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2023 DIGILAW 60 (AP)

Kalluri Sidamma v. Secy. , Education Dept. , Hyd.

2023-01-05

M.GANGA RAO, V.SRINIVAS

body2023
ORDER : M. Ganga Rao, J. This writ petition is filed seeking to issue an appropriate writ, order or direction more particularly one in the nature of writ of Certiorari to call for the records pertaining to the common judgment in O.A.No.11784 of 2009 and O.A.No.2889 of 2010 dated 03.10.2010 passed by the Andhra Pradesh Administrative Tribunal and quash the same by declaring it as illegal, arbitrary and contrary to the judgment of the Division Bench of this Court in W.P.No.25048 of 2005 dated 04.08.2006. 2. The case of the petitioner is that she is a physically challenged person with 49% hearing impairment. Pursuant to the District Selection Committee, 2006 (DSC-2006) notification dated 29.05.2006 issued by the 2nd respondent, the petitioner applied for the posts of School Assistant and Secondary Grade Teacher and appeared for the written examination and secured 54 and 68.50 marks respectively. The grievance of the petitioner is that some of the candidates whose percentage of hearing disability is less than the petitioner were appointed basing on the orders of the Andhra Pradesh Administrative Tribunal (hereinafter called “APAT”), whereas the same benefit is not extended to the petitioner herein. The petitioner filed O.A.No.11784 of 2009 before the APAT seeking a direction to consider her case under reservation of hearing impairment. Pursuant to the interim order dated 09.11.2009 granted by the APAT, the case of the petitioner was considered and rejected vide proceedings dated 20.2.2010 on the ground that the petitioner is having below 50% of deformity of hearing impaired, which is not considerable for reservation benefit in view of Government Memo dated 3.11.2009. Challenging the same, the petitioner filed O.A.No.2898 of 2010 before the APAT questioning the Memo dated 3.11.2009 of the 1st respondent and the consequential proceedings dated 20.2.2010 of the 5th respondent and proceedings dated 30.3.2010 of the 6th respondent in rejecting her case for appointment to the post of School Assistant in DSC-2006 under physically handicapped (Hearing Impairment) category and to set aside the same as illegal, arbitrary and contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act No.1 of 1996), which came into force on 1st January, 1996. The APAT clubbed both the OAs and heard the matter and passed a common order on 03.10.2010 dismissing the same, without taking into consideration the judgment of the Division Bench of this Court in W.P.No.25048 of 2005 dated 04.08.2006. The Tribunal held that the petitioner/applicant in the OAs is having 50% of their Hearing Impairment as such, not entitled for the benefit of job reservation at the most they fall under the Category-II and are entitled for hearing aid at free of cost or concessional rate and such of the candidates whose disability is severe i.e., 75% and above are alone entitled for job reservation and on that ground alone, the respondents have rejected the claim of the petitioner. Following the same, the OAs are dismissed declining to interfere with the impugned proceedings. Aggrieved by the same, the present writ petition came to be filed. 3. Sri Posani Venkateswarlu, learned Senior Counsel appearing for Sri Gangisetti Rajeswara Rao, Advocate on Record states that the based on the merit secured by the petitioner in the written examination she was called for interview and considered her case for appointment as School Assistant and found that she is not eligible for job reservation under Physically challenged (Hearing Impaired) quota as she is only having 49% Hearing Impairment as per the certificate issued by the Regional Medical Board, Tirupati, which is contrary to G.O.Ms.No.115 Women and Child Welfare dated 30.7.1991, whereby 3% of posts were reserved in respect of physically handicapped category for direct recruitment in the State and Subordinate Services for each category i.e., Visually Handicapped 1%, Hearing Impaired 1% and Orthopedically Handicapped 1%. The Government issued G.O.Ms.No.56 dated 02.12.2003 classifying the Hearing Impaired candidates into four categories. For Category-I, with impairment of less than 40% -no special benefits are awarded, for Category-II with impairment of 40 to 50% -considered for hearing aids at free or concessional costs, for Category-III with impairment of 50 to 75%, job reservation and benefit of special employment exchange along with hearing aids at free