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2013 DIGILAW 648 (JK)

National Federation of Blind v. State Of J&K

2013-11-11

Hasnain Massodi, M.M.Kumar

body2013
1. The State of Jammu and Kashmir like the rest of the country enacted the Jammu and Kashmir Persons with disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1998 (for brevity `the Act'), which came into force on 19.05.1998. In the long title of the Act it has been stated that the aforesaid peace of legislature has been enacted to provide equal opportunities, care, protection maintenance welfare, training and rehabilitation of persons with disabilities. 2. On account of a service matter dispute, proceedings were initiated in this Court by one Jyotsana Mengi which culminated in order dated 30.03.2009 passed in LPASW no. 205/2006. The Letters Patent Bench of this Court, while dealing with the issues raised in that appeal also took up the issue of general importance by referring to the provisions of Sections 21 and 22 of the Act dealing with identification of posts which can be reserved for persons with disabilities. 3. It is pertinent to mention that Section 22 of the Act deals with three categories of disabled persons, namely, blindness or low vision, hearing impairment and locomotor disability/cerebral palsy. A look at Sections 21 and 22 of the Act would make it amply clear that unless the State Government exempts any establishment from the operation of that Act, it was obligatory upon the Government to appoint in every establishment disabled persons and identify the posts where such persons could be accommodated. There is further obligation of periodical review for identifying the posts and such review, according to the mandate of law, must be taken at intervals not exceeding three years. The Bench noticed that a number of establishments of the State had identified the posts in which disabled persons cannot be appointed but failed to identify even one category of post where such like persons could be appointed. The Government also did not by notification exempted any such establishment from the obligation cast on the Government by Section 22 of the Act which provide reservation for disabled persons to the extent of 3% at least in the total number of posts/vacancies. Keeping in view the aforesaid provisions, this Court issued comprehensive directions in the concluding para of the judgment, which are set out below:- "i) to identify posts in all establishments, which have not been exempted, which can be reserved for persons with disabilities. Keeping in view the aforesaid provisions, this Court issued comprehensive directions in the concluding para of the judgment, which are set out below:- "i) to identify posts in all establishments, which have not been exempted, which can be reserved for persons with disabilities. Those posts must not be less than 3% of the posts available in each of the establishments of the State which have not been exempted; ii) while identifying those posts, it must be ascertained whether the same can be supplied by a person suffering from blindness/low vision, or whether the same can be supplied by a person suffering from hearing impairment or whether the same can be supplied by a person suffering from locomotor disability/cerebral palsy; iii) the posts to be so identified must not, in any case, be less than 1% of the total posts available in such establishments which can be supplied by persons suffering from blindness/low vision, and, similarly, at least 1% of such posts which can be supplied by persons suffering from hearing impairment and at least 1% of such posts which can be supplied by persons suffering from locomotor disability/cerebral palsy; iv) not exceeding 3 years, a review shall be made in each such establishment of the State to re-identify such posts and to update the same taking into consideration the development in technology; v) the first of the 3% of the total vacancies should be supplied by a person suffering from blindness/low vision; the second by the person suffering from hearing impairment and the third by the person suffering from locomotor disability/ cerebral palsy; vi) if a person befitting the first category is not available, then the person befitting the second category may supply the vacancy, but the vacancy available for the second category would automatically be reserved for the first category and likewise for the second category, if the vacancy availed for the second category is supplied by the third category for no one was available from the second category to supply the same, the vacancy available for the third category would become reserved; vii) reservation for persons suffering from disability shall be horizontal and, accordingly, a disabled person shall fill up that post which is available in the roster point for the category to which he belongs, but as a disabled person; and viii) deficiencies in each establishment shall be supplied soon and directions as above, should be complied with before making new direct recruitments." 4. The aforesaid directions were not implemented and on account of apathy on the part of the respondents the present petitioner initiated the instant Public Interest Litigation. The principle relief claimed by the petitioner is that a mandamus be issued to the respondents to comply with the directions issued by this Court on 30.03.2009 and reservation to the extent of 1% in the total number of posts/vacancies be made for the blind/low vision persons in various Government departments for which selection process was initiated in respect of the year 2010-2011. 