This particular order seems particularly clear, and the last few paras
outlawing declaration about criminal prosecution are really a step forward.
So, thought of sharing it publicly::::
Those interested in scribe issue, Do read on...
order dated 8 December 2011.pdf
1 PIL.75.2006(903).sxw
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 75 OF 2006
WITH
WRIT PETITION NO. 3294 OF 2010
table with 2 columns and 3 rows
Satyashodh & Ors. Vs.
...Petitioners
The State of Maharashtra & Ors.
...Respondents
Mr. Uday Warunjikar for Petitioners Mr. G.W. Mattos, AGP for Respondent Nos.1
for State Mr. Chetan Agarwal for the Petitioner in PIL 225/2009 for applicant
in CAI 54/2007 in PIL 139/2006
table end
Mr. M.S. Karnik for Respondent No.3 in WP No. 7824/2007
Ms. Kanchan Pamnani for Respondent No.5 in PIL No.75/2006
Mr. Jaydeep S. Deo for Respondent No.12 in PIL No.225/2009
CORAM : MOHIT S. SHAH, C.J. AND
MRS. ROSHAN DALVI, J.
Date : 8 DECEMBER 2011.
P.C.
Ms. Kanchan Pamnani, learned Counsel for the NGO invites our
attention to the guidelines issued by the MHADA for orthopeadically
challenged and visually impaired candidates using scribe in respect of the
examination for the posts of Junior Clerk-cum-typist and submits that the
following guidelines and clauses (ii)(b) in the declaration required to be given
by the candidates and the scribe are contrary to the directions given by this
Court in the order dated 29 April 2011 in Writ Petition No.3294/2010 and
connected matters:
2
PIL.75.2006(903).sxw
"(ii)(b) He/She has secured lesser marks than the candidate
and not more than 60% marks in the last examination passed in
his/her own academic stream (certificate enclosed)."
2.
In the aforesaid order we had in paragraph 17 of our order dated 29 April 2011
whereby held as under:
"17. The instructions in the circular that writer should be one
grade lower than the student from disability would mean that his
scribe should be one year in the lower grade i.e. lower class for
instance T.Y.B.Com. student suffering from disability will be
allowed to engage writer who is in S.Y.B.Com.
3.
In our order dated 25 July 2011 in Writ Petition No.616/2001 this Court
referred to the direction/guidelines to the effect that the scribe who has
secured
less marks than the candidates and not more than 60% marks passed in the last
examination was inconsistent with the instructions issued by the office of
the Chief Commissioner for Persons with Disabilities of the Government of India
in so far as it requires that a scribe should possess lesser marks than
the candidate and not more than 60% marks in his own academic stream.
Accordingly MHADA shall revise the guidelines for the orthopeadically challenged
and visually impaired candidates using scribe on the declaration to be given by
the candidates and scribe so as to be consistent with the above orders
of this Court.
4.
Our attention is also invited to the following sentence in declaration at the
end of paragraph 4: "In such circumstances, both
3
PIL.75.2006(903).sxw
signatories will be liable to criminal prosecution".
5.
Guidelines of an authority cannot define an offence. What would constitute an
offence would have to be laid down by statutory provisions such as those be
found in the Indian Penal Code. After an act or omission reason under any such
statute, cannot become an offence by virtue of any circular or guidelines
issued by the MHADA. Similarly if an act or omission is an offence in a statute
it would not be necessary for the authorities to take a declaration to
prosecute such scribes. The scribes otherwise also render voluntary service to
the candidates suffering from as aforesaid visually impairment. Such express
declaration required to be made by them would deter them from rendering their
services.
6.
Hence the last sentence in paragraph 4 of the declaration shall be deleted.
7.
The General Administration Department of the State Government as well as the
Education department of the State Government shall issue clarificatory circulars
to all the departments/education institutions.
8.
The learned AGP states that the report of the Chief Secretary shall be
submitted to the Court on 25 January 2012. The copy of the same shall be
supplied
to the learned Counsel for the Petitioners one week prior to the submission in
the Court.
9.
S.O to 25 January 2012.
CHIEF JUSTICE
ROSHAN DALVI, J.
With thanks and regards
(Rajesh Asudani)
Assistant General Manager
Reserve Bank of India
Nagpur
Cell: 9420397185
o: +91 712 2806846
R: 2591349
It's not activity that wears out the body and spirit- it's inactivity. Keep
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GUS ECKSTEIN
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