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2009 Supreme(Mad) 4183
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN & THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
Prof.I.Elangovan
Versus
Govt.of Tamil Nadu rep.by its Secretary Dept. of Higher Education & Another
W.P.No.28217 of 2008 & M.P.No.1 of 2008
Decided on : 13-10-2009
For the Petitioner:V. Ajoy Khose, Advocate. For the Respondents:R1, M. Dhandapani, Spl.G.P., R2, Ms. N. Kavitha, Advocate.
The Act's provisions for disability reservations are mandatory, and the State is obligated to comply with them.
Headnote:
Disability Rights - University Reservation - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 33, Rule 30 - Article 16 of the Constitution of India
Fact of the Case:
The petitioner filed a Writ Petition against the 2nd respondent University for not following the mandate of Section 33 of the Persons with Disabilities Act, 1995 in the appointment process.
Finding of the Court:
The Court found that the University did not comply with the provisions of the Act and Rules, and directed the University to fill vacancies in accordance with the Act and the judgment of the Supreme Court.
Issues: Non-compliance with disability reservation provisions, adherence to government orders, and the need for suitable directions to ensure future compliance.
Ratio Decidendi: The provisions of Section 33 of the Act prevail over state rules, and the State is obligated to make reservations for handicapped persons. The Act uses the word 'shall', indicating a mandate, not an option or discretion.
Final Decision: The Court directed the University to comply with the Act and Rules, fill the vacant post for disabled persons, and ensure future compliance. The 1st respondent was directed to give suitable directions to all departments and institutions under their control to comply with the Act.
Prabha Sridevan, J.
Heard Mr.V.Ajoy Khose, learned counsel for the petitioner, Mr.M.Dhandapani, learned Special Government Pleader for the 1st respondent and Ms.N.Kavitha, learned counsel appearing for the 2nd respondent.
2. It looks like the petitioner is a crusader for the disabled. In this particular Writ Petition, the establishment which he focuses on is the 2nd respondent University. According to him, though there are totally 187 posts, the 2nd respondent University is not following the mandate of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and while issuing an advertisement on 110. 2008 calling for applications for appointment of 1 Professor, 9 Readers and 19 Lecturers, reservations has been made on communal basis, but no provision has been made for persons with disabilities. It is in these circumstances, the present Writ Petition has been filed.
3. To his application made under the Right to Information act, the 2nd respondent has responded that "no one is appointed under disabled quota for the above categories. The words "above categories" would refer to Professor/Readers/Lecturers.
4. Ms.N.Kavitha, learned counsel appears for the 2nd respondent University. According to the learned counsel, the University is following the Government Orders with regard to communal reservation and since there is no specific order with regard to disability reservation, their advertisement does not mention it. However, it is submitted fairly that the University would abide by any direction made by this Court. In our opinion this could be the only response.
5. Wefind from the typed set of papers that this Professor, who is the writ petitioner herein, has earlier filed two Writ Petitions and obtained favourable orders for the disabled. The first is W.P.No.27321 of 2007, where the petitioner has sought for a declaration that the advertisements issued on 19. 2006 is violative of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called as "Act"), since it does not comply with the provisions of the Act. In that case where reservation ought to have been made for 30 posts out of 1000 posts, which would be 3% of the total reservation, the prospectus provided only for 13 posts. The other grievance was that while allotting 3% reservation to the disabled category, instead of reservation of 1% each to the visually impaired, hearing impaired and orthopaedically impaired, the respondent had excluded the hearing impaired completely. Before the First Bench, the learned Special Government Pleader submitted that the State Government has issued Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules 2002 and the Rule 30 provides for computation of the vacancies for the disabled persons. Recording this, the Writ Petition No.27321 of 2007 was disposed of.
6. Again, the writ petitioner filed W.P.Nos.35808 and 36777 of 2007, which is reported in (2008) 3 MLJ 481, where the grievance of the writ petitioner was that the notification issued by the Tamil Nadu Public Service Commission was not in consonance with Section 33 of the Act. The First Bench took note of the total number of vacancies in each category and after referring to various judgments in respect of the rights of the persons with disabilities by the Supreme Court and Privy Council and also Andhra Pradesh High Court, held at paragraphs 20 and 21 as follows:
"20. We have therefore no hesitation to hold that the provisions of Section 33 read with Section 2(k) of the Act would prevail over the Tamil Nadu State and Subordinate Service Rules and the respondents are duty bound to provide reservation of not less than 3% in every establishment i.e, department for persons with disabilities in accordance with Section 33 of the Act.
21. On behalf of the TNPSC, the charts showing the vacancy positions,
