Shri Chhotulal Namdev Patil v. The State of Maharashtra & Ors.

Mr. N.V. Bandiwadekar for the petitioner. Mr. S.D. Rayrikar, AGP for respondent Nos. 1 and 2. Mr. Mandar Limaye for respondet Nos. 3 and 4. 2 ALONGWITH WRIT PETITION NO.4726 OF 2009 Shri Krishna Nagesh Dandekar .... Petitioner. V/s The State of Maharashtra & Ors. .... Respondents. Mr. N.V. Bandiwadekar for the petitioner. Mr. S.D. Rayrikar, AGP for respondent Nos. 1 and 2. Mr. Mandar Limaye for respondet Nos. 3 and 4. CORAM: V.M. KANADE, J. DATE : 15TH JULY, 2009 P.C:-

1. All these three Petitions can be disposed of by common order since the issue involved in all these three Petitions is same and respondents also are common.

2. Heard the learned Counsel for the Petitioners and the learned Counsel for respondent Nos. 1 and 2. 3

3. Rule. Respondents waive service. Rule is made returnable forthwith by consent of parties.

4. Petitioners are challenging the order passed by the Deputy Director of Education who has refused to grant sanction to the appointments of petitioners in the handicapped category in the post of Assistant Teacher, made by the respondent – Management.

5. Brief facts are that there were 17 posts reserved for handicapped persons in the respondent – school. Petitioners, pursuant to advertisement issued by the Management, applied for the said post. In the advertisement, it was stated that the candidates should attend interview alongwith all original certificates. Petitioners, thereafter, were interviewed by the School Committee and they issued order of appointment and, 4 accordingly, petitioners joined the school as Assistant Teachers in the handicapped category under the provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. In view of the provisions of the said Act, 3% of the total number of posts are to be reserved for handicapped persons. It is an admitted position that out of total number of posts which are available in the institution, 17 posts have to be reserved for the handicapped category as it constituted 3% of the total number of posts. The Management, thereafter, made an application to the Deputy Director of Education for approval to the appointments of the petitioners herein. Initially, approval was granted to the said application by the Deputy Director of Education by his order dated 4/2/2008. Thereafter, by order dated 29/1/2009, the said approval was withdrawn and cancelled by the Deputy Director of Education and, therefore, the petitioners were constrained to file Writ Petitions in this Court. 5

6. In the said Writ Petitions, a direction was given to Deputy Director of Education by this Court to hear the petitioners and, thereafter, pass appropriate orders. Accordingly, Deputy Director of Education heard the petitioners herein. However, by order dated 9/4/2009, approval was not granted by Deputy Director of Education. While rejecting the application for approval, Deputy Director of Education stated that certificate produced by the petitioners in respect of they being handicapped, was produced either after the date of interview or order of appointment.

7. Being aggrieved by the aforesaid order, petitioners have again approached this Court by filing present Writ Petitions under Articles 226 and 227 of the Constitution of India. 6

8. The learned Counsel appearing on behalf of the petitioners invited my attention to the certificate issued by Civil Surgeon/J.J. Group of Hospitals in which it has been stated that the Petitioner – Chhotulal Namdev Patil is deaf and this disability is 48%, Petitioner in Writ Petition No. 4724/2009 has 40% disability and Petitioner in Writ Petition No.4726/2009 has 48% disability. However, certificates show that all three petitioners are fit to work as Assistant Teachers. He further pointed out that there is no rule which says that at the time of interview or before issuing letter of appointment, original certificate has to be produced by the handicapped person to prove his disability and, as such, Deputy Director of Education was not justified in not granting approval merely because these certificates were produced either after the interview or after the date of issuance of letter of appointment. The learned AGP also was not in a position to point out any rule which stipulates that at the time of interview itself the said certificate has to be 7 produced by the handicapped persons. It is nobody’s case that, though, at the time of interview some other handicapped persons had produced necessary certificate, they had not given appointments and present petitioners have been appointed in the said posts.

9. In my view, there is clear non-application of mind by the Deputy Director of Education in refusing to grant approval to the appointments of petitioners herein. Under section 33 of the said Act, however, institution has to reserve 3% of its posts for handicapped persons. The certificates produced by the petitioners from competent authority clearly show that they are handicapped and fall in the said category. This fact has not been disputed by Deputy Director of Education. In the affidavit-in- reply also, it is not the case of respondents that the petitioners are not handicapped and do not fall under the aforesaid category. That being the position, merely because certificates 8 have been produced after the interview was over, that alone could not be a ground for not approving their appointments. The Deputy Director of Education, therefore, has committed an error of law which is apparent on the face of record particularly when there is no statutory bar for production of such certificates either after the date of interview or after the date of appointment.

10. Accordingly, all the three Writ Petitions are allowed. The impugned order is quashed and set aside. The Deputy Director of Education is directed to grant approval to the appointments of petitioners as expeditiously as possible and in any case within a period of four weeks from today. Petitioners have not been paid salary for more than 7 months though the interim order was passed by this Court directing the Deputy Director of Education to pay the petitioners their salary which had become due and payable. Respondents Nos. 1 and 2 shall 9 release the salary of the petitioners herein expeditiously and within a period of four weeks from today. Rule is made absolute in the aforesaid terms.

11. All these three Writ Petitions are accordingly