Gujarat High Court
Tailor Keyur Atulbhai & 4 vs State Of Gujarat & on 22 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17683/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17683 of 2014
With
SPECIAL CIVIL APPLICATION NO. 17676 of 2014
With
SPECIAL CIVIL APPLICATION NO. 17800 of 2014
With
SPECIAL CIVIL APPLICATION NO. 20491 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20350 of 2015
With
SPECIAL CIVIL APPLICATION NO. 20405 of 2015
With
SPECIAL CIVIL APPLICATION NO. 21088 of 2015
With
SPECIAL CIVIL APPLICATION NO. 58 of 2016
With
SPECIAL CIVIL APPLICATION NO. 89 of 2016
With
CIVIL APPLICATION NO. 3954 of 2015
In
SPECIAL CIVIL APPLICATION NO. 17683 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of NO Page 1 of 40 HC-NIC Page 1 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== TAILOR KEYUR ATULBHAI & 4....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR KB PUJARA, MR BHARGAV HASURKAR, MR MAYUR V DHOTARE, ADVOCATES for the respective Petitioners S.C.As. NOs.17676/2014, 17683/2014, 17800/2014, 20491/2015, 20330/2015 AND C.A. NO.3954/2015 IN S.C.A. NO.17683/2014:
MS MANISHA LAVKUMAR SHAH, GP WITH MR SWAPNESHWAR GOUTAM AGP for the Respondents S.C.As. Nos.20405/2015, 21088/2015, 58/2016, 89/2016: MS MANISHA LAVKUMAR SHAH, GP WITH MS VACHA DESAI, AGP for the Respondents ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/07/2016 CAV COMMON UDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same and the challenge to the Notification dated 12th February 2013 issued by the State Government is also selfsame, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Civil Application Page 2 of 40 HC-NIC Page 2 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT No.17683 of 2014 is treated as the lead matter.
3 By this application under Article 226 of the Constitution of India, the writ applicants, visually impaired candidates with 100% visual impairment, have prayed for the following reliefs:
"9(a) to admit this petition and to issue notice for final disposal and to allow the same;
(b) to quash and set aside the illegal action of the respondents in not providing reservation of at least 3% of the vacancies for disabled persons in the 548 vacancies notified for the subject of languages and in the 800 vacancies notified for the subject of Social Sciences in the advertisement dtd. 20112014 at AnnexureA for recruitment of Teachers / Vidya sahayaks for Upper Primary Schools (Std. 6 to 8);
(c) to hold and declare and direct that the respondents are duty bound to reserve and to fill up at least 16 vacancies by disabled persons out of 548 vacancies notified for vidyasahayaks of language subject and at at least 24 vacancies by disabled persons out of 800 vacancies notified for vidya sahayaks of Social Sciences subject pursuant to the advertisement dtd. 20 112014 at AnnexureA, in accordance with Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
(d) to hold and declare and direct that the respondents are duty bound to reserve and to fill up at least 8 vacancies by persons suffering from blindness or lowvision out of 548 vacancies notified for Vidyasahayaks by persons suffering from blindness or lowvision out of 800 vacancies notified for vidyasahayaks of Social Sciences subject pursuant to the advertisement dtd. 20112014 at AnnexureA, in accordance with Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read with the Notification dtd.
12122013 at AnnexureC;
(e) to hold and declare and direct that the petitioners are eligible and qualified for bearing appointed as Teachers / Vidyasahayaks for Upper Primary Schools (Std. 6 to 8) pursuant to the advertisement dtd. 2011 2014 at AnnexureC;
(f) to direct the respondents, their agents and servants to consider the petitioners' candidatures and to give them appointments as per their merit as Teachers / Vidyasahayaks for Upper Primary Schools (Std. 6 to 8) pursuant to the advertisement dtd. 21112014 at AnnexureA with all the Page 3 of 40 HC-NIC Page 3 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT consequential benefits.
(g) Pending the hearing and final disposal of this petition, be pleased to direct the respondent no.2 to physically accept the petitioners' applications forms and to consider their candidatures and to give them appointments as per their merit as Teachers / Vidya Sahayaks for Upper Primary Schools (Std. 6 to 8) pursuant to the advertisement dtd. 2111 2014 at AnnexureA subject to further orders that may be passed in the present petition.
(h) to grant any other appropriate and just relief/s;
9(i) to quash and set aside the impugned Notification dated 12 th February, 2013 issued by the respondent no.1 in purported exercise of powers under Section 33 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as per Annexure - C;
9(j) to hold and declare and direct that the petitioners - 100% blind candidates - are eligible to be selected and appointed as Vidya sahayaks/Primary School Teachers under the respondents and the respondents cannot exclude them from being selected and appointed as such merely because they are 100% blind;
9(k) to direct the respondents, their agents and servants not to exclude the present petitioners - 100% blind candidates - from the process of selection and appointment of Vidyasahayaks / primary school teachers only on the ground that they are 100% blind;
9(l) Pending the hearing and final disposal of this petition, be pleased to stay further operation of the impugned notification dated 12 th February 2013 issued by the respondent no.1 in purported exercise of powers under Section 33 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as per AnnexureC;
9(m) Pending the hearing and final disposal of this petition, be pleased to direct the respondents, their agents and servants not to exclude the present petitioners - 100% blind candidates - from the process of selection and appointment of Vidyasahayaks / primary school teachers only on the ground that they are 100% blind;
9(n) to direct the respondents to grant all the consequential benefits including monetary benefits and seniority as if the petitioners were given appointment along with other candidates pursuant to the advertisement dated 20112014;"
3 The case of the writ applicants may be summarized as under:Page 4 of 40
HC-NIC Page 4 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT 3.1 The writ applicants are 100% blind.
3.2 They have passed B.A. / M.A. and B.Ed. /M.Ed. examinations and have also passed the Teacher Eligibility Test (T.E.T.) II. It is their case that therefore, they are eligible and qualified to be appointed as the Primary Teachers / Vidhya Sahayaks for the upper primary schools (Standard VI to VIII) for the subjects of Languages and Social Science.
3.3 The respondents issued an advertisement dated 21st November 2014 for the recruitment of 4351 Teachers / Vidhya Sahayaks for the upper primary schools (Standard VI to VIII), wherein 3003 vacancies were for the Mathematics - Science, 548 vacancies were for the Languages and Social Science. It is the case of the writ applicants that they are qualified for the vacancies of subjects of the Languages and Social Science.
3.4 The persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act'), inter alia provides in Chapter VI - Employment, in Section 33 for the reservation of posts of not less than 3% for the persons with disabilities, out of which 1% is required to be reserved for the persons suffering from blindness or low vision.
3.5 The Section 36 of the Act provides for carrying forward of the vacancies remaining unfilled.
3.6 The Section 41 of the Act directs the Government and the local authorities to provide incentives both in public and private sectors to ensure that at least 5% of their work force is composed of the persons with disabilities.
3.7 The Government of Gujarat issued a Notification dated 12th Page 5 of 40 HC-NIC Page 5 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT February 2013 prescribing 1.5% for the candidates with blindness or low vision and 1.5% for the candidates with locomotor disability or Cerebral Palsy and nil for the candidates with hearing impairment.
3.8 It is the case of the writ applicants that in view of the mandatory statutory provisions, the respondents were duty bound to reserve at least 16 vacancies for the disabled candidates out of 548 vacancies notified for the subject of Languages and at least 24 vacancies for the disabled candidates out of 800 vacancies notified for the subject of Social Science.
3.9 However, the respondents have reserved only 9 vacancies for the disabled candidates in the subject of Languages and 15 vacancies for the disabled candidates in the subject of Social Science, thereby violating the mandatory statutory provisions of the Act.
