R. Parthiban v. The State of Tamilnadu & Ors.

pertaining to the selection of the candidates for appointment aslecturer, the impugned order in OM No.4426/AA4/2007 dated 27.12.2007and quash the same and direct the respondents to appoint thepetitioner to the post of lecture in physics under the handicappedreservation.2. The writ petitioner is Orthopaedically challenged having postpolio residual paralysis in the left lower limbs. He is also a PostGraduate Degree holder in Physics having secured I class and hebelongs to backward community.3. The grievance of the petitioner is that though he is entitledto be appointed as a lecturer in physics under the reservation forpersons with disability, the respondent, by its Order dated27.12.2007 informed the petitioner that there was no availability ofvacancy based on the communal rotation and none of the physicallychallenged candidates were selected in the recruitment.4. The learned counsel for the petitioner submits that this iscontrary to the Constitutional rights, the provisions of Equalopportunities Act, the convention on Rights of Persons withDisabilities, the Central and State guidelines and decided case.5. The learned Advocate General, who was present in Court ,produced the G.O.Ms.No.87 dated 17.7.2008, by which, the State hasadopted 200 point roster for persons with disabilities amongst theGovernment Department, Corporations and Boards and divided theroster into six blocks, distributing it among the three categoriesof disabilities visual, hearing and Orthopaedically and as far aspossible in the ration of of 1:1:1 for e.g., "(1 - 33, 34 - 66, 67- 100, 101 - 133, 134 - 166 and 167 – 200)" and selecting him/her asagainst his/her community in the communal roster.6. He also submitted that the next roster point for backwardcommunity, to which, the petitioner admittedly belongs and therefore,subject to him fulfilling the other qualifications there might notbe any difficulty for appointment.7. The learned Government Advocate also submitted that it istrue that no person with disability has been appointed in this year .8. In spite of the Persons with Disabilities Act and the Rulesframed by the State, there seems to be some difficulty inimplementing the provisions of the Act fully either because of lackof awareness or perhaps lack of will. The State is duty bound toimplement the Act fully since the Act uses the word "shall" whilegiving protection to the Disability Rights. It does not give anyescape route to the employer from accommodating the persons with https://hcservices.ecourts.gov.in/hcservices/ disability whenever a vacancy arises.9. The relevant sections, G.Os and Memos are as follows:GOVERNMENT OF INDIAMINISTRY OF PERSONNEL, P.G AND PENSIONS DEPARTMENT OF PERSONNEL & TRAININGOffice MemorandumF.No.36035/16/91- Estt (SCT)Sub: Reservation of posts for the physicallyhandicapped persons in Group "C" and "D"posts/services in Government – revised procedurefor filling up the vacancies------The undersigned is directed to refer to the DOPTO,M.No.36035/17/85-Estt (SCT), dated 1.4.86 on thesubject mentioned above and to state that theGovernment had under consideration the method ofeffecting the 3% reservation for physicallyhandicapped persons in the light of the judment ofthe Supreme Court in Indira Sawhney Case(W.P.No.930 of 1990). The Court has held thatreservation for SC/ST/OBCs may be called verticalreservation and the reservation for physicallyhandicapped persons as horizontal reservation.Horizontal reservations cut across verticalreservation(in what is called interlockingreservation) and the persons selected against thephysically handicapped quota have to be placed inthe appropriate category; if he belongs to SCcategory he will be placed in that quota by makingnecessary adjustment and similarly if he belongs toopen competition (OC) category he will be placed inthat category by making necessary adjustment. Evenafter providing for these horizontal reservations,the percentage of reservation in favour of backwardclass of citizens should remain the same.2. In the light of the above-said observations ofthe Supreme Court, it has been decided that thephysically handicapped persons selected under thereservation provided for them should be placed in https://hcservices.ecourts.gov.in/hcservices/ the appropriate category viz., SC/ST/OBC/GeneralCategory depending upon the category to which theybelong. For example, if in a given year there are200 Group "C" vacancies, the reservation for SCswill be 54 and for General Category it will be 101.The vacancies reserved for physically handicappedwill be calculated as per the instructions on thesubject contained in O.M, dated 1.4.86. Suppose thevacancies for the physically