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Gauhati High Court · body

2000 DIGILAW 185 (GAU)

Matiour Rahman v. State of Assam and Ors.

2000-05-19

D.N.CHOWDHURY

body2000
The issue raised in this petition pertains to the area of employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) in the following circumstances. 2. The Assam Public Service Commission, herein after referred to as the Commission, issued notification inviting applications from eligible persons for the Combined Competitive (Preliminary) Examination, 1996 for screening candidates so as to enable them to appear in the Combined Competitive (Main) Examination, 1996 for recruitment to the Assam Civil Service and other allied services. Petitioner also submitted application accompanied with requisite testimonials including a certificate certifying/testifying the petitioner as physically handicapped person with locomotor disability in the absence of a fore-arm below the elbow. The Commission after scrutinising the applications called upon the eligible candidates including the petitioner to appear in the Combined Competitive (Preliminary) Examination, 1996 which was to be held on 6.7.97. The results of the Combined Competitive (Preliminary) Examination, 1996 was declared by the Commission showing the names of those persons who qualified in the Preliminary Examination to appear in the Main Examination. Roll No. 3926 against which the petitioner appeared, was also declared to have been qualified in the Preliminary Examination to appear in the Combined Competitive (Main) Examination along with others. In due course, Admission Certificates for appearing in the Combined Competitive (Main) Examination were issued. The petitioner received one such Admission h Certificate admitting him to the Combined Competitive (Main) Examination, 1996 with the Roll No. 3926. The petitioner appeared in all the papers of the said Main Examination. The result of the Combined Competitive (Main) Examination was declared by the Commission on 5.9.98 and the result sheet showing the roll numbers of those candidates who qualified in the written examination to appear in the interview/viva voce to be held on October, 1998 was published by the Commission. Roll No. 3926 against which the petitioner appeared in the written Combined Competitive (Main) Examination, did not figure in the result sheet. Roll No. 3926 against which the petitioner appeared in the written Combined Competitive (Main) Examination, did not figure in the result sheet. In the present writ petition, the petitioner has challenged the above action of the respondents/authorities for not declaring him as a person qualified in the aforesaid Main Examination depriving him from appearing in the interview/viva-voce on the teeth of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, herein after referred to as the Act, 1995 under which three percent of the vacancies in every establishment was required to be kept reserved for persons with disabilities and out of which one percent was to be reserved for persons with locomotor disability. The petitioner further asserted that he being the only candidate with locomotor disability who had applied for recruitment to the Assam Civil Service and other allied services, it was incumbent on the part of the respondent/authorities to declare him as qualified for the interview out of the percentage reserved for persons with such types of disability. The petitioner, therefore, moved this Court by way of this writ petition , seeking, amongst others, a writ of Mandamus commanding the respondents to implement the scheme of three percent reservation for the disabled persons as per the mandate of the Act, 1955; and further commanding the respondents/Commi­ssion to issue call letter to the petitioner for appearing in the interview/viva-voce and for taking any other necessary steps as may be deemed fit and proper. 3. The State of Assam as well as the Assam Public Service Commission contested the case and submitted their affidavit-in-opposition, respectively. The Commission in its affidavit stated that the petitioner could not succeed in the Combined Competitive (Main) Examination, 1996. The Commission also stated that it did not give any special preference to the petitioner while evaluating his answer scripts so much so that the State Govt did not make any provision for reservation to the physically handicapped category of candidates in their requisition letter as well as in the draft advertisement forwarded to the Commission. The performance of the petitioner was evaluated as a general category candidate. The Commission was not the authority to make any reservation for any special category of persons until the Governmental authority made any provision for such reservation in the draft advertisement. The performance of the petitioner was evaluated as a general category candidate. The Commission was not the authority to make any reservation for any special category of persons until the Governmental authority made any provision for such reservation in the draft advertisement. The Commission reiterated that in the requisition for selection of candidates and/or holding of Combined Competitive Examination as well as in the draft advertisement, the State Govt did not make any reservation for the physically handicapped category of persons. It also stated that it did not seek for information from the candidates as to whether they belonged to the physically handicapped category of persons or not in the absence of reservation for such category of persons in that year as was stated/mentioned in the requisition from the State Govt or the draft advertisement. 