections 1 and 2 of Section 73 of the Act and as per rule 36, for the purpose of computation of vacancies for persons with disabilities in Group A, B, C and D posts, the manner of computation of vacancies shall be such as may be determined by the Government by instructions or orders in this regard.
23. Rule 37 mandates that (1) the following vacancies shall be notified to the Special Employment Exchange, namely,
(a) Vacancies in posts of a technical and scientific nature carrying a basic Pay of Rs. 1400/- or more per month occurring in establishments in respect of which the Central Government is the appropriate Government under the Act, and
(b) Vacancies which an employer may desire to be circulated to the Special Employment Exchanges outside the State or Union Territory in which the establishment is situated, shall be notified to such Special Employment Exchanges as may be specified by the Central Government by notification in the Official Gazette, in this behalf. A copy of the notification of vacancies shall be sent to the concerned Vocational Rehabilitation Center for Handicapped.
(2) Vacancies other than those specified in sub-rule (1) shall be notified to the local Special Employment Exchange concerned. A copy of the notification of vacancies shall also be sent to the concerned Vocational Rehabilitation Centre for Handicapped.
24. Rule 38 deals with Form and manner of notification of vacancies, which is extracted hereunder:-
38. Form and manner of notification of vacancies: The vacancies shall be notified in writing to the concerned special employment exchange, and the following particulars shall be furnished in respect of each type of vacancy, namely:
1. Name and address of the employer;
2. Telephone number of the employer, if any;
3. Nature of vacancy-
1. Type of workers required (Designation)
2. (i) Description of duties;
(ii) Physical requirements (i.e. job involves visual accuracy, frequent movement/walking, continuous long hours sitting etc.)
3. Qualifications required -
(i) Essential,
(ii) Desirable
4. Age limits, if any;
5. Whether women are eligible?
4. Number of vacancies - Reserved for physically handicapped persons Orthopedically Visually Hearing Handicapped
1. Regular
2. Temporary
5. Pay and allowances
6. Place of work (Name of town/village and district in which it is situated.)
7. Probable date by which the vacancy will be filled.
8. Particulars regarding interview/test of applicants:
1. Date of interview/test.
2. Time of interview/test.
3. Place of interview/test.
4. Designation and address of the person to whom applicants should report.
9. Any other relevant information:The vacancies shall be re-notified in writing to the concerned Special Employment Exchange if there is any change in the particulars already furnished to the Special Employment Exchange and Vocational Rehabilitation Centre for Handicapped under this rule.
25. As per Rule 39, time limit for the notification of vacancies is that (1). Vacancies, required to be notified to the local Special Employment Exchange, shall be notified at least thirty days before the date on which applicants will be interviewed or tested where interviews or tests are held, or the date on which vacanies are intended to be filled, if no interviews or tests are held.
(2). Vacancies, required to be notified to the Special Employment Exchange notified under sub-rule (1) of rule 37 shall be notified at least three weeks before the date on which applicants will be interviewed or tested where interviews or tests are held, or the date on which vacancies are intended to be filled, if no interviews or tests are held.
(3). An employer shall furnish to the concerned Special Employment Exchange, the results of selection within fifteen days from the date of selection.
26. As per Rule 40, (1) An employer shall furnish to the local Special Employment Exchange quarterly returns in Form DPER-I and biennial returns in Form DPER-II, as may be amended from time to time; (2) Quarterly returns shall be furnished within thirty days of the due dates, namely, 31st March, 30th June, 30th September and 31st December; and (3) Biennial return shall be furnished within thirty days of the due date as notified in the official Gazette.
27. As per Rule 41, An employer shall maintain the record of employees with disabilities in Form DPER III, as may be amended from time to time. Form DPER I (Disabled Persons Employed Return) is extracted hereunder:-
FORM DPER -I (DISABLED PERSONS EMPLOYED RETURN) (SEE RULE 40) Quarterly return to be submitted to the Local Employment Exchange for Quarter ending Name of the Employer and Address ..
Whether Head Office .........................
Branch Office .....................
Nature of Business/ Principal activity ......
1(a) EMPLOYMENT ..........................................................................................................................................................................
Total number of persons including workers proprietors/ partners/ commission agents/contingent paid and contractual workers on the pay roll of the Establishment excluding Part-time workers and Apprentices (The figures should include every person whose wages or salary is paid by the establishment).
...............................................................................................................................................
On the last working day of the previous quarter On the last working day of the quarter under report _________________________________________ ___________________________________________ Orthopaedically Visually Hearing Orthopaedically Visually Hearing Handicapped handicapped Impairment handicapped handicapped Impairment _____________________________________________________________________________________ Men with disability Women with disability
--------------------------------------------------------------------------------------------------------------------------------------------
TOTAL ..........................................................................................................................................................................................
(b)Please indicate the main reasons for any increase or decrease in employment if the increase or decrease is more than 5% during the quarter.
2. VACAINCIES:--Vacancies carrying total emoluments as per prevailing minimum wage per month and of over three months duration.
(a)Number of vacancies occurred and notified during the quarter and the number filled during the quarter (Separate figures may be given for men with disability and women with disability).
Number of vacancies with come within the purview of the Act.
..........................................................................................................................................................
Occurred Notified Filled Sources (Describe source from which filled) ...........................................................................................................................................................
Local Special Employment Exchange General Employment Exchange ...........................................................................................................................................................
1 2 3 4 5 ..........................................................................................................................................................
(b) Reasons for riot notifying all vacancies occurred during the quarter under report vide 2(a) above...............................................................................
3. MANPOWER SHORTAGES Vacancies/ posts unfilled because of shortage of suitable applicants.
.........................................................................................................................................................
