1 IN THE HIGH COURT OF JUDICATURE FOR RAJSTHAN AT JODHPUR ::: S.B. CIVIL WRIT PETITION NO.3775/1994 Ram Lal Vs District Judge, Churu & Anr. Date of order 8.4.2010 PRESENT HON'BLE MR. PRAKASH TATIA, J. REPORTABLE Mr.KS Rathore, for the petitioner. Mr.GR Punia, Addl. Advocate General. <><><> BY THE COURT: Heard learned counsel for the parties. Important issue with respect to safeguarding the interest of the physically handicapped person has arisen in this petition because of the reason that in spite of enacting the law for providing some benefits of equal opportunities in the employment of the Government service by enacting the Act in the year 1995 the fact reveals that the disabled person cannot get the employment even in 100 years and since 1995 that problem have not been redressed, rather say, has not been examined so as to make some provision to increase the opportunities for the handicapped persons who may get the 2 employment where cadre strength is less so that the opportunities for the handicapped in getting the employment in that situation may be increased. As has been given in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 the Economic and Social Commission for Asian and Pacific Region convened a meeting at Beijing in December 1992 to launch the Asian and Pacific Decade of Disabled Persons of 1993- 2002. In that meeting the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region was adopted. India being the signatory to the above said Proclamation, it was obligatory to enact a suitable legislation. Accordingly, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Bill, 1995 was introduced in the Lok Sabha on 26th August, 1995. The Act was enacted to provide for following: - (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-a- vis non-disabled persons. (iv)To counteract any situation of the abuse and the exploitation of persons with disabilities. 3 (v)To lay down a strategy for comprehensive development of programme and services and equalisation of opportunities for persons with disabilities; and (vi)to make special provision of the integration of persons with disabilities into the social mainstream.” To achieve the above objects, the committees were constituted at Central level and the State level to carry out various functions assigned to them. Thereafter, the bill was prepared to provide for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities etc. For the effective implementation of the proviso 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 Government and also to take steps to safeguard the rights of the persons with disabilities is also envisaged. In the Act of 1995 provisions were also made for creating Central Coordination Committee under Chapter II by Section 3 and State Coordination Committee under Chapter III under Section 13. The functions of the Central Coordination Committee and the State Coordination Committee are given in Sections 8 and 18 respectively. In addition to above, the Central Executive Committee and State Executive Committee are required to be constituted under 4 Sections 9 and 19 respectively. These committees' functions are also prescribed in the Act of 1995. For prevention and early detection of disabilities and for free education to the children with disabilities are the duties assigned under the Act of 1995 to the appropriate Government and appropriate Government are Central Government and State Government as defined in sub-section (a) of Section 2 of the Act of 1995. We are concerned with the controversy with respect to the employment of the persons with disabilities which is covered under Chapter VI of the Act of 1995. Section 32 provides for identification of posts which can be reserved for persons with disabilities. Sub-section (a) of Section 32 puts a requirement upon the appropriate Government, obviously, when it relates to the employment of Central Government; upon the Central Government and when it relates to the employment in State services then the State Government to identify the posts, in the establishments, which can be reserved for the persons with disabilities. Sub-section (b) of Section 32 is most important, which would have been law even if there would have no specific law, but it is provided specifically by statutory provision requiring review of the actions taken by the Government, may even in framing of laws and its effect as it has direct effect on the disabled public at large. Meaning thereby, the actions already 5 undertaken by the appropriate Governments if are reviewed periodically then number of lacunas in law or/and its consequences can be sorted out and remedied without having orders from the court. However, in the Act of 1995 it has been specifically provided that the posts, which have been identified for reservation for the persons with disabilities under sub-section (a) of Section 32, are required to be reviewed in a periodical interval not exceeding 3 years and duty has been cast upon the appropriate Government to update the list taking into consideration the developments in technology. It appears that this issue which hits the root of the object has not been taken note of and as admitted, in some services no person can be appointed in disabled person's category in centuries. Noticing the problem of the physically handicapped persons and to secure employment for physically handicapped persons, the State Government framed the rules known as Rajasthan Employment of Physically Handicapped Rules, 1976 (hereinafter referred to as the Rules of 1976). The Rules of 1976 contains a non-obstante clause that notwithstanding anything contained in any service rules or orders for the time being in force regulating the recruitment and conditions of service of persons appointed to the various services or posts in connection with the affairs of the State, physically handicapped person shall be eligible for recruitment and appointment to the earmarked and reserved 6 posts in accordance with the Rules of 1976. By these Rules of 1976 posts were identified and initially the reservation to the extent of 2% of