Ratio of this judgment may said to be;: 1. Reservation for persons with disability is horizontal in nature and so is not affected by 50% sealing.
2. Ordinarily reservation for persons with disabilities may not be compartmentalized on the basis of cast/religion etc. The first proposition is already well-established and I am not convinced about the language employed in second, particularly use of the word "ordinarily" which makes it weak and may render it merely an obiter. I am also disconcerted by poor linguistic endeavor of hon'ble judges who delight in using words like "handicapped" even after legally sanctioned semantic usage: "persons with disabilities". Apart from common emotive connotations of the words like "handicapped", I am concerned with their actual susceptibility to misinterpretations like only orthopedically disabled, excluding other categories by one and all. Rajesh ----- Original Message ----- From: "moiz tundawala" <[EMAIL PROTECTED]> To: <[email protected]> Sent: Tuesday, September 04, 2007 3:28 PM Subject: [AI] the mahesh gupta judgement. > Hello friends. > I am pasting the entire judgement over here. I cannot copy paste a > link directly from the address bar. So my sincere apologies for this. > > Supreme Court Of India > > JUDGEMENT INFORMATION SYSTEM > > > CASE NO.: > Appeal (civil) 3984 of 2007 > > PETITIONER: > Mahesh Gupta & Ors > > RESPONDENT: > Yashwant Kumar Ahirwar & Ors > > DATE OF JUDGMENT: 30/08/2007 > > BENCH: > S.B. Sinha & Harjit Singh Bedi > > JUDGMENT: > J U D G M E N T > > > CIVIL APPEAL NO 3984 OF 2007 > [Arising out of SLP (Civil) No. 16291 of 2004] > WITH > CIVIL APPEAL NOs. 3985 and 3986 OF 2007 > [Arising out of SLP (Civil) Nos. 19391 and 20321 of 2004] > > > S.B. SINHA, J : > > 1. Leave granted. > > 2. Interpretation of an advertisement in the light of a circular of the > State > of Madhya Pradesh as regards recruitment of handicapped persons to some > posts is in question in these appeals which arise out of judgments and > orders > dated 1.5.2003 and 23.08.2004 passed by the High Court of Madhya Pradesh > in Writ Petition No. 40 of 2000 and M.C.C. (Contempt) No. 222 of 2003. > > 3. The State took recourse to a special drive for filling up the vacant > posts in the reserved category candidates, viz., Scheduled Castes, > Scheduled > Tribes and Backward Classes. In a circular letter issued on 29.03.1993, > it > was stated: > "SUBJECT: SPECIAL DRIVE FOR FILLING UP > RESERVED POSTS FOR > HANDICAPPED PERSONS > > The State Government has reserved 3% posts (1% for > blinds and 2% for other physically handicapped > persons) for disabled persons. By the Notification of > the State Government vide No. 50-2532-1(3)/80 dated > 12th of February, 1991, exemption for 10 years in the > prescribed age limit has been granted to the candidates > belonging to blind, dumb, deaf and disabled persons > eligible for services for the posts of the categories of 3rd > and 4th grades, to be filled in the services of the State > Government through Employment Exchanges (copy > enclosed). In the orders of the Finance Department > No. L-17-1-87-B-7-4 dated 4th of June, 1987 in > paragraph 2, exemption has also been granted from the > ban imposed for appointment in the government > services, prescribed only for handicapped persons > against the reserved posts. > > It has been brought to the knowledge of the State > Government that this quota for the handicapped persons > is not being fulfilled due to absence of knowledge about > reservation and procedural complications. Extending > the full benefit against the reserved posts in the > government services as per the prescribed quota for the > handicapped persons, cannot be determined as a fair > situation." > > It was inter alia directed: > "In this connection, it is worth mentioning that for the > successful conduct of the aforesaid campaign and for > the implementation of the said policy of the State > Government, call for the names from the Employment > Exchanges, for the vacancies at District level, the > District Collector, and for the vacancies at Divisional > level, the Divisional Commissioner, and for the > vacancies at Heads of the Department, the concerning > Heads of Department have been authorized. These > authorization shall be limited only up to the posts of 3rd > and 4th grades. So far as the question about 2nd Grade is > concerned, this authority shall vest with the State > Government, but the procedure regarding examination, > interview