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2002 DIGILAW 1587 (RAJ)

Surya Prakash Sharma v. State of Rajasthan

2002-09-13

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The petitioner a disabled person (partially blind) has approached this court with the prayer to include the category of blind and partially blind persons in the Rajasthan Disabled Persons Employment Rules, 2000 (for short the Rules of 2000) and consequential change in the advertisement dated May 31, 2001 published on June 20, 2001 for appointment on the post of Lecturer College Education. 2. The facts giving rise to this writ petition are that the petitioner passed his Graduation/Post Graduation in Political Science throughout with first division marks and merit position in the University and qualified thrice "National Eligibility Test" for Lecturer and also qualified in the State Level Eligibility Test conducted by the RPSC. The petitioner also passed Junior Research Fellowship Examination conducted by the UGC and presently pursuing his further studies and other research work in the said subject. The petitioner is seriously aggrieved with the advertisement issued by the respondent RPSC on May 31, 2001 in which the RPSC included the reservation to physically handicapped category confined only to two categories i.e. Physical Disability in one leg and physical disability in both legs and ignored the other categories of physically handicapped based as per the Schedule I of the Rules of 2000. The petitioner served a notice for demand of justice to the respondents and also to the Commissioner Disabilities Social Welfare Department, Government of Rajasthan on June 26, 2001. The Commissioner Disabilities by his letter dated July 10, 2001 conveyed to the petitioner that they are making efforts for providing benefit of reservation to blind persons for appointment on the post of Lecturer. The petitioner averred that there is no rational or reason in confining reservation only to disabled persons having disability only in legs while ignoring the other persons who are disabled by way of blindness, partially blind deaf and dumb. The petition further averred that the Parliament enacted the Persons with Disabilties (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 (fort the Act No. 1 of 1996). Section 2(b) of the Act No. 1 of 1996 defines "blindness". Section 33 of the said Act provides 3% reservation of posts in every establishment for the persons suffering from (i) blindness (ii) hearing impairment and (iii) locomotors disability or cerebral palsy. Section 2(b) of the Act No. 1 of 1996 defines "blindness". Section 33 of the said Act provides 3% reservation of posts in every establishment for the persons suffering from (i) blindness (ii) hearing impairment and (iii) locomotors disability or cerebral palsy. The petitioner averred that reservation has been prescribed for the disabled persons and there cannot be any discrimination as has been done by the respondents while advertising posts for appointment to the post of Lecturer in College Education. 3. The respondent No. 1 in the reply pleaded that a blind person cannot deliver the same services as a man of two eyes. The vacancies for the post of Lecturer in different subjects were advertised in accordance with the existing rules and the petitioner cannot have any grievance against the said advertisement. In view of the position of the rules prevailing today the petitioner is not eligible for appointment on the post or Lecturer. The reservation for blind person is a policy matter and it may take time in deciding the same. The provision for giving reservation to disabled persons having disability in legs cannot be said to be unjustified. The respondents averred that the rules of 2000 are not discriminatory and the disabled persons by legs and by eyes do not stand on the same footing, therefore, the rules are not violative of Articles 14 and 16 of the Constitution of India. It is further averred that the matter is under process and the action shall be taken after the decision is taken by the State Government in this regard. 4. The respondent No. 2 RPSC in its reply stated that the advertisement dated May 31, 2001 is based on the Rules of 2000 and the Rajasthan Education Service Collegiate Branch Rules. It is next averred that unless the Rules are amended the petitioner is not entitled for participating in the recruitment process. The Rules have been framed in exercise of the powers conferred by proviso to Article 309 of the Constitution of India and posts have been identified by the Committee constituted as per the schedule I State Service in which nature of disabilities have also been given which do not have provision for the blinds but having provision for OL and BL. 5. I have pondered over the rival submissions. 6. 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 and 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 equalization 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. 7. 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 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. 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) loco motor disability or cerebral palsy. 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) loco motor 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 for the provisions of this section." 8. 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. 