2008 Supreme(Kar) 807

2011 (1) KCCR 544
KARNATAKA HIGH COURT CIRCUIT BENCH AT DHARWAD
N. Kumar, J
The Secretary, Primary and Secondary Education, Department of Public Instruction, Bangalore and Others – Petitioners
Versus
Ravasaba Madalamatti and Another – Respondents
Writ Petition No. 30241 of 2008 (S-RES),
Decided on : 5.12.2008

Headnote:LABOUR & SERVICES - Recruitment: [N.Kumar,J] Reservation - Recruitment for the post of Secondary School Teachers - Reservations of posts for the disabled persons - Violation of the State policy and the Government Order granting 5% reservations to the persons with disabilities -Order passed by the second respondent/The State Commissioner for persons with Disabilities in the State of Karnataka, directing them to with hold the recruitment process for the post of Secondary School Teachers for the year 2007-08 - Challenge to - Failure of the Selection Authority to fallow that object of the Act, the Rules, the Notification, the roasters and Government Orders in selecting and appointing the persons with disabilities - Held, The roaster which is applicable to the physically disabled has been modified by the authorities. The authorities by such interpretation, have successfully nullified a parliamentary mandate and a constitutional obligation. Any rules, circulars, Government Orders, issued should be to implement this mandate of law and give effect to the constitutional obligation. If any such rule, regulation, order, is made which is contrary to the constitutional provisions or the statutory provisions it would have no effect and it cannot be enforced in a Court of law and it has to be ignored. The Commissioner for Persons with Disabilities after noticing that the recruitment conducted by the State is illegal in so far as it violated the State Policy and the Government Order granting 5% reservation to the persons with disabilities, directed the State to withhold the recruitment process till the illegality pointed out is set right.

       PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS & FULL PARTICIPATION) ACT, 1995 - Sections 32 to 41: [N. Kumar, J] Primary object and intent of the Act - Chapter VI - Employment -Section 32 to 41 - Reservation of posts and appointment - Vertical and Horizontal reservation -Held, The State took a policy decision to have reservation with a view to fulfil its constitutional objectives as also its commitment to international community. A disabled is a disabled. They constitute a special class. The State in terms of Article 16 of the Constitution may make two types of reservations - Vertical and Horizontal. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservation in favour of physically handicapped, women etc., under Article 16(1) and 15(3) are "horizontal reservations". Horizontal reservations cut across the vertical reservations. Now the Government has provided 5% reservation to disabled persons in its services. The Notification categorically states recruitment by Division wise. Therefore, even by adapting the existing roster at Point No. 19, 5% among 183 candidates i.e., 9 candidates belonging to physically disabled category should have been recruited and appointed. It is after recruiting 183 persons, appointments could have been done District wise. It is at the stage of recruitment the roaster is to be operated and not at the time of appointment. Thus, by operating the roaster at the time of appointment, which is contrary to the terms of the Notification itself, authorities have disobeyed the mandate of law. It only shows the mind set of the bureaucracy which is expected to implement the law. When the legislature with the laudable object passed the law, thus meeting not only the constitutional obligation, but also the international obligation, the benefit of law given to the persons to whom it was meant is denied by such obstructive tactics adopted by the bureaucracy. It is this approach which his found fault with by the Commissioner who is the authority, who is expected to see that this legislative mandate is properly implemented in the State. He was only performing his Statutory obligation. It is when the executive misinterprets the law and negates the rule of law, thus depriving the benefit of the law, it becomes a solemn duty of the Court to strike out the said executive act and direct them to give effect to the legislative mandate. Therefore, the action of the first respondent/Commissioner is strictly in accordance with law and cannot be found fault with.