Extend legal protetction for impairments not covered under the PwD Act 1995 - mandate of SC

Please refer to earlier post titled "SC directs the Govt. to give suitable jobs to employees with Mental Illness" dated 19 August 2012. Here is the coverage on the issue from The Hindu.

Enabling judgment from Supreme Court

The case of the 1977-batch Indian Administrative Service officer, whose compulsory retirement on grounds of  disability the Supreme Court has overturned, sets a strong precedent on the codification of protections against contingencies that arise during service. A two-judge bench upheld Anil Kumar Mahajan’s appeal against an earlier  decision that sought to curtail his tenure by five years. Interpreting the 1995 law on disabilities, the bench ruled that those who acquire an impairment while in service had to be accommodated in a position appropriate to their current condition. Where such adjustment was not available, the government was obliged to retain them in a supernumerary status, pending the identification of one, until the age of superannuation. The message emanating from the judgment is unambiguous, even if only a fraction of the disabled, estimated at nearly 10 per cent of India’s population, is in formal employment. It is relevant no less to the large numbers rendered severely impaired for life on account of the notoriously high rates of road accidents, not to mention industrial mishaps. The verdict also drives home the necessity, both within the administration and beyond, to recognize disability as a dimension of social diversity. To the extent that this is a relatively new reality, reflected in the workplace and several walks of life, public and private institutions would have to become responsive. It is hard to conceive of a more effective advocacy on disability than policies of accommodation that can potentially counter prevailing prejudice and stereotypes.

As regards recruitment under the Union Public Service Commission, a number of persons with different disabilities have begun to join the ranks in recent times. In fact, the question of identification of suitable placements across different services has come into the spotlight, illustrating the need to fashion a comprehensive approach on the absorption of new appointees. The landmark verdict, if anything, underscores yet again the urgent need for Parliament to enact fresh legislation in this area. This is imperative following India’s ratification, way back in 2007, of the United Nations Convention on the Rights of Persons with Disabilities. It is the way forward on extending legal protection for categories of impairments that are not covered under the current law and give fresh impetus to realise the goals of inclusive education. The newly constituted department of disability affairs in the Ministry of Social Justice and Empowerment should strive towards bringing the law-making process to fruition at the earliest. For, every single day lost to procedural delays affects the life prospects of millions.

Source: The Hindu

SC directs the Govt. to give suitable jobs to employees with Mental Illness

Dear Colleagues,

In a path-breaking development, the Supreme Court while quoting Section 47 has set aside the Order of Compulsory retirement of the 1977 batch IAS officer and directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Though, the Supreme Court has done some justice with the case, but it is loo late and too less. The said has been suffering at the hands of whimsical department who not only suffered at the hands of inquiry committee instituted in 1993 that took 11 years to give its finding declaring him insane. The officer was compulsorily retired thereafter.

There are various candidates who, having lived with mental illness and rehabilitated after a regular course of medication are not given any benefit of reservation or of preference in appointment in the civil services or any other service under the government. The draft of new Act though includes mental illness as one of the condition eligible for reservation in jobs under the disability quota however, one never know how long will this process take for the law to take shape and extend benefits to those living with disabilities not included in the existing Act. The act itself is discriminatory towards many other conditions since it is based on a medical model and goes strictly by the medical conditions, hence in effect renders many others excluded though equally or more marginalized and disabled.

Here is the news coverage from Hindustan Times.

Give mentally-disabled a suitable job: SC

Bhadra Sinha, Hindustan Times  New Delhi, August 19, 2013

State administration cannot dispense with ore reduce rank of a government servant if he or she acquires disability including mental illness or retardation during service, the Supreme Court has ruled.

Quoting the provisions of The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a bench of Justice GS Singhvi and Justice SJ Mukopadhyaya held that if a person is found unsuitable for the post he or she holds on account of acquired disability during service, he or she should be moved to another post suitable to his or her state.

The bench further held that under section 47 of the Act if it wasn't possible to adjust such a person against any post, the government authority ought to keep him or her on a supernumerary post until a suitable one is available until the employee attains the age of superannuation.

With these observations the court recently directed the Union Ministry of Department of Personnel and Training (DoPT) to pay consequential benefits to a 1977 batch IAS officer, Anil Kumar Mahajan, who was compulsorily retired from service on October 15 2007 after a disciplinary inquiry declared him insane. The inquiry report came 11 years after it was instituted in 1993 when he worked with the Bihar government.

At the time of inquiry the officer was placed under suspension twice. His representation for a voluntary retirement was turned down by the DoPT on the ground he hadn't completed the minimum service of 20 years. Later, however, the ministry compulsorily retired him.

Mahajan later challenged the findings of the disciplinary proceedings before the Central Administrative Tribunal, which turned down his plea.

However, on his appeal the SC set aside the order of compulsory retirement and said: "The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on October 15, 2007. It is not the case of the respondents (DoPT) that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977."

Observing "some problem was going on between the appellant and authorities of the state (Bihar)," the court said: "In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of  appellant or to compulsory retire him from service."

The court further said: "The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer."

Since in normal course Mahajan would have retired from service on July 31, 2012, the SC directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Source: Hindustan Times

Supreme Court of India issues notice to SpiceJet for deplaning disabled woman

Dear Colleagues,

Please refer to my earlier post on an incident wherein disability rights activist Jeeja Ghosh who was forcibly deplaned from a Goa-bound SpiceJet flight from Kolkatta in February because the pilot felt she was unfit to fly. On Jeeja's petition, honorable Supreme Court of India has issued notices to the Union Government, Airliner and the DGCA.

A bench of Justices Aftab Alam and Ranjana P Desai issued notices to the Union government, the Directorate General of Civil Aviation (DGCA) and SpiceJet on her petition accusing the private airline of subjecting her to traumatic treatment on February 19 and depriving the organizers of her expertise during the international seminar.

