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Karnataka High Court · body

2005 DIGILAW 861 (KAR)

Secretary, State of Karnataka v. Nagaveni M. C.

2005-12-20

B.S.PATIL

body2005
ORDER 1. In this petition the State of Karnataka is calling in question the order dated 18-11-2005 passed by the 2nd respondent-the Commissioner for persons with disabilities wherein a direction is issued to withhold the recruitment process in all the district level selections for the post of Primary School Teachers and to implement 5% reservation for persons with disabilities at the State level. 2. One Smt. M. C. Nagaveni, an Orthopaedic handicapped person filed a complaint before the Commissioner for Persons with Disabilities against the State and some of its authorities under Section 62 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (for short the Act) seeking the intervention of the Commissioner for implementation of the provisions of the Act insofar as employment of persons with disabilities for the post of Primary School Teachers in various districts is concerned. It was contended by the complainant that the State and its authorities deprived opportunity to the persons with disabilities in the matter of appointment of teachers by not providing 5% reservation in the recruitment of teachers. It was further urged that the Department of Public Instructions invited applications during the period from 3-10-2005 to 22-10-2005 for the posts of Primary School Teachers for the year 2005-2006 by way of district-wise notifications issued. In all, there are 4767 posts divided into 32 Educational Districts (District Level) in Karnataka. Although the State, as per the Rules and the notifications issued, is required to reserve 5% posts in Group-C and D for persons with disabilities, the same was not adhered to. The total number of posts to be recruited have been divided and allocated in different numbers for each district and there is a further division language-wise into taluka level posts. The roster points that is provided for the disabled persons will not be realised, having regard to the multiple divisions that are made both in terms of territory and in terms of subjects, was the grievance made before the Commissioner. 3. Based on the complaint received, the Commissioner issued a show cause notice to the Director of Public Instructions, Primary Education. A reply was submitted contending that the recruitment was being done in accordance with the provisions of Cadre and Recruitment Rules. The action was justified on several counts. 3. Based on the complaint received, the Commissioner issued a show cause notice to the Director of Public Instructions, Primary Education. A reply was submitted contending that the recruitment was being done in accordance with the provisions of Cadre and Recruitment Rules. The action was justified on several counts. The Commissioner having examined the matter passed an order holding that as the Government Order provides for 5% reservation in Group-C and D posts for persons with disabilities for providing employment opportunity, the notification issued calling for applications did not conform to the same. He is of the opinion that the division of the posts into block-wise and language-wise results in considerable reduction in the posts reserved for the disabled persons inasmuch as out of 100 posts in the cycle of reservation, as provided in the roster points at 19, 39, 59, 79 & 99, the benefit gets reduced or erased considerably resulting in violation of the rules and the consequent injustice to the disabled persons. The Commissioner for Disabilities referring to the decision of the Apex Court in the case Rajesh Kumar Gupta & others v. State of U. P. & others, reported in 2005 AIR SCW 2731 (in short Rajesh Kumar Gupta case) has also opined that the selection and preparation of merit list at district level have been held to be arbitrary and violative of the provisions of Articles 14, 15 and 16 of the Constitution. The Commissioner has referred to the result of district-wise and block-wise reservation in various districts, as resorted to by the respondent-authorities and has pointed out how it practically and drastically reduces the number of posts earmarked for the disabled persons. Referring to several other complaints received by him in this regard, he concludes that the Government Orders issued providing reservation for persons with disabilities remained as a eyewash and did not serve the purpose for which such reservation is made. He has come to a prima facie conclusion that there was violation of the provisions of the Act. Therefore, he has issued a direction to the State to withhold the recruitment process in all the districts and to implement 5% reservation for persons with disabilities at State level. He has come to a prima facie conclusion that there was violation of the provisions of the Act. Therefore, he has issued a direction to the State to withhold the recruitment process in all the districts and to implement 5% reservation for persons with disabilities at State level. He has further issued a direction to the State to follow the ratio laid down by the Supreme Court in the above-mentioned case in letter and spirit by amending the Departmental Cadre and Recruitment Rules and the other Government Orders/Notifications in this regard which are in force. Till such actions are taken, a further direction is issued not to proceed with the recruitment process for the posts of Primary School Teacher for the year 2005-2006 in the entire State of Karnataka. The Common Entrance Test examinations which were scheduled to be held on 20-11-2005 have been directed to be withheld till the Government Order regarding reservation for disabled persons is implemented. 