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Judgment
Sudhir Agarwal, J.—Heard Sri A.K. Singh, learned Counsel for the petitioner and learned Standing Counsel for the respondents.
This writ petition has been filed under Article 226 of the Constitution of India assailing order dated 29th November, 2004 passed by the Principal, District Teachers Training and Educational Institution, Deoria cancelling petitioner''s admission in Special B.T.C. Course, 2004 on the ground that she got her admission in physically handicapped quota, though on the scrutiny the certificate submitted by the petitioner, it was noted that she suffered only 20% disability and as per Government Order dated 30th September, 2000 a person who suffered disability above 40% can only be give the benefit of the aforesaid quota, therefore her admission was irregular.
The learned Counsel for the petitioner submits that there was no percentage advertised by the respondents in the advertisement showing that a person must possess 40% or above disability in order to qualify for reservation of physically handicapped candidates and after three months'' training, the candidature of the petitioner has been cancelled therefore the impugned order is illegal and liable to be set aside.
The learned Standing Counsel, however submits that as per the Government Order dated 30th September, 2000, a copy whereof has been filed as Annexure-3 to the counter affidavit, the petitioner did not qualify for benefit of reservation meant for physically handicapped persons and therefore her candidature has rightly been cancelled.
Heard learned Counsel for the parties and perused the record.
It is not disputed that the petitioner suffered disability to the extent of 20%. It is also not disputed that she is claiming benefit for physically handicapped quota making necessary endorsement in her application and also necessary medical certificate, which certify her disability to the extent of 20%. At the time of admission also the petitioner produce original certificate which shows 20% disability and thereafter she was selected and granted admission in Special B.T.C. Course against a vacancy meant for physically handicapped persons. However, while undergoing training, after some time, the Principal of the institution, it appears noted that the petitioner''s disability was only 20% though as per the Government Order dated 30th September, 2000 she ought to have possess disability to the extent of 40% and above. Accordingly, a show cause notice dated 30th October, 2004 was issued which was replied by the petitioner by letter dated 30th October, 2004. Thereafter the respondent No. 2 passed impugned order dated 29.11.2004 cancelling her candidature.
The short question involved is, whether cancellation of petitioner''s candidature for admission to Special B.T.C. Course, 2004 on the ground that she suffered disability of 20% and therefore was not entitled for benefit of reservation meant for physically handicapped persons, is valid and in accordance with law.
It is not disputed by the learned Counsel for the parties, that in the State of Uttar Pradesh, reservation for physically handicapped persons has been prescribed by U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom-Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred to as ''1993 Act''). Section 2(e) of 1993 Act defines "physically handicapped" and sub-Section 2 (a), (aa), (dd), (ddd) and (dddd) defines "blindness", vcerebral palsy", ''"hearing impairment", "locomotor disability" and "low vision" which constitute disability to qualify for claiming benefit under the 1993 Act and the aforesaid provisions are reproduced as under:
(a) "blindness" refers to a condition where a person suffers from any of the following conditions, namely:
(i) total absence of sight; or
(ii) visual acuity not exceeding 6 60 or 20 200 , (snellen) in better eye with correcting lenses; or
(iii) limitation of the field of vision subtending an angle of 20 degree or worse;
(aa) "cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal peri-natal or infant period of development.
(dd) "hearing impairment" means loss of sixty decibels or more in the better ear in the conversational range of frequencies;
(ddd) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;
(dddd) "low vision" refers to a condition where a person suffers from impairment of visual functioning even alter treatment or standard retractive correction hut uses or is potentially capable of using vision jar the planning or execution of a task with appropriate assistive devise:
(e) "Physically handicapped" means a person who suffers from-
(i) blindness or low vision
(ii) Hearing impairment;
(iii) Locomotor disability or cerebral palsy;
Section 3 of 1993 Act provides 1% reservation in respect to each of the categories mentioned in sub-Section l(ii). There is nothing in 1993 Act, which provides that in order to qualify as physically handicapped person, disability must be 40% and above. It is worthy to mention at this stage that the definition of "physically handicapped" under 1993 Act has been amended by substitution by UP. Act No. 6 of 1997 which came into force w.e.f. 9th July, 1997 When reservation for physically handicapped persons is governed by statutory provisions of 1993 Act, it is not open to the respondents to make any alternative or provide an additional qualification by executive order inconsistent to the Act.
