Sandhya Jain, Raj ana Purwar others vs State of U.P. and others

V. K. Shukla, J.—In the instant writ petition the issue is as to whether petitioners who hail from physically handicapped category are entailed for age relaxation benefit or not as has been extended to persons from Dependent of Freedom Fighters category and Exserviceman category.

Brief facts, as has been mentioned in the writ petitions is that advertisement was issued on 21.1.2004 and 21.2.2004, respectively inviting applications forms eligible candidates for undergoing Special B.T.C. Course, 2004. In the said advertisement 40 years age limit was prescribed for candidates, however relaxation in respect of upper age limit was provided to SC/ST/OBC, ExServiceman and D.F.F. category candidates, however most surprisingly physically handicapped category candidates have not been extended afoementioned benefit of age relaxation. Petitioners submit that by virtue of being physically handicapped category candidates, they are entitled for horizontal reservation and are fully entitled for age relaxation and nonextension of the same is totally arbitrary and discriminatory.

In Special Appeal No. 461 of 2004 (Devendra Singh and others v. State of U.P. and others) and Civil Misc. Writ Petition No. 22141 of 2004 (Niranjan Stngh and others v. State of U.P. and others), this Court has noted in detail, the provisions which cover the field and the object of promulgation aforementioned scheme of Special B.T.C., 2004. Facts noted therein are to the effect that there has been acute shortage of teachers in Basic school run by the Board. The Central Government and State Government have been enjoined and obligated to offer free and compulsory education to all the children upto age of 14 years in order to fulfill objectives as enshrined under Article 21A and Article 45 of the Constitution of India and as per directions of Hon''ble Apex Court in Uni Krishnan case, State Government lacks infrastructure and facilities to fill up almost 10,000 vacancies which arises every year. There are fifty six District Institutes of Education and Training run by the State Government having total capacity of providing training to 5600 persons in the two years regular course of Basic Teachers'' Training in order to meet out this situation and overcome this crisis, State Government in its wisdom in the year 1998 proceeded to adopt a special condensed bridge course for basic teacher''s training to B.Ed./L.T. qualified graduates. Pursuant to the same about 8000 candidates were selected, trained and were given appointments. Said vacancies rapidly increased, in this background State Government resolved that 20,000 graduates with teaching qualification like B.Ed./L.T. be provided condensed course. Subsequent to the same candidates who possessed B.P.Ed./C.P.Ed. and D.P.Ed. Degree Diploma and certificates were also made eligible. This scheme failed on account of the fact that course in question was not recognised under the National Council of Teachers Education Act, 1993 and was not at all one of the recognised qualification provided under the U.P. Basic Education (Teachers) Services Rules, 1981. Thereafter vacancies in question were recomputed and same came to 46,189. State Government applied to National Council of Teachers Education for permission to conduct the special bridge course, Said permission was accorded on 29.3.2002 giving approval to Special B.T.C. Programme of six months duration including three months'' practical training, by means of letter dated 24.7.2003. After said clearance was accorded, Government Order dated 14.1.2004 was issued providing for Special B.T.C., 2004. State Government issued another Government Order dated 20.2.2004 and therein age was extended from 35 to 40 years and qualification of B.P.Ed./C.P.Ed. and D.P.Ed. Degree Diploma and Certificates alongwith graduation were included in the field of eligibility alongwith B.Ed, and L.T degree holders for Special B.T.C. Course 2004. Said advertisement was questioned before this Court and writ petitions were dismissed on 5.3.2004 in Writ Petition No. 5452 of 2004 (Pramod Kumar and others v. State of U.P. and others). This judgment was upheld in Special Appeal No. 461 of 2004, decided on 17.5.2004.

In Special Appeal No. 461 of 2004 (Devendra Singh v. State of U.P.), it has been categorically observed that Government was conscious of the fact that there are large number of vacancies far above the trained persons, and that all the trained graduates should be offered appointment immediately after completing their training. Thus, there is no question of arranging them year wise and giving preference to those who are trained earlier and for this reasons no written examination was provided. In Civil Misc. Writ Petition No. 22141 of 2002 (Niranjan Singh v. State of U.P.) it has been observed that Government Order dated 12.1.2004 and 20.2.2004 shows that selection is for training and not for appointment and there is no assurance given, nor there is any compulsion for appointment after completing the training. Every candidate who completes the training is to appear in a written examination to be conducted by the Registrar, Departmental Examination, making him to be eligible for appointment under the Rules of 1981. The preparation of list and procedure for direct recruitment will be applied subsequent to and amongst the candidates who are successful in the examination conducted by the Registrar, Departmental Examination. It is only after the candidate succeeds in the examination then he shall be enlisted in accordance with Rule 14 and a list shall prepared for the purpose of appointment. In this background it has been mentioned that procedure for appointment was not necessary to have been followed at the time of enlistment for the training course namely Special B.T.C. Course, 2004. Further in this judgment itself, it has been noted that large number of persons with teaching qualifications, other than Basic Teachers Course are available. Almost half of the Basic Schools in the State are being run by single teacher, termed as ''Ekal Vidalya'' and there are large number of school without teachers. In such emergent situation, it was felt necessary to provide bridge course for Basic Teacher Training and to appoint those who are successful in such training and examination Assistant Teachers.