4. Aggrieved by this order, the State has come up in this writ petition. It is contended by the State that the Government by order dated 20-7-2005 permitted filling up of 4,767 vacancies of Primary School Teachers in various educational blocks. For the purpose of education, there is a division district-wise into 32 districts and into 202 educational blocks. The availability of vacancies in various educational districts is produced as a tabular form at Annexure-B. Pursuant to the Government Order, the Deputy Director of Public Instructions in each of the districts issued notifications dated 20-9-2005 calling for applications from the eligible candidates. The date of competitive examination came to be fixed and the manner of conducting the competitive exams. was also notified. In pursuance to the notification, nearly 51938 applications were received. As per the Government Order dated 20-6-1995 vacancies were required to be reserved according to the jurisdiction of the Appointing Authority cadre-wise. In the instant case, the Block Education Officer being the Appointing Authority, the vacancies have been reserved block-wise as per the percentage of reservation prescribed in the roster including for the physically handicapped persons, as provided for in the Government Order is the contention. 5. It is further contended by the State that the Government has framed the Rules called Karnataka Education Department Services (Department of Public Instruction) (Recruitment) (Amendment) Rules, 2001 (for short 2001 Rules) prescribing eligibility criteria for filling up the vacancies of the teachers. 5. It is further contended by the State that the Government has framed the Rules called Karnataka Education Department Services (Department of Public Instruction) (Recruitment) (Amendment) Rules, 2001 (for short 2001 Rules) prescribing eligibility criteria for filling up the vacancies of the teachers. 5% of the vacancies have been reserved for physically handicapped persons in the manner prescribed in the Government Order dated 20-6-1995 and 22-11-2002. The State justifies the Notification issued and states that the action is taken in compliance with the Rules and Regulations in force. 6. The grievance made by the petitioners is that the 2nd respondent-Commissioner without hearing the State Government has hurriedly passed the order, impugned in the writ petition, directing not to hold the competitive examinations which were scheduled to be held on 20-11-2005. It is contended that the complaint by the 1st respondent is filed on 14-11-2005. The State Government filed its objections on 17-11-2005 and the Commissioner without hearing the State Government has passed the order impugned staying the entire examinations scheduled to be held on 20-11-2005. When all the arrangements were made by spending huge sums of money for conducting the examinations for nearly 51,000 candidates and when most of the candidates reached the places of examinations by incurring heavy expenses, the impugned order directing to withhold the examinations is issued is the grievance of the petitioner. 7. Learned Government Advocate Sri Manohar appearing for the petitioner-State and its authorities contends that: (a) the Commissioner does not have the power or jurisdiction to issue directions of the nature as contained in the impugned order. If at all the respondent No.1 was aggrieved by the Notification issued, she ought to have approached the Karnataka Administrative Tribunal, (b) the 2nd respondent failed to consider the Notification issued by the State Government in which number of vacancies have been reserved for physically handicapped candidates according to the reservation roster and that the State is implementing 5% reservation provided for physically handicapped by following the roster points. He further submits that there is no restriction on the candidates for applying and choosing any of the Educational blocks or districts, (c) the entire selection process is initiated as per the 2001 Rules which have been upheld by the Karnataka Administrative Tribunal and confirmed by this Court, (d) in order to protect the interests of the physically handicapped candidates, the State Government has provided 5% reservation as against 3% prescribed by the Disabilities Act which fact has been totally ignored by the 2nd respondent-Commissioner. The roster point reservation is complied with and if there is any shortfall the same will be made up in the next recruitment. (e) the Judgment of the Apex Court in Rajesh Kumar Guptas case (2005 AIR SCW 2731) has no application to the facts of the case and the Commissioner erred in placing reliance on the same. 8. In support of the contentions urged, learned Government Advocate apart from taking me through the various provisions contained in the Act and the Rules framed therein has relied on the following judgments : (1) K. G. Ashok & others v. Kerala Public Service Commission & others, AIR 2001 SC 2010 . (2) Arun Tewari & others v. Zilla Mansavi Shikshak Sangh & others, AIR 1998 SC 331. (3) Order dated 28-8-2002 passed by the Division Bench of this Court in W. P. No. 31769-31774 /2002. (4) Order dated 26-9-2002 passed by this Court in W. P. No. 35642-645/2002. 