handicapped in thatyear come to 6 and of the 6 physically handicappedcandidates selected, 1 belongs to the SC category,then the one physically handicapped SC candidatewill be adjusted against the 30 SC vacancies, theone physically handicapped ST candidate will beadjusted against the 15 vacancies and the 2physically handicapped OBC and General Secretarycandidates against the 54 OBC and 101 GeneralCategory vacancies respectively. The roster pointswill be filled up accordingly. The vacanciesreserved for the physically handicapped should beindicated along with the other vacancies so thatthe physically handicapped candidates can alsoapply along with the others.All the Ministries/Departments, are requestedto bring the above instructions to the notice ofall the Heads of Department and appointingauthorities under their control for necessarycompliance."Government of Tamil NaduAbstractWelfare-Welfare of the Disabled-Group A and Bcategories of posts -identification and reservationof Posts in Public Services Educational Institutionfor the Disabled persons-percentage of reservation-orders-issued._______________________________________Social Welfare and Nutritious Meal Programme(S.W.4) DepartmentG.O.Ms.No.53 Dated 11-04-2005................. https://hcservices.ecourts.gov.in/hcservices/ the quota reserved for physically handicappedpersons should be made as indicated under:_______________________________________S.NoCategory of HandicappedPercentage of Reservation_______________________________________1Blind1%2hearing impaired1%3Orthopaedically handicapped 1%_______________________________________2. The Government of India in its Memorandum Fifthread above gave instructions to the Ministries andDepartments. That with the enactment of thePersons with Disabilities(Equal opportunitiesprotection of Rights and Full Participation)Act,1995 the reservation to physically handicappedstood extended to identified groups "A" and "B"posts filled through Direct Recruitment.3. In the letters Sixth read above the Director ofRehabilitation of the Disabled requested theGovernment to issue a notification by ordering areservation of "A" and "B" posts to the benefit ofdisabled persons. The Director recommended for theconstitution of an expert committee to identify theposts which can be suitable for the disabledpersons.4. In the G.O, Seventh read above the Governmentconstituted an Expert Committee to identify certainposts under A and B groups. The Expert Committeesubmitted its report. In the G.O eighth read abovethe Government constituted an another committee toexamine further report furnished by the ExpertCommittee. The State Special Commissioner forDisabled subsequently was requested to identifymost suitable posts from out of the postsidentified in consultation with concerned H.O.Ds.In his letter 9th read above the State SpecialCommissioner for the Disabled has furnished afinalized list of 117 posts most suitable fordisabled persons under A and B groups.5.The Hon'ble Chief Minister has announced on thefloor of the Assembly under 110 of the Assemblyrule on 16.3.2005 that the Government have https://hcservices.ecourts.gov.in/hcservices/ identified 117 types of posts which are the mostsuitable posts for the disabled in "A" and "B"groups of posts; that the Government will notifythe list in the Gazette and that during therecruitment, 3% of the posts will be reserved forthe disabled.6. Based on the announcement made by the Hon'bleChief Minister the Government approve the list of117 posts identified under group A and B categoriesunder the purview of Teachers recruitment Board andthe TNPSC for the persons with Disabilities. TheGovernment also direct that 3% of the vacancies indirect recruitment for the identified posts of Aand B groups, where the rule of reservation isapplicable for the Scs/STs, B.Cs and othercommunities, shall be reserved for the disabledpersons. If only one post is available forrecruitment in these categories, the usualprocedure for recruitment will be followed. In sofar as executive posts are concerned the individualshall produce a certificate of physical fitnessfrom the Medical Board to the effect that theirhandicap will not affect the performance of the jobto which he/she has been selected, beforeappointment. https://hcservices.ecourts.gov.in/hcservices/ ANNEXURELIST OF POSTS IDENTIFIED UNDER GROUP A AND B CATEGORIES COMING UNDER THE PURVIEW FOTEACHERS RECRUITMET BOARD FOR THE PERSONS WITH DISABILITIES_______________________________________Name of the Post Physical Categories Group and Department require- of disabled ments persons suitable for the job______________________________________________Lecturer ST.H B/PB/ORTHO Aa)Govt Arts/b)Science Collegesc)Govt.Engg