Name of the occupation or designation of the post Number of unfilled vacancies/ posts Disability wise
------------------------------------------------------------------------------------------------
Essential qualification Essential experience Experience not necessary ............................................................................................................................................................................................
1 2 3 4 ............................................................................................................................................................................................
-----------------------------------------------------------------------------------------------------------------------------------------------
Please list any other occupations for which this establishment had recently any difficulty in obtaining suitable applicants.
Signature of employer To The Employment Exchange .........................................................
.........................................................
........................................................
Note This return relates to quarters ending 31th March / 30th June / 30th September and 31December and shall be rendered to the local Employment Exchange within thirty days after the end of the quarter concerned.
Form DPER II, required to be submitted by the employer to the local Special Employment Exchange once in two years is extracted hereunder:-
FORM DPER-II (See rule 40 Occupational return to be submitted to the local Special Employment Exchange once in two years.
Name and address of the Employer..
Nature of business.
(Describe what the establishment makes or does as its principal activity)
1. Total number of persons on the pay rolls of the establishment on (specify date).(This figure should include every person whose wage or salary is paid by the Establishment) (Separate figures for men with disability and women with disability may be given).
2. Occupational classification of all employees as given in item-1 above.
(Please give below the number of employees in each occupation separately).
...........................................................................................................................................................................................
Occupation Numbers of employees ...........................................................................................................................................................................................
The exact terms Men with Disability Women with Disability Total ........................................................................................................................................................................................
Such as engineer O V H O V H Please give as (Mechanical); R I E R I E far as possible Teacher(domestic Science) T S A T S A approximate ; officer on duty (actuary); H U R H U R Number of assistant director O A I O A I vacancies in (Metallurgist) ; P L N P L N each occupation Scientific Assistant A L G A L G you are likely (chemist); Research Officer E E Y to fill during (economist) instructor D Y D the next (carpenter); I I calendar year due Supervisor(tailor) fitter C C to retirement. (internal combustion A A engine); inspector Y Y (sanitary); superintendent (office); apprentice (electrician)
...........................................................................................................................................................................................
............................................................................................................................................................................................
Total ...........................................................................................................................................................................................
Dated.
Signature of Employer To The Employment Exchange .:
(Please fill in here the address of your Local special Employment Exchange).
Note :---Total of col. 8 under item 2 should correspond to the figures given against item-1 Form DPER III, required to be maintained by the employer as per Rule 41 is as follows:-
FORM DPER III (See Rule 41)
1. Name and address of the employer
2. Whether Head Office Branch Office..
3. Nature of business/principal activity
4. Total number of persons on the payroll of the establishment. (This figure should include every person whose wage or salary is paid by the establishment.)
5. Total number of disabled persons (disabilitywise) on the payroll of the establishment. (This figure should include every person with disability whose wage or salary is paid by the establishment.)
6. (a) Occupational qualification of all employees as given in item 5 above.
(Please give below the number of employees in each occupation separately.)
--------------------------------------------------------------------------------------------------------------------------
Occupation Number of Employees
--------------------------------------------------------------------------------------------------------------------------
The exact terms Men with Disability Women with Disability Total
---------------------------------------------------------------------------------------------------------------------------
Such as Engineer O V H O V H Nature and extent of (Mechanical); R I E R I E Disability Teacher(domestic/ T S A T S A Science/officer on duty H U R H U R (actuary);Assistant director O A I O A I (Metallurgist); Scientific P L N P L N Assistant (Chemist); A L G A L G Research Officer E Y E Y (Economist); instructor D D (Carpenter); Supervisor I I (tailor) fitter (internal) C C Combustion (engine); A A Inspector (Sanitary); L L Superintendent (Office); L L apprentice Electrician Y Y
------------------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Total
---------------------------------------------------------------------------------------------------------------------------
(b) Please indicate the main reasons for any increase or decrease in employment if the increase or decrease is more than 5% during the quarter
7. Vacancies - Vacancies carrying total emoluments as per prevailing minimum wage per month and of over three months duration.
(a) Number of vacancies occurred and notified during the quarter and the number filled during the quarter
---------------------------------------------------------------------------------------------------------------------------
Number of vacancies which come within the purview of the Act
---------------------------------------------------------------------------------------------------------------------------
Occurred Notified Filled Sources ---------------------------------- Local Special General (Describe the source from Employment Employment which filled.)
---------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Total
---------------------------------------------------------------------------------------------------------------------------
(b) Reasons for not notifying all vacancies occurred during the quarter under report vide
(a) above.
3. Manpower Shortages Vacancies/posts unfilled because of shortage of suitable applicants
---------------------------------------------------------------------------------------------------------------------------
Name of the occupation or designation of the posts No. of unfilled vacancies/posts
----------------------------------------------------------------------------
essential essential experience qualification experience not necessary
---------------------------------------------------------------------------------------------------------------------------
1 2 3 4
---------------------------------------------------------------------------------------------------------------------------
Please list any other occupations for which this establishment had recently any difficulty in obtaining suitable applicants.
Signature of Employer
28. The extract of the abovesaid provisions with relevant forms makes it abundantly clear that the Parliament while enacting The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, has intended that the provisions have to be scrupulously followed by the appropriate Governments and the Local Bodies to bring the persons with disabilities on par with others, to remove any discrimination against persons with disabilities, sharing the of development benefits vis-a-vis the non disabled persons, to make special provision of the integration of the persons with disabilities, into the social mainstream and to eliminate all forms of discrimination against the disabled and to prevent the disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities.