etc., could be conducted at the level of the > Head of the Department." > > 4. Pursuant to or in furtherance of the said circular letter, the > Commissioner, Chambal Division, Morena issued an advertisement, the > heading whereof is as under: > "SPECIAL RECRUITMENT DRIVE FOR FILLING > UP THE VACANT RESERVED POSTS OF > SCHEDULED CASTE AND SCHEDULED TRIBE:" > > However, while providing for the details of the posts, it was > categorically laid down: > " > Name of Post (s) > Vacant Posts > SC ST Handi- > capped > Minimum > Qualifications > Pay- > Scale > 1. Higher Grade > Teachers = > English 14 and > Sanskrit - 8 > - 20 02 > Graduate in relevant > subject passed in 2nd > Div. & Trained > (B.Ed. B.T.C.) > 1400- > 2640 > 2. Industries > Craft Teacher > - 17 02 > Hr. Sec. Exam > (Intermediate) & > Diploma in > concerning craft by > an Institute > recognized by the > Government > 1400- > 2640 > 3. Assistant > Teacher > (Science) > - 08 03 > Hr. Sec. Exam > (Intermediate) > Science with the > Subjects, Physics, > Chemistry, Biology > 1200- > 2040 > 4. Artists cum- > - 01 - > Graduate Degree in > Arts from J.J. School > of Arts and one year > experience in > commercial > photography > 1400- > 2340 > 5. Dietician > 01 - - > M.Sc. (Home > Science) or B.Sc. > (Home Science) 2nd > Division & > essentiality of Food > craft subject > 1400- > 2340 > 6. II Gr. Clerk > - 01 - > 1. Hr. Secy. or High > School passed > 2. Hindi Typing > passed from M.P. > Board > 950- > 1530 > 7. Steno-Typist > - 05 - > 1 & 2 ==ditto== > 3. Knowledge in > Hindi Stenography > 950- > 1530 + > 75 > 8. Stenographer > - 05 - > 1 & 2 as above + > 3. Dictation in Hindi > Stenography with the > speed of 60 words per > minute as prescribed > by Govt. > > 9. Tracer > - 01 - > 1. Hr. Secy./High > Sch. with I.T.I. > passed > 2. Drawing Diploma > or Civil Engineering > Diploma > 950- > 1530 > 10. Assistant > Cartographer > > - 02 - > Passed Hr. Secy. > Exam. and Degree/ > Diploma in the Craft > or Certificate of > Draftman in Civil > Engineer from I.T.I. > or Surveyor Trade > Certificate > Pay as > prescrib > ed by > Govt. > Total : > 01 60 07 > > > " > 5. We are concerned with the posts of Assistant Teacher (Science). > Appellants herein belonged to the general category. They, however, suffer > from disability. They are handicapped persons. Respondent No. 1 > Yashwant Kumar Ahirwar, a handicapped person but also belonging to the > reserved category candidate was not selected. He approached the > Administrative Tribunal. The Administrative Tribunal by a judgment and > order dated 27.11.1999 opined that he had no right of appointment on the > post of Assistant Teacher (Science) having not been selected by the > Selection Committee stating: > "4. On perusal of the advertisement published in the > Rojgar Nirman dt. 26th May, 1994 (Ann. P.8), it appears > that the respondent had advertised 8 posts for the > reserved category for scheduled castes and 8 posts for > the handicapped persons. The respondents showed the > reserved category separately in the body of the > advertisement, though the heading of such > advertisement is misleading that applications are also > invited from the candidates belonging to the category of > S.C. & S.T. but the body of the advertisement leaves no > room for doubt that 8 posts were got reserved for the > candidates belonging to the Scheduled Castes and 3 > posts for handicapped persons without having any caste > wise reservation. The respondent made it clear in their > return that there was also special drive to fill the > vacancies belonging to the handicapped persons > pursuant to the circular issued by the State Government > on 29th March, 1993 (Ann.J-1). There was clear > direction therein that such vacancies should be filled by > the end of 30th June, 1993" > > 6. On a writ petition having been filed by him, the High Court, however, > by reason of the impugned judgment while setting aside the order of the > Tribunal, directed: > "Therefore, in the said facts of the case it will be > appropriate that the State Government should examine > minutely and decide whether the posts could be filled > from the general category when advertisement was for > reserved category mentioned in the advertisement. The > State Government shall also examine whether these > posts are to be filled from the members of scheduled > tribes only or from the members of scheduled castes > only or from the category of other backward castes or > these posts