4. The State Govt in its affidavit indicated about some notification wherein it made some provision for reservation in the Grade III and Grade IV posts to the extent of three percent for the physically handicapped persons; but no such reservation was provided for by the Personnel Department as regards the posts filled up through the Combined Competitive Examination conducted by the Assam a Public Service Commission. 5. Mr. A. Roy, learned senior counsel appearing on behalf of the petitioner submitted that the Act in question v\as enacted to provide for full participation and equality of persons with disabilities in all fields of activities/life. The statute entrusted upon the appropriate Govt, statutory responsibly to appoint in every establishment such percent of vacancies as specified in the Act, persons or class " of persons with disability. The Act also invested upon the State and other authorities with the responsibility to take an affirmative action for implementation of the Act. The statute is a beneficial statute and the benefits of the statute was/were meant to be extended to the eligible people and not constricted. Mr. Roy, the learned senior counsel appearing for the petitioner submitted that the statute was concerned with the essential aspects of human rights and the respondents/ authorities were bound to give effect the provisions of the said Act. The petitioner who was/is eligible for protection under the Act was/is, therefore, entitled to be considered for appointment in the civil service of the State under the quota earmarked by the statute for the disabled persons. 6. The petitioner who was/is eligible for protection under the Act was/is, therefore, entitled to be considered for appointment in the civil service of the State under the quota earmarked by the statute for the disabled persons. 6. The respondents on the other hand submitted that reservation of posts under the Act, 1995 are to be made after identifying the posts in the various establishments those were to be meant for reservation for the persons with disability. That there was no reservation so far made under the Act, 1995 in the matter of recruitment of persons in the Assam Civil Service and other allied services; and that till such posts are reserved by the appropriate Govt on identifying the posts, question of considering the case of the petitioner for appointment as a person with disability under the provisions of the Act cannot arise. 7. The reach and content of the Act, 1995, the rights and obligations that stems out therefrom vis-a-vis the Court's powers to administrative exercise of discretion, are the issues for adjudication in this writ petition. For the purposes of appreciation of the point or points in question and also to estimate the rival contentions of the parties, it would be felicitous to scan the provisions of the Act, 1995. The Act, 1995 (Act 1 of 1996) was enacted to give effect to the proclamation of full participation and equality of people with disabilities in the region of Asia and Pacific. The Act is arranged in fourteen chapters comprising seventy four sections. Preliminaries including the definitions are embraced in Chapter 1 of the Act, 1995. The constitution of term of office of the members, functions of the Central Co-ordination Committee as well as the State Co-ordination Committee are provided for in Chapters II and III, respectively. Duties and responsibilities for prevention and early detection of disabilities are entrusted to the appropriate Govt and local authorities in Chapter IV of the Act, 1995. The appropriate Govt and the local authorities are also entrusted with the duty to provide children with disabilities free education including non-formal education, etc under Chapter V of the Act, 1995. Chapter VI of the Act, 1995 relates to employment including identification and reservation of posts for persons with disabilities. The appropriate Govt and the local authorities are also entrusted with the duty to provide children with disabilities free education including non-formal education, etc under Chapter V of the Act, 1995. Chapter VI of the Act, 1995 relates to employment including identification and reservation of posts for persons with disabilities. Chapters VII,VIII, IX, X, XI, XII and XIII embrace some form of affirmative action to remove disability and to provide for full participation and equality of people with disabilities, create an environment of non-discrimination in locomotion, Govt employment. research and man power development, recognition of institutions for persons with disabilities, to establish and maintain institutions for persons with disabilities, appointment of Chief Commissioner/Commissioner for persons with disabilities vis-a-vis power to provide social security measure, respectively. Chapter XIV of the Act, 1995 contains miscellaneous provisions. Some of the relevant provisions of the Act, 1995 for the purposes of adjudication of this case are reproduced below: "2. (e) 'cerebral