In the High court of Andhra Pradesh at Hyderabad
WP Nos. 3997 and 4041 of 2002
Two visually handicapped persons applied for the post of Secondary Grade Teacher/School Assistant in response to advertisements for the posts of 597 Secondary Grade Teacher posts (in Cuddapah District), out of which 485 posts were for Government/Zilla Parishad Schools and 112 posts were in Cuddapah and Proddatur Municipalities.
The advertisements specifically invited applications from physically handicapped candidates apart from the general candidates, but did not provide for 1:1:1 reservation in favor of visually handicapped, hearing handicapped and Orthopaedically handicapped candidates. On the other hand, another advertisement in an adjoining district of Kurnool, the 1:1:1 reservations were provided.
The candidates were not selected. They petitioned against this and said that jurisdiction of the Andhra Pradesh Administrative Tribunal challenging the selections of teachers. They said that by virtue of the law selections of persons with disability should be with the three per cent quota meant for the persons with disabilities on the basis of 1:1:1 for blind, deaf/dumb and Orthopaedically handicapped persons. The Andhra Pradesh Tribunal did not agree with any of the contentions and dismissed the case.
The Details
The council for the petitioners cited the following to plead its case:
- The provisions of the Act 1 of 1996 that should prevail over the Rules made by the Government of Andhra Pradesh under proviso to Article 309 of the Constitution of India.
- Section 32 of the Act 1 of 1996 commands the appropriate Governments to identify posts, in the establishments, which can be reserved for the persons with disabilities.
- Section 33 of the Act 1 of 1996, which is a crucial one, directs every appropriate Government to appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from:
- blindness or low vision
- hearing impairment
- locomotor disability or cerebral palsy, in the posts identified for each disability
- And other relevant sections of the Constitution that overrules any legislation that falls under the State lists.
It was agreed that the impugned Rules and the employment Notification were not in conformity with the mandatory provisions of Section 33 of the Act 1 of 1996, which mandates the appropriate Government to make reservations in favour of the persons with disabilities in the manner provided therein.
But the question that falls for consideration is as to what is the relief to be granted to the petitioners? Especially since the selections and appointments of teachers took place quite some time ago.
The Judgment
Since the petitioner No. l in WP No. 4041 of 2002 had been deprived of his legitimate right for such selection and appointment, it was considered appropriate by the judge to direct the respondents to create a supernumerary post and accordingly appoint him as a Secondary Grade Teacher.
Decided on: 20.12.2002
Acts/Rules/Orders: Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Constitution of India (Article 309).
Cases referred: Maganbhai v. Union of India, AIR 1969 SC 783;
S.Jagannath v. Union of India, (1997) 2 SCC 87; A.G. of Canada v. A.G. of Ontario, AIR 1937 PC 82; Munro v. Nat. Capital Comm., 57 DLR (2d) 753