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2002 DIGILAW 1326 (RAJ)

Dr. Manuja Agarwal and etc. v. State of Rajasthan

2002-07-30

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - Common prayer of the petitioners in all these three writ petitions is as under- (i) Directions be issued to the respondents to provide reservation to the disabled persons in the medical services. (ii) The Rajasthan Public Service Commission (respondent No. 3) be directed to provide the benefit of reservation to the disabled persons in the examination of Medical officers/Dental Surgeons. held in pursuance of advertisement No. 1/99-2000 dated May 4, 2000. 2. To understand the controversy facts of writ petition No. 3568/2000 need be noticed. The petitioner passed her M.B.B.S. Examination in the year 1996 and at present she is posted as a Medical Officer in village Peepulu District Tonk. The petitioner is a physically handicapped person. The Rajasthan Public Service Commission (in short the RPSC) issued an advertisement in October 1999 inviting applications for the post of Medical Officer/Dental Surgeons. The last date for submitting application forms was June 10,1999. In para 7 of the Notification issued by the R.P.S.C. it was clearly mentioned that disabled candidates had to deposit Rs. 10/- along with application form and in case of general candidate the fees required to be deposited was Rs. 50/-. The petitioner submitted application form for the post of Medical officer stating therein that she was applying under the category of disabled per- son. She appeared in the written examination and was declared successful in the category of Handicapped Women. On July 22, 2000 she was called for interview. Despite the efforts made by the petitioner to persuade the authorities for making provisions to provide reservation for the disabled persons in the medical services no action was taken, although Section 33 of the Persons with Disabilities (Equal Opportunities) Protection of Rights and Full Participation Act, 1995 (Act No. 1 of 1996) (for short 'the Act No. 1 of 1996) provides reservation of 3% posts in every establishment. According to the petitioner the action for not providing reservation to the disabled person in Medical Services is highly arbitrary, unjust and against the principles enshrined in Articles 14 and 16 of the Constitution of India. 3. The respondents 1 and 2 pleaded in the written statement that the Act No. 1 of 1996 was made applicable by the Government of Rajasthan vide Notification dated September 22, 2000 and Rules under Article 309 have been framed vide Notification dated September 22. 2000. 3. The respondents 1 and 2 pleaded in the written statement that the Act No. 1 of 1996 was made applicable by the Government of Rajasthan vide Notification dated September 22, 2000 and Rules under Article 309 have been framed vide Notification dated September 22. 2000. whereas the selection process for the post of Medical officers was completed by the R.P.S.C. by July 2000 i.e. much before the date of framing of the Rules. Under these circumstances the petitioners have no cause of action and writ petitions deserve to be dismissed. 4. The respondent No. 3 R.P.S.C. in its reply stated that before issuance of Notification dated Sept. 22, 2000 Rajasthan Physically Handicapped Rules, 1976 were applicable to handicapped persons according to which 3% posts were kept reserved only in Ministerial and Class IV Services. The R.P.S.C. was responsible for recruitment as per the directions issued by the State Government. The R.P.S.C. had no role in providing reservation of seats for any category including that of physically handicapped persons. 5. I have pondered over the rival submissions. 6. A close survey of the Act No. 1 of 1996 reveals that in order to provide full participation and equality to the people with disabilities in the Asian and Pacific Region, a meeting of the Economic and Social Commission for Asian and Pacific Region was convened at Beijing on December 5, 1992. Proclamation in regard to people with disabilities was adopted. India was signatory to the said Proclamation and it was necessary to enact a suitable Legislation to provide for the following - (i) To spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provisions of medical care, education, training employment and rehabilitation of persons with disabilities : (ii) To create barrier free environment for persons with disabilities : (iii) To remove any discrimination against person with disabilities in the sharing of development benefits vis-a-vis 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 provisions of the integration of persons with disabilities into the social mainstream. Act No. 1 of 1996 was enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region and it came into force w.e.f. February 7, 1996. 6. Text of Section 32 and 33 of the Act No. 1 of 1996 is relevant to resolve the controversy on hand, which reads thus - "32. Identification of posts which can be reserved for persons with disabilities - Appropriate Government shall- (a) Identify posts, in 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." 7. Under sub-section (1) of Section 73 of the Act No. 1 of 1996 the appropriate Government was authorised to frame rules for carrying out the provisions of the Act but without prejudice to the powers under sub- section (1) as many as 34 matters for framing the rules were specified leaving aside Sections 32 and 33. 