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2018 DIGILAW 1531 (GAU)

BEGUM SULTANA RAJIA v. STATE OF ASSAM

2018-10-11

SUMAN SHYAM

body2018
JUDGMENT : SUMAN SHYAM, J. 1. Heard Mrs. R.S. Choudhury, learned counsel for the petitioners in WP(C) 2954/2012 and Mr. A. Khound, learned counsel appearing for the petitioners in WP(C) 2253/2012 . I have also heard Mr. D. Saikia, learned Senior Additional Advocate General, Assam, appearing for the State and Mr. S. Sarma, learned Standing Counsel, SSA, appearing for the respondent no. 3. 2. The facts giving rise to filing of both the writ petitions as projected through the pleadings, briefly stated, are these. The writ petitioners herein are suffering from disability in the form of hearing impairment. Since they were eligible for being considered for appointment in the post of teacher in the LP and ME schools in Assam, the petitioners had taken part in the Teachers Eligibility Test (TET) conducted by the Elementary Education Department, Government of Assam, in the year 2011. Responding to the advertisement dated 04/12/2011, the writ petitioners had appeared in the written test for TET and thereafter, emerged as successful candidates. On 14/02/2012, the respondent no. 3 i.e. the Mission Director of Assam Sarba Siksha Abhiyan had issued an advertisement notice inviting online applications in prescribed format from all eligible candidates for filling up the posts of teachers under the SSA Mission on contractual basis to be engaged in the rural areas of Assam. Responding to the advertisement notice dated 14/02/2012, the writ petitioners had submitted their applications. Separate Scrutiny-cum-Interview Committee for selection of candidates was constituted by the authorities for each district and the dates of interview for th respective districts were also notified. Accordingly, the writ petitioners had appeared before the Interview Boards. On completion of the interview process, on 03/04/2012, the respondent no. 3 had issued a notification asking all candidates with physical disability to appear before the State Level Medical Board at Guwahati for physical verification of their Physically Handicapped (PH) status, the nature of disabilities and the degree of such disability. However, as per Clause 'D' of the notice dated 03/04/2012, physically disabled candidates with hearing impairment were excluded from appearing before the Medical Board on the ground that no candidate with hearing impairment can be engaged as Teacher/Assistant Teacher as per the Government norms. However, as per Clause 'D' of the notice dated 03/04/2012, physically disabled candidates with hearing impairment were excluded from appearing before the Medical Board on the ground that no candidate with hearing impairment can be engaged as Teacher/Assistant Teacher as per the Government norms. As a result of the impugned notification dated 03/04/2012, none of the petitioners were appointed in the post of Assistant Teacher despite the fact that they are TET qualified candidate and had emerged successful in the interview/screening process. Aggrieved by their exclusion from the selection process on the basis of clause 'D' of the notification dated 03/04/2012, the petitioners have approached this court inter-alia assailing the said notification. A prayer has also been made to issue a direction to the respondents to review the posts identified for appointment of PH candidates by taking into account the technological developments. 3. Leading the arguments on behalf of the petitioners, Mrs R.S. Choudhury has submitted that as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (hereinafter referred to as The Act of 1995), there are 3 categories of disabilities which are entitled to the benefit of reservation of posts and hearing impairment is one such category. Accordingly, the advertisement notice dated 14/02/2012 had also mentioned that posts would be reserved for the Physically Handicapped (PH) candidates as per the government norms. Having done so, the respondents ought not to have ousted one category of physically disabled candidates viz. persons with hearing impairment from the zone of consideration, that too after completion of the interview process. The learned counsel contends that the recourse adopted by the respondents is not only in violation of the fundamental rights of the writ petitioners guaranteed under Article 14 and 16 of the Constitution of India but the same would also amount to changing the rules of the selection process after the same had been held. 4. The learned counsel for the petitioners further contends that there is no dispute about the fact that the writ petitioners herein are all suffering from hearing impairment to the extent of 40% to 60% and hence, are eligible for being considered against the posts reserved for PH candidates. 4. The learned counsel for the petitioners further contends that there is no dispute about the fact that the writ petitioners herein are all suffering from hearing impairment to the extent of 40% to 60% and hence, are eligible for being considered against the posts reserved for PH candidates. However, their candidature had been rejected only on the basis of the notification dated 11/05/2005 on the ground that the posts of teacher in the LP and ME school had not been identified as a post suitable for appointment of persons with hearing impairment. By referring to section 32 of the Act of 1995, Mrs.Choudhury has argued that it was the statutory duty of the government to carry out periodic review of the posts at an interval not exceeding three years which exercise has admittedly not been done in this case within the prescribed period. She submits, since the government has failed to carry out such periodic review for updating the list of posts for appointment of persons with physical disability, it is a clear case of lapses on the part of the government for which the petitioners cannot be deprived of their rights flowing under the statute. Laying emphasis on the word "Shall" used in Section 32 of the Act of 1995, Mrs. Choudhury submits that the language employed by the legislature makes it apparent that the provision was mandatory in nature. Therefore, since the non-compliance of the said statutory provision had resulted into injustice to the genuine beneficiaries, this Court may exercise powers under 226 of the Constitution of India and grant relief to the petitioners. In support of her aforesaid argument, Mrs. Choudhury has relied upon a decision of the Supreme Court rendered in the case of Bachahan Devi and another Vs. Nagar Nigam, Gorakhpur and another, (2008) 12 SCC 372 . 