Himachal Pradesh High Court
Court On Its Own Motion vs State Of H.P. And Others on 5 November, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWPIL No.: 103 of 2017 Reserved on: 04.10.2018 Date of Decision: November 5 ,2018 ______________________________________________________________________ Court on its own motion .....Petitioner.
Vs. State of H.P. and others .....Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. Dilip Sharma, Senior Advocate, with Mr. Arjun Lall, Advocate, as Amicus Curiae.
For the respondents: Mr.Ashok Sharma. Advocate General, with Mr.J.K. Verma, Mr. Ranjan Sharma, Ms.Ritta Goswami and Mr.Nand Lal Thakur, Additional Advocate Generals, for the respondent-State. Mr.J.L. Bhardwaj, Advocate, for respondent No.2.
Mr. Karan Parmar, Advocate, for respondent No. 5.
Mr. B.M. Chauhan, Advocate, for respondent No. 6.
Sanjay Karol, Judge This Court took suo motu cognizance of a letter petition addressed by a student, namely, Indu Kumari, daughter of Shri Durga Singh, resident of VPO Naini Khadd, Tehsil Bhatiyat, District Chamba, wherein she had highlighted the issue of denial of admission 1 Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 2
to her under 5% quota, as provided in Rights of Persons with .
Disabilities Act, 2016 by the Himachal Pradesh University. The contention of the letter petitioner was that she had applied for admission in M.A. (Political Science) in Himachal Pradesh University, Shimla under 5% quota reserved for disabled students under Section 32 of the Rights of Persons with Disabilities Act, 2016. However, admission was denied to her and when she inquired, she was informed that the respondent-University was providing only 3% reservation to the disabled students and that too, as per the provisions of the old Act, i.e., the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. As per letter petitioner, as the students intake in the concerned subject was 40, therefore, two seats were to be reserved for persons with disabilities in the Department of Political Science as per the 2016 Act, but ignoring the said provisions, only one seat had been reserved. It was on these basis that the letter petition was addressed to this Court.
2. While issuing notice on 11.08.2017, this Court had requested Mr. Arjun Lall, learned counsel, who was present in the Court, to assist as Amicus Curiae.
3. In the course of hearing of the matter on 22nd August, 2017, this Court had passed the following order:
"Issue pertains to the implementation of the provisions of Rights of Persons with ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 3 Disabilities Act, 2016 (hereinafter referred to as the Act).
.
Allegedly, Institutions imparting education
2. and/or training, within the State of Himachal Pradesh are not providing reservations for students, who are otherwise entitled for the benefit of the provisions under the Act. Section 32 of the Act mandates all Government institutions of higher education and other higher educational institutions, receiving aid from the Government, that not less than 5% of seats shall be reserved for persons with benchmark disabilities. Sub Section (r) of Section 2 defines "person with benchmark disability" and Sub Section (i) of Section 2 defines "establishment", which includes Government and private establishments.
3. Mr. J.K. Verma, learned Deputy Advocate General invites our attention to communication dated 31.7.2017 that of Director Empowerment for the SC, OBC, Minority and the Specially Abled, Himachal Pradesh, wherein all the departments of the Government have been "requested to implement the provisions of the Act".
4. Well, this, in our considered view, would not serve the purpose. There is nothing on record to establish as to whether the Government has issued any direction, directing the institutions of higher education, Government or Private, which are otherwise receiving aid ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 4 from the Government, for making reservation for persons with benchmark disabilities. It is true .
that respective educational institutions are not before us, but then it is the responsibility of the Government to ensure complete and proper implementation of the provisions of the Act. It is an obligation, coupled with a duty, cast upon the Government to ensure compliance of the statutory provisions. Mere "request" has not helped the situation anyone bit.
5. Mr. Arjun K. Lall, learned Amicus Curiae has invited our attention to the several decisions rendered on the issue, not only by this Court in CWPIL No. 30 of 2011, titled as Court on its own motion v. State of Himachal Pradesh & others; CWP No. 192 of 2004, titled as Ankush Dass Sood v. State of H.P. & Others, as also the observations made by the Hon'ble Apex Court in Sunanda Bhandare Foundation Vs. Union of India and another, 2017 SCC OnLine SC 481, wherein it stands observed that statute operates in a broad spectrum and stress is laid to protect the rights and provide punishment for non-
implementation of statutory obligations.