3.10 Hence, these writ applications.
● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS:
4 Mr. Pujara, the learned counsel appearing for the writ applicants
vehemently submitted that the writ applicants of the Special Civil Application No.17683 of 2014 had earlier challenged the Notification dated 12th February 2013 issued by the State Government, Education Department, by way of the Special Civil Application No.102 of 2014. A Division Bench of this Court vide order dated 5th December 2014 passed the following order:
"This writ petition has been filed by the petitioner challenging Notification dated 12.2.2013. Learned counsel for the petitioner has very fairly informed that these petitioners are also party in another writ petition being Special Civil Application No. 17683 of 2014 wherein interim relief has been granted permitting the petitioner to apply as blind candidate. It is always open to learned Single Judge to interpret the Notification or set aside the same. In case the petitioners decide to Page 6 of 40 HC-NIC Page 6 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT challenge the Notification, they amend their writ petition which is pending before learned Single Judge.
With the above observation, this petition is dismissed as withdrawn with a liberty to the petitioners to pursue their Special Civil Application No. 17683 of 2014."
5 Mr. Pujara submits that accordingly, the writ applicants have challenged the impugned Notification by way of the present writ applications.
6 The learned counsel submits that the impugned Notification is absolutely contrary to the letter and spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as well as the Right of Children to Free and Compulsory Education Act, 2009 and various other provisions of the Constitution of India, and therefore, is liable to be quashed and set aside as bad in law, null and void, arbitrary, irrational, discriminatory, suffering from the vice of non application of mind and violative of Articles 14, 16, 19 and 21 of the Constitution of India.
7 The learned counsel submits that the impugned Notification is in the purported exercise of powers conferred by Section 33 of the Act, 1995. However, the said section obliges the State Government to appoint in every establishments not less than one percent of the vacancies for persons with the disability suffering from (i) blindness or low vision, (ii) hearing impairment, and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. The said provision does not empower the State Government to make any distinction between the persons suffering from "blindness" and the persons suffering from "low vision" as is sought to be made in the impugned notification. The persons suffering from "blindness" and the persons suffering from the "low vision" are forming one class and they are entitled to the similar Page 7 of 40 HC-NIC Page 7 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT treatment.
8 The learned counsel further submits that Section 2(t) of the Act, 1995 defines the "person with disability" as a person suffering from not less than forty percent of any disability as certified by a medical authority. Therefore, the respondents cannot make distinction between the persons suffering from blindness or low vision on the basis of their percentage of disability by making only the persons having vision more than 40%, but less than 75% as eligible for the posts of Vidhya Sahayaks / Primary School Teachers as has been done in the impugned Notification. Therefore, the impugned Notification is liable to be quashed as arbitrary and bad in law as it gives discriminatory treatment to the 100% blind candidates like the petitioners which is not contemplated or permitted by the statutory provisions.
9 According to the learned counsel, the Notification stating that the person having 100% blindness will be eligible in case of Music Teacher is also just an eyewash inasmuch as there is no provision for making any appointments of Music Teachers in the Government Resolution dated 27th April 2011 nor the respondents are holding any Teacher Eligibility Test (T.E.T.) for Music Teachers either for the lower Primary School (Standard I to V) or for the upper Primary School (Standard VI to VIII), and therefore, there would be no candidate who could be appointed as a Music Teacher on the post of Vidhya Sahayak / Primary School Teacher.
10 The learned counsel further submitted that his clients have spent their hard earned money having being dragged into this unnecessary litigation and many years for obtaining the degrees of B.A. and B. Ed. / B.Ed. (Special), which are the essential requirements for being appointed as the Vidhya Sahayaks / Primary School Teachers and they have also passed the necessary Teacher Eligibility Test (T.E.T.) as Page 8 of 40 HC-NIC Page 8 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT specified by the National Council for Teacher Education under the Right of Children to Free and Compulsory Education Act, 2009; which is being made completely meaningless by the impugned Notification. He, therefore, submits that the impugned Notification being arbitrary deserves to be quashed.
11 The learned counsel submitted that the qualification of B.Ed. (Special) has been designed specifically for the special children i.e. the disabled children recognized by the Rehabilitation of Council of India, a statutory authority of India in this regard.
12 Mr. Pujara submitted that if the 100% blind candidates are not to be appointed as the Vidhya Sahayaks / Primary School Teachers, then their admission to the courses of education such as B.Ed. / B.Ed. (Special) should be prohibited so that they may not waste their valuable time and hard earned money.
13 Mr. Pujara submitted that the exclusion of 100% blind candidates in the appointments of Vidhya Sahayaks / Primary School Teachers by way of impugned Notification is otherwise also bad in law inasmuch as the category of primary school teachers / middle school teachers and the category of secondary school teachers for the subjects of Languages and Social Science have been identified as the categories to which 100% blind candidates have been appointed, by the Government of India.,In fact large number of blind candidates have already been appointed as teachers under the respondents herein and in the Central Schools. The Government of India's letter dated 14th December 1999 in this regard along with the list of jobs identified for being held by disabled persons including blind persons is at Annexure : "F". The list of such 100% blind candidates serving under the respondents, many of those are awardees Page 9 of 40 HC-NIC Page 9 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT of the State Government is at Annexure : "G". The certificates and appointment orders of blind candidates appointed in the Central Schools are at Annexure : "H". The copy of the Government Resolution dated 27th April 2011 for recruitment of Vidhya Sahayaks in Primary Schools (Standard I to V) and upper Primary Schools (Standard VI to VII) is at Annexure : "I".
14 Mr. Pujara submitted that the Ministry of Social Justice and Empowerment, Government of India, vide its letter dated 14th December 1999 addressed to the Additional Chief Secretary, Social Welfare Department, Government of Gujarat, had made a request to constitute an expert committee for the identification of suitable jobs in the government establishment. According to Mr. Pujara, even after 17 years of such intimation to the State Government, the State Government has not thought fit to constitute such Expert Committee for the identification of suitable jobs in the government establishments. According to Mr. Pujara, such directions issued by the Central Government were keeping in mind the provisions of Section 32 of the Act.
15 Mr. Pujara, therefore, prays that there being merit in all the writ applications, they deserve to be allowed and the reliefs prayed for may be granted.
16 On the other hand, all the writ applications have been vehemently opposed by Ms. Manisha Lavkumar Shah, the learned Government Pleader appearing for the respondents.
● SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
17 Ms. Shah, the learned Additional Advocate General submitted that
all the writ applications should fail in view of the judgment and order passed by the Division Bench of this Court in the Writ Petition (PIL) Page 10 of 40 HC-NIC Page 10 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT No.58 of 2013, wherein, the Division Bench considered the provisions contained in Section 33 of the Act, 1999 as well as the impugned Notification dated 12th February 2013 and upheld the validity of the Notification, which is the subject matter of challenge in all the writ applications herein.
18 Ms. Shah further pointed out that a review application being Miscellaneous Civil Application No.2440 of 2013 was filed in the Writ Petition (PIL) No.58 of 2013 referred to above. The Division Bench, by order dated 9th May 2014, was pleased to reject the review application.
19 According to Ms. Shah, the State Government is of the firm views that a 100% blind candidate would not be in a position to efficiently discharge his duties as a Teacher / Vidhya Sahayak, and keeping that in mind, the impugned Notification was issued. Ms. Shah submits that the decision of State Government in this regard has been upheld by the Division Bench while disposing of the Public Interest Litigation.
20 Ms. Shah submits that the present writ applications would not only be hit by the principles of res judicata, but also by the principles of constructive res judicata.
21 Ms. Shah, therefore, submits that there being no merit in any of the writ applications, they deserve to be rejected.
● ANALYSIS:
22 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls for my consideration is whether the State Government committed any error in passing the impugned Notification dated 12th February 2013.
Page 11 of 40HC-NIC Page 11 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT 23 Let me first consider first the principal argument of Ms. Shah that all the writ applications before me should be rejected considering the judgment and order passed by the Division Bench of this Court in the Writ Petition (PIL) No.58 of 2013 decided on 13th September 2013, to which I was a party.