9. Learned Counsel for the respondent has contended that the action of the petitioner is not only in gross violation of the provisions of the Act and the Rules framed therein but is also contrary to the provisions contained under Rule 9-A of the Karnataka Civil Services (General Recruitment) Rules (for short General Recruitment Rules). Placing reliance on the various provisions contained in Chapter VI of the Act, including Section 33 which imposes obligation on the State and its machineries to reserve not less than 3% of the posts in favour of disabled persons and the provisions made under Section 36 to carry forward the unfilled vacancies for the next recruitment, learned Counsel for the respondent has made elaborate submissions to show as to how the present recruitment fails to conform to the requirements of the Act. Referring to the nature and extent of reservations made in favour of the disabled persons as reflected in Annexure R-1 filed along with the statement of objections, learned Counsel has contended that the total posts as shown in the last column is 4767, out of which categorisation in favour of different subjects is made and district-wise allocation of posts is made. If 5% reservations had been provided, the total number of posts earmarked for physically disabled should have been 238. Whereas in the present recruitment the total number of seats reserved is only 72, which falls drastically short of the requirement. The candidates suffering from blindness or reduced vision and the resultant disability are totally excluded from extending any benefit as seen from the allocation made for the disabled category. It is contended that the district-wise break-up reduces the roster points and at times brings it to nil. In this regard, he has shown an example referring to the reservations made in respect of Kolar district wherein for Mulubagulu and Srinivasapura Taluks the allocation made for disabled persons is shown as nil. By placing reliance on the judgment of the Apex Court in Rajesh Kumar Guptas case (2005 AIR SCW 2731), learned counsel has contended that the district-wise break-up of posts and the recruitment on that basis is held to be unconstitutional. 10. Insofar as the legal contention urged by the learned counsel for the petitioner regarding the jurisdiction of the Commissioner in passing the impugned order is concerned, the learned counsel for the second respondent has contended that the impugned order has to be viewed in its totality and in the background in which the complaint is made. Having regard to the materials placed, prima facie disclosing violation of the requirement of 5% reservation in favour of disabled persons, the Commissioner has exercised the powers vested in him under Sections 60, 61-C & D read with Section 62 contained in Chapter XII of the Act, and hence there is nothing exceptional is what is contended. 11. Learned Counsel appearing for the 2nd respondent-Commissioner has argued at length contending that a perusal of the preamble of the Act and the entire scheme of the legislation would clearly show that the Commissioner is conferred with the power to take all possible steps necessary for the purpose of realising the benefits conferred for the disabled persons. 11. Learned Counsel appearing for the 2nd respondent-Commissioner has argued at length contending that a perusal of the preamble of the Act and the entire scheme of the legislation would clearly show that the Commissioner is conferred with the power to take all possible steps necessary for the purpose of realising the benefits conferred for the disabled persons. He submits that Article 41 of the Constitution places an obligation on the State to make provisions for securing right to work for the disabled also. The Commissioner, under the provisions of the Act is like a Tribunal. His functions and duties are judicial in nature. He has the attributes and trappings of the Court and, therefore, he is entitled to issue suitable directions including the ones that are issued against the State Government, as in the instant case, directing to withhold the recruitment and not to proceed further unless 5% reservation for the disabled candidates is provided for. He has placed reliance on the judgments reported in : (1) Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand & others, AIR 1963 SC 677 . (2) Associated Cement Companies Ltd. v. P. N. Sharma & Anr., AIR 1965 SC 1595 . (3) Manju Varma (Dr.) v. State of U. P. & others ( 2005 (1) SCC 73 ). (4) Rajesh Kumar Gupta & others v. State of U. P. & others, 2005 (5) SCC 172 : ( AIR 2005 SC 2540 ). 12. He further contends that the provisions of the Act have to be interpreted in a meaningful manner. The Parliament has enacted the Law providing for protection to the disabled and has conferred certain powers on the Commissioner to ensure the compliance of the same. If the provisions contained in Sections 60, 61 and 62 of the Act are not read so as to clothe the Commissioner with adequate powers to issue necessary directions, the whole purpose of the enactment and the efficacy of the provisions will be whittled down and the Commissioner will be reduced to only a recommendatory body. 13. Having heard the learned counsel for the parties and upon careful perusal of the entire materials, the points that arise for consideration in this writ petition are : (i) Whether the Commissioner for disability acted beyond his jurisdiction in passing the impugned order and in issuing the directions of the nature contained in the order? 13. Having heard the learned counsel for the parties and upon careful perusal of the entire materials, the points that arise for consideration in this writ petition are : (i) Whether the Commissioner for disability acted beyond his jurisdiction in passing the impugned order and in issuing the directions of the nature contained in the order? (ii) Whether the impugned order is otherwise illegal and unsustainable in law? (iii) Whether the State has not adhered to the provisions made regarding reservation in favour of physically disabled candidates in respect of the recruitment in question? 14. The enactment known as Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is the result of the adoption of the proclamation on full participation and equality of people with disability in the Meeting held at Beijing between 1st to 5th December 1992 to which India is a signatory. The object and reasons for the purpose of enacting the legislation among others is to lay down a strategy for comprehensive development of programme and services and equalisation of opportunity for persons with disabilities. Chapter VI of the Act deals with the employment and provisions for reservation of posts in favour of the disabled. Section 33 of the Act provides that the appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for the class of persons with disability. As per Section 36 of the Act if in a recruitment year any vacancy under Section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancies are required to be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also, suitable person with disability is not available it may first be filled by interchange among the three categories and only when there is no person with disability is available for the post in that year, the employer shall fill up the vacancy by appointment of a person other than a person with disability. 