@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdashThe Petitioner is a differently abled person who had applied for the post of Record Clerk in the third respondent College
affiliated with Bharathiyar University, the second Respondent, sought for a mandamus directing the third Respondent College to provide 3%
reservation for differently abled persons, as per the cadre strength and consequently, prayed for a direction to the third respondent to appoint him
as Record Clerk in the third respondent College pursuant to the advertisement dated 23.12.2009.
2. It is the grievance of the Petitioner that though several representations have been made, Respondents have not taken any steps for providing
reservation for the differently abled persons, which is against the letter and spirit, of Section 33 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates, 3% reservation to be provided in the total sanctioned
posts.
3. The Secretary and Director of the third Respondent College has filed a detailed counter affidavit contending inter alia that there are two
sanctioned vacancies for the post of Record Clerk and as per the Roster system prescribed by the State Government, one vacancy was allotted to
OC category and another vacancy was allotted to a candidate belonging to S.C. Arunthathiyar Community. It is the contention of the third
Respondent College that vacancies in both the categories have been filled following Roster system.
4. The report filed by the Principal, Kongunadu Arts & Science College, Coimbatore, the fourth Respondent, shows that out of 51 sanctioned
strength of non-teaching staff, only 38 persons are working continuously from 1996 to 2010. Till 2008, only one differently abled person has been
appointed and continued. Similarly, in respect of teaching staff in the College that out of 84 sanctioned strength, only 61 persons are working
continuously from 1996 to 2010, but only one differently abled person has been appointed, against the vacancies. Thus, it is evident that the third
respondent College has ailed to implement the provisions of the persons with disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, in letter and spirit. Though the relief sought for is only against the third Respondent, having regard to the mandate of the
statute to bring in equality, this Court directed the Registrar of the University to submit the details of differently abled persons working in the
teaching posts in the University. As per the details, furnished for the years 2008-2009, the total cadre strength of teaching posts in the said
University was 47 and subsequently it has been reduced. The cadre strength as on today has not been furnished by the University. The reasons for
reduction of the cadre strength of teaching posts in Bharathiyar University has not been given. However, the details as furnished by the Registrar of
University in respect of teaching posts in Bharathiyar University is extracted hereunder:
TEACHING POSTS
Tabular Column showing details of Disabled persons in Teaching posts in Bharathiar University, Coimbatore-46.
S.No. Year Total Cadre strength Postsnotified for Posts filled
persons with
disabilities
1 2008 47 (including Permanent, Nil Nil
Tenure, Contract)
2 2009 28 (including Permanent, Nil Nil
Tenure, Contract)
No recruitment has been made for the disabled persons from 2008 to 2010 in teaching posts.
5. Though a specific direction has been granted by this Court on 24.1.2011, directing the Respondents to submit a report regarding the cadre
strength and the number of vacancies notified, the Registrar of Bharathiyar University has not submitted the same before this Court and has given
particulars only upto 2001, the cadre strength as on today has not been furnished. The details of the differently abled persons of the non-teaching
posts of Bharathiar University, so far employed, is extracted hereunder:
NON-TEACHING POSTS
Tabular Column showing details of Disabled persons in Non-Teaching posts in Bharathiar University, Coimbatore-4.
S.No. Year Total Cadre strength Postsnotified for Posts filled
persons with
disabilities
1 1999 334 Nil 01
2 2000 334 Nil 02
3 2001 334 Nil 05
6. Perusal of the same shows that during the year 1999-2001, they have filled up 5 posts in the cadre of Record Clerk, Junior Assistant and 3
Office Assistants. Though the statute contemplates that the posts have to be identified and filled up, both the University as well as the third
Respondent have failed to notify the same through the District Employment Exchanges or issued any public notification.
7. Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, states that where in any
recruitment year any vacancy u/s 33, cannot be filled up due to no availability of a suitable person with disability or, for any other sufficient reason,
such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with
disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available
for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be
interchanged among the three categories with the prior approval of the appropriate Government.
8. As per Section 37, every employer shall maintain such record in relation to the person with disability employed in his establishment in such form
and in such manner as may be prescribed by the appropriate government. Though Section 39 of the Act, mandates that all Government
educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than 3% seats for persons with
disabilities. Failure on the part of the Respondents for implementing the statutory provisions are per se apparent.
