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Gujarat High Court · body

2012 DIGILAW 721 (GUJ)

State of Gujarat v. Rajesh C. Mulwani

2012-10-04

G.B.SHAH, V.M.SAHAI

body2012
Judgment V. M. Sahai, J.—We have heard Mr. Rakesh P. Patel, learned Assistant Government Pleader appearing for the appellants and Mr. Arun D. Oza, learned Counsel appearing for the respondent. 2. This Letters Patent Appeal has been filed by the appellants – original respondents challenging the interim order dated 23.7.2012 passed by the learned Single Judge in Special Civil Application No. 4378 of 2012. By the said order, the learned Single Judge has admitted the writ petition and directed the State Government to act upon the recommendation made by Gujarat Public Service Commission dated 12.1.2012 and to implement the said recommendation of the GPSC within two weeks. 3. The facts in brief are summarised as under :— 3.1 The respondent herein – original petitioner is a visually handicapped person who suffers from 100% blindness. He is working as Lecturer since last 15 years in District Institute of Education and Training (D.I.E.T. for short). In the year 2010, the respondent cleared examination conducted by Gujarat Public Service Commission for the post of DIET Principal (Super Class-I). Thereafter, interview of the respondent was taken on 8.12.2009 and selection letter was given by GPSC on 2.1.2010 and certificates were also verified by the Education Department on 18.1.2010. Thereafter, first selection order was issued on 10.2.2011 and second selection order was issued on 31.12.2011. However, the name of the respondent herein – original petitioner did not figure and hence, the respondent herein approached this Court by filing writ petition being Special Civil Application No. 4378 of 2012. 3.2 Learned Assistant Government Pleader Mr. Rakesh P. Patel appearing for the appellants – State Government has submitted that the nature of duties which are required to be performed by a Principal of D.I.E.T. are such that the respondent herein – original petitioner being 100% blind person will not be able to perform and hence, his appointment order was not issued. He submitted that as Principal of D.I.E.T., the respondent is required to perform duties in the administrative field, educational field, budgetary field as well as he has to manage the entire staff of D.I.E.T. The respondent being 100% blind will not be able to perform different kinds of duties and hence, the appellants have taken a policy decision not to appoint the respondent on the post of Principal. He further submitted that by way of interim order, the learned Single Judge has granted final relief in favour of the respondent herein and hence, the impugned interim order dated 23.7.2012 is required to be quashed and set aside. 3.3 Learned Counsel Mr. A.D. Oza appearing for the respondent has relied upon the decision of the Hon’ble Supreme Court dated 7.10.2010 rendered in Special Leave Petition (C) No. 14889 of 2009 in the case of Government of India through Secretary and another vs. Ravi Prakash Gupta and another wherein similar issue was there. The respondent was visually handicapped person who suffers from 100% blindness, cleared Civil Services Examination conducted by UPSC. It was contended by the petitioner in the said case that there was failure on their part to identify the number of seats reserved for the visually handicapped category and hence, the respondent was not given appointment order despite the vacancies available. In this context, the Hon’ble Supreme Court has observed that a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates, some of the reserved posts could remain vacant in a given year. For meting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Considering the entire aspect of the matter, the Hon’ble Supreme Court dismissed the Special Leave Petition filed by Union of India and directed them to give effect to the directions of the Delhi High Court within eight weeks. 4. In the case of Union of India vs. Sanjay Kumar Jain, (2004) 6 SCC 708 , the Hon’ble Supreme Court in Paragraph 8 has observed as under :— “8. The Act has been enacted, as the preamble of the Act indicates, to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The Act has been enacted, as the preamble of the Act indicates, to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. In a meeting to launch the Asian and Pacific Decade of the Disabled Persons, 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, which was held at Beijing from 1.12.1992 to 5.12.1992, a proclamation was adopted on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. Our Country is a signatory to the said Proclamation. The Proclamation was on the following lines : “To give full effect to the Proclamation it was felt necessary to enact a legislation to provide for the following matters : (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision 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 any discrimination against persons 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 equalisation of opportunities for persons with disabilities; and (vi) to make special provision for the integration of persons with disabilities into the social mainstream.” 4.1 In the case of National Federation of Blind vs. Union Public Service Commission and others, (1993) 2 SCC 411 , the Hon’ble Supreme Court observed in Paragraph 14 as under :— “14. In the light of the above discussion, we partly allow the writ petition and direct the Government of India and the Union Public Service Commission to permit the visually handicapped (blind and partially blind) eligible candidates to compete and write the civil services examination which is ordinarily held yearly by the Union Public Service Commission. We further direct that they shall be permitted to write the examination in Braille-script or with the help of a Scribe. There shall be no orders as to costs.” 4.2 In the case of Amita vs. Union of India and another, (2005) 13 SCC 721 , the Hon’ble Supreme Court discussed the expression “equality before the law” as well as “matters relating to employment or appointment”. There shall be no orders as to costs.” 4.2 In the case of Amita vs. Union of India and another, (2005) 13 SCC 721 , the Hon’ble Supreme Court discussed the expression “equality before the law” as well as “matters relating to employment or appointment”. Paragraphs 11 & 12 of the said judgment is extracted below :— “11. . . . . . . . . .The first expression “equality before the law” contained in Article 14, which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst equals the law should be equal and should be equally administered and that likes should be treated alike. Thus, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Article 14 of the Constitution is both a negative and positive right. Negative in the sense that no one can be discriminated against anybody and everyone should be treated as equals. The latter is the core and essence of the right to equality and the State has the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being. Therefore, Article 14 contemplates reasonableness in State action, the absence of which would entail the violation of Article 14 of the Constitution. 12. . . . . . . . . The expression “matters relating to employment or appointment” contained in Article 16 (1) includes all matters in relation to employment both prior and subsequent to the employment which are incidental to the employment and form part of the terms and conditions of such employment. Under Article 16 of the Constitution what is guaranteed is equal opportunity to all persons. This clause accordingly does not prevent the State from laying down the requisite qualifications for recruitment to Government service, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like other employers, the Government is also entitled to pick and choose from amongst a large number of candidates, offering themselves for employment. Like other employers, the Government is also entitled to pick and choose from amongst a large number of candidates, offering themselves for employment. But this can only be done on one condition, that all applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary.” 5. In view of the above referred decisions of the Hon’ble Supreme Court, the State Government is bound to follow the recommendation of the Commission and give appointment to the respondent who is a visually handicapped person who suffers from 100% blindness. The respondent has been recommended for the post of DIET Principal (Super Class-I). The appellants cannot assume that a blind person cannot discharge the duties of a Principal. Further, the respondent herein – original petitioner has also produced a list on the record of writ petition as Annexure IV to the petition showing that as many 16 persons who are 100% visually handicapped (blind) are already working as Principal / Officers Grade I. 6. Therefore, in our opinion, the State Government is acting arbitrarily in not issuing the appointment order to the respondent by not accepting the recommendation of the Commission. Therefore, we do not find any merits in this Letters Patent Appeal. This appeal is dismissed with a direction to the State Government to comply with the direction issued on 23.7.2012 by the learned Single Judge in Special Civil Application No. 4378 of 2012, if not complied with, within two weeks from today. 7. In view of dismissal of the appeal, civil application does not survive and it is accordingly dismissed.