"Jeeja Ghosh has experienced similar experience before. In 2008, she was forced to undergo a medical examination before being allowed to board an Indigo flight from New Delhi to Kolkata," the petitioner said and sought an investigation into the incident.

"These acts of discrimination which have left disabled people very upset have continued unabated despite the enactment by the Central Government of clear and binding directives prohibiting discrimination against disabled persons in air transport," said Jeeja.

She requested the apex court to direct "SpiceJet to adequately compensate the petitioner for loss of money, wasted time and the humiliation and trauma suffered during the unsavoury incident".

This case coupled with the uproar in the disability sector has pushed the Government of India/ DGCA too hard to take a swift action against the Airliner and if required amend the Regulations to include penalty clauses, if need be.

The result has been several meetings with the stakeholders and now constitution of another committee to suggest changes in the existing CAR to make it more inclusive and give it more teeth.We hope this would not be another lip service and another rule book to meet defiance rather than implementation that we see with the existing CAR.

The story has been covered by

(a) The Times of India: Cerebral palsy afflicted woman moves Supreme Court, demands compensation from SpiceJet

(c) The Indian Express: SC notice to SpiceJet for deplaning woman

Surpreme Court of India | Govt. of India & Anr. Vs. Ravi Prakash Gupta | SLP (C) 14889 of 2009 | 07 July 2010

 Court: Supreme Court of India

Case No. & Title: SLP (C) 14889 of 2009, titled Govt of India  vs Ravi Prakash Gupta & Anr 

Bench: Altamas Kabir, Cyriac Joseph 

Date of Judgement:  07 July, 2010

                                                   REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.14889 OF 2009

Govt. of India (through Secretary & Anr.)                           .. Petitioners

                           Vs.

Ravi Prakash Gupta & Anr.                                                    .. Respondents

 J U D G M E N T

ALTAMAS KABIR, J.

1. The Government of India, through the Secretary, Ministry of Personnel & Public Grievances, Department of Personnel and Training and through the Secretary, Ministry of Social Justice and Empowerment, has filed this Special Leave Petition against the judgment and order dated 25th February, 2009, passed by the Delhi High Court in Writ Petition (Civil) No.5429 of 2008, allowing the Writ Petition and setting aside the order dated 7th April, 2008, passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No.1397 of 2007, filed by the Respondent No.1 herein, and allowing the reliefs prayed for therein.

2. The Respondent No.1 is a visually handicapped person who suffers from 100% blindness. He appeared in the Civil Services Examination conducted by the Union Public Service Commission in the year 2006. After clearing the preliminary examination, the Respondent No.1 appeared for the main examination in October, 2006 and was declared successful and was, thereafter, called for a personality test scheduled for 1st May, 2007. Pursuant to such interview, the names of 474 candidates who were selected were released on 14th May, 2007. In the said list, the name of one other visually impaired candidate also figured. The Respondent No.1 was at serial no.5 of the merit list prepared for visually handicapped candidates, who had been declared successful in the examination. According to the Respondent No.1, although there were more than 5 vacancies available in the visually handicapped category, only one post was offered under the said category and he was, therefore, not given appointment despite the vacancies available.

3. Being aggrieved by the manner in which selections were made for appointment in the visually handicapped category, the Respondent No.1 filed a Writ Petition, being Writ Petition (Civil) No.5338 of 2007, before the Delhi High Court. The same was subsequently withdrawn since it was the Central Administrative Tribunal only which had jurisdiction to entertain such matters at the first instance. The Respondent No.1, accordingly, withdrew the Writ Petition, with liberty to approach the Central Administrative Tribunal. Thereafter, he filed an application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.1397 of 2007, staking his claim for appointment under the reservation of vacancies for disabled categories provided for under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection, Rights and Full Participation) Act, 1995, hereinafter referred to as `the Disabilities Act, 1995'. The basic contention of the Respondent No.1 was tthat since the aforesaid Act came into force in 1996 providing a statutory mandate for reservation of 3% of the posts available for persons suffering from different kinds of disabilities enumerated in Section 33 of the Disabilities Act, 1995, such reservation ought to have been in force with effect from the date on which the Act came into force. According to the Respondent No.1, if the vacancies were to be considered from the year 1996, then instead of one vacancy being declared for the year in question, there should have been at least 7 vacancies from the reserved categories of disabilities which were interchangeable. It was, therefore, the case of the Respondent No.1 that having regard to the number of appointments made with regard to the disabled categories reserved under Section 33 of the Disabilities Act, 1995, since the Act came into force, there were at least 7 posts which could be filled up in the year 2006. However, in that year only one post from this category had been filled. It was, therefore, the case of the Respondent No.1 that being at serial no.5 of the list of successful candidates amongst the physically impaired candidates, there were sufficient number of vacancies in which he could have been appointed and that the authorities had acted contrary to the provisions of the above Act upon the faulty reasoning that the vacancies in the reserved posts could not be declared, without first identifying the same for the purposes of Sections 32 and 33 of the Disabilities Act, 1995.

4. The case of the Respondent No.1 having been negated by the Tribunal, the Respondent No.1 as indicated hereinbefore, moved the High Court and the High Court, upon accepting the Respondent No.1's case, set aside the order of the Central Administrative Tribunal dated 7th April, 2008, and allowed the Respondent No.1's O.A. No.1397 of 2007 filed before the Tribunal. While allowing the said application, the High Court, upon observing that a clear vacancy was available to which the Respondent No.1 could be accommodated on the basis of his position in the merit list, issued a mandamus to the Respondent No.1 to offer him an appointment to one of the reserved posts by issuing an appropriate appointment letter, within six weeks from the date of the order. Certain consequential orders were also passed together with cost of Rs.25,000/- to be paid by the Petitioner herein.

