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Judgment
N. Kumar, J.—The petitioners have challenged in this writ petition the order passed by the second respondent-The State Commissioner for Persons with Disabilities in the State of Karnataka, directing them to with hold the recruitment process for the post of Secondary School Teachers for the year 2007-08.
The 4th petitioner-Selection Authority, Belgaum, Department of Public Instructions, Government of Karnataka, called for applications for appointment of Special Teachers in Government High Schools/Government Composite Pre-University Colleges (High School Division), in Belgaum Division in the year 2007-08. Annexure-A, dated 01.09.2007 is the Notification issued. According to the petitioners, the said Notification was issued on the basis of the Government Order dated 20.06.1995, regarding reservations as per Annexure-B. It was also based on the Notification as per Annexure-C regarding horizontal reservations. The Government of Karnataka has also issued certain guidelines regarding reservations to be followed by the Selection Committee as per Annexure-D. Applications have been received for appointment of Special Teachers in Belgaum Division. The said applications are processed on the basis of the aforesaid Government Orders and Government Circulars. A provisional list came to be published on 08.03.2008. However, before the publication of the provisional list, the Government has passed one more order as per Annexure-E dated 04.01.2008 making alterations in the roster.
Belgaum Division comprises of 8 education districts. As the Notification Annexure-B was issued on 01.09.2007 prior to 04.01.2008, the Government Order modifying the rosters as per Annexure-E is not applicable to the present recruitment. Therefore, complaining of not following the said roster, the first respondent filed a complaint before the second respondent. The second respondent without issuing any notice to the petitioner, has passed the impugned order dated 26.03.2008 directing them to with-hold recruitment process for the post of Secondary School Special Teachers for the year 2007-08 till the matter of implementation of reservations of persons with disabilities is implemented in letter and spirit, as per Annexure-F. Aggrieved by the same, the petitioners are before this Court.
After service of notice, the first respondent has filed detailed statement of objections. He contends that Rule 9(1)(A) of the General Recruitment Rules, as amended on 03.08.2005, makes it clear that 5% of the class ''C'' and ''D'' posts are to be reserved for persons with disability. Therefore, the appointing authority and the State Government are under a statutory obligation to reserve 5% of the posts for the disabled persons. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. The Selecting Authority is the Joint Director of Public Instructions in the Division, who is also the Selection Authority required to conduct combined competitive examination. The number of candidates to be included in the list shall be equal to the number of vacancies for each of the categories of posts as notified against each of the educational Districts in the Notification published at the time of recruitment. The competitive examinations is held by the Selecting Authority and the selection takes place at Divisional Level. The selection should have been made on the basis of State level. The Division wise and District wise selection is illegal and contrary to law. Therefore, it was contended that the selection made by the petitioners is illegal and therefore the second respondent was justified in passing the impugned order. Therefore, he seeks for dismissal of the writ petition.
This Court by interim order dated 30.07.2008, stayed the impugned order for a period of three months. By virtue of the stay order, the petitioners have proceeded to publish the final list of candidates. It is made clear in the final list published that "selection is subject to the final decision in this case".
Learned Government Advocate assailing the impugned order contends that, the Notification was issued for recruitment on Division basis. The appointment is made on District Basis. There are totally 8 districts in the Belgaum Division. The appointments are made on the basis of roster which were prevailing on the date of the Notification. According to the said Notification Point No. 19 is reserved for a physically disabled person. As the 1st respondent hails from Chikkodi, there were only 28 posts in this District. 50% of seats are reserved for open category candidates. In the remaining 50%, only 14 seats have to be filled up and therefore as the point reserved for physically disabled is at 19, the 1st respondent could not be accommodated. Same is the position in respect of other 8 districts which falls within Belgaum Division.
Per contra, 1st respondent who is appearing in person submitted that, the recruitment is made on the basis of Division whereas, the appointment is made on the basis of District. The applicability of the roster at the time of appointment on the basis of District, is illegal. If out of 183 posts which are filled up on division basis, if the roster is followed, 9 posts should have been earmarked for persons with physical disability. It is by wrong interpretation of the Government Orders, the petitioner has been denied appointment.
In the light of the rival contentions, the point that arise for consideration is, whether the recruitment made by the petitioners is in accordance with law?
Disability has drawn the attention of the world wide community. Economic development is central to considerations of personal independence, self-edification and self-esteem. The provision for employment, entrepreneur opportunities and social security benefits would go a long way in making a person self-reliant. The job insecurity or joblessness more often results in lot of foreboding even among the non-disabled employees and this is more so among the persons with disabilities. The persons with disabilities hates to avail benefits in the name of charity, alms, pity or sympathy. They want the society and Government to recognize their talent, ability and their basic right to work at par with other human beings. The concept of integration of persons with disabilities into mainstream of society is the principle underlining the law dealing with disabled persons.
The Economic and Social Commission for Asia and Pacific Region, convened a meeting at Beijing, in December, 1992 to launch the Asian and Pacific Decade of Disabled Persons, 1993-2002. In that meeting the proclamation on the Full Participation and Equality of people with disabilities in Asia and Pacific Region was adopted. India being a signatory to the above said proclamation, it was obligatory to enact suitable legislation.
