Ashutosh Gaur vs State Of Uttarakhand & Others

Alok Singh, J.

1) By means of present writ petition, petitioner seeks following prayers, among others:

"(i) Issue a writ, order or direction in the nature of certiorari to call for the record of the case and quash the order dated 28.03.2013 passed by respondent no.3.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to issue an order of appointment to the petitioner on the post of Assistant Teacher (Art) on the basis of select list dated 31.10.2012.

(iii) Issue writ, order or direction in the nature of certiorari quashing the G.O. dated 07.5.1999."

2) Brief facts of the case are that pursuant to an advertisement issued in the year 2010, the petitioner submitted his application under general-physically handicapped category for the post of Assistant Teacher (Art) in LT Grade. The result was declared in which the petitioner was shown to have been selected for the post of Assistant Teacher (Art) under general-physically handicapped category. Thereafter, the petitioner appeared before the respondent no.3 for verification of his testimonials on 26.12.2012. On 28.03.2013, the respondent no.3 passed an impugned order to the effect that the petitioner was not suitable for the post of Assistant Teacher (Art) on the ground of disability keeping in view the G.O. dated 07.05.1999.

3) Learned counsel for the petitioner would submit that the action of the respondent authority denying appointment to the petitioner on the post of Assistant Teacher (Art) is illegal and arbitrary. Learned counsel for the petitioner has placed reliance on the provisions of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act, 1995), which for ready reference are reproduced hereunder:-

"32. Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall-

a. identify posts, in the establishments, which can be reserved for the persons with disability;

b. at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

Reservation of Posts - Every appropriate Government 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 per cent 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 Government 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."

4) From perusal of above, it is apparent that the reservation under Section 33 depends upon the identification of posts under Section 32 and, as such, the identification of post under Section 32 is for the purpose of making appointments and not for the purposes of reservation. No reservation can be provided unless the posts are identified under Section 32.

5) As per the impugned Government Order dated 07.05.1999, the reservation had been provided for the jobs for physically handicapped persons in Group - C & D and for the post of Assistant Teacher (Art) the same has been mentioned at Sl.No.31 as OL, OA and BL. The State Government has identified the posts for different physically disabled persons by Government Order dated 07.05.1999.

6) The categories of disabled persons which are suitable for the jobs have been classified/identified, vide G.O. dated 07.05.1999, relevant of such classification is as follows:

Code

Function

OA

(v) One arm affected (R & L) (a) Impaired

reach (b) Weakness of grip (c) ataxie

BL

(i) Both legs affected but not arms.

OL

(iv) One leg affected (R and/or L)

B

(x) The blind

PB

(xi) Partially blind

7) From perusal of the impugned Government Order, it is clear that for Art Teacher, disability of OL, OA & BL has been identified as suitable for the job. Meaning thereby, the post of Assistant Teacher (Art) has been identified for the person, who is having disability of OL, OA & BL. In the present matter, the petitioner's disability has been measured as 'loss of right eye'.

8) The impugned G.O. clearly shows at serial no.31 that the categories of disabled (i.e. OL, OA & BL) are only suitable for the post of Art Teacher. Therefore, I am of the view that the respondent authority has rightly denied appointment to the petitioner.

9) Learned counsel for the petitioner further submitted that in a similar matter, the coordinate bench of this Court in Writ Petition No.219 of 2012 (S/S), titled as, Pratap Chandra Soni vs. State of Uttarakhand & others had held that the Government Order dated 07.05.1999 (which is also under challenge in the instant petition) is not applicable in the State of Uttarakhand, inasmuch as it was passed by the erstwhile State of Uttar Pradesh. With all due respect to coordinate bench of this Court, I am of considered view that the Government Order impugned (i.e 07.05.1999) would be applicable in the State of Uttarakhand, in as much as the State of Uttarakhand was carved out from the State of Uttar Pradesh on 09.11.2000 and the order under challenge was passed by the erstwhile State of Uttar Pradesh before the appointed day (i.e. 09.11.2000) and the said order has been adopted by the State of Uttarakhand in view of Section 87 of the Uttar Pradesh Reorganization Act, 2000.

10) For the sake of convenience, if it is presumed that the said G.O. dated 07.05.1999, on the premise of which appointment has been denied to the petitioner, is not applicable in the State of Uttarakhand, even then, another Government Order No.196/XVII- 2/2011-29(S.K.)/2003 dated 25.03.2011 issued by the Department of Social Welfare, Government of Uttarakhand, Dehradun will be a hurdle in the way of petitioner. It appears that an identical order has been issued by the State of Uttarakhand on 25.03.2011 to provide reservation to the physically challenged person in government job. It is also apparent from perusal of the said G.O. dated 25.03.2011 that the categories of disabled persons, which are suitable for the jobs, have also been classified and the person who is having disability of OL, OA, BL & FT has been identified as suitable for the job of Art Teacher. Meaning thereby, the post of Assistant Teacher (Art) has been identified for OL, OA, BL & FT categories only. The Government Order of 2011 issued by the State of Uttarakhand is more or less identical to the impugned order dated 07.05.1999.

11) Learned counsel for the petitioner further contended that there is no specific reason as to why the subjects, namely, Social Science, Humanities & Music are reserved for 'B' (Blind) and 'PB' (Partially blind) category only. In this regard, this Court is of the view that this is the domain of the State Government to identify the disabilities qua the posts vis-a-vis the respective department. I am of the view that this Court should normally be very slow to intervene under Article 226 of the Constitution because the matters falling within the jurisdiction of the educational authorities should normally be left to their decision. It is thus settled and firm proposition of law that the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience in the field. Moreover, it is a policy decision and it is the province of the State Government to identify the disabilities qua the posts vis-a-vis the respective department.

12) In view of the observations made above, the writ petition is devoid of merit and is hereby dismissed. No order as to costs.

13) Before parting, it needs to be mentioned here that the State Government of Uttarakhand should take appropriate steps in view of Section 32(b) of the Act, 1995, whereby it is provided that appropriate Government shall, at periodical intervals not exceeding 3 years, review the list of posts identified and update the list taking into the consideration the developments in technology.

14) Let a copy of this order be communicated to the Principal Secretary (Personnel), Government of Uttarakhand, Dehradun for necessary compliance.