At the point of time when writ petitions have been taken up it has been contended that no reasons whatsoever has come forward for not extending the benefit of age relaxation to physically handicapped category candidates in the advertisement and further policy of State Government is totally employment oriented after successful completion of training and thus, nonextending the benefit of age relaxation is wholly unjustifiable. Apart from this it has been submitted that for B.T.C. Course, 2004 and in respect of Spcecial B.T.C. Course for Urdu Teachers, 2005 similar benefit has been extended by the State Government for according age relaxation in the training to physically handicapped category candidates and thus there is no ground to discriminate the petitioners who also require special attention, being from physically handicapped category.

Learned Standing Counsel on the other hand contended that this is merely training and not employment and as such Government Order on which reliance has been placed is of no consequence, inasmuch as same is qua the employment and not the training. It has been further submitted that wisdom of State Government cannot be questioned and no relief whatsoever can be granted to petitioners.

After respective arguments have been advanced, undisputed factual position which is emerging is to the effect that in the Advertisement which has been issued pursuant to which petitioners claim that they applied therein age relaxation has been accorded to S.C./S.T./OBC category candidates as well as candidates from D.F.F. category and Exserviceman ''category. Even in the counter affidavit filed on behalf of State, no reasons whatsoever has been given as to why candidates from physically handicapped category have not been extended the benefit of relaxation of age in the same way and manner as candidates from D.F.F. category and Exserviceman category have been extended.

State Government by means of U.P. Act No. 4 of 1993 as amended by U.P. Act No. 6 of 1997 and U.P. Act 29 of 1999 known as U.P. Public Services (Reservations for Physically Handicapped, Dependents of Freedom Fighters and ExServiceman) Act, 1993 has come out with scheme, in order to provide for the reservation of posts in forvour of Physically Handicapped Dependents of Freedom Fighters and Exserviceman. Section 3 of the said Act deals with reservation to be provided for to Physically Handicapped candidates, Dependents of FreedomFighters and Exservicemen. Thus, Special Act has been formulated in order to extend benefit of reservation to all these three category of candidates namely Physically Handicapped category, D.F.F. category and Exserviceman category candidates. Not only this in the year 1995 as per the Proclamation on the Full Participation and Equality of People with disabilities in the Asian and the Pacific Region Central Act, namely The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been enforced and as per the said Act, provision has been made under Section 32 for identification of post which can be reserved for persons with disabilities. Section 33 of the said Act obligates that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one percent, 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,

Section 38 obligates for framing of Schemes by every appropriate Government for ensuring employment to persons with disabilities, and said scheme would include provision in respect of relaxation of age. Section 39 clearly deals with that all educational institutions are to reserve seats or persons with disabilities. Section 72 provides that provisions of aforementioned 1995 Act is to be in addition to and not in derogation of any other law. Thus, object of the scheme qua both the Act is to make special provision for Physically Handicapped category candidates and in order to make way for these category of candidates.

In the present case first question which has to be answered is as to whether advertisement which has been issued is employment oriented or it is merely training. A bare reading of the Advertisement, mentions that it is merely training and same does not assure employment, Division Bench of this Court in Special Appeal No. 461 of 2004 (Devendra Singh v. State of U.P.), decided on 17.5.2004, has categorically observed that Government was conscious of the fact that there are large number of vacancies far above the trained persons, and that all the trained graduates should be offered appointment immediately after completing the training, as such there is no question of arranging them year wise and giving preference to those who are trained earlier and for this reasons no written examination was provided. Thus, Division Bench of this Court clearly noted that appointment was assured to candidates who have completed the training. Similarly in Civil Misc. Writ Petition No. 22141 of 2004 (Niranjan Singh v. State of U.P.), scarcity of teachers has been noted, and thereafter emergent situation has been sought to be remedied by, providing bridge course to B.Ed./L.T./C.P.Ed./B.P. Ed./D.P.Ed. degree/diploma/certificate holders and those who are successful in training to provide them employment as Assistant Teachers. Thus, as per observations noted above, though it has been described as training but after successful completion of training appointment is a reality. In case candidate failed to complete and pass the training then the candidate himself is to be blamed for the said situation. Seeing the background of the scheme and also taking note of the fact that all these 46,189 vacancies were lying vacant in recognised institution run and managed by Board, certainly it is employment oriented scheme. If in the fact of the present case it is to be treated as plain and simple training then it would amount to closing eyes to the ground realities of the situation. Thus, it is hereby concluded that it is not merely plain and simple training but clearly gives legitimate expectation to candidates that after successful completion of training employment is necessary consequence of the same.

