IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1762 of 2010. Reserved on: 14.9.2010 Date of decision: 28.10.2010 Munish Dulta …. Petitioner Versus H.P.University ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the petitioner: Shri V.D.Khidta, Advocate. For the respondent: Sh.B.C.Negi, Advocate. _____________________________________________________ Deepak Gupta, J. By means of this writ petition, the petitioner has prayed for the grant of the following amongst other reliefs: 1. That writ in the nature of mandamus may kindly be issued and the respondent University may kindly be directed to issue corrigendum pursuant to Advertisement No.1/2010 dated 9.4.2010 (Annexure P-12) providing the post-based reservation in favour of the disabled persons by giving 3% reservation by clubbing the posts advertised in all the faculties of the University or re- advertise the posts in all teaching faculties of then University by clubbing all the posts in all 2 the teaching faculties of the University and give post-based 3% reservation in favour of the disabled persons. 2. That the respondent University may kindly be directed to provide 3% reservation on post- based reservation roster in favour of the disabled persons by clubbing all the posts in the faculties of P.G. Centre, H.P University, ICDEOL, P.G. Centre, Dharamshala and Evening College at Shimla wherein the cadre of the post in the faculty of Public Administration is 16 in total. The undisputed facts of the case are that the petitioner is duly qualified to be appointed as Assistant Professor in Public Administration. The petitioner is disabled and the grievance of the petitioner is that the University is scuttling the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the ‘Act’) by making reservation department wise and not establishment wise. In support of his case, the petitioner has pointed out that the respondent- University had invited applications for various posts of Professors, Associate Professors and Assistant Professors in different departments of the University and also in 3 different Centres of the University such as International Centre for Distance Education and Open Learning (ICDEOL), Himachal Pradesh University Regional Centre, Dharamshala, Himachal Pradesh University Centre for Evening Studies, Shimla (HPUCES) etc. etc. The petitioner alleges that all the posts in the University should be clubbed and thereafter, 3% reservation in terms of the Act should be provided to the disabled persons. The stand of the University is that it has followed the Reservation Policy framed by the State of Himachal Pradesh. According to the University, on 16.1.1990, the University decided to provide reservation for Scheduled Caste and Scheduled Tribe candidates only and this was provided in all the wings of the University and the reservation is provided as per the sanctioned strength of each wing of the University. The stand of the University is that the each Wing of the University is an independent wing and the posts are non-transferable and, therefore, 3% reservation for persons with disabilities has been provided separately in each Wing. It has been further averred that since the teaching posts in each Wing are small, 13 point reservation roster is being applied and the first point has 4 been earmarked for disabled persons. Whenever this point is reached, the post in that department would go to a person with disability. The main dispute is whether the University is justified in making reservation for the disabled separately for each wing of the University or whether under law, the reservation has to be across the Board. This Court has dealt in great detail with the provisions of the Act in CWP No.192 of 2004, Ankush Dass Sood Vs. State of H.P and others, decided on 22.6.2007 wherein this Court noted as follows:- “India made its tryst with destiny almost 60 years back. As the country awoke to freedom at midnight on 15th August, 1947, the people had high hopes that they would all be treated equally. More than 57 years back we gave unto ourselves a Constitution promising equality to all citizens. The framers of Constitution were well aware of the fact that certain persons suffered from social and economical inequalities and, therefore, in the process of providing true equality some benefits had to be given to them. Articles 14, 15 and 16 of the Constitution of India clearly recognized this concept. It is a well known fact that persons suffering with disabilities are unable to live a complete life not only due to their own limitations, but also due to 5 barriers created by society. Such persons face discrimination right from the time of their birth. Disabilities, both mental and physical, can be of various types and of varying degrees. The persons who face such disabilities have difficulty in getting admission to good schools and colleges. They face problems in getting access to public places, transportation etc. They are treated with pity, but society does nothing to improve their lot. There has been little attempt to assimilate them in the mainstream of the nation’s life. Even proper research has not been done to identify the disabled, ascertain their problems and to take appropriate steps to relieve them of their difficulties. In the last fifteen years some efforts have been made in this regard. The Asian and Pacific countries decided that the decade starting from 1993 and ending in 2002 would be treated as the decade of disabled persons. A meeting of various countries, including India, was held in Beijing in December, 1992. It was called the “Meeting to Launch the Asian and Pacific Decade of Disabled Persons”. In this