HIGH COURT OF JUDICATURE AT MADRAS DATED:30-10-2009 CORAM THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN and THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN W.P.No.3858 of 2008 and M.P.NO.1 of 2008 R. Parthiban .... Petitioner vs 1. The State of Tamilnadu rep by the Secretary to Government Department of Education Fort St. George 2. The Teachers recruitment Board rep by its Chairman E.V.K. Sampath Maligai College Road Chennai-600 006 ... Respondents Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.A. Arulmozhi For 1st respondent : Ms.C.N.G. Ezhil Arasi for TNPSC For 2nd respondent : Mr.P.S. Raman, Advocate General for Mr.G. Sankran, Spl.G.P ORDER (The Order of the Court was made by PRABHA SRIDEVAN,J.,) The prayer in the writ petition is to issue a Writ of Certiorified Mandamus to call for the records of the 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ pertaining to the selection of the candidates for appointment as lecturer, the impugned order in OM No.4426/AA4/2007 dated 27.12.2007 and quash the same and direct the respondents to appoint the petitioner to the post of lecture in physics under the handicapped reservation. 2. The writ petitioner is Orthopaedically challenged having post polio residual paralysis in the left lower limbs. He is also a Post Graduate Degree holder in Physics having secured I class and he belongs to backward community. 3. The grievance of the petitioner is that though he is entitled to be appointed as a lecturer in physics under the reservation for persons with disability, the respondent, by its Order dated 27.12.2007 informed the petitioner that there was no availability of vacancy based on the communal rotation and none of the physically challenged candidates were selected in the recruitment. 4. The learned counsel for the petitioner submits that this is contrary to the Constitutional rights, the provisions of Equal opportunities Act, the convention on Rights of Persons with Disabilities, the Central and State guidelines and decided case. 5. The learned Advocate General, who was present in Court , produced the G.O.Ms.No.87 dated 17.7.2008, by which, the State has adopted 200 point roster for persons with disabilities amongst the Government Department, Corporations and Boards and divided the roster into six blocks, distributing it among the three categories of disabilities visual, hearing and Orthopaedically and as far as possible in the ration of of 1:1:1 for e.g., "(1 - 33, 34 - 66, 67 - 100, 101 - 133, 134 - 166 and 167 – 200)" and selecting him/her as against his/her community in the communal roster. 6. He also submitted that the next roster point for backward community, to which, the petitioner admittedly belongs and therefore, subject to him fulfilling the other qualifications there might not be any difficulty for appointment. 7. The learned Government Advocate also submitted that it is true that no person with disability has been appointed in this year . 8. In spite of the Persons with Disabilities Act and the Rules framed by the State, there seems to be some difficulty in implementing the provisions of the Act fully either because of lack of awareness or perhaps lack of will. The State is duty bound to implement the Act fully since the Act uses the word "shall" while giving protection to the Disability Rights. It does not give any escape route to the employer from accommodating the persons with https://hcservices.ecourts.gov.in/hcservices/ disability whenever a vacancy arises. 9. The relevant sections, G.Os and Memos are as follows: GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, P.G AND PENSIONS DEPARTMENT OF PERSONNEL & TRAINING Office Memorandum F.No.36035/16/91- Estt (SCT) Sub: Reservation of posts for the physically handicapped persons in Group "C" and "D" posts/services in Government – revised procedure for filling up the vacancies ------ The undersigned is directed to refer to the DOPT O,M.No.36035/17/85-Estt (SCT), dated 1.4.86 on the subject mentioned above and to state that the Government had under consideration the method of effecting the 3% reservation for physically handicapped persons in the light of the judment of the Supreme Court in Indira Sawhney Case (W.P.No.930 of 1990). The Court has held that reservation for SC/ST/OBCs may be called vertical reservation and the reservation for physically handicapped persons as horizontal reservation. Horizontal reservations cut across vertical reservation(in what is called interlocking reservation) and the persons selected against the physically handicapped quota have to be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustment and similarly if he belongs to open competition (OC) category he will be placed in that category by making necessary adjustment. Even after providing for these horizontal reservations, the percentage of reservation in