Prof. I. Elangovan v. The Government of Tamil Nadu

PRAYER: W.P.No.35808 of 2007: Petition filed under Article 226 of the Constitutionof India for the issuance of a writ of declarationdeclaring that Clause 5(D) read with the Annexure to theimpugned Notification/Advertisement No.135 dated15.11.2007 issued by the 2nd respondent insofar as notproviding 3% of reservation of posts as provided underSection 33 of the PWD Act 1995 for the recruitment to theposts advertised and Clause 11 of the impugnedNotification/Advertisement No.135 dated 15.11.2007 andClause 12 of the General Instructions, etc. to candidatesinsofar as not granting any concession in the matter ofApplication Fee and laying down onerous conditions toavail Exam Fee Exemption to Persons With Disabilities areillegal and consequently to direct the 2nd respondent toreserve 3% posts for persons with disabilities as perSection 33 of the PWD Act, 1995 vertically and also notto collect Application and Examination Fee from thepersons with disabilities, and award costs. W.P.No.36777 of 2007: Petition filed under Article 226 of the Constitutionof India for the issuance of a writ of declarationdeclaring that Clause 4 of the impugnedNotification/Advertisement No.142 dated 06.12.2007 issuedby the 2nd respondent insofar as not providing 3% ofreservation of posts as provided under Section 33 of thePWD Act, 1995 for the recruitment to the posts advertisedand Clause 16(A) and 13 of the impugnedNotification/Advertisement No.142 dated 06.12.2007 andClause 12 conditions to avail Exam Fee Exemption topersons with disabilities are illegal and consequently todirect the 2nd respondent to reserve 3% posts for personswith disabilities as per Section 33 of the PWD Act, 1995vertically and also not to collect Application andExamination Fee from the persons with disabilities. Mr.D.Hari Paranthaman :: For Petitioners in both the W.Ps.Mr.V.T.Gopalan, :: For Respondent – 2 in both the W.Ps.Addl.Solicitor Generalassisted by Ms.C.N.G.Ezhilarasi Mr.Raja Kalifulla, :: For Respondents 1&3 in both the W.Ps.Government Pleader assisted by Mr.V.R.Thangavelu, G.A. https://hcservices.ecourts.gov.in/hcservices/ O R D E R THE HON’BLE THE CHIEF JUSTICEThese petitions raise identical question of law and areconcerned with the interpretation of Section 33 of the The Personswith Disabilities (Equal Opportunities, Protection of Rights andFull Participation) Act, 1995 (hereinafter referred to as ‘the Act’for short) and other related provisions of the Act. Accordingly,these petitions are being disposed of by this common judgment.2. The petitioner, who is a Professor and Head of EnglishDepartment, Vellore College, and a Member of the Academic Counciland a Syndicate Member of the Thiruvalluvar University, Vellore, hasfiled these petitions in public interest questioning the validity ofthe Notification/Advertisement No.135 dated 15.11.2007 andNotification/Advertisement No.142 dated 6.12.2007 issued by thesecond respondent-The Tamil Nadu Public Service Commission (TNPSCfor short) principally on the ground that the TNPSC has not followedthe rule of 3% reservation as provided under Section 33 of the Actfor the recruitment to the posts advertised. The further grievanceof the petitioner is that no concession has been granted in thematter of application fee and also an onerous condition has beenlaid to avail exam fee exemption to persons with disabilities. 3. Notification/Advertisement No.135 dated 15.11.2007 has beenissued by the TNPSC calling for applications to fill 3368 vacanciesthrough direct recruitment for the post of Typist and 507 vacanciesfor the post of Steno-Typist in Group-IV service for the year 2006-07. Clause 5(d) of the said Notification/Advertisement states thatrule of reservation for the persons with disabilities would applyfor the recruitment. By Notification/Advertisement No. 142 dated6.12.2007 the TNPSC has called for applications to fill 4103vacancies through Special Recruitment Examination to be held on17.12.2008 for the post of 75 Junior Assistants (Security), 256 BillCollectors (Grade-I) and 3772 Junior Assistants (Non-Security) inGroup-IV service. Clause 6(e) of the said Notification/Advertisementalso provides that the rule of reservation for the persons withdisabilities applies for this recruitment. 