15. Section 60 of the Act deals with the provisions pertaining to appointment of the Commissioner for persons with disabilities. Sections 61, 62 and 63 are the provisions which are relevant in order to find out the nature of the functions and powers discharged by the Commissioner. 15. Section 60 of the Act deals with the provisions pertaining to appointment of the Commissioner for persons with disabilities. Sections 61, 62 and 63 are the provisions which are relevant in order to find out the nature of the functions and powers discharged by the Commissioner. Section 61 which deals with powers of the Commissioner states that the Commissioner within the State shall— (a) co-ordinate with the departments of the State Government for the programmes and schemes for the benefit of persons with disabilities; (b) monitor the utilisation of funds disbursed by the State Government; (c) take steps to safeguard the rights and facilities made available to persons with disabilities; (d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner. 16. Section 62 which enables the Commissioner to look into complaints regarding the deprivation of rights of disabled persons in addition to and without prejudice to the powers conferred under Section 61 of the Act states that the Commissioner may on his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters relating to— (a) deprivation of rights of persons with disabilities; (b) non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities. and take up the matter with the appropriate authorities. 17. Setion 63 of the Act provides that the Commissioner, for the purpose of discharging his functions under the Act, shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely :— (a) summoning and enforcing the attendance of witnesses; (b) requiring the discovery and production of any documents; (c) requisitioning any public record or copy thereof from any Court or office; (d) receiving evidence on affidavits; and (e) issuing commissions for the examination of witnesses or documents. 18. Sub-clause (2) of Section 63 of the Act states that the proceedings before the Chief Commissioner and Commissioners shall be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. 19. 18. Sub-clause (2) of Section 63 of the Act states that the proceedings before the Chief Commissioner and Commissioners shall be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. 19. Under Section 65 of the Act, the Commissioner is enjoined with the duties to prepare annual report for each financial year giving full account of his activities during the previous financial year and forward a copy thereof to the State Government. The State Government is required to cause the annual report to be laid before the State Legislature along with the recommendations explaining the action taken or proposed to be taken on the recommendations and the reasons for non-acceptance of any such recommendations. 20. Chapter XIII provides for certain social security measures which the Government and the authorities are required to undertake for the benefit of the disabled persons with regard to rehabilitation of all persons with disabilities, grant of financial assistance to non-governmental organisations for the purpose of rehabilitation, providing insurance scheme for employees with disabilities and payment of unemployment allowance by framing necessary schemes in this regard to the persons with disabilities are some of them. There are provisions for affirmative actions contained under Chapter VII in the form of provisions for aids and appliances to persons with disabilities and for framing schemes in favour of persons with disabilities for preferential treatment in allotment of lands at concessional rates for certain purposes as in the matter of setting up of houses, business, special recreation centers, special schools, etc. Chapter VIII deals with non-discrimination in transport, on the road, in Government employment etc. 21. In the background of these provisions and the intention of the Legislature behind the enactment of these provisions made for the benefit of the disabled persons and the powers and functions which the Commissioner is enjoined as per the provisions referred to hereinabove contained in sections 60 to 63 of the Act, it has to be now examined whether the Commissioner has acted within the province of his powers and the jurisdiction conferred on him while passing the impugned order. 22. Section 61 of the Act which is titled as Powers of the Commissioner confers on the Commissioner the power to take steps to safeguard the rights and facilities made available to persons with disabilities. 