Friends Pasting this below as it failed to get on the list. Harish Kotian Dear all, Please make a note of the important judgements issued by Honourable Judge of high cort Gujarat. This judgement is related to appoint the blind candidate as primary teachers.
The complete text of the judgement is copied below. With warm regards, Praful Vyas, Hon. Secretary, Andhjan Kalyan Trust, SCA/6858/2010 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6858 of 2010 With SPECIAL CIVIL APPLICATION No. 8359 of 2011 With SPECIAL CIVIL APPLICATION No. 9495 of 2011 With SPECIAL CIVIL APPLICATION No. 8396 of 2011 With CIVIL APPLICATION No. 6481 of 2010 With CIVIL APPLICATION No. 7678 of 2011 with CIVL APPLICATION NO.11382 OF 2012 With CIVIL APPLICATION No. 6313 of 2012 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question of 4 law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== AKABARI KAUSHIK HANSRAJBHAI & others Versus STATE OF GUJARAT & another ====================================== Appearance : MR KB PUJARA for Petitioners Mr. Maulik Nanavati, AGP with Ms. Amita Shah, AGP, for respondents Mr. Dipen Desai for applicant in Civil Application No.6313 of 2012 ====================================== SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 2/24 JUDGMENT CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/11/2012 COMMON CAV JUDGMENT 1 The basic challenge in all these petitions is at the instance of the petitioners who are in a category of Physically Handicapped candidates being defined as 'blind' / low vision and percentage is 100%, and denied appointment to the post of Vidya Sahayak (Primary Section Std. VI to VIII) and 'Disability' as defined under Section 2(b) and 2(i) of the Persons with Disabilities (Equal Opportunities, Projection of Rights and Full Participation) Act, 1995, [for short, 'the Act'], is the ground so referred in Clause 7 of the Resolution dated 15th April 2010 issued by the Department of Education, State of Gujarat. 2 The conspectus of the law as emerging from various decisions of the Apex Court on the subject of employment qua differently abled persons, is as under: "The highlight of the issue is that these are not the matters only relating to a claim for employment, but backed by a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity and to be handled with sensitivity. Given sensitivity, appropriate societal response and support, one can imagine how much contribution is possible to society even by severely disabled persons, as can be inspired from Stephen William Hawking - a world renowned teacher. It is essential to deal with the present matters in order to ensure that the object of the Persons with Disabilities (Equal Opportunities, Projection of Rights and Full Participation) Act, SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 3/24 JUDGMENT 3 1995, which is to give effect to the proclamation on the full participation and quality of the people with disabilities in the Asian and Pacific regions, and the intention of the legislature to provide for integration of persons with disabilities into the social mainstream 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, are fulfilled." Since common question of law and facts is involved in this group of petitions, they are heard and disposed of by this common judgment, taking Special Civil Application No.6858 of 2010 as lead matter. Special Civil Application No.6858 of 2010 & 8359 of 2011 4 For the year, 2010 an advertisement for 'Vidya Sahayak' indicated total posts as 10,000; as against 270 posts were reserved for physically handicapped persons which is below 3% of statutory limitation under the Act, 1995. Since online applications were not accepted, category applied by the petitioners was in 100% low vision. Page Nos.24, 28 and 30 of the petition reveal that candidates are meritorious and irrespective of the category of physically handicapped persons, they are eligible to be appointed on the strength of their merits. That Government Resolution of Department of Education dated 15.04.2010 prescribes the criteria, educational experience etc. and the percentage to be considered, particularly, Column No.7 of the said resolution runs counter to Clause 8 and denies the right of the petitioners to be considered for appointment. Disability to be seen in terms of Section 2(b) and 2(i) of Act includes blindness. The petitioners are qualified having all basic qualifications SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 4/24 JUDGMENT including B.Ed. and some of them even possess higher qualifications. 4.1 Reliance was placed on the decision in the case of National Federation of Blind v. Union Public Service Commission and Others reported in AIR 1993 SC 1916 about certain observations made by the Apex Court about blind persons visaviz appointments / promotions in public employment. Details are produced about competency of physically handicapped persons in paragraph 9 of the above decision. Representations dated 05.06.2010 were made before the competent authority in view of Sections 32 and 33 of the Act. Section 33 is about reservation for physically challenged persons. 