IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.392 of 2010 and M.P.No.1 of 2010 A.Ganesa Moorthy .. Petitioner Vs. 1.Government of Tamilnadu rep. by its Secretary, Department of Higher Education, Fort St.George, Chennai-600 009. 2.Bharathiyar University rep. by its Registrar, Coimbatore-641 046. 3.Kongunadu Arts & Science College, (Autonomous) rep. by its Secretary, G.N.Mills Post, Coimbatore-641 029. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Mandamus, directing the third respondent to provide for 3% reservation for the physically handicapped in respect of entire non-teaching post as per the cadre strength and further direct the third respondent to appoint the petitioner as a Record Clerk in the third respondent College pursuant to the advertisement in the Dinamani Coimbatore Edition, dated 23.12.2009 and pass such further or other orders. For petitioner : Mr. Balan Haridas For respondents : Mrs.Lita Srinivasan,GA,for R1 : Ms.Kavitha for R2 : M/s. Puran Khemka and K.Shakespeare for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R: The petitioner is a differently abled person who had applied for the post of Record Clerk in the third respondent College affiliated with Bharathiyar University, the second respondent, sought for a mandamus directing the third respondent College to provide 3% reservation for differently abled persons, as per the cadre strength and consequently, prayed for a direction to the third respondent to appoint him as Record Clerk in the third respondent College pursuant to the advertisement dated 23.12.2009. 2. It is the grievance of the petitioner that though several representations have been made, respondents have not taken any steps for providing reservation for the differently abled persons, which is against the letter and spirit, of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates, 3% reservation to be provided in the total sanctioned posts. 3. The Secretary and Director of the third respondent College has filed a detailed counter affidavit contending inter alia that there are two sanctioned vacancies for the post of Record Clerk and as per the Roster system prescribed by the State Government, one vacancy was allotted to OC category and another vacancy was allotted to a candidate belonging to S.C.Arunthathiyar Community. It is the contention of the third respondent College that vacancies in both the categories have been filled following Roster system. 4. The report filed by the Principal, Kongunadu Arts & Science College, Coimbatore, the fourth respondent, shows that out of 51 sanctioned strength of non-teaching staff, only 38 persons are working continuously from 1996 to 2010. Till 2008, only one differently abled person has been appointed and continued. Similarly, in respect of teaching staff in the College that out of 84 sanctioned strength, only 61 persons are working continuously from 1996 to 2010, but only one differently abled person has been appointed, against the vacancies. Thus, it is evident that the third respondent College has ailed to implement the provisions of the persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, in letter and spirit. Though the relief sought for is only against the third respondent, having regard to the mandate of the statute to bring in equality, this Court directed the Registrar of the University to submit the details of differently abled persons working in the teaching posts in the University. As per the details, furnished for the years 2008-2009, the total cadre strength of teaching posts in the said University was 47 and subsequently it has been reduced. The cadre strength as on today has not been furnished by the University. The reasons for reduction of the cadre strength of teaching posts in Bharathiyar https://hcservices.ecourts.gov.in/hcservices/ University have not been given. However, the details as furnished by the Registrar of University in respect of teaching posts in Bharathiyar University is extracted hereunder: TEACHING POSTS: Tabular Column showing details of Disabled persons in Teaching posts in Bharathiar University, Coimbatore-46. S.No. Year Total Cadre strength Postsnotifie d for persons with disabilities Posts filled 1 2008 47 (including Permanent, Tenure, Contract) Nil Nil 2 2009 28 (including Permanent, Tenure, Contract) Nil Nil No recruitment has been made for the disabled persons from 2008 to 2010 in teaching posts. 5. Though a specific direction has been granted by this Court on 24.1.2011, directing the respondents to submit a report regarding the cadre strength and the number of vacancies notified, the Registrar of Bharathiyar University has not submitted the same before this Court and has given particulars only upto 2001, the cadre strength as on today has not been furnished. The details of the differently abled persons of the non-teaching posts of Bharathiar University, so far employed, is extracted hereunder: NON-TEACHING POSTS: Tabular Column showing details of Disabled persons in Non- Teaching posts in Bharathiar University, Coimbatore-4. S.No. Year Total Cadre strength Postsnotifie d for persons with disabilities Posts filled 1 1999 334 Nil 01 2 2000 334 Nil 02 3 2001 334 Nil 05 6. Perusal of the same shows that during the year 1999-2001, they have filled up 5 posts in the cadre of Record Clerk, Junior Assistant and 3 Office Assistants. Though the statute contemplates that the posts have to be identified and filled up, both the University as well as the third respondent have failed to notify the https://hcservices.ecourts.gov.in/hcservices/ same through the District Employment Exchanges or issued any public notification. 7. Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, states that 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. 8. As per Section 37, every employer shall maintain such record in relation to the person with disability employed in his establishment in such form and in such manner as may be prescribed by the appropriate government. Though Section 39 of the Act, mandates that all Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than 3% seats for persons with disabilities. Failure on the part of the respondents for implementing the statutory provisions is per se apparent. 