29. As stated supra, though the issue involved in these cases pertains to appointment of the petitioners, in the post of Secondary Grade Teacher (for Deaf) in C.S.I. High School for the Deaf, Kottaram, Kanyakumari District, 4th respondent in all the writ petitions, as it is a consistent view of the Courts in India, that the provisions of the beneficial legislation intended to ameliorate the difficulties faced by the persons with disabilities have not been enforced properly, to bring the disabled into the social mainstream and having regard to the bounden duty of the superior Courts to enforce the statutory provisions, the files were called for and perused. In this context, it is also worthwhile to consider a decision of the Supreme Court, dealing with the issues pertaining to the persons with disabilities.
30. In National Federation of Blind vs. Union Public Service Commission and others, reported in AIR 1993 SC 1916, the federation sought for a direction to Union Public Service Commission of India to permit blind candidates to compete for the Indian Administrative Service and Allied Services and further, to provide them the facility of writing the civil services examination either in Braille script or with the help of a Scribe. Perusal of the judgment shows that the Central Government had formed a committee in the year 1986 itself to identify the posts in A and B categories of the Central Civil Services and accordingly, 115 posts were identified in various departments.
31. Though the State Government is enjoined with a similar statutory duty to identify the posts as per Section 32 read with Rule 36 of the Act, and also, at periodical intervals of not exceeding three years, review the list of posts identified and update the list, taking into consideration the development in technology, unfortunately, for the purpose of computation of vacancies of persons with disabilities in Group A and B, the State Government have delayed the identification of the posts in A and B categories in State Civil Services, for nearly 10 years from 1995. Though the Government have issued orders in G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 11.04.2005, and identified posts in Group A and B of the services under the State Government and also issued orders that appropriate amendments would be issued to the Tamil Nadu State and Subordinate Service Rules called as General rules, the State Government have taken, nearly four years to issue the amendment to the General rules 22, which prescribes the rule of reservation to be followed in the service rules. The reason for such a long delay in issuing a consequential amendment to the service rules has to be explained by the Government.
32. Though the provisions mandate a specific time limit for submission of quarterly returns, as per Sections 40 and 41, no materials have been placed before this Court to prove that either the appropriate Government or the State Commissioner for disabled, the Co-ordination Committee or the Executive Committee, as the case may be, has taken any steps directing the Boards, Corporations, Companies owned and controlled by the State Government, Educational Institutions and Universities to bring in necessary amendments in their service rules, to provide reservation in A and B categories or equivalent posts, in the establishment, such as, Corporation, Boards, or any authority or a body owned or controlled or aided by the Government or local authority or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956). The Act came into existence on 07.02.1996 and needless to say that all the provisions have to be given effect from the said date. Though the appropriate Government have issued G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 11.04.2005, and identified posts in Group A and B, under the services of the Government, the State Government have arbitrarily fixed the date of identification of A and B posts in the services under the State, as the date for filling up the identified posts in Group A and B, probably, to cover up the delay in identification of the posts. Accordingly, the Government have orderd to fill up the backlog vacancies in A to D categories, under the services of the state from the year 2005 only. When the provisions of the Act have to be given effect from the date of coming into force of the Act, i.e., 07.02.1996, it is not known as to how appropriate Government can fix the implementation of the statutory provision, ie., Sections 33 of the Act and Rule 36 of the Rules, from 2005 only. At this juncture, Section 36 of the Act, is reproduced hereunder.
Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no parson with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.
33. As per Section 32, it is the duty of the appropriate Government to identify the posts in the establishments which can be reserved for the persons with disabilities and that the same ought to have been reviewed periodically and updated at periodical intervals, not exceeding three years taking into consideration the development in technology. Apparently, such exercise has not been done by the appropriate Government. Materials do not disclose that after 2005, no new post has been identified in A and B categories and that there is a failure on the part of the State Commissioner, executive committee, and other competent authorities under the Act, who are enjoined with a duty to monitor and to take all measures for the implementation of the object of the Act.
34. Pursuant to the representation of the Tamil Nadu Handicapped Welfare Association, dated 19.08.2008, Letter No.11977/Sa.Na.(4)/2008, Social Welfare and Nutritious Meal Programme Department, dated 20.08.2008, has been issued by the Principal Secretary, Social Welfare Department, addressed to the State Commissioner for disabled, to form a High Level Committee to monitor 3% reservation. The Members of the High Level Committee are,
1. Hon'ble Minister for Social Welfare - Chairperson
2. Principal Secretary to Government - Member-Secretary SW & NMP Department
3. Principal Secretary to Government - Member Finance Department
4. Principal Secretary to Government - Member P & AR Department
5. Principal Secretary/ - Convener State Commissioner for Disabled
6. Chairman - Member Teachers Recruitment Board
7. Member-Secretary - Member Tamil Nadu Public Service Commission
8. Commissioner of Employment and - Member Training A decision has been taken by the Committee to review the consolidated report submitted by the State Commissioner for the Disabled, pertaining to the job opportunities provided by various Heads of the Government Departments/Undertakings, under 3% reservation, as per the G.O., for the disabled persons and also to monitor the effective implementation of 3% reservation system.
35. Files disclose that even as early as on 22.08.2008, the State Commissioner for disabled has addressed (1) The Chairman, Teachers Recruitment Board, Chennai, (2) The Commissioner of Employment and Training, Chennai, and (3) The Secretary, Tamil Nadu Public Service Commission, Chennai and convened a meeting, for furnishing details, in a specific format.
DETAILS OF DISABLED PERSONS APPOINTED DURING 2007 (1st JANUARY TO 31st DECEMBER 2007) S.No Category of post No. of posts Blind No. Blind %.