4.2 A specific reference was made to communication dated 14.12.1999 addressed by Ministry of Social Justice and Empowerment, Government of India to the State Government Secretariats etc. about necessity to carry out the implementation of the Disability Act and to constitute the Expert Committee and further to identify suitable jobs in Government establishments. Page Nos.100 to 103 of the compilation is reproduction of reservation of jobs for physically handicapped persons in Group C and Group D posts under the Union of India. Item Nos.57 and 59 specifically refer to blind persons including teachers in higher secondary and middle class schools. Page No.104 is G.R. dated 13.01.2000 by Department of Social Justice and Empowerment, State of Gujarat, by which, the posts were to identified analogous to the posts of Union of India. Reference is made at Page 106 dated 06.07.2010, and at Paragraph 113, appointments were given. 4.3 It is to be noted that, in the additional affidavit, against the oral directions given by the learned Single Judge and a statement was made by the learned Assistant Government Pleader and in spite of the SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 5/24 JUDGMENT pendency of the petition, appointments were made. Paragraphs 115 and 117 reveal merit of Patel Haresh having 68.37% and total merit of 66.03% in the list. So is the case of a similarly situated primary teacher who was awarded a Certificate of extraordinary service being a blind person. This court, in the case of Palak K. Jain vs. Union of India, reported in 2001 3 G.L.H. 299, interpreting the statute held that the reservation about physically handicapped persons is not to be counted within ceiling of 50%. Prayer made in both petitions is to direct the respondents to consider them for appointment on the post of vidya sahayak in pursuance of the advertisement dated 28.5.2010. Special Civil Application No.8396 of 2011 5 So far as this Special Civil Application is concerned, it was filed before the advertisement dated 20.07.2011. In this case also, there are candidates having merit and the cutoff prescribed in the category of physically handicapped is lower than the percentage of the petitioners. In the above backdrop, it is submitted that the appropriate Government has not even identified the posts in the establishment, which can be reserved for the persons having disability, and at periodical intervals not exceeding 3 years, it is to be reviewed. It is submitted that non identification of posts which can be reserved for persons with disabilities will not preclude the State Government of appointing candidates with disabilities and deprive the statutory right of the persons with disabilities. In absence of notification as required under Section 33 of the Act, the respondent authority is duty bound to appoint the petitioners since in every establishment such percentage of vacancies not less than 3% are to be reserved for persons with disabilities and out of which, 1% each shall be reserved for persons suffering from blindness or low vision. However, no notification, as contemplated in proviso to SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 6/24 JUDGMENT Section 33 of the Act exempting any department or establishment of the Government, is issued as on date. Reliance is placed on Section 2(b) and Section 2(i) which define blindness. Prayer made in this petition is to consider the petitioners for appointment on the post of vidya sahayak in pursuance of the forthcoming advertisement. Special Civil Application No.9495 of 2011 6 In this matter, prayer made is to direct the respondents to consider them for appointment on the post of vidya sahayak in pursuance of the advertisement dated 15.7.2011 and the Court passed the order dated 25.8.2011 as under: "RULE. To be heard with Special Civil Application No.8396 of 2011. Heard learned advocate Mr.Pujara and learned Assistant Government Pleader Mr. Sharma on the aspect of interim relief. Learned advocate Mr. Pujara relies on an order passed by this Court in Civil Application No.7678 of 2011 in Special Civil Application No.8396 of 2011 dated 21st July, 2011 to indicate that the candidates who were the petitioners in that petition and who where visually impaired were granted an interim relief by Court directing the respondent authorities to accept their application. Learned advocate Mr. Pujara submitted further that they all have been issued call letters. The present petitioner had approached the respondent authorities stating that though she was not a petitioner in the said petition she is similarly situated i.e. visually impaired, and, therefore, her application may also be accepted, and the respondent authorities accepted her request and her application. However, the respondent authorities have not issued any call letter to the petitioner although she is on a better footing on merits considering either that she is a candidate belonging to Scheduled Tribe or that she is a candidate belonging to physically handicapped category. Under circumstances it is directed by way of interim relief that the petitioner shall be given the same treatment as the petitioners in SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 7/24 JUDGMENT 7. Special Civil Application No.8396 of 2011 that is to say, she will be issued a call letter and would be permitted to respond to the call letter. She may be given the same treatment as the petitioners of Special Civil Application No. 8396 of 2011, who are similarly situated, that is, visually impaired. Direct Service today is permitted." Earlier, this Court passed order dated 8.9.2011 as under: "Heard learned Advocate Mr. K.B. Pujara for the petitioners and learned Assistant Government Pleader Mr. Nirag Pathak for the respondent - State. 