B.Jayaraman v. The Special State Commissioner for Rehabilitation of Disabled

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 22.12.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWRIT PETITION NO.17048 OF 2008andM.P.No.2 of 2008 1.B.Jayaraman,2.P.Chinnadurai,3.K.Muthumanivannan. ... Petitioners vs.1. The Special State Commissioner for Rehabilitation of Disabled, No.15/1, Model School Road, Thousand Lights, Chennai-600 006.2. The Secretary, Government of Tamil Nadu, Social Welfare Department and Nutritious Meal Scheme Department, Fort St. George, Chennai-9.3. The Secretary, School Education Department, Fort St. George, Chennai-9. 4. Director of School Education, DPI Complex, College Road, Nungambakkam, Chennai-6.5. College Students and Graduates Association of Blind, No.58, Thakkar Baba Vidyalaya, Venkatanarayana Road, T.Nagar, Chennai-600 017, Represented by its Founder-Secretary. https://hcservices.ecourts.gov.in/hcservices/

6. Assistant Director, Office of the Employment and Training, Santhome High Road, Santhome, Chennai-600 004.7. District Employment Officer, Special Office for Disabled, Santhome High Road, Santhome, Chennai-600 004. ... Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus, calling for therecords of the second respondent in G.O.(Standing) No.232 SocialWelfare and Nutritious Meal Scheme (Sa.Na.9) Department dated3.12.2007 and of the third respondent in G.O.(Standing) No.114 SchoolEducation (Va.Sa.2) Department dated 30.5.2008 so far as (para 4) isconcerned and quash the same and direct the respondents 2 and 3 toinclude visually handicapped graduates/postgraduates in Commerce,Economics, Music, Political Science and other subjects with requiredqualification for recruitment of teachers post in High School andHigher Secondary School in proportionate to their numbers apart fromHistory and Tamil.For Petitioners : M/s.Kovi RamalingamFor Respondents : Mr.V.Manoharan, Government Advocate for R1 to R4, 6 and 7 : No appearance for R5O R D E RWrit Petition is filed to issue a Writ of CertiorarifiedMandamus, calling for the records of the second respondent in G.O.(Standing) No.232 Social Welfare and Nutritious Meal Scheme(Sa.Na.9) Department dated 3.12.2007 and of the third respondent inG.O.(Standing) No.114 School Education (Va.Sa.2) Department dated30.5.2008 so far as (para 4) is concerned and quash the same anddirect the respondents 2 and 3 to include visually handicappedgraduates/post graduates in Commerce, Economics, Music, PoliticalScience and other subjects with required qualification forrecruitment of teachers post in High School and Higher SecondarySchool in proportionate to their numbers apart from History andTamil. https://hcservices.ecourts.gov.in/hcservices/

2. Petitioners three in number visually handicappedpostgraduates are before this Court to redress their grievance withregard to non consideration of their claim for employment. The firstpetitioner Thiru B.Jayaraman, holds Master Degree in Commerce(M.Com.), Bachelor Degree in Education(B.Ed.) and M.Phil. The secondpetitioner Thiru P.Chinnadurai, holds Master Degree in Commerce(M.Com.), Bachelor Degree in Education (B.Ed.) and M.Phil. The thirdpetitioner Thiru K.Muthumanivannan, holds Master Degree in Commerce(M.Com.) and Master Degree in Education(M.Ed.). They are enrolledwith Employment Exchange under the Special Category. According tothe petitioners, the fifth respondent, College Students and GraduateAssociation of Blind, T.Nagar, Chennai espouses the cause of blindpersons. From time to time, this Association has been approachingthe Government, School Education Authorities and the Social WelfareDepartment, Government of Tamilnadu to consider the claim forsuitable appointment in respect of the visually handicappedpersons. Consequent to the request made by the fifth respondentAssociation, it appears the Government has been issuing SpecialGovernment Orders for the benefit of visually handicapped persons inthe matter of employment as teachers in High Schools and HigherSecondary Schools. It is pointed out by the petitioners that underG.O.