22. Section 61 of the Act which is titled as Powers of the Commissioner confers on the Commissioner the power to take steps to safeguard the rights and facilities made available to persons with disabilities. Section 62 of the Act empowers the Commissioner to look into the complaints with regard to the matters relating to deprivation of rights of persons with disabilities either on his own motion or on the application of any aggrieved person to look into the complaints regarding deprivation of rights of persons with disabilities; non-implementation of laws, rules, bye-laws, regulations etc., issued for the welfare and protection of the rights of persons with disabilities and to take up the matter with the appropriate authorities. As per Section 63 of the Act the Commissioner is given the powers that are vested in a Court under the Code of Civil Procedure while trying the suit, for the purpose of enforcing attendance of witnesses, receiving evidence, issuing commissions for the examination of witnesses or documents etc. Thus the conspectus of the provisions providing for the powers and functions of the Commissioner on the one hand and the security measures and the obligations on the State and its authorities that are required to be ensured for the purpose of helping the disabled on the other, if examined together would clearly indicate that the Parliament has enacted this legislation with an intention to come to the aid and rescue of the disabled persons to provide them effective, meaningful and urgent remedies for the purpose of their rehabilitation and support. In order to ensure that the rehabilitation and other various beneficial measures and programmes are provided to the disabled under various provisions of the Act and that they do not remain a mere slogan, the Parliament has made provisions for appointment of the Chief Commissioner for Persons with Disabilities at the Central level and the Commissioner for Persons with Disabilities at the State level clothed with the powers to monitor the funds disbursed by the Central and the State Governments and also to take necessary steps for safeguarding the rights of the persons with disabilities and to ensure effective adherence and implementation of the various schemes, rules, bye laws and regulations framed in that regard. 23. 23. Though it is contended by the learned counsel appearing for the respondents that the Commissioner appointed under the Act functions as a Court or like a Tribunal and is enjoined with the powers of issuing directions, passing orders as a Court of Law, it is seen that none of the provisions in the Act spells out such an intention to constitute the Commissioner as a Court or Tribunal clothing him with the powers to pass orders and issue directions nor is there any mechanism provided for the aggrieved person to go in appeal against the said orders. No provision is also made for enforcement of the orders passed. In the absence of such provisions found in the Act, the contention urged by the learned counsel for the respondents stating that the Commissioner acts as a Tribunal or a judicial authority and can issue directions and enforce them as a Court of law cannot be accepted. Such a power cannot be inferred or concceded in favour of the Commissioner in the absence of any express provisions contained in the Act in that regard. But I must hasten to add that though the Commissioner does not discharge the functions of a Court of Law and does not pass orders or judgments enforceable as that of the Courts of law, he is the authority in whom the powers are vested, for the purpose of safeguarding the rights and ensuring the protection and securing the facilities made available to persons with disabilities and in this regard he can certainly investigate, examine and issue directions, make recommendations and pass orders. As otherwise, the power conferred under Section 61 (c) of the Act to take steps to safeguard the rights and facilities made available to persons with disabilities will be rendered nugatory and ineffective. Likewise, the power conferred under Section 62 of the Act to take up, either on his own motion or on the application of any aggrieved person, any complaint with respect to matters relating to deprivation of rights of persons with disabilities or with regard to non-implementation of laws, rules, bye-laws meant for the welfare and protection of the rights of persons with disabilities and to take up the matter with the appropriate authorities also clearly suggest that the Parliament has clothed the Commissioner with such powers. Therefore, it has to be held that the Commissioner is vested with the power to examine the grievance of the disabled persons to examine the non-implementation of any laws or regulations, meant for protecting the rights of the disabled persons, to enquire and investigate the deprivation of their rights, hold enquiry by summoning and enforcing attendance of witnesses, by receiving evidence, requisitioning public records and exercising the powers vested in a Court under the Code of Civil Procedure in this regard including recording findings, passing orders, making recommendations. It has to be further stated that the mechanism provided in these provisions enables the Commissioner to take up the matters with appropriate authorities and to ensure that the authorities adhere to the provisions made. In case, there is any violation in the implementation of the provisions of the Act and the Rules framed, in exercise of the powers conferred by sub section (1) of Section 73 of the Act, the Commissioner can take up the matter with the authorities concerned. He can take up the matter with the Government. Rule 34 of the Rules framed by the State in the year 2003 provides for submission of report by the Commissioner to the State Government on the implementation of the Act at the interval of 6 months so that at least two reports are sent in one financial year. Rule 35 also provides that an annual report giving an account of his activities be sent to the State Government by the Commissioner including as regards the functions discharged and powers exercised by him under Sections 61 and 62 of the Act. 24. Thus, on the examination of the entire scheme of the Act and the Rules what emerges is that though the Commissioner is not constituted as a Tribunal or a Court clothed with the powers to pass orders and to enforce them on his own as a Court of law, he is a significant functionary who is endowed with the functions and powers to ensure compliance of the provisions of the Act. In this regard, merely because the provisions of the Act do not expressly