favour of backward class of citizens should remain the same. 2. In the light of the above-said observations of the Supreme Court, it has been decided that the physically handicapped persons selected under the reservation provided for them should be placed in https://hcservices.ecourts.gov.in/hcservices/ the appropriate category viz., SC/ST/OBC/General Category depending upon the category to which they belong. For example, if in a given year there are 200 Group "C" vacancies, the reservation for SCs will be 54 and for General Category it will be 101. The vacancies reserved for physically handicapped will be calculated as per the instructions on the subject contained in O.M, dated 1.4.86. Suppose the vacancies for the physically handicapped in that year come to 6 and of the 6 physically handicapped candidates selected, 1 belongs to the SC category, then the one physically handicapped SC candidate will be adjusted against the 30 SC vacancies, the one physically handicapped ST candidate will be adjusted against the 15 vacancies and the 2 physically handicapped OBC and General Secretary candidates against the 54 OBC and 101 General Category vacancies respectively. The roster points will be filled up accordingly. The vacancies reserved for the physically handicapped should be indicated along with the other vacancies so that the physically handicapped candidates can also apply along with the others. All the Ministries/Departments, are requested to bring the above instructions to the notice of all the Heads of Department and appointing authorities under their control for necessary compliance." Government of Tamil Nadu Abstract Welfare-Welfare of the Disabled-Group A and B categories of posts -identification and reservation of Posts in Public Services Educational Institution for the Disabled persons-percentage of reservation- orders-issued. _______________________________________ Social Welfare and Nutritious Meal Programme (S.W.4) Department G.O.Ms.No.53 Dated 11-04-2005 ................. https://hcservices.ecourts.gov.in/hcservices/ the quota reserved for physically handicapped persons should be made as indicated under: _______________________________________ S.No Category of Handicapped Percentage of Reservation _______________________________________ 1 Blind 1% 2 hearing impaired 1% 3 Orthopaedically handicapped 1% _______________________________________ 2. The Government of India in its Memorandum Fifth read above gave instructions to the Ministries and Departments. That with the enactment of the Persons with Disabilities(Equal opportunities protection of Rights and Full Participation)Act, 1995 the reservation to physically handicapped stood extended to identified groups "A" and "B" posts filled through Direct Recruitment. 3. In the letters Sixth read above the Director of Rehabilitation of the Disabled requested the Government to issue a notification by ordering a reservation of "A" and "B" posts to the benefit of disabled persons. The Director recommended for the constitution of an expert committee to identify the posts which can be suitable for the disabled persons. 4. In the G.O, Seventh read above the Government constituted an Expert Committee to identify certain posts under A and B groups. The Expert Committee submitted its report. In the G.O eighth read above the Government constituted an another committee to examine further report furnished by the Expert Committee. The State Special Commissioner for Disabled subsequently was requested to identify most suitable posts from out of the posts identified in consultation with concerned H.O.Ds. In his letter 9th read above the State Special Commissioner for the Disabled has furnished a finalized list of 117 posts most suitable for disabled persons under A and B groups. 5.The Hon'ble Chief Minister has announced on the floor of the Assembly under 110 of the Assembly rule on 16.3.2005 that the Government have https://hcservices.ecourts.gov.in/hcservices/ identified 117 types of posts which are the most suitable posts for the disabled in "A" and "B" groups of posts; that the Government will notify the list in the Gazette and that during the recruitment, 3% of the posts will be reserved for the disabled. 