IN THE (High Court of , Nagaland, Mizoram and )

Writ Petition (C) No. 3340 of 2013

1) Miss Dipamoni , D/o- Sri Giri Kanta Kalita, Resident of village –, P.O- Khaga, District- Lakhimpur, Assam.

...... Petitioner - Versus –

1) The State of Assam, represented by the Secretary to the , Education (Elementary) Department, , -6.

2) The Commissioner and Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-6.

3) The Director of Elementary Education, Assam, Kahilipara, Guwahati-19.

4) The Inspector of Schools, Lakhimpur District Circle, Lakhimpur, North-Lakhimpur, Assam.

... Respondents

B E F O R E HON’BLE MR. JUSTICE T. VAIPHEI, CHIEF JUSTICE (ACTING)

For the petitioner: Mr. N.M. Hazarika, Advocate For the respondents: Ms. R. Roy Choudhury, SC, Elementary Date of Hearing : 18-02-2016 Date of Judgment: 23-02-2016

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JUDGMENT & ORDER (CAV)

Aggrieved by the refusal of the State-respondents to appoint the petitioner to the post of Assistant Teacher in the Upper Primary Schools of Lakhimpur District against the post reserved under the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 (“the Act” for short), this writ petition is filed by her seeking the intervention of this Court.

2. The facts and circumstances leading to the filing of this case may be briefly noticed at the outset. The petitioner is having deformity left knee heaping gait with a disability percentage of 40 (forty) as certified by in the Identify Card issued by the District Social Welfare Officer, Lahimpur issued on 6-12-2012. There is no dispute at the bar that the nature of disability suffered by the petitioner comes within the meaning of “locomotor disability”. She passed B.A. Final Examination in Arts stream with Political Science as her major subject in the year 2003. She also passed Teacher Eligibility Test in the year 2012 by scoring 62% marks. In response to the advertisement published in the Assamese daily “Amar Asom” in its issue dated 21-11-2012, she applied for the posts of teachers in the provincialized Upper Primary Schools for the Lakhimpur District under physically handicapped category. The advertisement indicated that there were 85 posts of Assistant Teachers in the Upper Primary level lying vacant and further that only orthopaedically handicapped candidate with 40% disability might apply under Physically Handicapped category as per norms fixed by Social Welfare Department, Government of Assam. She duly appeared in the selection process. The Directorate of Elementary Education, Assam initially published the names of provisional select list wherein her name found a place at Serial No. 23 in the physically handicapped category. However, in the final select list for the posts of Assistant Teachers of Upper Primary level schools in various categories of Lakhimpur District dated 19-5-2013, her name did not find a place. On coming to know of her exclusion from the final select list, she immediately submitted an application to the Education Minister, Assam on 25-5-2013 to consider her name for the post of Assistant

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Teacher in any Upper Primary School of Lakhimpur District, but to no avail. It is the contention of the petitioner that the respondent authorities violated the provisions of the Act in not selecting her even though one post is definitely reserved for physically handicapped category. This is how this writ petition has been filed by her seeking appropriate remedy.

3. The State-respondents contested the writ petition and filed their affidavit-in-opposition. The stance taken by them in the affidavit is somewhat alarming. According to them, the case of the petitioner was considered by the District Selection Committee and found that 40 marks were wrongly added in the total marks secured by her instead of treating her as candidate with 40% physical disability. It was after deducting the said 40 marks from the total marks secured by her, she managed to secure only 162.20 marks instead of 202.20 and did not, therefore, qualify in the merit list: this is how her name did not figure in the final select list dated 19-5- 2013. In their additional affidavit, the answering respondents further clarify that out of 318 posts earmarked for Lakhimpur District, there were 174 posts in Lower Primary Schools and 144 posts in Upper Primary Schools and out of 144 posts of Upper Primary Schools, 85 posts were set aside for Assistant Teachers in Upper Primary Schools. Three candidates belonging to physically handicapped category applied for the posts of Assistant Teachers and secured the following marks as under:

1. Miss Arpana Baruah (OBC/MOBC) --- 169.77 2. Miss Dipamoni Kalita (OBC/MOBC) --- 162.20 (The petitioner) 3. Gokul (General) --- 147.57

4. It is also stated by the answering respondents that the State Level Selection Committee prepared the merit list by restricting the zone of consideration of candidates at the ratio of 1:4, but the petitioner and the above-named two candidates did not come into the zone of consideration and the name of the petitioner was naturally not included in the final select list. It is pointed out by the answering respondents that two physically

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handicapped candidates were appointed as Assistant Teachers in Lower Primary Schools under Lakhimpur District vide the order dated 28-6-2013 and that all the posts which were advertised on 19-11-2012 have already been filled up. It is reiterated that the name of the petitioner was reflected in the provisional select list by wrongly adding 40 marks as per her disability percentage thereby granting her 202.20 marks, which is impermissible. After deducting the said 40 marks, her position was reduced to second position in the merit list of physically handicapped category.