24 The Writ Petition (PIL) No.58 of 2013 was filed by the Blind People Association for issue of mandamus or any other appropriate writ with a direction to the respondents therein to provide 3% reservation for the handicapped and blind candidates in accordance with the provisions of the Act, 1995 while filling up the posts of Vidhya Sahayaks for the year 2011 and also for a direction upon the respondents to remove the relevant Clause from the Government Resolution and quash the Notification dated 12th February 2013.
25 The principal argument before the Division Bench was that the State Government had issued one Government Resolution dated 15th April 2010 for the appointments of 10,000 Vidhya Sahayaks in the Primary Schools, but had failed to keep 3% reservation for the disabled candidates in terms of the provisions contained in Section 33 of the Act. It was further submitted that the State Government issued a Notification dated 12th February 2013, i.e. the impugned Notification in the writ application herein, in exercise of powers conferred on it, under Section 33 of the Act, by which it took away the benefit of reservation from the category "hearing impaired" and had extended such quota in favour of the other two categories i.e. low vision and locomotive disability. It was submitted that the deprivation of the right of the reservation of the candidates belonging to the "hearing impaired" persons was violative of the provisions contained in the Act itself, and thus, was liable to be set aside.
26 The reply of the State Government in the Public Interest Litigation Page 12 of 40 HC-NIC Page 12 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT before the Division Bench was that by virtue of proviso to Section 33 of the Act, the State Government is authorized to exempt in all the classes i.e. the low vision, hearing impairment and locomotive disability from such reservation in respect of a particular type of job. It was argued that for the job of a Teacher in a School, it is impossible for a "hearing impaired" person to effectively perform his duties and the State Government had rightly excluded such type of a person from the benefit of the reservation.
27 The Division Bench, ultimately, while upholding the legality and validity of the Notification, held as under:
"5. In order to appreciate the aforesaid question, it will be profitable to refer to the provisions contained in Section 33 of the Act, which is quoted below:
33. Reservation of posts. 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 of 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.
5.1 Similarly, the notification challenged in this writapplication [at Annexure C] is also quoted below:
NOTIFICATION Education Department Sachivalaya, Gandhinagar Dated the : 12th February, 2013 NO:GH/SH/PRE112010/SF/22 K: In exercise of the powers conferred by section 33 of the persons with Disabilities [Equal Page 13 of 40 HC-NIC Page 13 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT opportunities, protection of Rights and full participation] Act, 1995, the Government of Gujarat hereby prescribes the percentage of reservation as under for the disabilities mentioned against each category with regard to the vacancies in the cadre of Vidyasahayak/Primary school Teachers for Physically handicapped persons.
Category of disability Percentage of Reservation [i] Blindness or low vision 1.5% [1] Persons having vision more than 40% but less than 75%, [2] In case of music teacher, person having 100 percent blindness will be eligible.
[ii] Locomotor disability or cerebral palsy. 1.5% OAone Arm, OL one leg, OALone Arm and one leg [iii] Hearing impairment NIL By order and in the name of Governor of Gujarat. Sd/ [Yogesh Raval] Under Secretary to Government of Gujarat
6. After hearing the learned counsel for the parties and after going through the above provisions in the Act, we find that the notification challenged in this application has been issued by the appropriate government in terms of Section 33 of the Act after taking into consideration the nature of job required to be performed by a primary teacher. The Act has given authority to the appropriate government to issue such notification having regard to the nature of the job to be carried on in any establishment. Thus, the competence of the appropriate government to issue such notification is well established.
7. We also find substance in the contention of Mr. Baxi, the learned Assistant Government Pleader appearing on behalf of the State of Gujarat, that for a primary teacher it is impossible to perform the work attached to his post if he happens to be hearing impaired and thus, the appropriate government has rightly excluded the benefit of reservation to the category of the candidates belonging to the hearing impaired and extended the said benefit to the other two categories of the disabled persons.
8. The notification impugned is in conformity with the power conferred upon the appropriate government by the legislature. We, thus, find no reason to interfere with the just discretion exercised by the respondent.
This Special Civil Application is thus devoid of any substance is consequently dismissed. The interim order earlier granted stands vacated. No costs."
Page 14 of 40HC-NIC Page 14 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT 28 It appears that thereafter, a review application came to be filed being the Miscellaneous Civil Application No.2440 of 2013. In the review application, it was prayed that the State Government be directed to issue a fresh Notification in terms of the proviso to Section 33 enabling the 100% blind persons to get opportunity in the primary schools. The Division Bench, while rejecting the Review Application, held as under:
"2. In order to appreciate the question, it will be appropriate to refer to the provisions contained in section 33 of the Act and also the notification dated 12th February 2013 challenged in the application. Those are quoted below:
33. Reservation of posts. 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 of 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.
2.1 The notification dated 12th February 2013 is quoted below:
NOTIFICATION Education Department Sachivalaya, Gandhinagar Dated the : 12th February, 2013 NO:GH/SH/PRE112010/SF/22 K: In exercise of the powers conferred by section 33 of the persons with Disabilities [Equal opportunities, protection of Rights and full participation] Act, 1995, the Government of Gujarat hereby prescribes the percentage of reservation as under for the disabilities mentioned against each category with regard to the vacancies in the cadre of Page 15 of 40 HC-NIC Page 15 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT Vidyasahayak/Primary school Teachers for Physically handicapped persons.
Category of disability Percentage of Reservation [i] Blindness or low vision 1.5% [1] Persons having vision more than 40% but less than 75%, [2] In case of music teacher, person having 100 percent blindness will be eligible.
[ii] Locomotor disability or cerebral palsy.
1.5% OAone Arm, OL one leg, OALone Arm and one leg [iii] Hearing impairment NIL By order and in the name of Governor of Gujarat.
Sd/ [Yogesh Raval] Under Secretary to Government of Gujarat
3. After going through the above provisions of the Act, we find that the notification challenged in the application had been issued by an appropriate government in terms of proviso to section 33 of the Act after taking into consideration the nature of the work required to be performed by Primary Teachers. The Act has given authority to appropriate government to issue such notification having regard to the nature of work to be carried on in any establishment. Thus, the competence of the appropriate government to issue such notification is well established.
4. We also, while dismissing the Public Interest Litigation, recorded that for a primary teacher, it is impossible to perform work attached to his post if he happens to be hearing impaired and thus, the appropriate government rightly excluded the benefit of reservation to category of hearing impaired and extended such benefit to the other two categories of disabled persons.
5. By this application, the petitioner has contended that in our above order, there is an error apparent on the face of the record inasmuch as even for blind candidates, ratio was fixed in the notification that persons having vision of more than 40% and less than 75% would be placed under reserved category and for music teacher, persons having 100% blindness would be eligible.
6. Mr. Paul, the learned advocate appearing on behalf of the applicant, has strenuously contended that in the primary division of Gujarat Page 16 of 40 HC-NIC Page 16 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT education, there is no post for music teacher and thus, the aforesaid clause enabling reservation of 100% blind person for music teacher was uncalled for and in that event, persons having vision of less than 40% have been deprived.
7. We find that in the Act, blindness has been defined in section 2(b) of the Act, which reads as under:
(b). blindness refers to a condition where a person suffers from any of the following conditions, namely;
(i). total absence of sight; or
(ii). visual acuity not exceeding 6/60 or 2/200 (snellen) in the better eye with correcting lenses; or iii.limitation of the field of vision subtending an angle of 20 degrees or worse;
8. On consideration of the provisions contained in section 33 read with section 2(b) of the Act, we find that the State Government has been given right to exempt the application of the provisions of the Act by giving appropriate notification. By virtue of the notification in question, we have found that the persons having vision to the extent of 40% to 75% are eligible for reservation and in case of music teacher, 100% blind are also entitled. Mr. Jani, the learned Government Pleader appearing on behalf of the Staterespondent, has submitted that although at present there is no post of music teacher in the primary section, in future, if any post of music teacher is created, such candidates will get benefit; otherwise, Mr. Jani contends that having regard to the nature of work to be performed by a Teacher in a primary school, it is difficult to accommodate 100% blind persons for teaching of other subjects than music, and that is why the aforesaid notification was issued after taking into consideration the scope of creating the post of music teacher in a school.