the posts for physically handicapped persons was made which has been increased to 3% now. The object was laudable and has been appreciated in judicial pronouncements and this court in the case of Bhawani Ram Vs. State of Rajasthan reported in 1992 (3) WLN 576 observed that it is the duty of the High Court to enforce the laws to implement the directive principles of State Policy. Be it as it may be, it goes without saying that whenever beneficial laws are enacted they are required to be enacted to give actual benefits to the beneficiaries covered for the benefit under that statutory provision. There cannot be law in the name of beneficiary law with projected intention to give benefit but that benefit never reach to persons covered under the Act or Rules. In a case where Act is enacted and the Rules are framed to achieve the object of giving benefit to the weaker section or disable persons and implemented then after some interval those laws are required to be reviewed and it is also necessary to take feed back that whether benefit in fact has reached to such persons or not? Once the Government as a matter of policy decided to help the weaker section then also it was the duty of the Government to take feed back to find out whether in fact, benefit reached to 7 the covered persons in the definition of disable person, but in the present case, as we have already noticed in the Act of 1995 there is a specific duty cast by law upon the appropriate Government under sub-section (b) of Section 30 to review the list of posts and update the posts necessarily within a period of three years, then this task cannot be achieved without obtaining feed back whether the benefit reached to the persons or not. If we go by strict definition of sub-section (b) of Section 32 of the Act of 1995 then also it was the duty of the State Government to apply its mind to the post for which cadre strength is too low, but number of employment is in such sector of employment may be more and whether in that situation, the physically handicapped persons will get opportunities of appointment by reservation of 3% post which is also as per horizontal reservation and not vertical reservation. This issue came up before this Court because of the reason that there are several establishments where there are several head of the office under one establishment and because of having several heads in one establishment, the cadre strength is given headwise and because of that reason, there may be total cadre strength of 2 or 3 persons for the post. In the present case, we are concerned with the Class IV post, a post in the subordinate courts. As per notification dated 8th July, 1963 – No.F1(21) Apptts.(A-II)/62 issued by the State 8 Government exercising the powers conferred by proviso to Article 209 of the Constitution of India, the Rajasthan Class IV Service (Recruitment and Other Service Conditions) Rules, 1963 (hereinafter referred to as the Rules of 1963) have been framed. As per sub-rule (c) of Rule 2 of the Rules of l1963, the 'head of the office' means the officer declared as such under rule 3 of the General Financial and Accounts Rules. As per Schedule -B, the Head of office for judiciary is as under:- Judicial (Civil & Sessions Court) Court of District & Sessions Judge or Addl. District & Sessions Judge District & Sessions Judge or Addl. District & Sessions Judge High Court District & Sessions Judge or Addl. District & Sessions Judge High Court Court of Civil & Addl. Sessions Judge Civil & Addl. Sessions Judge District & Sessions Judge of District with Jurisdiction Civil & Addl. Sessions Judge District & Sessions Judge or District with jurisdiction Civil Judge's court Munsif's Court Special Judge's Court Civil Judge Munsif Special Judge -do- -do- -do- Civil Judge, Munsif, Special Judge, -do- -do- -do- So as the stand of the Rajasthan High Court, which is clear from the affidavit submitted by the Registrar General of the Rajasthan High Court dated 2.3.2009 that each court is “head of office” and head of office of the particular court is the appointing authority under Rule 2(a) of the of the Rules of 1963 and in view of above, the vacancy for the Class IV employees are required to 9 be determined for each court separately and not on consolidate basis in each judgeship headed by District & Sessions Judge. The same is the stand of the State Government as has been made clear by learned Addl. Advocate General Sh. GR Punia. Therefore, firstly it is clear that for different subordinate courts, head of the office and appointing authority is the judge of that subordinate court and cadre strength is as per the subordinate court and not consolidated in the judgment of the District Judge concerned. If the reservation of 3% is to be given to the handicapped persons earlier under the Rules of 1976 and now under the Act and the Rules of 1995 then this reservation is available to the handicapped persons in 100 point roster system. The first vacancy for any handicapped person will occur at post no.34 then on post no.67 and then last at post no.100. As per the Government order dated 7.8.2007 giving out of 100 time roster at point no.34 a handicapped who is blind or low vision will get opportunity of appointment and at roster point no.67 a disabled person with disability of hearing impairment and at roster no.100, a person with locomoto or mental disability will get opportunity of appointment. As per Rules, the disabilities if will fall in the category of SC or ST or in OBC in addition to the disabilities then he will replace the person of the category of reservation from the category of SC/ST or OBC respectively. 