2. Learned Advocate Mr. K.B. Pujara for the petitioners in all these petitions submits that an advertisement dated 15.07.2011 for recruitment of Vidya Sahayak (Standard 6 to 8) for the year 2011 is issued for 13000 posts and if 3% of reservation is contemplated under the provisions of Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short, 'the Act'), approximately 390 posts are to be reserved for the persons defined as disabled, against which 366 posts are reserved for the said category of persons. 3. On instructions, learned Assistant Government Pleader Mr. Nirag Pathak submits that the selection process undertaken pursuant to the above advertisement has uptill now considered the candidates and filled in about 11600 posts and rest of the posts are under process. 4. Considering what is recorded by this Court in the common order passed on 06.09.2011 in group of these Special Civil Applications that in earlier advertisement for the year 2010, there was a deficit of about 30 vacancies reserved for the category of the persons defined as disabled and out of the total posts of 'Vidya Sahayak' namely 10,000, 270 posts were reserved. Inspite of the oral order passed by the Court and instructions given to the learned Assistant Government Pleader, recruitment process was carried out by filling up of the vacancies to which the learned Assistant Government Pleader appearing for the respondent has reservations and would submit that no such oral directions were given. However, learned AGP submit that for vacancies of 2010, advertisement has also remained unfilled. SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 8/24 JUDGMENT 5. Be that as it may, so far as advertisement dated 15.07.2011 8 issued by the authority for recruitment of 'Vidya Sahayak' for the year 2011 for about 13,000 posts and advertisement of 2010 for 10,000 posts, no further steps shall be taken in whatsoever manner henceforth, towards selection / appointment of 'Vidya Sahayak' for the remaining unfilled vacancies / posts of both the advertisements, except the case in which the Court directs the authority to consider the case of the petitioners of this petition or any other petition pending before this Court, in accordance with law. S.O. to 19th September, 2011." Mr. K.B. Pujara, learned counsel for the petitioners, has submitted that the petitioners are highly meritorious candidates and they have acquired qualifications of B.A. B. Ed or higher qualification of M.A. M. Ed. with English, Hindi or Gujarati as the main subject. The learned counsel for the petitioners has referred to advertisement dated 9.6.2010 issued by the respondents and submitted that the blind candidates can also seek admission in PTC course since the petitioners are capable of discharging duties as teachers having requisite qualification being B.Ed. and M.Ed. If the blind candidates cannot be appointed as teachers, the authorities would not grant admission to blind candidates in the teacher education courses like PTC, B.Ed. or M.Ed. Even the Universities in Gujarat have made reservation to the extent of one per cent for the blind persons at the time of admission to the B.Ed. Course. It is further submitted that at present a large number of blind persons are successfully discharging their duties as teachers under various District Education Committees. 8.1 The learned counsel for the petitioners submits that, under the Act, in the matter of employment, minimum 3% of vacancies are to be reserved for physically handicapped candidates, out of which, one per cent is to be reserved for blind and lowvision candidates. The Statute also provides for carryforward of the unfilled vacancies reserved for SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 9/24 JUDGMENT disabled persons. That, the petitioners are entitled to live a meaningful life like all other normal citizens and they have obtained requisite qualifications by sincere and hardwork and the visually handicapped persons can perform the jobs entrusted to them with equal efficiency. Relying on various provisions of the Act, more particularly, Section 33 of the Act, it is submitted that the respondents cannot deny to select and appoint the petitioners merely because the petitioners are blind and, therefore, clause 7 of the impugned Government Resolution dated 15.4.2010 is illegal and unlawful and deserves to be quashed and set aside to such extent, in as much as, it runs contrary to the direction given by the Central Government in the communication dated 14.12.1999 and the provisions of the Act. 8.2 In rejoinder, it is submitted that under Section 32 of the Act, the Government is required to identify the posts in the establishment which can be reserved, as provided under Section 33, for the persons with disability including for the blind people and, for that purpose, the Government of India has constituted an expert committee to identify/review the posts in Group A, B, C, and D to be reserved for the persons with disabilities in the Ministries/Departments and public sector undertakings. In the posts so identified, the post of Language Teachers in Middle Schools have been identified as