9. After hearing the learned counsel for the parties, we find that as the State Government has been given power to relax the application of the provisions of the Act to a particular category of handicapped candidates having regard to the nature of the work they are required to perform, there is no illegality in issuing the notification by which the quota for reservation for hearing impaired person has been withdrawn and equally distributed between the other two categories by restricting the benefit to the persons having impaired vision to the extent of 40% to 75% for the time being, and in future, if the post of music teacher is created for primary section, to even persons with 100% blindness. The discretion exercised by the State Government cannot be said to be arbitrary. We, thus, find that there is no error, not to speak of any error apparent on the face of the records for review of our order dated 13 th September 2013. The application is, thus, dismissed. No costs."
Page 17 of 40HC-NIC Page 17 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT 29 Thus, it appears that the legality and validity of the Notification dated 13th September 2013 was looked into by the Division Bench, and ultimately, the same came to be upheld. While upholding the Notification, the Division Bench took the view that having regard to the nature of the work, a blind person is required to perform, the State Government committed no illegality in issuing the Notification by which the quota for reservation for hearing impaired person has been withdrawn and equally distributed between the other two categories by restricting the benefit to the persons having impaired vision to the extent of 40% to 75% for the time being, and in future, if the post of Music Teacher is created for primary section, to even persons with 100% blindness. The Division Bench observed that such discretion exercised by the State Government could not be said to be arbitrary.
30 Mr. Pujara, the learned counsel appearing for the writ applicants submitted that the Division Bench, while adjudicating the Public Interest Litigation, had no occasion to consider a neat question of law whether the prescription of disability between 40% and 75% was permissible in law. According to Mr. Pujara, the State Government,in exercise of its delegated powers could not have tinkered with the provisions of the Act, a central piece of legislation.
32 In support of his submission, reliance has been placed on a decision of the Karnataka High Court in the case of Mr. Manjunatha Venkatareddy v. Government of Karnataka and others [W.P. No.35969 of 2010 decided on 29th September 2011]. In the said case, a writ petition was filed under Article 226 of the Constitution of India with a prayer to quash an announcement issued by the State of Karnataka fixing the maximum percentage of disability as 75% for persons with disability as the eligibility criteria for the admission to the B.Ed. course under the government quota of seats to the colleges of education in Page 18 of 40 HC-NIC Page 18 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT Karnataka and for 3% reservation for the persons with disability to the B.Ed. course. The petitioner therein was a visual impaired candidate with 100% permanent visually impairment. A learned Single Judge of the High Court, while allowing the writ petition, took the view that the petitioner was entitled to seek admission to the B.Ed. course through the C.E.T. and his application was not liable to be rejected on the ground that the petitioner therein was having more than 75% of the disability. The Court observed as under:
"Petitioner is visually impaired candidate with 100% permanent visual impairment. After completion of the degree, he wanted to seek admission to B.Ed. course under the Government quota of seats to the colleges of education in Karnataka. The 1st respondent Department announced for conducting Common Entrance Test (CET) to be conducted by 2nd respondent for admission to B.Ed. for the academic year 2010 2011. 3% seats were reserved for physically challenged category. Out of such 3% reserved category, 1% is exclusively reserved for visually impaired candidates. However, the petitioner was not permitted to writ CET examination, on the ground that his visual impairment exceeds 75%. Hence, this writ petition is filed for the following reliefs:
a. Issue a writ of certiorari quashing the announcement bearing No.CAC4/B.Ed./Admn/20102011 isued by the respondent Nos.1 and 2 marked herein as Annexure"G" to the extent that is fixed the maximum percentage of disability as 75% for persons with disabilities as eligibility criteria for admission and for 3% reservations for persons with disabilities to the B.Ed. course;
b. Direct the respondent Nos.1 to 2 to conduct a special Entrance Examination for the petitioner and consider him for admission to the B.Ed. course for the academic year 20102011.
c. Award costs of this petition, and
d. Pass any such order or direction as deems fit, in the interest
of justice and equity.
2 It is not in dispute that the petitioner is visually impaired candidate
with 100% permanent visual impairment. The Karnataka Selection of Candidates for Admission to Teachers Certificate Higher Course (T.C.H.) and Bachelor of Education Course (B.Ed.) Rules, 1999 are framed in exercise of powers conferred by Subsection (1) of Section 14 of the Page 19 of 40 HC-NIC Page 19 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 by Government of Karnataka. Rule 8 deals with reservation of seats.
Subsection (4) of Rule 8 of the Rules specify that not less than 3% of the seats in each category shall be reserved for persons with disability, who produces certificate on this behalf issued by medical officer not below the rank officer of District Surgeon. The second proviso to Subsection (4) of Rule 8 further states that the persons suffering less than 40% of disability or exceeding 75% of disability are not eligible for selection, which means the rules mandate that the disability should be within the range of 40% to 75%. On the basis of such rules, the petitioner is not permitted to appear for CET examination, inasmuch as, he is 100% visually impaired candidate. Since the impairment is more than 75%, according to the respondents, petitioner cannot be allowed to prosecute his studies in B.Ed. course.
The examination to Rule 8 of the Rules further clarified that the "persons with disability" shall have the same meaning assigned to it, as in the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955".
3 The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (hereinafter referred to as 1955 Act) is a Central Enactment. It defines the person with disability under Section 2(t) of the Act and the same reads thus:
"Person with disability" means a person suffering from not less than forty percent of any disability as certified by a medical authority."
From the above, it is clear that the persons suffering from not less than 40% disability is treated as a person with disability. There is no higher cap prescribed for denying the benefit under the said Enactment to the disabled person. The persons having disability of less than 40% only are debarred from getting the benefit under the provisions of the said Act,k the Act nowhere prescribes that the persons having disability of more than 75% will not be entitled to the benefit under the said Enactment. Naturally, the person having 100% disability is entitled to the benefit under the provisions of 1995 Act. Thus, there cannot be any dispute that the petitioner having 100% disability is entitled to the benefit under the provisions of 1995 Act.
4 As stated supra, the Karnataka Selection of Candidates for Admission to Teachers Certificate Higher Course (T.C.H.) and Bachelor of Education Course (B.Ed.) Rules, 1999 are framed by the State Government in exercise of powers conferred on it by subsection (1) of Section 14 of the Karnataka Educational Institutions (Prohibition of Page 20 of 40 HC-NIC Page 20 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT Capitation Fee) Act, 1984. Hence, prima facie those rules may not be applicable to the matter on hand, inasmuch as, the facts attract herein the provisions of 1995 Act. The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 is primarily enacted for the purpose of prohibiting capitation fee and not for regulating the reservation policy in the system of education relating to students having physical impairment. Hence, the Rules of 1999 may not be applicable to the facts of this case.
Even otherwise those rules run contrary to the Act of 1995. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act of 1995) does not debar any physically challenged person having more than 75% disability to get the benefit of 3% reservation. If it is so, it is not proper on the part of the State Government to deny the benefit of reservation in education to the physically challenged people having more than 75% disability. Hence, this Court holds that the petitioner is entitled to take up CET examination to be conducted by the respondents for admission to B.Ed. course. It is open for the petitioner to get admission to B.Ed. course through CET. If such an application is made, the same shall not be rejected on the ground that the petitioner is having more than 75% disability.
Writ petition is allowed accordingly."
33 At the outset, I may state that as the legality and validity of the impugned Notification has already been examined by the Division Bench of this Court, to which I was a party and the validity having been upheld, I am reluctant to go into the argument of Mr. Pujara. At the cost of repetition, I state that the Division Bench of this Court, while rejecting the review application filed in the Writ Petition (PIL) No.58 of 2013 has observed in clear terms that no illegality could be said to have been committed by the State Government in issuing the Notification by which the quota for reservation for hearing impaired has been withdrawn and equally distributed between the two categories by restricting the benefit of the persons having impaired vision to the extent of 40% to 75% for the time being.