5. Unfolding his submissions, Mr. NM Hazarika, the learned counsel for the petitioner, contends that though the petitioner undoubtedly has the requisite qualification for the post of Assistant Teacher in Upper Lower Primary School and has a locomotor disability to the extent of 40% and was selected in the provisional select list, she was not included in the final select list without any rhyme or reason: such action is arbitrary and in breach of the provisions of the Act. Drawing my attention to the final select list (Annexure-6), the learned counsel submits that not even one candidate was selected from physically handicapped category thereby defeating the noble object of giving level playing field to persons with disabilities as mandated by the Act. The statements of the State-respondents in their additional affidavit, maintains the learned counsel, that two physically handicapped candidates have already been appointed as Assistant Teachers of Lower Primary School and that all the posts which were advertised on 19-11-2012 have been filled up are misleading inasmuch as the petitioner is concerned with Assistant Teacher of Upper Primary School of Lakhimpur district and that all the advertised posts could not have been filled up when this Court by the interim order dated 17-6-2013 had directed that one post of Assistant Teacher of Upper Primary School in Lakhimpur district should be kept vacant. The learned counsel for the petitioner, therefore, strenuously urges that this is a fit case for the interference of this Court to set the wrong right.

6. On the hand, Mrs. R. Roy Choudhury, the learned standing counsel for Education (Elementary) Department, Assam, supports the impugned action of the State-respondents and submits that reservation for categories

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such as persons with disabilities and ex-servicemen is called horizontal reservation which is in contradistinction to vertical reservation (in what is called interlocking reservation) applicable to SCs/STs and OBCs and persons selected against the quota for persons with disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. She further contends that according to Section 33 of the Act, reservation to the persons with disabilities in an establishment shall be 3% of the vacancies arising in the posts which are identified for the persons with disabilities, but when the petitioner could not come within the zone of consideration, she has been rightly denied of the selection. She time and again emphasises that all the posts which were advertised on 19-11-2012 have been filled up and there is no vacancy to accommodate the petitioner at this belated stage. She, therefore, submits that there is absolutely no merit in this writ petition, which is liable to be dismissed.

7. At the outset, I am constrained to observe that the a benevolent legislation like Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been allowed to remain on paper for years thereby defeating the very purpose of the legislative policy and legislation. On one pretext or another, the State-respondents are making an attempt to circumvent or sabotage the provisions of the Act: the instant case is a classic example of such sabotage. In the words of the Apex Court in Sunanda Bhandare Foundation v. Union of , (2014) 14 SCC 383, the role of the Governments in the matter of such as this has to be proactive. In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief- oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on the mercy of others. A welfare State, that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity.

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8. Before proceeding further, to appreciate the controversy, it will be beneficial to refer to the provisions of Sections 32, 33 and 36 of the Act:-

“32. Identification of posts which can be reserved for persons with disabilities.—Appropriate Governments shall— (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 update the list taking into consideration the developments in technology.

33. Reservation of posts.—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. * * *

36. Vacancies not filled up to be carried forward.—Where in any recruitment year any vacancy under Section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when

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there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.”

9. The Apex Court, after considering the aforesaid provisions and other provisions of the Act together with the Office memoranda issued by the Central Government, laid down the principles for computation of reservation for persons with disabilities in the case of Group A, B, C and D and the same are found at paragraphs 37, 38, 39, 40, 41, 52, 53 and 54 of the judgment, which are as under:

“37. ….. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3% vacancies in an establishment out of which 1% each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy. 38. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the establishment concerned will have to reserve a minimum of 3% for persons with disabilities out of which at least 1% has to be reserved separately for each of the following disabilities: persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him/her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in Group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of Store Attendant in Group D post. Likewise, one person suffering from

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locomotor disability or cerebral palsy will be appointed against the post of “Farash”, Group D post identified for that category of disability. It was argued on behalf of the Union of India with reference to the post of driver that since the said post is not suitable to be manned by a person suffering from blindness, the above interpretation of the section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may not be identified as suitable for one category of disability, the same could be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the section has clarified this situation by providing that the number of vacancies equivalent to 1% for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment. 39. It has also been submitted on behalf of the appellants herein that since reservation of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre strength according to the OM dated 29-12-2005 but the actual import of Section 33 is that it has to be computed against identified posts only. This argument is also completely misconceived in view of the plain language of the said section, as deliberated above. Even for the sake of argument, if we accept that the computation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservation between Group A and B posts or Group C and D posts respectively. As such, one statutory provision cannot be interpreted and applied differently for the same subject-matter. 40. Further, if we accept the interpretation contended by the appellants that computation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has