(Standing) No.48 Social Welfare and Nutritious Meal SchemeDepartment dated 5.4.2005, 100 visually handicapped graduates andpostgraduates were appointed as teachers in the following manner:-Tamil : 50 teachersEnglish: 50 teachersAs per G.O.Ms.No.733 Education, Science and Technology (M1)Department dated 29.8.1994, 30 visually handicappedgraduates/postgraduates were appointed in the subject Tamil andHistory. As per G.O.Ms.No.232 Social Welfare and Nutritious MealScheme Department dated 3.12.2007, based on the recommendation of theSpecial State Commissioner for Rehabilitation for Disabled, 200visually handicapped graduates/postgraduates blind teachers wereappointed. Of which 100 were appointed in the subject Tamil and 100were appointed in the subject History. The G.O.Ms.No.232 dated3.12.2007 reads as follows:-"nkw;fhQqk; fUj;JU murhy; ftdkhf ghprPypf;fg;gl;L. ghh;itaw;wfy;Y}hp khzth;fs; kw;Wk; gl;ljhhp r';fj;jpdh; cah;epiyg; gs;spfs; kw;Wk;nky;epiyg; gs;spfspy; jkpH; kw;Wk; tuyhW ghl';fis fw;gpf;f ntiytha;g;g[ mYtyf';fspy; gjpt[ bra;J fhj;jpUf;Fk; ghh;itaw;wth;fisf; bfhz;L 100jkpH; kw;Wk; 100 tuyhW Mrphpah; gzpapl';fis njh;t[ thhpaj;jpd; K:yk;epug;g rpwg;g[ mDkjp mspf;f muR ,irtspf;fpwJ/" https://hcservices.ecourts.gov.in/hcservices/ Realising that the graduates and the postgraduates in Economics,Commerce, Political Science, English, Music, Computer Science, etc.,are not being considered in spite of repeated representations andrequests from the fifth respondent Association and also from theindividual concerned, the petitioners have filed the writ petition. 3. It is pointed out by the petitioners that the firstrespondent Special State Commissioner for Rehabilitation for Disabledin his proceedings Na.Ka.No.12108/Ck.3-1/2007 dated 28.2.2008 hasaddressed a letter to the Assistant Director, Employment Exchange,Chennai-4 and the District Employment Exchange Officer, EmploymentExchange for Disabled, Chennai-4 to give the list of visuallyhandicapped persons who are qualified in other subjects other thanTamil and History so as to forward his recommendation to theGovernment for employment. The first petitioner has also made asimilar request to the first respondent Special State Commissioner toconsider their claim for suitable employment. The first respondentrecommended the claim of the petitioners in his proceedingsNa.Ka.No.12108/Ck.3-1/2007 dated 25.3.2008 addressed it to theSecretary to the Government, Social Welfare and Nutritious MealScheme Department, Secretariat, Chennai-9 and reads as follows:-"ghh;it 1?y; fhQqk; murhizapy;. cah;epiy kw;Wk; nky;epiyg;gs;spfspy; jkpH;. tuyhW ghlg;gphpt[fspy;. ntiyf;fhf ntiy tha;g;g[ mYtyfj;jpy; gjpt[ bra;J fhj;jpUf;Fk; jFjpa[ila ghh;itaw;nwhiuf;bfhz;L jyh 100 ,l';fs; tPjk; 200 Mrphpah; gzpapl';fs; epug;g Mizbtspaplg;gl;lJ/Mdhy;. jkpH;. tuyhW kl;Lkpd;wp ,ju ghlg;gphpt[fspYk; KJfiyg;gl;lk; bgw;W KJepiy gl;ljhhp Mrphpah; gjtpf;F jFjp bgw;Ws;sghh;itaw;nwhh; gyUk; ntiy tha;g;gf';fspy; ntiyf;fhf gjpt[ bra;Jfhj;jpUg;gjhy; nkw;fz;l murhizapd;fPH; ,ju ghlg; gphpt[fspy; KJfiyg;gl;lk; bgw;wth;fisa[k; nrh;j;J Mrphpah; gzpaplk; tH';FkhW gy;ntWghh;itaw;w egh;fs; nfhhpf;if tpLj;Js;sdh;/mt;thW nfhhpf;if Vw;ff;Toajhf ,Ug;gjhy;. nkw;go murhizapy;Fwpg;gplg;gl;Ls;s jkpH; kw;Wk; tuyhW Mfpa ghlg;gphpt[fspy; gapd;wth;fSf;Fkl;Lkpd;wp ,ju ghlg;gphpt[fspy; (bghUshjhuk;. tzpftpay;. murpay; mwptpay;.M';fpyk;) KJfiy gl;ljhhp Mrphpah; gzpf;F jFjp bgw;w ghh;itaw;wth;fisf;bfhz;Lk; gzpapl';fs; epug;gpLk; tifapy; murhiz tH';Fk;go nfl;Lf;bfhs;fpnwd;/"This recommendation was made, realising that in G.O.Ms.No.232 dated3.2.2007 visually handicapped persons with necessary qualificationsare appointed only in the subject of Tamil and History denying suchopportunity to others because they hold degrees in other subjects.The claims of visually challenged persons having valid qualification https://hcservices.ecourts.gov.in/hcservices/ in other subjects were totally ignored. The claims of thepetitioners and similarly placed persons were recommended by theSpecial State Commissioner for the Government for appropriate action.Based on this recommendation, the Deputy Secretary to Government,Social Welfare Department addressed a letter to the Director ofSchool Education on 29.4.2008 and the gist of recommendations readsas follows:-"ghh;it 1?y; fhQqk; murhizapy;. (efy; ,izf;fg;gl;Ls;sJ)cah;epiy kw;Wk; nky;epiyg; gs;spfspy; jkpH;. tuyhW ghl';fis fw;gpf;fntiytha;g;g[ mYtyf';fspy; gjpt[ bra;J fhj;jpUf;Fk; ghh;itaw;wth;fisf;;bfhz;L 100 jkpH; kw;Wk; 100 tuyhW Mrphpah; gzpapl';fis. 1/6/2008 Kjy;Mrphpah; njh;t[ thhpaj;jpd; K:yk; epug;g rpwg;g[ mDkjp mspf;f ,irgspf;fg;gl;lJ/2/ nkYk;. murhiz vz; 733. rK:f eyk; kw;Wk; rj;Jzt[ jpl;lj;Jiwehs; 29/8/1994?d;go. 1994?y; 30 egh;fSf;Fk; (jkpH;. tuyhW. M';fpyk; ghl';fspy;kl;Lk;) 2005?y; 