Karnataka High Court
The Secretary, State Of Karnataka, ... vs Nagaveni M.C. D/O. Chikkananjundappa ... on 7 June, 2007
Equivalent citations: ILR2007KAR3519, 2008(1)KARLJ53
Author: Ashok B. Hinchigeri
Bench: Ashok B. Hinchigeri
JUDGMENT Ashok B. Hinchigeri, J.
1. This appeal is directed against the order dt 20-12-2005 passed by the learned Single Judge in W.P.No. 25190/2005.
2. The brief facts of the case are that the first respondent Smt M.C. Nagaveni, a physically challenged (handicapped) person filed a complaint before the second respondent - Commissioner for persons with disabilities seeking his intervention in the matter of implementation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called Disabilities Act, 1995). As per the notifications issued and the rules framed under the Disabilities Act, 1995, 5% of posts in Group 'C' and 'D' are set apart for persons with disabilities (PwD.s). It was pointed out in the proceedings before the Commissioner that 4767 posts of teachers were called for. 5% of the said number comes to 238. However the total number of seats reserved for PwD.s in the recruitment in question aggregated only to 72 which falls far short of the requirement The second respondent - Commissioner therefore passed the order dt. 18-11-2005 directing the appellants to withhold the recruitment process and to implement 5% reservation for PwD.s in keeping with the orders of the State Government and the orders of the Hon'ble Supreme Court Further he directed that the division of posts based on subjectwise restriction at the District level should be relooked and amended as it dilutes the interpretation of the Government Order in respect of 5% reservation for PwD.s. He further directed the withholding of the recruitment process for the posts of primary school teachers for the year 2005-2006 in the entire State of Karnataka and withholding of the Common Entrance Test, which was scheduled to be held on 20-11-2005, till the implementation of the Government Order in the matter of 5% reservation of posts for the PWDs. This order was challenged by the State of Karnataka and its Officers before the learned Single Judge.
3. The learned Single Judge disposed of the writ petition with a direction, inter-alia, to the State, its functionaries and its concerned authorities to re-work the reservation for the disabled persons in the matter of recruitment to the posts of primary school teachers by adopting appropriate method in accordance with law and the provisions of Disabilities Act, 1995 and the Karnataka Civil Service (General Recruitment) Rules, 1977.
4. Aggrieved by the aforesaid order of the learned Single Judge, this appeal is presented. Sri C.S. Patil, the learned Additional Government Advocate has urged the following contentions:
a) As per the reservation policy of the State Government, the posts have to be filled up following the running roaster system. In the running roaster, the PwD.s. would get the slots at Nos. 19, 39, 59, 79 and 99. Therefore, the first five vacancies cannot be earmarked for the PwD.s. The PwD.s. have to wait till their allotted slots in the 100 points running roster are reached.
b) The 1st respondent has not challenged the recruitment rules contained in Karnataka Education Department Service (Department of Public Instructions) (Recruitment) Amendment Rules, 2001. Thus the 1st respondent is not entitled to any relief at the hands of the 2nd respondent, which would have effect of diluting or modifying the Rules and the notification.
c) In the running roster system, the horizontal reservation of 5% for PWDs cannot be given in a single recruitment If the roster point reservation is complied with and still there is any shortfall, the same would be made good in the next recruitment
d) The districtwise and blockwise selection coupled with language-wise selection do not enable the filling up of 5% posts for PwD.s in a single recruitment The learned Single Judge has not taken into account this aspect of the matter.
e) To buttress his submissions, Sri Patil has relied upon the Division Bench decision of this Court in the case of State of Karnataka and Anr. v. Harish and Ors. Reported in 1982(2) KLJ 345. The relevant portions of the said judgment are extracted herein below:
17. All that Rule 9 of the General Recruitment Rules provides is that if rules of recruitment in respect of any service or post, prescribe direct recruitment also, one-tenth of the vacancies set apart from such direct recruitment shall be reserved for Ex-Military personnel. The Rule does not specially provide that where there is a common or combined direct recruitment for different categories of posts in several services or Departments the number of posts reserved for Ex-Military Personel should be reckoned on the basis of total number of posts in all services or departments for which such combined direct recruitment is made. In the absence of such specific provision, it is open to the government to give effect to such reservation in any reasonable manner. If the roster system in respect of each category of posts in each service or department, is a reasonable method of giving effect to the reservation for several categories of Backward Classes, there is no reason to hold that such a roster system is not a reasonable method for giving effect to the reservation for Ex-Military personnel.