suitable posts for blind people. That, the Government of Gujarat also, thereupon, constituted an expert committee which decided to accept the lists of the posts identified by the expert committee of the Central Government. The learned counsel has drawn attention of the Court to the fact that a large number of blind candidates are having higher merit than other candidates and yet the respondents are denying appointments to such meritorious blind candidates. For example, referring to a callletter (Annexure "L"), it is submitted that the merit marks of the petitioners are 68.37% which is SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 10/24 JUDGMENT the higher than the merit marks of the last candidate of open category (English Teacher) being 66.03%. That, the State Government has already identified post of language teachers as well as teachers in social sciences for the blind persons at the middle school level i.e. Std. VI, VII, and VIII. Relying on Article 27 of the UN Convention on the Rights of Persons with Disabilities, it is submitted that the people with disabilities have an equal right to work at a freely chosen job without discrimination. It is the legal right of a qualified blind person, and not a matter of charity, to appoint as a language teacher. Hence, the action of the respondents of denying appointments to such meritorious blind candidates is patently illegal, unconstitutional and contrary to the provisions of the Act and Article 27 of the UN Convention on the Rights of Persons with Disabilities. 8.3 Learned counsel for the petitioners refers to the facts about individual merit and others things about the petitioners, as reproduced hereinbelow in tabular form: Special Civil Application No.6858 of 2010 Ptnr' s No. 1 2 3 4 5 6 7 Name Akbari Kaushik Hansrajbhai Jadav Manisha Ramnikbhai Patel Darshankumar Ratilal Patel Hareshkumar Rajnikant Makwana Dipak Prahladbhai Gamit Dipeshkumar Girishbhai Thaker Krishna Indukumar Category BL, Gen, Hindi BL,Gen, English BL, Gen, Sanskrit Open, Gen, English (BL) BL, SC, Gujarati BL, ST, Gujarati Open, Gen, English Petitioner's merit 68.28 64.83 69.78 68.37 65.23 58.35 68.28 Last candidate's merit 67.10 47.50 67.10 66.03 (47.50) 49.95 51.05 66.03 (47.50) SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 (BL) 11/24 JUDGMENT 8 9 10 11 12 Patel Mukeshbhai Jayantibhai Sheth Dipikaben Sumatibhai Parmar Kiritbhai Kanchanlal Rangrej Haji Mohmmad Rehmanbhai Shahu Ramrati Jagdishbhai BL, Gen, Gujarati BL, Gen, Hindi BL, SC, Hindi BL, Gen, Hindi BL, Gen, Hindi 54.10 62.45 61.18 56.55 69.07 67.10 67.10 49.95 67.10 67.10 13 14 15 16 17 18 19 20 21 22 Patel Ilaben Amratlal Open, Gen, English (BL) Parekh Dharaben BL, Gen, Ashwinbhai Hindi Gohil Chetna BL, Gen, Balwantsinh Gujarati Afrikawala Shakir BL, Gen, Saifuddin Hindi Shah Alpeshkumar BL, Gen, Bhaktiprasad English Solanki Shantilal BL, SC, Panabhai Gujarati Patel Muniraben BL, Gen, Yakubbhai Hindi Harawara Rajesh BL, Gen, Jamanbhai English Mistri Kunjalkumar BL, Gen, Prahladbhai Sanskrit Shaikh Hushnuddin BL, Gen, Abdul Rehman English 68.59 74.09 63.82 67.97 56.39 58.84 64.83 62.55 67.42 59.98 66.03 (47.50) 67.10 67.10 67.10 47.50 49.95 67.10 47.50 67.10 47.50 Note : Only the petitioner nos. 8, 9, 11, 15 and 19 do not come within the merit. All other petitioners come in the merit, and the petitioner nos. 4, 7 and 13 come in the Open Merit without the benefit of reservation for Physically Handicapped. Special Civil Application No.8359 of 2011 Ptnr' s No. 1 Name Parmar Mukeshkumar Kiranbhai Category BL, SC, Hindi Petitioner's merit 62.27 Last candidate's merit 49.95 SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 12/24 JUDGMENT Special Civil Application No.8396 of 2011 Ptnr' Name Category s No. Petitioner's merit Last candidate's merit 1 2 3 4 5 6 7 Note : Borase Yogesh Ramchandra Mithapara Pravinbhai Jivrajbhai Patel Hareshkumar Rajnikant Segaliya Ravibhai Punabhai Jadav Manishaben Ramnikbhai Vaivala Vishnu Mahendrakumar Patel Arvaben Turabbhai BL, Open, Language BL, SEBC, Language BL, Open, Language BL, Open, Language 67.13 59.76 69.27 58.62 54.33 54.33 54.33 54.33 54.33 54.33 54.33 All the Blind candidates come in the Merit because as against 65 vacancies for Visually Impaired candidates (@ 1% of total 6500 vacancies of Language Teachers) only 34 candidates are available and the merit of the last candidates is 54.33. All the petitioners' Merit is more than 54.33 Special Civil Application No.9495 of 2011 Ptnr' s No. 1 Note : Name Devda Kokilaben Madhubhai Category BL, ST, Language Open, ST Language Petitioner's merit 61.69 Last candidate's merit 54.33 61.54 The petitioner comes in the merit of ST candidates even without the benefit of reservation for Physically Handicapped. 8.4 The above factual aspect of merit of individual candidates remains undisputed. In view of the above, learned counsel for the petitioners would submit that the action of the respondentauthority of denying appointment on the post of vidya sahayaks is not only unreasonable, arbitrary and discriminatory but also illegal and violative of Articles 14 SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 13/24 JUDGMENT and 16 of the Constitution of India and deserves to be quashed and set aside by issuing a mandatory direction as prayed for in each of the petitions. 