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shown that identification has never been uniform between the Centre and the States and even between the departments of any Government. For example, while a post of middle school teacher has been notified as identified as suitable for the blind and low vision by the Central Government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc. This has led to a series of litigations which have been pending in various High Courts. In addition, Para 4 of the OM dated 29-12-2005 dealing with the issue of identification of jobs/posts in sub-clause (b) states that list of the jobs/posts notified by the Ministry of Social Justice and Empowerment is not exhaustive which further makes the computation of reservation uncertain and arbitrary in the event of acceptance of the contention raised by the appellants. 41. Another contention raised by the appellants is that the computation of reservation against the total vacancies in the cadre strength in Group A and B will violate the rule of 50% ceiling of reservation in favour of SC, ST and OBC as laid down by this Court in Indra Sawhney v. Union of India4 This contention is also not tenable and is against the abovesaid judgment. It is difficult to understand as to how the computation of reservation against total vacancies in the cadre strength in Group A and B will violate 50% ceiling when its computation on that basis in Group C and D will not violate the said ceiling. There is no rationale of distinguishing between the manner of computation of reservation with regard to Group A and B posts on the one hand and manner of computation of reservation with regard to Group C and D posts on the other on this ground. * * * 52. Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz. “computing 3% reservation on total number of vacancies in

4 1992 Supp (3) SCC 217

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the cadre strength” which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29-12-2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new office memorandum(s) consistent with the decision rendered by this Court. 53. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney4 is not applicable with respect to the disabled persons. 54. We also reiterate that the decision in R.K. Sabharwal9 is not applicable to the reservation for the persons with disabilities because in the abovesaid case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST and OBC, which is vertical reservation, whereas reservation in favour of persons with disabilities is horizontal.”

10. The judgment in the National Federation of the Blind (supra) has to be extensively reproduced by me so that the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it: after all, knowing the real nature and extent of the reservation made for the differently abled persons is of immense importance. In the instant case also, the respondent authorities are either probably not aware of this aspect of the law or have deliberately ignored it to circumvent the law. Either way, they have wittingly or unwittingly flouted the legislative policy and the legislation by not accommodating the petitioner against one post of Assistant Teacher of Upper Primary School in the Lakhimpur district. There is no question of the name of the petitioner not falling within the zone of consideration. The petitioner is obviously entitled to be selected against one post of Assistant Teacher of Upper Primary School in Lakhimpur district in terms of the provision of Section 33 of the Act. It is evident from the final select list that no physically handicapped person has been selected or appointed. For example, as per the Office Memorandum dated 29-12-2005 issued by the Central Government, inter-se exchange and carry forward of

9 R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745

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reservation in case of direct recruitment is permissible. Reservation for each of the three categories of persons, namely, persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy, shall be made separately. But if the nature of vacancies in an establishment is such that a person of a specific category of disability cannot be employed, the vacancies may be interchanged among the three categories with the approval of the Ministry of Social Justice and Empowerment and reservation may be determined and vacancies filled accordingly. I do no see any reason why this salutary principle should not made applicable to the State of Assam. The justification given by the respondent authorities that the petitioner did not find a place in the merit list or that the two posts of Assistant Teachers in Lower Primary School have been filled up by differently abled candidates does not hold water inasmuch as, as already found by me, not even one physically handicapped candidate has been selected for the post of Assistant Teacher of Upper Primary School against the one percent quota reserved for locomotor disability or on merit. Therefore, the concept of horizontal reservation harped upon by the learned standing counsel cannot be pressed into service to defeat the legitimate claim of the petitioner. As already noticed, this Court by the interim order dated 17-6-2013 had directed the respondent authorities to keep one post of Assistant Teacher of Upper Primary School in Lakhimpur district vacant. The inaction of the respondent authorities in not selecting the petitioner for appointment to the post of Assistant Teacher against the quota reserved for a candidate suffering from locomotor disability is, therefore, arbitrary and contrary to the provisions of the Act. As no other reason is advanced by the respondent authorities and the reasons given by them to deny the appointment are found to be misconceived and do not have a leg to stand on, this is a case where positive direction can be issued to them for issuing the appointment order to the petitioner qua UOI v. Anglo-Afghan Agencies, AIR 1968 SC 718.

11. For what has been stated in the foregoing, this writ petition succeeds. Therefore, let a writ of mandamus issue directing the respondent authorities to appoint the petitioner to the post of Assistant Teacher of Upper Primary

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School in Lakhimpur district subject, however, to police and medical verifications within a period of two months from the date of receipt of this judgment. The parties are, however, directed to bear their own costs.

CHIEF JUSTICE (ACTING)

Alam

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