Section 39 Applicable only to Employment Posts in Institutions

Kumari Rekha Tyagi vs. Vice Chancellor, University of Delhi and others

Filed under: Section 39 of the Persons with Disabilities Act, 1995
Article 226 of the Constitution of India, 1950
Petitioner: Kumari Rekha Tyagi
Respondent: Vice Chancellor, University of Delhi and others
Citation:9 3 (2001) Delhi Law Times 813 (DB)
Court: In the High Court of Delhi
Judges: Arijit Pasayat and SK Mahajan

This case was referred by the lower Court seeking clarification on the applicability of a certain law in question.

Facts

Kumari Rekha Tyagi had filed a case for admission (against reservation for persons with disabilities) to an educational institution under the provisions of the Persons with Disabilities Act. To clarify the law in this area, the Judge had referred the issue to a Higher Bench.

The main issue in this case was the scope and ambit of Section 39 of the Act viz. whether this Section, which deals with reservation for disabled persons, is applicable to educational institutions or is it relatable to service/employment.

Arguments made on behalf of Rekha

The lawyers for Rekha argued that though relevant Section forms a part of Chapter VI dealing with ‘employment’, it is clearly applicable to educational institutions as well. Merely because a chapter has been given a heading in the Act, it does not determine legislative intent.

Arguments made on behalf of the University of Delhi

The lawyer for the University of Delhi argued that had the legislature intended to apply this Section to educational institutions, it would have been in chapter V that distinctly relates to ‘education.’ Further, it was contended that except for Section 39, all other provisions in Chapter VI refer to employment in one context or another. Therefore, the ambit of this section could not be presumed to extend to reservation of seats for admission to educational institutions as well.

Observations of the Court

The Court noted the arguments of both the parties and examined Sections 32 and 33 of the Act, which deal with identification of the posts that can be reserved for disabled persons. The guidelines for the reservation of such posts were also scrutinized. In addition, the judges commented on the definition of ‘disability’ as per section 2(i) of the Act. It was observed that no guidelines had been stated in the Act regarding the type of disability that was admissible to a particular institute.

Further, it was held that Section 39 was not applicable for reservation of ‘seats’ for admission, its ambit was limited to ‘posts’ for employment in Government or Government-aided educational institutions for persons with disabilities.

Held:The matter was placed before the previous Judge for disposal.

Sections Referred:

• Section 39 of the Persons with Disabilities Act, 1995
• Article 226 of the Constitution of India, 1950

Cases referred:

• Naveen Kumar A vs. University of Delhi, CWP 4657/2000, decided on 24.11.2000