Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 302 (UTT)

Paramveer Singh Rawat v. State of Uttarakhand

2014-08-11

SUDHANSHU DHULIA

body2014
Judgment Sudhanshu Dhulia, J. 1. Mr. Alok Mahra, Advocate, present for the petitioner. 2. Mr. T.P.S. Takuli, learned Brief Holder, present for the State/respondents. 3. This matter relates to a physically challenged person who has about 50% hearing impairment. 4. After qualifying the selection process which was done by a duly appointed selection committee, petitioner was selected for the post of Assistant Teacher (L.T. Grade) in General category vide order dated 18.10.2011 under the category of physically challenged candidates. The petitioner has about 50% of hearing impairment and hence, selected in the category of a “physically challenged” as reservation has to be made in public employment for the “physically challenged”. After the petitioner was selected and thereafter appointment letter was issued vide order dated 18.10.2011 and he started performing his duties as assistant teacher w.e.f. 31.10.2011 but thereafter impugned order dated 8th February, 2012 was passed without giving any opportunity of hearing or show cause notice to the petitioner by Additional Director of Education, Garhwal Division, Pauri Garhwal terminating the service of the petitioner on the ground that his appointment was done due to inadvertence as post of Assistant Teacher (L.T. Grade), General, cannot be reserved for the person who is hearing impaired or is having a partial hearing impairment. 5. Aggrieved, the petitioner had challenged the impugned order dated 08.02.2012 before this Court by filing Writ Petition No. 216 (SS) of 2012, where the learned Single Judge of this Court vide order dated 03.12.2012 allowed the writ petition and quashed the impugned order dated 08.02.2012 which was passed without giving opportunity of hearing to the petitioner, by passing following order:- “Accordingly, the writ petition is allowed. Impugned order dated 08.02.2012 passed by respondent no.3/Addl. Director Education, Garwhal Mandal, Pauri is hereby set-aside. However, liberty is given to respondent no.3 to pass a reasoned and speaking order afresh, after providing proper opportunity of hearing to the petitioner. Such order shall be passed within a period of one month from the date of production of a certified copy of this order.” 6. Director Education, Garwhal Mandal, Pauri is hereby set-aside. However, liberty is given to respondent no.3 to pass a reasoned and speaking order afresh, after providing proper opportunity of hearing to the petitioner. Such order shall be passed within a period of one month from the date of production of a certified copy of this order.” 6. Thereafter, the petitioner was given an opportunity of hearing by the Divisional Additional Director, Secondary Education, Garhwal Division, Pauri Garhwal who disposed of the representation of the petitioner vide order dated 12.02.2013, rejected the claim of the petitioner and upheld the earlier order of termination dated 08.02.2012 on the ground that the appointment to the petitioner on the quota of physically challenged was given inadvertently without appreciating the Government Order dated 10.08.2005, 07.05.1999 and 20.06.2006 where there is no provision of reservation of any subject on the post of Assistant Teacher for such candidates who are having hearing impairment or a partial hearing impairment and the appointment itself was given in violation of the Government Orders, the appointment was wrong and hence it was rightly cancelled and rightly terminated the service of the petitioner. 7. The impugned order dated 12.02.2013 and the cancellation of the appointment of the petitioner is in violation of the law on more counts than one. 8. First and foremost, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [from herein after referred to as “the Act of 1995”) is clear and categorical as regarding reservation of posts for physically challenged persons in public employment. The Act of 1995 has been passed by the Parliament with primary aim “to create barrier free environment for persons with disabilities” and “to make special provision of the integration of persons with disabilities into the social mainstream”. One of the main purpose of the Act of 1995 is to achieve the aim of the Act of 1995 which is to make reservations for persons with disabilities in public employment, for which under Section 32 posts have to be identified. Section 32 of the Act of 1995 reads as under:- “32. One of the main purpose of the Act of 1995 is to achieve the aim of the Act of 1995 which is to make reservations for persons with disabilities in public employment, for which under Section 32 posts have to be identified. Section 32 of the Act of 1995 reads as under:- “32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall- (a) identify posts, in the establishment, 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.” 9. Thereafter Section 33 of the Act of 1995 mandates that every Government establishment shall reserve not less than 3% of vacancies for the persons with disability such as (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy. Section 33 of the Act of 1955 reads as under:- “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 or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the post identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 10. As per Section 33 of the Act of 1995, at least one per cent of posts in every government establishment shall be reserved, inter alia, for those with “hearing impairment”. Section 32 not only mandates that such posts on which reservation can be made must be identified but it also mandates that at periodic intervals not exceeding three years, such posts which are to be identified have to be reviewed and updated while considering the developments in technologies. 11. Section 32 not only mandates that such posts on which reservation can be made must be identified but it also mandates that at periodic intervals not exceeding three years, such posts which are to be identified have to be reviewed and updated while considering the developments in technologies. 11. In the present case, however, there seems to be a total apathy on the part of the government not only towards identifying the posts on scientific and technological criteria but there has been no effort to review such identification where the Act of 1995 mandates that it must be done at least every three years. The 1999 Government order of U.P. Government on which reliance has been placed was passed by the erstwhile State of U.P. in the year 1999 and the other Government Order which is a reproduction of the same order where nothing new has been done as far as identification of the posts for “hearing impaired” persons are concerned. Moreover, there is nothing on record to show that posts have been identified to be filled either by persons of “physically impaired” or “partial physically impaired” or “locomotor disability” or even “hearing impairment” on the basis of scientific or technological assessment. 12. Moreover, in the present case the admitted fact is that no post of Assistant Teacher has been reserved for persons with “hearing impairment” or “partial hearing impairment”. This is a clear violation of Section 33 of the Act of 1995 which mandates that a government establishment must reserve at least one percent of posts in every government establishment for “hearing impaired” persons. 13. In the present case, petitioner was selected in the year 2011 vide order dated 18.10.2011 by appreciating his entire documents and credentials and after he became successful in the selection process thereafter order dated 08.02.2012 was passed terminating his service in such a casual and cursory manner without giving hearing or opportunity when he was constrained to file a writ petition, against his termination order. Moreover, the present petitioner has postgraduate degree in Geography with B.Ed. and is fully eligible to be appointed as Assistant Teacher (L.T. Grade) in more subjects than one i.e. in other subject apart from general, considering his present qualifications. 14. Moreover, the present petitioner has postgraduate degree in Geography with B.Ed. and is fully eligible to be appointed as Assistant Teacher (L.T. Grade) in more subjects than one i.e. in other subject apart from general, considering his present qualifications. 14. The action of the respondents being wholly in violation of the relevant provisions of the Act of 1995, the order dated 08.02.2012, 12th February, 2013 as well as the order dated 7th April, 2014 are hereby quashed. Writ petition is allowed. A mandamus is issued to the respondents/State authorities to give appointment to the petitioner on the post of Assistant Teacher (L.T. Grade) in a suitable school considering his disability. It is also made clear that petitioner would be reinstated in service with 50% of the backwages with immediate effect which shall be given to the petitioner within three months from today. It is further directed that in case the respondents/State authorities come to a conclusion, based on scientific appreciation of facts that petitioner is not qualified or fit to teach a general subject i.e. Assistant Teacher (L.T. Grade), they shall consider giving appointment to the petitioner as an Assistant Teacher in any other subject considering his overall qualifications. 15. Since this matter is of some concern to this Court, a mandamus is issued to the Secretary, Education, Government of Uttarakhand as well as Director of Education, Uttarakhand to identify posts of teachers as provided under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which must be based on scientific appreciation. 16. No order as to costs.