were for all the categories mentioned above. > State Government should also consider whether the > reservation was in accordance with the reserved > proportion shown in the Annexure-R/1 filed by the > State. Annexure R/1 is issued by the State Government > on 29th March, 1993. State shall also examine whether > at the relevant date any post of the handicapped > candidate in general category was vacant. If no post > was vacant then no person from general category could > be appointed against these posts. State shall determine > that the category advertised had been properly filled. > The entire exercise be conducted within a period of > three months from the date of communication of the > order..." > > 7. The stand of the State before the Tribunal as also the High Court had > been that the posts reserved for the handicapped persons were open to all. > Even after the direction of the High Court, the State was of the view: > "1 The filling of the three posts of Assistant Teachers > (Science) as mentioned in the Advertisement, could be > carried out from the handicapped candidates of any > category. > > 2 The Advertisement published by the Commissioner, > Chambal Division, regarding special drive for recruitment > of Scheduled Caste/Tribes and filling of the posts of > handicapped persons, was issued in compliance of the > instructions issued from time to time by the General > Administration Department and the Circular vide No. F.9- > 2/93/1/Res.Cell, Bhopal Dated 29th of March, 1993, but in > the language of the heading of the Advertisement, the > words " and handicapped" should have been used along > with Scheduled Caste/Tribes, which has not been done so. > > 3 At that time in the quota for the handicapped persons, 3 > posts of Assistant Teacher (Science) were vacant, for > filling of the same, proposals were forwarded by the Joint > Director, Education, Gwalior Division, vide its letter No. > Estt.3/DRA/Gwalior/268 dated 1st of March, 1994, to the > Commissioner, Chambal Division. > > Resultantly, simply in the language of the heading of the > Advertisement, because of not mentioning of the word > "Handicapped" at the relevant time, the selection > committee has fully complied with the > directions/instructions issued by the Government, and the > selection procedure is without any fault and guiltless." > > 8. A contempt petition was filed at a later stage. In the contempt > proceedings, the State took a volte face. It inter alia took the stand > that the > advertisement was not proper and directed: > "9. Resultantly, the advertisement issued by the > Commissioner, Chambal Division and published on 26th of > May, 1994 in Rojagar Samachar, was not proper > advertisement relating to vacant posts for the category of > handicapped persons. Therefore, on the basis of this > advertisement, selection made against the quota for > handicapped persons, being not proper, is liable to be > cancelled. Because the handicapped teachers are > presently in service selected on the basis of this selection, > their services will have to be terminated, and, therefore, the > competent officer shall issue a show-cause notice to them, > an opportunity for being heard, should be extended to > them." > > > 9. In terms of the said decision, a show cause notice was issued upon the > appellants herein as to why their services shall not be terminated. The > services of the appellants were terminated. Appellants filed a Special > Leave > Petition against the original order dated 1.05.2003. However, it is now > accepted that services of some of the appellants have been terminated. > > 10. The State in terms of Article 16 of the Constitution of India may make > two types of reservations vertical and horizontal. Article 16(4) > provides > for vertical reservation; whereas Clause (1) of Article 16 provides for > horizontal reservation. > > 11. The State adopted a policy decision for filling up the reserved posts > for handicapped persons. A special drive was to be launched therefor. > The > circular letter was issued only for the said purpose. A bare perusal of > the > said circular letter dated 29.03.1993 would clearly show that the State > had > made 3% reservation for blinds and 2% for other physically handicapped > persons. Such a reservation falling within Clause (1) of Article 16 of > the > Constitution has nothing to do with the object and purport sought to be > achieved by reason of Clause (4) thereof. > > 12. Disability has drawn the