An Executive order cannot override the provisions of statute, is well settled legal exposition of law. In my view to attract the provisions of 1993 Act the only scrutiny permissible is whether the person claiming benefit of 1993 Act sutlers any of the disability as defined u/s 3 (a), (aa). (del), (ddd) and (dddd) and once he satisfy the aforesaid requirement, the benefit of aforesaid Act cannot be denied by referring to any executive order and m my view such an action on the part of the respondents is clearly illegal and impermissible in law
At this stage this Court proceeded to have a closure scrutiny of the Government Order dated 30th September. 2000 and find that the same has no application to the cases governed by 1993 Act. The aforesaid Government Order appears to have been issued by referring to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "1995 Act"). Para 1 of the Government Order narrates the various welfare schemes carried out in the State of Uttar Pradesh under 1995 Act and para 4 of the aforesaid Government Order provides that the schemes refer to in para 1 of the said Government Order would be applicable only to such persons who are qualified as per the definition of a "person with disability" u/s 2(t) of 1995 Act. Para 1 and 4 of the aforesaid Government Order are reproduced as under:
1- mi;qZDr fo"k; ij & eq>s vkils ;g dgus dk funsZ''k gqvk gS fd fodykax dY;k.k foHkkx ds vUrxZr fodykax O;fDr;ksa ds dY;k.k gsrq fofHkUu ;kstukvksa dk lapkyu fuEufyf[kr fu;ekofy;ksa ds vUrxZr fd;k tk jgk gS&
(i) ''kkjhfjd :i ls fodykax gksus ds dkj.k ckf/kr Nk=ksa ds ''kSf{kd o`fRrd v/;;u vkSj O;olkf;d izf''k{k.k gsrq Nk=o`fRr iznku djus dh fu;ekoyh �Nk=o`fRr & d{kk&1 ls 12 rd Lukrd LukrdksRrj ,oa vU; O;olkf;d ikB~;dzeksa gsrq�
(ii) us=ghu] ewdcf/kj rFkk ''kkjhfjd :I ls fodykax fujkfJr O;fDr;ksa dsk muds Hkj.k iks"k.k gsrq vuqnku �fodykax isa''ku� Lohd`r djus dh fu;ekoyhA
(iii) ''''kkjhfjd :i ls v{ke O;fDr;ksa dks d`f=e vax ,oa Jo.k & lgk;d ;a= bR;kfn [kjhnus rFkk ejEer djkus gsrq lgk;d vuqnku Lohd`r djus dh fu;ekoyhA
(iv) fodykax O;fDr;ksa ls fookg djus ij ''kklu }kjk fn;s tkus okys vuqnku gsrq izksRlkgu fu;ekoyh] 1997 A
(v) mRrj izns''k jkT; lM+d ifjogu fuxe dh clksa esa fodykax dks fu% ''kqYd ;k=k lqfo/kk fu;ekoyh] 1998 A
(vi) mRrj izns''k fodykax O;fDr ds iquokZlu gsrq nqdku fuekZ.k fu;ekoyh] 1998 A
4- ''kklu }kjk lE;d fopkjksijkUr foHkkx dh mDr izLrj&1 esa mfYyf[kr 6 fu;ekofy;ksa esa lEcfU/kr ;kstuk dk ykHk mBkus gsrq ik=rk ds fy;s fu/kkZfjr fodykaxrk dh ifjHkk"kk ds LFkku ij mDr izLrj &3 esa mfYyf[kr ifjHkk"kkvksa dks ykxw djus dk fu.kZ; fy;k x;k gSA
vr% Jh jkT;iky mDr izLrj& 1 esa mfYyf[kr fu;ekofy;ksa esa fu/kkZfjr fodykaxrk dh fofHkUu Js.kh dh ik=rk dh ifjHkk"kkvksa dks rkRdkfyd izHkko ls la''kksf/kr djrs gq, fu% ''kDr O;fDr �leku volj vf/kdkj laj{k.k ,oa iw.kZ Hkkxhnkjh� vf/kfu;e] 1995 ds mDr izLrj&3 esa m)fjr /kkjk&2 dks ifjHkk"kkvksa ds vuqlkj djus dh lg"kZ Lohd`fr iznku djrs gSaA
rn~uqlkj izLrj&1 esa mfYyf[kr foHkkxh; ;kstukvksa dk ykHk izkIr djus gsrq mDr vf/kfu;e] 1995 dh m)fjr /kkjk&2 esa ifjHkkf"kr fodykaxrk dh Jsf.k;ksa esa ls fdlh ,d ;k vf/kd Js.kh esa eq[; fpfdRlk vf/kdkjh }kjk iznRr 40% vFkok vf/kd fu%''kDrrk �fodykaxrk� dk izek.k&i= /kkjh fu%''kDr �fodykax� O;fDr ik= gksxkA xzkeh.k {ks=ksa esa xzke iapk;rksa ds ek/;e ls lapkfyr izLrj 1 dh ek= nks ;kstukvksa fujkfJr fodykax O;fDr;ksa dks Hkj.k&iks"k.k vuqnku �fodykax isa''ku� ,oa fodykax fo|kkfFkZ;ksa dks Nk=o`fRr dh ;kstukvksa esa izkFkfed LokLF; dsUnz ds izHkkjh fpfdRld }kjk iznRr fodykaxrk izek.k&i= Hkh ekU; gksxkA
The aforesaid Government Order, therefore does not refer to reservation for physically handicapped persons in services which is governed by 1993 Act and the definition of physically handicapped under 1993 Act is much wider than 1995 Act and therefore in my view the Government Order dated 30th September, 2000 would have no application at all to the ease in hand In the result I am of the considered opinion that cancellation of admission of the petitioner in Special B.T.C Course by referring to the Government Order dated 30th September, 2000 is clearly erroneous, illegal and therefore the order impugned in the writ petition cannot be sustained.
The writ petition is accordingly allowed. The impugned order dated 29th November, 2004 (Annexure-3 to the writ petition) is hereby quashed.