Karnataka High Court
Smt Nagamma H N vs State Of Karnataka on 12 July, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 12TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.16920 OF 2013 (S, RES)
BETWEEN:
Smt. Nagamma H.N.
W/o H.N.Venkatesh
Aged about 36 years
Residing at T.Hosur Village
TAlagavara Post, Chintamani Taluk
Chikkaballapur District
...Petitioner
(By Shri. A.S.Lingaraju, Advocate.)
AND:
1. State of Karnataka
Represented by its Secretary to
Women and Child Welfare Department,
M.S.Building, Bangalore 560 001.
2. Director
Women and Child Development Department
M.S.Building, Bangalore 560 001.
3. Deputy Director
Women and Child Welfare Department,
Chikballapur District,
Chikkaballapur 562 101.
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4. Child Development Planning Officer
Chintamani Taluk
Chikaballapur district 563 125.
5. Smt Bharathi .N
W/o Amaranatha H.C,
Hosur Village, Mastenahalli Hobli
Takagavaara Post
Chintamani Taluk,
Chikkaballapur District 562 101.
...Respondents
(by Shri Vigneshwar S. Shastri Advocate for R5)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the impugned order dt.
25.03.13 vide Annexure -A the legitimate demands of the
petitioner in accordance with law; and etc.,
This writ Petition coming on for preliminary hearing, this
day, the Court made the following:
ORDER
With the consent of the both the learned counsel appearing for the parties, the matter is taken up for final hearing and disposed of by this order.
2. It is the case of the petitioner that she got appointed as Anganawadi Assistant pursuant to the notification dated 20th August 2011 and as such she has been working since the date of 3 appointment. Under the said circumstances, the fifth respondent herein filed writ petition No.23267 of 2012 challenging the order of appointment of the petitioner on the ground that the petitioner-herein being physically handicapped, she is disqualified to submit application for consideration of her case for selection as Anganawadi Assistant. In the notification dated 20th August 2011, at item No.5, the condition stipulated therein is it debars physically handicapped person from making application for the said post. In Writ petition No.23267 (supra) filed by the fifth respondent, a direction was sought to the respondents to consider the representation of the petitioner therein as per Annexure-F dated 27th April 2012. By its order dated 11th October 2012 the writ petition was disposed of directing the respondent to consider the representation dated 27th April 2012 made by the fifth respondent after taking decision for considering the case of the fifth respondent for suitable orders. Thereafter, an application was made by the petitioner in the said petition seeking direction to dispose of the application within a particular time. The said application was disposed of on 14th March 2013 in which direction was issued to 4 the respondents to dispose of the application within a period of two months from the date of receipt of a copy of the said order. After re-consideration, the case of the petitioner in the writ petition referred to above has been considered and the petitioner herein was terminated as she is a physically handicapped person. The directions issued in writ petition No.23267 of 2012 was to consider the petitioner's case after considering the records and also physical verification of respondent No.5 therein and order should be passed. However, there was no enquiry or physical verification and contrary to the direction issued, a termination order has been passed on 25th March 2013 as per Annexure-A.
3. The learned counsel submits that the impugned order of termination is arbitrary and contrary to the judgment of this Court in Writ petition referred to above. The termination has been challenged on the following grounds:
Firstly, he submits that in the notification issued on 20th August 2011 calling for applications to the post of Anganawadi Assistant there are no conditions or restrictions for making 5 application from among physical handicapped persons. Secondly, preventing applications from the physically handicapped is arbitrary and violation of constitutional provisions, since persons cannot be discriminated for consideration of appointment either under Article 15 or 16 of the Constitution of India. Further, by relying upon the Appendix to Order No.MAMAI 162 ICD 2011, Bangalore dated 10th June 2011 which is produced as Annexure-R1 to the petition, the learned counsel submits that, in fact, it permits the physically handicapped persons and exception is only to dumb, deaf, blind and mentally challenged persons for making application and persons who have disability of less than 60% are eligible to make applications. When such being the case as an encouragement for sustainability of physically handicapped persons, the impugned action of respondent in issuing termination order Annexure-A is contrary and violation of provisions of law, is the submission of the learned counsel. Referring to the petitioner who is present before the Court, the learned counsel submits that the petitioner is having only 10% 6 disability to the limb which is negligible and except that she works like any other normal women.
4. The learned counsel appearing for the fifth respondent files statement of objections. He submits that the order of termination is proper and is not contrary to provisions of law, much less, Articles 15 and 16 of the Constitution of India. While referring to Annexure-R1, the learned counsel submits that the said Annexure is not applicable to the post of Anganawadi Assistant, for which the petitioner has made the application. Hence, the same cannot be relied upon by the petitioner. His second submission is that the petitioner is drawing pension given for the physically handicapped and that fact has been suppressed by the petitioner while making application. He submits that fifth respondent also belongs to Scheduled Caste and she is entitled and accordingly her case has been considered and she has been appointed in place of the petitioner as per order dated 18th June 2012 vide Annexrue-R7 and the said appointment has not been challenged by the petitioner and since then the fifth respondent is working in the said post. Further, 7 the learned counsel submits that the nature of appointment is such that it could be handled only by a able-bodied person and since the petitioner is physically handicapped person, she cannot be a qualified person fit to make application and also for consideration of her appointment.