5. Mr. Khound has adopted the arguments advanced by Mrs. Choudhury in support his case. 6. Repelling the aforesaid contentions, Mr. D. Saikia, learned Senior Additional Advocate General has questioned the maintainability of the writ petition on the ground of delay and laches by submitting that the petitioners have failed to explain their conduct in approaching this Court after several months from the date of publication of the select list. By placing reliance on a decision of this Court in the case of Fakir Uddin Ahmed Vs. By placing reliance on a decision of this Court in the case of Fakir Uddin Ahmed Vs. State of Assam and Others, (2016) 2 GauLT 184 , a prayer has been made by the State to dismiss the writ petitions on the ground of delay and laches. 7. The learned State Counsel has further argued that there was a valid reason for inclusion of clause 'D' in the impugned notification dated 03/04/2012, which is the Government order dated 11/05/2005 and, therefore, the action of the State cannot be termed as arbitrary or illegal, warranting interference of this Court. 8. I have perused the materials available on record and have also considered the submission made by the learned counsel for both parties. 9. At the very outset, it would be relevant to mention herein that Section 32 of the Act of 1955 contained in Chapter-VI lays down the procedure to be followed by the appropriate government for identification of posts which can be reserved for persons with disability. Section 33 of the Act of 1995 mentions the categories of disabilities for which the posts can be reserved. The aforesaid provisions are quoted herein below for ready reference :- "32. Identification of posts which can be reserved for persons which disabilities Appropriate Governments shall (a) Identify posts, in the establishments, 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. 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 of low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, In the posts 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. In the present case, it is the admitted position of fact that last such exercise for identifying the posts as per section 32 of the Act of 1995 had been conducted in the year 2005 where-after, the notification dated 11/05/2005 was issued by the government containing the list of posts that had been identified for being reserved under the PH category. There is also no dispute about the fact that in list of posts notified by the OM dated 11/05/2005, the post of School Teachers was not included. However, there is also no dispute about the fact that since 2005, no further review of the list had been conducted by the Government until the year 2015. It appears from the record that on 08/05/2015, i.e during the pendency of these proceedings, the Joint Secretary to the Government of Assam, Social Welfare Department had issued a circular notifying the posts that have been identified under Section 32 of the Act of 1995. A perusal of the said list goes to show that the post Graduate Teachers, Elective Subject Teachers in ME and LP Schools have been found to be suitable for being filled up by candidates belong to Orthopedically Handicapped (OH), Locomotor Disability (LD) and Hearing Impairment (HH) category. Therefore, it is apparent that as on 08/05/2015, the posts of Assistant Teachers in LP and ME Schools were found to be suitable for appointment of persons with hearing impairment. The question that would arise for consideration of this court in the present proceedings is as to whether the respondents could have issued the impugned notification dated 03/04/2012 with clause 'D' thereby debarring the persons with hearing impairment from taking part in the selection process solely on the basis of the notification dated 11/05/2005. 11. Mr. Saikia has argued that the provision of Section 32 of the Act of 1955 is directory in nature and therefore, failure to implement the said provisions cannot give rise to any right in favour of the petitioners. The learned Addl AG has also argued that unless the posts are identified by following the process laid down by the Act, the provision of section 33 cannot be applied therein. The learned Addl AG has also argued that unless the posts are identified by following the process laid down by the Act, the provision of section 33 cannot be applied therein. A plain reading of section 32 would go to show that a statutory duty is cast upon the government to carry out periodical review of the posts that can be identified for extending the benefit of reservation under the Act. Such review is required to be carried out in intervals not exceeding three years by taking note of the developments in technology. As per section 33 of the Act of 1995, hearing impairment is one of the three categories of posts in respect of which reservation under the statute would apply. 12. In section 32 of the Act of 1995 the words "shall" has been used by the legislature to indicate the nature of duty cast upon the appropriate government to identify the posts in the establishment and to carry our periodic reviews of the posts in intervals not exceeding three years. In the case of Bachahan Devi and another relied upon by the petitioner's counsel, the Supreme Court has observed that the ultimate rule in construing auxiliary verbs like "may" and "shall" is to discover the legislative intent. The courts will have to consider the subject matter, the purpose of the provision, the object intended to be secured by the statute as also the actual words employed. 