4. The petitioner contends that as per Section 33 of the Act,not less than 3% post shall be reserved for persons withdisabilities. Therefore, 100 Typist posts and 15 Steno-Typist postsshould be reserved in pursuance of Notification/Advertisement No.135and similarly, 123 posts should be reserved for persons withdisabilities in pursuance of Notification/Advertisement No.142.Notification/Advertisement No.135, however, provides reservation https://hcservices.ecourts.gov.in/hcservices/ only for 32 posts of Typist and 4 posts of Steno-Typist for thepersons with disabilities as follows: -TYPIST-NUMBER OF RESERVED POSTS (32)(as found in the Annexure)Social CategoryBlind DeafOrtho(Locl-Motor)General Turn(General)131--Backward Class(General)--4--Backward Class(Women)--5--MostBackward/Denotified Communities(General)----9Total13109Grand Total 13 + 10 +9 = 32 (Shortfall 69)STENO-TYPIST- NUMBER OF POSTS RESERVED (4)(as found in the Annexure)Social CategoryBlind DeafOrtho(Locl-Motor)General Turn(General)2----Backward Class(General)--1--Backward Class(Women)----1MostBackward/Denotified Communities(General)----9Total211Grand Total 2 + 1 +1 = 4 (Shortfall 11)Similarly Notification/Advertisement No.142 providesreservation for only 32 posts for persons with disabilities asfollows: -NUMBER OF RESERVED POSTS (32)SocialCategoryBlindDeafOrtho (Locl-Motor)General Turn(General)1311 https://hcservices.ecourts.gov.in/hcservices/ BackwardClass(General)--11BackwardClass (Women)--6Most BackwardDenotifiedCommunities(General)1--7ScheduledCaste(Gen)1--Total1589 Grand Total 15 + 8 + 9 = 32 (Shortfall 91)5. The submission of the petitioner is that the impugnedNotifications/Advertisements denying legitimate reservation topersons with disabilities are contrary to the statutory guaranteeunder Section 33 of the Act. 6. In the counter filed on behalf of the respondents, it is notdisputed that the reservation at the rate of 3% is to be accorded tothe handicapped persons. Even other wise, the respondents are boundto do so in view of their own rules as well as the provisions of theAct. It is, however, contended that as per Rule 22 of the Tamil NaduState and Subordinate Service Rules, the rule of reservation ofappointments shall apply only department/unit wise. Foradministrative convenience and practical purposes, some of thedepartments have been divided into various units and insofar as 3%reservations for physically handicapped persons is concerned, wherethe vacancies furnished by the departments/units happen to be below100 mark, no reservation in favour of physically handicapped personsis permissible. The vacancies in most of the departments/units donot even touch 10, as a result no reservation could be made for thecategory of persons with disabilities. It is further contended thatthe Government in G.O.Ms.No.241, P & AR (K) Department dated29.10.2007 has prescribed a roster containing 200 turns foreffecting all the reservation groups (both main reservation groupsand internal reservation groups). If and when the wheel of 200 turnscompletes its full circle, all the reservation categories wouldstand accommodated.7. Mr.Hari Paranthaman, learned counsel appearing for thepetitioner contended that in view of definition of ‘establishment’contained in clause (a) of Section 2 read with Section 33 of theAct, the respondents are duty bound to appoint in everyestablishment such percentage of vacancies not less than 3%, and theState rule providing for reservation on unit basis is whollyinconsistent with the provisions of the Act. He submitted that the https://hcservices.ecourts.gov.in/hcservices/ Act has been enacted by the Parliament in exercise of Article 253 ofthe Constitution to give effect to the International Conventionrelating to People with Disabilities and the provisions of the Actwould prevail over the State rules. On the other hand, learnedAdditional Solicitor General and learned Government Pleaderappearing for the TNPSC and State respectively submitted that theRules framed by the State Government providing reservations to thepersons with disabilities in the services of the State fall withinthe competence of State Legislature. The Rules essentially aretraceable to Entry 41 of List II and, therefore the question ofthere being any repugnancy between the Rules framed by the StateGovernment and the provisions of the Act does not arise. Learnedcounsel submitted that the legislative competence of the Statecannot be doubted, and that the reservations have been rightlydetermined on the basis of the State Rules.8. With a view to realize the objective that people withdisabilities have same right, hopes and aspirations as every oneelse, and they are to be provided with equal opportunities andrather better incentives for their rehabilitation in the society, ameeting was held in Beijing on 1st to 5th December, 1992 called the“Meet to Launch the Asian and Pacific Decade of Disabled Persons”. Aproclamation was adopted by the Asian and Pacific countries toensure ‘full participation and equality of people with disabilitiesin the Asian and Pacific regions’. India was a signatory to the saidproclamation and with a view to implement the same, The Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 was enacted, which came into force on 1stJanuary, 1996. 