palsy' means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the prenatal, peri-natal or infant period of development; 2. (i) 'disability' means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; 2. (j) 'employer' means - (i) in relation to a Govt, 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 ChiefExecutive Officer of that establishment; 2. (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 Govt or a local authority or a Govt company as defined in section 617 of the Companies Act, 1956 and includes Departments of a Govt; 2. (o) 'locomotor disability' means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy; 32. Identification of posts which can be reserved for persons with disabilities-Appropriate Govt shall - (a) identify posts, in the establishment, 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 development in technology. 33. Identification of posts which can be reserved for persons with disabilities-Appropriate Govt shall - (a) identify posts, in the establishment, 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 development in technology. 33. Reservation of posts-Every appropriate Govt shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one percent shall be received 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 Govt may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as maybe specified in such notification, exempt any establishment from the provisions of this section." 8. The Act in question no doubt comprehends provisions for attaining the Constitutional goal set out by the founding fathers of the Constitution for securing to the citizens justice in all forms, mainly social and economic justice, equality of status and opportunity, and to promote fraternity assuring the dignity of the individuals. The Act is a step forward for attaining the Constitutional goals and to make a barrier free environment to provide full participation and equal opportunities for people with disabilities in all forms. It has sought to remove all forms of discrimination against the persons with disabilities in participating in the developing benefits vis-a-vis non-disabled persons, to counteract any form of abuse or exploitation of such persons and to lay down strategies for comprehensive development and equalisation of opportunities to persons with disabilities, as also to make special provisions for integration of persons with disabilities with the social mainstream. Keeping in mind the aforesaid objects, the Legislature also " gave primary importance to such persons in the area of employment and for that purpose, curved out a special chapter in the Act, 1995, viz., Chapter VI. Keeping in mind the aforesaid objects, the Legislature also " gave primary importance to such persons in the area of employment and for that purpose, curved out a special chapter in the Act, 1995, viz., Chapter VI. With a view to make the equality clause more meaningful to such class of persons, the Legislature also provided a means to the appropriate Govt for reservation of pots for person (s) or class of persons with disability (ies) and for that purpose entrusted a responsibility with the State Govt to identify posts in the establishments that can be reserved for persons with disability and to make periodical revision of the list of posts identified and update the list taking into consideration the development in technologies, from time to time. Taking a cue from the aforementioned provisions, Mr. A Roy, the learned senior counsel appearing on behalf of the petitioner, submitted that the Courts in India while interpreting Article 21, have consistently emphasised that everyone in this country is assured to live with human dignity. The learned senior counsel, referring to the scheme of the Act, 1995 submitted that the provisions of the Act are not to be read in confinement with the objects of the Act only, but it is also to be read keeping in mind the Constitutional fundamental and human rights as cited in the Preamble of the Constitution, Part III of the Constitution - more particularly to the equality clause mentioned in Article 14 of the Constitution and the right to invigorated life under Article 21 of the Constitution vis-a-vis the Directive Principles of State Policy conveyed in Part IV of the Constitution. In support of his contentions, the learned senior counsel for the petitioner, referred to the decisions of the Supreme Court in Bandhua Mukti Morcha vs. Union of India, reported in (1984) 3 SCC 161 ; ITC vs. State of Karnataka & others reported in 1985 (Supp) SCC 476; Kirloskar Brothers vs. ESI Corporation reported in (1996) 2 SCC 682 . 9. The Act, 1995 no doubt provides for reservation of posts and entrusted responsibility on the State to appoint in every establishment such percentage of vacancies not less than the minimum specified in section 33 of the Act, 1995, person(s) or class of persons with disabilities in the post(s) identified for each disability. 