8.5 In support of his submissions, the learned counsel for the petitioners has relied upon the following judgments: (i) AIR 1993 SC 1916: National Federation of Blind vs. Union Public Service Commission: (ii) 2001 (3) GLH 299: Palak K. Jain vs. Union of India; (iii) AIR 2008 SC 990: Bhagwan Dass vs. Punjab State Electricity Board. (iv) (2010) 7 SCC 626 : Government of India vs. Ravi Prakash Gupta: (v) (2010) 3 SCC 603 : Syed Bashiruddin Qadri vs. Nazir Ahmed Shah: (vi) 2004 Law Suit (Orissa) 271 - Shikshan Sahayak paras 3 and 6. 9 Learned counsel appearing for the respondents has relied upon the affidavitinreply and submitted that, as provided in clause 7 of Government Resolution dated 15.4.2010, those candidates, who are physically handicapped being disabled as blind, low vision, leprosy cured, hearing impairment, locomotive disability, mental retardation and mental illness and others and who are 100% blind, cannot be given appointment of teachers in primary school. It is further submitted that, looking to the nature of functions, if a teacher is not himself physically capable of performing those duties, it would be almost impossible for the teachers to impart proper guidance to the students for whom the teachers are source of big inspiration as well as the guarding light who would show the students as to what is right and what is wrong. There are other difficulties also which may include answering of certain queries of the students by explaining the same on the blackboard and checking of homework done by the students and keeping a check on the hand SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 14/24 JUDGMENT writing of the students, etc. The duty of the teachers in the beginning years of the students is at the highest level and very important which has an impact over the student for the life time. Even, movement of such teachers from one classroom to another would consume a lot of time. As regards 'equal opportunity', it does not mean that visually handicapped persons have to be given even those jobs which they are not able to perform. The Apex Court does not confer any rights but only gives a space to both, candidates as well as the State Government, to see that those posts where blind and partially blind persons can be appointed but are deprived of the same, can be taken care of but it does not confer a right to them for appointment on each and every post. On appointment of such teachers, future of the students will suffer and, taking into consideration the fact that no injustice is done to those students who have come to the school for getting proper education with proper teaching, not only of academics but also of discipline, character and behaviour, the State Government has taken a policy decision with which this Court may not interfere in exercise of extraordinary power under Article 226 of the Constitution of India. 10 Statement of Objects and Reasons of the Persons with Disabilities (Equal Opportunities, Projection of Rights and Full Participation) Act, 1995, reads as under: "The meeting to launch the Asian and Pacific Decade of the Disabled Persons 19932002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region, India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide the following: (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 persons with disabilities; 15/24 JUDGMENT (ii) to create barrier free environment for persons with disabilities; (iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, visavis non disabled persons; (iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; (v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and (vi) to make special provision of the integration of persons with disabilities into the social mainstream. 2. Accordingly, it is proposed to provide inter alia for the constitution of Coordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged. 3. The Bill seeks to achieve the above objects." Section 2 provides 'definitions', which read as under: (a) 'appropriate Government' means (i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924 (2 of 1924), the Central Government; (ii) in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government; (iii) in respect of the Central Coordination Committee and the Central Executive Committee, the Central Government; SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 16/24 JUDGMENT (iv) in respect of the State Coordination Committee and the State Executive Committee, the State Government; (b) 'blindness' refers to a condition where a person suffers from any of the following conditions, namely: (i) total absence of sight; or (ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or (iii) limitation of the field of vision subtending an angle of 20 degree or worse; (i) 'disability' means (i) blindness; (ii) low vision; (iii) leprosycured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; (j) 'employer' means, (i) in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and (ii) 'in relation to an establishment, the Chief Executive Officer of that establishment; (k) '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 (1 of 1956) and includes Department of a Government; (u) 'person with low vision' means a person with impairment of visual functioning even after treatment or standard refractive correction but who uses or is potentially capable of using vision for the planning or executor of a task with appropriate assistive device; (v) 'prescribed' means prescribed by rules made under this Act; In Chapter VI, Section 32 - Employment - provides as under: 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 update the list taking into consideration the developments in technology. SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 17/24 JUDGMENT Section 33 - Reservation of posts provides as under: 33. 