9. The Statement of Objects and Reasons to this Act, which wasappended to the Bill, before it was enacted, reads as under: -“ The meeting to launch the Asian and PacificDecade of the Disabled Persons 1993-2002convened by the Economic and Social Commissionfor Asian and Pacific Region, held at Beijing on1st to 5th December, 1992 adopted the proclamationon the Full Participation and Equality of Peoplewith Disabilities in the Asian and PacificRegion. India is a signatory of the saidproclamation and it is necessary to enact asuitable legislation to provide for thefollowing: -(i) to spell out the responsibility of theState towards the prevention of disabilities,protection of rights, provisions of medicalcare, education, training employment andrehabilitation of persons with disabilities;(ii) to create barrier free environment forpersons with disabilities;(iii) to remove any discrimination againstpersons with disabilities in the sharing of https://hcservices.ecourts.gov.in/hcservices/ development benefits, vis-à-vis, non-disabledpersons;(iv) to counteract any situation of abuse andexploitation of persons with disabilities;(v) to lay down a strategies for comprehensivedevelopment of programmes and services andequalization of opportunities for persons withdisabilities; and(vi) Accordingly, it is proposed to provide interalia for the constitution of Co-ordinationCommittees and Executive Committees at theCentral and State Levels to carry out thevarious functions assigned to them. Within thelimits of their economic capacity anddevelopment the appropriate Governments and thelocal authorities will have to undertake variousrehabilitation services, etc. The Bill alsoprovides for education, employment and vocationtraining, reservation in identified posts,research and manpower development, andestablishment of homes for persons with severedisabilities, etc. For effective implementationof the provisions of the Bill, appointment ofthe Chief Commissioner for persons withdisabilities at the Central level andCommissioners for persons with disabilities atthe State level clothed with powers to monitorthe funds 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 with disabilitiescovered by Chapter-VI of the Act containing Sections 32 to 41(except Section 39 which relates to education) comprise the mostempowering provisions of the Act as they yield the most tangible andsubstantial rights to persons with disabilities. Section 32 of theAct provides for identification of posts, Section 33 of the Actprovides for reservation of posts and Section 36 thereof providesthat in case a vacancy is not filled up due to non-availability of asuitable person with disability, the vacancy is to be carriedforward in the succeeding recruitment year. The relevant provisionsof the aforesaid sections read as under: -Section 32: Identification of posts which can bereserved for persons with disabilities: -Appropriate Governments shall –(a)identify posts, in the establishments, which canbe reserved for the persons with disability. (b)at periodical intervals not exceeding threeyears, review the list of posts identified and https://hcservices.ecourts.gov.in/hcservices/ up-date the list taking into consideration thedevelopments in technology. Section 33: Reservation of posts: - Everyappropriate Government shall appoint in everyestablishment such percentage of vacancies notless than three per cent, for persons or classof persons with disability of which one per centshall be reserved for persons suffering from (i)blindness or low vision, (ii)hearing impairment and (iii)locomotor disability or cerebral palsy, in theposts identified for each disability.Provided that the appropriate Government may,having regard to the type of work carried on inany department or establishment, by notificationsubject to such conditions, if any, as may bespecified in such notification, exempt anyestablishment from the provisions of thissection. Section 36: Vacancies not filled up to