Collegesd)Govt.Polytechnis ___________________________________________________Abbervations_______________________________________________S.No Code Physical Requirements_________________________________________________ 1 ST Work performed by standing2 H Work performed by hearing/ speaking_______________________________________S.No Code Functional Classification_______________________________________ 1 B Blind 2 PB Partially Blind 3 Ortho Orthopaedically Handicapped_______________________________________ https://hcservices.ecourts.gov.in/hcservices/ No.36035/3/2004-Estt (Res)GOVERNMENT OF INDIAMINISTRY OF PERSONNEL, PUBLIC GRIEVANCES ANDPENSIONSDEPARTMENT OF PERSONNEL AND TRAINING***** New Delhi, the 29th December, 2005OFFICIAL MEMORANDUMSubject: Reservation for the Persons withDisabilities ................2. QUANTUM OF RESERVATION(i ) Three percent of the vacancies in case ofdirect recruitment to Group A,B,C and D posts shallbe reserved for persons with disabilities of whichone percent each shall be reserved for personssuffering from (i)blindness or low vision, (ii)hearing impairment and (iii) locomotor disabilityor cerebral palsy in the post identified for eachdisability;(ii) Three percent of the vacancies in case ofpromotion to Group D and Group C posts in which theelement of direct recruitment, if any, does notexceed 75% shall be reserved for persons withdisabilities of which one percent each shall bereserved for persons suffering from (i)blindness orlow vision, (ii) hearing impairment and (iii)locomotor disability or cerebral palsy in the postidentified for each disability;.............15. EFFECTING RESERVATION – MAINTENANCE OF ROSTERS:(a) All establishments shall maintain separate 100point reservation roster registers in the formatgiven in Annexure II for determining /effectingreservation for the disabled – one each for Group"A" posts filled by direct recruitment, Group "B" https://hcservices.ecourts.gov.in/hcservices/ posts filled by direct recruitment. Group "C" postsfilled by direct recruitment, Group "C" posts filedby promotion, Group "D" posts filled by directrecruitment and Group "D" posts filled bypromotion.(b) Each register shall have cycles of 100 pointsand each cycle of 100 points shall be divided intothree blocks, comprising the following points:1st Block – Point No.1 to Point No.332nd Block – Point No.34 to Point No.663rd Block - Point NO.67 to Point NO.100(c) Points 1, 34 and 67 of the roster shall beearmarked reserved for persons with disabilities –one point for each of the three categories ofdisabilities. The head of the establishment shalldecide the categories of disabilities for which thepoints 1,34 and 67 will be reserved keeping in viewall relevant facts.(d) All the vacancies in Group C posts falling indirect recruitment quota arising in theestablishment shall be entered in the relevantroster register. If the post falling at point No.1is not identified for the disabled or the head ofthe establishment considers it desirable not tofill it up by a disabled person or it is notpossible to fill up that post by the disabled forany other reason, one of the vacancies falling atany of the points from 2 to 33 shall be treated asreserved for the disabled and filled as such.Likewise a vacancy falling at any of the pointsfrom 34 to 66 or from 67 to 100 shall be filled bythe disabled. The purpose of keeping points 1, 34and 67 as reserved is to fill up the firstavailable suitable vacancy from 1 to 33, firstavailable suitable vacancy from 34 to 66 and firstavailable suitable vacancy from 67 to 100 bypersons with disabilities.10. Guidelines also provide that if the nature of vacancies inan establishment is such that a person of a specific category ofdisability cannot be employed, the vacancies may be interchangedamong the three categories.11. There are also provisions for relaxation in age limit. ByG.O.Ms.No.241 dated 29.10.2006 the Government directed that the 200 https://hcservices.ecourts.gov.in/hcservices/ point roster shall be given effect to with effect from 15.9.2007 andthe vacancies arising on and from the 15th September 2007 shall befilled up as per the 200 point roster and all selections forappointment shall be started afresh from serial number one of the 200point with effect on and from the said date.12. G.O.Ms.NO.200 dated 22.12.2006 ordered as follows:............5. CdKw;nwhUf;fhd khepy Mizahpd; fUj;JUtpida[k;jkpH;ehL muRg; gzpahsh; njh;thizaj;jpd; fUj;Jf;fisa[k;ftdkhf ghprPypj;j gpd;dh; muR gpd;tUk; Mizfis tH';FfpwJ: (m) kj;jpa murpy; 100 fhypg; gzpapl';fs; K:d;W fl;l';fshfgphpf;fg;gl;L x;t;bthU 33 fhypg; gzpapl';fSfFs; xUCdKw;wtiu njh;t[ bra;J ,dr;RHw;rp gl;oaypy; (communalroster) mth; ,dj;jpw;F vjpuhf mthpd; njh;it fzf;fpLtJnghd;W ,k;khepy;j;jpYk;nuR Jiwfs; fHf';fs; kwWk;thhpa';fspy; 100 g[s;sp fzf;;fPL gjpntl;oy; CdKw;nwhUf;fhdfhyp gzpapl';fSf;Fs; xU CdKw;nwhiu njh;t[ bra;J ,dRHw;fpgl;oaypy; (communal roster) mth; rhh;e;j ,dj;jpw;F vjpuhfmthpd; njh;it fzf;fpLk; Kiwia filgpof;f muR MizapLfpwJ..13. In letter Dated 4.8.2006 issued by the Secretary, SocialWelfare and Nutritious Meal Programme to the Secretary, Tamil NaduPublic Service Commission, there is reference to G.O.Ms.Nos.53 dated11.5.2005, 213 dated 15.9.2005 and other letters and paragraph-2 ofthe letter dated 4.8.2006 reads as follows:2. Regarding the clarifications sought for bythe Tamil Nadu Public Service Commission in theletters fourth an fifth cited the Governmentexamined the issue carefully in consultation withthe State Commissioner for the Disabled.Accordingly, the Government issue the followingclarification:1. If the vacancy notified is identified for allthe 3 categories (viz., Ortho, Deaf and Blind) ofdisabled persons then all the 3 categories ofdisabled persons may be accommodated against theirturns earmarked as per the reference first cited.2. If the vacancies notified are identified assuitable for only one category, then all the 3%vacancies may be allotted to that particularcategory as other two categories are not eligible.3. If the vacancies notified are identified for onlytwo of the three categories (say-blind & deaf & https://hcservices.ecourts.gov.in/hcservices/ Ortho (or) blind & Ortho) then the total number ofvacancies meant for the ineligible category of thedisabled should be distributed equally between thetwo eligible categories of disabled (if the totalnumber is even). If the total number is odd, theextra vacancy should go to that disability which hashigher population as per the 2001 census (This canbe adopted till next census)According to the Census 2001, the disabledpopulation distribution in Tamil Nadu is as follows:1. Visually Handicapped 9,64,0632.OrthopaedicallyHandicapped 3,53,7983.Speech impaired 1,24,479 &hearing impaired 72,636 1,97,115As per this census, the number of visually impairedpersons is greater than the number ofOrthopaedically handicapped persons which in turn ismore than the number of the hearing and speechimpaired persons (blind>Ortho>deaf)Thus if there are odd number of vacancies, the extravacancy should go to blind (if the eligiblecategories are blind and Ortho or blind and deaf)and should go to Ortho (if the eligible categoriesare ortho and deaf)The Step-by step procedure for formulating the aboveprinciple where only 2 out 3 disabled categories areeligible would be as follows:(i) Apply the 100 point roster as G.O.Ms.No.105,Personal & Administrative Reforms Department dated20.6.2000 for the total number of vacancies(ii) Arrive at the number of vacancies reserved fordisabled categories. All the three categories wouldbe present but one of them is no eligible.(iii) Arrive at the total number of vacanciesearmarked for this ineligible category of disabled(iv) Allot the first vacancy as per (ii) above tothat a category of eligible disabled which has the https://hcservices.ecourts.gov.in/hcservices/ higher population (blind>ortho>deaf)(v) Allot the second vacancy to the other eligibledisable category and the remaining vacanciesalternatively between the two eligible categories.Three illustrations in this regard and guidelinesfor utilizing the turns reserved for the disabledcategories for selection of Veterinary AssistantSurgeon are given in the annexure to this letter,which is as undersignedANNEXUREIllustration:1If the eligible categories for a post (sayAgriculture Officer are deaf & Ortho and if thereare 7 vacancies for the ineligible category of"blind" when the roster of G.O.Ms.NO.105 P&AR Dept.Dated 20.6.2000 is applied, then the first of these7 vacancies should go to "ortho" (because thepopulation of Orthopaedically handicapped persons isgreater than that of deaf). The second vacancyshould go to "deaf" the third vacancy to "ortho" andso on alternatively as follows:i) Orthoii) Hearing impairediii)Orthoiv)Hearing impairedv )Orthovi)Hearing Impaired vii)Ortho(4 Ortho and 3 hearing impaired)Illustration 2:If the eligible categories for the post (SayLecturer) are blind and Ortho and if there are 5vacancies for the ineligible category of deaf, whenthe roster of G.O.Ms.NO.105 Personnel andAdministrative Reforms Dept., dated 20.6.2000 isapplied, then the first of these, 5 vacancies shouldgo to blind because the population of blind personis greater than that of Ortho. The second vacancyshould go to "ortho" the third vacancy to "blind"and so on alternatively as follows: https://hcservices.ecourts.gov.in/hcservices/ i) Blindii) Orthoiii) Blindiv) Orthov) Blind(3 blind and 2 