5. On behalf of the Government of India, which is the Petitioner herein, learned Additional Solicitor General, Ms. Indira Jaising, submitted that the submissions advanced on behalf of the Respondent No.1 which had been accepted by the High Court, were not tenable and that the Government of India had been actively involved in complying with the provisions of the Disabilities Act, 1995, after it came into force. The learned ASG contended that the Government of India had been making reservation for physically handicapped persons in Group `C' and `D' posts from 1977 and in order to consider the growing demand from the visually handicapped persons, a meeting for identification of jobs in various Ministries/Departments was scheduled in 1985 and 416 such posts were identified in Group `A' and `B' posts. In 1986, an Office Memorandum was issued by the Department of Personnel & Training (DoPT) providing for preference to be given to handicapped person for these posts. In 1988, another Office Memorandum was issued by the Government of India indicating that the identification done in the year 1986 would remain valid till the same was modified. After the Act came into force in 1996, a further Office Memorandum was issued, whereby reservation of physically handicapped persons in identified Group `A' and Group `B' posts/services was extended to posts which were to be filled up through direct recruitment. Learned ASG submitted that in 1999 the Ministry of Social Justice & Empowerment constituted an Expert Committee to identify/review posts in categories `A, `B', `C' and `D', in which recommendations were made for identification of posts for the visually handicapped persons. The report of the Expert Committee was accepted by the Ministry in 2001 and posts were duly identified for persons with disabilities. Learned ASG, however, made it clear that the 416 posts, which had been identified in 1985, did not include All India Services and that for the first time in 2005, the posts of the Indian Administrative Service were identified in compliance with the provisions of Section 33 of the Disabilities Act, 1995 and pursuant to such identification, the posts were reserved and filled up. Ms. Jaising also submitted that reservation upto 3% of vacancies in the reserved posts were, accordingly, identified with effect from 2006 and the claim of the Respondent No.1 for appointment on the basis of the argument that the reservation should have taken effect from 1996 when the Act came into force, was liable to be rejected.

6. Appearing in-person, Mr. Ravi Prakash Gupta, the Respondent No.1 herein, strongly defended the impugned judgment of the High Court and urged that the Special Leave Petition filed by the Government of India was liable to be dismissed. Mr. Gupta submitted that the fact that he was completely blind was known to the Petitioners and their respective authorities from the very beginning, since he had annexed his blindness certificate with his original application in the proforma provided by the Union Public Service Commission (U.P.S.C.), which showed the percentage of his blindness as 100%. However, the main thrust of Mr. Gupta's submissions was that when the Disabilities Act, 1995, came into force in 1996, it was the duty of the concerned authorities to reserve 3% of the total vacancies available immediately thereafter. The plea of non-identification of posts prior to the year 2006 was only an attempt to justify the failure of the Petitioners to act in terms of the Disabilities Act, 1995. Mr. Gupta submitted that the High Court had negated such contention made on behalf of the Petitioners and rightly directed the Petitioners to calculate the number of vacancies in terms of Section 33 of the above Act from 1996 when the said Act came into force.

7. Mr. Gupta then submitted that in terms of the Department's OM No.3635/3/2004 dated 29th December, 2005, reservations have been earmarked and should have been made available from 1996 itself and in the event the vacancies could not be filled up owing to lack of candidates, the same could have been carried forward for two years after which the same could have been treated as lapsed. Mr. Gupta submitted that although the Petitioners were fully aware of the said Office Memorandum, they chose not to act on the basis thereof and as admitted on behalf of the Government of India, the IAS cadre was identified in 2006 for the purposes of Section 33 of the Disabilities Act, 1995. In fact, the Act remained on paper as far as visually challenged candidates were concerned and only after the judgments of the Delhi High Court in the case of Ravi Kumar Arora and in the case of T.D. Dinakar were delivered, that the identification process was started. Mr. Gupta submitted that it would be pertinent to mention that the two above-mentioned candidates were appointed in the Civil Services without waiting for identification of their respective services on the orders of the High Court.

8. Mr. Gupta submitted that the plea of non- identification of posts in the IAS till the year 2006 could not absolve the petitioners of their statutory obligation to provide for reservation in terms of Section 33 of the aforesaid Act.

9. During the course of hearing, leave had been granted to one A.V. Prema Nath and one Mr. Rajesh Singh to intervene in the proceedings. The submissions made by the Respondent No.1 have been repeated and reiterated on behalf of the Intervenor No.1, Shri A.V. Prema Nath by A. Sumathi, learned Advocate. His written submissions are embellished with references to various decisions of this Court, including the decision in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi & Ors. [(1981) 1 SCC 608], regarding the right to life under Article 21 of the Constitution. The main thrust of the submissions is with regard to the denial of rights to persons with disabilities under Section 33 of the Disabilities Act, 1995, which prevent them from enjoying their fundamental rights to equality and the right to live, by the State.

10. More detailed submissions were made by Mr. S.K. Rungta, learned Advocate, appearing on behalf of the Intervenor No.2, Mr. Rajesh Singh, and it was also sought to be pointed out that the said intervenor was himself a candidate from amongst the visually impaired candidates and had, in fact, been placed at serial no.3 in rank in the merit list for visually impaired candidates in the Central Services Examinations, 2006, whereas the Respondent No.1 had been placed at serial no.5. In other words, what was sought to be projected was that Shri Rajesh Singh had a better claim for appointment from amongst the visually impaired candidates over the Respondent No.1 and that if the vacancies in the reserved category were to be calculated from 1996 and even from 2001, when identification of posts in respect of Civil Services forming part of the IAS Cadre was sought to be effected and a notification to that effect was issued, the Respondent No.1 could not have been appointed.