The next question to be answered is that once in principle, it has been accepted that the training in question is employment oriented, then whether age relaxation benefit ought to have been extended to candidates from Physically Handicapped category or not. In the Advertisement age relaxation of five years has been provided for to Dependent of Freedom Fighters category candidates and three years age relaxation has been provided for Exserviceman category candidates. This relaxation is referable to the provisions as contained under the first proviso and the second proviso to Rule 6 of 1981 Rules which deals with recruitment. Rule 9 of 1981 Rules deals with Reservations and provides for that Reservation of candidates belonging to SC/ST/OBC, Dependents of Freedom Fighters. Exserviceman and other categories shall be in accordance with U.P. Act and the orders of State Government in force. Thus, as per this provision reservation has to be made as per U.P. Act and the orders of the State Government in force at the time of recruitment. Provisions of U.P. Act No. 4 of 1993 as amended in the year 1997 and 1999 are in force, and as per the same reservation has to be made qua Physically Handicapped category candidates, Dependent of Freedom Fighters and ExServiceman category candidates. Qua Dependent of Freedom Fighter category candidates and Exserviceman, provision has been made in Rule 6, first proviso and second proviso of 1981 Rules to provide age relaxation. As no provision has been made qua Physically Handicapped category candidates in 1981 Rules, then as per Rule 9, it has to be seen as to whether there is any order of the State Government in force according relaxation in age in the matter of recruitment to Physically Handicapped category candidates. Petitioner has brought on record Government Order dated 25.1.1980. Said Government Order provides age relaxation in the matter of employment to Physically Handicapped category candidates. The said relaxation has been accorded, after conscious decision has been taken by mentioning that when benefit of age relaxation has been extended to SC/ST/OBC category candidates and Dependent of Freedom Fighter category candidate, then in that continuation same benefit be extended to Physically Handicapped category candidate, who are fighting and trying to sustain themselves. The scheme in question being employment oriented, there is no reason not to extend the benefit of age relaxation to Physically Handicapped category candidates.

Hon''ble Apex Court in the case of S.P. Jain v. KM. Gupta, reported in 1987 SC 222, has taken the view that law should take pragmatic view of the matter and response to the purpose for which it was made and also take cognizance of the current capabilities and life style of community. It is well settled that the purpose of law provides a good guide to the interpretation of meaning of Act. The legislative futility is to be ruled out so long as legislative policy permits. Hon''ble Apex Court in the case of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar, reported in AIR 1992 SC 1946, has taken the view that any interpretation that leads to hardship and complication should be avoided and further mechanical approach to construction is totally out of play, with modern positive approach i.e., to effectuate the object and purpose of the Act. Hon''ble Apex Court in the case of ColourChem Ltd. v. A.L. Alaspurkar, reported in 1998 (3) SCC 192, has taken the view that provision of welfare legislation should be construed in such a way to give benefit to the persons, for whose benefit, the same has been made, and the Courts must examine the policy and object of the Act and must advance, the cause of enactment.

Till date, State Government has not formulated any scheme as accepted by parties, in terms of Section 38 of 1995 Act, making provision by way of notification, providing for matters, specified therein inclusive of relaxation in age. The 1995 Act has come into force on 7.2.1996 and since then more than nine years have passed. This shows the apathy of the State to the issue and the way and manner, in which the pious object of the Act has been sought to be defeated. Person with disability, if are made to compete with normal candidates, without giving any advantage or incentive then the question of equal opportunity, protection of rights and full participation would all be made redundant and otiose. However Section 72 of 1995 Act provides that the provisions of said Act are in addition and not in derogation of any other law, as such even if State Government has not framed any Scheme the existing Government Order, which has not been rescinded till date the same can be relied upon, and aid can be taken from the same to make the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and U.P. Public Services (Reservation for Physically Handicapped, Dependent of FreedomFighters and ExServicemen) Act, 1993 more meaning full and purposive, and for achieving the object of aforementioned Act.

Apart from this note may also be taken of the fact that for B.T.C. Course, 2004 and Special B.T.C. Course (Urdu), 2005, advertisement has been issued by same Authority and therein the benefit of age relaxation has been extended to the candidates from Physically Handicapped category of five years and thus, it is amply clear that mistake has been committed by the authorities concerned while excluding benefit of age relaxation to Physically Handicapped candidates, in the Advertisement of Special B.T.C. Course, 2004.

Much stress has been laid on the fact that the Courts have no authority to increase the age or accord the age relaxation. The arguments advanced could have some force in case Court was venturing to increase the age or according age relaxation on its own. Here in the present case, as noted above, there were existing provision, which covered the field, and the Court has merely proceeded ahead to get the aforementioned existing provisions implemented, and given effect to in its word and spirit and nothing beyond the same, as such argument advanced is fallacious on the face of it.

In these circumstances and in this background nonproviding of age relaxation benefit to Physically Handicapped category candidates is clearly arbitrary and unjustifiable, and as such it is hereby directed that candidates who had applied for consideration of their candidature as Physically Handicapped category candidate, upto the same age relaxation benefit be accorded as per existing provisions. However, it is mailed clear that candidates from Physically Handicapped category who have already been selected and sent for training, their candidature in no way should be disturbed.

With the above directions all these writ petitions are allowed and disposed of. Petitions allowed.