13. What must be remembered here-in is that the Act of 1995 is a beneficial piece of legislation which was enacted so as to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in Asian and Pacific Region. India, being a signatory to the said Proclamation, had enacted the Act of 1995 with the avowed objective of giving equal opportunity to the persons suffering from disability so as to ensure their full participation. It is with such object in mind that the legislature had inserted sections 32 and 33 so as to put in place a proper mechanism for identifying the posts and reserving them for the persons with Physical Disability. It is no doubt correct that for applying reservation under section 33, the posts would have to be identified by following the procedure under section 32. It is no doubt correct that for applying reservation under section 33, the posts would have to be identified by following the procedure under section 32. But it is also equally true that section 32 carries a clear mandate upon the government to act within a time frame. The object of these provisions is, without a doubt, to ensure more participation of persons with disability in the matter of public employment. Therefore, failure to adhere to such time frame, in the opinion of this court, would amount to clear violation of the statutory provisions thereby impinging upon the rights of the candidates with disability and as such, on the expiry of the three year period, would have a relevant bearing on the question of validity of the lists of posts previously identified. 14. It would be pertinent to note herein that in exercise of powers conferred under sub-section 1 of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, the National Council for Teachers Education (NCTE), New Delhi had issued a notification dated 23/08/2010 laying down the qualification for appointment of teachers in the Senior Secondary/Secondary/LP and ME Schools. As per the said notification, the appropriate Government is required to conduct Teachers Eligibility Test (TET) for selection of candidates. Accordingly, the State of Assam through the Department of Elementary Education had issued a notification in the year 2011 introducing the Teachers Eligibility Test (TET) in the State of Assam with a view to provide quality education in primary level. The Assam Elementary Education (Provincialisation) Rules, 1977 had been amended with effect from 25/10/2012 so as to prescribe the minimum qualification for persons to be eligible for appointment as a teacher in elementary school, which provides that the same would be in conformity with the NCTE norms. From the above, it is clear that the requirement of TET qualification had been introduced in the State of Assam for appointment as a teacher by giving it a statutory recognition. 15. The Assam Elementary Education (Provincialisation) Rules, 1977 have been framed in exercise of powers under the proviso to Article 309 of the Constitution of India and the same would be binding upon the respondent authorities. 15. The Assam Elementary Education (Provincialisation) Rules, 1977 have been framed in exercise of powers under the proviso to Article 309 of the Constitution of India and the same would be binding upon the respondent authorities. From a careful scrutiny of the Rules of 1977 read with the relevant notifications, it is clear that persons with physical disability including those suffering from hearing impairment, would be eligible to participate in the TET examination and that is how the petitioners have been allowed to take part in the TET. Therefore, it is apparent that as per the Government norms as applicable on 14/02/2012 i.e the date of the advertisement, the candidates suffering from hearing impairment were eligible to participate in the selection process for appointment as Teacher, Assistant Teacher in the LP/ME Schools in Assam. Since the said policy decision of the Government find reflection in the form of amendments carried out to the Rules of 1977, the same would have the force of a statute. Therefore, the Rules would obviously have an overriding effect on any executive instructions issued to the contrary. As such, with the amendment of the Rules of 1977, the notification dated 11/05/2005, in so far as it relates to the rights of persons with hearing impairment to be appointed as teachers/ assistant teachers in the LP and ME schools in Assam, stood altered by necessary implication. If that be so, after the amendments carried out to the Rules of 1977 with effect from 25/10/2012 it would not be open for the State Government to contend that the persons with hearing impairment are not eligible for being appointed as school teachers. 16. As noted above, during the pendency of the writ petitions, the government has reviewed the posts and found that the post of teachers/ assistant teachers was suitable for appointment of persons with hearing impairment. The aforesaid position is also consistent with the provisions of the amended Rules of 1977.Thus it is clear that the posts of teacher had been identified as a suitable post for appointment of persons with hearing impairment and the effect of such identification for all practical purposes, would relate back to 04/12/2011, i.e. the date on which the advertisement for TET examination was issued by the Government for selection of teachers. 17. 