100 egh;fSf;F (jkpH; 50 tuyhW 50) Mrphpah; gzpapl';fs;epug;g Mizaplg;gl;Ls;sJ/3/ ghh;it ,uz;oy; cs;s CdKw;nwhUf;fhd khepy Mizahpd;fojj;jpy; (efy; ,izf;fg;gl;Ls;sJ) nkw;fz;l murhizapd; fPH; ,ju ghlg;gphpt[fspy; (bghUshjhuk;. tzpftpay;. murpay;. M';fpyk;) KJfiyg; gl;lk;bgw;wth;fisa[k; nrh;j;J Mrphpah; gzpaplk; tH';FkhW ghh;itaw;w egh;fs;nfhhpf;if tpLj;jjd; nghpy;. mth;fisf; bfhz;Lk; gzpaplk; epug;gpLk; tifapy;murhiz tH';Fk;go nfl;Lf; bfhz;Ls;shh;/4/ ,f;fUj;JU Fwpj;J j';fspd; Fwpg;ghd fUj;JUf;fis bgWkhWgs;spf; fy;tpj;Jiw Mnyhrid tH';fpa[s;sjhy;. ,f;fUj;JUtpd; kPJ j';fspd;Fwpg;ghd fUj;JUf;fis muRf;F cld; mDg;g[k;go nfl;Lf;bfhs;sg;gzpf;fg;gl;Ls;nsd;/"4. While the above recommendation was under consideration, tothe shock and surprise of the petitioners, the Government issuedanother G.O.Ms.No.114 School Education (Va.Sa.2) Department dated30.5.2008 whereby for the year 2008-2009, 200 posts are recommendedfor the visually challenged persons in the subject of Tamil andHistory. Therefore, the petitioners have come before this Court toquash the G.O.Ms.No.232 dated 3.12.2007 and G.O.Ms.No.114 dated30.5.2008 stating that there is a total discrimination insofar as thevisually challenged persons who are qualified in subjects other thanTamil and History. 5. According to the learned counsel for the petitioners, theGovernment, while considering the case of visually challenged personscannot discriminate the graduates and postgraduates who are qualifiedand competent to be appointed as teachers in subjects other thanTamil and History. This discrimination is arbitrary and the two https://hcservices.ecourts.gov.in/hcservices/ G.Os. issued granting exclusive benefits to the graduates andpostgraduates of Tamil and History as a special case under thevisually challenged persons category, should not be allowed as thevery object of the Government is to provide employment to visuallychallenged persons based on their educational qualification. Thefurther categorization in the subject of Tamil and History creates anartificial wedge in the matter of employment denying the claims ofhundreds of persons like petitioners. There is no rational in theG.Os. The exclusive reservation given for visually challengedpersons to the subject of Tamil and History has deprived the rightto life and livelihood of the petitioners and the similarly placedgraduates and postgraduates, who are otherwise qualified in subjectslike, Commerce, Economics, Maths, Political Science, Music, English,etc. 6. In many cases, it has been pointed out by the learnedcounsel for the petitioners that most of the visually challengedpersons are languishing without employment for more than a decade,whereas visually challenged persons in Tamil and History are givenpreferential treatment. The above said plea of the petitioners isjustified and the benefits are given to visually challenged personsby creating an artificial class based on their educationalqualification. The Government is not alive to the need of thevisually challenged persons who are qualified in other subjects.There is no rational in the discrimination made in the two G.Os.,which are challenged. This will amount to deprivation of opportunityto a class of disabled who have attempted to overcome theirdisability, but have been sidelined by the State by creating anartificial class based on subject. The object of the State should beto uplift the visually challenged persons as one class, if they havethe necessary educational requirement by providing equal opportunityin employment. The division and denial of opportunity does notpromote the cause of the States obligation to uplift thedisadvantaged class of people. 7. Learned counsel for the petitioners also pointed out beforethis Court the publication made in the Newspaper of 5th August, 2009(Dinakaran) where it published that the Government has proposed tofill up 6500 teachers post including graduates as well aspostgraduates teachers in High School and Higher Secondary School. 8. In such a situation, the claim of the petitioners and thesimilarly placed persons who are qualified in subjects other thanHistory and Tamil should be considered keeping in line with therecommendation made by the Special State Commissioner forRehabilitation and for Disabled and the recommendation of theSecretary to Government Social Welfare Department. This will setright the anomaly that has been rightly pointed and agitated by thepetitioners. https://hcservices.ecourts.gov.in/hcservices/

