It is an unfortunate case, while the whole world is crying/trying for rehabilitation of the persons with disability in employment and other fields, for no fault of them in coming to this world with disability, the second and third respondents not only shutting their ears and eyes but also closing their minds in refusing employment to the "disabled persons".
2. The present writ petition has been filed praying for the issuance of a writ of mandamus to direct the respondents to consider the petitioner's candidature for appointment to the post of "Conductor" with the second respondent Corporation under physically handicapped category in accordance with the petitioner's seniority.
3. The case of the petitioner is that he is a physically challenged person, having a dis-ability in his right leg. He had passed S.S.L.C. examination in the year 1996 and thereafter, he underwent conductor course and the transport authority issued a conductors' certificate under Rule 58 of the Tamil Nadu Motor Vehicles Rules. He had registered his name with the third respondent under the physically handicapped category. He had worked as a Conductor with a private transport Corporation in Tirunelveli known as "Dhanapal Motor Service". During the year 2006 - 2007, he had worked for about one year with the second respondent Corporation as a Conductor temporarily.
3.1. Since the petitioner had registered his name in the third respondent, he was under the impression that he would be called for an interview to the post of Conductor in the second respondent Corporation under the strength of seniority and priority. He came to understand from the publication made in the newspaper on 28/4/2008 that the candidates could check their seniority for such appointment in the office of the third respondent. When he verified seniority, he was shocked to find that no reference had been made in respect of candidates having priority under physically handicapped category. Hence, the petitioner made a representation to the first respondent on 7/5/2008 and another representation to the District Collector sending a copy of the same to the second and third respondents. Since there was no reply, he had submitted an application to the respondents 1 and 2 under the Right to Information Act, seeking information on the action taken on his representation. The respondents 1 and 2 seems to have directed the third respondent to send the information. Accordingly, he had received the communication from the third respondent on 25/7/2008 stating that the second respondent in his requisition had stated that physically handicapped persons were not fit to be appointed as Conductor and hence, the case of the petitioner could not be considered.
3.2. In other Corporations physically handicapped persons having licenses are appointed. However, in the second respondent Corporation alone, physically handicapped persons are not considered for appointment, which is violative of the fundamental rights guaranteed under
Article 14 and
21 of the Constitution of India. In view of the said facts and circumstances, the petitioner had approached this Court by filing the present writ petition.
4. Counter affidavit had been filed on behalf of the second respondent, wherein the following facts have been set out.
4.1. In the festival seasons, Conductors were engaged by the Transport Corporation purely on temporary basis with the qualification of height, weight, educational qualification and conductor license. The petitioner's name was not sponsored by employment exchange in view of the letter of the Government dated 1/6/1990 which reads that physically handicapped persons are not eligible to the post of Conductor and Driver. In view of the same, the case of the petitioner could not be considered. Thus, the counter affidavit seeks for the dismissal of the writ petition.
5.1. Mr.G.Prabhu Rajadurai, learned counsel appearing for the petitioner would contend that
(a). When the Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training had issued Notification fixing 3% of vacancies in the case of direct recruitment for persons with disabilities, of which, 1% has to be reserved for persons suffering from (i). blindness or low vision, (ii). hearing impairment and (iii). locomotor disability or cerebral palsy, the refusal of appointment to the petitioner, by the respondents on the ground that he is a physically handicapped person, is totally erroneous.
(b). When the petitioner has got required qualification for appointment as Conductor and also worked as a Conductor temporarily for one year with the second respondent, to say that the petitioner is not liable to be appointed for the post of Conductor since he is a physically handicapped person is totally unacceptable. When the other Corporations are appointing physically handicapped persons, there is no rhyme or reason for the second respondent to refuse the appointment to the physically handicapped persons.
5.2. Thus, according to the learned counsel for the petitioner, the refusal of the second respondent in appointing the petitioner for the post of Conductor is violative of
Article 14 and
21 of the Constitution of India.
6. On the other hand, the learned counsel appearing for the respondents would submit that as per Government letter dated 1/6/1990, the physically handicapped persons are not eligible to the post of Conductor and Driver and in view of the said fact, the petitioner's case could not be considered for appointment as Conductor.
7. I have considered the submissions made by the learned counsel appearing for the petitioner and the learned counsel appearing for the Transport Department.
8. The economic and social commission for Asian Pacific Region had convened a meeting to launch the Asia Pacific Decade of Disabled Persons 1993 - 2002 at Beijing on 1st to 5th December, 1992. In that meeting, the proclamation on the full participation and equality of people with disabilities in the Asia and Pacific Region was adopted and India is a signatory to that proclamation.