8. The State of Rajasthan did not think it proper to enact the rules pursuant to Section 73 of the Act No. 1 of 1996 and till November 20, 2000 the Rajasthan Employment of Physical Handicapped Persons Rules 1976 (for short Rules of 1976) remained in force and according to which 3% posts used to be kept reserved only in Ministerial and Class N Services. On November 20, 2000, the Rajasthan Employment of Disabled Persons Rules 2000 (for short Rules of 2000) were enacted by Governor of Rajasthan under proviso appended to Article 309 of the Constitution of India published in the Rajasthan Gazette Extraordinary and came into force and Rules of 1976 were repealed Rules of 2000 provided reservation of 3% posts for physically handicapped persons in State, Subordinate, Ministerial and Class IV Services. 9. The Act No. 1 of 1996 comes within the ambit of item No. 25 of Concurrent List of the Seventh Schedule of Constitution of India and is made enforceable with effect from Feb, 7, 1996. It was mandatory for the State of Rajasthan under Section 32 of the Act No. 1 of 1996 to have forthwith identified the posts in the establishments, which could be reserved for the persons with disability. Under Section 33 the State of Rajasthan was duty bound to appoint in every establishment such percentage of vacancies not less than three percent for the persons with disability. The State of Rajasthan. however, could exempt any establishment from the provisions of section 33 under the proviso appended to the said section. Unfortunately the State of Rajasthan did not discharge its duty to amend the Rules of 1976 inconformity with the provisions contained in Section 32 and 33 of the Act No. 1 of 1996. Only on November 20, 2000 i.e. after about four and half years of the Act No. 1 of 1996 came into force that the Rules of 2000 were enacted. 10. Reservation relating to employment is contemplated under Section 33 of the Act No. 1 of 1996. By virtue of Section 33 all establishments of the State of Rajasthan were required to reserve not less than three percent seats for persons with disabilities. The State of Rajasthan under Section 32 had to identify the posts in all the establishments which could be reserved for the persons with disability and to appoint under Section 33 such percentage of vacancies not less than three percent for the persons with disability in every establishment. For the purpose of carrying out the mandate of Sections 32 and 33 it was not necessary to frame the rules in view of sub-section (2) of Section 73. For the purpose of carrying out the mandate of Sections 32 and 33 it was not necessary to frame the rules in view of sub-section (2) of Section 73. The State of Rajasthan had to forthwith follow the mandate of Sections 32 and 33 as they were made enforceable to the whole of India except the State of Jammu and Kashmir w.e.f. Feb. 7, 1996. 11. On May 4, 2000 when advertisement No. 1/99 - 2000 for the examination of Medical Officer/Dental Surgeons was published. it was incumbent for the State of Rajasthan and R.P.S.C. to have reserved such percentage of vacancies not less than three percent for the persons with disability as per the mandate of section 33 of the Act No. 1 of 1996. The action of the State of Rajasthan and R.P.S.C. in not providing reservation to the persons with disability is arbitrary and violative of Article 14 of the Constitution of India. 12. Article 254 (1) of the Constitution of India provides that if any provision of law made by Legislature of a State is repugnant to any provision of law made by the Parliament, when Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Legislature of such State or as the case may be, the existing law shall prevail and the law made by Legislature of State shall, to the extent of repugnancy be void. After coming into force of Act No. 1 of 1996 w.e.f. Feb. 7. 1996. Rules of 1976 which were then applicable to the persons with disability only in Ministerial and Class IV services being repugnant to Section 33, automatically stood void in view of Article 254 of the Constitution. 13. The three petitioners are indisputably persons with disability and got success in written examination and interview therefore they were entitled to benefit of reservation as per Section 33 of Act No. 1 of 1996 in the examination of Medical Officers/Dental Surgeons held in pursuance of advertisement No. 1/99-2000 dated May 4, 2000. 14. 13. The three petitioners are indisputably persons with disability and got success in written examination and interview therefore they were entitled to benefit of reservation as per Section 33 of Act No. 1 of 1996 in the examination of Medical Officers/Dental Surgeons held in pursuance of advertisement No. 1/99-2000 dated May 4, 2000. 14. For the reasons aforementioned all the three writ petitions stand allowed and the respondents are directed to provide benefit of reservation to the petitioners as per section 33 of Act No. 1 of 1996 and to consider the case of the petitioners for giving them appointment to the posts of Medical Officer/Dental Surgeon as per their respective choice. No order as to costs. The respondents shall ensure the compliance of this order within sixty days.Petition allowed. *******