9. The writ petitioners have challenged the two impugned G.Os.,stating that it is discriminatory and arbitrary. Insofar asG.O.Ms.No.114 dated 30.5.2008 is concerned, the Government hasreferred to the recommendation of the Director of School Educationfor allotment of 200 posts, 100 in Tamil and 100 in History forvisually challenged persons. The G.O.Ms.No.114 does not state thatsuch reservation has been considered and 200 posts have beenearmarked for visually challenged persons in the subject of Tamil andHistory. The Government Order is vague to that extent. Therefore,it is not clear whether visually challenged persons are entitled tothe 200 posts under G.O.Ms.No.114 dated 30.5.2008. On the basis ofsuch vague G.O., this Court is not inclined to hold that 200 postshave been granted to the visually challenged persons in the subjectof Tamil and History. The Government can still consider allocationof certain number of posts to visually challenged persons on allsubjects as applicable even in G.O.Ms.No.114 dated 30.5.2008. ThisCourt is, therefore, not inclined at present to go into that aspectof the case as the cause of the visually challenged persons, thepetitioners herein and similarly placed persons can be betteraddressed, if the Government is directed to take a pragmatic view ofthe claims of the petitioners and the similarly placed personskeeping in mind the recommendation made by the first respondentSpecial State Commissioner and the Secretary to Government, SocialWelfare Department and grant the benefits to graduates/postgraduatesin other subjects like Maths, Economics, Commerce, Political Science,Computer Science, Music, etc., for appointment to the post ofgraduate/postgraduate teachers in High School and Higher SecondarySchool as applicable. 10. One other aspect that the Government has also to consideris the provisions of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act, 1995and the import of such legislation to further the cause of thevisually challenged persons who are entitled to the benefit of theabove said Act. 11. Since the Government has already indicated that sizablenumber of posts nearing about 6500 teachers will be filled up shortlyin the publication made on 5th August, 2009 as has been pointed out bythe petitioners, the Secretary to Government, School EducationDepartment, the third respondent herein, is directed to consider thisissue and pass appropriate orders considering the claim of thepetitioners and the similarly placed persons as indicated above.Such exercise shall be completed preferably on or before 26thFebruary, 2010.12. By order dated 28.7.2008, this Court directed therespondents authorities to keep 3 posts of Postgraduate Assistant inCommerce as vacant until further orders of this Court. The third https://hcservices.ecourts.gov.in/hcservices/ respondent Secretary to Government School Education Department andthe fourth respondent Director of School Education are directed toconsider the claim of the three petitioners herein independent of thedirection already issued by this Court so as to consider their casefor appointment as postgraduates Assistant in Commerce, subject tosatisfying other eligibility criteria under the visually challengedcategory. The three petitioners are also granted liberty to approachthe Court for any appropriate relief if they are otherwise aggrieved,if their case is not considered in accordance with law. The WritPetition is ordered as above. Consequently, the connectedmiscellaneous petition is closed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsTo1. The Special State Commissioner for Rehabilitation of Disabled, No.15/1, Model School Road, Thousand Lights, Chennai-600 006.2. The Secretary, Government of Tamil Nadu, Social Welfare Department and Nutritious Meal Scheme Department, Fort St. George, Chennai-9.3. The Secretary, School Education Department, Fort St. George, Chennai-9. 4. The Director of School Education, DPI Complex, College Road, Nungambakkam, Chennai-6. https://hcservices.ecourts.gov.in/hcservices/

5. The Assistant Director, Office of the Employment and Training, Santhome High Road, Santhome, Chennai-600 004.6. The District Employment Officer, Special Office for Disabled, Santhome High Road, Santhome, Chennai-600 004. + One cc to Govt., Pleader, CC SR 71150+ One cc to Mr.Kovai Ramalingam, CC SR 70625 Order in W.P.No.17048 of 2008 MBS (CO)RH (19.1.10)