11. It was further submitted that in the decision of this Court in The National Federation of Blind vs. Union Public Service Commission & Ors. [(1993) 2 SCC 411], the demand by blind candidates for being permitted to write the examination in Braille script, or with the help of a Scribe, for posts in the IAS was duly accepted for recruitment to the lowest posts in the service reserved for such persons. It was also held that blind and partially blind persons were eligible for appointment in Government posts. It was submitted that the submissions made on behalf of the Petitioners that the notification in respect of the services in respect of the Group `A' and `B' services in the IAS in 2005 was not a fresh exercise, but only an attempt to consolidate and strengthen the identification already available and that such an exercise could at best be said to be enabling and supplementary action for the smooth implementation of the statutory provisions containing the scheme of reservation for persons with disabilities, could not be taken as an excuse to postpone the benefit which had already accrued to candidates falling within 3% of the vacancies indicated in Section 33 of the Disabilities Act, 1995. It was also urged that after the issuance of OM dated 29th December, 2005 and OM dated 26th April, 2006, there was hardly any room for the Government of India to deny the benefit of reservation to persons with disabilities, including the blind, in Civil Services encompassing the IAS from the year 1996 itself. Furthermore, since the Act itself did not make any distinction between Group `A' and Group `B' services and Group `C' and Group `D' services, it was not available to the Government of India to contend that since identification had been done only for Group `C' and Group `D' services, prior to the year 2005, reservation in respect of Group `A' and `B' services, which include the IAS, for which identification was commenced in 2005, would only be available thereafter.

12. On behalf of the Intervenor No.2, it was submitted that the Special Leave Petition was liable to be dismissed with exemplary costs.

13. We have examined the matter with great care having regard to the nature of the issues involved in relation to the intention of the legislature to provide for integration of persons with disabilities into the social main stream and to lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said angle to ensure that the object of the Disabilities Act, 1995, which is to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific Region, is fulfilled.

14. That the Respondent No.1 is eligible for appointment in the Civil Services after having been declared successful and having been placed at serial no.5 in the disabled category of visually impaired candidates, cannot be denied. The only question which is relevant for our purpose is whether on account of the failure of the Petitioners to identify posts for persons falling within the ambit of Section 33 of the Disabilities Act, 1995, the Respondent No.1 should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case.

15. Although, the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade `A' and `B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Grade `A', `B', `C' and `D' posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.

16. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added). For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995, are reproduced hereinbelow :

"32.Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall -

(a) Identify posts, in the establishments, which can be reserved for the persons with disability;

(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

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 or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy,

in the posts identified  for each disability:

Provided, that the appropriate Government may, having regard to the type of work carried on in any department or establishment by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

17. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.

18. The various decisions cited by A. Sumathi, learned Advocate for the first intervenor, Shri A.V. Prema Nath, are not of assistance in the facts of this case, which depends on its own facts and interpretation of Sections 32 and 33 of the Disabilities Act, 1995.

19. We, therefore, see no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with costs. All interim orders are vacated. The petitioners are given eight weeks' time from today to give effect to the directions of the High Court.

20. The petitioners shall pay the cost of these proceedings to the respondent No.1 assessed at Rs.20,000/-, within four weeks from date.

................................................J.

(ALTAMAS KABIR) 

................................................J.

(CYRIAC JOSEPH) 

New Delhi Dated:7th July, 2010.

Private Organisations not bound by Disability Act: Says Supreme Court

Dear Friends,

This post is with respect to a recent judgement by Hon'ble Supreme Court in  Civil Appeal No. 1886/2007 titled Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Ors with another Civil Appeal No. 1858/2007 titled Fancy Rehabilitation Trust and Anr. Vs. Union of India and Ors.

The employee Mr. Padhye acquired hearing impairment during the period of service and was terminated by the employer. Employee got a favourable suggestion from Disability Commissioner Pune for his re-instatement under Section 47 of Disabilty Act which says:

“47. Non-discrimination in Government employment.—(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

The word "Establishment" has been defined by Section 2( k)( i) of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 defines the word "Establishment as :-

"Establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments of a Government;

On a simple reading of the definition of the word "establishment", it is clear that any organisation established under a central, provincial or state act will be an establishment. Thus any organisation registered and established under the provisions of the Societies Registration Act or the Indian Trust Act or The Companies Act should ordinarily get covered under this.

However over insistence here on the Government share/ownership or control indicates that the intention of creators of this statute was to only include organisations which are largely government or local authorities created under central or state statutes or has a government stake of 51% (read section 617 of Companies Act which has been specifically referred to indicate that this has to be read in exclusion of the Companies Act). Also the heading of Section 47 of Disability Act is "Non-discrimination in Government Employment" which clarifies the intention of the legislature that it did not wanted to include private companies under the word "establishment".

The Hon'ble Supreme Court has indicated that similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant "government companies".  The reason put forward by the Court is "A ‘company’ is not ‘established’ under the Companies Act. An incorporated company does not ‘owe’ its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a ‘company’ is incorporated and registered under the Companies Act and not established under the Companies Act.

It further clarifies that inclusion of only a specific category of companies incorporated under the Companies Act, 1956 (Govt. Companies registered under Section  617) within the definition of ‘establishment’ necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of ‘establishment’.

A counter argument to this would be that while IPC and Prevention of Corruption Act are punitive in nature and should be interpreted in restrictive and strict sense, the Disability Act is a benevolent, socio-economic and empowering legislation and must be interpreted in a way which favours the marginalized section of the society.

However, now a decision of the learned judges of the Supreme Court is out here clarifying the meaning of word establishment, removing the clouds of doubt on the existing legislation and leaving no room for its benevolent interpretation in future. Therefore, it would be worthwhile now that the disability activists address this issue in the New Law that is being suggested and be categorical that the provisions of the disability act would apply to all establishment including those private initiatives which are registered under any of the Central or State statutes like companies, trusts, societies and cooperatives etc.

This has larger force of argument because when a labour legislation related to PF, Minimum Wage etc. is applicable to private employers with a certain number of employees then why can't disability legislation be applicable - for the objective of both legislations is to empower the weak, vulnerable and marginalized members of our society?