6. Before we issue any further directions with regard to the implementation of the provisions of the Act, we direct the Chief Secretary to the Government of Himachal Pradesh to file his affidavit dealing with the following aspects:-
::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 5 a) Steps taken for implementing the
provisions of Section 32 of the Act;
.
b) As to whether all institutions of
higher education, Government or
otherwise falling within the ambit and scope of Section 32 of the Act have provided reservation of not less than 5%;
c) As to whether Indu Kumari, complainant before this Court, was eligible and entitled for admission in the reserved category so provided under the provisions of the Act and if so, then the reason for r not entertaining her application and admitting her in the reserved category;
d) As to whether there is a mechanism for redressal of grievances by the students who otherwise stand deprived of the statutory entitlement;
e) As to whether six more persons as pointed out by learned Amicus Curiae in his note dated 18th August, 2017, copy whereof stands supplied to the State were denied admission on legitimate grounds.
7. Affidavit of compliance be positively filed within four days.
8. We also direct respondent No.2- Registrar, H.P. University to file his personal affidavit to similar effect within four days.
9. List on 29.8.2017.
10. We further direct that the complainant and four students, who stand denied admission/not ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 6 admitted into the respective courses, if otherwise are eligible, their cases shall be considered and .
be admitted to their respective courses in accordance with law.
11. Mr. Arjun K. Lall, learned Amicus Curiae points out that three students, namely, Ms. Muskan Thakur, Ms Sangeeta and Mr. Vinod Sharma have yet not been provided Hostel accommodation and as such have to travel from far flung areas. Their cases for accommodation in the Hostel shall also be considered by the University.
r The Registry is directed to forthwith supply complete paper book, in all respect, to all the learned counsel during the course of the day."
4. Thereafter on 05.09.2017, this Court had passed the following order:
"A perusal of the affidavit so filed by respondent No. 2-University demonstrates that as of now, i.e. for the Academic Session 2017-18, only 3% seats have been reserved for the persons with disabilities. The explanation which has been given in the affidavit by the Registrar is that presently, the Ordinance which is being followed by respondent No.2-University provides only for 3% reservation and further they are following the reservation policy of the government of Himachal Pradesh, as per which only 3% seats can be reserved for the persons ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 7 with disabilities except the department of Physical Education.
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Be that as it may, in view of the provisions of Rights of Persons with Disabilities Act, 2016, wherein an express provision is there in Section 32 of the same that 5% of seats are to be reserved for persons with disabilities, the act of the University of reserving only 3% seats for persons with disabilities is totally unjustified and not acceptable being violative of the statute (supra).
Faced with this situation, Mr. J.L. Bhardwaj, learned Counsel for the University submits that respondent No. 2 shall explore the possibility of admitting the candidates with disabilities in respective streams in which they want admission. He further submits that in courses which are being run by the University, necessary decision in this regard shall be taken by the University itself and for admission in professional courses, University shall forthwith take up the matter with the concerned statutory authorities apprising them of the peculiar circumstances of the case. The statement so made by Mr. Bhardwaj is taken on record. Mr. Arjun K. Lall, learned Amicus is directed to hand over a list of candidates who are interested in seeking admission in the H.P. University within three days alongwith certificates of the said candidates depicting their educational qualifications and thereafter, the respondent-::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 8
University shall admit/take steps for admission of the said candidates in the courses in which .
they are interested strictly on the basis of merit within a period of 10 days. We make it clear that the number of candidates to be admitted against the quota of persons with disabilities shall not exceed 5% of the total seats.
At this stage, learned Amicus Curiae submits that the University should also take steps to provide Hostel facility to the candidates who are admitted under the quota for persons with disabilities. Mr. Bhardwaj has assured that the respondent-University shall sympathetically look into this aspect of the matter also and provide rooms to persons with disabilities taking into consideration the total number of rooms available in the Hostels and the rooms already being occupied by the persons with disabilities. List on 19th of September, 2017 for compliance."