8.1. In order to give effect to the proclamation, the persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation Act) herein after called as "the said Act" was enacted. The preamble of the said Act reads as follows:-
"An Act to give effect to the proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region.
WHEREAS the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993 - 2002 convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region;
AND WHEREAS India is a signatory to the said Proclamation;
AND WHEREAS it is considered necessary to implement the Proclamation aforesaid."
The bill that received Presidential accent in the year 1996 has come into force on 7/2/1996.
8.2. Section 2 (i) of the said Act defines disability and the said Provision is extracted hereunder.
"(i). "disability" means
(i). blindness;
(ii). low vision;
(iii). leprosy cured;
(iv). hearing impairment;
(v). locomotor disability
(vi). mental retardation;
(vii). mental illness;"
8.3. "Employer" is defined under Section 2 (j), which is extracted hereunder.
(i). in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and
(ii). in relation to an establishment, the Chief Executive Officer of that establishment;"
8.4. "Establishment" had been defined under Section 2 (k) which is extracted hereunder.
"establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in
Section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government."
8.5. Section 2 (o) defines "locomotor disability" which is extracted hereunder:-
"locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."
8.6. Chapter 6 deals with Employment and
Section 32 thereon deals with identification of posts which can be reserved for persons with disabilities.
Section 32 (a and b) are extracted hereunder.
(a). identify posts, in the establishments, which can be reserved for the persons with disability;
(b). at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology."
8.7.
Section 33 of the said Act deals with reservation of posts and the same is extracted hereunder:-
"Every appropriate Government shall 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 -
(i). blindness or low vision;
(ii). hearing impairment
(iii). locomotor disability or cerebral palsy, in the posts identified for each disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
8.8. Thus, the said Act was enacted to make awareness of not only the capability of persons with disabilities but also their rights as any other human being is entitled to, to participate in every activities including in the employment opportunities.
8.9. The provisions narrated above would indicate the State Government or the Central Government or any other establishment namely the Corporations established by the Central or State, have to reserve 3% for disabled persons. Identification have to be made for the said disabled persons. 1% shall be reserved for persons suffering from blindness or low vision, hearing impairment, locomotor disability or cerebral palsy. Further, an exemption can be granted to an establishment from the provisions of this Section considering the type of work carried on in the said establishment by Notification.
8.10. Thus, every care has been taken to accommodate the persons with disabilities in Central, State Governments or other establishments run by the Central or State Government. This enactment is a benevolent legislation created for the welfare of the disabled persons and see to it that they do suffer for no fault of them in common to this world with disability.
9. In pursuant to
Section 32 of the said Act, the Government of India, Ministry of Personnel, Public grievance & Pensions, Department of Personnel & Training issued a Notification dated 29/12/2005. The preamble of the said Notification reads as follows:-
"With a view to consolidating the existing instructions, bringing them in line with the Persons and Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and clarifying certain issues including procedural matters, the following instructions are issued with regard to reservation for persons with diabilities (physically handicapped persons) in posts and services under the Government of India. These instructions shall supercede all previous instructions issued on the subject so far."
9.1. The quantum of reservation mentioned thereon in Column No.2 is extracted hereunder:-
"2 (i). Three percent of the vacancies in case of direct recruitment to Group A.B.C and D posts shall be reserved for persons with disabilities of which one percent each shall be reserved for persons suffering from (i). blindness or low vision (ii). hearing impairment and (iii). locomotor disability or cerebral palsy in the posts identified for each disability;
(ii). Three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direct recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i). blindness or low vision, (ii) hearing impairment and (iii). Locomotor disability or cerebral palsy in the posts identified for each disability."
9.2. Identification of jobs/posts is mentioned in Column 4 which is extracted hereunder.
"4. The Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with disabilities and the physical requirement for all such jobs/posts vide their Notification No.16-25/99.NI.I dated 31/5/2001. The jobs/posts given in Annexure II of the said notification as amended from time to time shall be used to give effect to 3 per cent reservation to the persons with disabilities."
9.3. In Column 5, reservation in posts identified for one or two categories, is mentioned and the same is extracted hereunder.
"If a post of identified suitable only for one category of disability, reservation in that post shall be given to persons with that disability only. Reservation of 3% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from the disability for which it as been identified. Likewise, in case the post is identified suitable for two categories of disabilities, reservation shall be distributed between persons with those categories of disabilities equally, as far as possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the persons of three categories of disabilities, as far as possible, get equal representation."
9.4. Definition of disability had been defined in Column 8 and for the matter in issue 8 (iii) alone is relevant and the same is extracted hereunder.
(i). (i). (a). Blindness: "Blindness" refers to a condition where a person suffers from ......
(iii). (a). Locomotor disability: "Locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy.
