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2004 DIGILAW 384 (KER)

Ratheesh Babu v. University Grants Commission

2004-08-13

J.M.JAMES, K.S.RADHAKRISHNAN

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Judgment :- Radhakrishnan, J. Can the action of the State Government in not making any reservation for the physically handicapped persons for selection to the post in Class I and Class II categories in government service including Universities in the State of Kerala be justified under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights with Full Participation) Act, 1995 (hereinafter called “the Act”), is the question that has come up for consideration before this court. 2. Sree Sankaracharya University of Sanskrit, the second respondent, invited applications from eligible candidates for various posts vide Ext.P1 notification, including the post of Lecturer in Social Work. Appellant is a physically handicapped person suffering from post polio residual paralysis of both the lower limbs with secondary scoliosis with 80% disability. Complaint of the appellant is that Ext.P1 notification does not contain any reservation for physically handicapped or disabled persons. 3. Ext.P.1 notification does not make any reservation for physically disabled person, which the respondents are legally bound to do under section 33 of the Act. Appellant has prayed for a writ of certiorari to quash Ext.P1 notification to the extent it does not provide reservation for the physically disabled persons not provide reservation for the physically disabled persons as contemplated in the Act. Appellant also prayed for a writ of mandamus directing the second respondent University to modify Ext. P1 notification by issuing a notification providing 3% reservation for the disabled candidates in the teaching posts shown in Ext.P1 and to keep in abeyance the further proceedings of selection till the issuance of such notification. 4. Counter affidavit has been filed on behalf of the second respondent University. It is stated that the State Government have not so far issued any order identifying the posts in the University to be reserved for appointment with persons having disability. It is pointed out that Government have issued executive order reserving 3% vacancies in Class III and Class IV posts in public services. Reference was made to G.O.(P) No.20/98/P&ARD dated 14.07.1998 and stated that Government have not issued any order relating to appointment to various posts in the University. Further it is stated that the said order is not applicable to the University. Stand of the University Grants Commission is that State Government has to issue orders identifying posts to be reserved for physically handicapped person. Further it is stated that the said order is not applicable to the University. Stand of the University Grants Commission is that State Government has to issue orders identifying posts to be reserved for physically handicapped person. The stand of the University is that such an identification has not been made by the State Government so far. Consequently it is pointed out that the University may be allowed to proceed with Ext.P1 notification. 5. Statement has been filed on behalf of the University Grants Commission. They have produced two letters and stated that the University Grants Commission has also decided to ensure full implementation of the persons with 3% disability and direction has been given to the various Universities to that effect. It is stated that the University Grants Commission has sent a letter to the Universities for identifying the posts for appointing persons with disability. On a direction given by this court statement has been filed on behalf of the fourth respondent. It is stated that there is no reservation at present for physically handicapped person for selection to posts in Class I and II category in the State service including posts in the Collegiate Education Department and Universities in the State. Further it is stated that in view of the fact that the Central Government have already reserved 3% of the posts for physically handicapped persons for selection to posts in Class I and II category, Government in Social Welfare Department is seized of the matter and is examining the proposal for extending reservation to physically handicapped persons to posts in Class I and II categories also. Learned single judge who heard the writ petition found no reason to interfere with the notification issued by the second respondent so long as there is no reservation of posts to physically handicapped persons in Class I and II categories including Collegiate Education Department and Universities in the State and dismissed the writ petition. 6. We are of the view, respondent are bound to implement the provisions of the Act. Section 32 of the Act mandates that Appropriate Government shall identify posts, in the establishments, which can be reserved for the persons with disability. Section 32 (b) also provides that the appropriate Government shall 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. Section 32 of the Act mandates that Appropriate Government shall identify posts, in the establishments, which can be reserved for the persons with disability. Section 32 (b) also provides that the appropriate Government shall 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. Section 33 gives reservation of posts. The said provision is extracted for easy reference. 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 person 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 33 obliges that 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. Above mentioned provisions are mandatory. Statute has not differentiated between various categories of posts either in the State service or in the Universities. Appropriate Government has been defined in Section 2(a), relevant portion of which is extracted below. (a) “appropriate Government” means- i) xx xx xx xx xx 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; xx xx xx xx xx xx “Establishment” has been defined in Section 2(k), which is extracted below: “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. On a reading of the above mentioned clauses along with Sections 32, 33 and 34 of the Act, there is no doubt that the Act has not differentiated between various categories of posts. On a reading of the above mentioned clauses along with Sections 32, 33 and 34 of the Act, there is no doubt that the Act has not differentiated between various categories of posts. State Government is bound to reserve seats for persons with disabilities, though choice of posts is left to the Government. It may not be possible for physically handicapped persons or persons with physical disabilities to man all the posts. Government have to identify which are the posts that can be earmarked for persons with disabilities. We are not prepared to say that none of the posts in Class I and Class II can be ear marked for persons with disability. State Government have identified of posts in Class III and Class IV categories as is seen from the government order dated 14.7.1998. We fail to see why the State Government have not identified posts in Class I and Class II categories of posts. 7. We may in this connection refer to the decision of the apex court in All Kerala Parents Association v. State of Kerala (2002 (3) KLT 423 as well as Full Bench decision of this court in Benny v. State of Kerala (2003 (1) KLT 850). State Government have got a statutory obligation to identify posts. Which are the posts to be identified has to be left to the discretion of the Government, depending upon the nature of the posts and its requirement. However, we cannot accept the stand that no posts in Class I and Class II categories can be ear-marked for persons with disability. We may in this connection refer to the advertisement issued by the Punjab University, Chandigarh. The notification No.2/2002 has reserved 3% posts of teachers for persons with disabilities as per the Disabilities Act, 1995. 8. We may also indicate so far as this case is concerned, there are four vacancies in the post of Lecturer in Social Work. First vacancy should go to open merit candidate, second to other backward community, third to open merit candidate and fourth to scheduled caste/scheduled tribe candidate. Appellant wanted reservation of one post for the persons with disabilities. We are of the view this exercise has to be done by the Government in consultation with the experts in the field. First vacancy should go to open merit candidate, second to other backward community, third to open merit candidate and fourth to scheduled caste/scheduled tribe candidate. Appellant wanted reservation of one post for the persons with disabilities. We are of the view this exercise has to be done by the Government in consultation with the experts in the field. It is for the Government to decide which are the post(s) to be ear-marked for persons with disabilities in the Universities in the State of Kerala. So far Government have not earmarked any post in Class I and Class II categories. In such circumstances, we are inclined to issue a direction to the State Government to identify and classify posts in Class I and Class II categories in the State Service and Universities in the State of Kerala for persons with disabilities. This exercise shall be done within a period of six months from the date of receipt of a copy of this judgment. 9. Counsel for the appellant submitted that one post be reserved till posts are identified by the State Government. We find no reason to hold up the selection process or the notification issued by the University. Petitioner will have a claim for reservation only if the post is identified. The appeal is disposed of with the above direction.