5. Article 21 of the Indian Constitution provides for the right to life an important facet of which is a dignified life. The Hon'ble Apex Court in Bandhua Mukti Morcha vs. Union of India, (1984) 3 SCC 161, has held that the right to live with human dignity as enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42.
These being the minimum requirements which must exist in order to enable a person to live with human dignity and neither the central nor any State Government has the right to take any action which will ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 9 deprive a person of the enjoyment of these basic essentials. Where .
legislation is already enacted by the State providing these basic requirements, particularly belonging to the weaker section of the community and thus investing the right to live with basic human dignity, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation what does amount to general of protection guaranteed under Article 21.
6. A Five-Judge Constitution Bench of the Apex Court in M Nagaraj vs. Union of India, (2006) 8 SCC 212, has held that the expression "life" in Article 21 of the Indian Constitution does not connote mere physical or animal existence. The right to life includes right to live with human dignity. It is the duty of the State not only to protect human dignity but also to facilitate it by taking positive steps in that direction. No exact definition of "human dignity" exists. It refers to the intrinsic value of every human being which is to be respected. It cannot be taken away. It cannot be given. It simply is. Every human being has dignity by virtue of his existence.
7. A Nine Judges Constitution Bench of the Apex Court in K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1, has reaffirmed that human dignity is a component of Article 21.
8. In Common Cause vs. Union of India, (2018) 5 SCC 1, a Five Judges Constitution Bench of the Apex Court observed that a life ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 10 without dignity is like a sound that is not heard. Dignity speaks, it has .
its own sound, it is natural and human. The Apex Court further added that dignity does not recognize or accept any nexus with the status or station in life. The singular principle that it pleasantly gets beholden to is the integral human right of a person. Law gladly takes cognizance of the fact that dignity is the most sacred possession of a man.
9. A Five Judges Constitution Bench of the Apex Cuort in Writ Petition (Criminal) No.76 of 2016, titled as Navtej Singh Johar vs. Union of India, has reiterated that the fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Indian Constitution. Also in the international sphere the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights.
The Constitutional Courts of the country have solemnly dealt with the task of assuring and preserving the right to dignity of each and every individual whenever the occasion arises, for without the right to live with dignity, all other fundamental rights may not realise their complete meaning.
10. Accordingly, the Apex Court in a number of cases has broadened the spectrum of Article 21 of the Indian Constitution and has in unequivocal terms reaffirmed and reiterated that Article 21 envisages a right to a dignified life.
::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 1111. A social welfare legislation such as the Act of 2016, the .
legislative intent of which is (a) respect for inherent dignity, individual autonomy, including the freedom to make one's own choices and independence of persons; (b) non-discrimination; (c) full and effective participation and inclusion in society; (d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; (e) equality of opportunity; (f) accessibility; (g) equality between men and women; and (h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities, seeks to reduce the hardship of those who incur certain disabilities for after all the law seeks to ensure a dignified life to them as well.
12. By denying the statutory right to those for whose upliftment and empowerment such a beneficial legislation has been enacted the State failed in ensuring a dignified life to the disabled persons, rather the real beneficiaries of the Act and thus added to their hardships more so when the State is also duty bound by virtue of Article 41 of the Indian Constitution to make effective provisions for securing the right to work, to education and to public assistance in cases of unemployed, old age, sickness and disablement and in other cases of undeserved want.
13. As a matter of fact, it is imperative that the authorities must look into the real grievances of the visually impaired people and ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 12 the State through the Universities and all Educational Institutions must .
have a role of loco parentis and must show its concern to redress the grievances in proper perspective.
14. The Act of 2016 which has been brought into existence to give effect to the United Nation Convention on the Rights of Persons with Disabilities encompasses sea-change and conceives of the implementation of the beneficial provisions of the Act and realization of the numerous benefits engrafted under the same.
