Date of judgement:
Thursday, May 15, 2014
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE JAYANT NATH
This writ was filed by an NGO working for the rights of persons with visial impairemet (Score Foundation), under this writ the petitioner pleaeded for resrvatrion of seats for visually impaired persons for the posts of stenographer, telephone operator and special teacher. The court stated the provisions given undre section 32d of the PWD Act 1995 must be honoured by every government department. However due to the presence CCPD, the court passed on the matter to CCPD to deal with as it saw fit and made its ruling legally bindingfor all parties.
Judgment Body :
IN THE HIGH COURT OF DELHI AT NEW DELHI
SCORE FOUNDATION and ANR. ..... Petitioners
Represented by: Mr.Pankaj Sinha, Advocate with Ms.Sharika Surendran, Advocate
MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT and ORS. ..... Respondents
Represented by: Mr.Saqib, Advocate for R-1
Ms.Nidhi Raman, Advocate with Mr.Deepak Kumar, Advocate for R-4
Mr.Gaurang Kanth, Advocate for R-5
Ms.Sidhi Arora, Advocate for Ms.Madhu Tewatia, Advocate for NDMC
ALL INDIA CONFEDERATION OF BLIND ..... Petitioner
Represented by: Mr.Deepesh Aneja, Advocate
DELHI SUBORDIANTE SERVICES SELECTION BOARD and ORS. ..... Respondents
Represented by: Ms.Nidhi Raman, Advocate with Mr.Deepak Kumar, Advocate for R-1, R-2, R-3 and R-8
Mr.Gaurang Kanth, Advocate for R-5
Mr.Mukesh Gupta, Advocate for R-6
Mr.Atul Kumar, Advocate R-7
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
O R D E R
1. The two writ petitions concern the implementation of the beneficial provisions applicable to the differentlyabled persons as per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
2. As per Section 32 of the said Act, the appropriate Government is charged with a statutory duty to identify posts in establishments which can be reserved for the persons who are differentlyabled and the said identification has to be periodically reviewed taking into consideration the developments in technology. The mandate of Section 33 is that for the posts identified for the differentlyabled persons reservation has to be provided; which is vacancy based. Not less than 3% reservation has to be effected. The differentlyabled persons who would be entitled to the benefit of the reservation would be visually differently abled persons, hearing differentlyabled persons as also the physically differentlyabled persons.
3. As regards the duty charged with under Section 32 of the Act, albeit grudgingly, the posts which can be held by the differentlyabled persons have been identified and notified. The same would be as per Annexure P-4 to W.P.(C) No.2848/2014.
4. The notification in question was issued on July 29, 2013.
5. A vacancy notice advertisement No.01/2014 has been issued by DSSSB. The notification invites applications from eligible persons in 193 disciplines. The notification disclosed the number of vacancies proposed to be filled up as also the horizontal and vertical distribution therein. The grievance raised in the two writ petitions is to some posts notified to be filled up where no reservation for the visually differently abled persons has been provided for.
6. We take one example.
7. As per serial No.192, applications have been invited from eligible candidates to fill up the posts of TGT (Computer Science) in the Directorate of Education, Government of NCT of Delhi. The total number of vacancies to be filled up are 2026, out of which 1025 are in the unreserved category. 547 have to be filled up by OBCs, 303 by SC and 151 by ST candidates. The advertisement indicates that across the horizontal reservation as aforesaid, applying vertical reservations 60 posts would have to be filled up from amongst the differentlyabled persons but limited to the physically differentlyabled persons and the hearing differentlyabled persons, each category getting 30 and 30.
8. The notification issued under Section 32 identifying posts which could be filled up by the differently abled persons shows that even the visually differentlyabled persons have been found fit to hold teaching posts in schools pertaining to the discipline of computer science.
9. Whereas learned counsel for the respondents would urge that only yesterday i.e. on May 07, 2014 a clarificatory letter has been issued guiding that if teaching computer science for a particular purpose would require a visual colour identification, such posts needs to be critically looked into and then a conscious decision to be taken whether a visually differentlyabled person should or should not be the beneficiary of the reservation.
10. Whereas learned counsel for the petitioners would urge that once the notification dated July 29, 2013 was issued, full effect thereto has to be given without exception until and unless a particular department
exercised its right under the proviso to Section 33 of the Act which reads as under:-
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.
11. We find that under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a statutory authority called the Chief Commissioner for persons with disabilities has been constituted. The functions of the said Chief Commissioner are as per Section 58 of the Act and vide clause (c) thereof, of the various functions of the Chief Commissioner for persons with disabilities, is the power to take all steps to ensure that the rights may available to persons with disabilities are given effect to. Meaning thereby, those who are subject to the provisions of the Act are to be made accountable for their acts and if it is found that an organization is not implementing the provisions of the Act the said organization being compelled to do so.
12. Pithily stated, this would mean that the Chief Commissioner of persons with disabilities has the statutory power to ensure that such posts which are identified for reservation concerning visually differentlyabled persons are filled up from said class/category of persons.
13. In the two writ petitions a challenge to the vacancy notification has been raised with respect to seven category of posts advertised to be filled up for which no reservation has been provided for the visually differentlyabled persons.
14. In our opinion the Chief Commissioner for persons with disabilities should look into the grievance raised in the writ petitions and issue necessary directions. The reason is that a factual adjudication is
necessary. This would mean that the Chief Commissioner for persons with disabilities would grant a hearing to the petitioners and the representative of the User Department of the 7 posts. With reference to the posts identified and notified to be filled up by way of reservation for the visually differently abled persons as per the notification dated July 29, 2013, if he finds that a post is required to be reserved for the visually differentlyabled persons, direction to be issued. The said direction would be complied with by the User Department as well as by the DSSSB.
15. The two petitions are disposed of issuing the mandamus as above with emphasis on the fact that the decision taken by the Chief Commissioner for disabled persons would be implemented without demur by the User Department.
16. The representative of the petitioners which would include their lawyers as also the representatives of the seven User Departments ard directed to appear before the Chief Commissioner for persons with disabilities in his office at 11:00 AM on May 12, 2014. Necessary exercise shall be carried out by the Chief Commissioner for persons with disabilities within 3 days reckoned from May 12, 2014. Necessary orders/direction shall be issued by him latest by May 16, 2014.
17. Liberty is granted to the parties to move an application if any impediment is found in the implementation of the mandamus issued.
18. Copy of this order be supplied dasti under signatures of the Court Master today itself to learned counsel for the petitioners as also the respondents.
19. No costs.
CM No.3509/2014 in W.P.(C) No.1675/2014
Dismissed as infructuous.
PRADEEP NANDRAJOG, J.
JAYANT NATH, J.
MAY 08, 2014
W.P.(C) Nos.1675/14 and 2848/14 Page 6 of 6
Link of Source:
SCORE FOUNDATION and ANR
MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT and ORS.
Mr.Pankaj Sinha, Advocate with Ms.Sharika Surendran, Advocate
Represented by: Mr.Saqib, Advocate for R-1 Ms.Nidhi Raman, Advocate with Mr.Deepak Kumar, Advocate for R-4 Mr.Gaurang Kanth, Advocate for R-5 Ms.Sidhi Arora, Advocate for Ms.Madhu Tewatia, Advocate for NDMC
Type of Disability:
DELHI HIGH COURT