Minimum Percentage of Disability Fixed under the Act

Shiv Kumar Singh Yadav vs. State of U.P. and Others

Filed under: Sections 2, 3(1) and 5 of the Uttar Pradesh Service (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex- servicemen) Act, 1993
Sections 2, 32 and 33 of the Persons with Disabilities Act, 1995
Article 254 (2) of the Constitution of India
Appellant: Shiv Kumar Singh Yadav
Respondent: State of U.P. and Others
Citation: 2001(3) AWC 1972: [2001(90) FLR 473], (2001) 2 UPLBEC 1855
Court: In the High Court of Allahabad
Judges: S.R.Singh & D.R.Chaudhary

Facts

Shiv Kumar Singh Yadav, a person with 20% physical disability applied for the post of Asst. Prosecuting Officer in response to a notification issued by the U.P. Public Services Commission. He requested for consideration of his candidature on two counts, as both OBC as well as a physically handicapped candidate.

After the written examination, he was called for interview. When the results were declared, his name was listed against the final list in OBC – disability category. There was a proviso scripted that his selection was provisional as the OBC certificate was not in conformity with the prescribed Performa.

In the course of the interview he was asked to submit the certificate and according to Shiv Kumar, he had submitted it. However, the Commission rejected his candidature since there was a person who had scored more marks than he had in the OBC category and also on the ground that Shiv Kumar’s disability was 20% which was below the stipulated 40% minimum percentage required to avail the benefits. Challenging this decision, he filed the present petition.

Observations of the Court

The Court examined the amended provisions of the U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 under which Shiv Kumar had made his claim.

The Court observed that the amended provisions of the U.P Act would not apply to him to this case and therefore had to be dealt with the provisions as it existed before amendment. It also observed that the Act did not specify a minimum degree of disability and therefore would mean that he would be entitled to the benefits of the Act.

The provisions of the Central Act (Persons with Disabilities Act) were also examined which stated that the disability has to be a minimum of 40%.The question that was being considered was whether the Central Act had precedence over the State Act.

Further, it referred to the provision in the Constitution of India, which states that any provision that is in contravention with the Central Act, the Central Act would prevail and therefore, Shiv Kumar could not be considered as disabled.

With the above observations, the Court dismissed the petition.

Sections Referred:

  • Sections 2, 32 and 33 of the Persons with Disabilities Act, 1995
  • Article 254 (2) of the Constitution of India

Cases Referred:

  • State of Rajasthan and Others vs. Vatan Medical and General Stores and Others, JT 2001(4) SC 193

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P. Rajaprabaharan rep.by father and natural guardian Mr. D. Pugazhenthi vs. The Secretary to Government Higher Education Department

Filed Under: Sections 2 & 39 of the Persons with Disabilities Act, 1995
Appellant: P. Rajaprabaharan rep.by father and natural guardian Mr. D. Pugazhenthi
Respondent: The Secretary to Government Higher Education Department
Citation: AIR 2005 Mad 346
Court: In the High Court of Madras
Judges: Markandey Katju and F.M. Ibrahim Kalifulla

Facts

Rajaprabharan, a physically disabled person with 48% disability, applied for admission to the M.B.B.S Course for the academic year 2004-05 against the seats reserved for the physically handicapped candidates.

His claim was rejected on the ground that the prospectus issued by the Director of Medical Education provided, that candidates with 50% to 70% disability alone were entitled for consideration under the reserved quota.

Rajaprabharan filed a Writ Petition challenging the same. The Single Judge dismissed the petition stating that the State government had the power to prescribe higher level of disability than the one prescribed by the said Act. Aggrieved, Rajaprabharan filed the present appeal.

Observations of the Court

The Court analyzed the relevant provisions of the Persons with Disabilities Act to see if Prabhaharan’s disability fell within the definition of disability under the Act. The Court observed that the Section 2(t) of the Act lays down the minimum percentage of any disability to enable a person to claim and avail the benefits of reservation.

Based on this the Court expressed disagreement with the order of the Single Judge and held that the State Government could not prescribe a higher level of disability than the one prescribed under the said Act stating that the executive could not override the Legislature.

With the above observations, the Court held that Prabhaharan was entitled to the benefits of reservation and that the prospectus prescribing a higher level of disability for consideration under seats reserved for the physically disabled persons was invalid.

Considering that the course had begun several months back and since it would not be appropriate to give mid term admission, the Court directed that Prabhaharan’s application would have to be considered for the next academic year and also to provide him the benefits of reservation. Therefore, the order of the single judge was kept aside and the appeal was allowed.

Sections Referred:

  • Sections 2 & 39 of the Persons with Disabilities Act, 1995

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