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CASE NO.: Appeal (civil)  3984 of 2007

PETITIONER: Mahesh Gupta & Ors

RESPONDENT: Yashwant Kumar Ahirwar & Ors

DATE OF JUDGMENT: 30/08/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO  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]

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

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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 Posts   SC  ST  Handi-              capped Minimum  Qualifications Pay- Scale 1.  Higher Grade  Teachers =  English \026 14 and  Sanskrit - 8  -    20     02 Graduate in relevant  subject passed in 2nd  Div. & Trained  (B.Ed. B.T.C.)  1400- 2640 2. Industries  Craft Teacher   -    17    02 Hr. Sec. Exam  (Intermediate) &  Diploma in  concerning craft by  an Institute  recognized by the  Government  1400- 2640 3. Assistant  Teacher

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(Science)  -    08    03 Hr. Sec. Exam  (Intermediate)  Science with the  Subjects, Physics,  Chemistry, Biology 1200- 2040 4.  Artists \026cum-  -     01     - Graduate Degree in  Arts from J.J. School  of Arts and one year  experience in  commercial  photography 1400- 2340 5. Dietician 01    -      - M.Sc. (Home  Science) or B.Sc.  (Home Science) \026 2nd  Division &  essentiality of Food  craft subject  1400- 2340 6. II Gr. Clerk  -    01    - 1.  Hr. Secy. or High  School passed 2. Hindi Typing  passed from M.P.  Board 950- 1530 7. Steno-Typist  -    05    - 1 & 2 ==ditto==  3. Knowledge in  Hindi Stenography 950- 1530 +  75 8. Stenographer  -     05   - 1 & 2 as above + 3. Dictation in Hindi  Stenography with the  speed of 60 words per  minute as prescribed  by Govt.  

9.  Tracer   -     01   - 1. Hr. Secy./High  Sch. with I.T.I.  passed  2. Drawing Diploma  or Civil Engineering  Diploma  950- 1530

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10.  Assistant  Cartographer

-      02   - Passed Hr. Secy.  Exam. and Degree/  Diploma in the Craft  or Certificate of  Draftman in Civil  Engineer from I.T.I.  or Surveyor Trade  Certificate Pay as  prescrib ed by  Govt. Total : 01   60   07

                                                                               " 5.      We are concerned with the posts of Assistant Teacher (Science).   Appellants herein belonged to the general category.  They, however, suffer  from disability.  They are 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 stating: "4.  On perusal of the advertisement published in the  Rojgar Nirman dt. 26th May, 1994 (Ann. P.8), it appears  that the respondent had advertised 8 posts for the  reserved category for scheduled castes and 8 posts for  the handicapped persons.  The respondents showed the  reserved category separately in the body of the  advertisement, though the heading of such  advertisement is misleading that applications are also  invited from the candidates belonging to the category of  S.C. & S.T. but the body of the advertisement leaves no  room for doubt that 8 posts were got reserved for the  candidates belonging to the Scheduled Castes and 3  posts for handicapped persons without having any caste  wise reservation.  The respondent made it clear in their  return that there was also special drive to fill the  vacancies belonging to the handicapped persons  pursuant to the circular issued by the State Government  on 29th March, 1993 (Ann.J-1).   There was clear  direction therein that such vacancies should be filled by  the end of 30th June, 1993\005"

6.      On a writ petition having been filed by him, the High Court, however,  by reason of the impugned judgment while setting aside the order of the  Tribunal, directed: "\005Therefore, in the said facts of the case it will be  appropriate that the State Government should examine  minutely and decide whether the posts could be filled  from the general category when advertisement was for  reserved category mentioned in the advertisement.   The  State Government shall also examine whether these  posts are to be filled from the members of scheduled  tribes only or from the members of scheduled castes  only or from the category of other backward castes or  these posts were for all the categories mentioned above.    State Government should also consider whether the

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reservation was in accordance with the reserved  proportion shown in the Annexure-R/1 filed by the  State.  Annexure R/1 is issued by the State Government  on 29th March, 1993.  State shall also examine whether  at the relevant date any post of the handicapped  candidate in general category was vacant.  If no post  was vacant then no person from general category could  be appointed against these posts.  State shall determine  that the category advertised had been properly filled.   The entire exercise be conducted within a period of  three months from the date of communication of the  order..."

7.      The stand of the State before the Tribunal as also the High Court had  been that the posts reserved for the handicapped persons were open to all.   Even after the direction of the High Court, the State was of the view: "1 The filling of the three posts of Assistant Teachers  (Science) as mentioned in the Advertisement, could be  carried out from the handicapped candidates of any  category.

2 The Advertisement published by the Commissioner,  Chambal Division, regarding special drive for recruitment  of Scheduled Caste/Tribes and filling of the posts of  handicapped persons, was issued in compliance of the  instructions issued from time to time by the General  Administration Department and the Circular vide No. F.9- 2/93/1/Res.Cell, Bhopal Dated 29th of March, 1993, but in  the language of the heading of the Advertisement, the  words " and handicapped" should have been used along  with Scheduled Caste/Tribes, which has not been done so.

3 At that time in the quota for the handicapped persons, 3  posts of Assistant Teacher (Science) were vacant, for  filling of the same, proposals were forwarded by the Joint  Director, Education, Gwalior Division, vide its letter No.  Estt.3/DRA/Gwalior/268 dated 1st of March, 1994, to the  Commissioner, Chambal Division.