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. Section 36 provides for vacancies not filled up to be carried forward and Section 38 provides for schemes for ensuring employment of persons with disabilities. In Chapter VII - Affirmative Action - Section 42 - Aids and appliances to persons with disabilities - provides that the appropriate Government shall by notification make schemes to provide aids and appliances to persons with disabilities. Section 47 provides for nondiscrimination in Government employment. 11. Having heard the learned counsels appearing for the parties respectively, on perusal of the record of the case, relevant Rules governing recruitment of Vidya Sahayaks and the decisions of the Apex Court in the context of the subject matter, it is not in dispute that recruitment for the post of Vidya Sahayaks is undertaken by the Director, Primary Education, State of Gujarat, upon requisitions of posts of Vidya Sahayaks for respective categories, general, SC, ST, SEBC, sent by various Districts/Nagar Education Committees as the case may. Amendment to Section 23 of the Bombay Primary Education Act, 1947, empowers formation of State Level Staff Selection Committee for primary teachers and, accordingly, Government Resolution dated 25.5.2010 and SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 18/24 JUDGMENT Government Resolution dated 27.4.2011 issued by the General Administration Department, State of Gujarat, prescribe constitution of State Level Committee, namely, Gujarat State Primary Education Selection Committee and detailed requisite qualification for Vidya Sahayaks for respective categories and other general instructions. 12 If the Statement of Objects and Reasons of the Act of 1995 is seen, with a necessity to enact a suitable legislation for full participation and equality of people with disabilities in the Asian and Pacific Region, the Parliament enacted the above Act for protection of rights including that of employment of persons with disabilities so as to create barrier free environment and to remove any discrimination and providing benefits of development and to prevent abuse and exploitation of persons with disabilities, a comprehensive mechanism for development of programmes and services and equalization of opportunities is provided. So far as the relevant provisions reproduced hereinabove are concerned, there is no dispute raised and, therefore, the case of the petitioners is to be considered on the basis of kind of disability which is defined in Section 2(b) and 2(i) of the Act and the respondent is an 'establishment' under Section 2(k) and the matter pertaining to 'employment' has basis in identification of posts which can be reserved for the persons with disabilities as required under Section 32 of the Act and every appropriate Government shall have to 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 three types of disabilities as provided in Section 33. Section 42 provides for aids and appliances to persons with disabilities and Section 47 is about nondiscrimination in government employment. Thus, the advertisement, if seen, as issued on 15.7.2011, is for recruitment of vidya sahayaks [Std. VI to VIII) for the year 2011 for SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 19/24 JUDGMENT 13000 posts and, with the requirement of three percentage of reservation as contemplated under Section 33 of the Act, it was incumbent upon the State Government to reserve 390 posts for persons with disabilities as against 366 posts reserved for the above category and, thus, it is clearly violative of Section 33 of the Act. Likewise, in the earlier advertisement for the year 20102011, as against 10,000 posts of vidya sahakyaks advertised, 270 posts were reserved for the persons with disabilities with a shortfall of about 30 vacancies and, thus, in the matter of reservation for the persons with disabilities for recruitment in the year 2010 also, the action of the State Government is violative of Section 33 of the Act. There is a provision in the Act to carry forward vacancies which are not filled up as required under Section 36 of the Act, therefore, the respondents are duty bound to advertise shortfall of 30 posts for recruitment in the year 2010 and 24 posts for recruitment in the year 2011, which are to be carried forward and advertised for the next year of recruitment for the post of vidya sahayaks. 