attention of the worldwide community. India > is a signatory to various International Treaties and Conventions. The > State, > therefore, took a policy decision to have horizontal reservation with a > view > to fulfil its constitutional object as also its commitment to the > international > community. A disabled is a disabled. The question of making any further > reservation on the basis of caste, creed or religion ordinarily may not > arise. > They constitute a special class. The advertisement, however, failed to > mention in regard to the reservation for handicapped persons at the > outset, > but, as noticed hereinbefore, the vacant posts were required to be filled > up > for two categories of candidates; one for Scheduled Castes and Scheduled > Tribe candidates and other for handicapped candidates. Handicapped > candidates have not been further classified as belonging to Scheduled > Castes, Scheduled Tribes and general category candidates. It is a > travesty of > justice that despite the State clarified its own position in its order > dated > 1.01.2004 and stated that the posts were vacant under the handicapped > quota > but it completely turned turtle and took a diagonally opposite stand when > a > contempt petition was filed. In its reply in the said proceedings, > reference > was made to the aforementioned order dated 1.01.2004 but within a short > time, viz., on 4.02.2004 it opined on a presumption that as the word > "handicapped" was not mentioned in the heading of advertisement they were > meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of > Executive Construction was given a complete go bye. Reasonableness and > fairness which is the hallmark of Article 14 of the Constitution of India > was > completely lost sight of. The officers of the State behaved strangely. > It > prevaricated its stand only because a contempt proceeding was initiated. > If > the State was eager to accommodate the writ petitioner respondent, it > could > have done so. It did not take any measure in that behalf. It chose to > terminate the services of some of the employees who had already been > appointed. Such a course could not have been taken either in law or in > equity. The State is expected to have a constitutional vision. It must > give > effect to the constitutional mandate. Any act done by it should be > considered to have been effected in the light of the provisions contained > in > Part IV of the Constitution of India. The State in terms of the > provisions > contained in Part IV should have given effect to the principles embodied > in > Article 39 of the Constitution of India. Whereas a reasonable reservation > within the meaning of Article 16 of the Constitution of India should not > ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v. > Union of India [1992 Supp (3) SCC 212 : AIR 1993 SC 477], reservation for > women or handicapped persons would not come within the purview thereof. > > 13. Furthermore, when the decision was taken, the Persons with > Disabilities (Equal Opportunities, Protection of Rights and Full > Participation) Act, 1995 (for short "the 1995 Act") had come into force. > In > terms of the 1995 Act, the States were obligated to make reservations for > handicapped persons. The State completely lost sight of its commitment > both under its own policy decision as also the statutory provision. > > 14. For the reasons aforementioned, we not only set aside the judgment of > the High Court but also direct that the persons whose services have been > terminated in terms of 4.02.2004 should be continued in service. We > furthermore direct that they should be paid back wages as also other > service > benefits. Respondent No. 1 could have been considered both as handicapped > persons as also Scheduled Castes and Scheduled Tribes. If all the > vacancies > meant for Scheduled Castes, Scheduled Tribe had not been filled up, the > State may consider appointing him. If he has already been appointed, the > State may consider the desirability of creating a supernumerary post and > continue his service therein. > > 15. The appeals are allowed with costs. Counsel's fee assessed at Rs. > 25,000/- in each case. > > > Home. > > To unsubscribe send a message to [EMAIL PROTECTED] > with the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, > please visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in To unsubscribe send a message to [EMAIL PROTECTED] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
