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2010 (2) Supreme 433
SUPREME COURT OF INDIA
Altamas Kabir and Cyriac Joseph, JJ.
Syed Bashir-ud-din Qadri — Appellant
versus
Nazir Ahmed Shah & Ors. — Respondents
Civil Appeal Nos.2281-2282 of 2010
(Arising out of SLP(C)Nos.10669-70 of 2008)
Decided on : 10-03-2010
Facts of the Case :
Appellant a person suffering from cerebral palsy was appointed as Rehbar-e-Taleem in UPS, Kanjinag herein in the instant case.Writ petition was filed by respondent a candidate who was placed in the 4th position in the merit list, praying for cancellation of order of the Director of School Education, Kashmir, appointing appellant as Rehbar-e-Taleem in UPS, Kanjinag, and praying that he be appointed as Rehbar-e-Taleem in place of appellant. Said Writ petition was disposed of by High Court quashing appellant’s appointment .
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
It is only to be expected that movement of a person suffering from cerebral palsy would be jerky on account of locomotor disability and that his speech would be somewhat impaired, but despite the same, Legislature thought it fit to provide for reservation of 1% of the vacancies for such persons. So long as the same did not impede the person from discharging his duties efficiently and without causing prejudice to the children being taught, there could, therefore, be no reason for a rigid approach to be taken not to continue with appellant’s services as Rehbar-e-Taleem, particularly, when his students had themselves stated that they had got used to his manner of talking and did not have any difficulty in understanding the subject being taught by him. Coupled with the above was the fact that results achieved by appellant in the different classes were extremely good.Apart from the fact that appellant was a victim of cerebral palsy, which impairs the movements of limbs and also the speech of a victim, nothing on record to show that appellant had not been performing his duties as Rehbar-e-Taleem efficiently and with dedication. Inspite of the positive aspects of appellant’s functioning as Rehbar-e-Taleem and the clear and unambiguous object of 1998 Act, High Court adopted a view which was not compatible therewith. High Court had dealt with the matter mechanically, without even referring to the 1998 Act or even the provisions of Sections 22 and 27 thereof. Approach of the local authorities, as well as the High Court, was not in consonance with the objects of 1998 Act and scheme of the State Government to fill up a certain percentage of vacancies with disabled candidates,and was too pedantic and rigid. Impugned order of High Court hence being unsustainable was set aside. Appeals were allowed.
Result : Appeals allowed.
JUDGMENT
Altamas Kabir, J. —
1. Leave granted.
2. The appellant is a person suffering from cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds. Despite his handicaps, the appellant completed his graduation under the University of Kashmir and was awarded a B.Sc. degree by the University on 28th February, 2004.
3. On 28th April, 2004, the State of Jammu & Kashmir launched a scheme known as “Rehbar-e- Taleem” which literally translated means a “Teaching Guide”. Under the Scheme, a Village Level Committee was constituted to select persons to be appointed as “Rehbar-e-Taleem” who would be deemed to be community workers for a period of five years on a monthly honorarium after which they would be considered for regularisation as General Line Teachers in the Education Department. The said stipulation came with the rider that in the event the teacher was unable to fulfil the age qualification, his employment would be on contractual basis for the future.
4. The appellant also applied for appointment as Rehbar-e-Taleem and in January, 2005, a merit list of four candidates was prepared by the Zonal Education Officer, Awantipora, for filling up three vacancies in the post of Rehbar-e-Taleem in the newly upgraded Kanjinag School under the Sarva Shiksha Abhiyan. On 16th February, 2005, the Chief Education Officer, Pulwama, published the list of the three proposed candidates for appointment as Rehbar-e-Taleem, in which the appellant was placed in the first position, inviting objections with regard to the list published along with documentary proof. Pursuant thereto, the Respondent No.1 herein, Nazir Ahmad Shah, sent a letter to the Director of School Education, Srinagar, objecting to the appellant’s selection on the ground that being physically handicapped he was not fit for being appointed as Rehbar-e-Taleem.
5. As the respondents were not issuing an appointment letter to the appellant, he filed a Writ Petition, being SWP No.363 of 2005, before the Jammu and Kashmir High Court in Srinagar on 25th April, 2005, for a Writ in the nature of Mandamus to command the respondents therein to issue appointment letter in his favour in terms of the list issued by them.
6. During the pendency of the writ petition the Jammu and Kashmir Government issued a Gazette Notification on 21st October, 2005, providing for 3% reservation for appointment by direct recruitment for physically challenged candidates. In the said Notification it was particularly indicated that reservations in recruitment would be available for physically challenged persons for services and posts specified under Section 22 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 (hereinafter referred to as “the 1998 Act”). Section 22 of the said Act, which deals with reservation of posts, provides that the Government shall appoint in every establishment such percentage of vacancies, not less than 3%, for persons or class of persons with disabilities and suffering from :
(i) blindness or low vision - 1%;
(ii) hearing impairment - 1%;
(iii) locomotor disability or cerebral palsy, in the posts identified for each disability - 1%.
7. The writ petition filed by the appellant was heard and disposed of on 31st August, 2006, with a direction that candidates should be appointed only after they were found physically fit for the job and that the concerned respondent should consider the possibility of absorbing the appellant under the quota of handicapped persons. Pursuant to the orders of the High Court, on 15th September, 2006, the Director of School Education, Kashmir, constituted a committee comprising of the Joint Director (EE), Personnel Officer, DSEK and Chief Education Officer, Srinagar, to enquire into the appellant’s claim for appointment as Rehbar-e- Taleem. The said Committee submitted its report on 13th November, 2006, cer
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