9. On an earlier occasion, to implement 3% reservation under the Persons with Disabilities Allotment MBBS Seat, a Mandamus sought for, and this Court in Master.J.Rajkumar Minor Versus The Secretary Educational Department, Government of Tamilnadu, Secretariat and Others reported in CDJ Law Journal in W.P.No.36781 of 2002 and WPMP.No.55294 of 2002, dated 30.12.2002, after considering the issue, directed that the State Government shall implement Section 39 of the Central Act 1996 namely, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, in respect of all educational institutions established and run by the State Government as well as all Government aided educational institutions by issuing necessary orders in this behalf on or before 30th March of 2003. But such RESERVATION shall be subject to the State fixing such physical standards, as it may enable the disabled to undergo the particular branch of study of course of study. It is needless to add that in respect of Admission to various courses the State has to modify its notification in compliance with Section 39 of the Act. https://hcservices.ecourts.gov.in/hcservices/ 10. In yet another decision made in R.Parthiban Vs. The State of Tamilnadu represented by the Secretary to Government, Department of Education, Fort St.George and Others, a Division Bench of this Hon'ble Court, while dealing with the similar issue, in respect of selection and appointment to the post of Lecturer and after considering the issue in length, has passed the following orders: "Therefore, the impugned order passed by the second respondent in OM.No.4426/AA4/2007, dated 27.12.2007 is hereby quashed the writ petition stands allowed. The petitioner shall be appointed to the post of Lecturer in Physics under the handicapped reservation. Since the writ petitioner belongs to a backward community, which the next roster point, shall be considered subject to the fulfilling of the other qualifications required for such appointment. The respondents are granted three months time from the date of receipt of copy of this order to complete this exercise. No costs. Consequently, connected M.P.is closed." 11. Learned counsel for the University submitted that though directions have been issued by the Division Bench, no posts have been notified for appointment, in both teaching and non-teaching posts. In yet another decision of the Hon'ble Division Bench made in W.P.No.7327 of 2010 etc., dated 17.2.2011, wherein a mandamus has been sought for a direction to the respondents therein, to monitor and to ensure that 3% reservation for persons with disabilities was in fact filled in by the disabled and to fill up 9000 vacancies, that have been reserved for persons with disabilities and to also clear up the backing of vacancies available for persons with disabilities as enunciated in G.O.(Ms) No. 117, Social Welfare and Nutritious Meal Programme Department, dated 27.8.2008, the Division Bench after considering the rival submissions and the report submitted by the Government, has passed the following orders: "Thus steps appears to have been taken by the Government to identify the various posts in which the differently abled persons, are to be accommodated. It is stated that the District Collectors held job melas in Districts regularly and also secured placements in private sector and the budgetary allocation has been increased from Rs.49 crores in 2005-06 to Rs.176 crores in 2010-11. The report further states that the Government is continuously taking earnest steps to ensure 3% reservation in employment and to identify more number of posts as suitable for differently abled persons and that the Government is committed to the upliftment of vulnerable sections of the Society especially differently abled persons. While appreciating the steps taken by the Government of Tamil Nadu, thus far, it appears from the details furnished by the petitioners that a more sustained and speedy effort is https://hcservices.ecourts.gov.in/hcservices/ required on the side of the Government to fully achieve the objectives of Article 41 of the Constitution of India and fulfil the objects of Act 1 of 1998. Though steps have been taken to identify the backing vacancies, it appears that no Special Recruitment Drive has been conducted. Further, the Government should also explore the possibility and arranging recruitment of the differently abled persons in Government companies and public sector undertakings and regular recruitment drives could be conducted, where the Government companies and public sector undertakings should be directed to participate. Likewise the Government shall also explore for organizing special recruitment drive for the differently abled in association with Corporate sector on a regular basis at frequent intervals, so that there is a wider spectrum of the job opportunities available to such persons. Immediate steps shall be taken to clear the backing vacancies and the Government should ensure that the rule of reservation of 3% shall be adhere to strictly in accordance with Section 33 of the Act and as stated in the report submitted by the State Commissioner for disabled to give full and effective implementation to the provisions of the Act." 12. Perusal of the report taken note of by the Division Bench shows that vacancies have been identified only in Government departments and not in Educational institutions receiving aid. In G.O.Ms.No.602, Social Welfare Department, dated 14.8.1981, the Government after considering the directions issued by the Government of India, Ministry of Home affairs, Department of Personnel and Administrative Reforms, Memo dated 4.11.1977, have ordered that reservation of 3% for physically handicapped persons have to be filled up as follows: "(a) Out of the quota of 18 percent reserved for Scheduled Castes/Scheduled Tribes. 