meeting, the participating countries, including India, adopted the Proclamation on the “Full Participation and Equality of People with Disabilities in the Asian and Pacific Region”. India was a signatory to the said proclamation and, therefore, it was obligatory upon 6 our country to enact a suitable legislation so that the rights of the disabled were protected. The Parliament of the country with a view to fulfill the promise held out in the meeting at Beijing enacted The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The avowed objects and reasons of the Act are as follows:- i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; ii) to create barrier free environment for persons with disabilities; iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non- disabled persons; iv) to counteract any situation of the abuse and the exploitation of persons with disabilities; v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and vi) to make special provision of the integration of persons with disabilities into the social mainstream. However, the most well intentioned legislations, the finest judicial orders are all set at naught by the 7 ingenuity and apathy of the bureaucratic system. Despite the Act in question being in force since 7th February, 1996, i.e. for more than a decade, the mandate of the Act has been observed more in breach than in compliance to the provisions thereof. The Act has been violated with impunity on entirely frivolous grounds. Though, ostensibly reservations have been made for persons suffering from disabilities in matters of employment and guidelines have been laid down with regard to the facilities to be provided to such persons, in actual fact the persons with disabilities have been given virtually nothing in this decade. The earliest petition filed before us was filed more than 5 years back. Despite 5 years having elapsed the State has been a mute bye-stander to the problems faced by the persons with disabilities and though great promises are held out to them and even this court had been assured time and again that steps are being taken to ameliorate the lot of the disabled, nothing has been done leading to filing of many other petitions.” Dealing with the provisions of Section 32 and 33 of the Act, this Court held as follows:- “Sections 32 and 33 of the Act read as follows:- 32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall- 8 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 – a) blindness or 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. Section 32 of the Act provides that the appropriate government shall identify posts in the establishment which can be reserved for persons with disabilities and that the appropriate government at periodical intervals not exceeding 3 years should review the post(s) and update the same taking into consideration the developments in technology. The stand of the State is that there is 3% reservation for persons with disabilities in all category of posts in class III & IV. According to the government 1% posts in all such categories have been reserved for visually impaired, 9 hearing impaired and orthopaedically handicapped with provision to carry forward the vacancies. It is also provided that in case the post cannot be filled up due to non-availability of a person belonging to a particular category, then they are inter-changeable and can be filled up by employing disabled person from the other category. Though on the face of it, it appears that the State has complied with the provisions of Section 32 of the Act, on a closer examination of the matter, we find that the reservation is illusory. According to the State it has fixed the first reserved point for persons with disability at point No. 30 and according to the State if in any particular cadre 30 posts are not available, then no post is to be treated as reserved. We are of the firm view that the State cannot be permitted to circumvent the mandate of Section 32 of the Act by fixing the roster point at 30. The roster cannot be permitted to be operated in such a way as to nullify the beneficial provisions of the Act. In our opinion, the State can ensure that the roster point for the disabled is fixed before point No. 30. In our opinion, it should be in the first six points. Even assuming that the roster point is to be fixed at point No. 30, then also the State cannot mix up the words “posts” and “vacancies”. Each vacancy which occurs should be kept in the roster and it should be ensured that the 30th vacancy occurring is given to the disabled regardless of the strength of the cadre. To give an illustration ; supposing the cadre consist of only of 20 posts. According to the State even if 100 persons join the cadre over a period of time, no person from the disabled category can be appointed. We do not agree with such a submission. Supposing in the year 2000 there are 20 posts in the cadre and in 2001, 5 persons leave the cadre on account of promotion, resignation, retirement, death etc., 5 new vacancies 10 arises, i.e. 25 vacancies have been filed up. This process will go on and at some stage or the other, 30th vacancy will arise and this must be given to the disabled. The roster should be prepared by the State in an abstract form and not on the basis of the cadre strength alone. The State is directed to file with the comprehensive scheme its response to the observations of this court that the roster points reserved for the disabled should be at Sr. Nos. 6, 39 and 72 in a 100 point roster. “ In the present case, again I am constrained to observe that the provisions of this well intentioned legislation have been rendered illusory by limiting the reservation to each wing as stated by the University in its reply. The strength in each wing is very small and, therefore, 13 point roster is followed. Then the turn in each wing will come after a very long time. I have already quoted Section 32 of the Act above and it clearly lays down that the University has to identify the posts in the establishment which can be reserved. Section 32 also provides that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for disabled persons. Therefore, the identification as well as the reservation of posts for the disabled has to be in the establishment and not in every wing of the establishment. 