6. Based on the announcement made by the Hon'ble Chief Minister the Government approve the list of 117 posts identified under group A and B categories under the purview of Teachers recruitment Board and the TNPSC for the persons with Disabilities. The Government also direct that 3% of the vacancies in direct recruitment for the identified posts of A and B groups, where the rule of reservation is applicable for the Scs/STs, B.Cs and other communities, shall be reserved for the disabled persons. If only one post is available for recruitment in these categories, the usual procedure for recruitment will be followed. In so far as executive posts are concerned the individual shall produce a certificate of physical fitness from the Medical Board to the effect that their handicap will not affect the performance of the job to which he/she has been selected, before appointment. https://hcservices.ecourts.gov.in/hcservices/ ANNEXURE LIST OF POSTS IDENTIFIED UNDER GROUP A AND B CATEGORIES COMING UNDER THE PURVIEW FO TEACHERS RECRUITMET BOARD FOR THE PERSONS WITH DISABILITIES _______________________________________ Name of the Post Physical Categories Group and Department require- of disabled ments persons suitable for the job ______________________________________________ Lecturer ST.H B/PB/ORTHO A a)Govt Arts/ b)Science Colleges c)Govt.Engg Colleges d)Govt.Polytechnis ___________________________________________________ Abbervations _______________________________________________ S.No Code Physical Requirements _________________________________________________ 1 ST Work performed by standing 2 H Work performed by hearing/ speaking _______________________________________ S.No Code Functional Classification _______________________________________ 1 B Blind 2 PB Partially Blind 3 Ortho Orthopaedically Handicapped _______________________________________ https://hcservices.ecourts.gov.in/hcservices/ No.36035/3/2004-Estt (Res) GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS DEPARTMENT OF PERSONNEL AND TRAINING ***** New Delhi, the 29th December, 2005 OFFICIAL MEMORANDUM Subject: Reservation for the Persons with Disabilities ................ 2. QUANTUM OF RESERVATION (i ) Three percent of the vacancies in case of direct recruitment to Group A,B,C and D posts shall be reserved for persons with disabilities of which one percent each shall be reserved for persons suffering from (i)blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the post identified for each disability; (ii) Three percent of the vacancies in case of promotion to Group D and Group C posts in which the element of direct recruitment, if any, does not exceed 75% shall be reserved for persons with disabilities of which one percent each shall be reserved for persons suffering from (i)blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the post identified for each disability; ............. 15. EFFECTING RESERVATION – MAINTENANCE OF ROSTERS: (a) All establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining /effecting reservation for the disabled – one each for Group "A" posts filled by direct recruitment, Group "B" https://hcservices.ecourts.gov.in/hcservices/ posts filled by direct recruitment. Group "C" posts filled by direct recruitment, Group "C" posts filed by promotion, Group "D" posts filled by direct recruitment and Group "D" posts filled by promotion. (b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points: 1st Block – Point No.1 to Point No.33 2nd Block – Point No.34 to Point No.66 3rd Block - Point NO.67 to Point NO.100 (c) Points 1, 34 and 67 of the roster shall be earmarked reserved for persons with disabilities – one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1,34 and 67 will be reserved keeping in view all relevant facts. (d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point No.1 is not identified for the disabled or the head of the establishment considers it desirable not to fill it up by a disabled person or it is not possible to fill up that post by the disabled for any other reason, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 by persons with disabilities. 10. Guidelines also provide that if the nature of vacancies in an establishment is such that a person of a specific category of disability cannot be employed, the vacancies may be interchanged among the three categories. 11. There are also provisions for relaxation in age limit. By G.O.Ms.No.241 dated 29.10.2006 the Government directed that the 200 https://hcservices.ecourts.gov.in/hcservices/ point roster shall be given effect to with effect from 15.9.2007 and the vacancies arising on and from the 15th September 2007 shall be filled up as per the 200 point roster and all selections for appointment shall be started afresh from serial number one of the 200 point with effect on and from the said date. 12. G.O.Ms.NO.200 dated 22.12.2006 ordered as follows: ............ 5. CdKw;nwhUf;fhd khepy Mizahpd; fUj;JUtpida[k; jkpH;ehL muRg; gzpahsh; njh;thizaj;jpd; fUj;Jf;fisa[k; ftdkhf ghprPypj;j gpd;dh; muR gpd;tUk; Mizfis tH';FfpwJ: (m) kj;jpa murpy; 100 fhypg; gzpapl';fs; K:d;W fl;l';fshf gphpf;fg;gl;L x;t;bthU 33 fhypg; gzpapl';fSfFs; xU CdKw;wtiu njh;t[ bra;J ,dr;RHw;rp gl;oaypy; (communal roster) mth; ,dj;jpw;F vjpuhf mthpd; njh;it fzf;fpLtJ nghd;W ,k;khepy;j;jpYk;nuR Jiwfs; fHf';fs; kwWk; thhpa';fspy; 100 g[s;sp fzf;;fPL gjpntl;oy; CdKw;nwhUf;fhd fhyp gzpapl';fSf;Fs; xU CdKw;nwhiu njh;t[ bra;J ,dRHw;fp gl;oaypy; (communal roster) mth; rhh;e;j ,dj;jpw;F vjpuhf mthpd; njh;it fzf;fpLk; Kiwia filgpof;f muR MizapLfpwJ.. 