On second thought, it comes to my mind as to why the exploitation of an employee with disability by an employer could not be taken up through labour legislations read in conjunction with disability Act and why alone under Section 47 of the Disability Act? The last line of the judgement - "This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law." -  gives a hint that it could have perhaps been better fought under labour legislations. 

Here is the news report on the issue from the Mail Today.

regards

SC Vashishth

Advocate-Disability Rights

09811125521

subhashvashishth@gmail.com

SC says disability Act not binding on private firms

(To read from source in (PDF 2 MB) 

Mail Today, 01st April 2010

THE SUPREME Court on Wednesday held that a law enacted in 1995, to prevent exploitation of the disabled by their employers, could not be enforced on the private sector.

A three- judge bench, comprising justices R. V. Raveendran, R. M. Lodha and C. K. Prasad, said the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, did not cast any obligation on private companies and schools.

The bench rejected a contention that the Act covered all companies incorporated under the Companies Act.

A private company had approached the apex court, against a high court order holding that the disabilities commissioner had jurisdiction over any company incorporated under the Companies Act. The high court had said it could direct the company to reinstate an employee who was dismissed on account of disability.

The second appeal was filed by a trust — on behalf of the employee — which had approached the apex court after the high court refused to pass any such direction to the company and admitted that the first judgment was incorrect.

Opposing the company’s appeal, the dismissed employee pointed out that section 2( k)( i) of the disability Act brought “ a corporation established by or under a central, provincial, or state Act” within its ambit.


But the apex court said a similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant government companies.

Supreme Court: J&K High Court was insensitive to Teacher with Cerebral Palsy [Judgement Included]

Court: Supreme Court of India

Bench:  Altamas Kabir, Justice and  Cyriac Joseph, Justice

Case No. : Civil Appeal Nos. 2281-2282 OF 2010, (Arising out of SLP(C) Nos.10669-70 of 2008)

Case title: Syed Bashir-ud-din Qadri  Vs. Nazir Ahmed Shah & Ors 

Date of Judgement: 10.03.2010

Brief of the Case

This order from Hon'ble Justice Altamas Kabir,  Supreme Court of India, is remarkable in many sense. The order is indicative of the apathy of certain implementing authorities and lack of awareness and sesitivity even at the level of the High Court when it comes to ensure equal opportunities and rights to Citizens with disabilities. 

Expressing concern over the shabby treatment meted out to disabled persons while considering them for government jobs, the Supreme Court has said these cases must be handled with sensitivity and not with bureaucratic apathy. 

Dealing with an appeal filed by a person with cerebral palsy, a Bench of Justices Altamas Kabir and Cyriac Joseph said: “It has to be kept in mind that this is not one of the normal cases relating to a person's claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity.”

Syed Bashir-ud-din Qadri, a B.Sc. graduate, was appointed Rehbar-e-Taleem (teacher) in a government school at Pulwama by the Jammu and Kashmir government under the merit quota for physically challenged candidates. Two committees appointed by the government also approved his appointment after noting that he was capable of discharging his duties. But, acting on a petition from Nazir Ahmed Shah, the High Court set aside his appointment.

Allowing the appeal against this judgment, the Supreme Court said: “The appellant is a person with cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds.” The Bench pulled up the High Court for ordering his dismissal, and directed his reinstatement forthwith with all notional service benefits.

Writing the judgment, Justice Kabir said: “It is unfortunate that in spite of the positive aspects of the appellant functioning as Rehbar-e-Taleem and the clear and unambiguous object of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, the High Court adopted a view which was not compatible therewith. The High Court has dealt with the matter mechanically, without even referring to the Act or even the provisions of Sections 22 and 27 thereof.”

The Bench said: “Instead, the High Court chose a rather unusual method in assessing the appellant's capacity to function as a teacher by calling him to appear before the court and to respond to questions put to him. The High Court appeared to be insensitive to the fact that as a victim of cerebral palsy, the appellant suffered from a slight speech disability which must have worsened on account of nervousness when asked to appear before the court to answer questions.”

As disability did not impede the appellant from discharging his duties, the High Court ought not to have directed the termination of his services, the Bench said.  

Read the Order Below or download Here. 

 

Supreme Court | Bhagwan Dass & Anr Vs. Punjab State Electricity Board | 04 Jan 2008 | Section 47 of PWD Act 1995

Court:  Supreme Court of India

Bench: Hon'ble G.P.Mathur, Hon'ble Aftab Alam, Justices

Case No.: Appeal (Civil)  8 of 2008   [Arising out of SLP) No.26357/2005] 

Case Title: Bhagwan Dass & Anr vs Punjab State Electricity Board 

Date of Judgement: 4 January, 2008

Author: A Alam, J.

JUDGMENT:

Leave granted.

This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous.

The facts of the case are brief and are all taken from the (Reply) Affidavit filed on behalf of the Punjab State Electricity Board and its officers (the respondents in the appeal). Appellant No.1 joined the respondent Board on July 19, 1977, on ad-hoc/work-charged basis. His services were regularized as an Assistant Lineman on June 16, 1981. While in service he became totally blind on January 17, 1994 and a certificate to that effect was issued by the civil surgeon, Faridkot.

Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as follows : 

"47. Non-discrimination in Government employments.  (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits :

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2). No promotion shall be denied to a person merely on the ground of his disability.

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.  

It may further be noted that the import of Section 47 of the Act was considered by this court in Kunal Singh vs. Union of India & Anr. [2003 (4) SCC 524] and in paragraph 9 of the decision it was observed and held as follows :

"Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employee shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." (Emphasis added) 

After the Act came into force with effect from December 7, 1996 (vide S.O.107(E) dated 7th February, 1996), the Government of Punjab, Department of Personnel and Administrative Reforms, issued a letter dated September 24, 1996 directing all the heads of departments to comply with Section 47 of the Act. The Punjab State Electricity Board too adopted the Government letter under its Circular No.6/97, dated February 17, 1997.