9. The Act, 1995 no doubt provides for reservation of posts and entrusted responsibility on the State to appoint in every establishment such percentage of vacancies not less than the minimum specified in section 33 of the Act, 1995, person(s) or class of persons with disabilities in the post(s) identified for each disability. The benefit of appointment to the posts reserved under section 33 for person(s) or class of persons with disabilities can be given to the pots identified for each disability. The aforesaid provisions, therefore, can be pressed into service only after identification of the posts by the appropriate Govt for reservation for persons with disabilities. The discretion is conferred on the State to identify those posts which can be reserved for the persons with disabilities. Identification of such posts involves the act of identifying, the state of being identified. It involves the process of determination of the group of posts meant for reservation. Further it involves the process of verification, classification and cataloguing of the identity of the posts in the establishments that can be reserved for persons with disabilities. It involves a conscious decision of the State for which a discretion is conferred on the State to identify the posts to be manned by such persons, leaving it to the margin of appreciation on the State to define those posts. Mr. Roy, the learned senior counsel submitted that a responsibility is cast on the State to discharge its duty both under sections 33 and 34 of the Act, 1995. The State when it fails to discharge its statutory obligation, then it devolves on the Courts to evolve an appropriate remedy to further the cause of justice. The learned senior counsel for the petitioner submitted that if necessary, within the available range, the Court should take an innovative attitude by forging new rules and if need be, the Courts should strive to chisel the rough edges of law. In interpreting a beneficial statute, the Court should give the widest possible meaning and greater amplitude should be offered to the expression used as otherwise the entire legislation would lose its efficacy. In interpreting a beneficial statute, the Court should give the widest possible meaning and greater amplitude should be offered to the expression used as otherwise the entire legislation would lose its efficacy. The law is not to be read contra public interest, but in the, interest of the public, submits the learned counsel and in .support of his contention, placed reliance on the decisions of the Supreme Court in C. Cemareddy & others vs. State of Andhra Pradesh & others reported in (1996) 10 SCC 193 ; Secretary, Haryana State Electricity Board vs. Suresh & others reported in (1999) 3 SCC 601 ; and Air India Statutory Corporation etc vs. United Labour & others reported in AIR 1997 SC 645 . 10. There cannot be any second opinion on the principles enunciated in the aforesaid decisions. The pertinent question involved herein this case is as to the extent of judicial review that can be gone into in the area in question. 11. As indicated above, the scheme of the Act, 1995 has been exhaustively dealt with. The appropriate Govts are set-up to govern and administrate. The administration is to act on behalf of the public. On the one hand the Court is concerned with the rights of the persons challenging the State action and on the other hand, the acts or actions of the State and its instrumentality are to act on behalf of the public both are equal in the eyes of law and the Court. Neither of them should be favoured on the basis of their status. The Court is to strike a J balance between the legitimate requirements of the public authorities giving them latitude to perform their functions on behalf of the public with a corresponding duty on the State to have due regards to the legitimate rights of the individuals as well as the groups. Public authorities including the State and its instrumentalities are to discharge their duties and responsibility entrusted to it/them by law. The State Govt has undertaken a statutory policy and it is for it to implement the same. The Courts are ill suited to the task of weighing the utilitarian calculations of social, economic or political preferences. All statutory instruments are meant to be given effect to as they are prima facie mandatory. The State Govt has undertaken a statutory policy and it is for it to implement the same. The Courts are ill suited to the task of weighing the utilitarian calculations of social, economic or political preferences. All statutory instruments are meant to be given effect to as they are prima facie mandatory. However, infringement of all the statutory provisions in all situations will not mean violation of the objects and purpose of the Act. It all will depend on the spirit and content of the statute, the significance of the provisions that/those has/have been disregarded and the relation of the provisions to the general object intended to be secured by the Act. The executive is armed with the discretion to implement the provisions of the statute. The Court in exercise of its powers under Article 226 of the Constitution may/can undertake judicial review to judge the legality of an action. Whether an action is lawful or not, it is no doubt to be judged by the Court, but at the same time a balance is to be maintained because the Courts cannot substitute its opinion for that of the executive. The Court can no doubt intervene where and when the authority acts outside its power and/or beyond the purpose of the Act or where it acts unfairly in an illegal fashion. 