Orissa High Court
Smt. Ghanakeshi Sahu vs Director, Elementary Education And ... on 16 October, 2004
Equivalent citations: 99(2005)CLT27
Author: B.P. Das
Bench: B.P. Das
JUDGMENT B.P. Das, J.
1. The Petitioner has filed this Writ Application with a prayer to direct the opposite parties to engage her as a Swechhasevi Sikshya Sahayak (in short 'S.S.S.') under Hindol Education District in pursuance of the advertisement issued by Opp. Party No. 1, vide Annexure-1 and the selection made thereto by the Selection Committee under the notification issued under Annexure-4.
2. The case of the petitioner, in brief, is that she was a Matric C.T. and has subsequently acquired +2 qualification. She being a hearing impaired person was declared to be Physically Handicapped with 50% disability as per the certificate, Annexure-2. She also belongs to Socially and Economically Backward Class ('SEBC in short). Pursuant to the advertisement issued by Opp. Party No. 1 for engagement of S.S.Ss. in different education districts of the State (Annexure-1) the petitioner applied for engagement as S.S.S. under Hindol Education District. As per the selection made by Opp. Party No. 2 her name was placed at SI. No. 49 in the provisional select list of 54 candidates as per the notification, Annexure-4. According to the petitioner, the number of vacancies notified under Hindol Education District was 44. It is stated that the petitioner came within the category of "Sports and Physical Handicapped C.T. and B.Ed. Candidates" and among such category of candidates she was placed in 2nd. Position. The candidate who stood first belonged to general category and as such the petitioner being SEBC her position would be SI. No. 1 among the "Sports and Physical Handicapped C.T. and B.Ed. Candidates". Annexure-4 to the Writ Application also confirms the fact that the petitioner's serial number was 49 in the provisional list of selected candidates and she belonged to SEBC Female and Physically Handicapped. While the petitioner was waiting for her engagement, she found from the notification issued by Opp. Party. No. 2 on 17.7.2001 (Annexure-5) that 19 candidates from Matric C. T. category were finally selected for engagement as S.S.S. but the name of the petitioner did not find a place in the said final select list. The specific allegation of the petitioner is that even though one Akhil Kumar Garnaik, whose SI. No. was 51 having secured 82% marks (combined marks under Matric C. T. Category) and ranked below the petitioner, whose SI. No. was 49 having secured 87.5% marks, in the select list under the category of "Sports and Physical Handicapped C.T. and B.Ed. Candidates", his name was notified in the final select list (Annexure-5) at SI. No. 19 whereas the petitioners name did not find a place in the final select list. Challenging the aforesaid action of the opp. parties in not including her name ir, the final select list, Annexure-5 the petitioner has filed this Writ Application for the relief indicated hereinabove.
3. A counter affidavit has been filed on behalf of Opp. Party No. 2 the Collector-cum-Chief Executive Officer, Zilla Parishad- cum-Chairman, Selection Committee (S.S.S.) Dhenkanal, which is sworn to by the Addl. Project Director, DRDA, Dhenkanal. In the said counter affidavit it is stated that in the provisional select list, Annexure 4 the name of the petitioner was placed under the category "Sports and Physical Handicapped C.T. and B.Ed. Candidates" on the basis of the certificate submitted by her to be a Physically Handicapped having impaired hearing of 50%. But in terms of the clarification issued by the Government in School and Mass Education Department, vide letter dated 20.6.2001 (Annexure-A/2), that the blind, deaf and dumb are not suitable for the profession of teaching in the General Schools, Opp. Party No. 2 did not include the name of the petitioner in the final select list as she was having impaired hearing above 45% bringing her under the category of deaf and not eligible to be engaged as S.S.S. But A. K. Garnaik was selected as per Annexure-5 as he was an Orthopaedically Handicapped person with 75% disablement and was eligible. In Annexure-A/2 it has also been indicated that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Protection) Act, 1995 (hereinafter '1995 Act') has no application to the selection and engagement of para-teachers under S.S.S.
4. This Writ Application was heard along with OJC No. 4856/2001 (Orissa Association for the Blind and others v. State of Orissa and others) in which judgment has been delivered today. While the petitioners in the aforesaid OJC No. 4856/2001 challenged the action of the authorities in depriving the blind candidates of engagement as S.S.S., the petitioner in this case, a hearing impaired candidate, challenges the action of the opposite parties in depriving her of the engagement as S.S.S., and seeks direction to the opposite parties to engage her. The petitioners in both the Writ Applications have taken resort to 1995 Act, more particularly Section 33 thereof. OJC No. 4856/2001 has been disposed of by me today holding that the action of the Selection Authorities in ignoring the cases of blind candidates for engagement as S.S.S. was illegal in the absence of any notification in the Official Gazette exempting the Schools and Mass Education Department from the application of the provisions of Section 33 of the 1995 Act or any resolution of the State Government to debar the blind candidates from being engaged as S.S.S.
5. It is submitted by the Learned Counsel for the petitioner that in order to provide all possible opportunities to the physically handicapped to develop their own personality and economic independence, the State Government in Political and Services Department, in the light of the decision of the Government of India providing reservation of 1% in the vacancies for rehabilitation of the Physically Handicapped persons in public service, also made a Resolution dated 24.7.1978 which was published in the extra-ordinary issue of Orissa Gazette on 7.8.1978. In the aforesaid Resolution, the State Government while granting concession to the Physically Handicapped persons in the matter of employment in public service decided that not less than 1 % of the vacancies in different services/posts under the Government to which direct recruitment is made shall be reserved to be filled up by qualified disabled persons as defined in Paragraph 3 which is as follows :
"3. The 'Physically Handicapped' means and includes the following categories of Physically Handicapped persons.