narrate the details regarding the nature of the powers to be exercised, it cannot be said that he cannot take any action to prevent the deprivation of the rights of the disabled persons or to take steps to ensure the compliance with the protection provided under the provisions of the Act. On the other hand, the expression as used in Section 61 (c) of the Act namely to take steps to safeguard the rights and facilities made available to persons with disabilities have to be interpreted to include passing of necessary orders and issuing necessary directions to secure adherence to the provisions of the Act and to protect the disabled persons. In this regard, however, the Commissioner for the purpose of enforcing these duties has to co-ordinate with the departments of the State Government. It also needs to be emphasised here that even the beneficiary can seek enforcement of directions issued by the Commissioner if they clothe them with any definite rights in this regard by approaching this Court. 25. Keeping in mind these aspects of the matter pertaining to the power of the Commissioner, if we now examine the nature of the impugned directions issued by the Commissioner, it would be clear that based on the complaint received from the aggrieved person, the Commissioner has issued a show cause notice to the Director of Public Instructions (Primary Education). He has obtained a reply from him and has proceeded to examine the merits of the grievance made and has come to the conclusion that the present recruitment does not provide for 5% reservation for persons with disabilities. He has also come to the conclusion that the Government Order providing reservation for persons with disabilities has remained only an eyewash and has not been serving the cause of the class for which purpose such reservation is meant for. Having regard to the contravention in extending the requisite reservation to the disabled persons in the posts for which notification is issued, he has directed the authorities not to proceed with the common entrance test examination and the consequent recruitment process in the State. The State has come up with this writ petition challenging the jurisdiction of the Commissioner to issue such a direction. The State has come up with this writ petition challenging the jurisdiction of the Commissioner to issue such a direction. The question is not so much of the jurisdiction of the Commissioner to issue this direction as is sought to be made out by the petitioners. In essence, the question is and has to be whether the findings recorded by the Commissioner are legal and justifiable. 26. The Director of Public Instructions (Primary Education), Bangalore has filed an affidavit dated 2-12-2005 narrating as to how the reservation made in favour of the physically handicapped has been adhered to in the past. He has also contended that the present recruitment process is initiated in accordance with the Rules framed during the year 2001. The Karnataka Department Services (Department of Public Instruction Recruitment) (Amendment) Rules, 2001 have been introduced by amending the existing recruitment rules of primary school teachers. As per the said Rules, categorisation is made subject-wise for the purpose of recruitment to the post of Assistant Master. So far as the categorisation of posts for the purpose of recruitment into Kannada General, Kannada Science, English, Hindi, etc,. and prescription of different educational qualifications for different categories of primary school teachers is concerned, the Division Bench of this Court in W. P. 31769-31774/2002 in the case of Mahesh Gundlur v. State of Karnataka disposed of on 28-8-2002 has held that in matters of appointment particularly those relating to appointment of teachers, it was for the concerned department or the rule making authority to decide upon the educational qualification required for appointment and how the posts should be categorised for the purpose of recruitment and what should be the educational qualification for recruitment to each category of posts. 27. In the present case the Rules viz., the 2001 Rules of recruitment of Assistant Master not being challenged, it is unnecessary to deal with the same. The Commissioner has however, held that the District-wise recruitment notifications have further divided the number of posts into taluka level which is contrary to the Cadre and Recruitment Rules of the Department of Public Instructions. The Commissioner has however, held that the District-wise recruitment notifications have further divided the number of posts into taluka level which is contrary to the Cadre and Recruitment Rules of the Department of Public Instructions. He has also held that the grievance of the complainant, made on the basis of the judgment of the Apex Court in Rajesh Kumar Guptas case ( AIR 2005 SC 2540 ) wherein it was held that selection and preparation of merit list at district level was arbitrary and violative of constitutional provisions contained in Article 14, 15 and 16, has remained unadverted by the Director of Public Instructions in the reply given by him. On the strength of these observations made by the Commissioner, it is contended by the Government Advocate that the Commissioner has virtually held that the present selection and preparation of merit list at district level is impermissible having regard to the judgment of the Apex Court. In Rajesh Kumar Guptas case ( AIR 2005 SC 2540 ), the recruitment process initially started was on the basis of state level selection. Later, it was decided to make it a district level selection and the applicants who had applied for the posts in one district were not eligible to apply to the posts in other district. The method adopted was sought to be supported by the authority on the ground that different districts had different dialects and teachers who were proficient in that dialect could only be appointed to enable