15. We are of the considered view that in the backdrop of the laudable policy inherent within the framework of the legislation, the same must be interpreted in a manner so as to ensure that the benefits so guaranteed are made available to the differently abled and does not remain to be a distant dream.
16. Hon'ble the Apex Court in Rajive Raturi vs. Union of India (Two Judges), (2018) 2 SCC 413, while dealing with the rights of the visually impaired vis-a-vis the issue of accessibility requirements in respect of safe access to roads and public transport and the duty of the State with respect to the same has held that right to dignity, which is ensured in our constitutional set-up for every citizen applies with much more vigour in case of persons suffering from disability and, therefore, it becomes imperative to provide such facilities so that these persons also are ensured level playing field and not only ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 13 they are able to enjoy life meaningfully, they contribute to the .
progress of the nation as well.
17. In Jeeja Ghosh vs. Union of India (Two Judges), (2016) 7 SCC 761, while dealing with the rights of disabled and differently abled persons, the Apex Court awarded damages of `10,00,000/- to the petitioner, a differently abled person, for the mental and physical suffering experienced by her as she was forcibly de-boarded by the flight crew, because of her disability.
18. Stressing upon the duty of a welfare State, in relation to differently abled persons, a Full Bench of the Apex Court in Union of India vs. National Federation of Blind (Three Judges), (2013) 10 SCC 772, held that the Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various international treaties, relating to human rights in general and treaties for disabled persons, in particular, to protect the rights of disabled persons.
19. Since the Act of 2016 is a meaningful attempt in assimilating the differently abled persons into the mainstream of nation's life by providing beneficial reservation to the extent of 5% in the higher educational institutions, it is, therefore, necessary that the Act be implemented in true letter and spirit in all higher educational institutions and other higher education institutions receiving aid from the Government.
::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 1420. In the backdrop of aforesaid principles, on 31.10.2017, .
the following order was passed:
"Written notes, dated 30th October, 2017, filed by learned Amicus Curiae¸ are taken on record. Respondents to respond to the same. We also request Mr. Dilip Sharma, learned Senior Advocate, to assist the Court as Amicus Curiae in the matter. Registry is directed to forthwith supply complete paper book to Shri Dilip Sharma, learned Senior Advocate. Registrar (Judicial) to ensure compliance of the order.
Let Chief Secretary, Government of Himachal Pradesh, to file an affidavit, indicating the steps taken, thus far, for complying with the directions, issued by this Court vide judgment, dated 4th June, 2015 in CWPIL No. 30 of 2011, titled as Court on its own motion Vs. The State of Himachal Pradesh and others. Needful be positively done within a period of one week. List on 13th November, 2017."
21. It is evident that with the issuance of notification, dated 13th October, 2017, so issued by the Himachal Pradesh University, the percentage of reservation of seats for the purpose of seeking admission for disabled students has been extended from 3% to 5%. This was so done only with the Court monitoring the matter. For ready reference, we are reproducing the relevant portion of the notification as under:
::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 15"In compliance of orders passed by the Hon'ble High Court in CWPIL No. 103 of .
2017 titled as Court on its own motion versus State of H.P. and others dated 05.09.2017, the Hon'ble Vice Chancellor has been pleased to implement the Section 32 of the persons with Disabilities Act, 2016, circulated by the Government of India vide their letter dated 19.04.2017 under which the percentage of reservation of seats for the purpose of seeking admission for disabled students has been extended from 3% to 5%. Therefore, all the teaching departments of Himachal Pradesh University and Government Degree Colleges/Private affiliated Colleges are hereby directed to strictly comply with Section 32 of Ministry of Law and Justice (Legislative Department) Gazette of India dated 27.12.2016 of the Persons with Disabilities Act, 2016 with immediate effect."
22. In this background, the only issue which remains to be adjudicated is as to whether the respondent-University can have a running roster for the purpose of identifying the number of seats which can be reserved in each academic session for persons with disabilities or not.
23. Unlike employment, in the stream of education, each academic session is a fresh academic session which is complete in ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 16 itself, totally distinct and distinguishable from the previous session or .
the next session.