9.5. Degree of disability for reservation: is mentioned in column 9 and the same is extracted hereunder.
"Only such persons would be eligible for reservation in services/posts who suffer from not less than 40 per cent of relevant disability. A person who wants to avail of benefit of reservation would have to submit a Disability Certificate issued by a competent authority in the format given in Annexure I."
9.6. Column 13 deals with computation of reservation which is extracted hereunder.
"Reservation for persons with disabilities in case of Group C and Group D posts shall be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group 'C' posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group 'C' posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group 'D' posts. Similarly, all vacancies in promotion quota shall be into account while computing reservation in promotion in Group 'C' and Group 'D' posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified post may exceed 3 per cent.
9.7. Column 25 deals with notice of vacancies which is extracted hereunder:-
"In order to ensure that persons with disabilities get a fair opportunity in consideration for appointment to an identified post, the following points shall be kept in view while sending the requisition notice to the Employment Exchange, the SSC, the UPSC etc., and while advertising the vacancies:-
(i). Number of vacancies reserved for SCs/STs/OBCs/Ex-servicemen/Persons suffering from Blindness or Low Vision/Persons suffering from Hearing Impairment/Persons suffering from Locomotor Disability or Cerebral Palsy should be indicated clearly.
(ii). In case of vacancies in posts identified suitable to be held by persons with disability, it shall be indicated that the post is identified for persons with disabilities suffering from blindness or low vision; hearing impairment; and/or locomotor disability or cerebral palsy, as the case may be, and that the persons with disabilities belonging to the category/categories for which the post is identified shall be allowed to apply even if no vacancies are reserved for them. Such candidates will be considered for selection for appointment to the post by general standards of merit.
(iii). In case of vacancies in posts identified suitable for persons with disabilities, irrespective of whether any vacancies are reserved or
(iv). not, the categories of disabilities viz., blindness or low vision, hearing impairment and locomotor disability or cerebral palsy, for which the post is identified suitable along with functional classification and physical requirements for performing the duties attached to the post shall be indicated clearly.
(v). It shall also be indicated that persons suffering from not less than 40% of the relevant disability shall alone be eligible for the benefit of reservation.
10. The Office of the Chief Commissioner for persons with disabilities had identified certain jobs for the persons with Orthopaedic disabilities. Thus, Conductor is one of the job identified for the said purpose. Notification No.16 - 70/2004 - D.D. III dated 15/3/2007 published in the Gazette of India dated 22/3/2007 in respect of Group 'D' also specifies the job of bus Conductor. Thus, Notification of the Central Government referred to above would indicate that 3% of the vacancies in case of direct recruitment shall be reserved for persons with disabilities. The petitioner admittedly a physically handicapped person who possess all the requirements including the Conductor certificate issued under Rule 58 of the Tamil Nadu Motor Vehicles Rules. He had also worked in the second respondent Corporation as a Conductor temporarily.
11. However, the learned counsel appearing for the Transport Corporation would submit that the case of the petitioner could not be considered in view of the circular issued by the Government of India dated 1/6/1990. The instructions of the Government of Tamil Nadu, Social Welfare and Nutritious Meal Programme Department dated 1/6/1990 is extracted hereunder:-
"I am directed to invite attention to your letter third cited and to inform that IF THE TRANSPORT CORPORATION COULD NOT TAKE THE PHYSICALLY HANDICAPPED PERSONS FOR THE POSTS OF DRIVER/CONDUCTOR, IT COULD RECRUIT PHYSICALLY HANDICAPPED PERSONS UNDER 3% RESERVATION FOR appointment to the following posts:- (emphasis supplied).
(i). The blind can be considered for appointment in the posts like Announcers, Telephone Operators, Public Relation Officers and Chair re canners.
(ii). The Deaf and Orthopaedically handicapped can be appointed in the posts like Printer, Welder, Turner, Junior Assistant, Typists and Motor Mechanic, etc.
(iii). If the Transport Corporation could not take handicapped against the post of Driver and Conductor, that could be made good by taking more number of handicapped against other kinds of jobs as specified in para (i) and (ii) above.
(iv). The Transport Corporation will have to observe 3% reservation strictly by taking more number of handicapped against jobs suited to the handicapped though they can not be taken as Drivers and Conductors."
11.1. The above said letter of the Government of Tamil Nadu clearly reads that if the Transport Corporation could not take physically handicapped persons for the post of Drivers, it can recruit physically handicapped persons under 3% of Reservation for the appointment to the other posts enumerated thereon. Thus, it does not prohibit totally appointing physically handicapped persons in the post of Drivers or Conductors.
