Gupta & Ors Vs. Yashwant Kumar Ahirwar & Ors  Insc 887 (30 August 2007)
Sinha & Harjit Singh Bedi
APPEAL NO 3984 OF 2007 [Arising out of SLP (Civil) No. 16291 of 2004] WITH
CIVIL APPEAL NOs. 3985 and 3986 OF 2007 [Arising out of SLP (Civil) Nos. 19391
and 20321 of 2004] S.B. SINHA, J :
Interpretation of an advertisement in the light of a circular of the State of
Madhya Pradesh as regards recruitment of handicapped persons to some posts is
in question in these appeals which arise out of judgments and orders dated
1.5.2003 and 23.08.2004 passed by the High Court of Madhya Pradesh in Writ
Petition No. 40 of 2000 and M.C.C. (Contempt) No. 222 of 2003.
State took recourse to a special drive for filling up the vacant posts in the
reserved category candidates, viz., Scheduled Castes, Scheduled Tribes and
Backward Classes. In a circular letter issued on 29.03.1993, it was stated:
SPECIAL DRIVE FOR FILLING UP RESERVED POSTS FOR
HANDICAPPED PERSONS The State Government has reserved 3% posts (1% for blinds
and 2% for other physically handicapped persons) for disabled persons. By the
Notification of the State Government vide No. 50-2532-1(3)/80 dated 12th of
February, 1991, exemption for 10 years in the prescribed age limit has been
granted to the candidates belonging to blind, dumb, deaf and disabled persons
eligible for services for the posts of the categories of 3rd and 4th grades, to
be filled in the services of the State Government through Employment Exchanges
(copy enclosed). In the orders of the Finance Department No. L-17-1-87-B-7-4
dated 4th of June, 1987 in paragraph 2, exemption has also been granted from
the ban imposed for appointment in the government services, prescribed only for
handicapped persons against the reserved posts.
been brought to the knowledge of the State Government that this quota for the
handicapped persons is not being fulfilled due to absence of knowledge about
reservation and procedural complications. Extending the full benefit against
the reserved posts in the government services as per the prescribed quota for
the handicapped persons, cannot be determined as a fair situation."
inter alia directed:
this connection, it is worth mentioning that for the successful conduct of the
aforesaid campaign and for the implementation of the said policy of the State
Government, call for the names from the Employment Exchanges, for the vacancies
at District level, the District Collector, and for the vacancies at Divisional
level, the Divisional Commissioner, and for the vacancies at Heads of the
Department, the concerning Heads of Department have been authorized. These
authorization shall be limited only up to the posts of 3rd and 4th grades. So
far as the question about 2nd Grade is concerned, this authority shall vest
with the State Government, but the procedure regarding examination, interview
etc., could be conducted at the level of the Head of the Department."
Pursuant to or in furtherance of the said circular letter, the Commissioner, Chambal
Division, Morena issued an advertisement, the heading whereof is as under:
"SPECIAL RECRUITMENT DRIVE FOR FILLING UP THE VACANT RESERVED
POSTS OF SCHEDULED CASTE AND SCHEDULED TRIBE:"
while providing for the details of the posts, it was categorically laid down:
of Post (s) Vacant Posts SC ST Handi- capped Minimum Qualifications Pay- Scale
Higher Grade Teachers = English 14 and Sanskrit - 8 - 20 02 Graduate in
relevant subject passed in 2nd Div. & Trained (B.Ed. B.T.C.) 1400- 2640
Industries Craft Teacher - 17 02 Hr. Sec. Exam (Intermediate) & Diploma in
concerning craft by an Institute recognized by the Government 1400- 2640
Assistant Teacher (Science) - 08 03 Hr. Sec. Exam (Intermediate) Science with
the Subjects, Physics, Chemistry, Biology 1200- 2040
Artists cum- - 01 - Graduate Degree in Arts from J.J. School of Arts and one
year experience in commercial photography 1400- 2340
Dietician 01 - - M.Sc. (Home Science) or B.Sc. (Home Science) 2nd Division
& essentiality of Food craft subject 1400- 2340
Gr. Clerk - 01 -
Secy. or High School passed
Hindi Typing passed from M.P. Board 950- 1530
Steno-Typist - 05 - 1 & 2 ==ditto==
Knowledge in Hindi Stenography 950- 1530 + 75
Stenographer - 05 - 1 & 2 as above +
Dictation in Hindi Stenography with the speed of 60 words per minute as
prescribed by Govt.