them to teach the students of different regions effectively. The Apex Court found that there was no basis for such differentiation and it amounted to an arbitrary and unreasonable exercise. In the facts of the present case, though it is a district-wise selection, there is option open to the applicants to apply in different districts. There is no bar for an applicant to apply and participate in the selection process in another district and no such distinction is sought to be made on the basis of dialect. Therefore, the ratio laid down in the said judgment is not perforce applicable to the facts of the present case. There is no bar for an applicant to apply and participate in the selection process in another district and no such distinction is sought to be made on the basis of dialect. Therefore, the ratio laid down in the said judgment is not perforce applicable to the facts of the present case. At any rate, I must hasten to add here that this Court need not examine this matter, as no challenge is made to the rules on that basis and the observations of the Commissioner are only for the guidance and consideration of the appropriate authority in particular and the State Government in general. 28. A perusal of Rule 9 (1) (A) of the General Recruitment Rules, as amended on 3-8-2005 makes it clear that in Class C & D posts, 5% of the posts are to be reserved for persons with disability. The Rule mandates that there shall be reservation of 5% for persons with disability. Therefore the Appointing Authority and the State Government are under a statutory obligation to reserve 5% of the posts for the disabled persons. In the instant case, though in all 4716 posts of Assistant Masters are to be filled up and if calculated at 5% a total number of nearly 238 posts are to be reserved for persons with disability, on account of the adoption of district-wise and block-wise selection coupled with the language-wise selection if roster point selection is to be applied ultimately the number of posts available to persons with disability will be very few. To understand this, the figures stated in the statement of objections by the respondent No.1 can be taken as an illustrative case. (TABULAR MATTER IS OMITTED...ED.) 29. It is clear from the perusal of the table furnished above that in so far as Bangalore Rural District is concerned out of the total posts of 200, as per the mandate of Rule 9 (1) (A) of the General Recruitment Rules, 5% of the total posts, i.e., to say 10 posts ought to have been reserved for physically disabled persons, whereas the actual number of posts reserved for the physically disabled persons is only 2. Likewise, in Bagalkot District the number of posts advertised is 173, 5% of it comes to 9 posts, whereas the actual number of posts reserved is only 2. Likewise, in Bagalkot District the number of posts advertised is 173, 5% of it comes to 9 posts, whereas the actual number of posts reserved is only 2. Similarly, in Bijapur District the total number of posts is 234, 5% reservation for physically handicapped would come to 12 posts, whereas the actual number of posts reserved is 4. This reduction in the number of posts for physically disabled persons is on account of the blockwise allocation made within the district and the language-wise categorisation of the posts to be filled up. 30. A perusal of the Rules, viz., 2001 Recruitment Rules will show that the selecting authority is the Deputy Director of Public Instructions in the district who is also the Selection Authority required to conduct a combined competitive examination. The number of candidates to be included in the district level list shall be equal to the number of vacancies available in each educational block in each of the districts. This select list is called the main select list of selected candidates (District level). The Selection Authority thereafter prepares separate list of selected candidates for each of the educational blocks by allotting candidates through counselling from the main list of selected candidates (District level). The number of candidates to be included in such list shall be equal to the number of vacancies, as notified against each of the educational blocks in the notification published for requirement. The Rules also provide that the posts shall be reserved for physically handicapped and Ex-serviceman to the extent as specified under Rule 9 of the General Recruitment Rules. The Selection Authority is also enjoined with a duty to prepare an additional list of candidates, not included in the main list, not exceeding 10% of the vacancies available. The candidates whose names are included in the main list prepared in the manner stated above will be appointed by the concerned Block Education Officers who are referred to as the Appointing Authorities. It is thus clear that the competitive examination is held by the Selection Authority who is the Deputy Director of Public Instructions and this selection takes place at district level. 31. It is thus clear that the competitive examination is held by the Selection Authority who is the Deputy Director of Public Instructions and this selection takes place at district level. 