34 I may only say that Section 2(t) of the Act defines "person with disability" as a person suffering from not less than 40% of any disability as certified by a medical authority. The provision contemplates the Page 21 of 40 HC-NIC Page 21 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT minimum percentage of disability for entitlement to the opportunities, protection of rights and full participation under the Act. A plain reading of the said Section, in my view, leads to only one conclusion that the State cannot prescribe less than 40% of disability. As the State is empowered to identify the posts on which a blind person can be appointed and the eligibility norms, it is empowered to prescribe such of those norms, which are not inconsistent with the provisions of Section 2(t) of the Act. It appears that as the State Government has taken it for granted that a 100% blind candidate would not be in a position to discharge his duties as a Teacher, it thought fit to prescribe 40% to 75% disability as the eligibility criteria for the appointment on the post of Vidhya Sahayak as against the 3% seats. Although Section 2(i) of the Act defines "disability" as blindness; low vision; leprosy cured; hearing impairment, locomotor disability; mental retardation and mental illness, for the equal opportunities, protection of rights and full participation, yet all the disabilities cannot be treated alike. In case of blindness, a further definition as to the "blindness" is contemplated under Section 2(b) of the Act as meaning a person suffering from any of the conditions of total absence of sight; visual acuity not exceeding 6/60 or 20/200 in the better eye with correcting lenses or limitation of the field of vision subtending an angle of 20 degree of worse. Equally "cerebral palsy" has been defined under Section 2(e), "hearing impairment" under Section 2(l) and "mental retardation" under Section 2(r). Insofar as the case of a person with disability of blindness, although an equal opportunity is contemplated in service, yet he cannot be considered for the post of driver. Restriction of a person suffering from total absence of sight for employment as a driver cannot be called as deprivation of his right to employment under the Act. Similarly, a person with mental retardation, cannot be considered for the post of teacher. In the teeth of the distinct definitions and the entitlement to the job opportunities and education, the definition should be construed with reference to the opportunities, Page 22 of 40 HC-NIC Page 22 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT protection of rights and full participation. The provision should be therefore construed only in the context of nature of job and education and in which event the prescription of eligibility shall necessarily vest with the State Government depending upon the requirement of the disabled persons either for job opportunities or for education. If Section 2(t) of the Act is read keeping the above in mind, it should be understood only as empowering the State Government to prescribe the eligibility norms/criteria without offending the minimum eligibility prescribed under the Act. As Section 2(t) of the Act refers only the minimum eligibility of 40% disability, the decision of the State in prescribing 40% to 75% of disability in the Notification as such cannot be construed as offending the provisions of Section 2(t) of the Act. Let me clarify myself that what I have explained is the position of law. However that does not mean that a 100% blind candidate can never be appointed as a 'Teacher'. The identification of the post should be by an Expert Committee to be constituted by the State Government under Section 32 of the Act. Ultimately, if the Committee identifies the post of Vidhya Sahayak for a 100% blind candidate, then the State Government will not have any further say in the matter and will have to give effect to the object with which the Act, 1995 came to be enacted. [See : P. Rajaprabaharan (Minor) Rep. by father and natural guardian Mr. D. Pugazhenthi v. The Secretary to Government, Higher Education Department, Chennai (Writ Petition No.18217 of 2004 decided on 1st January 2005, Madras High Court)] 35 At this stage, I may refer to a decision of the Supreme Court in the case of Amita v. Union of India [2005 (13) SCC 721]. In the case before the Supreme Court, the writ petitioner (namely, Amita, a visually handicapped lady), pursuant to an advertisement at the instance of the banking services recruitment, Chennai, in the Employment Newspaper, inviting applications for the posts of Probationary Officer, in the Indian Page 23 of 40 HC-NIC Page 23 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT Overseas Bank applied for the said post. The requisite qualifications for eligibility were:
(a) A degree from a recognized University or any qualification recognized as equivalent by Government of India.
(b) Not below 21 years and above 30 years.
The writ petitioner fulfilled both the requirements. She sent her application along with the demand draft. While filling up the said application form, she mentioned that she was a blind candidate so that the Board could make adequate arrangement of a scribe for her during the entrance test. The application of the writ petitioner for writing the examination, as stated above, was returned with the following order:
"as we do not recruit blind candidates for the post of Probationary Officers, your application is rejected. "
The writ petitioner preferred a writ application under Article 32 of the Constitution of India. The Supreme Court, while disposing of the writ petition, observed as under:
"[5] Having heard the learned counsel for the parties and after going through the materials on record, we are of the view that the order passed by the Board rejecting the application of the writ petitioner on the aforesaid ground cannot be sustained. As noted hereinearlier, the requirements asked for by the Board for writing the examination for appointment to the post of Probationary officer in the bank were that a candidate shall not be less than 21 years and not above 30 years and that the candidate must possess a graduation degree. There is no dispute that the writ petitioner has satisfied the aforesaid two conditions. That apart, the writ petitioner although being a visually impaired lady had applied to write the examination for the post of probationary Officer of the bank as a general candidate and therefore we do not find any reason why such opportunity to write the examination should be refused by the Board. That apart, we finer that the writ petitioner had also applied to B. S. R. B. Bangalore for the same post. There she had mentioned the fact of her disability on the application form and in spite of informing the Board she Page 24 of 40 HC-NIC Page 24 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT had received the admit card for the entrance test which was held on 20th February 2000 and such grant of admit card would clearly show that the writ petitioner could not be thrown out on the ground that she was visually impaired lady, who could not be allowed to sit and write the examination for the post of Probationary Officer in the bank.
[6] This question is, however, concluded by a decision of this Court in National Federation of Blind v. Union Public Service Commission and Ors. which was rendered on a writ application filed for direction for permission for the visually impaired persons to compete and write civil services examination and also for being given preferential treatment in respect of the identified post. It is also important to mention that the said decision of this Court in National federation of Blind v. Union Public service Commission and Ors. also observed as follows:
"The question of giving preference to the handicapped in the matter of recruitment to the identified posts is a matter for the Government of India to decide. The matter is pending for decision with the Government of India for the last several years. While appreciating the handicapped persons we commend the Government of India to decide the question of providing preference/reservation to the handicapped in Group A and B posts as expeditiously as possible. "
[7] Again at Page 416 of the said decision of this Court it observed as follows:
"The list of category A and B posts identified as suitable for the visually handicapped by the committee includes number of posts which are filled as a result of the civil services examination. When there are posts to which 'blind and partially blind can be appointed, we see no ground to deprive them of their rights to compete for those posts along with other candidate belonging to general category. "
[8] Finally this Court directed the authorities to permit the visually impaired persons to compete the civil services examination. While appreciating the handicapped persons this Court commended the Government of India to decide the question of providing preference/reservation to the handicapped in Group A and B posts as expeditiously as possible. This Court in the aforesaid decision also observed that the list of jobs identified by the committee as suitable for being held for physically handicapped persons was not exhaustive and that the ministries/departments can further supplement the list based on their knowledge for jobs requirements, essential qualifications etc. [9] From the aforesaid decision of this Court, it would also be clear that Page 25 of 40 HC-NIC Page 25 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT the only restriction which can be spelt out from the ratio of that decision was whether the post in respect where of the petitioner sought consideration was (whether the post is) liable to be considered as totally unsuitable for visually handicapped person having regard to the nature of duties attached to the office/post. (Emphasis supplied) [10] From the aforesaid observations of this court, we are confident that the visually impaired candidate would be entitled to sit and write the examination for selection for the post of Probationary Officer in a bank but only restriction that would be standing in the way of the writ petitioner for selection is that the nature of duties attached to the office/post would be unsuitable for the visually impaired candidate. Accordingly, we are of the view that the order passed by the authorities rejecting the application of the writ petitioner on the ground shown in the order was erroneous, illegal and invalid in law and therefore cannot be sustained. In any view of the matter, so far as prayer for permitting the writ petitioner to sit and write the examination for the year in question of which rejection order was passed, in our view, the writ petition had rendered infructuous as it is now an admitted position that the examination for selection in the post of Probationary Officer in the bank of the year in question was held, result was subsequently published and the vacancies were duly filled in by making appointments on the basis of such selection of candidates. In view of the other reliefs prayed by the writ petitioner in the amended writ petition, the question now needs to be decided is whether the writ petitioner being a visually impaired lady would be allowed to sit and write the forthcoming examination for the post of Probationary Officer and can be appointed in such post, in view of nature of duties attached to a Probationary officer. As found herein earlier, it cannot be doubted that a visually impaired candidate is entitled to sit and write the Probationary Officer examination along with other general candidates where any post is not earmarked for handicapped persons, as a general candidate.