9. On an earlier occasion, to implement 3% reservation under the Persons with Disabilities Allotment MBBS Seat, a Mandamus sought for, and
this Court in Master J. Rajkumar Minor v. The Secretary Educational Department Government of Tamilnadu Secretariat and Ors. reported in CDJ
Law Journal in W.P. No. 36781 of 2002 and WPMP. No. 55294 of 2002 dated 30.12.2002, after considering the issue, directed that the State
Government shall implement Section 39 of the Central Act 1996 namely, The Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995, in respect of all educational institutions established and run by the State Government as well as all Government
aided educational institutions by issuing necessary orders in this behalf on or before 30th March of 2003. But such RESERVATION shall be
subject to the State fixing such physical standards, as it may enable the disabled to undergo the particular branch of study of course of study. It is
needless to add that in respect of Admission to various courses the State has to modify its notification in compliance with Section 39 of the Act.
10. In yet another decision made in R. Parthiban v. The State of Tamilnadu represented by the Secretary to Government, Department of
Education, Fort St.George and Ors., a Division Bench of this Hon''ble Court, while dealing with the similar issue, in respect of selection and
appointment to the post of Lecturer and after considering the issue in length, has passed the following orders:
Therefore, the impugned order passed by the second Respondent in OM. No. 4426/AA4/2007, dated 27.12.2007 is hereby quashed the writ
petition stands allowed. The Petitioner shall be appointed to the post of Lecturer in Physics under the handicapped reservation. Since the writ
Petitioner belongs to a backward community, which the next roster point, shall be considered subject to the fulfilling of the other qualifications
required for such appointment. The Respondents are granted three months time from the date of receipt of copy of this order to complete this
exercise. No costs. Consequently, connected M.P.is closed.
11.Learned Counsel for the University submitted that though directions have been issued by the Division Bench, no posts have been notified for
appointment, in both teaching and non-teaching posts. In yet another decision of the Hon''ble Division Bench made in W.P. No. 7327 of 2010
etc., dated 17.2.2011, wherein a mandamus has been sought for a direction to the Respondents therein, to monitor and to ensure that 3%
reservation for persons with disabilities was in fact filled in by the disabled and to fill up 9000 vacancies that have been reserved for persons with
disabilities and to also clear up the backing of vacancies available for persons with disabilities as enunciated in G.O.(Ms) No. 117, Social Welfare
and Nutritious Meal Programme Department, dated 27.8.2008, the Division Bench after considering the rival submissions and the report submitted
by the Government, has passed the following orders:
Thus steps appears to have been taken by the Government to identify the various posts in which the differently abled persons, are to be
accommodated. It is stated that the District Collectors held job melas in Districts regularly and also secured placements in private sector and the
budgetary allocation has been increased from Rs. 49 crores in 2005-06 to Rs. 176 crores in 2010-11. The report further states that the
Government is continuously taking earnest steps to ensure 3% reservation in employment and to identify more number of posts as suitable for
differently abled persons and that the Government is committed to the upliftment of vulnerable sections of the Society especially differently abled
persons.
While appreciating the steps taken by the Government of Tamil Nadu, thus far, it appears from the details furnished by the Petitioners that a more
sustained and speedy effort is required on the side of the Government to fully achieve the objectives of Article 41 of the Constitution of India and
fulfill the objects of Act 1 of 1998. Though steps have been taken to identify the backing vacancies, it appears that no Special Recruitment Drive
has been conducted.
Further, the Government should also explore the possibility and arranging recruitment of the differently abled persons in Government companies
and public sector undertakings and regular recruitment drives could be conducted, where the Government companies and public sector
undertakings should be directed to participate. Likewise the Government shall also explore for organizing special recruitment drive for the
differently abled in association with Corporate sector on a regular basis at frequent intervals, so that there is a wider spectrum of the job
opportunities available to such persons. Immediate steps shall be taken to clear the backing vacancies and the Government should ensure that the
rule of reservation of 3% shall be adhere to strictly in accordance with Section 33 of the Act and as stated in the report submitted by the State
Commissioner for disabled to give full and effective implementation to the provisions of the Act.
12. Perusal of the report taken note of by the Division Bench shows that vacancies have been identified only in Government departments and not in
Educational institutions receiving aid. In G.O. Ms. No. 602, Social Welfare Department, dated 14.8.1981, the Government after considering the
directions issued by the Government of India, Ministry of Home affairs, Department of Personnel and Administrative Reforms, Memo dated
4.11.1977, have ordered that reservation of 3% for physically handicapped persons have to be filled up as follows:
(a) Out of the quota of 18 percent reserved for Scheduled Castes/Scheduled Tribes. 3 out of every 100 vacancies/seats shall be reserved for
physically handicapped persons belonging to Scheduled Castes/Scheduled Tribes.