cost and for Category-IV with 100% impairment – facilities of reservation and special employment are provided. The said GO was issued contrary to the earlier GO.Ms.No.115 dated 30.7.1991. The petitioner is entitled for appointment as per GO.Ms.No.115 dated 30.7.1991. The said GO was issued contrary to the earlier GO.Ms.No.115 dated 30.7.1991. The petitioner is entitled for appointment as per GO.Ms.No.115 dated 30.7.1991. However, the respondents by applying the subsequent Memo No.12429/Genl.II/A1/2009 dated 03.11.2009 issued by the Government have rejected the case of the petitioner, which is illegal and arbitrary. He would further contend that the ratio decidendi that has been formulated by the Hon’ble Supreme Court is to be followed in the case of appointment of the petitioner. 4. Learned Government Pleader for Services-III states that the petitioner is not entitled for any job reservation as per G.O.Ms.No.56 dated 02.12.2003 and Memo dated 03.1.2009, since the petitioner does not fit in category-III (50-75%) hearing impairment, which category entails for job reservation. The petitioner falls under Category-II for which category there is no job reservation and only hearing aids are provided at free or concessional costs. The petitioner is not eligible for appointment as she is having the deformity of Hearing Impairment of 49% only and the APAT has rightly dismissed the OAs filed by the petitioner and there is nothing illegal or irregular in the order of the APAT. 5. Having considered the facts and circumstances of the case, submissions of the counsel and perused the record, this Court found that the Tribunal while dismissing the OAs, observed that when the applicants were sent for medical examination, the duly constituted Medical Board examined the applicants and came to a conclusion that the percentage of deformity is below 50% and they are not entitled for the benefit of job reservation and at the most such persons fall under Category-II and are entitled for hearing aids at free or concessional costs. Only such of the candidates whose disability is severe i.e., 75% and above are only entitled for job reservation. The Tribunal further took a view that the judgment of the Division Bench of this Court passed in W.P.No.25048 of 2005 dated 4.8.2008 has not become final, since the Government aggrieved by the said judgment went in appeal by filing Civil Appeal No.868 of 2009 before the Hon’ble Supreme Court of India, wherein the operation of the judgment of the High Court was stayed and as such, the applicants are not entitled for the benefit of the said judgment of the Hon’ble Supreme Court. The Tribunal further held that when some illegality is committed by the respondents in some other districts regarding appointments, the applicants cannot seek relief of extending the same illegality, which amounts to perpetrating the illegality and the said requests were not conceded by the Tribunal. A perusal of the record show that when the applicant was sent to Government ENT Hospital, Koti for verification regarding the genuineness of the Hearing Impaired certificate, the Medical Board categorized the respondent/applicant falling under second category as stipulated in G.O.Ms.No.56 dated 02.12.2003 in respect of hearing impaired, classifying the candidates as categories-I, II, III and IV. For candidates falling under category-I, no special benefits are given. For candidates falling under Category-II, Hearing Aids are provided at free or concessional costs. For candidates falling under Category-III, Hearing Aids at free of cost or at concessional rates are provided and the benefit of job reservation of special employment exchange is given. The candidates falling under Category-IV have the benefit of Hearing Aids, facilities of reservation, special employment exchange and special facilities in schools like scholarship. Since the petitioner fall under Category-II of moderate disability of 40% and above and not severe and profound, the respondent’s case has rightly been denied for appointment. While things stood thus, the Hon’ble Supreme Court disposed of the Civil appeal No.3726 of 2007 filed by the Government on 11.08.2015 as follows : “We have seen the Medical Report given to us by All India Institute of Medical Sciences (AIIMS). As per the Report, Mr. P. Eswara Reddy does not suffer from minimum 40% disability in PH (HI) category and similarly Mr. P. Ramachandrudu does not suffer from minimum 40% disability in PH (HI) category. Under the circumstances, the issue raised in this appeal is rendered academic. We accordingly