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2023 DIGILAW 756 (KAR)

Pragathi Angavikalara Kshemabhivruddi Sangha v. Managing Director Karnataka State Road Transport Corporation Central Office

2023-06-08

C.M.POONACHA

body2023
ORDER : C.M. Poonacha, J. The above Writ Petition is filed seeking for the following reliefs: "a) Issue a writ of Certiorari quashing the General Standing Order No.761/2015 dated 05.03.2015 bearing No.KST/CO/TR/COM/C-3/7720/2014-15 "Annexure-A" b) Issue a Writ of Mandamus, directing the Respondents to provide 10% reservation for physically challenged person in fresh General Standing Order to participate in all the Tenders. c) Pass such other Order/s as this Hon'ble Court deems fit in the facts and circumstances of this case, including the cost of this proceedings, in the interest of justice and equity." 2. It is the case of the Petitioner that it is a Society formed with an object of protecting the rights of physically challenged persons. That the first Respondent who operates transport services in the State of Karnataka has adopted various measures for betterment of the physically challenged persons including providing shops in BMTC and KSRTC Bus Stands, wheel chairs to the physically disabled, etc., which has helped about 2000 physically challenged persons in making a living. 3. It is the further case of the Petitioner that by virtue of Section 37(c) of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the 'Act, 2016'), the first Respondent is liable to provide a reservation of 5% in its business which it has failed to do in the General Standing Order bearing No.KST/CO/TR/COM/C-3/7720/2014-15, dated 5.3.2015. Hence, the present Writ Petition is filed seeking for the aforementioned reliefs. 4. The first Respondent has opposed the reliefs sought for in the Writ Petition and has also filed the Statement of Objections. 5. Heard Sri B.C.Chethan, learned Counsel for the Petitioner and Sri.P.D.Surana, learned Counsel for the first Respondent and learned AGA for the second Respondent. 6. The learned Counsel for the Petitioner reiterating the contentions putforth in the Writ Petition and relying on Section 37(c) of the Act, 2016, has sought for grant of the reliefs as prayed for. 7. Per contra, Sri.P.D.Surana, learned Counsel for the first Respondent has filed a Memo dated 26.5.2023 furnishing a copy of the General Standing Order dated 26.7.2017 and submits that the said General Standing Order dated 26.7.2017 has been passed in place of the General Standing Order dated 5.3.2015 in respect of which the reliefs have been sought in the Writ Petition and on this ground alone, sought for dismissal of this Petition. He further submits that the nature of advertisement business involves mobilization of capital and the said business being a very competitive one, it is not possible for the persons with disability to participate in the same. Hence, he submits that the Petitioner is not entitled to the relief sought for. 8. In response to the submission of Sri P.D.Surana, learned Counsel for the first Respondent regarding the advertising business being a competitive one, learned Counsel for the Petitioner submits that there are various organizations who provides finances and supports the endeavors of persons with disabilities in carrying out their business activities. 9. I have considered the submissions made by both the learned Counsel for the parties and perused the material on record. The question that arises for consideration is: Whether the reliefs sought for in the Writ Petition are liable to be granted? 10. It is relevant to note that the Act, 2016, has been enacted pursuant to the India ratifying the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), wherein certain principles were laid down to be followed by the signatory States for empowerment of persons with disabilities and it required the signatory States to make appropriate changes in law as well as in policy to give effect to the principles of the Convention. 11. Prior to the enactment of the Act, 2016, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was in force. Subsequently, the Rights of Persons with Disabilities Bill was passed by both the Houses of the Parliament and received the assent of the President on 27th December, 2016 and the present Act, 2016 has come into force and replaced the Act of 1995. 12. Section 37 of the Act, 2016, states as follows: "37. Special schemes and development programmes -The appropriate Government and the local authorities shall, by notification, make schemes in favour of persons with benchmark disabilities, to provide.- (a) five per cent. reservation in allotment of agricultural land and housing in all relevant schemes and development programmes, with appropriate priority to women with benchmark disabilities; (b) five per cent. reservation in all poverty alleviation and various developmental schemes with priority to women with benchmark disabilities; (c) five per cent. reservation in allotment of agricultural land and housing in all relevant schemes and development programmes, with appropriate priority to women with benchmark disabilities; (b) five per cent. reservation in all poverty alleviation and various developmental schemes with priority to women with benchmark disabilities; (c) five per cent. reservation in allotment of land on concessional rate, where such land is to be used for the purpose of promoting housing, shelter, setting up of occupation, business, enterprise, recreation centres and production centres." 13. It is forthcoming from Section 37 of the Act, 2016, that the State and its entities are statutorily required to provide reservation in the areas mentioned therein for persons with disabilities. The business activities that are relevant in the present case i.e., advertisement business squarely falls within the scope of Section 37(c) of the Act, 2016. Hence, it is not open to the first Respondent who is an instrumentality of the State, to deny reservation to persons with disabilities. 14. The submission of the learned Counsel for the first Respondent that the present Writ Petition is liable to be rejected since the General Standing Order 5.3.2015 in respect of which the reliefs have been sought for has been substituted by the General Standing Order dated 26.7.2017 is untenable having regard to the fact that statutorily mandated stipulation is required to be followed by the first Respondent and in ensuring compliance of the same, the reliefs sought for in the Writ Petition can be adequately moulded. 15. It is a settled position of law that wide discretion is conferred on this Court under Article 226 of the Constitution of India which enables it to mould the reliefs depending on the facts and circumstances of each case (see: B.R.Ramabhadriah v. Secretary Food and Agriculture Deptt., (1981) 3 SCC 528 Karnataka Agro Industries Corporation Employees' Association v. State of Karnataka, 1986 SCC Online Kar 188 and Food Corporation of India v. S.N.Nagarkar, (2002) 2 SCC 4750) 16. The contention of the learned Counsel for the first Respondent that the advertisement business involves mobilization of capital and being a competitive one, it is not prudent to provide for reservation, is ex facie untenable and liable to be rejected, in as much as the first Respondent is bound to make adequate provision to implement the statutorily mandated stipulation. 17. The contention of the learned Counsel for the first Respondent that the advertisement business involves mobilization of capital and being a competitive one, it is not prudent to provide for reservation, is ex facie untenable and liable to be rejected, in as much as the first Respondent is bound to make adequate provision to implement the statutorily mandated stipulation. 17. In view of the aforementioned, I pass the following: ORDER i. The Writ Petition is partly allowed; ii. A writ of Mandamus is issued directing the first Respondent to provide 5% reservation for physically challenged persons in the General Standing Orders issued by the first Respondent regarding participation in all tenders; iii. The first Respondent is directed to make suitable modification/amendment in the General Standing Order dated 26.7.2017 issued by it and provide for 5% reservation and the said modification/amendment is to be made within a period of eight weeks from the date of receipt of a copy of this order and compliance thereof be submitted to this Court regarding the same. No costs.