Ortho)If the vacancies of the ineligible disabled categoryare in even numbers, the vacancies should bedistributed between the other two eligiblecategories equally. The first vacancies of theineligible category should go to the disabilitywhich has the greater population. The second vacancyshould go to the other eligible category and theremaining vacancies should be filled alternatively;Illustration 3:If the eligible categories for a post are "blind"and "deaf" and if there 6 vacancies (even number ofvacancies) for the ineligible category of "ortho"when the roster of G.O.Ms.No.105, P&AR Dept, dated20.6.2000 is applied, then the first of these 6vacancies should go to blind (because the populationof blind persons is greater than that of deaf). Thesecond vacancy should go to "deaf" the third vacancyto "blind" and so on alternatively as follows:i) blindii)hearing impairediii)blindiv)hearing impairedv)blindvi)hearing impaired(3 blind and 3 hearing impaired)This letter makes it clear and give suitable examples. 14. In the case of Prof.I. Elangovan, Vellore vs Govt. Of TamilNadu and others reported in (2008) 3 MLJ 481, the First Bench held asfollows:8. With a view to realize the objective thatpeople with disabilities have same right, hopesand aspirations as every one else, and they are tobe provided with equal opportunities and ratherbetter incentives for their rehabilitation in thesociety, a meeting was held in Beijing on 1st to https://hcservices.ecourts.gov.in/hcservices/

5.12.1992 called the "Meet to Launch the Asian andPacific Decade of Disabled Persons". Aproclamation was adopted by the Asian an Pacificcountries to ensure "full participation andequality of people with disabilities in the Asianand Pacific regions"India was a signatory to tehsaid proclamation and with a view to implement thesame, the persons with Disabilities (Equalopportunities, Protection of Rights and FullParticipation) Act,1995 was enacted, which cameinto force on 1.1.1996.9. The Statement of Objects and Reasons to thisAct, which was appended to the Bill before it wasenacted, reads as under:"The Meeting to launch the Asian and PacificDecade of the Disabled Persons 1993-2002 convenedby the Economic and Social Commission for Asianand Pacific Region, held at Beijing on 1st to5.12.1992 adopted the proclamation on the fullparticipation and equality of people withDisabilities in the Asian and Pacific Region.India is a signatory of the said proclamation andit is necessary to enact a suitable legislation toprovide for the following(i) to spell out the responsibility of the Statetowards the prevention of disabilities, protectionof rights, provisions of medical care, education,training employment and rehabilitation of personswith disabilities.(ii) to create barrier free environment forpersons with disabilities;(iii) to remove any discrimination against personswith disabilities in the sharing of developmentbenefits, vis-a-vis, non-disabled persons,(iv) to counteract any situation of abuse andexploitation of persons with disabilities(v) to lay down a strategies for comprehensivedevelopment of programmes and services andequalisation of opportunities for persons withdisabilities; and https://hcservices.ecourts.gov.in/hcservices/ (vi) Accordingly, it is proposed to provideinter-alia for the constitution of Co-ordinationCommittees and Executive Committees at the Centraland State Levels to carry out the variousfunctions assigned to them. Within the limits oftheir economic capacity and development theappropriate Governments and the local authoritieswill have to undertake various rehabilitationservices etc., The Bill also provides foreducation, employment and vocation training,reservation in identified posts, research and manpower development and establishment of homes forpersons with severe disabilities etc., Foreffective implementation of the provisions of theBill appointment of the Chief Commissioner forpersons with disabilities at the Central level andCommissioners for persons with disabilities at theState level clothed with powers to monitor thefunds disbursed by the Central and StateGovernments and also to take steps to safeguardthe rights of the persons with disabilities isalso envisaged.10. Easily, employment rights of persons withdisabilities covered by Chapter-VI of the Actcontaining Sections 32 to 41 (except Section 39)which relates to education)comprise the mostempowering provisions of the Act as they yield themost tangible and substantial rights to personswith disabilities. Sec.32 of the Act provides thatin case a vacancy is not filled up due to non-availability of a suitable person with disability,the vacancy is to be carried forward in thesucceeding recruitment year.12. Indisputably