becarried forward: - Where in any recruitment yearany vacancy under Section 33, cannot be filledup due to non-availability of a suitable personwith disability or, for any other sufficientreason, such vacancy shall be carried forward inthe succeeding recruitment year and if in thesucceeding recruitment year also suitable personwith disability is not available, it may firstbe filled up by interchange among the threecategories and only when there is no person withdisability available for the post in the year,the employer shall fill up the vacancy byappointment of a person, other than a personwith disabilityProvided that if the nature of vacancies inan establishment is such that a given categoryof person cannot be employed, the vacancies maybe interchanged among the three categories withthe prior approval of the appropriateGovernment. 11. It is apparent from reading of the aforesaid provisions,that the appropriate Government is statutorily enjoined to appointin every establishment such percentage of vacancies not less than 3%for persons with disabilities, of which 1% each shall be reservedfor three categories mentioned in Section 33 of the Act. The term‘establishment’ has been defined in Section 2(k) of the Act to mean https://hcservices.ecourts.gov.in/hcservices/ ‘a corporation established by or under a Central, Provincial orState Act, or an authority or a body owned or controlled or aided bythe Government or a local authority or a government company asdefined in Section 617 of the Companies Act, 1956 (1 of 1956) andincludes departments of a Government.’. Therefore, each departmentof the Government has to be treated as an ‘establishment’, and theGovernment is bound to reserve not less than 3% vacancies in anestablishment in posts identified in accordance with Section 32 ofthe Act. There is no dispute that the present recruitment is inrespect of Group ‘C’ and ‘D’ services and all the posts can bereserved for persons with disability. 12. Indisputably, the Tamil Nadu State and Subordinate ServiceRules, which provide for reservation in the State and SubordinateServices in favour of the persons with disabilities, is a piece oflegislation traceable to Entry 41 List II. Its legislativecompetency cannot be doubted. It is essentially a legislation inrespect of State services. It contemplates that the rule ofreservation shall apply separately to each departmental unit. 13. The question that falls for consideration is whether theprovisions of the Act shall prevail over the Tamil Nadu State andSubordinate Service Rules insofar as providing reservation in favourof persons with disabilities in the services of the State. 14. Undoubtedly, the Act has been enacted in order to giveeffect and implement the proclamation adopted at Beijing on 1st to 5thDecember, 1992 for providing full participation and equality ofpeople with disabilities in the Asian and Pacific regions. Article253 of the Constitution confers power upon Parliament to make anylaw for the whole or any part of the territory of India forimplementing any treaty, agreement or convention with any othercountry or countries or any decision made at any internationalconference, association or other body. Under Article 253, inimplementing a treaty, agreement or convention with any othercountry or countries (Entry 14 List I) or any other decision made atany international conference, association or other body (Entry 13List I), the limitations imposed by Articles 245 and 246(3) areremoved and the total field of legislation is open to the UnionParliament. The importance attached to the treaties andinternational obligations is further emphasized by Article 51, whichmakes it a directive of State Policy to foster respect forinternational law and treaty obligations in dealings of organizedpeople with one another. Therefore, the competency of thelegislature of any State and exclusive power to make laws for thewhole of the State or any part thereof with respect to any of thematters enumerated in List I in the 7th Schedule, referred to as theState list in the Constitution, itself is subject to the power ofParliament to make any law for the whole or any part of the https://hcservices.ecourts.gov.in/hcservices/ territory of India for implementing any treaty, agreement orconvention with any other country or countries or any decision madein any international convention, association or other body. 15. Mr. H.M.Seervai, in his classic book ‘Constitution Law ofIndia’ (4th Edition (Volume I) page 306) states that Article 253 