13 The sole reliance placed by the respondents on clause 7 of the Government Resolution dated 15.4.2010 and explanation given by them in the affidavitinreply and further affidavit, are misplaced in as much as communication dated 14.12.1999 was addressed by the Ministry of Social Justice and Empowerment, Government of India, to the State Government and all their Secretaries about necessity to carry out the implementation of the Disability Act and to constitute the Expert Committee and further to identify suitable jobs in Government establishments. It further recommended reservation for jobs for physically handicapped persons in Group C and Group D posts under the Union of India and specifically for blind persons including teachers in higher secondary and middle class schools. Accordingly, the Department of Social Justice and Empowerment, State of Gujarat, issued Government SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 20/24 JUDGMENT Resolution dated 13.1.2000 by which the posts were to be identified analogous to the posts of Union of India. But, by incorporating clause 7 of the Government Resolution dated 15.4.2010, the very object and purpose of the Act of 1995 of removing discrimination in the matter of providing employment to disabled persons is nullified and clause 7 runs contrary to objects and reasons of the Act of 1995 including provisions of Sections 32, 33 and 36 of the Act. 13.1 Further, in the appendix appended with communication dated 14.12.1999 addressed by the Ministry of Social Justice and Empowerment, Government of India, to the State Government Secretaries, etc., items Nos. 57 and 59 refer to reservation of jobs for blind people as language teacher in higher secondary and middle class schools. In the notification dated 15.3.2007 issued by the Ministry of Social Justice and Empowerment, Government of India, the posts are identified for being held by the blind persons, namely, language teacher in higher secondary and secondary school and middle school and such incumbent should be considered with aid and appliances. Such teachers are appointed in the CBSC School. As per appointment orders and disability certificates produced on record, it is evident that the Kendriya Vidyalaya Sangathan, vide Memorandum dated 29.7.2009 and 24.11.2008, Viral Hitendrabhai Trivedi and Dinesh Bharvarsingh Rajpurohit were appointed to the post of TGT (English). 14 If the individual merit of the candidates, the petitioners herein, is seen, some of the candidates have acquired qualification of B.A. B.Ed and higher qualification of M.A. M.Ed. with English, Hindi and Gujarati as main subjects and, on the strength of their higher qualification and overall merit, they are eligible to stake claim in the general category. Such candidates and similarly situated persons have undergone thorough SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 21/24 JUDGMENT and detailed study of the subject for which they have applied pursuant to the advertisement for the post of vidya sahayaks. Not only that, but the candidates like the petitioners have also imparted education in class rooms by undergoing training and obtained Degrees of B.Ed and M.Ed and, therefore, for imparting education in the class room and to teach language as Language Teacher in Std VI to Std VIII, fully qualified candidates like the petitioners will have no difficulty. The special skills acquired by undergoing study of the subject and method of teaching are two important facets for a requisite qualification to be appointed as a teacher and all the petitioners do possess such qualification. The apprehension of the respondentauthority about inability of disabled persons like the petitioners to impart education and performing duties and functions as teachers, is not only misplaced but displays ignorance about ability of physically challenged persons to meet the challenges. This is a case which has to be handled with sensitivity where the candidates are placed in the category of physically handicapped due to blindness as defined in Section 2(b) and 2(i) of the Act, but, the stand taken by the respondents exhibits lack of vision on the part of the government authorities to create congenial environment for sustained, sustainable and inclusive growth of citizens of this country so that such persons are not deprived of benefit of overall development. 15 If the whole subject is considered in light of the direction given by the Union of India pursuant to communication dated 14.12.1999 in consonance with the Objects and Reasons and the purpose of the Act, the decisions relied upon by the learned counsel for the petitioners are applicable. Reliance is placed on the decision rendered in the case of Bhagwan Dass and Another v. Punjab State Electricity Board reported in AIR 2008 SC 990. Paragraph 14 of the said decision speaks about mind set of officers in case of appointment of persons with disability and SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 22/24 JUDGMENT that it is not charity to be conferred upon persons with disability (physically handicapped) and on the contrary, it is a right accrued to such persons under the Disabilities Act. In the decision rendered in the case of Government of India through Secretary and Another v. Ravi Prakash Gupta and Another reported in [2010] 7 SCC 626 - Paragraphs 22 and 23 to 29 of the decision state that whether on account of the failure of the petitioners - Government, to identify posts for the persons falling within the ambit of Section 33 of the Disabilities Act, whether P.W.D. be deprived of the benefit of his appointment on the ground of nonavailability of the vacancy in the category. The answer of the Supreme Court was that reservation under Section 33 of the Act is not dependent on identification as urged on behalf of the Union of India though the duty is cast upon the appropriate Government to make appointment