Implementing Reservation Rules

Pushkar Singh vs. University of Delhi

Filed under: Article 226 of the Constitution of India, 1950
Persons with Disabilities Act, 1995
Petitioner: Pushkar Singh & Ors
Respondent: University of Delhi
Citation: 0 (2001) DLT 36
Court: In High Court of Delhi
Judge: AK Sikri

This petition is filed against the Delhi University, questioning the failure of the authorities to implement a resolution to appoint disabled people in teaching posts.

Facts

The Executive Council of Delhi University, through a resolution in 1994, provided for 3% reservations for qualified blind and orthopedically handicapped candidates in teaching posts in Delhi University and the colleges affiliated to the University. It provided that, at least one disabled person should be appointed in each college each year.

Pushkar Singh and the others who filed this case were fully qualified individuals who were visually or orthopedically handicapped, and applied for teaching posts in the University and/or its affiliated colleges. They stated that the University and the colleges (except for one college) had failed to implement the resolution and that despite receiving applications from several handicapped candidates, had not appointed even a single person during the academic year 1994-95.

Before filing this petition, Pushkar Singh and others had applied to different colleges claiming benefit of the reservation as per the resolution. In addition, the colleges were specifically informed about the mandatory nature of the resolution. They also made repeated representations to the Vice-Chancellor (VC) of the University.

Responding to the representations, the VC sent a letter to the principals of all colleges directing them to implement the resolution. However, the colleges ignored the directions compelling Pushkar Singh to make more representations.

The group had also approached the Delhi University Teachers Association and threatened the VC to go on a mass hunger strike. When all their attempts to convince the colleges to implement the resolution failed, they sought the intervention of the Court.

Arguments made on behalf of the University:

It was argued on behalf of the University and colleges that the posts advertised for had been filled and therefore any directions for compliance should be made applicable with respect to future vacancies.

It was also argued that as per Section 32 of the Disabilities Act, it was the responsibility of the Government to identify posts to be reserved for persons with disabilities and so long as it was not done, compliance was not possible.

Arguments made on behalf of Pushkar Singh:

On behalf of Pushkar Singh and others, it was argued that they should not be made to suffer because the University and colleges had failed to comply with their own decision and the requirements under the law. Further, the Court had during the preliminary hearing passed an order that any appointment would be subject to the decision of the writ petition.

Observations of the Court

The Court observed that the University had done nothing concrete to implement the decision taken six years ago of reserving seats for visually and orthopedically disabled persons. The Court observed that the authorities to make all efforts to achieve the objects of the legislation.

The University and the colleges are bound to do so in view of their own resolution as well as the provisions of the Disability Act. On the point as to when the appointment should be made, the Court opined that if the University/Colleges have made appointments, which are subject to the decision of the writ petition, they are bound to abide by it.

The Court allowed the petition in terms of the following directions to the University/Colleges -

  1. To comply with the Resolution of the Executive Council of the Delhi University from the date of the resolution.
  2. To calculate the number of seats to be reserved for visually and orthopedically handicapped persons and the number of posts to be earmarked subject wise within a period of two months
  3. Following this, steps should be taken to fill up the posts adopting the selection procedure meant for filling up of such posts within six months.
  4. While implementing the decision ,if enough posts are not available the University had the option

    1. to create a supernumerary post or
    2. terminate the services of the appointments made subject to the decision of writ petition

  5. To fill the posts that was to be made available in 1994-95 within two months and to consider Pushkar Singh and others favourably for such posts.

Sections Referred:

  • Article 226 of the Constitution of India, 1950

Cases Referred:

  • State of UP vs. Dr. Dina Nath Shukla & another, AIR 1997 SC 1095

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The National Federation of Blind vs. State of Maharastra and Ors

Filed under: Sections 3, 13, 32, 33, 34, 36, 37 & 38 of the Person with Disabilities Act, 1995
Appellant: The National Federation of the Blind
Respondent: State of Maharashtra and Ors.
Citation: 2005 (1) Bom CR 740
Court: In the High Court of Bombay
Judges: A.P. Shah and S.U. Kamdar

Facts

The National Federation of the Blind is a trust that has been running a federation for the welfare, rehabilitation and over all development of visually impaired persons. In the current petition this Federation requested the court to invoke a Public Interest Jurisdiction to help this class of citizens. One of the contentions raised in the petition was that Section 33 of the Act specifically provides for reservation for the visually impaired or disabled persons in government and/or semi government organizations and has imposed a duty on the government to reserve a percentage of posts for them.

Section 37 of the Act casts a duty on every employer to maintain such records in relation to the persons with disability, employed in various establishments. The main grievance of the Federation was that the government had not been able to implement the aforesaid provisions effectively even after a considerable lapse in time since the enactment of the legislation.

In May 2003, the Commissioner for Disabilities, Maharastra, addressed a letter to various authorities pointing out that there is a reservation to the extent of 3% for handicaps in all services of the Government of Maharastra and further directed all authorities that they should supply necessary information for the purpose of reserving posts under every category.