In view of Section 47 of the Act and the Circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on January 17, 1994 he was not covered by the provisions of the Act that come into force on February 7, 1996. Such plea can not be raised because on February 7, 1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.

Coming now to the reason assigned by the Board to deny him the protection of Section 47 of the Act, it is stated on behalf of the respondents that he remained absent from duty without any sanctioned leave from January 18, 1994 to March 21, 1997. He was directed by the Executive Engineer to resume duties vide Memo No.412, dated March 16, 1994 and Memo No.6411, dated August 4, 1994. He, however, failed to report for duty and on September 13, 1994, a charge sheet was issued initiating disciplinary proceedings against him for gross misconduct under regulation 8 of the Punjab State Electricity Board Employees Punishment & Appeal Regulation 1971. The matter appears to have lain dormant for sometime and then it is stated that the appellant by his letter dated July 17, 1996 requested the Board to retire him from service. As a matter of fact by this letter the appellant sought to explain his absence from duty and requested that his wife might be employed in his place. But it was made the basis for denying the appellant his lawful dues. Since the whole case of the respondents is based on this letter it would be appropriate to reproduce it in full :

"Sir, I explain as under the subject cited unnatural happening which I met, When I was returning home after performing my duty on 17-1-94 then vision of my eyes lessened suddenly. I got treatment from far and near for eye-sight/lessening of vision of my eyes. But I became completely blind. Now I cannot perform my hard work duty. I want to retire from service. I may be retired and my wife may be provided with suitable job against me. Yourself will be genesis to me." (Emphasis added) 

At this stage some internal correspondences took place between the officers of the Board over the question how to deal with the appellant. On July 10, 1997, the Senior Executive Engineer (OP) Division, Malout wrote to the Deputy Chief Engineer, Operation Circle, Muktsar, asking for instructions in the matter. Paragraphs 2, 3 and 4 of the letter are relevant and are reproduced below :

"2) As per report of Medical Board the official is unfit for duty, he cannot perform any duty.

3) But as per instructions contained in Punjab Government Memo No.17/16/94-5 PP-1/6546 adopted by PSEB vide its Circular No.6/97 the official/officer it (sic is) not to be retired from service who become disable during service.

4) The official has represented that he may be retired from duty and his wife be provided with suitable job."

The Senior Executive Engineer received the reply from the Secretary of the Board vide letter dated February 17, 1998 in which he was advised as follows :

"It is advisable to retire the official as per rules and regulations of the Board if the employee is not otherwise interested in taking the benefit of Board's Circular No.6/97.

For the purpose of clarification as to whether employee is entitled to the benefits, otherwise admissible under rules/regulations of the Board in preference to Benefits admissible under Circular No.6/97, if he so desires, can be obtained from the Office concerned which issued said circular." 

Later on, the charge-sheet issued against the appellant was withdrawn by the Senior Executive Engineer vide Office Order No.14, dated January 13, 1999 and the appellant was asked to submit leave application for the period of absence.

Next in series is a letter, dated November 15, 1999, from the Director/IR, PSEB, Patiala to the Senior Executive Engineer, (OP) Division, Malout. In this letter it was stated as follows :

"As per cited subject it is made clear that employee who is blind shall not be retired as per instructions of the Board. But is (sic. if) such employee himself make request for retirement then he can be given retirement on medical ground." 

Finally, the Senior Executive Engineer, issued Office Order No.559, dated December 14, 1999, by which the appellant was relieved from service with effect from March 21, 1997 (the date of issuance of Medical Certificate) as per Rule 5.11 of Civil Services Rules-Vol.II.

It appears that the appellant protested against the action of the Board in relieving him from service and made representations. The representations, it seems, were forwarded to the superior authorities and the Board's decision was communicated to the Senior Executive Engineer vide letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are as follows : 

"With regard to cited subject it is made clear that there are instructions of the Board on which blind employee is not liable to be retired. But in the case of Shri Bhagwan Dass ALM advice of retirement was given as he himself made request for his retirement on Medical Ground. So the case of this employee is not likely considered for his rejoining of duty."

The appellant then filed an affidavit before the concerned officers. A copy of the affidavit is at Annexure R-12 to the respondents' affidavit. In the affidavit he pathetically pleaded that he had no knowledge about the Rules of the Electricity Board and represented for retirement unknowingly. He further stated that when he came to know that there was no need for retirement for those who were disabled during service he again represented that he might not be retired and might be retained in service as per the instructions of the department. The affidavit did not evoke any response but the severance was completed by making payment of his terminal dues.

The disabled employee then approached the Punjab & Haryana High Court in Civil Writ Petition No.12534 of 2004 seeking relief in terms of section 47 of the Act and the Circulars issued by the State Government and the Board in its furtherance. In the writ petition he was joined by his son, appellant No.2, and an alternative relief was sought for employment of his son in his place. Unfortunately, before the High Court it was the second relief that came into focus and the High Court dismissed the writ petition by a brief order referring to the decision of this Court in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174]. 

In the High Court order there is no mention of Section 47 of the Act and the disabled employees' claim/right on that basis. Against that order this appeal is preferred in which the disabled employee agitates his rights on the basis of Section 47 of the Act. From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable. 

We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.

In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.

In the result the appeal is allowed with costs quantified at Rs.5,000/-.

--------------

Supreme Court: A disabled constitute a special class and thus there should be not further reservation for disabled persons on the basis of caste, creed or religion.

