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Allahabad High Court · body

2010 DIGILAW 1391 (ALL)

MOHAMMAD SHAMI UDDIN v. STATE OF U. P.

2010-04-28

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Petitioner is stated to employed in an aided Madarsa and has been physically handicapped (blind in both eyes) during course of employment. He has come up with a plea that he is entitled to continue in employment and for a payment of salary in view of Section 47 of Act No. 1 of 1996. 2. This Court in the case of Ashok Kumar Tiwari and others v. State of U.P. and others, 2008 (1) ESC 746 (All), in paragraph 31 has held as follows: “In view of the foregoing discussions, this writ petition is disposed of with the following directions: (i) The State of U.P. respondent No. 1 is directed to take a decision as to whether Physically Handicapped belonging to the category of blinds or low vision or suffering from hearing impairment are eligible for appointment as primary teachers or entitled to be admitted in Special B.T.C. Training Course 2007 keeping in view the identification of posts as made by the State of U.P. vide Government order dated 7.5.1999. The said decision shall be taken within a period of four weeks from today. Until such decision is taken, the seats reserved in different DIETs for audio and visual handicapped be not filled up. (ii) In the event, if any of the categories i.e. blind/low vision or suffering from hearing impairment is found eligible for Special B.T.C. Training Course 2007, the necessary methodology and manner for imparting training to them be also spelt out with all necessary details. (iii) In the event, any category of Physically Handicapped is not found eligible then the 3% seats reserved for Physically Handicapped Category be filled up from other eligible category of Physically Handicapped Category candidates. (iv) Separate merit index be provided for different categories of Physically Handicapped Category in the event more than one category of Physically Handicapped Category is found to be eligible for imparting Special B.T.C. Training Course 2007.” 3. In terms of the said judgment of this Court, the State Government vide notification dated 31.2.2008 identified the post of teachers for physically handicapped persons within the category of blind in both the eyes as well as partially blind as suitable for employment. In terms of the said judgment of this Court, the State Government vide notification dated 31.2.2008 identified the post of teachers for physically handicapped persons within the category of blind in both the eyes as well as partially blind as suitable for employment. Reference in this regard is made to entry 26 (a) which reads as follows: (2)”Ukt shashanadesh ke sath sanlagn sharirik roop se viklango ke liye padon ka chinhankan-samoh ‘ga’ ke samkaksh pad ki suchi ke kramank 26 ‘ka’ ke paschat suchi ‘ka’ kramank-26 ‘a’ nimnwat sammilit kiya jata hai-B. Pb. D.Pd.” ————— 26. Primary School Teacher SE.H.F.S. OL.BL.MW.OA 4. It is further stated before this Court that State Government vide notification dated 29.7.1999 has exempted the minority institutions from the applicability of the identification of parts of teachers qua physically handicapped persons. Reference is also made to clause 4 of the notification dated 29.7.1999, where under the provisions of the U.P. Public Services (Reservation for Physically Handicapped Dependant of Freedom Fighters and Ex-Serviceman) Act, 1993 have been enforced except in respect of the institutions which are run and managed by the minorities. 5. The Court, therefore, inquired as to whether after identification of the post of primary teachers to physically handicapped persons within the category of complete blind or partially blind what methodology has been framed so that the handicapped teachers on employment could impart education to the students. Learned standing counsel could not answer the query of the Court. 6. This Court finds that although the post of Assistant Teacher in aided institutions have been categorized for physically handicapped persons belonging to the blind category, yet no methodology has been provided by the State Government to impart education to students by such persons. 7. The aforesaid issue may not detained the Court long inasmuch as under Section 47 of Act No. 1 of 1996 so long as a suitable post where a person who has been physically handicapped during the course of employment can be adjusted, it is obligatory upon the authorities to create superannuary post and to continue the handicapped persons against the said post till he attains the age of superannuation or can be adjusted elsewhere. As on date, it appears that it is not possible for the petitioner to be adjusted against any other post. As on date, it appears that it is not possible for the petitioner to be adjusted against any other post. However, it is to be examined as to whether Aided Madarsas are exempted under the notification dated 29.7.1999 or not. 8. The State authority at the first instance has to take appropriate decision in the matter of payment of salary to the petitioner till he reaches the age of superannuation in view of Section 47 of Act No. 1 of 1996. Accordingly, respondent No. 1 is directed to take appropriate decision within a period of four weeks from the date a certified copy of this order is filed before him and he shall passed a reasoned and speaking order. 9. The writ petition is disposed of. ————