13. In letter Dated 4.8.2006 issued by the Secretary, Social Welfare and Nutritious Meal Programme to the Secretary, Tamil Nadu Public Service Commission, there is reference to G.O.Ms.Nos.53 dated 11.5.2005, 213 dated 15.9.2005 and other letters and paragraph-2 of the letter dated 4.8.2006 reads as follows: 2. Regarding the clarifications sought for by the Tamil Nadu Public Service Commission in the letters fourth an fifth cited the Government examined the issue carefully in consultation with the State Commissioner for the Disabled. Accordingly, the Government issue the following clarification: 1. If the vacancy notified is identified for all the 3 categories (viz., Ortho, Deaf and Blind) of disabled persons then all the 3 categories of disabled persons may be accommodated against their turns earmarked as per the reference first cited. 2. If the vacancies notified are identified as suitable for only one category, then all the 3% vacancies may be allotted to that particular category as other two categories are not eligible. 3. If the vacancies notified are identified for only two of the three categories (say-blind & deaf & https://hcservices.ecourts.gov.in/hcservices/ Ortho (or) blind & Ortho) then the total number of vacancies meant for the ineligible category of the disabled should be distributed equally between the two eligible categories of disabled (if the total number is even). If the total number is odd, the extra vacancy should go to that disability which has higher population as per the 2001 census (This can be adopted till next census) According to the Census 2001, the disabled population distribution in Tamil Nadu is as follows: 1. Visually Handicapped 9,64,063 2.OrthopaedicallyHandicapped 3,53,798 3.Speech impaired 1,24,479 &hearing impaired 72,636 1,97,115 As per this census, the number of visually impaired persons is greater than the number of Orthopaedically handicapped persons which in turn is more than the number of the hearing and speech impaired persons (blind>Ortho>deaf) Thus if there are odd number of vacancies, the extra vacancy should go to blind (if the eligible categories are blind and Ortho or blind and deaf) and should go to Ortho (if the eligible categories are ortho and deaf) The Step-by step procedure for formulating the above principle where only 2 out 3 disabled categories are eligible would be as follows: (i) Apply the 100 point roster as G.O.Ms.No.105, Personal & Administrative Reforms Department dated 20.6.2000 for the total number of vacancies (ii) Arrive at the number of vacancies reserved for disabled categories. All the three categories would be present but one of them is no eligible. (iii) Arrive at the total number of vacancies earmarked for this ineligible category of disabled (iv) Allot the first vacancy as per (ii) above to that a category of eligible disabled which has the https://hcservices.ecourts.gov.in/hcservices/ higher population (blind>ortho>deaf) (v) Allot the second vacancy to the other eligible disable category and the remaining vacancies alternatively between the two eligible categories. Three illustrations in this regard and guidelines for utilizing the turns reserved for the disabled categories for selection of Veterinary Assistant Surgeon are given in the annexure to this letter, which is as undersigned ANNEXURE Illustration:1 If the eligible categories for a post (say Agriculture Officer are deaf & Ortho and if there are 7 vacancies for the ineligible category of "blind" when the roster of G.O.Ms.NO.105 P&AR Dept. Dated 20.6.2000 is applied, then the first of these 7 vacancies should go to "ortho" (because the population of Orthopaedically handicapped persons is greater than that of deaf). The second vacancy should go to "deaf" the third vacancy to "ortho" and so on alternatively as follows: i) Ortho ii) Hearing impaired iii)Ortho iv)Hearing impaired v )Ortho vi)Hearing Impaired vii)Ortho (4 Ortho and 3 hearing impaired) Illustration 2: If the eligible categories for the post (Say Lecturer) are blind and Ortho and if there are 5 vacancies for the ineligible category of deaf, when the roster of G.O.Ms.NO.105 Personnel and Administrative Reforms Dept., dated 20.6.2000 is applied, then the first of these, 5 vacancies should go to blind because the population of blind person is greater than that of Ortho. The second vacancy should go to "ortho" the third vacancy to "blind" and so on alternatively as follows: https://hcservices.ecourts.gov.in/hcservices/ i) Blind ii) Ortho iii) Blind iv) Ortho v) Blind (3 blind and 2 Ortho) If the vacancies of the ineligible disabled category are in even numbers, the vacancies should be distributed between the other two eligible categories equally. The first vacancies of the ineligible category should go to the disability