Court: Supreme Court of India

Bench:  S.B. Sinha, Harjit Singh Bedi, Justices

Case No.:  Civil Appeal No. 3984 of 2007 [Arising out of SLP (Civil) No. 16291 of 2004]

Case Title: Mahesh Gupta & Ors vs Yashwant Kumar Ahirwar & Ors 

Date of Judgement:     30/08/2007

Author: S.B. Sinha

Case Note: Service – Reservation – Commissioner issued advertisement for special recruitment drive for filling the vacant reserved post out of which 8 were reserved for Schedule Castes and 8 were reserved for disabled persons - Appellants were disabled persons belonging to general category were selected – Respondent No. 1 was disabled candidate belonging to reserved category and was not selected - Tribunal held that respondent No. 1 had no right for appointment – On appeal High Court directed State to determine whether at relevant date any post of handicapped candidate in reserved category was vacant – Subsequently State terminated the appointment of appellant on ground that advertisement issued by Commissioner was not proper – Hence, present appeal – Held, the State under Article 16 can make two type of reservations vertical and horizontal – The State had adopted a policy for filling up the reserved posts for the handicapped persons by making horizontal reservation – A disabled constitute a special class and thus question of making any further reservation on basis of caste, creed or religion does not arise – Thus Order of High Court terminating appellant set aside – Appeal allowed

RatioDecidendi: Reservation – Disabled person – A disabled constitute a special class and thus there should be not further reservation for disabled person on the basis of caste, creed or religion. Constitution provides for horizontal reservation for disabled persons.

JUDGMENT:

J U D G M E N T CIVIL APPEAL NO 3984 OF 2007 [Arising out of SLP (Civil) No. 16291 of 2004] WITH CIVIL APPEAL NOs. 3985 and 3986 OF 2007 [Arising out of SLP (Civil) Nos. 19391 and 20321 of 2004] S.B. SINHA, J :

1. Leave granted.

2. Interpretation of an advertisement in the light of a circular of the State of Madhya Pradesh as regards recruitment of handicapped persons to some posts is in question in these appeals which arise out of judgments and orders dated 1.5.2003 and 23.08.2004 passed by the High Court of Madhya Pradesh in Writ Petition No. 40 of 2000 and M.C.C. (Contempt) No. 222 of 2003.

3. The State took recourse to a special drive for filling up the vacant posts in the reserved category candidates, viz., Scheduled Castes, Scheduled Tribes and Backward Classes. In a circular letter issued on 29.03.1993, it was stated:

"SUBJECT: SPECIAL DRIVE FOR FILLING UP RESERVED POSTS FOR HANDICAPPED PERSONS The State Government has reserved 3% posts (1% for blinds and 2% for other physically handicapped persons) for disabled persons. By the Notification of the State Government vide No. 50-2532-1(3)/80 dated 12th of February, 1991, exemption for 10 years in the prescribed age limit has been granted to the candidates belonging to blind, dumb, deaf and disabled persons eligible for services for the posts of the categories of 3rd and 4th grades, to be filled in the services of the State Government through Employment Exchanges (copy enclosed). In the orders of the Finance Department No. L-17-1-87-B-7-4 dated 4th of June, 1987 in paragraph 2, exemption has also been granted from the ban imposed for appointment in the government services, prescribed only for handicapped persons against the reserved posts.

It has been brought to the knowledge of the State Government that this quota for the handicapped persons is not being fulfilled due to absence of knowledge about reservation and procedural complications. Extending the full benefit against the reserved posts in the government services as per the prescribed quota for the handicapped persons, cannot be determined as a fair situation."

It was inter alia directed:

"In this connection, it is worth mentioning that for the successful conduct of the aforesaid campaign and for the implementation of the said policy of the State Government, call for the names from the Employment Exchanges, for the vacancies at District level, the District Collector, and for the vacancies at Divisional level, the Divisional Commissioner, and for the vacancies at Heads of the Department, the concerning Heads of Department have been authorized. These authorization shall be limited only up to the posts of 3rd and 4th grades. So far as the question about 2nd Grade is concerned, this authority shall vest with the State Government, but the procedure regarding examination, interview etc., could be conducted at the level of the Head of the Department."

4. Pursuant to or in furtherance of the said circular letter, the Commissioner, Chambal Division, Morena issued an advertisement, the heading whereof is as under:

 "SPECIAL RECRUITMENT DRIVE FOR FILLING UP THE VACANT RESERVED POSTS OF SCHEDULED CASTE AND SCHEDULED TRIBE:"

However, while providing for the details of the posts, it was categorically laid down:

"Name of Post (s)	Vacant Posts : SC  ST Handicapped	Minimum Qualifications	Pay-Scale
1. Higher Grade Teachers = English-14 and Sanskrit - 8	-  20  02	Graduate in relevant subject passed in 2nd Div. & Trained (B.Ed. B.T.C.)	1400-2640
2. Industries Craft Teacher	-    17    02	Hr. Sec. Exam  (Intermediate) & Diploma in  concerning craft by an Institute recognized by the Government	1400-2640
3. Assistant Teacher (Science)	-    08    03	Hr. Sec. Exam (Intermediate) Science with the Subjects, Physics, Chemistry, Biology	1200-2040
4.  Artists	-     01     -	Graduate Degree in Arts from J.J. School of Arts and one year experience in commercial photography	1400-2340
5. Dietician	01   -    -	M.Sc. (Home Science) or B.Sc. (Home Science) - 2 nd Division & essentiality of Food craft subject	1400-2340
6.  II Gr. Clerk	-   01   -	1. Hr. Secy, or High School passed 2. Hindi Typing passed from M.P. Board	950-1530
7. Steno-Typist	-   05   -	1 & 2 ==ditto= 3. Knowledge in Hindi Stenography	950-1530 +75
8. Stenographer	-   05   -	1 & 2 as above + 3. Dictation in Hindi Stenography with the speed of 60 words per minute as prescribed by Govt.
9. Tracer	-   01  -	1. Hr. Secy./High Sch. with l.T.I. passed. 2. Drawing Diploma or Civil Engineering Diploma	950-1530
10. Assistant Cartographer	-  02  -	Passed Hr. Secy. Exam, and Degree/ Diploma in the Craft or Certificate of Draftman in Civil Engineer from I.T.I, or Surveyor Trade Certificate	Pay as prescribed by Govt.
Total	01 60 07”