(A) Blind: *** *** *** (B) Deaf: The deaf are those in whom the sense of hearing is non-functional for the ordinary purposes of life. Generally loss of hearing at 70 decibels or above at 500, 1000 or 2000 frequencies will make residual hearing non-functional and will include deaf-mute persons.
(C) Orthopaedically Handicapped : *** *** (D) Speech Defective : *** ***"
It is stated that in the said Resolution under Paragraph 12 certain concessions were allowed to the Physically Handicapped persons for their eligibility for appointment to the posts and services under Government reserved for them, which are as follows :
"(1) 5 percent of marks wherever minimum percentage of marks in any examination is prescribed. (2) The condition of training/test/experience, wherever prescribed, shall not apply to the Physically Handicapped persons for appointment to posts reserved for them. Where a particular training is essential for appointment to a post, the Physically Handicapped person shall complete such training within 2 years from the date of appointment."
It is stated by the petitioners that the State Government in the General Administration Department issued a further Resolution dated 4.5.1981 which was published in the Orissa Gazette on 12.8.1981. From the aforesaid Resolution it appears that the Government of India further decided that for the purpose of employment of the Blind, Deaf and Orthopaedically Handicapped persons in Group C and D posts and services, 1% of the vacancies shall be kept reserved for each of the aforesaid categories of persons. In the aforesaid Resolution it is resolved as follows :
" *** *** ***
2. Government of India have now, on consideration of the matter, have decided that for the purpose of employment of the Blind, the Deaf and the Orthopaedically handicapped persons, the reservation in Groups C and D posts and services for Physically Handicapped persons should be made to the following extent under the Central Government.
Category of the Percentage
Handicapped reservation
(1) The Blind 1%
(2) The Deaf 1%
(3) The Orthopaedically
Handicapped 1%
3. Accordingly it has been decided by the State Government that the reservations for filling the Class III and Class IV post and services under the State Government and Public Sector Undertakings which correspond to Groups C and D, posts/services under the Central Government should be made for rehabilitation of Physically Handicapped persons of the above categories. The categorization of Physically Handicapped persons for employment will be on the basis of definition as per Annexure-I. *** *** *** The aforesaid Resolution defines 'Deaf as follows :
"The Deaf The Deaf are those in whom the sense of hearing is non-functional for ordinary purposes of life. They do not hear/understand sounds at all even with amplified speech. The cases included in this category will be those having hearing loss more than 90 decibels in the better ear (profound impairment) or total loss of hearing in both ears."
It is further submitted by the petitioner that the Central Government enacted an Act, namely, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called 'the 1995 Act') which came into force with effect from 1st January, 1996. It is further submitted that the 1995 Act, inter alia, protects the rights of Physically Handicapped persons including that of the petitioner, who is a hearing impaired person. Section 33 of the 1995 Act has provided that :
"Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent, for persons or class of persons with disability of which one percent, 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."
It is also submitted by the petitioner that no notification issued by the State Government in terms of Section 33 of the 1995 Act was published in the Official Gazette exempting the Department of School and Mass Education from the application of the provisions of aforesaid Section 33.
6. In the premises of the submissions and statutory provisions placed by the parties, let me see whether the provisions of the 1995 Act in any manner come to the help of the petitioner.
7. Under Sub-section (i) of Section 2 of the 1995 Act, 'disability' has been defined, inter alia, to mean 'hearing impairment'. In Sub- section (1) of Section 2 'hearing impairment' has been defined to mean "loss of sixty decibels or more in the better ear in the conversational range of frequencies". Sub-section (t) of Section 2 also defines "person with disability" to mean "a person suffering from not less than forty percent of any disability as certified by a Medical Authority". Here is a case where the petitioner can safely be treated as a person with disability under the provisions of the 1995 Act as per the certificate in Annexure-2 issued by the Competent Authority declaring her to be 50% disability of hearing impairment. Taking the facts and statutory provisions into account, I have no doubt to say that the petitioner is entitled to get the benefit of the 1995 Act. That too, nothing was brought to the notice of this Court that any notification was issued by the State Government in terms of Section 33 of the 1995 Act and published in the Official Gazette exempting the Department of School and Mass Education from the application of the provisions of said Section 33 and to justify the action of the opp. parties in excluding the petitioner from engaging her as S.S.S. Of course, a communication of the School and Mass Education Department dated 20.6.2001 issued to the Collector, Khurda, by way of clarification was produced before this Court along with the counter affidavit as Annexure-A/2. But that lends no support to the stand of the opp. parties. The aforesaid, in my view, can certainly not over-ride the statutory provisions made in the 1995 Act as well as the resolution dated 4.5.1981 issued by the State Government in the GA Department.
8. In my considered opinion, the petitioner being a person with disability possessing requisite qualification, non-inclusion of her name in the final select list, Annexure-5 is illegal. I, therefore, direct the Collector, Dhenkanai, who functions as the Chairman, Selection Committee (S.S.S.) to consider the candidature of the present petitioner for being engaged as S.S.S. and to take appropriate steps in that regard. It is needless to say that this Court by an interim order had earlier directed that any appointment made by the opp. parties as against the post for which the petitioner is a contender, then in that appointment letter it shall be indicated that the appointment shall be subject to the result of this Writ Application. The entire exercise shall be completed within a period of three months hence.
9. The Writ Petition is allowed accordingly but without any order as to cost.