Tracer - 01 -
Secy./High Sch. with I.T.I. passed
Drawing Diploma or Civil Engineering Diploma 950- 1530
Assistant Cartographer - 02 - Passed Hr. Secy. Exam. and Degree/ Diploma in the
Craft or Certificate of Draftman in Civil Engineer from I.T.I. or Surveyor
Trade Certificate Pay as prescrib ed by Govt.
: 01 60 07 "
are concerned with the posts of Assistant Teacher (Science).
herein belonged to the general category. They, however, suffer from disability.
They are handicapped persons. Respondent No. 1 Yashwant Kumar Ahirwar, a
handicapped person but also belonging to the reserved category candidate was
not selected. He approached the Administrative Tribunal. The Administrative
Tribunal by a judgment and order dated 27.11.1999 opined that he had no right
of appointment on the post of Assistant Teacher (Science) having not been
selected by the Selection Committee stating:
On perusal of the advertisement published in the Rojgar Nirman dt. 26th May, 1994 (Ann. P.8), it appears that the
respondent had advertised 8 posts for the reserved category for scheduled
castes and 8 posts for the handicapped persons. The respondents showed the
reserved category separately in the body of the advertisement, though the
heading of such advertisement is misleading that applications are also invited
from the candidates belonging to the category of S.C. & S.T. but the body
of the advertisement leaves no room for doubt that 8 posts were got reserved
for the candidates belonging to the Scheduled Castes and 3 posts for
handicapped persons without having any caste wise reservation. The respondent
made it clear in their return that there was also special drive to fill the
vacancies belonging to the handicapped persons pursuant to the circular issued
by the State Government on 29th March, 1993
(Ann.J-1). There was clear direction therein that such vacancies should be
filled by the end of 30th
a writ petition having been filed by him, the High Court, however, by reason of
the impugned judgment while setting aside the order of the Tribunal, directed:
in the said facts of the case it will be appropriate that the State Government
should examine minutely and decide whether the posts could be filled from the
general category when advertisement was for reserved category mentioned in the
advertisement. The State Government shall also examine whether these posts are
to be filled from the members of scheduled tribes only or from the members of
scheduled castes only or from the category of other backward castes or these
posts were for all the categories mentioned above.
Government should also consider whether the reservation was in accordance with
the reserved proportion shown in the Annexure-R/1 filed by the State. Annexure
R/1 is issued by the State Government on 29th March, 1993. State shall also examine whether
at the relevant date any post of the handicapped candidate in general category
was vacant. If no post was vacant then no person from general category could be
appointed against these posts. State shall determine that the category
advertised had been properly filled.
entire exercise be conducted within a period of three months from the date of
communication of the order..."
stand of the State before the Tribunal as also the High Court had been that the
posts reserved for the handicapped persons were open to all.
after the direction of the High Court, the State was of the view:
The filling of the three posts of Assistant Teachers (Science) as mentioned in
the Advertisement, could be carried out from the handicapped candidates of any
Advertisement published by the Commissioner, Chambal Division, regarding
special drive for recruitment of Scheduled Caste/Tribes and filling of the
posts of handicapped persons, was issued in compliance of the instructions
issued from time to time by the General Administration Department and the
Circular vide No. F.9- 2/93/1/Res.Cell, Bhopal Dated 29th of March, 1993, but
in the language of the heading of the Advertisement, the words "and
handicapped" should have been used along with Scheduled Caste/Tribes,
which has not been done so.
that time in the quota for the handicapped persons, 3 posts of Assistant
Teacher (Science) were vacant, for filling of the same, proposals were
forwarded by the Joint Director, Education, Gwalior Division, vide its letter
No. Estt.3/DRA/Gwalior/268 dated 1st of March, 1994, to the Commissioner, Chambal
simply in the language of the heading of the Advertisement, because of not
mentioning of the word "Handicapped" at the relevant time, the selection
committee has fully complied with the directions/instructions issued by the
Government, and the selection procedure is without any fault and
contempt petition was filed at a later stage. In the contempt proceedings, the
State took a volte face. It inter alia took the stand that the advertisement
was not proper and directed:
Resultantly, the advertisement issued by the Commissioner, Chambal Division and
published on 26th of May, 1994 in Rojagar Samachar, was not proper advertisement
relating to vacant posts for the category of handicapped persons. Therefore, on
the basis of this advertisement, selection made against the quota for
handicapped persons, being not proper, is liable to be cancelled. Because the
handicapped teachers are presently in service selected on the basis of this
selection, their services will have to be terminated, and, therefore, the
competent officer shall issue a show-cause notice to them, an opportunity for
being heard, should be extended to them."
terms of the said decision, a show cause notice was issued upon the appellants
herein as to why their services shall not be terminated. The services of the
appellants were terminated. Appellants filed a Special Leave Petition against
the original order dated 1.05.2003. However, it is now accepted that services
of some of the appellants have been terminated.