20. As it is permissible for the State Government and the Commission to adopt a roster system for giving effect to the reservation for Ex-Military personnel, the direction given by the learned single Judge to take into account the number of posts in the respective categories which were not taken into account for the purposes of reservation in the earlier recruitment to those cadres, is, in our opinion, redundant.
f) Nextly Sri Patil has also drawn our attention to the judgment of the Hon'ble Supreme Court in the case of India Sawhney v. Union of India and Ors. Reported in . The relevant portion is extracted herein below:
95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal Reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similary, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains -and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be - indeed cannot be - applicable to exemptions, concessions or relaxations, if any, provided to 'Backward Class of Citizens' under Article 16(4).
5. Per contra, Sri Jagadish Shastry, learned Counsel for the 1st respondent submits that when the Rules prescribe that 5% of posts are to be set apart far PwD.s, the State Government and its functionaries have no option but to recruit 5% of PwDs. of the total number of posts. In support of his submission, he has referred to the judgment of this Court in the case of S.S. Annegowda v. Kar.P.S.C. and Ors. reported in 1980(2) KLJ 217. He submits that the interests of PwD.s. would not be safeguarded, unless the State Government itself is treated as one unit for the purpose of recruitment. Nextly he has also brought to our notice the judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Gupta and Ors. v. State of U P and Ors. , wherein it is held that the preparation of merit list at the district level instead of State level is violative of Articles 15 and 16 of the Constitution of India. The relevant portion of the said judgment is extracted herein below:
17. Although a feeble attempt was made by the counsel on behalf of the State respondents that different districts have different dialects and, therefore, it would be necessary to restrict the selection to candidates conversant and fluent in those regional dialects, we are not satisfied that adequate material was presented to the High Court on the basis of which this distinction could have been justified. In the first place, there was no material to indicate that dialects vary from district to district Consequently, there was no material to indicate that a candidate from one district was not likely to be familiar with the dialect of another district for which he applied for training. There was also no material placed on record to indicate that training was to be in local dialect for the local school only. Finally, if the emphasis is really on the regional dialect, nothing prevented the State Government from making the knowledge of a specified regional dialect as preferential criterion for recruitment For these reasons, we agree with the view taken by the Division Bench on this issue and hold that restriction of the selection and preparation of merit list at the district level was arbitrary and violative of Articles 15(1) and 16(2) of the Constitution.
6. Sri Shastry lastly cites the judgment of the Hon'ble Supreme Court in the case of Radhey Shyam Singh v. Union of India , wherein it is held that it: is needless to emphasise that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones.
7. Sri Shastry prays for dismissal of this appeal.
8. In his rejoinder submissions, Sri Patil, learned Additional Government Advocate submits that none of the judgments cited on behalf of the 1st respondent have any application for the facts of the present case.
9. The submissions of the learned Counsel have received our anxious consideration. Our scrutiny of the learned Single Judge's order reveals that it is a well considered order touching upon all the aspects of the matter in a comprehensive manner. The learned Single Judge directed the State Government and its functionaries to comply with 5% reservation requirement while filling up the posts of primary school teachers. For passing this order, the learned Single Judge cannot be held to be at fault The 1st respondent complains before the 2nd respondent highlighting the lack of sympathetic consideration for PwD.s on the part of the State Government The State Government is liable to be commanded by a direction to carry out its statutory obligations under Sections 32 and 33 of the Disabilities Act, 1995 within a definite time-frame.
10. It is also worthwhile to refer to the illuminating judgment of the Delhi High in the case of in the case of Pushkar Singh and Ors. v. University of Delhi and Ors. . The relevant paragraphs of the said judgment are extracted herein below:
11. The narration of the aforesaid events show how callous approach is shown by the respondents and nothing concrete has happened even when the University took the decision far reserving posts for visually and orthopaedically handicapped persons more than six years ago and the Parliament passed law to this effect more than 4 years ago. When it comes to showing sympathies with disabled persons, we come out with ail kinds of slogans or catchwords. We admit that social discrimination is the most significant problem experienced by people with disabilities and we should eradicate it. We recognise that it is not tragic to live in a wheel-chair, disability only becomes a tragedy when society fails to provide the things one needs to had one's life and that the design of our physical environment should reflect our understanding of the real needs of the disabled. We realise the necessity of creating a more accessible and a more caring society for people with disabilities. But when it comes to real action, we forget that people with disabilities have the right to be both equal and different In fact this case amply proves that physical and attitudinal barriers are more limiting than limbs that are paralysed and that other people's attitudes not one's own disability, whether it came from birth or later, are the bigger barriers.
11. In the case of Amita v. Union of India and Anr. , the Hon'ble Supreme Court has held that it is the State's obligation to take necessary steps so that every individual is given equal respect and treatment, to which he is entitled as a human being. When a disabled person meets the eligibility criteria for being appointed as a teacher in all other respects, he or she cannot be excluded on the ground of his or her disability. The Hon'ble Supreme Court has declared that excluding an otherwise eligible candidate on the ground of physical disability would amount to the violation of the constitutional scheme.