the Tamil Nadu State andSubordinate Service Rules, which provide forreservation in the State and Subordinate Servicesin favour of the persons with disabilities, is apiece of legislation traceable to Entry 41 ListII. Its legislative competency cannot be doubted.It is essentially a legislation in respect ofState services. It contemplates that the rule ofreservation shall apply separately to eachdepartmental unit,.20. We have therefore no hesitation to hold thatthe provisions of Sec.33 read with Section 2(k) https://hcservices.ecourts.gov.in/hcservices/ of the Act would prevail over the Tamil Nadu Stateand Subordinate Service Rules and the respondentsare duty bound to provide reservation of not lessthan 3% in every establishment i.e., departmentfor persons with disabilities in accordance withSec.33 of the Act.21. On behalf of the TNPSC, the charts showingthe vacancy positions, as per Section 33 read withSection 2(k) of the Act, are filed on record. Asper the charts 80 vacancies are liable to bereserved for the post of Typist and 8 vacanciesfor the post of Steno-Typist for persons withdisability under Notification/AdvertisementNo.135. As regards Notification No.142, 99vacancies are liable to be filled up from amongthe persons with disabilities. We are informedthat for the post of Typist and Steno-Typist, theTNPSC has received in all 2151 applications andfor the post of Junior Assistants, Bill Collectorsetc., falling under Grade-IV service, 524applications have been received in disabledcategory. Accordingly, we direct the TNPSC tofill up the said 187 vacancies exclusively byappointing eligible disabled candidates. The writpetitions are disposed of accordingly. No costs.Consequently, connected miscellaneous petitionsare closed. 15. Therefore, this squarely comes to the aid of the writpetitioner. In addition, the recent judgment of the Hon'bleSupreme Court in (2007) 8 SCC 621 (Mahesh Gupta vs Yashwant KumarAhirwar and Ors), the Apex Court held as follows:10. The State in terms of Article 16 of theConstitution of India may make two types ofreservations—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 upthe reserved posts for handicapped persons. A specialdrive was to be launched therefor. The circular letterwas issued only for the said purpose. A bare perusalof the said Circular Letter dated 29-3-1993 wouldclearly show that the State had made 3% reservationfor blinds and 2% for other physically handicapped https://hcservices.ecourts.gov.in/hcservices/ persons. Such a reservation falling within Clause (1)of Article 16 of the Constitution has nothing to dowith the object and purport sought to be achieved byreason of Clause (4) thereof.12. Disability has drawn the attention of the worldwide community. India is a signatory to variousinternational treaties and conventions. The State,therefore, took a policy decision to have horizontalreservation with a view to fulfil its constitutionalobject as also its commitment to the internationalcommunity. A disabled is a disabled. The question ofmaking any further reservation on the basis of caste,creed or religion ordinarily may not arise. Theyconstitute a special class. The advertisement,however, failed to mention in regard to thereservation for handicapped persons at the outset,but, as noticed hereinbefore, the vacant posts wererequired to be filled up for two categories ofcandidates; one for Scheduled Caste and ScheduledTribe candidates and other for handicapped candidates.Handicapped candidates have not been furtherclassified as belonging to Scheduled Castes, ScheduledTribes and general category candidates. 13. It is a travesty of justice that despite the Stateclarified its own position in its order dated 1-1-2004and stated that the posts were vacant under thehandicapped quota but it completely turned turtle andtook a diagonally opposite stand when a contemptpetition was filed. In its reply in the saidproceedings, reference was made to the aforementionedorder dated 1-1-2004 but within a short time viz. on4-2-2004 it opined on a presumption that as the word“handicapped” was not mentioned in the heading ofadvertisement they were meant only for Scheduled Casteand Scheduled Tribe candidates. Rule of executiveconstruction was given a complete go-by.Reasonableness and fairness which is the hallmark ofArticle 14 of the Constitution of India was completelylost sight of. The officers of the State behavedstrangely. It prevaricated its stand only because acontempt proceeding was initiated. If the State waseager to accommodate the writ petitioner-respondent,it could have done so. It did not take any measure inthat behalf. It chose to terminate the services ofsome of the employees who had already been appointed.Such