The Constitution of India though does not specifically prescribe discrimination on the ground of ''disability'' but .contains non-discriminatory provisions, which guarantee equality and equal opportunities for all citizens. The Act is a principal legislation in India, which for the first time recognised the need to integrate persons with disabilities with the mainstream of society by some normative action. The State has a very important role to play through its legislations, policies and rules to provide employment to persons with disabilities. Viewed from the real context, it is not limited to mere pursuit of gainful occupation, but a fundamental question of human rights, social justice and economic independence.
Accordingly, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, for short, hereinafter referred to as the ''Act'' was passed. The primary object of this Act was to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities. Yet another object was to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities.
Chapter VI of the Act deals with Employment. An obligation is cast u/s 32 of the Act on the appropriate Government to identify posts in the establishments, which can be reserved for the persons with disability and periodical renewal of the list of posts identified, is to be done. Section 33 of the Act deals with reservation of posts. 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. Section 36 provides where in any recruitment year any vacancy u/s 33, cannot be filled up due to non-availability of a suitable person with disability or, for any sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year. An obligation is cast on the employer to maintain records in relation to the persons with disability employed in the establishment u/s 37 of the Act. Section 38 provides schemes for ensuring employment of persons with disabilities. In fact, Section 41 provides for incentives to employers both in public and private sectors to ensure that at least five percent of their work force is composed of persons with disabilities. The appropriate Governments shall by Notification make schemes to provide aids and appliances to persons with disabilities.
The State took a policy decision to have reservation with a view to fulfil its constitutional objective as also its commitment to international community. A disabled is a disabled. They constitute a special class. The State in terms of Article 16 of the Constitution may make two types of reservations. Vertical and Horizontal. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women etc., under Article 16(1) and 15(3) are "horizontal reservations". Horizontal reservations cut across the vertical reservations. Now the Government has provided 5% reservation to disabled persons in its services.
The legislative mandate and the constitutional obligation has to be kept in mind while giving effect to law. The law enforcing agencies are duty bound to follow the law, and it is not open to them to allow their bias to defeat the lawful rights of the disabled persons. The disabled persons too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families, but would create larger and greater problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country, it is those laws which give preference to these persons who need the protection of the society and the State, speaks about the standard of a civilized State in the comity of nations.
The Apex Court in the case of Mahesh Gupta and Ors. v. Yashwant Kumar Ahirwar and Ors. AIR 2007 SCW 5683, dealing with reservation of disabled persons has held as under:
The State in terms of Article 16 of the Constitution 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. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefore 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 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.
xxx xxx Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates.
The Supreme Court in the case of Bhagwan Dass and Anr. v. Punjab State Electricity Board 2008 AIR SCW 534, has following things to say:
We understand that the concerned Officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the Officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.
Annexure-A is the Notification dated 1.9.2007 by which applications were called for in the Belgaum Division for direct recruitment of teachers. It categorically states that there are 8 education Districts in Belgaum Division and for recruiting eligible candidates for the posts mentioned therein by way of direct recruitment the Notification is issued. It is also mentioned that the recruitment would be done in the light of the Karnataka Education Department Services (Department of Public Instruction) (Recruitment) Rules, 1967 and the amendments carried to the same on 21.5.1988, 24.6.2003 and 17.6.2006 and also in accordance with the reservation which is prevailing. Thus, candidates who are selected are appointed District wise (selection is Division wise, appointment is District wise). The said fact that the selection is Division wise and appointment is District wise is reiterated in more than one place in the said Notification. Annexure-B is the roaster providing for reservations. Annexure-C is the horizontal reservation showing the reservations to persons who are eligible for reservation under Article 16(1) read with 15(3) of the Constitution of India. Annexure-D categorically states that 5% reservation is made in case of physically handicapped and in the roaster at Annexure-A they are to be filled at Points 19, 39, 59, 79 and 99. Annexure-E is a Government Order dated 4.1.2008 revising the horizontal reservation dated 22.11.2002 providing for reservation to disabled at Point No. 4 instead of Point No. 19. Now, the question is whether the selection authority has kept in mind the Act, the Rules, the Notification, the roasters and Government Orders in selecting and appointing the persons.
A perusal of the impugned order shows that the Notification was issued Division wise in respect of all the four divisions in the State of Karnataka. The total number of posts to be filled up under the four Notifications is 686. 5% of 686 would come to 34 posts. Therefore, in respect of 34 posts persons with physically disabled should have been selected and appointed. Out of the 686 posts 202 posts falls within Gulbarga Division; 196 posts in Mysore Division; 200 posts in Belgaum Division and 78 posts in Bangalore Division. Out of the 202 posts in Gulbarga Division, where 10 candidates belonging to physically handicapped category should have been selected, only 2 posts are filled up under the said category. In Mysore Division also they should have filled up 10 posts whereas only 1 post is filled up. In Belgaum Division and in Bangalore Division not even a single post is filled up by physically handicapped person. Thus, in all as against 34 posts only 3 posts are filled up by the physically handicapped persons.