24. The Rights of Persons with Disabilities Act, 2016 has been enacted to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. Chapter VI of the Act, which deals with special provisions for persons with benchmark disabilities provides in Section 32 for reservation in higher educational institutions. Said Section reads as under:
r"32(1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five percent seats for persons with benchmark disabilities. (2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education."
25. Thus, said statutory provision mandates that all Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than 5% seats for persons with benchmark disabilities.
26. As we have already mentioned above, in the field of education, each academic session is distinct and different from other academic session. Fresh admissions are made in each academic ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 17 session and there is no jurisprudence in educational law of "carrying .
forward a seat", as there is in service law with regard to posts/vacancies. In other words, with the issuance of prospectus for admission to a particular course, the rights of eligible candidates crystallized for the academic session in question and these rights are not carried forward, because with the start of a fresh academic session, a fresh prospectus is issued.
27. Hon'ble Supreme Court in Disabled Rights Group and another Vs. Union of India and others, (2018) 2 Supreme Court Cases 397 has held as under:
"9. No doubt, some progress is made in this behalf after the filing of this present petition and monitoring of the case by this Court, there is a need for complying with this provision to full extent. Accordingly, we direct that all those institutions which are covered by the obligations provided under Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State Commissioner to enquire as to whether these ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 18 educational institutions have fulfilled the aforesaid obligation. Needless to mention, .
appropriate consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall be initiated against defaulting institutions.
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35. There cannot be any dispute that the suggestions given by the petitioner, which are reproduced above, appear to be reasonable and are worthy of implementation. However, at the same time, it would be appropriate to consider the feasibility thereof particularly with regard to the manner in which these can be implemented. This task can be undertaken by the UGC. Likewise, the directions which are sought by the petitioners are in consonance with the provisions contained in the 22 Disabilities Act, 2016. In these circumstances, we dispose of these writ petitions with the following directions:
35.1. While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 19 India (BCI) as well. Other educational institutions will notify the compliance, each .
year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not. 35.2. Insofar as suggestions given by the petitioner in the form of "Guidelines for Accessibility for Students with Disabilities in Universities/Colleges" are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in 23 respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee.
::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 20This exercise shall be completed by June 30, 2018.
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35.3. Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court."
28. We are of the considered view that the reservation in educational institutions, as is provided under the Rights of Persons with Disabilities Act, 2016 and further the directions, which stand issued by Hon'ble Supreme Court in Disabled Rights Group and another Vs. Union of India and others (supra), leave no room of doubt that in all Government institutions of higher education, as also other higher educational institutions receiving aid from the Government, not less than 5% seats have to be reserved for persons with benchmark disabilities. This 5% reservation of seats has to be provided each time when process for filling up the seats is initiated by the above mentioned institutions. There can be no running roster and for each academic session, fresh roster has to be prepared, earmarking number of seats which are to be reserved for persons with benchmark disabilities, in view of the total seats available.
29. Therefore, we dispose of this petition by directing that all institutions of higher education and other higher educational institutions receiving aid from the Government in the State of Himachal Pradesh, shall not only reserve not less than 5% seats for persons with ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP 21 benchmark disabilities, but said reservation to the extent of 5% shall .
be provided each time when the institutions initiate the process of admission to academic courses and there shall be no carrying forward of seats so reserved for persons with benchmark disabilities nor a running roster in this regard shall be maintained by the institutions.
30. Before parting, we place on record our appreciation for the efforts put in by Mr. Dilip Sharma, learned Senior Advocate and the learned Amicus Curiae Mr.Arjun Lall, in assisting the Court in the adjudication of the petition. A copy of the judgment shall be made available to the Principal Secretary (Education), Government of Himachal Pradesh, as also to the Vice Chancellor(s) of all the Universities situated in the State of Himachal Pradesh, which are covered under the provisions of the Rights of Persons with Disabilities Act, 2016.
Petition stands disposed of, so also miscellaneous application(s), if any.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge November 5, 2018 (Bhupinder/PK) ::: Downloaded on - 06/11/2018 22:57:37 :::HCHP