in the number of posts reserved for the three categories mentioned in Section 33 of the Act, in respect of P.W.D. The decision of Syed Bashiruddin Qadri v. Nazir Ahmed Shah and Others reported in 2010 3 SCC 603 - Paragraphs 53 to 55 and 58 to 60, is also squarely applicable to the facts of the present case. 16. In the case of Orissa Association for the Blind vs. State of Orissa, decided on 16.10.2004, the High Court of Orissa, in similar subject matter in the case of appointment of Swechhasevi Sikshya Sahayaks and denial of appointment to candidates suffering from disability defined under Section 2(b) as 'blind', has observed in paragraph 9 as under: "9. Learned counsel for the State has relied upon the letter of Principal, Dibakar Patnaik, IASE dated 23.6.2000 addressed to the Director, T.E. And S.C.E.R.T., Orissa, annexed as Annexure C/3 to the counter affidavit. The said letter indicates that in general, the blind candidates should not be recruited as teachers because they cannot ensure effective pupil interaction, cannot use the blackboard and cannot handle audiovisual aids, those being the most important skills needed for teaching. This letter of the SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 23/24 JUDGMENT Principal of the aforesaid institution cannot override the resolution of the Government, which simply outweighs the object of the State Government regarding engagement of visually impaired person. The socalled expert's opinion relied upon by the State cannot override the statutory provisions made in the 1995 Act. Rather the decisions taken by the State Government at different points of time support the case of the petitioners. The affidavit filed by the Government Official runs contrary to the declared policy of the State. This being the position and there being no decision of the Government to debar the visually impaired, who are included in the physically handicapped category, from being engaged as SSS there was no reason for the State Government and its officers not to consider the case of the petitionerAssociation as well as such other applicants for engagements as SSS." 16.1 In the background of the aforesaid decision of the the High Court of Orissa, in my view, the averments made and contentions raised by the respondents in the affidavit in reply underlying duties and functions of a teacher and inability on the part of the petitioners being blind to discharge such duties and functions of a teacher, are against the grain of the Act, 1998. There is nothing on record to show that any action has been taken by the State Government to exempt appointment of vidya sahayaks from the application of the provisions of Section 33 of the Act. Therefore, the decision of the respondents not to consider the petitioners for their appointment as vidya sahayaks pursuant to the advertisement issued in the year 20102011, as referred to hereinabove, is contrary to the provisions of Sections 32, 33, 34 and 36 of the Act, 1995 and also unreasonable, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. 17 In the result, all the petitions are allowed. Clause 7 of the Government Resolution dated 15.4.2010 is quashed and set aside. The respondentsauthorities are directed to scrutinize the individual merit of the petitioners, as reproduced in the paragraph No.8.3, and to consider the candidature of blind candidates and other similarly placed candidates strictly in accordance with Section 33 of the Act, 1995 and, if SPECIAL CIVIL APPLICATION/6858/2010 17/11/2012 12:52:52 PM SCA/6858/2010 24/24 JUDGMENT they are found otherwise eligible, refinalise the select list prepared by them earlier pursuant to the advertisements dated 28.5.2010 and 15.7.2011. On such fresh select list being prepared, the candidates so selected be issued appointment letters. It is needless to say that this Court, by order dated 12.7.2010, had earlier directed that "appointments are subject to final outcome of this petition". The entire exercise shall be completed within eight weeks from the date of receipt of writ of this order. 17.1 It is made clear that the restriction imposed vide order dated 8.9.2011 in Special Civil Application No.8396 of 2011 restraining the respondents from taking any steps in furtherance of advertisements for the year 2010 for 10,000 posts and for the year 2011 for 13,000 posts of vidya sahayaks shall remain in operation till the petitioners of all these four petitions are appointed on the post of vidya sahayaks in accordance with their respective merit. 17.2 Rule is made absolute in each petition with no order as to costs. 17.3 Civil Application Nos. 6481 of 2010, 7678 of 2011 and 11382 of 2012 filed by the petitioners would not survive and stand disposed of accordingly. Notice is discharged with no order as to costs. 17.4 Civil Application No.6313 of 2012 is disposed of with an observation that, if the claim of the applicants of Civil Application No.6313 of 2012 is not in conflict with the claim of the petitioners in these four petitions, the case of the applicants of Civil Application No.6313 of 2012 may be considered in accordance with law and it is clarified that this order will not come in the way of the Authority concerned. Notice is discharged with no order as to costs. Direct service is permitted. (ANANT S. DAVE, J.) 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