IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 16495 of 2009 Date of Decision: 19.2.2010. Sunita Rani --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. R.N. Lohan, Advocate for the petitioner. Mr. R.S. Kundu, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) Respondent no.3 invited applications for 9647 posts of J.B.T teachers vide Advertisement No.4/2009 dated 13.8.2009. As many as 412 posts have been reserved for physically handicapped category (ortho) and 193 for physically handicapped category of Ortho (Female). The petitioner is also physically disabled with low vision up to 40%. The grievance of the petitioner is that no vacancy of J.B.T teacher for physically handicapped category (low vision) has been advertised and all the vacancies have been reserved for the physically handicapped category with locomotive disability. The petitioner based her claim under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which inter alia prescribes the reservation of posts for three categories of physically handicapped persons. Section 33 reads as under:- “ 33. Reservation of posts:- Every appropriate Govt. 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 CWP. No. 16495 of 2009 -2- percent each shall be reserved for persons suffering from- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy in the posts identified for each disability. Provided that the appropriate Govt. 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.” According to the petitioner the reservation of 3% is prescribed for three categories of disabled persons including the blinds and low vision persons, however, the respondents in gross contravention of Section 33 have reserved all the 3% vacancies for physically handicapped persons belonging to locomotive disability (orthopaedically handicapped). The petitioners, accordingly, claim that the petitioner may be considered against 1% of the vacancies out of the advertised and reserved vacancies for the physically disabled persons by converting 1% of the reserved vacancies for persons suffering with low vision. As far the respondent no.3 is concerned, it is a selection body. In its separate affidavit the Commission has simply relied upon a requisition (Annexure R-3/1) from the Director, Elementary Education, Haryana and also a communication dated 30.6.2006 from the Social Justice & Empowerment Department, whereby the selection body has been asked to make selection only from the orthopaedically handicapped candidates. Exemption has been granted by the Govt. in the Social Justice & Empowerment Department for interchanging the 2% quota meant for blind, CWP. No. 16495 of 2009 -3- deaf and dumb into physically handicapped category. Vide letter dated 30.6.2006 Social Justice & Empowerment Department has granted exemption for changing the 2% quota out of 3% reserved for disabled persons from blind, deaf and dumb categories to the orthopaedically handicapped category and vide communication dated 8.7.2009 the selection body has been asked to recruit only orthopaedically handicapped candidates on the posts of J.B.T Teachers. The State in its separate written reply has justified non- inclusion of category of blind/low vision for the post of J.B.T Teacher. It is stated that the J.B.T teachers are meant to teach the students of primary classes. The children at that level are restless. They love variety, changeableness, lack of power to concentrate. They are also to be taught the alphabets by writing on board. The teacher is required to make them identify the fruits, vegetables, animals, means of transport and a number of other pictures and colours by referring to figures and even by drawing them on black board as also to watch their behaviour in the class and must know each and every child for their mental development. It is stated that keeping in view all the relevant and related factors the department of Elementary Education Department, Haryana referred a proposal vide memo dated 29.6.2005 to the State Govt. to exempt the Elementary Education Department from employing blind, deaf and dumb candidates on the post of J.B.T teachers. The Social Justice & Empowerment Department, Haryana, Chandigarh vide its memo dated 30.6.2006 has allowed the interchanging of vacancies belonging to deaf and dumb in physically handicapped category to that of the physically handicapped category within the overall prescribed quota of 3%. It is, accordingly, stated that the petitioner who has low vision CWP. No. 16495 of 2009 -4- to the extent of 40% is not eligible for consideration for selection as no vacancy is available for such category. I have heard learned counsel for the parties. Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 empowers the Govt. to identify posts in the establishments which can be reserved for persons with disabilities. Section 33 makes it obligatory for the Govt. to appoint in every establishment the persons with disability suffering from (i) blind or lower vision (ii) hearing impairment (iii) locomotor disability or cerebral palsy in the posts identified for each disability. The total percentage for reservation for these disabilities is 3% out of which 1% shall be from each category. Proviso to Section 33 further requires the concerned Govt. to exempt any establishment from the provisions of this Act. It is in exercise of power under Section 33 that the Ministry of Social Justice has vide letter dated 30.6.2006 (Annexure P-3) has permitted the deviation of 2% quota (1+1%) meant for blind/low vision, deaf and dumb to the physically handicapped category. This communication can be construed to be emanating from Section 32 as also as an exemption under proviso to Section 33. The State Govt. in its wisdom has considered that for the post of JBT teachers the candidates with low vision may not be appropriate to teach the students at primary level. It is a policy matter and the employer is the best judge to know or decide about it except where the action of the employer is apparently motivated, bias, arbitrary, violative of any constitutional or statutory provision. The State Govt. is of the opinion that these posts cannot be reserved for disabled person with blind or low vision or deaf and dumb. CWP. No. 16495 of 2009 -5- The justification seems to be valid. The court cannot substitute its own opinion for that of the employer particularly in view of the explanation tendered in the reply that the J.B.T teachers are to teach the students at the primary level and the teachers with low vision or blindness cannot effectively and attentively deal with them. I do not feel that interference is warranted in such policy matters of the Govt. when the statute, whereunder the petitioners are claiming reservation itself permits the deviation from one reserved category to another. I do not find any merit in this petition, which is accordingly dismissed. (PERMOD KOHLI) JUDGE 19.2.2010. lucky Whether to be reported to the Reporters? Yes.