a course could not have been taken either in law https://hcservices.ecourts.gov.in/hcservices/ or in equity. The State is expected to have aconstitutional vision. It must give effect to theconstitutional mandate. Any act done by it should beconsidered to have been effected in the light of theprovisions contained in Part IV of the Constitution ofIndia. The State in terms of the provisions containedin Part IV should have given effect to the principlesembodied in Article 39 of the Constitution of India.Whereas a reasonable reservation within the meaning ofArticle 16 of the Constitution of India should notordinarily exist (sic exceed), 50%, as has been heldby this Court in Indra Sawhney v. Union of India1,reservation for women or handicapped persons would notcome within the purview thereof.14. Furthermore, when the decision was taken, thePersons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995(for short “the 1995 Act”) had come into force. Interms of the 1995 Act, the States were obligated tomake reservations for handicapped persons. The Statecompletely lost sight of its commitment both under itsown policy decision as also the statutory provision.15. For the reasons aforementioned, we not only setaside the judgment of the High Court but also directthat the persons whose services have been terminatedin terms of order dated 4-2-2004 should be continuedin service. We furthermore direct that they should bepaid back wages as also other service benefits.Respondent 1 could have been considered both ashandicapped persons as also Scheduled Castes andScheduled Tribes. If all the vacancies meant forScheduled Castes and Scheduled Tribes had not beenfilled up, the State may consider appointing him. Ifhe has already been appointed, the State may considerthe desirability of creating a supernumerary post andcontinue his service therein.16.On 30th March, 2007 India also joined the community of 82countries to have signed the UN Convention on Rights of Persons withDisabilities (CRPD) on the very day it was adopted and opened forsignature. India has now ratified the Convention on 1st October,2007. https://hcservices.ecourts.gov.in/hcservices/

17. CRPD is the first comprehensive human rights treaty of the21st century and though it does not create any new right for personswith disabilities, it seeks to contextualize existing rights for thespecific circumstances of persons with disabilities. Apart fromuniversal fundamental rights like equality, non-discrimination, life,liberty, the Convention covers a number of key areas of life that arecritical to persons with disabilities such as accessibility, personalmobility, health, education, employment, habilitation andrehabilitation, participation in political life. The Conventionmarks a shift in viewing disability from a social welfare concern toa human rights issue, which involves acknowledging that societalbarriers and prejudices are themselves disabling. Article 12 is thecore of Convention and guarantees equal recognition as persons beforethe Law for persons with mental and intellectual disabilities.The salient features of CRPD are,(1) the shift in the paradigm of disability rights from one ofwelfare to one of human rights agenda; (2) the mainstreaming of intellectual and mental disabilities withinthe disability scheme and with other citizens; (3) it is an undivided package of rights – i.e. health rights are notdelinked from economic, civil and other rights; (4) All disabled persons have the capability to exercise their rightsbecause the CRPD grants them equality of legal capacity irrespectiveof their mental capacity.18. Therefore, on this ground also, the petitioner herein isentitled for the relief sought for.19. Therefore, the impugned order passed by the 2nd respondentin OM No.4426/AA4/2007 dated 27.12.2007 is hereby quashed and thewrit petition stands allowed. The petitioner shall be appointed tothe post of Lecturer in Physics under the handicapped reservation.Since the writ petitioner belongs to a backward community, which is https://hcservices.ecourts.gov.in/hcservices/ the next roster point, shall be considered subject to thefulfilling of the other qualifications required for suchappointment. The respondents are granted three months time from thedate of receipt of copy of this order to complete this exercise. Nocosts. Consequently, connected MP is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrTo1. The Secretary to Government The State of Tamilnadu Department of Education Fort St. George,Chennai-9.2. Chairman, The Teachers recruitment Board E.V.K. Sampath Maligai College Road, Chennai-600 006+1cc to Govt. Pleader SR 58020+1cc to M/s.A.Arulmozhi, Advocate Sr 57777MDR(CO)km/20.11.W.P.No.3858 of 2008