Deaf No. Deaf % Ortho No. Ortho % Total No. Total % Remarks (if short-fall please state reason) 1 2 3 4 5 6 7 8 9 10 11 12 Total
36. In the meeting of the High Level Committee, held on 24.11.2008 at 3.00 P.M., it has been resolved that out of total number of vacancies notified irrespective of identified and non-identified posts, 3% of the total vacancies should be earmarked for the disabled persons, at the rate of 1% for three categories of disabled persons. Annual reports have to be submitted by all the Heads of Departments and Heads of Government, on 3% reservation for disabled persons to the Principal Secretary/Commissioner for disabled every year on or before 28th February for the preceding calender year. Posts identified under A, B, C & D category should be expanded further by identifying more number of posts. Strict enforcement has also been directed. In 'B' Category, out of 56 posts, representing 3% reservation in a total number of 1893 posts, only 34 posts have been filled up. In 'C' Category, out of 75 posts, representing 3% reservation in the total 2500 posts, only 48 posts have been filed up.
37. By G.O.Ms.No.99, Personal and Administrative Department, dated 26.02.1988, 213 posts have been notified in 'C' & 'D' categories and by G.O.Ms.No.53, Social Welfare Noon-Meal Programme Department, dated Nil.04.2005, 117 posts have been notified in 'A' & 'B' categories. In 2008, pursuant to the request from 102 Government Departments and 78 Government Undertakings, only 17 Government Departments and 27 Government Undertakings have furnished the details, which are as follows:
17 Government Departments : Out of 17830 posts, 239 physically disabled persons are working, which represents 1/3%.
27 Government Undertakings : Out of 29760 posts, 220 physically disabled persons are working, which represents 0.7%.
In the said meeting, following the recommendations have been made to the Government as follows:
(1) Government Order to be issued to follow the reservation for the Physically Handicapped, fixing the Blocks.
(2) The State Commissioner for the Disabled should present the reports of the Government Departments and undertakings in the next meeting in order to take decision regarding special recruitment drive.
(3) The State Commissioner for disabled should take active steps to identify more number of posts for disabled persons under A, B, C and D category.
38. Pursuant to the abovesaid meeting, The Hon'ble Minister for Social Welfare has instructed that the details of the jobs provided to the disabled persons from the year 2006 till 2009, should be collected from all Heads of Department Undertakings and that a consolidated report should be submitted to the Minister for Social Welfare to review the status of implementation of 3% reservation. Accordingly, all the Heads of Government Departments/Undertakings, have been addressed on 24.02.2009.
39. In the meeting held on 05.01.2010 at 11.00 A.M., a status report has been furnished and as per the details collected from 103 Government Departments and Government Establishments, between 13.05.2006 and 31.07.2008, about 2,91,892 regular appointments have been made, out of which, 1,07,470 posts have been filed up by direct recruitment. 7226 posts have been made on compassionate appointment, 17,996 posts have been made through TNPSC and 82,581 posts have been made through employment exchange. The number of posts filled up, following 3% reservation, were 245 for blind, representing 0.2%, 42 for Deaf and Dumb, representing 0.03% and 1107 for physically disabled, representing 1.03%. The number of posts remaining unfilled was 1833. 1794 posts have been filled up in 34 departments. No details have been furnished by many Departments regarding backlog vacancies. Minutes of the meeting also disclose that the Committee has found that in nearly 8 departments, viz., Adi-Dravidar and Tribal Wefare, Health and Family Welfare, Higher Education, Home, Water Supply, Public Works, Revenue and Transport, no posts have been identified for the physically disabled. The committee has also found that reservation has not been followed. Therefore, a decision has been taken to appoint Special Committees, to discuss the aspect of non-filling up of the posts, identified for the disabled in six departments. The Committee also noticed that 15980 disabled persons, who have registered themselves in the Special Employment Exchanges, have been waiting for employment. In the meeting, it has also decided to discuss the difficulties in implementing 3% reservation. Minutes of the Meeting held on 05.01.2010 is extracted hereunder:
The direct appointments made in various Government Departments is 82581 & 17996 and only 1794 disabled were appointed and the backlog is 1233.
Secretary, Tamil Nadu Public Service Commission said that there is clear cut guidelines in Government of India to achieve 3% reservation, whereas, here only some posts are identified as suitable for disabled in 'A' and 'B' group. They accepted in principle to conduct a Special Recruitment Drive for the disabled to fill up the backlog vacancies.
The Deputy Director, Employment and Training said that physically handicapped may be placed as first in priority and the district-wise roster should be modified as State Level Roster. They also informed that all the Departments should have a Roster Register and only then, this 3% reservation will be achieved.
Teachers Recruitment Board is maintaining State level Roster properly and hence, the disabled reservation is being monitored there properly.
The Hon'ble Minister for Social Welfare said that a separate roster register should be maintained in a prescribed format which should also contain total no. of vacancies, %, short fall, etc., Also, once appointment order was issued, the candidates name should be eliminated from the Live Register. All the Departments should send the list of newly recruited and joined candidates to the Employment office along with the Employment ID.
In continuation of the High Level Committee meeting, 6 Departments were reviewed for 3% reservation and identification of posts. The Departments were given exhaustive list of Government of India identified posts. They were requested to go through the list and asked to inform within a month whether similar posts available in their Department may be identified as suitable for the disabled.
Regarding 3% reservation to disabled in the appointments made from the year 2006-08, Under Secretary, Adi-Dravidar and Tribal Welfare Department, said that out of 25 Mazdoor Posts, 10 disabled persons have been selected and will be given appointment orders soon.
Under Secretary, Animal Husbandry Department informed that disabled are not suitable for Veterinary Assistant/Animal Husbandry Assistant, etc. The State Commissioner for the Disabled has requested him to check up with Government of India reservations in Animal Husbandry Department and identify similar posts in their Department.
Backward Classes, Most Backward Classes, Minority Classes Welfare Department informed that 'A', 'B', 'C' category are filled up through Tamil Nadu Public Service Commission and 'D' category by promotion and for 'D' category district level roster is followed.