[11] Taking our findings, as made herein earlier to the extent that the writ petitioner was entitled to sit and write the examination for selection of Probationary Officer in the bank, let us now proceed to consider whether the writ petitioner would be entitled for appointment in the post of Probationary officer of the bank in question, if successful in the written examination in view of the nature of the job to be performed as Probationary Officer. Before we deal with this aspect of the matter, we may take into consideration yet another aspect of the matter, namely, whether denial of permission to the writ petitioner to sit and write the examination for the post of Probationary officer in the bank offends Articles 14 and 16 of the Constitution of India. Article 14 of the Constitution of India guarantees to every citizen of india the right to equality before the law or the equal protection of law. The first expression Page 26 of 40 HC-NIC Page 26 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT "equality before the law" which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst the equals the law should be equal and should be equally administered and that likes should be treated alike. Thus, what forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequal. Article 14 of the Constitution of India is both negative and positive right. Negative in the sense that no one can be discriminated against anybody and everyone should be treated as equals. The latter is the core and essence of right to equality and state has obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled as a human being. Therefore, Article 14 contemplates reasonableness in the State action, the absence of which would entail the violation of article 14 of the Constitution.
[12] In our view, and in view of the discussions made herein earlier, in the facts and circumstance of this case, Article 14 was infringed for denial of permission to the petitioner to sit and write the examination for selection of Probationary Officers. As noted herein earlier, writ petitioner was not allowed to sit for the competitive examination for the post of the bank Probationary Officer on the ground that she was visually impaired candidate although the advertisement in the newspaper did not disclose that a visually impaired candidate cannot be allowed to sit and write the examination as the nature and duty of the job were not suitable for the visually impaired candidate. It is not in dispute that the writ petitioner had qualified for the post of bank Probationary officer as per the advertisement. Statement has been made in the writ petition by the writ petitioner to the effect that the writ petitioner like other visually impaired persons can perfectly perform the job of a Probationary Officer. She also applied for the same post to the B. S. R. B. and received her admit card for the same. Thus, there is discrimination by the respondent no. 2 between the writ petitioner and persons who are substantially in similar circumstances or conditions. Here the writ petitioner was not allowed to sit for the entrance examination and hence was discriminated against the others who qualified for the same entrance examination. Therefore, the rejection of the application by the respondents besides the ground already stated hereinearlier, was not on reasonable grounds and was arbitrary and viblative of article 14 which is a fundamental right of every citizen to be treated equally. In this connection, it is stated by the writ petitioner that a visually impaired lady Ms. Nafisa is now functioning as a Probationary Officer in one of the Central Bank of India situated at Bombay. Under Article 16 of the Constitution the general rule laid down is that there should be equal opportunity for citizens in matters relating to "employment" or "appointment to any office" under the State. The expression "matter relating to employment or appointment" includes all Page 27 of 40 HC-NIC Page 27 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form part of the terms and conditions of such employment. Therefore, under Article 16 of the constitution what is guaranteed is the equal opportunity to all persons. This Clause accordingly does not prevent the State from laying down the requisite qualifications of recruitment for government service, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like other employers, government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. But this can only be done only on one condition that all applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary. In this case, in our view, there is violation of the right of the writ petitioner under article 16 (1) which provides for general rule, that there should be equal opportunity for citizens in matters relating to "employment" or "appointment to any office" under the state, matters incidental to employment both prior and subsequent to the employmerits which form part of the terms and conditions of such employment. In this case, the writ petitioner was in the first instance denied equal opportunity as given to other applicants from appearing in the entrance examination on the ground of disability which was not mentioned as a condition in the advertisement. That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for the post of Probationary Officer for selection in the post of Probationary Officer. The writ petitioner without asking for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of probationary Officer in the bank.
[13] At the risk of repetition, it may be reiterated that writ petitioner fulfilled all the conditions mentioned in the advertisement for the post. The primary object which is guaranteed by Article 16 (1) is equality of opportunity and that was violated by the Board by debarring the writ petitioner from appearing in the examination on the mere fact of disability which was not mentioned in the advertisement and which according to the writ petitioner is not an impediment for the post. We are therefore of the view that the action of the Board was arbitrary, baseless and was in violation of the right of the writ petitioner under Article 16 (1) of the Constitution. Further discussion on violation of articles 19 and 21 of the Constitution would not be necessary in view of the stand taken by the Page 28 of 40 HC-NIC Page 28 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT authorities in their written submissions, affidavits and rejoinder affidavits filed on different dates"
"[16] In view of the' above and in view of the assertions made by the Board in their counter affidavit regarding the capability of a blind person to serve the post of Probationary Officer in the banks, it was stated that the application of the writ petitioner who being a visually impaired candidate was rightly rejected by the Board. That apart, it was specifically stated in the counter affidavit that the nature of job of a Probationary Officer demands performance of various types of jobs under different departments like savings Bank and Current Account, other term deposits, collecting and clearing (inward and outward Bills) , Cash counter and recounting of currency notes and remitting excess cash balance. It was further asserted by the Board that various duties and responsibilities of an officer in the above departments were only illustrative and not exhaustive, and that it was expected of a Probationary Officer to make himself/herself available for the services of the bank as per the exigencies of service. Apart from that, the function of the bank has now become far more varied and diversified with the advent of liberalization of economy, so that the duties and functions of a bank officer have become more complicated, complex and difficult requiring greater alertness, presence of mind and maximum utilization of all his/her physical and mental facilities. In the counter affidavit, the Board also categorically has stated that the job of a Probationary Officer is not a specialist officer's job and a Probationary Officer is also transferred from one station to another during his/her tenure. The officer in Savings Bank Account/current account Department is required to verify the specimen signature of the customers while passing cheques for payment. At the same time the Probationary Officer concerned should also know the customers who come to bank on and off for transacting business and that it would not be possible for a blind officer to get to know about the customers and verify their signatures for daytoday banking transactions. According to the respondents, and considering all these patent impediments and constraints the Government of India did not identify the post of Probationary Officers for "blinds". Subsequently a written submission was filed by the respondent no. 1 Union of India in which it has been clearly stated that the scheme of reservation for physically handicapped persons has been in vogue in respect of group C and D employees in the Central government services. This policy has also been extended to Public Sector Banks. However, there was no such reservation in group B and A services of the Central Government. Accordingly, there was no reservation for physically handicapped persons including visually handicapped in any of the post under the officers category in Public sector Banks till the enactment of the Act 1995 which came into force from January 1996. The then Ministry of Welfare which is now renamed as Ministry of Social justice and Empowerment had identified various posts in group C and D in which reservation to Page 29 of 40 HC-NIC Page 29 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT physically handicapped candidates, namely, orthopaedically handicapped, hearing impaired and visually handicapped for recruitment should be provided on percentage basis. In spite of this stand, there was no reservation in Group A and B services at that stage. As noted herein earlier, it was brought to the notice of this court by the respondent no. 1 in their written submission that the post of General banking Officer could be identified as suitable for the following four categories under the orthopaedically handicapped category. a. BL Both legs affected but not arms b. OA One arm affected (R or L) c. OL One leg affected (R or L) d. MW Muscular weakness and limited physical endurance.