11 I am, therefore, of the considered view that in this case, the University has gravely erred in making reservation for disabled persons wing wise. When the reservation is very small then wing wise reservations will never meet the intention of the legislature and disabled persons will not be appointed. This is obvious even from the advertisement issue where a very large number of posts have been advertised but not even single seat has been earmarked for the disabled. If we go through the advertisement, Annexure P/12, I find that as far as the posts of Assistant Professor are concerned, 33 posts of Assistant Professor in the University, 23 in ICDEOL, 10 in the Himachal Pradesh University Centre for Evening Studies and 2 in the Himachal Pradesh University Regional Centre, Dharamshala, two in the University Institute of Information Technology, two in the University College of Business Studies have been advertised. Therefore, the number of posts is more than 72 but not a single seat has been reserved for the disabled persons. Even in the field of Public Administration, I find, six posts have been advertised but not one has been kept for the disabled. This totally frustrates the provisions of the Act. 12 In Ankush Dass’s case supra, this Court while dealing with Section 36 held as follows:- “Section 36 of the Act reads as follows:- 36. Vacancies not filled up to be carried forward.-Where in any recruitment year any vacancy under section 33, cannot be filled up due to non- availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government. This Section clearly provides that where in any recruitment year any vacancy under Section 33 of the Act cannot be filled up due to non availability of a suitable person with disability, such vacancy shall be carried forward. An attempt first has to be made to fill up the vacancy by inter-change amongst the three categories of disabled persons and only if no such person is available, then the employer can fill up the vacancy by appointment of a person other than the disabled person. 13 The law is very clear that the back-log of vacancies meant for persons with disabilities cannot be transferred and the back-log must be filled up. We direct that the State shall start a special drive in all the departments to fill up the back-log of the vacancies which were to be filled in from persons with disabilities.” What to talk about the backlog even the vacancies which are falling due are not being held up. In view of the above discussion, I am of the considered view that the action of the University in making reservation for the disabled wing-wise is totally illegal and arbitrary. I can however, understand that reservation cannot be made across the whole University. The University can divide its establishment into two parts, the non teaching and teaching. In the non-teaching part of the University, after identification of posts, 3% reservation has to be given in Class IV, Class-III, Class-II and Class-I posts. Similarly, in teaching part of the establishment of the University, there are various ranks, Professors, Associate Professors and Assistant Professors. The reservation of 3% has to be made after identification of posts across the board. Therefore, if there are 100 posts of Assistant Professors, three must be given to the disabled. These can be in 14 any department and it is for the University to identify the departments. It may be proper for the University to identify the departments either on the basis of the strength or on the basis of the requirements. For example, the University may decide that persons with disabilities should not be appointed in Physical Education Department. But in other departments, the reservation shall have to be made keeping in view the total strength of the cadre in the University. Therefore, the reservation by the University shall be made in various teaching posts such as Professors, Associate Professors, Assistant Professors, Lecturers etc. keeping in view the strength of each cadre. The discretion will remain with the University as to in which department or wing, the disabled person has to be posted. I may make it clear that this decision has been given only in respect of reservations to be made under the Act in view of the provisions of the Act and will not affect reservations of other kinds. In the present case, I find that the only disabled person who has applied for the post is the petitioner and since as found above, the number of posts which have been advertised is very large, there can be no 15 manner of doubt that the petitioner being a disabled person is entitled to be considered for appointment and as such, for this year, a direction is issued that one of the posts of Assistant Professor in the Department of Public Administration shall be reserved for the disabled and in case the petitioner is otherwise found suitable, he shall be appointed to the said post. The writ petition is disposed of in the aforesaid terms. No order as to costs. October 28, 2010 ( Deepak Gupta ) (m) Judge