The Government of Maharastra introduced a special drive for recruitment of physically disabled persons for filing up the backlog of vacancies. This special drive was introduced to see that in fact the reservation for physically disabled in services was implemented. The Federation wrote to the Commissioner of Nashik Municipal Corporation, pointing out about backlog of 31 posts reserved for disabled persons and requesting to take the necessary steps immediately.

Through its General Secretary, the Federation further made representations to the Collector, Nagpur, requesting for filling up of the backlog of vacancies meant for the visually impaired. It also made a representation to the Chief Minister requesting him to take necessary action against the concerned person who had not been filling up the vacancies as per the resolution.

Then in August 2003, the Employment Exchange at Satara informed the Federation that there were a very negligible number of vacancies available for visually impaired persons and that the Federation instead of seeking employment start some self-employment scheme for them. Then a representation was made to the Labor and Employment Ministry of the State of Maharastra requesting them to furnish details of the jobs reserved for visually impaired persons and action taken by them under the Act.

An additional representation was made to the Director of Special Employment Exchange, Mumbai requesting them to provide information about visually impaired persons employed through the said Employment exchange and other relevant information. Then in November, the Directorate of Census Operation, Maharastra, replied to the Federation informing that Census for the population of visually impaired and physically handicapped persons had not yet been carried out and therefore exact figures were not available.

In the aforesaid facts and circumstances of the case, the present Writ Petition was filed seeking various directions for implementation of the said Act of 1995 particularly in reference to the reservations of 3% provided there under

Observation of the Court

The Court observed that though the present petition was based essentially for the visually impaired persons, it was inclined to enlarge in scope by including disabled and otherwise physically handicapped persons. This was so because the 3% reservation combined various handicapped categories. After going through the various provisions of the Act the Court issued the following directions:

  1. That the Commission/Committee constituted by the State Government for the purpose of identification of posts in various government and semi-government organizations should have to be reconstituted. It would be headed by a person closely connected to one of the leading organizations of handicapped institutions or a person who was himself suffering from such a handicap provided he/she was qualified and eligible to head the said Commission. It was further directed that on the said Commission, there shall be an officer from the Law and Judiciary Department of the State Government whose responsibility would be to see the effective implementation of the provisions of the Act is carried out by the Commission. It was also directed that there should be a representative from the Social Welfare Department and representatives of three of the public sector enterprises or semi-government organizations who would with immediate effect undertake the job of identification of the posts or these categories of handicapped persons which includes blind, deaf and dumb and other handicaps. Further there shall be 3 members from NGO which are carrying on work in the field of physically handicapped. While doing so, the Commission would not restrict the identification of the posts only to the lower categories such as lower division clerk and upper division clerk but would have reservation at roster point 1. 34 and 67 at every stage where there was recruitment to be effected.
  2. Respondents Nos. 2 to 7 (names not mentioned) were directed to identify the posts in their organizations at the roster point 1, 34 and 67 at every layer of employment and in various categories including in the category of officers and take immediate steps and action to fill in the said identified posts. Such posts were to be identified by respondents Nos. 2 to 7 on or before a specified date and was to be immediately thereafter filed by the respondents in the Court before the next date of hearing of the present pension.

The petition was adjourned for further direction if necessary.

Sections Referred:

  • Sections 3, 13, 32, 33, 34, 36, 37 & 38 of the Person with Disabilities Act, 1995

Cases Referred:

  • A.I Confederation of the Blind and Anr vs. Union of India and Anr, 2002 (3) SCALE 397 Javed Abidi vs. Union of India and Ors 1999 SC 512

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Somak Das vs. State of West Bengal

Filed under: Section 33-Persons with Disabilities Act, 1995
Appellant: Somak Das
Respondent: State of West Bengal
Citation: (2005) 2 CALLY 465 (HC)
Court: In the High Court of Calcutta
Judge: V.S. Sirpurkar and Ashoke Kumar Ganuly

This case pertains to the selection and appointment of Somak Das in the West Bengal Civil Services (Judicial) 2003.

Facts

Somak Das appeared for the necessary tests and admittedly cleared them for a post in the West Bengal Civil Services. He had made clear that he was a physically challenged candidate. He was however not selected and, therefore, he approached the Court by way of a Writ Petition wherein he pointed out that no reservation had been provided to the disabled as should have been according to the terms of Section 33 of the Persons with Disabilities Act, 1995.

The Court held that Somak had cleared the selection test, and thereafter had been called for the interview, which he failed to clear. Thus, it was evident that he had participated in the selection process as a general candidate and therefore, he could not turn back and find fault with the selection process. The Judge accordingly dismissed the Writ Petition against which Somak filed the present appeal.

Arguments made on behalf of Somak

It was argued on behalf of Somak that he was a physically challenged person and that no reservation had been provided to him in the West Bengal Civil Services. It was further argued that due to reservation not being provided to the physically challenged persons in, the entire selection process had been rendered illegal on that score.

