Identify Posts for Reservation

Dr. Honey Arya vs. Punjab University

Filed Under: Article 14 and 16(4) of the Constitution of India
Sections 32 & 33 of the Persons with Disabilities Act, 1995
Appellants: Dr. Honey Arya
Respondent: Punjab University
Citation: CWP No. 12066 of 1999 Decided on 30.01.2001 (Unreported)
Court: In the High Court of Punjab and Haryana
Judges: R.S Mongia and K.C Gupta

Facts

Dr. Honey Arya was an orthopaedically handicapped person suffering from post-polio paralysis in her right leg, and hip muscle. He could walk only with the support of crutches. She had challenged various advertisements, mainly an advertisement published by respondent Nos. 1 and 2 (name not mentioned) inviting applications for Lecturer in History.

One of the posts, advertised for was in the morning studies and another in the evening studies. The ground of attack was that, in the said advertisement there was no reservation for the physically handicapped persons, which was in violation of the provisions of ‘The Persons with Disabilities Act, 1995.’

Section 33 of the said Act envisaged that every appropriate Government would appoint in every establishment such percentage of vacancies, not less than three per cent of persons or class of persons with disability. Aggrieved, Honey filed the Writ Petition challenging the said advertisement.

Arguments made on behalf of Honey Arya

It was argued on behalf of Honey that the provisions of the Act, especially Section 33, was applicable to the Punjab University and under the provisions of the Act, 3% reservation was required to be made for disabled persons.

It was also argued that the UGC had already conveyed its decision to all Universities regarding reservation in the posts of Lectures for handicapped persons. The decision had been forwarded by the Punjab University to all its Heads of the Departments for information and necessary action.

Observations of the Court

The Court held that it was not clear as to whether the Central Government had identified the posts for the Punjab University which were to be reserved under the Act as required under Sections 32 & 33 of the Act or alternatively, whether the University itself had identified the posts for which, reservation was to be made under the Act, as per the provisions of Section 32. As such no relief could be given Honey, as the posts which were to be reserved had not been identified.

Even if it was assumed that the Lecturer post was one which fell under Section 32 of the Act for the purpose of reservation, in the present case however, no post could be reserved as only one post in the Morning Session and one post in the Evening (which are separate posts) was advertised and if any reservation was made for the disabled, it would amount to 100% reservation.

In these circumstances, it was held that there was no fault in the advertisement and in the selection made by the University. Further, the Court gave directions that the University should undertake the process in accordance with the law for complying with the provisions for the handicapped category so that the object of the Act for which it was enacted was achieved.

The petition was dismissed.

Sections Referred:

  • Article 14 and 16(4) of the Constitution of India
  • Sections 32 & 33 of the Persons with Disabilities Act, 1995

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Ray John Varghese vs. State of Kerala

Filed Under: Sections 32 and 33 of Persons with Disabilities Act, 1995
Appellants: Ray John Varghese
Respondent: State of Kerala
Citation: 2002(92) FLR1039
Court: In the High Court of Kerala
Judges: K.S. Radhakrishnan and K. Balakrishnan Nair

Facts

The Kerala Public Service Commission invited applications for the post of Assistant Motor Vehicle Inspector. Qualification prescribed for the post was a S.S.L.C. Diploma in Automobile Engineering with two years workshop experience and possession of a driving license.

Several persons including Ray John Varghese applied. They were called for a written test and interview. Subsequently a rank list was drawn up in which Ray John was given rank No. 639. 704 persons were listed in the rank list.

There were altogether 60 vacancies. Going by the rank list Ray John did not stand a chance for appointment. He therefore submitted a representation before the State Government stating that he was a physically handicapped person with 40% disability and thus was entitled to get preference for appointment.

For early disposal of the representation, he filed a case, which was disposed off, with directions to the Government to pass appropriate orders. Thereafter the Government rejected the representation; hence, he filed this Writ Petition in the High Court of Kerala.

Arguments made on behalf of Ray John Varghese

It was argued on behalf of Ray that since he was a physically handicapped person with 40% disability he was entitled to get appointment to the post of A.M.V.I on the basis of the provisions contained in the Persons with Disabilities Act, 1995.

According to him, it was mandatory on the part of the Government of identify posts while appointing persons with disability. Placing reliance on Section 33 it was argued that the appropriate government shall appoint in every establishment, such percentage of vacancies not less than 3% for persons with disability, of which one per cent of each shall be reserved for person suffering from blindness or low vision, hearing impairment or locomotor disability and cerebral palsy in the posts identified for each disability.

Arguments made on behalf of state

It was argued on behalf of State that the post of A.M.V.I. is not identified by the Government as one, which could be reserved for persons with disability. The Government Order was made available, by which certain posts had been reserved for physically handicapped persons on the basis of the Act.

Observations of the Court

The Court held that Section 32 of the Act provided that the appropriate Government shall identify posts in the establishments which could be reserved for persons with disability and at periodical intervals not exceeding three years, review the list of posts indentified and up-date the list taking into consideration the developments in technology.

The Court further held that as it was informed by the Government Pleader that the State Government had not so far identified posts of A.M.V.I. as per Section 32 of the Act and since the said post had not been identified by the State Government, Ray could not be given appointment even though he was a person suffering more than 40% disability. He could not be appointed on the basis of the Act. No directions were issued by the court to the Government.

The petition was dismissed.

Cases Referred:

  • State of Kerala vs. Mary Joseph, 2001 (3) KLT 26

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