31. When the competitive examination is held district-wise and when the select list is prepared at district level by the Deputy Director of Public Instructions there is absolutey no reason why the reservation to be provided for the disabled persons shall have to be reckoned by taking into account block-wise categorisation. By resorting to this method and by following the roster point at block level, the Authorities have virtually negated the very laudable object of introducing reservation in favour of disabled candidates. If in a particular block level the required number of seats to be filled is less than 19, no reservation in favour of disabled persons could be given as the roster point for the disabled persons starts from 19th point. Therefore, the grievance made by the complainant before the Commissioner, based on which the anxiety is expressed by the Commissioner stating that the taluka wise break up and language-wise categorisation has led to denial of the benefit of reservations in favour of the disabled persons appears to be very genuine. Whether the reservations have to be resorted to by taking the total number of posts for which the recruitment has to be made at state level or not is a moot point. If the controversy is examined from the stand point of protecting the rights of the disabled persons and if block-wise categorisation even for the purpose of reservation and for identifying the roster points is adopted, it would deprive them of the very object of the legislation. No justification is forthcoming for adoption of such a method even for fixing the roster points. 32. Having regard to the intendment of the legislation, viz., the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 read with Rule 9 of the General Recruitment Rules, as amended, it is manifest that the State Government and the Appropriate Authorities shall have to abide by the reservation of 5% in favour of the disabled persons. The reservation now provided falls radically short of the required number to be allocated for the disabled persons at the rate of 5%. The reservation now provided falls radically short of the required number to be allocated for the disabled persons at the rate of 5%. Whether one calculates it on the basis of the total number of posts state-wise or with reference to the district-wise allocation in either case, the figure falls short of the required 5% reservation in a substantial way. It is for this reason that the Commissioner has passed the order calling upon the Director to adhere to the reservation. May be the Commissioner is not clothed with the power to issue an enforceable direction mandating the authorities to do or not to do a certain act, as the provisions of the Act do not clothe him with powers that are vested in the Courts, but that does not mean that the Commissioner who is enjoined with the functions and duties to protect the interests of the disabled persons and take up the matter with the appropriate authorities wherever there is violation of the interests of the disabled persons cannot highlight these aspects and call upon the concerned authorities to adhere to the Rules. The order passed by the Commissioner has to be understood in this context and the directions issued have to be taken in this perspective. In which event, the question whether he has power or jurisdiction to issue an enforceable direction stands relegated to the background and the essence of the grievance of the disabled persons gets highlighted so that the appropriate authority including the State Government, in the instant case, and the concerned department of Public Instruction examine the matter with all seriousness keeping in mind the intention of the legislature. That is exactly the purpose for which the Parliament has conferred certain duties and functions on the Commissioner. 33. Therefore, in my view while it has to be held that the Commissioner does not discharge the powers and functions of a Court of Law and does not pass judgments or orders as a Court of Law does, he is an important functionary enjoined with the duties to protect the interests of the disabled persons by passing orders, making recommendations and taking up the matter with the appropriate authorities wherever the interests of the disabled are neglected and Rules and Regulations are violated. Therefore, in the instant case, the order passed by the Commissioner has to be read down to be one calling upon the appropriate authorities to adhere to the Rules and to examine the matter in that perspective. It thus becomes clear that whenever there is violation of the rules of recruitment regarding reservation in favour of the disabled persons, as provided by the Statute under Section 33 and 36 of the Central Act read with Rule 9(A) of the General Recruitment Rules, the Commissioner can take up the matter with the appropriate authority and take steps to see that the rules are adhered to. As a result point No.1 to 3 raised for consideration are answered accordingly. The judgments relied upon by the petitioners are not relevant to the facts of the case on hand and do not support their contention. At any rate, in the light of the view that I have taken, it is unnecessary to examine the law laid down in the said judgments. 34. What emerges from the above is that the petitioners are required to take steps to abide by the statutory prescription and the mandatory rules. As already held by me, the present method adopted denies the rights of the disabled persons. The order of the Commissioner brings home these facts and makes available the relevant materials for the guidance of the Government and the appropriate authorities, as recorded by him after necessary enquiry and investigation. It is now for the State authorities to bestow their serious thoughts on the issue in question and to re-do the whole thing so as to provide the requisite percentage of reservation in favour of the disabled persons. 35. In the result, this writ petition is disposed of in terms stated above reading down the order passed by the Commissioner in the above terms and with a direction to the State and its functionaries and to the concerned authorities to re-work the reservation for the disabled persons in the matter of recruitment to the post of Primary School Teachers by adopting appropriate method in accordance with law and in the light of the observations made above so as to conform to the mandates of the Act (Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Particiapation) Act, 1995) and the Rules (Karnataka Civil Services (General Recruitment) Rules, 1977). 36. 36. In the circumstances of the case, parties to bear their respective costs. 37. Order accordingly.