ofthe Constitution appears to have been enacted in order to avoid thedifficulties faced by Canada in implementing the internationalagreement or convention. In A.G. for Canada v. A.G. for Ontario,1937 AC 326, the Privy Council struck down as ultra vires threelabour Acts passed by the Dominion Parliament, which gave effect tothe draft convention adopted by the International LabourOrganisation in accordance with the treaty of Versailles andratified by Canada. The Privy Council held that the Dominion couldnot merely by making promises to foreign countries clothe itselfwith legislative authority inconsistent with the Constitution whichgave it birth, and as the impugned laws related to ‘property andcivil rights in the province’ a subject of exclusive provinciallegislative power under Section 92 (13) of B.N.A. Act, they werevoid. In other words, a power to implement a treaty did not includea power to legislate on a subject of exclusive provinciallegislation. To prevent such a position arising in India, Article253 enables Parliament to implement a treaty by law even if thesubject matter of the law is a subject of exclusive Statelegislation. 16. In Ref.By Presidnet of India under Article 143(1), AIR 1960SC 845, the Supreme Court explained the scope of Article 253 asfollows: -“ The effect of Article 253 is that if a treaty,agreement or convention with a foreign statedeals with a subject with the competence of theState Legislature, the Parliament alone has,notwithstanding Article 246(3), the power tomake laws to implement the treaty, agreement orconvention or any decision made at anyinternational conference, association or otherbody. In terms, the Article deals withlegislative power thereby power is conferredupon the Parliament which it may not otherwisepossess.”17. In Maganbhai v. Union of India, AIR 1969 SC 783, Shah, J.,in his concurring judgment observed: -“ Article 253 occurs in Chapter I of Part XI ofthe Constitution which deals with legislativerelations, Distribution of Legislative Powers.By Article 245 of the territorial operation of https://hcservices.ecourts.gov.in/hcservices/ legislative power of the Parliament and theState Legislatures is delimited, and Article 246distributes legislative power subject-wisebetween the Parliament and the StateLegislatures. Articles 247, 249, 250, 252 and253 enact some of the exceptions to the rulecontained in Art.246. The effect of Art.253 isthat if a treaty, agreement or convention with aforeign state deals with a subject within thecompetence of the State Legislature, theParliament alone has, notwithstanding Article246(3), the power to make laws to implement thetreaty, agreement or convention or any decisionmade at any international conference,association or other body. In terms, the Articledeals with legislative power: thereby power isconferred upon the Parliament which it may nototherwise possess.” 18. In S.Jagannath v. Union of India, 1997 (2) SCC 87, a two-Judge Bench of the Supreme Court held that the Environment(Protection) Act, 1986, being a Central Legislation, has overridingeffect. The Environment (Protection) Act, 1986 has been enactedunder Entry 13 List I of Schedule VII of the Constitution of India.The preamble to the Act clearly states that it was enacted toimplement the decisions taken at the United Nations’ Conference onthe Human Environment held at Stockholm in June 1972. Parliament hasenacted the Act under Entry 13 of List I Schedule VII read withArticle 253 of the Constitution of India. The CRZ Notificationhaving been issued under the Act shall have overriding effect andshall prevail over the law made by the legislatures of the States.These observations were made while adverting to the question as towhether the provisions of the State legislations including that ofthe State of Tamil Nadu regulating the costal aquaculture industriesset up in the costal areas were required to be in conformity and inconsonance with CRZ Notification issued by the Government of Indiaunder Section 3(3) of the Environment (Protection) Act, 1986. TheSupreme Court held that the CRZ Notification shall have overridingeffect and shall prevail upon the State Legislations. 19. In Perambaduru Murali Krishna and Others v. State of AndhraPradesh and Others, 2005 1 PDD (CC) 231, a Division Bench of theAndhra Pradesh High Court was concerned with the State Rule whichdid not provide for 1:1:1 reservation for visually handicapped,hearing handicapped and orthopaedically handicapped candidates,though 3% reservation was provided under the Rules. The DivisionBench held that the provisions of Section 33 of the Act wouldprevail over the A.P. State and Subordinate Service Rules insofar asproviding 1:1:1 reservation in favour of the persons withdisabilities in the services of the State. The followingobservations of the Division Bench are pertinent: - (Paras. 