12. The Apex Court in the case of Daya Ram Trtpathi v. State of UP and Anr. reported in 1986(4) SLR 151 has held that the Government cannot create needless hurdles in accommodating PwD.s in suitable posts.
13. The Delhi High Court in the case of Ravi Kumar Arora v. Union of India and Anr. report in ILR (2004) I Delhi 592 has this to say: "the ingenuity of bureaucratic system can set at naught implementation of the best-intended legislation."
14. The Directive Principles of State Policy go a long way in safeguarding the rights of the PwD.s. Articles 46 and 47 of the Constitution have the provisions for raising the standards of living, education and development of PwD.s.
15. The Hon'ble Supreme Court has taken the considered view that the reservation in favour of PwD.s is horizontal cutting across all the characters in recruitment including general/open category following what the Supreme Court has said. We have no hesitation in holding that if 5% posts are reserved for PwD.s in each category like SC, STs., Group-1, 2A, 2B, 3A, 3B and general category. We notice with pain and concern that out of 4767 posts, only 72 posts have gone to the PWDs. At this juncture, Sri Patil, learned Addl. Govt. Adv. submits that the figure of 72 as reflected in the learned Single Judge's order is not correct On the other hand, it is 147. Be it 72 or 147, the figure falls far short of reservation requirement 5% of 4767 comes to 238. So long as 238 PwD.s. are not recruited for primary school teachers' posts in question, it does not amount to full compliance with the reservation requirement for the PwD.s.
16. At this juncture, it is necessary to advert to the subsequent development i.e. after passing of the learned Single Judge's order, the State Government has preferred this appeal and obtained an interim order of stay of the operation of the learned Single Judge's order. During the pendency of this writ appeal and more particularly when the interim order was operating, the recruitment process is completed. We directed Sri Patil to find out whether the appointment orders are issued, if issued, whether they contained the rider in the appointment order that the appointment is subject to outcome of the writ appeal. On instructions, he submits that the appointment orders are issued to all the selected candidates. He further submits that they have reported themselves for duty and they have been discharging their duties. He submits that the appointment orders do not contain the clause or rider in the appointment order that the appointment is subject to outcome of this writ appeal
17. We are fully convinced with the correctness of the directions issued by the 2nd respondent - Commissioner and the learned Single Judge. Taking into account the subsequent event, we are not inclined to quash the appointment of the candidates for the posts in question. The propriety required that the appellant - State Government ought to have included the rider in the appointment order. For the best reasons known to themselves, the appellants have not done this If the appellants had only done this, the selected candidates would know where they stand. We do not know, why the State Government did not disclose the state of affairs to the selected candidates. As the State Government has not included such a rider, none of the selected candidates have filed any impleading application before us. It may not be proper for the Court to pass any order, which would affect the interests of the parties, who are not before the Court
18. To soften the rigours of transition and to do full justice to the PwD.s. and to give effect to the reservation requirement of 5% in the letter and spirit, we are of the considered view that the need of the hour is to direct the appellants to hold a special recruitment for the PwD.s. exclusively to make good the shortfall in the recruitment in question.
19. In issuing this direction, we also fortified by an order of the Hon'ble Supreme Court in SLP No. 1883/2006, wherein the Hon'ble Supreme Court has taken the view that the posts earmarked for the handicapped should be protected as far as possible.
20. The order dated 22.8.2006 of this Court refers to the learned Government Advocated submission that the further vacancies of primary school teachers have arisen in the State Government during the year 2006-2007; as of now there are 13000 vacancies of primary school teachers.
21. Following the Hon'ble Supreme Courts judgment in Rajesh Kumar Gupta's case (supra), we hold that making the selection Districtwise and Blockwise are violative of Article 15(1) and 16(2) of the Constitution of India. If the argument advanced on behalf of the appellants that the PwD.s have to wait till the allotted slots are reached in the running roaster system is accepted, it would result in the postponement, and in some cases denial of the recruitment for PwD.s We find the other argument on behalf of the appellants that the recruitment in question is strictly in accordance with Karnataka Education Department Service (Department of Public Instructions) (Recruitment) Amendment Rules, 2001 is equally untenable. All the Rules and the notifications are to be brought in confirmity with the Disabilities Act, 1995.
22 In the result, we dismiss this appeal subject to the direction that the appellant shall hold a special recruitment exclusively for the FWDs. to fill up the posts of primary school teachers and complete the said process within four months from the date of issuance of certified copy of today's order. Whatever is the shortfall or backlog the same has to be made good in the special recruitment as directed herein. For the sake of clarity, we reiterate that PwD.s are entitled to 238 posts (9% of 4767 posts of primary school teachers).
23. No order as to costs.