The State in terms of Article 16 of the Constitution of India may make two
types of reservations vertical and horizontal. Article 16(4) provides for
vertical reservation; whereas Clause (1) of Article 16 provides for horizontal
The State adopted a policy decision for filling up the reserved posts for
handicapped persons. A special drive was to be launched therefor. The circular
letter was issued only for the said purpose. A bare perusal of the said
circular letter dated 29.03.1993 would clearly show that the State had made 3%
reservation for blinds and 2% for other physically handicapped persons. Such a
reservation falling within Clause (1) of Article 16 of the Constitution has
nothing to do with the object and purport sought to be achieved by reason of
Clause (4) thereof.
Disability has drawn the attention of the worldwide community. India is a signatory to various
International Treaties and Conventions. The State, therefore, took a policy
decision to have horizontal reservation with a view to fulfil its
constitutional object as also its commitment to the international community. A
disabled is a disabled. The question of making any further reservation on the
basis of caste, creed or religion ordinarily may not arise.
constitute a special class. The advertisement, however, failed to mention in
regard to the reservation for handicapped persons at the outset, but, as
noticed hereinbefore, the vacant posts were required to be filled up for two
categories of candidates; one for Scheduled Castes and Scheduled Tribe
candidates and other for handicapped candidates. Handicapped candidates have
not been further classified as belonging to Scheduled Castes, Scheduled Tribes
and general category candidates. It is a travesty of justice that despite the
State clarified its own position in its order dated 1.01.2004 and stated that
the posts were vacant under the handicapped quota but it completely turned
turtle and took a diagonally opposite stand when a contempt petition was filed.
In its reply in the said proceedings, reference was made to the aforementioned
order dated 1.01.2004 but within a short time, viz., on 4.02.2004 it opined on a
presumption that as the word "handicapped" was not mentioned in the
heading of advertisement they were meant only for Scheduled Caste and Scheduled
Tribe candidates. Rule of Executive Construction was given a complete go bye.
Reasonableness and fairness which is the hallmark of Article 14 of the
Constitution of India was completely lost sight of. The officers of the State
behaved strangely. It prevaricated its stand only because a contempt proceeding
was initiated. If the State was eager to accommodate the writ petitioner respondent,
it could have done so. It did not take any measure in that behalf. It chose to
terminate the services of some of the employees who had already been appointed.
Such a course could not have been taken either in law or in equity. The State
is expected to have a constitutional vision. It must give effect to the
constitutional mandate. Any act done by it should be considered to have been
effected in the light of the provisions contained in Part IV of the
Constitution of India. The State in terms of the provisions contained in Part
IV should have given effect to the principles embodied in Article 39 of the
Constitution of India. Whereas a reasonable reservation within the meaning of
Article 16 of the Constitution of India should not ordinarily exist, 50%, as
has been held by this Court in Indra Sawhney v. Union of India [1992 Supp (3)
SCC 212 : AIR 1993 SC 477], reservation for women or handicapped persons would
not come within the purview thereof.
Furthermore, when the decision was taken, the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (for
short "the 1995 Act") had come into force. In terms of the 1995 Act,
the States were obligated to make reservations for handicapped persons. The
State completely lost sight of its commitment both under its own policy
decision as also the statutory provision.
For the reasons aforementioned, we not only set aside the judgment of the High
Court but also direct that the persons whose services have been terminated in
terms of 4.02.2004 should be continued in service. We furthermore direct that
they should be paid back wages as also other service benefits. Respondent No. 1
could have been considered both as handicapped persons as also Scheduled Castes
and Scheduled Tribes. If all the vacancies meant for Scheduled Castes,
Scheduled Tribe had not been filled up, the State may consider appointing him.
If he has already been appointed, the State may consider the desirability of
creating a supernumerary post and continue his service therein.
The appeals are allowed with costs. Counsel's fee assessed at Rs. 25,000/- in