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IN the GAUHATI HIGH COURT Writ Petition (C) No. 3340 of 2013

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IN the GAUHATI HIGH COURT Writ Petition (C) No. 3340 of 2013 IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Writ Petition (C) No. 3340 of 2013 1) Miss Dipamoni Kalita, D/o- Sri Giri Kanta Kalita, Resident of village –Amguri, P.O- Khaga, District- Lakhimpur, Assam. ............ Petitioner - Versus – 1) The State of Assam, represented by the Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-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 WP(C) No. 3340/13 Page 1 of 12 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 WP(C) No. 3340/13 Page 2 of 12 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 Saikia (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 WP(C) No. 3340/13 Page 3 of 12 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 WP(C) No. 3340/13 Page 4 of 12 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 India, (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.
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