11.2. Further, the instructions of the Government of Tamil Nadu, Social Welfare and Nutritious Meal Programme is dated 1/6/1990 whereas the persons with Disabilities (Equal Opportunities and Protection of Rights and Full Participation Act) came into force on 7/2/1996. Hence, much reliance cannot be placed on the instruction of the Government of Tamil Nadu, Social Welfare and Nutritious Meal Programme dated 1/6/1990.
11.3. Yet another aspect that has to be seen is that it is not the case of the second respondent Corporation that in pursuant to
Section 32 of the said Act, the State Government had identified the post which can be reserved for persons with disabilities. When that being so, to rely on the instruction of the Government of Tamil Nadu dated 1/6/1990, referred to above, would be totally erroneous.
12. In this connection, it would be useful to rely on the decision of the Division Bench of this Court in Writ Appeal No.317 of 2008 dated 22/7/2008. While setting aside the order of the learned Single Judge in dismissing the writ petition for mandamus, directing the transport authorities to permit the petitioner thereon to appoint trainee for the post of Conductor as per the appointment order, the Division Bench has held in paragraph Nos. 9 to 12 as follows:-
"9. It cannot be disputed that in the present day grim situation of unemployment, a person's opportunity to be employed has been equated by the Apex Court as his right to life under
Article 21 of the Constitution of India. So, by denying employment to the petitioner, virtually, his fundamental right to life is sought to be taken away solely on the aforesaid technical consideration.
10. The Apex Court has repeatedly emphasised that when a person is denied his fundamental rights, such denial has to be based on a procedure which is just, reasonable and fair. There is no fixed standard of fairness. Fairness has to be judged in the facts and circumstances of each case and in judging the fairness of a procedure, the Court must have due consideration of the entire facts and circumstances of the case, including the societal condition in which the parties are placed. The case of a person who is trying to eke out his living by accepting the job of a bus Conductor must be judged with a standard of a fairness which is obviously a little different from the cases of business barons or those of corporate magnets. In the cases of persons who are lowly placed the Courts have a duty to stretch the law as far as possible, without violating it, to give relief to those persons.
11. Going by the aforesaid consideration, this Court finds that the decision of the respondent in the instant case in refusing the employment to the petitioner on the grounds mentioned above does not meet the standards of fairness of any person of ordinary prudence. Unfortunately, the learned Judge did not approach the issues involved in this case from this angle.
12. It is left to this Court to interpret and apply the rule in the light of Human Rights jurisprudence incorporated by the Apex Court in our laws and as a result of which the right to life as received a very liberal interpretation. So, we are constrained to take a different view from the one which has been taken by the learned Judge."
13. Yet another aspect that has to be seen is that, in toto, the respondents cannot reject a person merely because, he is a physically handicapped person. It has to be seen what is the percentage of disability and whether such disability will dis-entitle him from employing him as Conductor. Without knowing the disability and without seeking a certificate from him to show the extent of disability, the respondent Corporation cannot unilaterally decide that he cannot be employed to the post of Conductor. Further more, as stated already, the petitioner was temporarily employed as Conductor in the second respondent Corporation for a period of one year which is not disputed by the respondents. When the petitioner could be appointed temporarily as Conductor during festival seasons, while running special basis, it is not known why he cannot be appointed on permanent basis. It is a common knowledge that during festival seasons, it is difficult to manage the crowd and if the petitioner could manage such situation, it would be unacceptable to state that he could not be employed as Conductor during ordinary season. There is no rhyme or reason on the side of the respondents to put forth such plea.
14. Yet another aspect that has to be considered is that the petitioner had clearly set out in his affidavit that when other Transport Corporations are employing disabled persons, the second respondent Corporation alone doesn't employ disabled persons. While filing counter, the second respondent had not disputed the said aspect. Thus, there is a clear discrimination of the persons who seek employment in the second respondent Corporation.
15. Considering the above facts and circumstances, I am inclined to direct the third respondent to sponsor the name of the petitioner to the second respondent Corporation for the post of Conductor and the second respondent is directed to consider the case of the petitioner and to see whether the petitioner could be appointed as a Conductor considering the nature of disability and the extent of disability. The petitioner could also be directed to produce the certificate showing the percentage of disability. The respondents 2 and 3 shall borne in mind the discussion made above, while considering the case of the petitioner. The said exercise has to be carried out by the third and second respondents within a period of four weeks from the date of receipt of a copy of this order.
16. In fine, this writ petition is ordered accordingly. No costs.
mvs.
To
1. The Secretary to Government of Tamil Nadu Transport Department Fort St. George Chennai.
2. The General Manager Tamil Nadu State Transport Corporation Ltd (Madurai Division) Tirunelveli 627 003.
3. The District Employment Officer Tirunelveli 627 009.