Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 754 (GAU)

Vector Vero v. State of Nagaland

2005-10-06

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. The Nagaland Public Service Commission (NPSC) which stands impleaded in the present writ petition as respondent No. 5, published an advertisement, on 11.11.2003, inviting applications for selection and appointment to, amongst others, posts of Lecturer in English in Colleges under Higher & Technical Education, Govt. of Nagaland. The petitioner, who has been working as a Lecturer in English at Zunheboto College on contract basis, applied for the post of Lecturer in English and, on being called by the respondent No. 5, appeared for personality test on 11.5.2004. Claiming that the petitioner is a disabled person within the meaning of the Disability Act, (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short 'the Act'), inasmuch as he has been categorized as a physically handicapped/disabled person by the Medical Board, Kohima as per the certificate issued, in this regard, by the said Board on 20.11.2003, the petitioner made enquiry from the NPSC. On making enquiry, the petitioner came to know that no reservation in the post of Lecturer in English in the Colleges, falling under Higher & Technical Education, has been made, though, according to the petitioner, it was incumbent, on the part of the Government, to make necessary reservation, in this regard, in terms of the Act. The petitioner has accordingly approached this Court, with the help of the present writ petition, seeking issuance of appropriate writ or writs to the respondents commanding them to consider the petitioner's case for appointment as Lecturer in English within the reservation quota meant for disabled person in the State of Nagaland. 2. The State Government and its functionaries have not filed affidavit-in-opposition except the respondent No. 5, namely, the NPSC, the case of the respondent No. 5 being, in brief, that no reservation has been made under the Act for the disabled persons in respect of the posts of Lecturer of Colleges and in this view of the matter, the advertisement published by the respondent No. 5 making no reservation in respect of disabled persons for selection for the posts of Lecturer of Colleges is not illegal nor is the selection process, held pursuant thereto, illegal or needs interference. So long as the post of Lecturer of Colleges, particularly, in English, is not reserved in terms of the provisions of the Act by the State Government, the respondent No. 5 cannot make any selection on the basis of any quota or reservation policy in respect of a disabled person, such as, the petitioner. 3. I have heard Mr. R. Iralu, the learned Counsel for the petitioner, and Mr. Zelre Angami, the learned Counsel for the respondent No. 5. I have also heard Mr. L.S. Jamir, the learned Govt. Advocate, appearing on behalf of the respondent Nos. 1, 2, 3, 4 and 6. 4. Before entering into the merit of the present writ petition, it is necessary to take into account the provisions contained in Sections 32 and 33 of the Act, which read as follows : 32. Identification of posts which can be reserved for persons with disabilities : (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 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 of 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, but notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 5. A careful reading of Section 32 reveals that a duty has been cast by, the Act on the appropriate Government that is, the State Government in the present case, to identify posts in the establishments which can be reserved for persons with disability and the list to be prepared on the basis of identification process, which the Government carries out, shall be reviewed at periodical intervals not exceeding three years and white reviewing the list, the Government shall take into consideration the developments in technology. 6. 6. Section 33 requires the Government to appoint, in every establishment, not less than three per cent of persons with disability and out of these three per cent, one per cent of the vacancies shall be reserved for persons, who suffer from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy, in the posts identified for each disabled. The proviso to Section 33, however, permits the Government to exempt by Notification any Department or establishment from the operation of the reservation, which is made by the Government in exercise of its power under Section 33. 7. Thus, a careful and combined reading of Sections 32 and 33 shows that the identification of the posts to be reserved for disabled persons under the Act must precede preferential selection and appointment of a person on the ground of disability. 8. In the case at hand, during the pendency of the present writ petition, the Government of Nagaland, Department of Personnel & Administrative Reforms, vide Notification, dated 19th August, 2004, has made reservation up to the extent of five per cent in respect of vacancies in the posts, which are mentioned in the Schedule to the said Notification. The post of Lecturer of College is not included in the said Schedule. 9. The contents of paragraph 4 of the said Notification are of some significance and are, therefore, quoted hereinbelow : 4. Until the posts in the Government of Nagaland or its Public Undertakings are identified for reservation for the persons with disabilities as per Section32 of the Act, and until the departments and establishments in the Government of Nagaland or its Public Undertakings which are required to be exempted from such reservation as per proviso to Section 33 of the Act, (i) all advertisements for direct recruitment to posts in the Schedule in this Notification in the Government of Nagaland and its Public Undertakings shall carry a notice that 5 per cent of the vacancies are reserved for persons with the disabilities enumerated in paragraph 1 of this Notification. 