Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(SC) 1128

2007(6) Supreme 276
Supreme Court of india
(From Madhya Pradesh High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
Mahesh Gupta & Ors. — Petitioners
versus
Yashwant Kumar Ahirwar & Ors. — Respondents
Appeal (civil) 3984 of 2007
[Arising out of SLP (Civil) No. 16291 of 2004]
with
Civil Appeal Nos. 3985 and 3986 OF 2007
[Arising out of SLP (Civil) Nos. 19391 and 20321 of 2004]
Decided on : 30-08-2007

Counsel for the Parties :
For the Appellant :Sushil Kumar Jain, H.D. Thanvi, Sarad Singhania, Puneet Jain, Christi Jain, Piyush Jain, Ms. Pratibha Jain, Raj Kumar Gupta, Ms. Mridula Ray Bhaardwaj and Ms. Vibha Datta Makhija, Advocates.
For the Respondent:Mrs. B. Sunita Rao, Rajesh Srivastava and B.S. Bandhit, Advocates.

important point
The 50% limit for reservation dos not take within its purview the reservation for women or handicapped persons.

Headnote:Service Law – Reservation for handicapped persons – State issuing advertisement for filling up vacancies of reserved quota posts – Only because the word “handicapped” was not mentioned in the heading of the advertisement, the State, on initiation of contempt proceeding, taking a stand that the advertisement was not for them and terminating certain appointees – Although reservation up to 50%, has been held to be permissible, reservation for women or handicapped persons would not come within the purview thereof – Further, the decision to terminate the concerned employees was in the teeth of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Impugned judgment set aside and the terminated persons directed to be continued in service with back wages. (Paras 12 to 14)
       1992 Supp (3) SCC 212 : AIR 1993 SC 477 – Referred.
       Facts of the case:
       The State took recourse to a special drive for filling up the vacant posts in the reserved category candidates, viz., Scheduled Castes, Scheduled Tribes and Backward Classes. To this end, a circular was issued. Pursuant to or in furtherance of the said circular letter, the Commissioner, Chambal Division, Morena issued an advertisement
       Appellants who were candidates for the posts of Assistant Teacher (Science) belonged to the general category. They, however, suffer from disability. They were handicapped persons. Respondent No. 1 Yashwant Kumar Ahirwar, a handicapped person but also belonging to the reserved category candidate was not selected.He approached the Administrative Tribunal. The Administrative Tribunal by a judgment and order dated 27.11.1999 opined that he had no right of appointment on the post of Assistant Teacher (Science) having not been selected by the Selection Committee. Order of the Tribunal was set aside by the High Court.
       Findings of the Court:
       Although reservation up to 50%, had been held to be permissible, reservation for women or handicapped persons would not come within the purview thereof. Termination of the concerned appointees held illegal and the appointees held entitled to continuation in service with back wages.
       Result: Appeals allowed with cost.

judgment

S.B. SINHA, J. —

1. Leave granted.

2.Interpretation of an advertisement in the light of a circular of the State of Madhya Pradesh as regards recruitment of handicapped persons to some posts is in question in these appeals which arise out of judgments and orders dated 1.5.2003 and 23.08.2004 passed by the High Court of Madhya Pradesh in Writ Petition No. 40 of 2000 and M.C.C. (Contempt) No. 222 of 2003.

3. The State took recourse to a special drive for filling up the vacant posts in the reserved category candidates, viz., Scheduled Castes, Scheduled Tribes and Backward Classes. In a circular letter issued on 29.03.1993, it was stated:

“SUBJECT :SPECIAL DRIVE FOR FILLING UP RESERVED POSTS FOR HANDICAPPED PERSONS

The State Government has reserved 3% posts (1% for blinds and 2% for other physically handicapped persons) for disabled persons. By the Notification of the State Government vide No. 50-2532-1(3)/80 dated 12th of February, 1991, exemption for 10 years in the prescribed age limit has been granted to the candidates belonging to blind, dumb, deaf and disabled persons eligible for services for the posts of the categories of 3rd and 4th grades, to be filled in the services of the State Government through Employment Exchanges (copy enclosed). In the orders of the Finance Department No. L-17-1-87-B-7-4 dated 4th of June, 1987 in paragraph 2, exemption has also been granted from the ban imposed for appointment in the government services, prescribed only for handicapped persons against the reserved posts.

It has been brought to the knowledge of the State Government that this quota for the handicapped persons is not being fulfilled due to absence of knowledge about reservation and procedural complications. Extending the full benefit against the reserved posts in the government services as per the prescribed quota for the handicapped persons, cannot be determined as a fair situation.”

It was inter alia directed:

“In this connection, it is worth mentioning that for the successful conduct of the aforesaid campaign and for the implementation of the said policy of the State Government, call for the names from the Employment Exchanges, for the vacancies at District level, the District Collector, and for the vacancies at Divisional level, the Divisional Commissioner, and for the vacancies at Heads of the Department, the concerning Heads of Department have been authorized. These authorization shall be limited only up to the posts of 3rd and 4th grades. So far as the question about 2nd Grade is concerned, this authority shall vest with the State Government, but the procedure regarding examination, interview etc., could be conducted at the level of the Head of the Department.”

4. Pursuant to or in furtherance of the said circular letter, the Commissioner, Chambal Division, Morena issued an advertisement, the heading whereof is as under:

“SPECIAL RECRUITMENT DRIVE FOR FILLING UP THE VACANT RESERVED POSTS OF SCHEDULED CASTE AND SCHEDULED TRIBE:”

However, while providing for the details of the posts, it was categorically laid down:

Name of Post (S)Vacant PostsMinimumPay -

SC ST HandicappedQualificationsScale

1. Higher Grade- 20 02Graduate in relevant1400 -

Teachers =Subject passed in 2nd2640

English - 14 andDiv. & Trained

Sanskrit - 8(B.Ed. B.T.C.)

2. Industries- 17 02Hr. Sec. Exam1400 -

Craft Teacher(Intermediate) &2640

Diploma in concerning

craft by an Institute

recognised by the Government

3. Assistant- 08 03Hr. Sec. Exam (Intermediate)1200 -

Teacher (Science)Science with the Subjects,2040

Physics, Chemistry, Biology

4. Artists-cum-- 01 -Graduate Degree in Arts from1400-

J.J. School of Arts and one2340

year experiecne in

commercial photography

5. Dietician01 - -M.Sc. (Home Science) or1400-

B.Scs. (Home Science) - 2nd2340

Division & essentiality of

Food craft subject

6. II Gr. Clerk- 01 -1. Hr. Secy. or High School 950-

Passed1530

2. Hindi Typing passed from

M.P. Board

7. Steno-Typist- 05 -1 & 2 ==ditto=950-

3. Knowledge in1530 +

8. Stenographer- 05 -1

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2007 Supreme(SC) 1128

important pointThe 50% limit for reservation dos not take within its purview the reservation for women or handicapped persons.

Cases Referred (1)

important point
The 50% limit for reservation dos not take within its purview the reservation for women or handicapped persons.