[17] From the written submission it would also be evident that after the introduction of reservation to persons with disabilities under the Act 1995, the Ministry of Social Justice and Empowerment had advised all the government Departments to provide reservation in the posts in Group A and B which were identified as suitable for a particular category of physically handicapped as per list provided by them earlier in 1996. A committee was set up by the Ministry of social Justice and Empowerment for fresh identification of various posts in Group A and b in which reservation should be provided to different categories of disabled persons. It was the further case of the Union of India in their written submission that the post of probationary Officers for which entrance tests are conducted by different BSRB including the Board are the posts which are identified as a suitable post only to orthopaedically handicapped persons of the description as noted above. Thus, neither visually handicapped nor hearing impaired was suitable for the post of General Banking Officers.
[18] According to the Board, the reason behind such identification was that Banking officers working generally in the branches and other public offices are required to verify the legal documents including cheques, drafts,bankers cheques etc. and such officers have to have close interactions with the public members, senior officials of the organization as well as various public institutions etc. For the aforesaid reason a person of visual deficiency may not prove to be effective and likely to commit losses to the institutions as well as public money."
Thus, the argument canvassed on behalf of the Board that as a Banking Officer working generally in the branches and other public offices is required to verify the legal documents including the cheques, drafts, banker cheques', etc and such officers have a close interaction with the public, senior officials of the organisation as well as various public institutions, etc. a policy decision was taken not to appoint a blind Page 30 of 40 HC-NIC Page 30 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT person was negatived by the Supreme Court in view of the specific stance taken by the Union of India that a visual impaired can compete in the same along with other general candidates and therefore, were entitled for being selected and appointed as the Probationary Officer of the Bank either from the general category or from the reserved category.
36 It is true that the decision of the Supreme Court in the case of Amita (supra), to a considerable extent, fortifies the submission of Mr. Pujara, but at the same time, in the said decision, Section 33 of the Act was not a subject matter of discussion unlike the case in hand.
37 The sad part of the story so far as the cases in hand is concerned is that the State Government even after almost 18 years from the date of intimation by the Union of India to constitute a expert committee for identification of suitable job in the government establishment has not constituted the same till this date.
38 Let me quote the letter dated 14th December 1999 of the Ministry of Social Justice and Empowerment, Government of India addressed to the Additional Chief Secretary, Social Welfare Department, Government of Gujarat:
"As you are aware, the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 for reservation of not less than 3% for the persons with disabilities in every establishment of which 1% each shall be reserved for persons suffering from (I) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy, in the posts identified for each disability. Necessary executive orders for reservation for 3% of posts in government establishments in all category of posts have already been issued by the Government of India.
2 A committee constituted in 1984 by this Ministry had already identified suitable posts, which could be manned by the persons with Page 31 of 40 HC-NIC Page 31 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT disabilities, in all groups of posts. We have circulated the list of identification of jobs to all our Central Ministries / Departments for implementing the provision of 3% reservation for persons with disabilities in Central govt. Establishments. Necessary instructions have also been issued by the DoPT that existing identification done in 1986 shall remain valid, till the same is modified by the Government on the recommendations of the Expert Committee constituted under Section 32 of the Act. A copy of each of the lists identified earlier are enclosed herewith.
3 Section 32 of the Act stipulates that appropriate Governments shall
(a) identify posts in the establishments, which can be reserved for the persons with disability and (b) at periodical intervals not exceeding three years, review the list of identified and update the list taking into consideration the developments in technology.
4 Keeping in view the above provision, the Ministry of SJ & E have constituted an Expert Committee vide order dated 2.7.99, to identify / review the posts in Group A, B, C and D to be reserved for the persons with disabilities in its Ministries / Departments and Public Sector Undertakings, under the Chairmanship of Additional Secretary of this Ministry. A copy of the Order is also enclosed herewith. Three SubCommittee have also been set by the Expert Committee for identification of jobs for each category of disability.
5 Section 32 of the Act also covers the States to constitute an Expert Committee for identification of suitable jobs in Govt. Establishments. If any identification has been done earlier in the Stte, the same may be kept in operation by issuing appropriate instructions to all concerned, till the same is modified by the Expert Committee of your State. I would therefore request you to undertake similar exercise, as required under the Section 32 of the Act urgently and inform us of the action taken at the earliest."
39 It appears that without seeking the opinion of the expert committee, the State Government has taken the decision that a 100% blind person is not suitable for the post of Teacher / Vidhya Sahayak. To this extent, the State Government should reconsider the issue by first appointing the committee and thereafter, seeking the opinion of the committee.
40 The rights of blind people? It is tempting to reply, no different from those of the sighted. They want a happy childhood; a good Page 32 of 40 HC-NIC Page 32 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT education; a satisfying job; a fulfilling family life; enjoyable leisure and social activities, and the chance to take a full part in public life. They deserve respect; esteem; affection and recognition that they are citizens with full civil and human rights.
41 Prejudice (intolerance or discrimination against a person or group) leads people to think that a blind person will always be less effective than his sighted counterpart. In such circumstances, a blind person is considered to be fortunate if he is able to find an employer who is ready to take a chance. Prejudice, not being founded on reason, cannot be removed by argument.
42 I find it appropriate to refer to the current human rights approach adopted by the Supreme Court to the visually handicapped persons. In Government of India v. Ravi Prakash Gupta and another, [2010 (7) SCC 626], the Supreme Court, considering a matter in which Shri Ravi Prakash Guptathe Respondent a visually handicapped person suffering with 100% blindness and selected in the civil services examinations conducted by the Union Public Service Commission in 2006 was denied appointment. It was held quoting from the National Federation of Blind v. Union Public Service Commission and others [1993 2 SCC 411], that the P.W.D. Act provides for integration of persons with disabilities into the social main stream and to lay down a strategy for comprehensive opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. Once it was found that the Respondent No. 1 was eligible for appointment in civil services after being declared successful, and placed at serial No. 5 in the displaced category of visually impaired candidates, he could not have been denied with the appointment. The failure of the Union of India to identify the posts of persons falling Page 33 of 40 HC-NIC Page 33 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT within the ambit of Section 33 of the Disabilities Act, 1995 could not have deprived the benefit of selections on the ground that there was no available vacancy in the said categories. It was held that the reservation provided under Section 33 of the PWD Act was not dependent upon the identification of posts suitable for appointment in such categories. The statutory reservation in pursuance to the enabling provisions in the PWD Act cannot be deferred indefinitely for bureaucratic action. The Supreme Court held that the identification of posts was a ministerial job and that the statutory reservations should not await the ministerial actions.
43 In Syed BashirUdDin Qadri v. Nazir Ahmed Shah and others [2010 (3) SCC 603], the Supreme Court, considering a matter in which the services of the Petitioner as a teacher were terminated on account of his suffering with cerebral palsy which made him difficult to write on the black board, held the decision to be violative of Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998. It was held that accepting the fact, that the Appellant is a victim of cerebral palsy, which impairs movement of limbs and also speech, there is nothing on record to show that the Appellant had not been performing his duties efficiently and with dedication. On the other hand, his performance as a teacher reflected in exceptionally good results that he achieved in the classes taught by him. The mere fact that the appellant could not express himself properly when he personally appeared before the High Court has to be seen in the context that his speech faculty must have worsened further on account of nervousness which he might have experienced while answering questions before the High Court. Intimidating atmosphere in the High Court might have triggered a reaction which made it difficult for him to respond to the questions put to him. The Committee constituted to assess his Page 34 of 40 HC-NIC Page 34 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT performance as a teacher notwithstanding his disability had formed a favourable impression about him.
44 The editorial note to the judgment gives an example of the persons, who have in spite of a severe disability contributed to the society. Stephen William Hawkinga British theoretical physicist is a worldrenowned Scientist with a career span of over 40 years. He has a neuromuscular dystrophy that is related to the Amyotrophic Lateral Sclerosis (ALS), a condition which has progressed over the years and has left him almost completely paralysed. He has overcome the disability, to be one of the foremost Scientists in the world and is an academic celebrity and Honorary Fellow of the royal Society of Arts, a lifetime member of the Pontifical Academy of Sciences and was awarded the Presidential Medal of Freedom, the highest civilian award in the United States.