dispose of appeal leaving the question of law open. The disposal of the appeal does not affect the other persons who have been found to be physically handicapped having minimum 40% disability.” The contention of the learned Senior Counsel is that the petitioner is entitled for appointment as School Assistant (Social Studies) as per G.O.Ms.No.56 dated 02.12.2003 and also as per the orders of the Tribunal in OA.No.9523 of 2010 & Batch dated 26.04.2011. G.O.Ms.No.56 dated 02.12.2003 states that “Section 2(t) of the persons with Disabilities (Equal Opportunities protection of rights and full participation) Act, 1995 states that a persons with disability, means, a person suffering from not less than 40% of any disability as certified by a medical authority. A copy of the Uniform Guidelines of the Government communicated in D.O.Lr.No.16-22/99-N1-1 (PWD) dated 17.1.2000 is annexed.” A copy of the uniform guidelines of the government of India communicated in D.O Letter No.16-22/99-N1-1 (PWD) dated 17.1.2000 is annexed. As per the guidelines, the recommended classification is thus : S. No. Category Type of Impairment DB level and/or Speech discrimination Percentage of Impairment 1. I Mild hearing impairment dB 26 to 40 dB in better ear 80 to 100% in better ear Less than 40% 2. II Moderate hearing impairment 41 to 55 dB in better ear 50 to 80% dB in better ear 50 to 70% 3. III Severe hearing impairment 56 to 70 dB Hearing impairment in better ear 40 to 50% 50 to70% 4. IV (a) Total deafness No hearing No discrimination 100% (b) Near total deafness 91dB and above in better ear -do- 100% (c) Profound hearing impairment 71 to 90dB Less than 40% in better ear 75-100% In clause B of the guidelines, the facilities to be offered to the disabled for rehabilitation are given as under : Category I No Special benefits. Category II Considered for Hearing Aids at Free or concessional costs only. Category III Hearing aids free of cost or at concessional rates. Jobs reservation Benefit of special Employment Exchange. Category IV Hearing Aids – facilities of reservation – special employment. Special facilities in schools like Scholarship. Hearing aids – Exemption from 3 language formula (to study in recommended single language). While considering the written brief filed on behalf of the petitioner on 09.12.2022 before rendering the judgment, even as per G.O.Ms.No.56 dated 02.12.2003, those persons having higher degree of disability as shown in the annexure to the said GO, the uniform guidelines issued by the Government of India, only the persons categorised as Category-IV with hearing impairment of 100% alone are eligible for job reservation, but the persons falling in Category-III with 56 to 70dB hearing impairment in better ear with 50 to 75% of impairment are entitled for hearing aids free of cost or at concessional rates, jobs reservation and benefit of special employment exchange. As per the petitioner’s impairment with 49% disability fall in Category-II 40-50% disability, considered for hearing aids at free or concessional cost only. The subsequent Memo dated 03.01.2009 and connected G.O.Ms.No.31 dated 01.12.2009 are only clarificatory in nature, shall have retrospective operation, hence the contention of the learned counsel for the petitioner that G.O.Ms.No.31 dated 01.12.2009 has to be applied prospectively and it shall be applied to DSC-2006 is unsustainable. The petitioner’s contention that similarly situated persons to that of the petitioner were appointed, however, it is well settled law that Article 14 of the Constitution of India enshrines only positive equality, hence, the contention of the counsel for the petitioner holds no water. He also placed reliance on the decision of the Hon’ble Supreme Court in Civil Appeal No.3726 of 2007 and contended that the petitioner is entitled for the ratio decidendi laid by the Hon’ble Supreme Court and entitled for appointment. The said contention of the learned counsel holds no water, since no ratio decidendi was laid by the Hon’ble Supreme Court to apply the same to consider the case of the petitioner for appointment to the post of School Assistant (Social Studies) and the issue raised is rendered academic. The finding given by the Tribunal is perfectly in order and there is no error of fact to interfere with the order of the Tribunal. There is no illegality or irregularity in the order passed by the Tribunal, which warrants interference by this Court. Accordingly, the Writ Petition is dismissed as devoid of merits. No order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.