Co-operation, Food and Consumer Protection Department informed that out of 755 vacancies filled no disabled were selected.
Commercial Tax Department informed that out of 480 appointments were made in 'C' and 'D', overall 3% reservation has been achieved.
With regard to Agriculture Department, Tamil Nadu Public Service Commission informed that there are 901 vacancies and suitable candidates are not available for Agricultural Officer or Assistant Officer posts.
Principal Secretary, Social Welfare and Nutritious Meal Programme Department and that 3% reservation to disabled should be followed as it is mandatory according to Persons with Disabilities Act, 1995 and relevant Government Orders. If the Departments are not able to follow 3% reservation for a specified post, they should analyse whether disabled may be considered in alternate post, they should analyse whether disabled may be considered in alternate posts. Even if that is not possible, they should have applied for exemption as per Persons with Disabilities Act, 1995.
40. Files disclose a meeting has been held on 11.08.2010 with the object of renewing the implementation of 3% reservation and to identify posts that are suitable for differently abled persons, so that, posts can be created and filled up through special recruitment exclusively for differently abled persons. The minutes of the meeting held on 11.01.2011 at 3.00 P.M., regarding filling up of the backlog vacancies are as follows:
"At the outset, Secretary to Government, Welfare of the Differently Abled Persons Department welcomed all the officials.
* Hon'ble Minister for Social Welfare pointed out that the implementation of 3% reservation to Differently Abled persons in Government appointments is progressing slowly and instructed the officials to strictly implement the reservation. Also Hon'ble Minister for Social Welfare said that the Hon'ble Chief Minister is keenly watching the implementation.
* Secretary to Government, Welfare of the Differently Abled persons Department made a Power Point presentation and explained the various provisions relating to the entitlement in employment in Government for Differently Abled persons under persons with Disabilities Act, 1995, details of Government Orders on the reservation to Differently Abled persons and the procedure to follow the roster system and computing and carry forward of the vacancies reserved for Differently Abled persons in the recruitment. He also pointed that due to not observation of the reservation prescribed; Differently Abled persons are approaching the Hon'ble Court for redressal of grievance.
* Secretary, Tamil Nadu Public Service Commission, stated that the present backlog vacancy for Differently Abled persons in Junior Assistant's Category is 142, Typist-104 and Steno-typist17, and in Group B-29 vacancies, since, there was an instruction from the Government to stop further notification for Junior Assistant posts till the completion of the absorption of candidates in consolidated pay through Special Competitive examination, Tamil Nadu Public Service Commission could not notify the special recruitment for Differently Abled Persons owing to this constraint. It has been pointed out that in view of the letter sent by Secretary to Government, Personnel & Administrative Reforms Department, wherein, clear instructions have been issued in this regard, there may not be any necessity for further clarification and that the Secretary, Tamil Nadu Public Service Commission may place this matter before the Commission for appropriate action to issue Notification for special recruitment for Differently Abled persons in the backlog vacancies.
Secretary, Tamil Nadu Public Service Commission also informed that the Group 'B' backlog vacancies will be notified in the next recruitment by mentioning the carried forward year of vacancy, as per the guidelines of the Government of India.
* Joint Director, Teacher's Recruitment Board, said that 26 B.T. and P.G. Assistant posts are arrived backlog vacancies and they will be included in the upcoming recruitment process.
* Joint Director, Employment and Training, said that in the Department of Medical Education, the backlog of 13 Pharmacist posts earmarked for Hearing impaired category is going to be filled up as Special drive.
He also, said that while sponsoring candidates from Employment exchange in the ratio of 1:5, one person in the category of Differently Abledis sponsored and the employers are required to consider the sponsored Differently Abled person for the post.
Secretary to Government, Welfare of Differently Abled Persons Department insisted that, Employment and Training Directorate should give the backlog vacancies for Differently Abled persons for the posts which are under their purview as done by Tamil Nadu Public Service Commission, Teacher's Recruitment Board, since they are the sponsoring agency for all Departments for the posts outside the purview of the recruiting agencies.
The Hon'ble Minister for Social Welfare instructed the Department of Employment and Training to ensure that the vacancies are filled up by employers and removal of the names of the employed persons from the Live Register, since often complaints are received that the names of persons already sponsored and selected against the post are sponsored by Employment Exchange and such a contingency was noticed in the recruitment of visually challenged differently abled persons by Teachers Recruitment Board.
* Deputy Register of Co-operative Societies informed that out of 161 vacancies filled up, 5 Differently Abled persons should be given employment and it is under process. He also said that in the recent recruitments in Co-operative Banks, 3% reservation was followed.
Hon'ble Minister for Social Welfare instructed the Department to give the details of appointment in respect of "vilahsh;" posts.
* Municipal Administration, Revenue, Energy, Rural Development, Library Departments informed that 3% reservation was followed. They were instructed to give details of appointments made from 13/5/2006 to 31/3/2010 head of the Department wise to support their claim that mandatory 3% reservation is followed.
* Higher Education Department informed that in the Directorate of Collegiate Education, out of 2598 posts made, 29 backlog vacancies have been identified in the Directorate of Technical Education, for the year 2009, 3 backlog vacancies have been found out and for 2010, it is not yet computed. The Department was asked to give the report within a week and instructed to go ahead with the Special recruitment to fill up the backlog vacancies.
* Tourism Department informed that there is backlog of one vacancy of Assistant Tourist Officer, Grade II and the process of recruitment for this posts has already been started.
* Department of Health and Family Welfare informed that the details were not received from Head of the Departments. This is not accepted and instructions were issued to obtain and furnish to State Commissioner for the differently Abled, the details of recruitment made between 13.05.2006 and 31.03.2010 along with details of backlog of vacancies.