5. On 02.11.2011, while issuing notice to the respondents this Court required the respondents to file an affidavit indicating the steps taken by the State Government to comply with the directions issued on 30.03.2009. Despite opportunities given no heed was paid to filing of an affidavit. However, in the order dated 29.12.2011 this Court has made a reference to an affidavit sworn by the Additional Secretary to Government of J&K dated 28.12.2011 stating that the State Government had taken certain steps to partially comply with the directions of this Court issued on 30.03.2009. The Government had accorded sanction to the addition of posts in the identified categories of posts issued vide Government Order no. 62-SW of 2001 dated 13.03.2001. There were three categories i.e. teacher, Junior Engineer (Civil) and Junior Engineer (Mechanical/Electrical). Some reservation for persons who are blind and low vision/handicapped by one arm/both legs, handicapped by one leg/one arm/ low vision and handicapped by one arm/one leg were mentioned. 6. The affidavit only disclosed the scant regard played by the State Government in complying with the directions issued by this Court on 30.03.2009. The Bench noticed the casual manner in which the State Government had responded to the directions on many dates of hearings. It also noticed the assurance given by the learned Advocate General to the fact that the directions issued on 30.03.2009 would be complied with and compliance would be reported in every respect. Accordingly the matter was posted for 06.02.2012 failing which the Chief Secretary was asked to be present in the Court to answer the quarries of the Court. The Court had also directed the State Government to examine the statutory requirements to be complied with as provided under Sections 15 to 20 of the Act and report was required to be filed in respect of those aspects also. The Court had also directed the State Government to examine the statutory requirements to be complied with as provided under Sections 15 to 20 of the Act and report was required to be filed in respect of those aspects also. It is appropriate to mention that Sections 15 to 20 of the Act have been incorporated in Chapter IV under heading `EDUCATION'. The provisions have been made to impart free education to the children with disabilities and framing of schemes and programmes. 7. The matter was taken up to examine the compliance report dated 04.02.2012 filed by the Additional Secretary to Government, Social Welfare Department. This Court was not satisfied because there was no clear compliance to the directions issued in paras 1 to 3 and other paras. The Bench also noticed that there was no compliance of the order in respect of Sections 15 to 20 of the Act. Subsequently the Commissioner-Secretary to Government, Social Welfare Department appeared and placed before the Court two sets of statements in respect of the posts which were to be filled up by the Services Selection Board and the Public Service Commission alongwith the statement disclosing the number of the posts under physically handicapped category. The statement also disclosed the details of the candidates from the three categories of handicapped, namely, visual hearing and locomotor which pertained to the period of 2001-2002. Thereafter the learned counsel for the petitioner filed a statement disclosing the vacant posts of different three categories, as backlog vacancies. The State Government then identified 70 posts of teachers from 2007 onwards which were available in different Districts and were to be filled up by persons with disabilities. With regard to vacant posts of Junior Engineer (Civil) it was stated that 18 vacancies were filled up from handicapped category of persons and 12 posts of Junior Engineer (Civil) were deficient which were to be filled up from the candidates who are handicapped visually/ locomotor. In respect of Junior Engineer (Electrical), the total number of posts identified for handicapped category was 22 out of 746 posts. In respect of Junior Engineer (Electrical), the total number of posts identified for handicapped category was 22 out of 746 posts. A direction was then issued that in terms of Section 22 of the Act the posts available in different Districts were to be worked out by all concerned departments and the same was to be referred to the Services Selection Board within specified period of four weeks and the process of filling up the postswas to be completed expeditiously, preferably within a period of three months. 8. On account of non-compliance of various directions, this Court adopted strict approach and on 28.08.2012 the Chief Secretary was asked to file an affidavit reporting compliance of all the directions issued on 30.03.2009 and further directions issued on 29.11.2011. The Bench also noticed the undertaking given to this Court by the Secretary to Government, Social Welfare Department, that compliance report would be filed finally by September 10, 2012. It was also made clear that the posts which were required to be referred to the Services Selection Board would also be referred on or before September 10, 2012. On 25.09.2012 further directions were issued to ensure that selection process for filing up all the vacancies is initiated within one month. The Bench also noticed the request made by learned State counsel for disposing of the instant petition for the reason that the grievance of the petitioner stood redressed. The State counsel had emphasised that Commissioner/Secretary to Government, Social Welfare Department, who is also the Chairman of the Expert Committee had filed the affidavit alongwith with communication dated 05.09.2012, stating that in pursuance of Section 21 of the Act, a Committee had also been constituted on 27.01.2012 to identify/review the posts in all the Government establishments/Public sector undertakings for persons with disabilities. The Committee had also submitted its report to the Chief Secretary and a notification was likely to be issued. The Bench deferred the orders till appropriate affidavit was filed by the Chief Secretary with regard to the decision taken on the report of the Committee. 