12. The Legislature makes laws and the Courts play their interpretative role if called upon to do so and construe the statute. In the judicial review under Article 226 of the Constitution, the Court can no doubt look into as to whether there is misconstruction of the statute or misuse of the powers. However, in the area of assessment of facts which are entrusted to bodies those are primarily suited to collating and assessing the facts vis-a-vis the evidence, the matter is to be left to the judgment of the authority lest the review becomes an appeal. It is to be presumed that the Legislature empowers its executive authorities rationally to collate and evaluate the evidence. The Courts are ill suited or indisposed to enter into that area though the Courts are the ultimate judge of what is lawful and what is unlawful; but there are certain areas or questions which the Courts are ill equipped to decide. The Courts are ill suited or indisposed to enter into that area though the Courts are the ultimate judge of what is lawful and what is unlawful; but there are certain areas or questions which the Courts are ill equipped to decide. As indicated earlier, a discretion is conferred on the authority and discretion implies the power to make a choice between alternative modes of action. The area of discretion, the degree of discretion and the scope of discretion will depend on the decisional manouvres afforded to the decision maker by the Legislature. 13. Judicial review is no doubt permissible in the area of discretionary power; but those things are to be judged by the wordings of the power and the context in which it is exercised. The power of the Court to review the merits of exercise of discretion is to be judged in the context of discretion conferred by the Legislature on the concerned bodies. The Legislature has confided a discretion on the appropriate Govt to identify the posts those can be reserved for persons with disabilities. In judging the circumstances as well as extent of the power of the Court to review the merits of this statutory discretion, the Court is to keep in mind numerous factors like the wordings of the statute, the subject matter of the statute, the purpose for which the discretion is conferred and the particular circumstance(s) in which such discretion is/are to be exercised. The subject matter and the purpose of the Act are undoubtedly for creating or for reservation of posts to provide employment to persons with disabilities. But the reservation of posts will depend upon the identification of posts which are reserved for persons with disabilities and for that purpose a discretion is entrusted with the appropriate Govt. The manner and extent of its performance is left to the discretion of the State Govt. The appropriate Govt is given a discretion to identify the posts in the establishments. The authority is entrusted with a discretion in relation to which it has to make its best endeavours to identify the posts in the establishments which can be reserved for the persons with disabilities. A duty is cast upon the authority to enforce the law coupled with a high degree of discretion at the level of general policy vis-a-vis the specific area to define the individual cases. A duty is cast upon the authority to enforce the law coupled with a high degree of discretion at the level of general policy vis-a-vis the specific area to define the individual cases. The defining and identification involves evaluation of social, economic and administrative policy by allocating employment (of limited nature) amongst competing claims. In the words of Lord Diplock, the Court has no 'justifiable or manageable standard' by which to 'judge' the issue. 14. Under section 32 of the Act, 1995 the judgment as to identification is to be made by the appropriate Govt(s) who is/are made responsible by the State for identification of the employment. A duty and statutory responsibility is intended to ensure for the disabled in general and not to give any singular person a cause of action. Sections 32 and 33 of the Act, 1995 leaves a margin of evaluation, margin of discretion and a margin of appreciation, and all these will depend on a large number of factors affecting the employment market, need of the administration and various other factors. 15. The Act in question came into force only on 7.2.96 vide notification No. SO 107(E) dated 7th February, 1996, published in the Gazette of India, Extra, Part II, section 3 (ii) dated February the 7th, 1996, p. I, No. 84 [F.No. 16-1/93-NI-I]. The Rules made under sub-sections (1) and (2) of section 73 of the Act, 1995 came into force on 31.12.96 under the name Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996, vide Ministry of Welfare Notification No. SO/908(E) dated 31.12.96, published in the Gazette of India, Extra., Part II, section 3 (ii) dated 31st December, 1996, pp. 10-19, No.757 [F.No. 16-7/96-NI.I]. The post in question were advertised on 11th November, 1996. In these circumstances, it is difficult to hold that the respondents/ authorities acted illegally and arbitrarily in not extending the benefit of section 33 of the Act, 1995 in respect of the process of recruitment to the posts of State Civil Service and other allied services in the relevant recruitment year. 16. For the foregoing reasons, the writ petition fails and accordingly, the same is dismissed. There shall, however, be no order as to costs. All interim orders passed by this Court thus stand dissolved.