9. Reference in this respect may also be made to Para 10 (d) of the Expert Committee (constituted by the Central Government) report dated November 25,1986. "Para 10(d): so far as teaching is concerned the Committee feels the jobs in Universities in fields such humanities, law and language can he handled by orthopaedically handicapped and blind person. The committee's report recommended at S.No. 165 of Appendix 7 categorizes disabled, suitable for jobs of Lecturer (Arts) College Education and held that partially deaf, disabled by both legs and both arms, one leg affected, one arm affected, partially blind and blind as identified for such post." 10. It may also be necessary to repro- duce herewith the order dated August 28, 1998 of the Central Government, which reads thus: "It has been brought to the notice of department that a negative impression has been created in various quarters with a result that the policy relating to the 3% reservations for persons of disabilities is not being implemented properly. The Ministry of Social Justice and Empowerment are in the process of constituting an expert committee to review the posts already identified so far and to identify more suitable posts for persons with disabilities. The existing identification done in the year 1986 shall remain valid, till the same is modified by the Government on the recommendations of the expert committee. The Ministry of Social Justice and Empowerment are in the process of constituting an expert committee to review the posts already identified so far and to identify more suitable posts for persons with disabilities. The existing identification done in the year 1986 shall remain valid, till the same is modified by the Government on the recommendations of the expert committee. The lists of posts already identified as being held by persons with disabilities has already been circulated vide departments order dated 25-11-1986 and it was further directed to bring the above instructions to the notice of all the heads of the Departments and appointing authorities under the control for strict compliance." 11. The petitioner has also placed reliance on extract of S. No. 164 and 165 of Appendix VII of Government of India Department of Personal and Training O.M. No. F. 36034/4/86/Estt. (SCT) dated November 25, 1986 which provides the Jobs identified for being held by physically handicapped persons in Groups A and B posts which reads thus : S.No. NCO TITLE GROUP PHYSICAL REQUIREMENTS CATEGORIES OF THE DISABLED SUITABLE JOBS 1 2 3 4 5 6 College Teachers (A) ST 164 Lecturer (Architecture) PD BLA OL 165 " (Arts) OA. PB. B NATURE OF WORK PERFORMED WORKING 7. 8. College Teachers (Architecture College Teachers (Arts) They teach college students one or more Arts subjects such as History, Geography, Commerce, Sociology, Philosophy, Economics, Pol. Science, Indian or Foreign Language such as Hindi, Sanskrit, English etc. Deliver lectures and conduct seminars, Set examination papers, conduct examination and evaluate answer books, Maintain class registers and records, May conduct research and guide research work. PD : Partially Deaf OL : One leg affected BLA : Both legs + arms affected B : Blind PB : Partially blind" The work is performed mostly inside. The work place is well lighted. Appendix -7 JOBS IDENTIFIED FOR BEING HELD BY PHYSICALLY HANDICAPPED PERSONS IN GROUPS AND 'B' POSTS (G.I. Deptt. of Per. & Trg. O. M. No. F. 36034/4/86- ESTT. (SCT), DATED 25-11-86 12. A bare perusal of the above would make it clear that the Appendix VII issued by the Central Government on November 25,1986 is in force till today and is in consonance with Section 33 of the Act 1995 and the Central Government identified the posts of Lecturer in College Education to be provided reservations of the categories mentioned therein. 13. A bare perusal of the above would make it clear that the Appendix VII issued by the Central Government on November 25,1986 is in force till today and is in consonance with Section 33 of the Act 1995 and the Central Government identified the posts of Lecturer in College Education to be provided reservations of the categories mentioned therein. 13. In the reply submitted by the State Government it has been averred that the matter is under active consideration of the Government and decision will be taken in course of time at the earliest possible. 14. Since the State Government has only included the OL and BL categories of physically handicapped for being given appointments to the post of Lecturer in the State of Rajasthan, it appears that the Circular of the Central Government dated November 25, 1986 escaped notice of the State of Rajasthan. Order dated August 28,1998 and the categories of Partial Blind and Blind are already included for giving reservation in appointment to the posts of Lecturer (Arts), this circular applies with full force to the case of the petitioner. 15. For the reasons aforementioned writ petition stands allowed and the respondents are directed to include the category of Partially Blind/Blind persons in the Rules 2000 to make a consequential change in the advertisement dated May 31, 2001 published for appointment on the post of Lecturer College Education and to consider the case of petitioner for giving him reservation as per the mandate of Act No. 1 of 1996. The respondents shall ensure the compliance of this order within sixty days from the date of receipt of certified copy of this order. No costs.Petition allowed *******