* Deputy Director, Department of Public Health informed that one backlog vacancy in Group D was identified and has been already filled up.
* Highways, Registration and Statistics Departments informed that the appointments are under the purview of Tamil Nadu Public Service Commission.
* Department of Animal Husbandry informed that for the post of Animal Husbandry Assistant 3 backlog vacancies are available and under Group B Junior Veterinary Surgeon 13 vacancies which will be recruited through Tamil Nadu Public Service Commission. It was instructed to fill up the backlog vacancies of Animal Husbandry Assistant post that fall outside the purview of Tamil Nadu Public Service Commission.
* Transport Department informed that many number of (about 40,000) appointments are made in the Transport Department. Atleast for Conductor post 3% reservation should have been followed.
Secretary to Government, Personnel and Administrative Reforms Department informed that since all 'C' and 'D' posts are identified as suitable for Differently Abled persons since no exemption has been given so far, the Transport Department need to give a detailed report mentioning their plan of action to implement 3% reservation to Differently Abled persons by adjusting I other non-technical posts.
Hon'ble Minister for Social Welfare conducted the meeting with the following clear cut directions:-
*All Departments should meticulously follow the Government Orders strictly and implement the mandated 3% reservation for differently abled persons. * All Departments should compute backlog vacancies for posts falling outside the purview of Tamil Nadu Public Service Commission/Teacher's Recruitment Board and ensure action to fill up these posts at the earliest. * All Departments should send their Action Taken Report to State Commissioner for the Differently Abled, Chennai-6 under information to Secretary to Government, Department for the Welfare of Differently Abled Persons. * The meeting was conducted with thanks to the Chair."
41. The State Commissioner who is bound to submit a report to the State Legislature, on the implementation of the Act, has miserably failed to implement the provisions of the Act, thereby forcing a public interest litigant to file a writ petition.
42. Before the Hon'ble First Bench, in W.P.No.7327 of 2010 etc., dated 17.02.2011, the Government seemed to have filed a status report and have contended that steps have been taken to adhere to the mandate of law, in the matter of appointment. Though there are more than 100 departments from whom, the State Commissioner has called for particulars in a specific format, the details pertaining to only 15 departments seemed to have been furnished to the Court and considering the rival contentions, the Hon'ble First Bench has passed the following orders:-
Thus steps appears to have been taken by the Government to identify the various posts in which the differently abled persons, are to be accommodated. It is stated that the District Collectors held job melas in Districts regularly and also secured placements in private sector and the budgetary allocation has been increased from Rs.49/- crores in 2005-06 to Rs.176/- crores in 2010-11. The report further states that the Government is continuously taking earnest steps to ensure 3% reservation in employment and to identify more number of posts as suitable for differently abled persons and that the Government is committed to the upliftment of vulnerable sections of the society especially differently abled persons.
43. When the non implementation of the provisions of this special enactment in aided educational institutions was brought to the notice of this Court, in addition to the directions ordered by the Hon'ble First Bench in W.P.No.7327 of 2010 etc., dated 17.02.2011 in W.P.No.392 of 2010, this Court, after considering the rival contentions further added as follows:-
Having regard to the fact that there is deficiency in implementation of the statutory provisions in the aided institutions as well as in the Universities, in addition to the directions issued by the Hon'ble Division Bench, this Court deems it fit to direct the Department of Education, both Higher and School Education, to take steps to identify and to clear all the backlog vacancies taking into consideration, the cadre strength, as per Section 36 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
44. Though the Hon'ble First Bench have issued directions that the backlog vacancies have to be filled up on a war footing basis, the State Commissioner has not taken any effective steps for implementation of the directions of the Hon'ble First Bench, except to collect information, regarding the backlog vacancies filled up in Government Departments, Boards, Corporations or Undertakings.
45. Though the State Commissioner has called for the particulars of backlog vacancies, many departments have submitted NIL Report, about backlog vacancies. Many departments, boards or other establishments, have not even furnished the cadre strength of the department, categorywise and the posts equivalent to A and B posts in State Civil services. Unless the appropriate Government identifies the equivalent posts in A, B, C and D categories in the establishments, such as boards, corporations, public sector undertakings owned or controlled by the State Government and such other bodies and direct them to fill up the posts, on war footing basis, as directed by the Division Bench of this Court, it cannot be said that the provisions of the statute are scrupulously followed to achieve the objects of the Act, which came into existence, as early as on 07.02.1996. Even after a lapse of 16 years, the appropriate Government has not enforced the provisions of the Act for proper integration of the persons with disabilities into the social mainstream.
46. As per G.O.Ms.No.63, Social Welfare and Nutritious Meal Department, dated 18.03.2010, Special Recruitment Drive for differently abled persons in backlog vacancies has been ordered and TNPSC has notified 268 Group C vacancies and conducted examination.
47. Material on record shows that a High Power Monitor Committee headed by the Chief Secretary, Government of Tamil Nadu, has been constituted only in the year 2010, to monitor, as to whether the provisions of the statute are being implemented, particularly, in the matter of filling up of backlog vacancies. Though periodical meetings have been held under the chairmanship of the Chief Secretary to the Government, the backlog vacancies for the differently abled persons, in various state services, establishments, have not been filled up. At this juncture, this Court deems it fit to remind the constituted authorities, the desire of the Hon'ble Chief Minister, State of Tamil Nadu, to give effect to the provisions of the statute, in letter and spirit, and also record its appreciation to the Hon'ble Chief Minister's announcement of certain schemes, towards the fulfillment of the laudable objects under the Act. But at the same time, this Court is not in a position to appreciate the delay on the part of the authorities, in giving effect to the provisions of the statute.