5. The learned Government Advocate supports the action of the respondent in terminating the services of the petitioner and selecting the fifth respondent. He also submits that Annexure-R1, produced by the contesting respondent pertains only to Anganawadi Workers, whereas the notification produced by the petitioner pertains to Anganawadi Assistant under which the petitioner has submitted her application. He submits that at the threshold itself since it does not allow the physically handicapped persons to make application and that the petitioner has suppressed about the handicap and also about getting pension from the Government. Hence he submits that the petition is not maintainable since the petitioner has not challenged condition No.5 in the notification, which requires only able-bodied persons to make application.
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6. Upon hearing the learned counsel for the parties and the learned Government Advocate, the question that arises for consideration in this petition is whether the petitioner suffers disqualification for making application and also she being considered to the post of Anganawadi Assistant.
7. It is not in dispute that the applications made are to be considered by the respondent authority as per the conditions, qualifications and eligibility as per Notification No.MAMAI 162 ICD 2011(1) dated 10th June 2011. Item No.9 of the said Notification debars physically challenged person from submitting an application. The reasons assigned therein is that the Anganawadi Assistants are required to cook, clean the premises and also they have to bring the children to the Centre and have to maintain the Centre during the absence of Anganawadi Worker. The said condition clearly states that post of Anganawadi Assistants should be held by a capable person and not a physically challenged person. The condition is silent as to the percentage of handicap or disability for the purpose of holding the said post. Merely because a person suffers a few 9 percent disability to the body, the same cannot be termed as disqualification to carry out the responsibility as an Anganawadi Assistant. The petitioner is before the Court and after seeing the petitioner, I do not find any apparent disability in her except the deformity in her right leg that too to the extent of 10%, which is negligible and could in no way be termed as an handicap for the purpose of holding the post of Anganawadi Assistant. In fact, it is the duty of the State to provide appointment of this nature only to the persons from depressed classes and also to the physically challenged. Notification MAMAI 162 ICD 2011 Bangalore dated 10th June 2011-Annexure-R1 produced by the respondent wherein it prescribes the conditions for appointment to the post of Anganawadi workers, it permits the physically handicapped persons also to make applications, and further item No.4(a) prescribes that the physically handicapped persons, ex- devadasis and destitute children who stayed in Government hostels, displaced persons, deserted wives, Scheduled Caste and Scheduled Tribes are entitled for five bonus marks. Clause (iv) of Item No.4 of the said Notification prevents dumb, deaf, blind and mentally challenged from making application to the said 10 posts and further it clarifies that persons with disability of less than 60% could make application for such posts. These two differences are made to the post of "Anganawadi Assistants" and "Anganawadi Teachers". It is a known fact that the job of a Teacher is to teach the students within the four corners whereas Anganawadi Assistants have got to do physical work viz. to bring the children from their homes and to take them back, clean the centres, to do cooking, etc. for which the physically challenged persons may not be suitable. But preventing all the physically challenged from making application is per se violation of Article 14 of the Constitution of India. In the notification, it is not clarified as to whether the physically challenged persons, irrespective of percentage of disability, are suitable to the post or not. Persons with 10-15% disability are sometimes more capable than a normal person. Under these circumstances, the difference stipulated in item No.9 in Notification Annexure-D dated 10th June 2011, though is not challenged by the petitioner, the same is taken note of and the same is held as violation of provisions of law, arbitrary and, more particularly, violation of Article 14 of the Constitution of India.
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8. Physically challenged persons, unless they are dumb, deaf and blind and have disability of more than 60%, or a disability which does not enable the person to discharge the functions like cooking, cleaning and bringing the children to the Centre and also who cannot be of any help in case of the shifting the centre from one place to another, in all other circumstances, they cannot be prevented from submitting their applications. It is for the authorities or the trustees under these schemes to physically verify or get it clarified from the competent agencies as to whether such person is capable to hold the post of Anganawadi Assistant or not. Without doing so, just issuing notification that "physically challenged persons are not eligible to submit their application" cannot be accepted as a ground, more particularly, in the present case.
9. In the earlier writ petition, where the contesting respondent No.5 herein was the petitioner, a direction was issued to take an appropriate decision after considering the records and also physical verification of the respondent No.5 therein. But no materials have been produced to that effect and 12 nothing has been recorded as to whether the respondents have made physical verification of the petitioner herein and whether the person cannot discharge her duties or not, has not been decided. When such an effort is not made, I suspect whether really physically challenged persons are being prohibited or is it merely a non-application of mind. In the instant case, since the respondents have not applied their mind or not verified the petitioner's condition to discharge function, it cannot be termed that the physically challenged person cannot discharge the function of an Anganawadi Assistant.
10. The submission of the learned Government Advocate that the conditions stipulated in item No.9 of the Notification Annexure-R1 dated 10th June 2011 which prevents the physically challenged from making applications, is not a good submission on behalf of the Government. The Government is like a next guardian to the physically handicapped and also the persons belonging to depressed classes. When such being the case, preventing the persons to submit their applications, without assessing their physical condition is again an illegality. 13
11. Under these circumstances, order Annexure-A dated 25th March 2013 terminating the services of the petitioner is illegal, arbitrary and is in violation of the order passed by this Court in Writ petition No.23267 of 2012 disposed of on 11th October 2012. Hence, the same is liable to be set aside and accordingly it is set aside. The petitioner is permitted to continue in the same post.
With these observations, the petition is allowed.
Sd/-
JUDGE lnn