[AI] the mahesh gupta judgement.

Rajesh Asudani rajeshasudani at rbi.org.in
Tue Sep 4 06:48:03 EDT 2007


Ratio of  this judgment may said to be;:

1. Reservation for persons with disability is horizontal in nature and so is 
not affected by 50% sealing.

2. Ordinarily reservation for persons with disabilities may not be 
compartmentalized on the basis of cast/religion etc.

The first proposition is already well-established and I am not convinced 
about the language employed in second, particularly use of the word 
"ordinarily" which makes it weak and may render it merely an obiter.

I am also disconcerted by poor linguistic endeavor of hon'ble judges who 
delight in using words like "handicapped" even after legally sanctioned 
semantic usage: "persons with disabilities".
Apart from common emotive connotations of the words like "handicapped", I am 
concerned with their actual susceptibility to misinterpretations like only 
orthopedically disabled, excluding other categories  by one and all.

Rajesh
----- Original Message ----- 
From: "moiz tundawala" <moiztundawala at gmail.com>
To: <accessindia at accessindia.org.in>
Sent: Tuesday, September 04, 2007 3:28 PM
Subject: [AI] the mahesh gupta judgement.


> 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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