48. Files disclose that as on 25.11.2011, the details of the number of posts identified and filled up/not filled up in 48 departments, from out of the particulars called for, from 81 Heads of Departments are as follows:-
Class No. of posts No. of persons working 3% reservation No. of differently abled persons working Backlog vacancies A 2019 1273 60 9 51 B 22956 18848 688 350 338 C 61965 46421 1858 1118 740 D 43143 33712 1294 572 722 Total 130083 100254 3900 2049 1851 It is pertinent to point out that thirty three departments have not submitted the details.
49. Files discloses that as on 31.03.2011, there were 98,295 differently abled persons in the live register. But the number of persons appointed is infinitesimal. Though the Statute mandates that a report should be tabled in the legislature, not even a scrap of paper, has been produced before this Court that ever since the Act came into force from 07.02.1996, a report has been tabled in the Assembly. Not many enactments have this special feature of submitting a report to the legislature. The officer present in the Court, also submitted that it has not been done sofar.
50. At this juncture, this Court deems it fit that if the vacancies are meant for SC/ST or MBC or any other communal category, there would be many organizations, associations or even political parties to raise their voice, protest, agitate and so on and so forth. May be, the differently abled do not decide their position in politics. But unfortunately, for these have nots and the under privileged, except for some good hearted non-governmental organizations, there is nobody to support, when the grievance of the differently abled was echoed. Unfortunately an officer, who is responsible for carrying out the object of the Act, has described their approach, as causing disturbance in the Office. The concerned authority ought to have perceived their feelings and frustration, that inspite of a statutory right, they are not able to get a job. Many differently abled live in poverty and they are unemployed. Had the authorities performed their statutory duties promptly, in identifying the posts, monitored 3% reservation, tabled in the report in the legislature, there would not have been any need for them to approach the authorities.
51. This Court fails to understand, as to who has caused the injury. The slumber of the authorities, in identifying the posts in A and B, after 10 years from the Act came into force in 2005, amending Rule 22 in General Rules, in 2009, after 14 years, issuing directions in the year 2009, in fixing the roster point for differently abled, to implement the provisions, would have certainly caused suffering to them. Without realizing, as to how much, the differently abled would have suffered to study with their disabilities, how many years, they would have remained unemployed, despite a statutory reservation, not being implemented, in letter and spirit, the State Commissioner and the competent authorities ought to have implemented the provisions of the Act, without delay. At this juncture, this Court deems it fit to state that they do not require the sympathy of anybody. The degree of involvement of the State Commissioner and other authorities for more than two decades, does not reflect prompt action, in redressing their grievance. Let us not forget that even a abled person would earnestly believe and expect that the words spoken and written, be honoured.
52. Perusal of the files also shows that when directions have been granted by this Court in W.P.No.392 of 2010, dated 04.03.2011, directing the educational department to fill up the backlog vacancies in Government aided institutions and universities, some of the universities have grossly failed to implement the provisions of the statute. No materials have been placed before this Court to substantiate the stand of certain Universities, in their reply to the State Commissioner, for the reason that the respondents have not placed any materials to prove that the appropriate Government have issued any notification under Section 33 of the Act, exempting, any establishment or University from the provisions of the Act.
53. At this juncture, this Court deems it fit to state that as per Section 36 of the Act, if the nature of vacancies in an establishment is that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with prior approval of the appropriate government. Needless to say, there is also a Hon'ble Minister in the Central Government. As per the Central Government Notification No.16-25/99-NI-I, Ministry of Social Justice and Employment, dated 31.05.2001 and the report of the Committee, a disabled person can even be appointed as Advocate General, Additional Advocate General, Public Prosecutor, Secretary to Government and many other A and B class posts. Several posts have been identified in A to D categories. The attention of the State Commissioner is invited to the above notification and the report submitted by the Committee. The abovesaid notification has been framed by the Ministry of Social Justice and Empowerment of Government of India, in pursuance to the provisions of Section 32 of the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996), had constituted an Expert Committee on 02.07.1999, under the Chairmanship of the Additional Secretary, Ministry of Social Justice and Empowerment.
54. At this juncture, this Court also wishes to bring it to the notice of the respondents that though the Act mandates 3% reservation in the educational institutions, the differently abled persons were not provided with an opportunity to have a full participation along with non disabled persons to pursue the professional courses, until the a Bench of this Court gave a direction in 2003. For the failure on the part of the authorities in implementing the statutory provisions, for nearly eight years from 1995, many students with disabilities were deprived of their opportunity to study professional courses. Some of the particulars furnished by the various heads of the departments, boards, corporations, public sector undertakings, establishments owned and controlled and covered under Section 2(a) (ii) of the Act, shows a blanket report or Nil Report, without containing the details of the cadre strength, the identified posts in such establishments, the reasons for not giving effect to the provisions of the Act. The State Commissioner, who is enjoined with the duty to enforce the provisions, has received the reports, without calling for any explanation from the concerned, as to why the Act has not been enforced in letter and spirit and there is no feed back from many, as to why, they have not initiated any action to fill up the backlog vacancies. Though the Act has come into force from 07.02.1996, the backlog vacancies earmarked for the differently abled persons have not been filled up. The directions of the Hon'ble First Bench in W.P.No.7327 of 2010 etc., dated 17.02.2011, have not been implemented in letter and spirit.
55. Though systematically and periodically, meetings have been held, the materials gathered over a period of two years do not indicate complete particulars furnished by all the departments, Boards, Corporations, etc., regarding implementation of the Act. Some people may have a doubt as to whether a visually impaired can dream. But this Court strongly believes that when they pursue their education, with all their disabilities, they bona fide believe that the authorities would hear their voice. It should be the endeavor of the authorities to strictly implement the provisions of the Act, with full realisation to the objects, sought to be achieved and make their dreams, come true.