There were 141 vacancies, out of which 103 were for the general category, 13 for scheduled caste, 10 for scheduled tribes and 7 for backward classes. Beyond these, there did not appear to be any reservation. Further, the lawyer stated that since Somak had tick-marked they entry under ‘PH’ (Physically Handicapped), it was obvious that the he had clearly stated that he was a physically handicapped person but had not claimed for any relaxation of age on that account

Observations of the Court

The Court observed that in not reserving any posts for physically disabled candidates as per the mandate of Section 33 of the Persons with Disabilities Act, a procedural irregularity has been committed. It was held that the advertisement for the post was undoubtedly a defective advertisement and non-reservation for the category ‘physically handicapped persons’ would amount to an inherent error.

It was also stated that Somak had scored above the benchmark so far as the written test and the oral interview were concerned. Besides, his score was 47%, which was clearly above the 40% required for being included in the merit list.

Further, it was held that Somak’s position on the merit list being at number 166 and there being only two physically handicapped candidates, including Somak, both should have been selected had there been any reservation for them. For these reasons, the appeal was allowed and directions were given to appoint them to the post sought for.

Sections Referred:

  • Section 33 of the Persons with Disabilities Act, 1995

Cases Referred:

  • Madan Lal vs. State of J&K, 1995 (3) SCC 486;
  • OmPrakash Shukla vs. Akhikesh Sukla, 1986 SCC (supp.) 285;]
  • Union of India vs. Chandrasekharan, 1998 (3) SCC 694;
  • Raj Kumar and Ors. vs. Shakti Raj and Ors., 1997 ?(9) SCC 527

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Km. Archana Pandey vs. State of U.P. and Ors

Filed under: Section 33 of the Persons with Disabilities Act, 1995
Appellants: Km. Archana Pandey
Respondent: State of U.P. and Ors
Citation: 2004 (4) AWC 3264:2004(102) FLR 821
Court: In the High Court of Allahabad
Judges: M. Katju and Umeshwar Pandey

Facts

Km. Archana Pandey, a blind student secured a first division in every examination from High School to M. Phil. She had done her M.A. and M. Phil from Delhi University. She was the first blind student in the entire country who had cleared the NET examination of the U.G.C. Subsequently, she applied for the post of Lecturer in music but was not selected. Aggrieved, she filed this Writ Petition seeking the implementation of the provisions of the Persons with Disabilities Act.

Arguments made on behalf of Archana

It was argued on behalf of Archana that the Disabilities Act was enforced in the year 1996 but even after eight years Section 33 of the Act remained a provision on paper and no assistance had been given to the real disabled persons who were in dire need of employment. It was alleged that since the enforcement of the Act, not even a single candidate from the handicapped category had been appointed as a Lecturer in a degree college under the U.P. Higher Education Service Commission Act.

Archana who had applied for appointment as a Lecturer in Music (Vocal) alleged that though she was fully eligible and entitled to be called for an interview, the Commission arbitrarily had not called her and hence she had been compelled to file a Writ Petition & by an interim order, she was directed to be interviewed provisionally. It was alleged that though she performed excellently in the interview, she was not selected while a candidate with a lower merit as compared to her was.

Arguments made on behalf of the State

It was argued on behalf of the State that seven posts of Lecturers in Music were advertised, five in the general category and two in the S.C. Category. It was further stated that there could not be any reservation for the handicapped category because the reservation rule permitted only 1% quota. Since there were only five posts in the general category, there could not be any reservation. Archana was considered by the Interview Committee as a general candidate but as she did not possess the requisite merit, she could not be selected.

Observations of the Court

The Court held that the stand taken by the Commission was untenable. If this stand was accepted then only if 100 posts were advertised, would a handicapped person be selected. It was held that this could not be the correct legal position, as it would totally frustrate the intention of the Parliament.

It was further held that the total number of Lecturers in Music in all the degree and P.G. Colleges in U.P. had to be calculated and only thereafter 1% quota for blind candidates had to be considered. Further, it was stated that this calculation should be done taking into consideration not merely the vacant posts of Lecturer in Music (Vocal) in U.P. but all the posts (whether filled or unfilled) in Lecturer in Music (Vocal) in U.P. Only after calculation all such posts should the 1% quota for blind candidates be calculated and allotted to those among them who fulfilled the requisite educational qualifications.

It was stated that in the present case there was no dispute that Archana fulfilled the requisite educational qualifications. In fact she was not only held a first division in both M.A. and M. Phil in Music from Delhi University she was the only blind candidate who had cleared the NET examination in India. Hence, the Commission was directed to reconsider Archana’s application and give her the benefit of reservation under the Persons with Disabilities Act, 1995, preferably within a month of the production of a certified copy of the judgment before the Commission.

The Writ Petition was allowed.

Sections Referred:

  • Section 33 of the Persons with Disabilities Act, 1995

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