10. From a microscopic reading of the contents of para 4, what transpires is that pending identification of the posts, which are to be reserved for disabled persons in terms of Sections 32 and33 the Government has made reservation in respect of posts mentioned in the Schedule appended to the Notification aforementioned. 10. From a microscopic reading of the contents of para 4, what transpires is that pending identification of the posts, which are to be reserved for disabled persons in terms of Sections 32 and33 the Government has made reservation in respect of posts mentioned in the Schedule appended to the Notification aforementioned. Though the action on the part of the Government appears to be benevolent in nature, this does not, the fact remains meet the requirements of Section 32 and/or Section 33 of the Act, for, the Act requires, in the light of the provisions contained in Sections 32 and33 thereof, that the posts are identified before making reservation. It appears, thus, that the State Government has not applied its mind properly to the provisions of the Act, while bringing out the Notification, dated 19.8.2004, aforementioned. 11. In view of the fact that in the present case, even the Notification, dated 19.8.2004 makes no reservation for the posts of Lecturer of Colleges, in English, and in view also of the fact that there is no other Notification issued by the State Government under Section 32 and/or 33 of the Act making reservation for disabled persons and/or for persons suffering from hearing impairment, the advertisement issued by the respondent No. 5, on 11.11.2003, cannot be said to be suffering from any infirmity of law. Neither the advertisement, dated 11.11.2003, is challenged in the writ petition nor can this Court, in exercise of its powers under Article 226 of the Constitution of India, command the respondent No. 5 to extend to the present petitioner the benefits of the quota of reservation, which has been made by the Government vide the Notification, dated 19.8.2004, for, the Notification aforementioned makes no reservation for posts of Lecturer of College. The selection process, which commenced with the publication of the advertisement, dated 11.11.2003, aforementioned, must, therefore, be allowed to continue subject, however, to such impediments as may be imposed by the law or by Courts. 12. The selection process, which commenced with the publication of the advertisement, dated 11.11.2003, aforementioned, must, therefore, be allowed to continue subject, however, to such impediments as may be imposed by the law or by Courts. 12. Let me, now, turn to the issue, which the present writ petition has incidentally raised, namely, that the Government has not, in terms of its obligation under Section 32 and/or Section 33 of the Act, carried out any meaningful exercise to identify such post or posts in respect of which reservation on ground of disablement and, particularly, on ground of disablement arising out of (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy needs to be made. While considering this aspect of the matter, it may also be mentioned, as has been correctly pointed out by Mr. R. Iralu, learned Counsel for the petitioner, that the Central Government has carried out an exercise to implement the provisions of the Act and has, in the process, identified as many as 416 posts to which reservation, in terms of the Act, need to be extended. In fact, the Apex Court, in National Federation of Blind v. Union Public Service Commission and Ors., directed the Government of India and the Union Public Service Commission (UPSC) to permit visually handicapped persons to compete and write the Civil Services Examination, which is, ordinarily, held yearly by the UPSC. This direction has been issued by the Apex Court in view of the fact that the Central Government has identified the posts, which need reservation on ground of disability. In the case at hand, however, as already indicated hereinabove, no real and meaningful exercise has been done till now by the Government in terms of the requirements of the Act. 13. What emerges from the above discussion is that though this Court is not in a position to interfere with the selection process, which has commenced with the publication of the advertisement, dated 11.11.2003, aforementioned, this Court is bound, in the light of the grievances expressed by the petitioner, to direct the Government to do the needful in terms of the Act. 14. Considering, therefore, the matter in its entirety in the interest of justice, while respondent No. 5 is allowed to take such steps as are legally permissible under the law following the advertisement, dated 11.11.2003, aforementioned, the respondent Nos. 14. Considering, therefore, the matter in its entirety in the interest of justice, while respondent No. 5 is allowed to take such steps as are legally permissible under the law following the advertisement, dated 11.11.2003, aforementioned, the respondent Nos. 1, 2, 3 and 4 are hereby directed to carry out an exercise in terms of the requirements of Sections 32 and 33 of the Act for making reservation in respect of disabled persons as defined under the Act. While undertaking such exercised, the respondents shall also consider if the reservation, contemplated under Section 32 read with Section33 of the Act, can be extended to the posts of Lecturer of Colleges falling under Higher & Technical Education, particularly, for the benefit of those who, same as the petitioner, suffer from hearing impairment. The whole exercise, so directed, shall be carried and completed expeditiously and, preferably, within a period of 6 (six) months from today. This writ petition is accordingly disposed of. No costs.