56. Helen Keller, a Deaf and Blind, said that, Science may have found a cure for most evils; but it has found no remedy for the worst of them all the apathy of human beings. Let the disabled feel that they should not get disability in their way of life. Being disabled should not mean being disqualified from having access to every aspect of life. (Quote from Emma Thompson). Right to live with dignity is a human right. Many of the disabled in India, live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory right and violation of Articles 21 and 41 of the Constitution of India.
57. In the light of the foregoing discussion, this Court hereby calls upon, (1) the State Commissioner and the concerned to submit a detailed report, as to the steps taken by the State Commissioner to identify the posts in the services under the state in various categories, A to D and in the equivalent posts in the boards, corporations, public sector undertakings, company establishment owned and controlled and covered under Section 2(a)(ii) of the Act, along with reasons, as to why the implementation of the provisions is being delayed.
(2) The State Commissioner is directed to furnish the number of backlog vacancies identified in all the services, classes A to D and categorywise, from 1996 onwards in the services of the State, Boards, Corporations, Companies owned and controlled by the Government.
(3) The State Commissioner and the concerned are directed to explain as to what action has been taken, when certain departments have simply submitted a NIL Report, for not notifying the backlog vacancies. Except the exempted establishments, under Section 35 of the Act, no establishment, as defined in Section 2(k) of the Act, can deny employment to the disabled, on the grounds that posts are being filled up by promotion only. The service rules or regulations, have to be amended in such a way to give effect to the Act.
(4) The steps taken by the State Commissioner or the competent authority under Rehabilitation of India Act, 1992, for giving effect to the directions of Regional Rehabilitation Council of India, in the matter of accommodating the petitioners or the need for creation of the post of Special Educators, as per the counter affidavit of the Member Secretary, Rehabilitation Council of India.
(5) The State Commissioner is directed to collect the relevant particulars from all the heads of the departments, boards, corporations, public sector undertakings, company establishment owned and controlled and covered under Section 2(a) (ii) of the Act and explain, what effective steps have been taken pursuant to the decision of the Division Bench of this Court in W.P.No.7327 of 2010 etc., dated 17.02.2011 and also submit a report, pertaining to all the departments, class and categorywise in A to D services, and or in the equivalent posts, in the establishments.
(6) The State Commissioner is also directed to explain as to whether, why certain universities and educational institutions have not given to effect to the directions of this Court and the action to achieve the objects of the Act.
(7) The State Commissioner or the Secretary to the Government, Social Welfare and Noon Meal Programme, Government of Tamil Nadu, is directed to submit a report, as to why, appropriate action is not taken against those, who have not made any special recruitment.
(8) The State Commissioner is directed to submit the details of the notification issued if any, exempting any establishment from the purview of the Act.
(9) Upon perusal of the files, this Court has noticed that in one of the correspondence with the Government, one of the then State Commissioners, who is expected to extend empathy and not sympathy to the differently abled persons, who by birth or disease or on account of an untoward incident like, an accident, suffer from disabilities and not in a position to compete with non disabled persons, has described their continuous representations and approach to his office, as a disturbance, in the functioning of his office and suggested creation of posts. The Act enjoins a statutory duty on him to enforce the provisions and if there is a delay or inaction, even an abled person would persistently approach the competent authorities, to assert his legal rights. When the have-nots or, under the privilege, approach the authorities for enforcing their rights, strengthened with the orders of the Court, the response does not reflect positive and proactive approach.
(10) The State Commissioner is directed to submit a report as to how the roster is fixed for filling up 3% vacancies in Government departments, boards, corporations, public sector undertakings, company establishment owned and controlled and covered under Section 2(a) (ii) of the Act.
(11) The State Commissioner is directed to file a report as to what action is taken in furtherance of the directions given by this Court in W.P.No.392 of 2010, dated 04.03.2011.
(12) The State Commissioner is directed to submit a detailed report of all the backlog vacancies in all the departments, establishments, as defined in Section 2(k) of the Act and to furnish the list of posts identified.
(13) The State Commissioner is directed to submit a report as to how certain departments or Boards or Corporations, Universities, etc., can deny appointments in A, B, C and D notified posts, stating that the posts are filled up only by promotion, thereby in such departments or establishments, the implementation of the provisions of the Act, will be indirectly defeated.
(14) The State Commissioner is directed to furnish the details of Special Recruitment Drives made in the services of the State, boards, corporations, public sector undertakings owned or controlled by the State Government.
(15) The State Commissioner is directed to state as to whether the details of the backlog vacancies are notified in the website.
(16) The State Commissioner is directed to furnish the details of the nomenclature of the respective posts, falling under the State Services and the nomenclature of similar or equivalent posts with identical functions in the Board, Corporations or Undertakings.
(17) The State Commissioner is directed to submit a report, as to whether, the list of identified posts, has been revised and updated as per the provisions of the Act and of the details.
(18) The State Commissioner is directed to communicate the order of this Court to all the Secretaries of various departments, Heads of the Departments of the Civil Services under the State Government, Heads of the Boards, Corporations, Companies owned and controlled by the Government, as defined in Section 2(k) of the Act, Universities and Educational Institutions, Teacher Recruitment Board, Employment Exchanges, Local Bodies, etc. The report shall be submitted by 10.06.2012.
58. Post this matter on 10.06.2012.
Note to Office:
Registry to send a copy of this order to:
(1) The Chief Secretary to the Government, State of Tamil Nadu, Secretariat, Fort St. George, Chennai.
(2) The Hon'ble Chief Minister's Secretariat, Fort St. George, Chennai.
(3) The Chairman, Tamil Nadu Public Service Commission, Chennai nb skm