5. We are concerned with the posts of Assistant Teacher (Science). Appellants herein belonged to the general category. They, however, suffer from disability. They are handicapped persons. Respondent No. 1 Yashwant Kumar Ahirwar, a handicapped person but also belonging to the reserved category candidate was not selected. He approached the Administrative Tribunal. The Administrative Tribunal by a judgment and order dated 27.11.1999 opined that he had no right of appointment on the post of Assistant Teacher (Science) having not been selected by the Selection Committee stating:

"4. On perusal of the advertisement published in the Rojgar Nirman dt. 26th May, 1994 (Ann. P.8), it appears that the respondent had advertised 8 posts for the reserved category for scheduled castes and 8 posts for the handicapped persons. The respondents showed the reserved category separately in the body of the advertisement, though the heading of such advertisement is misleading that applications are also invited from the candidates belonging to the category of S.C. & S.T. but the body of the advertisement leaves no room for doubt that 8 posts were got reserved for the candidates belonging to the Scheduled Castes and 3 posts for handicapped persons without having any caste wise reservation. The respondent made it clear in their return that there was also special drive to fill the vacancies belonging to the handicapped persons pursuant to the circular issued by the State Government on 29th March, 1993 (Ann.J-1). There was clear direction therein that such vacancies should be filled by the end of 30th June, 1993"

6. On a writ petition having been filed by him, the High Court, however, by reason of the impugned judgment while setting aside the order of the Tribunal, directed:

"….Therefore, in the said facts of the case it will be appropriate that the State Government should examine minutely and decide whether the posts could be filled from the general category when advertisement was for reserved category mentioned in the advertisement. The State Government shall also examine whether these posts are to be filled from the members of scheduled tribes only or from the members of scheduled castes only or from the category of other backward castes or these posts were for all the categories mentioned above. State Government should also consider whether the reservation was in accordance with the reserved proportion shown in the Annexure-R/1 filed by the State. Annexure R/1 is issued by the State Government on 29th March, 1993. State shall also examine whether at the relevant date any post of the handicapped candidate in general category was vacant. If no post was vacant then no person from general category could be appointed against these posts. State shall determine that the category advertised had been properly filled. The entire exercise be conducted within a period of three months from the date of communication of the order..."

7. The stand of the State before the Tribunal as also the High Court had been that the posts reserved for the handicapped persons were open to all. Even after the direction of the High Court, the State was of the view:

"1 The filling of the three posts of Assistant Teachers (Science) as mentioned in the Advertisement, could be carried out from the handicapped candidates of any category.

2 The Advertisement published by the Commissioner, Chambal Division, regarding special drive for recruitment of Scheduled Caste/Tribes and filling of the posts of handicapped persons, was issued in compliance of the instructions issued from time to time by the General Administration Department and the Circular vide No. F.9- 2/93/1/Res.Cell, Bhopal Dated 29th of March, 1993, but in the language of the heading of the Advertisement, the words " and handicapped" should have been used along with Scheduled Caste/Tribes, which has not been done so.

3 At that time in the quota for the handicapped persons, 3 posts of Assistant Teacher (Science) were vacant, for filling of the same, proposals were forwarded by the Joint Director, Education, Gwalior Division, vide its letter No. Estt.3/DRA/Gwalior/268 dated 1st of March, 1994, to the Commissioner, Chambal Division.

Resultantly, simply in the language of the heading of the Advertisement, because of not mentioning of the word "Handicapped" at the relevant time, the selection committee has fully complied with the directions/instructions issued by the Government, and the selection procedure is without any fault and guiltless."

8. A contempt petition was filed at a later stage. In the contempt proceedings, the State took a volte face. It inter alia took the stand that the advertisement was not proper and directed:

"9. Resultantly, the advertisement issued by the Commissioner, Chambal Division and published on 26th of May, 1994 in Rojagar Samachar, was not proper advertisement relating to vacant posts for the category of handicapped persons. Therefore, on the basis of this advertisement, selection made against the quota for handicapped persons, being not proper, is liable to be cancelled. Because the handicapped teachers are presently in service selected on the basis of this selection, their services will have to be terminated, and, therefore, the competent officer shall issue a show-cause notice to them, an opportunity for being heard, should be extended to them."

9. In terms of the said decision, a show cause notice was issued upon the appellants herein as to why their services shall not be terminated. The services of the appellants were terminated. Appellants filed a Special Leave Petition against the original order dated 1.05.2003. However, it is now accepted that services of some of the appellants have been terminated.

10. The State in terms of Article 16 of the Constitution of India may make two types of reservations  vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation.

11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The circular letter was issued only for the said purpose. A bare perusal of the said circular letter dated 29.03.1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof.

12. Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and Conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. It is a travesty of justice that despite the State clarified its own position in its order dated 1.01.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a presumption that as the word "handicapped" was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of Executive Construction was given a complete go bye. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner /respondent, it could have done so. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 212 : AIR 1993 SC 477], reservation for women or handicapped persons would not come within the purview thereof.

13. Furthermore, when the decision was taken, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the 1995 Act") had come into force. In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.

14. For the reasons aforementioned, we not only set aside the judgment of the High Court but also direct that the persons whose services have been terminated in terms of 4.02.2004 should be continued in service. We furthermore direct that they should be paid back wages as also other service benefits. Respondent No. 1 could have been considered both as handicapped persons as also Scheduled Castes and Scheduled Tribes. If all the vacancies meant for Scheduled Castes, Scheduled Tribe had not been filled up, the State may consider appointing him. If he has already been appointed, the State may consider the desirability of creating a supernumerary post and continue his service therein.

15. The appeals are allowed with costs. Counsel's fee assessed at Rs. 25,000/- in each case.

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