17. In the above context it would be pertinent to mention here-in that in the case of Union of India vs National Fedaration of Blind and Others, (2013) 10 SCC 772 , the Hon'ble Supreme Court has held that section 33 mandates that every appropriate government shall appoint a minimum of 3% vacancies in an establishment for persons with disabilities. By interpreting the word "which" in section 33, the Supreme Court has observed that the government will be under an obligation to appoint not less than 3 % vacancies which does not refer only to identified posts. The contention of the Union of India that the computation of 3 % of posts has to be against the identified posts only has been found to be untenable. From the aforesaid decision of the Supreme Court, it is apparent that reservation of posts for persons with disability is not dependent on the identification of posts under section 32 of the Act but the percentage would have to be worked out on the basis of total number of vacancies in the establishment. A minimum of 3% of the vacancies would have to be filled up by the three categories of persons with disability as mentioned in section 33, in equal proportions, and the computation of the 3% posts cannot be kept confined only to the identified posts. 18. Since the respondents have placed heavy reliance on the notification dated 11/05/2005 so as justify the impugned notification, with a view to ascertain the process undertaken by the department while issuing the notification dated 11/05/2005 so as to come to a conclusion that the post of Assistant Teachers in LP and ME schools were not suitable for being filled up by persons with hearing impairment, this Court had called for the relevant records. However, despite a number of opportunities granted to the learned State Counsel, no such record could be produced before this Court. The respondents have also failed to place any cogent material before this court to justify the impugned notification dated 03/04/2012. Situated thus, this court is of the unhesitant opinion that Clause "D" was inserted in the notification dated 03/04/2012 in an arbitrary manner, without there being any valid basis for doing so. Such being the position, 19. Coming to the question of relief that can be granted to the petitioners in these cases, Mr. Situated thus, this court is of the unhesitant opinion that Clause "D" was inserted in the notification dated 03/04/2012 in an arbitrary manner, without there being any valid basis for doing so. Such being the position, 19. Coming to the question of relief that can be granted to the petitioners in these cases, Mr. Saikia has argued that if the prayer of the writ petitioners is accepted by this court than all other similarly situated persons, who could not appear before the Medical Board due to operation of Clause 'D' in the impugned notification dated 03/04/2012 would also have to be given a chance. It must be noted here-in that there are six writ petitioners in WP(C) 2253/2012 and one writ petitioner in WP(C) 2954/2012. By the order dated 17/05/2012 passed in WP(C) No. 2253/2012, this Court while issuing notice in the writ petition, had directed that six posts of Assistant Teachers be kept vacant. A similar interim order dated 19/06/2012 had been passed by this Court in WP(C) 2954/20912 for keeping one post of Assistant Teacher vacant. The learned departmental counsel has confirmed that in compliance of the interim orders passed by this court, seven posts of Assistant Teachers have been kept vacant till today. It is also to be noted here-in that during the pendency of the writ petitions, the petitioner no. 2 in WP(C) 2253/2012 had been gainfully engaged and, therefore, on the prayer made by the learned counsel for the petitioners, his name was struck off from the array of parties by the order dated 26/07/2018. As such, as on date there are only six candidate in total in both these writ petitions who are pursuing their remedy and whose interests are protected by the interim orders of this court where as seven posts are lying vacant as per the order of this court. Save and except the present petitioners none of the other candidate have approached this court ventilating their grievances in the matter. Therefore, the question of granting relief to those candidates who are not before this court would not arise in the facts and circumstances of this case. 20. In so far as the plea of delay and laches raised by the learned State Counsel is concerned, I find that the petitioner have pleaded the facts and circumstances which goes to indicate the manner in which the situation had unfolded in different stages. 20. In so far as the plea of delay and laches raised by the learned State Counsel is concerned, I find that the petitioner have pleaded the facts and circumstances which goes to indicate the manner in which the situation had unfolded in different stages. These circumstances clearly explain the delay. It trite that delay alone would not be a ground to decline relief in a writ proceeding unless such delay is found to have given rise to parallel rights in favour of third party. Moreover, the petitioners in this case have alleged violation of their fundamental rights guaranteed under Article 14 of the Constitution of India and the law is well settled that where the issue of violation of fundamental rights of the citizens in involved, relief cannot be denied only on the ground of delay in approaching the court. In view of the above, I am of the opinion that the plea of delay and laches raised by the learned Addl. AG is untenable in the facts and circumstances of the case. 21. For the reasons stated hereinabove both these writ petitions succeed and are hereby allowed. The respondents are directed to subject the petitioners to the State Level Medical Board for verification of their degree of their physical disability and on such verification, if the petitioners are found to be eligible under the rules, necessary steps for appointing them against those six vacant posts of assistant teachers be taken in accordance with the rules. 22. The aforesaid exercise shall be carried out and completed within a period of 3 (three) months from the date of receipt of a certified copy of this order. There would be no order as to costs.