[AI] the mahesh gupta judgement.

moiz tundawala moiztundawala at gmail.com
Tue Sep 4 05:58:52 EDT 2007


Hello friends.
I am pasting the entire judgement over here. I cannot copy paste a
link directly from the address bar. So my sincere apologies for this.

Supreme Court Of India

JUDGEMENT INFORMATION SYSTEM


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
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  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
(Science)
-    08    03
Hr. Sec. Exam
(Intermediate)
Science with the
Subjects, Physics,
Chemistry, Biology
1200-
2040
4.  Artists cum-
-     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)  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
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"

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:
"Therefore, 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
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
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  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  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.

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.


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