Resultantly, simply in the language of the heading of the  Advertisement, because of not mentioning of the word  "Handicapped" at the relevant time, the selection  committee has fully complied with the  directions/instructions issued by the Government, and the  selection procedure is without any fault and guiltless."  

8.      A contempt petition was filed at a later stage.  In the contempt  proceedings, the State took a volte face.  It inter alia took the stand that the  advertisement was not proper and directed: "9.  Resultantly, the advertisement issued by the  Commissioner, Chambal Division and published on 26th of  May, 1994 in Rojagar Samachar, was not proper  advertisement relating to vacant posts for the category of  handicapped persons.  Therefore, on the basis of this  advertisement, selection made against the quota for  handicapped persons, being not proper, is liable to be  cancelled.   Because the handicapped teachers are  presently in service selected on the basis of this selection,  their services will have to be terminated, and, therefore, the  competent officer shall issue a show-cause notice to them,  an opportunity for being heard, should be extended to  them."

9.      In terms of the said decision, a show cause notice was issued upon the

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appellants herein as to why their services shall not be terminated.   The  services of the appellants were terminated.  Appellants filed a Special Leave  Petition against the original order dated 1.05.2003.  However, it is now  accepted that services of some of the appellants have been terminated.

10.     The State in terms of Article 16 of the Constitution of India may make  two types of reservations \026 vertical and horizontal.  Article 16(4) provides  for vertical reservation; whereas Clause (1) of Article 16 provides for  horizontal reservation.   

11.     The State adopted a policy decision for filling up the reserved posts  for handicapped persons.  A special drive was to be launched therefor.  The  circular letter was issued only for the said purpose.  A bare perusal of the  said circular letter dated 29.03.1993 would clearly show that the State had  made 3% reservation for blinds and 2% for other physically handicapped  persons.  Such a reservation falling within Clause (1) of Article 16 of the  Constitution has nothing to do with the object and purport sought to be  achieved by reason of Clause (4) thereof.   

12.     Disability has drawn the attention of the worldwide community.  India  is a signatory to various International Treaties and Conventions.  The State,  therefore, took a policy decision to have horizontal reservation with a view  to fulfil its constitutional object as also its commitment to the international  community.  A disabled is a disabled.  The question of making any further  reservation on the basis of caste, creed or religion ordinarily may not arise.   They constitute a special class.  The advertisement, however, failed to  mention in regard to the reservation for handicapped persons at the outset,  but, as noticed hereinbefore, the vacant posts were required to be filled up  for two categories of candidates; one for Scheduled Castes and Scheduled  Tribe candidates and other for handicapped candidates.  Handicapped  candidates have not been further classified as belonging to Scheduled  Castes, Scheduled Tribes and general category candidates.  It is a travesty of  justice that despite the State clarified its own position in its order dated  1.01.2004 and stated that the posts were vacant under the handicapped quota  but it completely turned turtle and took a diagonally opposite stand when a  contempt petition was filed.  In its reply in the said proceedings, reference  was made to the aforementioned order dated 1.01.2004 but within a short  time, viz., on 4.02.2004 it opined on a presumption that as the word  "handicapped" was not mentioned in the heading of advertisement they were  meant only for Scheduled Caste and Scheduled Tribe candidates.  Rule of  Executive Construction was given a complete go bye.  Reasonableness and  fairness which is the hallmark of Article 14 of the Constitution of India was  completely lost sight of.  The officers of the State behaved strangely.  It  prevaricated its stand only because a contempt proceeding was initiated.  If  the State was eager to accommodate the writ petitioner \026 respondent, it could  have done so.  It did not take any measure in that behalf.  It chose to  terminate the services of some of the employees who had already been  appointed.  Such a course could not have been taken either in law or in  equity.  The State is expected to have a constitutional vision.  It must give  effect to the constitutional mandate.  Any act done by it should be  considered to have been effected in the light of the provisions contained in  Part IV of the Constitution of India.  The State in terms of the provisions  contained in Part IV should have given effect to the principles embodied in  Article 39 of the Constitution of India.  Whereas a reasonable reservation  within the meaning of Article 16 of the Constitution of India should not  ordinarily exist, 50%, as has been held by this Court in Indra Sawhney v.  Union of India [1992 Supp (3) SCC 212 : AIR 1993 SC 477], reservation for  women or handicapped persons would not come within the purview thereof.

13.     Furthermore, when the decision was taken, the Persons with  Disabilities (Equal Opportunities, Protection of Rights and Full  Participation) Act, 1995 (for short "the 1995 Act") had come into force.  In  terms of the 1995 Act, the States were obligated to make reservations for  handicapped persons.  The State completely lost sight of its commitment  both under its own policy decision as also the statutory provision.

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14.     For the reasons aforementioned, we not only set aside the judgment of  the High Court but also direct that the persons whose services have been  terminated in terms of 4.02.2004 should be continued in service.  We  furthermore direct that they should be paid back wages as also other service  benefits.  Respondent No. 1 could have been considered both as handicapped  persons as also Scheduled Castes and Scheduled Tribes.  If all the vacancies  meant for Scheduled Castes, Scheduled Tribe had not been filled up, the  State may consider appointing him.  If he has already been appointed, the  State may consider the desirability of creating a supernumerary post and  continue his service therein.

15.     The appeals are allowed with costs.  Counsel’s fee assessed at Rs.  25,000/- in each case.