3 out of every 100 vacancies/seats shall be reserved for physically handicapped persons belonging to Scheduled Castes/Scheduled Tribes. (b) Out of quota of 50 percent reserved for Backward Classes,3 out of every 100 vacancies/seats shall be reserved for physically handicapped persons belonging to Backward Classes. (c) Out of quota of 32 percent intended for Open Competition, 3 out of every 100 vacancies/seats shall be reserved for physically handicapped persons in general." 13. Subsequently, the Government have also issued G.O.No.99, Personnel and Administrative Reforms (Personnels) Department, dated 26.2.1988, providing reservation of seats to differently abled persons in public services and reservation of seats in educational institutions for differently abled persons. In G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated https://hcservices.ecourts.gov.in/hcservices/ 11,4,2005, the Government have constituted an Expert Committee to identify certain posts under A and B groups and the Government have identified 117 of posts as most suitable posts for the disabled in A and B groups of posts. Accordingly the Government, have issued orders in G.O.Ms.No.53, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 11,4,2005 in the following terms: "Based on the announcement made by the Hon'ble Chief Minister the Government approved the list of 117 posts identified under ground A & B categories under the purview of Teacher 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 reserve 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 individuals shall produce a certificate of physical fitness from the Medical Board to the effect that their handicapped will not affect the performance of the job to which he/she has been selected, before appointment." Perusal of the annexure to the above said Government Order shows that the list of posts identified under Group A and B categories also fall under the purview of the Teachers Recruitment Board, for the Persons with Disabilities. The report also shows reservation has been strictly followed. 14. The Government have also issued G.O.(Ms).No.63, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 18.3.2010, in that they have instructed all the recruiting agencies to launch a Special Recruitment Drive to clear all the backing of vacancies of persons with Disabilities, as ordered in the Government Order in G.O.Ms.No.200, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 22.12.2006, and ensure that the Special Recruitment Drive announced by Hon'ble Chief Minister is completed expeditiously. An action plan has been drawn as hereunder: "1. To issue instructions to all appointing authorities including public sector undertakings, Educations Institutions/Universities to reserve 3% vacancies for Physically Handicapped in employment without fall. 2. To collect information about backlog reserved vacancies. 3. To report the vacancies (including backlog) to the Recruiting Agencies such as Department of TamilNadu Public Service Commission/Teachers Recruitment Board/Department of Employment and Training etc. https://hcservices.ecourts.gov.in/hcservices/ 4.The recruiting agency to notify the vacancies and process the applications received from the Different Abled Persons. 5. Recruiting agencies to finalize the lists of selected candidates and communicate to the concerned departments. 6. Appointing authorities to issue appointment orders to the selected candidates. The State Commissioner for the Disabled, the implementing authority for the schemes of the disabled is directed to follow up the issue with the concerned authorities and send periodical report to the Government in this regard. He is also requested to ensure that the action plan suggested by the Government is followed scrupulously and the entire process of Special Recruitment Drive is completed expeditiously in a war Footing Manner." 15. Having regard to the fact that there is deficiency in implementation of the statutory provisions in the aided institutions as well as in the Universities, in addition to the directions issued by the Hon'ble Division Bench, this Court deems it fit to direct the Department of Education, both Higher and School Education, to take steps to identify and to clear all the backlog vacancies taking into consideration, the cadre strength, as per Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 16. Insofar as the third respondent College is concerned, as on today, no disabled person is working and therefore, a direction is issued to the third respondent College and the State Commissioner for the differently abled, to identify the vacancies in teaching and non- teaching posts as per the Government Orders issued from time to time and take steps to fill up the backlog vacancies. A direction is also issued to the second respondent University, to take steps to fill up the backlog vacancies and submit a report within a period of three weeks from the date of receipt of a copy of the order, to the Commissioner of Differently abled persons, Department of Social Welfare, Chennai. 17. Registry is directed to send the copy of the order to the above said Departments for compliance of the orders of this Court. The Government is also directed to call for the list of vacancies and to fill up the posts with differently abled persons in the respective Universities and Aided Educational Institutions and thereafter, issue appropriate instructions directing them to fill up the posts https://hcservices.ecourts.gov.in/hcservices/ 18. The writ petition is disposed of with the above directions. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar aes To 1.The Secretary, Government of Tamilnadu Department of Higher Education, Fort St.George, Chennai-600 009. 2.The Registrar, Bharathiyar University Coimbatore-641 046. 3.The Secretary, Kongunadu Arts & Science College, (Autonomous) G.N.Mills Post, Coimbatore-641 029. Copy to: The Commissioner of differently abled Persons, Social Welfare Department,Chennai. W.P.No.392 of 2010 and M.P.No.1 of 2010 BKY(CO) SRA(11/10/2011) https://hcservices.ecourts.gov.in/hcservices/