9. A perusal of the report dated 03.09.2012 would show that the Committee had identified various category of posts in all the departments and the Additional Secretary stated before the Court that different category posts in various departments have been identified and no department was exempted in terms of Section 21 of the Act. 9. A perusal of the report dated 03.09.2012 would show that the Committee had identified various category of posts in all the departments and the Additional Secretary stated before the Court that different category posts in various departments have been identified and no department was exempted in terms of Section 21 of the Act. The Bench observed that mere identifying the category of posts for making reservation would not be sufficient in the absence of a total number of posts and additional affidavit in that regard was solicited, directing the Chief Secretary to ensure that order is complied with. 10. On 26.11.2012 an affidavit was filed by Commissioner-Secretary to Government, Social Welfare Department, stating that comments from various departments were awaited which are required to be placed before the Minister in-Charge for sending a proposal for consideration of the Cabinet in terms of the Business Rules. After the notification by the Cabinet, follow up action with all the departments was to be initiated. The whole process was likely to take three months. Finally Government Order no. 108-SW of 2013 dated 01.04.2013 was issued identifying various posts of handicapped categories, which were shown in Annexure A. A copy of the order was handed over to the learned counsel for the petitioner and the same was taken on record as `Annexure X'. The statement identifying the posts has been made which runs into about 42 pages. It was also stated before the Bench on behalf of the SSRB that process of filling up the posts would be completed by 15.05.2013. There were directions issued for completing the medical examination of the candidates so as to complete the appointment process as is evident from order dated 06.06.2013. 11. In the latest status report filed by the Services Selection Board dated 06.11.2013 it has been stated that 70 posts of teachers from various districts under handicapped category have been advertised on the requisition received from the Education Department. The Board had conducted the interviews and was in the process of finalizing the select list. On account of complaints with regard to genuineness of certificates concerning handicapped category of the applicants the matter is under process and individual petitions have also been filed. The Board had conducted the interviews and was in the process of finalizing the select list. On account of complaints with regard to genuineness of certificates concerning handicapped category of the applicants the matter is under process and individual petitions have also been filed. The select lists in respect of District Jammu and Doda have been published on receipt of verification of medical certificates and in respect of other Districts it is to be published as and when the Board is satisfied with regard to genuineness of the medical certificates. 12. In the Objections filed by the petitioner on 01.06.2013 some more facts have been highlighted showing that there are a number of other category of posts, which have been identified by the Government of India on the basis of High Level Expert Body. In para 3 of the objections, a list of 41 categories have been submitted and it has further been supplemented by the petitioner in para 4. We impress upon respondent No.2 to consider those category of posts also for their inclusion in the posts contemplated by Section 21 of the Act. It is also required to be highlighted that the respondents have not placed on record any notification exempting any department. According to the proviso appended to Section 21 of the Act, in case reservation under the Act is not to be given in particular department then the department is required to be exempted from the operation of the provisions of the Act and under Section 54 notification is required to be placed before both the Houses of the Legislature. In the absence of any exemption notification the reservation in all the departments under the Act shall be made. 13. Mr. Basotra, states that a status report in that regard shall be field before the Registrar (Judicial). The learned State counsel shall also file status report with regard to compliance of directions on Chapter IV concerning Sections 15 to 20 of the Act. The needful shall be done within a period of two months from today. 14. In view of the above circumstances, we do not wish to proceed any further with the instant public interest litigation. Various category of posts have now been identified by the Government by its Order No. 108-SW of 2013 dated 01.04.2013 (Annexure X) which has also identified physical requirements/functional requirements. 14. In view of the above circumstances, we do not wish to proceed any further with the instant public interest litigation. Various category of posts have now been identified by the Government by its Order No. 108-SW of 2013 dated 01.04.2013 (Annexure X) which has also identified physical requirements/functional requirements. Annexure A added to the aforesaid Government order dated 01.04.2013 runs into 42 pages. Therefore, the basic object of this Public Interest Litigation has been accomplished. If the respondent-State does not review the list in accordance with the provisions of Section 22 of the Act at regular periodicals, then any public spirited person may again approach the Court for issuance of appropriate directions. Accordingly, proceedings in the instant public interest litigation are closed. It is clarified that any individual grievance may be raised in an independent writ petition, which shall not be a bar by virtue of this Public Interest Litigation.