Sh. Manish Katoch, Sh. Rajesh Rana and Sh. Neeraj Soni vs State of H.P.

Dev Darshan Sud, J

It is undisputed before me that the petitioners in this writ petition are covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (herein after referred to as the Act). Whether reporters of the Local papers are allowed to see the judgment.yes.

The grievance of the petitioners, inter alia, in this writ petition is that the respondent-State is not making recruitment and more especially to the post of Trained Graduate Teachers (T.G.T) in accordance with the provisions of the ''Act''. The petitioners also submit that they are further making distinction/division of disabled persons on the basis of caste etc.

In reply to the petition, the State avers that the process to fill up the posts of twelve Trained Graduate Teachers under the provision of the aforesaid ''Act'' has already been set in motion and that the petitioners have also been considered for this post in accordance with law.

In Mahesh Gupta and Others Vs. Yashwant Kumar Ahirwar and Others, , the Supreme Court while dealing with the provisions of the ''Act'', holds:

The State in terms of Article 16 of the Constitution of India 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.

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. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset, but, as noticed hereinbefore, the vacant posts were required to be filled up for two categories of candidates; one for Scheduled Castes and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidates have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates. It is a travesty of justice that despite the State clarified its own position in its order dated 1.01.2004 and stated that the posts were vacant under the handicapped quota but it completely turned turtle and took a diagonally opposite stand when a contempt petition was filed. In its reply in the said proceedings, reference was made to the aforementioned order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a presumption that as the word "handicapped" was not mentioned in the heading of advertisement they were meant only for Scheduled Caste and Scheduled Tribe candidates. Rule of Executive Construction was given a complete go bye. Reasonableness and fairness which is the hallmark of Article 14 of the Constitution of India was completely lost sight of. The officers of the State behaved strangely. It prevaricated its stand only because a contempt proceeding was initiated. If the State was eager to accommodate the writ petitioner respondent, it could have done so. It did not take any measure in that behalf. It chose to terminate the services of some of the employees who had already been appointed. Such a course could not have been taken either in law or in equity. The State is expected to have a constitutional vision. It must give effect to the constitutional mandate. Any act done by it should be considered to have been effected in the light of the provisions contained in Part IV of the Constitution of India. The State in terms of the provisions contained in Part IV should have given effect to the principles embodied in Article 39 of the Constitution of India. Whereas a reasonable reservation within the meaning of Article 16 of the Constitution of India should not ordinarily exist, 50%, as has been held by this Court in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., reservation for women or handicapped persons would not come within the purview thereof.

Furthermore, when the decision was taken, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "The 1995 Act") had come into force. In terms of the 1995 Act, the States were obligated to make reservations for handicapped persons. The State completely lost sight of its commitment both under its own policy decision as also the statutory provision.

(P.3140 & 3141)

The decision of the Supreme Court does not require any elaboration for the reason that the law declared by it is the law of the land and Article 144 mandates all to act in the aid of the implementation of the order.

In view of the decision of the Supreme Court and the reply filed by the respondents herein before, this writ petition is allowed. A direction is issued to the State to comply with the directions/judgment of the Supreme Court and the State shall ensure that the provisions of the ''Act'' including Section 36 are complied with. The writ petition is disposed of. This judgment does not pronounce on the other points of law as raised in this petition which will be open to the petitioners to urge the same in appropriate proceedings.