10 Looking to the total strength in a subordinate court and if we take into account the fact of all the posts already filled when these provisions providing reservation for handicapped persons came into force then the first appointment in the category of disabled person will be on the occurrence of 34th point vacancy and in how many years this vacancy will occur and if we calculated from the total number of cadre strength of Class IV employee, then this case is specific example for the subordinate courts position. In the judgeship of Churu following is the position : - S.No. Name of Office/Court Appointment made from 1.4.1985 to the year 1992 1 District Judge, Churu 15 2 Addl. District Judge, Churu 3 3 Addl. District Judge, Ratangarh 0 4 Chief Judicial Magistrate, Churu 1 5 Addl. Chief Judicial Magistrate, Ratangarh 1 6 Addl. Chief Judicial Magistrate, Rajgarh 1 7 Judicial Magistrate, Churu 4 8 Judicial Magistrate, Rajgarh 5 9 Judicial Magistrate, Taranagar 3 10 Judicial Magistrate, Sardarsahar - 11 Judicial Magistrate, Sujangarh - 12 Judicial Magistrate, Ratangarh 1 13 Judicial Magistrate, Sri Dungargarh 5 It is clear from the above vacancies in the various courts in the District Judgeship, Churu that in 7 years maximum vacancies occurred in the court of District Judge, 11 Churu, which is 15, in the court of Addl. District Judge, Churu, 3, in the courts of Chief Judicial Magistrate, Churu, Addl. Chief Judicial Magistrate, Ratangarh, Addl. Chief Judicial Magistrate and Judicial Magistrate, Ratangarh, one post for each court occurred, in the courts of Addl. District Judge, Churu, Judicial Magistrate, Churu, Judicial Magistrate, Rajgarh, Judicial Magistrate, Taranagar and Judicial Magistrate, Sridungargarh, 3, 4, 5, 3 and 5 respectively posts occurred whereas in the court of Addl. District Judge, Ratangarh, Judicial Magistrate, Sardarsahar and Judicial Magistrate, Sujangarh no vacancy occurred. Since total strength in the courts are in 2 numbers only then even 34th number of vacancy may not occur in decades. This Court after taking note of the above facts by detailed order dated 14th May, 2009 directed the State Government to submit their submissions, upon which the State Government submitted reply to the writ petition as well as the additional affidavit and also submitted the Government order dated 7.8.2007 and schedule appended to that order and explanation order dated 23.2.2000 admitting that in view of the allotment of post no.34, 67 12 and 100, the appointment will be given according to the roster and by order dated 23.2.200 it was made clear that it is not necessary that for getting reservation for physically handicapped persons there must occur at least 34 posts at a time but when there are less number of posts then although the roster point will not change, but whenever the next vacancy accrues in the same department and office, which start at the next number and the point of reservation, will be allocated as per the demarcation of the different categories. But the question remains is that if in a cadre strength where very low number of posts are there, whether for the purpose of giving the benefit to disabled persons method can be evolved so that the actual benefit may be given to the physically hand persons. Since in the present case there are facts of one employment and that is employment in the subordinate courts alone is involved and there is no material on record of similar nature i.e., of having less number of posts in the cadre, therefore, this court cannot itself examine the issue to cover more posts in different services to reach a conclusion that the percentage of reservation for physically handicapped persons where the 13 cadre strength is low can be increased. If this problem is in large number of departments/employments then the Government may examine the matter after taking into account all the relevant facts and factors. The laws were framed to do justice to the disabled persons and it is not in dispute that object is laudable and in fact has given benefit to the physically handicapped persons, but how more or maximum benefits can be given to the physically handicapped persons and how object can be achieved, the matter is required to be considered by the Government and where the cadre strength cannot be increased and is not required to be increased then for the purpose of giving benefit of reservation to the physically handicapped persons, whether there can be a deeming clause of consolidation of post in a cadre under one department or office is the issue, which may be considered by the police makers and the law framers. At this juncture, it may be observed that there is a provision for giving benefit to the disabled persons in the Act of 1995 and it is not confined only providing employment on identified post for the disabled persons but Chapter VII has been enacted requiring affirmative actions 14 of the appropriate Government but it appears from the Act of 1995 that a person who is a less disable then only he can get the Government employment, but a person who is a totally disabled then what support can be given to the family of that disabled person, there is no provision and learned counsel for the State has stated that the Government is seriously considering this aspect of the matter. Be that as it may be, in this writ petition, the petitioner is physically handicapped person. He was aspirant for the post of Class IV in the subordinate court of Churu Judgeship. He submitted that application for appointment in the category of physically handicapped persons, but he was not even called for interview and he claimed that he was entitled to the appointment in the physically handicapped category. From the Rules framed as discussed above and allotment of seat for reservation at point no.34, 67 and 100 the petitioner's candidature could not have been considered in reserved category and till rules are amended and petitioner remain within the age of limit when roster point no.34 may come, he cannot get any relief. Though the petitioner is not entitled to the relief but 15 this court deem it proper to send the copy of this order to the Law Secretary to the Government of Rajasthan, who may in turn send the copy of this order to the appropriate authority to consider whether there is way out to give benefits to the disabled persons in a service where the cadre strength is very low. The writ petition of the petitioner is therefore, dismissed with above observations. [PRAKASH TATIA], J. cpgoyal/-