30 & 37) https://hcservices.ecourts.gov.in/hcservices/ “30.The heart of the Indian FederalConstitution is distribution of legislativepowers between the Union Parliament on one handand Provincial Legislatures on the other hand.Laws of both actual and potential have beenseparated into certain classes and those classesrespectively are assigned either to the Centralor to the Provincial authority. As has beenobserved, Article 253 of the Constitution ofIndia makes an exception to that general ruleand but for the exception so made, theParliament could not legislate as to thoseclasses of subjects, which have been assignedexclusively to the Provincial legislation.…….. …….. ……..37. The division of powers jurisprudence isreplete with instances where the subjects in oneaspect and for one purpose fall within the UnionList, may in another aspect and for anotherpurpose fall within the State List. Under suchsituation, there may be both a valid federal lawand valid provincial law directed to the samepersons concerning the same things, but requirefrom them different courses of conduct and thushaving certain different effect. In case of twoenactments called for inconsistent behaviourfrom the same people, they are in conflict or incollusion and both cannot be obeyed. In thesecircumstances, the doctrine of dominionparamountcy would be applicable and the federallaw is to prevail and the provincial one becomesinoperative and need not be observed. Theprovincial law remains under suspension so longas there is a federal law inconsistent with theprovincial law. Thus, it is a principle of ourConstitution that in the event of collusionbetween the federal law and provincial law, eachvalid, the federal features of the former laware considered in the last analysis moreimportant than the provincial features of law.The doctrine of ‘dominion paramountcy’ isinbuilt into Article 253 of the Constitution ofIndia. It would be legitimate to presume thatour founding fathers were actually aware of thecomplexities and accordingly, incorporatedArticle 253 in Part XI of the Constitution. Inthe light of thisArticle, it is evident that thesituation similar to the one arising in Canada https://hcservices.ecourts.gov.in/hcservices/ by virtue of 1937 decision afore mentioned maynot arise.”20. We have therefore no hesitation to hold that the provisionsof Section 33 read with Section 2(k) of the Act would prevail overthe Tamil Nadu State and Subordinate Service Rules and therespondents are duty bound to provide reservation of not less than3% in every establishment i.e., department for persons withdisabilities in accordance with Section 33 of the Act. 21. On behalf of the TNPSC, the charts showing the vacancypositions, as per Section 33 read with Section 2(k) of the Act, arefiled on record. As per the charts 80 vacancies are liable to bereserved for the post of Typist and 8 vacancies for the post ofSteno-Typist for persons with disability underNotification/Advertisement No.135. As regards, Notification No.142,99 vacancies are liable to be filled up from among the persons withdisabilities. We are informed that for the post of Typist and Steno-Typist, the TNPSC has received in all 2151 applications and for thepost of Junior Assistants, Bill Collectors, etc. falling underGrade-IV service, 524 applications have been received in disabledcategory. Accordingly, we direct the TNPSC to fill up the said 187vacancies exclusively by appointing eligible disabled candidates.The writ petitions are disposed of accordingly. No costs.Consequently, connected miscellaneous petitions are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.pv/sm Copy to:- 1. The Government of Tamil Nadu, rep. by its Chief Secretary, Fort St.George, Chennai – 9. 2. The Tamil Nadu Public Service Commission, https://hcservices.ecourts.gov.in/hcservices/ rep. by its Secretary, Omandoorar Govt. Estate, Anna Salai, Chennai – 2. 3. The Secretary, Revenue Department, Government of Tamil Nadu, Fort St.George, Chennai – 9. 1 cc to Mr.C.N.G. Ezhilarasi, Advocate, Sr. 176621 cc to Mr.D. Hariparanthaman, Advocate, Sr. 172823 ccs to Government Pleader, sr. 13216, 17192, 17191W.P.Nos.35808 & 36777 of 2007. GV (CO)kk 11/7