The reason given is though recruitment was done on Division basis, appointments are made on District basis. The number of posts to be filled up in respect of each District was only 19, 28, 24, 22, 22, 23, 23. Either under the reserved category or under the general category the points fixed for physically disabled was 19 and, therefore, in none of the Districts there were posts to fill up these category of persons. In Belgaum Division though 183 posts had to be filled up, not one person belonging to the physically handicapped was able to get employment. The second respondent in this case hails from Chikodi, where the total number of posts to be filled up was 28 out of which 14 is reserved and 14 candidates in the general category and in both the categories the point fixed was 19 and, therefore, he could not be accommodated. In fact the Government was conscious of this anomaly in the roaster which they have prepared. Therefore, on 4.1.2008 as per Annexure-E they have modified the roaster. Now the point fixed for physically disabled is at Point No. 4 in both the categories. However, the said roaster is not applied to the present recruitment on the ground that the roaster came into force subsequent to the Notification and it is only prospective.
Therefore, the authorities by such interpretation, have successfully nullified a parliamentary mandate and a constitutional obligation. Any rules, circulars, Government Orders, issued should be to implement this mandate of law and give effect to the constitutional obligation. If any such rule, regulation, order, is made which is contrary to the constitutional provisions or the statutory provisions it would have no effect and it cannot be enforced in a Court of law and it has to be ignored.
In the instant case, the Notification categorically states recruitment by Division wise. Therefore, even by adapting the existing roster at Point No. 19, 5% among 183 candidates i.e., 9 candidates belonging to physically disabled category should have been recruited and appointed. It is after recruiting 183 persons, appointments could have been done District wise. It is at the stage of recruitment the roaster is to be operated and not at the time of appointment. Thus, by operating the roaster at the time of appointment, which is contrary to the terms of the Notification itself, authorities have disobeyed the mandate of law. It only shows the mind set of the bureaucracy which is expected to implement the law. When the legislature with the laudable object passed the law, thus meeting not only the constitutional obligation, but also the international obligation, the benefit of law given to the persons to whom it was meant is denied by such obstructive tactics adopted by the bureaucracy. It is this approach which is found fault with by the commissioner who is the authority, who is expected to see that this legislative mandate is properly implemented in the State. He was only performing his statutory obligation. It is when the executive misinterprets the law and negates the rule of law, thus depriving the benefit of the law, it becomes a solemn duty of this Court to strike out the said executive act and direct them to give effect to the legislative mandate. Therefore, the action of the first respondent-Commissioner is strictly in accordance with law and cannot be found fault with.
Now the question is what is the order to be passed to implement the mandate of law.
The Commissioner for Persons with Disabilities after noticing that the recruitment conducted by the State is illegal in so far as it violated the State policy and the Government Order granting 5% reservation to the persons with disabilities, directed the State to withhold the recruitment process till the illegality pointed out is set right. However, under the cover of the interim order granted by this Court on 30.7.2008 for a period of three months, the State has proceeded to publish the final list of candidates. In the .said final list published, it is made clear that "selection is subject to the final decision of this case". Therefore, all those persons who are recruited and appointed under the aforesaid final list knew, that their appointment is subject to the decision of this Court. When the petitioner is unable to show any illegality in the impugned order, consequently the petition is to be dismissed on merits, the interim order granted cannot stand independently of the final order. It is settled legal position that an interim order is granted in aid of the main relief. When the party is not entitled to the main relief, consequently any benefit accrued or granted in pursuance of the interim order has no legal effect. At the same time the total number of persons recruited and appointed in so far as Belgaum Division is concerned is 183. It is only 9 posts out of 183 posts should be reserved for physically handicapped persons. Therefore, in so far as recruitment and appointment of teachers for 174 posts is concerned, there cannot be any challenge. The challenge could be only in respect of 9 posts provided there are 9 eligible candidates. Therefore, it is not necessary to hold that in view of the dismissal of the Writ Petition, all the appointments made are illegal. Only appointment of 9 posts could be illegal, if there are nine eligible physically handicapped applicants. In those circumstances, the justice of the case would be met, by either directing the State to remove 9 persons from the aforesaid list and accommodate persons with physical disability who are otherwise eligible in the said list or create 9 additional posts and accommodate these physically handicapped candidates. Hence, I pass the following order:
(a) Writ Petition is dismissed.
(b) Appointment of 9 persons according to the final list published in the event of there being 9 eligible physically handicapped persons who had applied against the Notification, is hereby set aside.
(c) It is open to the State to identify 9 candidates whose names should be removed from the final list and appoint the first respondent and others who are eligible to be appointed under the reserved category of physically handicapped persons
or
In the alternative create 9 additional posts and appoint the first respondent and others who are eligible under the reserved category of physically handicapped to the said post.
(d) It is made clear that if there are no 9 applicants under the reserved category of handicapped persons, the number of posts to be so filled up could be proportionately reduced.
(e) The petitioner is directed to pay the cost of Rs. 5,000/- to the first respondent.