45 In a very recent judgment of the Supreme Court in the case of Rajeev Kumar Gupta and others v. Union of India [Writ Petition (Civil) No.521 of 2008 decided on 30th June 2016], the Supreme Court considered the issue of legality of denial by the impugned memoranda of the statutory benefit of 3% reservation in the IDENTIFIED POSTS falling in Groups 'A' and 'B'. In the said matter, the petitioner contended that such denial violated the State's obligation under Sections 32 and 33 of the 1995 Act and thereby, subverted the object of the Act enacted by the Parliament inter alia to secure opportunities for full participation of the P.W.D. in the matter of employment. I may quote paras 12, 13, 22, 23, and 24 as under:
"12. The policy of the State w.r.t. the issue on hand is regulated by the Page 35 of 40 HC-NIC Page 35 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT 1995 Act. It authorises (under Section 32) the appropriate Government to identify the posts suitable to be filled up by PWD. The Government of India has exercised the power and identified the posts vide the NOTIFICATION. The NOTIFICATION includes some of the posts in Group A and Group B. 13 For some of these IDENTIFIED POSTS in Group A and Group B, the mode of recruitment is only through promotions. The purpose underlying the statutory exercise of identification under Section 32 of the 1995 Act would be negated if reservation is denied to those IDENTIFIED POSTS by stipulating that either all or some of such posts are to be filled up only through the mode of promotion. It is demonstrated before us that PWD as a class are disentitled to some of the IDENTIFIED POSTS in Groups A and Group B because of the impugned memoranda and the relevant regulations, under which the only mode of appointment to those IDENTIFIED POSTS is through promotion. Once posts are identified under Section 32, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. It would be a device to defraud PWD of the statutory benefit under Section 33 of the 1995 Act."
"22. The 1995 Act was enacted to fulfill India's obligations under the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region'. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress. The intent is to turn PWD into 'agents of their own destiny'. PWD are not and cannot be equated with backward classes contemplated under Article 16(4). May be, certain factors are common to both backward classes and PWD such as social attitudes and historical neglect etc.
23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act.
24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by Page 36 of 40 HC-NIC Page 36 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT the State for filling up of the said post."
46 The only purpose of referring to and relying upon the decision in the case of Rajeev Kumar Gupta (supra) is to show that under Section 32 of the Act, the posts are to be identified and such identification has to be carried out by the specially constituted committee, which unfortunately is not in existence so far as the State of Gujarat is concerned.
47 I could lay my hands on one article published in the National Federation of the Blind Magazine for Parents and Teachers of Blind Children. It is in the form of questions and answers. The article, reprinted from the Spring/Summer, 1993 issue of The Blind Educator, a publication of the National Association of Blind Educators, answers many of the questions, more particularly, how the Blind Teachers can do their jobs. Dr. Norman D. Gardner, Ph.D., a Professor in the Department of Finance and Economics, Uttah Valley State College, Orem Uttah, United States, has answered the questions as under:
"Q: How do blind teachers take attendance and grade papers? A: A blind teacher can take the roll from Brailled cards, each of which has a student's name on it. If a student is absent the card can be turned over for marking in Braille at a later time. Many times it is very useful for students to exchange papers for correction; however, I do employ readers who correct under my direction.
Q: Would it cost a district more to hire a blind person because of liability? A: No. Insurance rates are determined by the history of the organization being insured. The presence of a blind teacher does not alter that history nor is there actuarial evidence on which to base higher rates.
Q: How do blind teachers handle cafeteria, yard, and bus duty? A: Blind educators walk around the yard and eating area. Also, there are Page 37 of 40 HC-NIC Page 37 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT always many students who are very willing to tell what is going on.
Q: How do blind teachers handle the issue of sighted students raising their hand in class?
A: As a student raises a hand the student speaks his or her name, then the blind teacher can ask the student to respond.
Q: How do blind educators teach handwriting in the early grades? A: I would have my reader tell me about the handwriting of each student, and I would make Braille notes accordingly. I use yarn letters which are glued to heavy paper which I use to show the children how to form the letters.
Q: How do blind educators acquire teaching materials in Braille? A: Some books are in Braille but when they are not, I have a Braille transcribing group produce the books I would need.
Q: How does a blind person get to and from work?
A: It is simply the blind teacher's responsibility to get anywhere. Public transportation, car pooling, and walking are just a few modes of transportation.
Q: What does a blind educator do in case of a fire?
A: Students have monthly fire drills so everyone knows what to do and where to go. However, I will count the students as they leave and again take roll when we reach a safe place.
Q: Does a blind teacher make sighted students uneasy? A: Sighted students are curious and we always answer their questions honestly. The first day of school the blind teacher explains the procedure for raising hands, how the teacher reads and writes, corrects papers, and so on.
Q: Can blind educators manage "difficult" students? A: Students try to take advantage of anyone who has a presumed weakness and blindness might be classed that way, but only for a very, very short time.Page 38 of 40
HC-NIC Page 38 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT Q: Can blind teachers teach subjects such as art and physical education? A: Blind people are as interested in art and physical education as anyone and can teach any subject."
48 Thus, in my view, as on date, what is important is to ensure that the State Government constitutes an Expert Committee under the provisions of Section 32 of the Act in order to identify the suitable posts for persons with disabilities to be reserved for in the establishment of the 'State'. If this exercise would have been undertaken way back in the year 1999, today the position would have been more clear. It seems without the constitution of such committee and in the absence of the opinion of such committee, the State Government, on its own, has taken the decision that a 100% blind person is not at all suitable for the post of 'Teacher' as such a person would not be in a position to control the students. In my view, the State Government should not have rushed to such conclusion without even giving an opportunity or observing their work as the Vidhya Sahayaks. Ultimately, if the Expert Committee takes the view, while identifying the posts that a blind person is not suitable for the post of 'Teacher', then it is altogether a different matter subject to further adjudication if necessary by a Court of law.
49 In view of the above, I dispose of all the writ applications without disturbing the impugned Notification for the present, but at the same time, I direct the State Government to forthwith see to it that an Expert Committee is constituted in accordance with the provisions of Section 32 of the Act. I expect the State Government to constitute such committee within a period of four weeks from the date of receipt of this order. Once such committee is constituted, the State Government shall ask the Committee to identify the posts and, more particularly, seek opinion so far as the post of Vidhya Sahayak is concerned. Thereafter, if necessary, Page 39 of 40 HC-NIC Page 39 of 40 Created On Sat Oct 22 01:38:39 IST 2016 C/SCA/17683/2014 CAV JUDGMENT the State Government shall take with an appropriate decision in tune with the opinion and recommendations of the committee identifying the posts. I take notice of the fact that the Ministry of Social Justice and Empowerment of Government of India, in pursuance of the provisions of Section 32 of the Act constituted an Expert Committee on 2nd July 1999 under the Chairmanship of the Additional Secretary, Ministry of Social Justice and Empowerment. The committee has been constituted to review / update the list of jobs identified for the persons with disabilities. It provides the list of the identified jobs in addition to and not in derogation of the earlier list published by the Ministry of Personnel Public Grievances and Pensions, Department of Personnel & Training, Government of India, in the year 1986. This is done in accordance with Section 72 of the Persons with Disabilities Act, 1995. The revised lists of posts identified in Groups 'A', 'B', 'C' and 'D' to be reserved for the persons with visual, hearing and locomotor disabilities includes a Teacher and that too a blind Teacher. Again, at the cost of repetition, I state that in the schools run and managed by the Central Government, there are blind Teachers working as on date.
50 In view of the order passed in the main matters, the connected Civil Application is disposed of.
51 The Registry shall notify the matters, after a period of two months only for the purpose of reporting compliance of the directions issued by this Court in this judgment.
(J.B.PARDIWALA, J.) chandresh Page 40 of 40 HC-NIC Page 40 of 40 Created On Sat Oct 22 01:38:39 IST 2016