which has the greater population. The second vacancy should go to the other eligible category and the remaining vacancies should be filled alternatively; Illustration 3: If the eligible categories for a post are "blind" and "deaf" and if there 6 vacancies (even number of vacancies) for the ineligible category of "ortho" when the roster of G.O.Ms.No.105, P&AR Dept, dated 20.6.2000 is applied, then the first of these 6 vacancies should go to blind (because the population of blind persons is greater than that of deaf). The second vacancy should go to "deaf" the third vacancy to "blind" and so on alternatively as follows: i) blind ii)hearing impaired iii)blind iv)hearing impaired v)blind vi)hearing impaired (3 blind and 3 hearing impaired) This letter makes it clear and give suitable examples. 14. In the case of Prof.I. Elangovan, Vellore vs Govt. Of Tamil Nadu and others reported in (2008) 3 MLJ 481, the First Bench held as follows: 8. With a view to realize the objective that people with disabilities have same right, hopes and aspirations as every one else, and they are to be provided with equal opportunities and rather better incentives for their rehabilitation in the society, a meeting was held in Beijing on 1st to https://hcservices.ecourts.gov.in/hcservices/ 5.12.1992 called the "Meet to Launch the Asian and Pacific Decade of Disabled Persons". A proclamation was adopted by the Asian an Pacific countries to ensure "full participation and equality of people with disabilities in the Asian and Pacific regions"India was a signatory to teh said proclamation and with a view to implement the same, the persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act,1995 was enacted, which came into force on 1.1.1996. 9. The Statement of Objects and Reasons to this Act, which was appended to the Bill before it was enacted, reads as under: "The Meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5.12.1992 adopted the proclamation on the full participation and equality of people with Disabilities in the Asian and Pacific Region. India is a signatory of the said proclamation and it is necessary to enact a suitable legislation to provide for the following (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provisions 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-a-vis, non-disabled persons, (iv) to counteract any situation of abuse and exploitation of persons with disabilities (v) to lay down a strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and https://hcservices.ecourts.gov.in/hcservices/ (vi) Accordingly, it is proposed to provide inter-alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State Levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various rehabilitation services etc., The Bill also provides for education, employment and vocation training, reservation in identified posts, research and man power development and establishment of homes for persons with severe disabilities etc., For effective implementation of the provisions of the Bill appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged. 10. Easily, employment rights of persons with disabilities covered by Chapter-VI of the Act containing Sections 32 to 41 (except Section 39) which relates to education)comprise the most empowering provisions of the Act as they yield the most tangible and substantial rights to persons with disabilities. Sec.32 of the Act provides that in case a vacancy is not filled up due to non- availability of a suitable person with disability, the vacancy is to be carried forward in the succeeding recruitment year. 12. Indisputably the Tamil Nadu State and Subordinate Service Rules, which provide for reservation in the State and Subordinate Services in favour of the persons with disabilities, is a piece of legislation traceable to Entry 41 List II. Its legislative competency cannot be doubted. It is essentially a legislation in respect of State services. It contemplates that the rule of reservation shall apply separately to each departmental unit,. 20. We have therefore no hesitation to hold that the provisions of Sec.33 read with Section 2(k) https://hcservices.ecourts.gov.in/hcservices/ of the Act would prevail over the Tamil Nadu State and Subordinate Service Rules and the respondents are duty bound to provide reservation of not less than 3% in every establishment i.e., department for persons with disabilities in accordance with Sec.33 of the Act. 21. On behalf of the TNPSC, the charts showing the vacancy positions, as per Section 33 read with Section 2(k) of the Act, are filed on record. As per the charts 80 vacancies are liable to be reserved for the post of Typist and 8 vacancies for the post of Steno-Typist for persons with disability under Notification/Advertisement No.135. As regards Notification No.142, 99 vacancies are liable to be filled up from among the persons