(b) Out of quota of 50 percent reserved for Backward Classes,3 out of every 100 vacancies/seats shall be reserved for physically handicapped
persons belonging to Backward Classes.
(c) Out of quota of 32 percent intended for Open Competition, 3 out of every 100 vacancies/seats shall be reserved for physically handicapped
persons in general.
13. Subsequently, the Government has also issued G.O. No. 99, Personnel and Administrative Reforms (Personnels) Department, dated
26.2.1988, providing reservation of seats to differently abled persons in public services and reservation of seats in educational institutions for
differently abled persons. In G.O. Ms. No. 53, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 11,4,2005, the
Government have constituted an Expert Committee to identify certain posts under A and B groups and the Government have identified 117 of
posts as most suitable posts for the disabled in A and B groups of posts. Accordingly the Government, have issued orders in G.O. Ms. No. 53,
Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 11,4,2005 in the following terms:
Based on the announcement made by the Hon''ble Chief Minister the Government approved the list of 117 posts identified under ground A & B
categories under the purview of Teacher Recruitment Board and the TNPSC for the persons with disabilities. The Government also direct that 3%
of the vacancies in direct recruitment for the identified posts of A and B groups, where the rule of reservation is applicable for the SCs/STs, B. Cs
and other communities, shall be reserve for the disabled persons. If only one post is available for recruitment in these categories, the usual
procedure for recruitment will be followed. In so far as Executive posts are concerned the individuals shall produce a certificate of physical fitness
from the Medical Board to the effect that their handicapped will not affect the performance of the job to which he/she has been selected, before
appointment.
Perusal of the annexure to the above said Government Order shows that the list of posts identified under Group A and B categories also fall under
the purview of the Teachers Recruitment Board, for the Persons with Disabilities. The report also shows reservation has been strictly followed.
14. The Government has also issued G.O.(Ms). No. 63, Social Welfare and Nutritious Meal Programme (SW.4) Department, dated 18.3.2010,
in that they have instructed all the recruiting agencies to launch a Special Recruitment Drive to clear all the backing of vacancies of persons with
Disabilities, as ordered in the Government Order in G.O. Ms. No. 200, Social Welfare and Nutritious Meal Programme (SW.4) Department,
dated 22.12.2006, and ensure that the Special Recruitment Drive announced by Hon''ble Chief Minister is completed expeditiously. An action plan
has been drawn as hereunder:
1. To issue instructions to all appointing authorities including public sector undertakings, Educations Institutions/Universities to reserve 3%
vacancies for Physically Handicapped in employment without fall.
2. To collect information about backlog reserved vacancies.
3. To report the vacancies (including backlog) to the Recruiting Agencies such as Department of Tamil Nadu Public Service Commission/Teachers
Recruitment Board/Department of Employment and Training etc.
4. The recruiting agency to notify the vacancies and process the applications received from the Different Abled Persons.
5. Recruiting agencies to finalize the lists of selected candidates and communicate to the concerned departments.
6. Appointing authorities to issue appointment orders to the selected candidates.
The State Commissioner for the Disabled, the implementing authority for the schemes of the disabled is directed to follow up the issue with the
concerned authorities and send periodical report to the Government in this regard. He is also requested to ensure that the action plan suggested by
the Government is followed scrupulously and the entire process of Special Recruitment Drive is completed expeditiously in a war Footing Manner.
15. Having regard to the fact that there is deficiency in implementation of the statutory provisions in the aided institutions as well as in the
Universities, in addition to the directions issued by the Hon''ble Division Bench, this Court deems it fit to direct the Department of Education, both
Higher and School Education, to take steps to identify and to clear all the backlog vacancies taking into consideration, the cadre strength, as per
Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
16. Insofar as the third Respondent College is concerned, as on today, no disabled person is working and therefore, a direction is issued to the
third Respondent College and the State Commissioner for the differently abled, to identify the vacancies in teaching and nonteaching posts as per
the Government Orders issued from time to time and take steps to fill up the backlog vacancies. A direction is also issued to the second
respondent University, to take steps to fill up the backlog vacancies and submit a report within a period of three weeks from the date of receipt of
a copy of the order, to the Commissioner of Differently abled persons, Department of Social Welfare, Chennai.
17. Registry is directed to send the copy of the order to the above said Departments for compliance of the orders of this Court. The Government
is also directed to call for the list of vacancies and to fill up the posts with differently abled persons in the respective Universities and Aided
Educational Institutions and thereafter, issue appropriate instructions directing them to fill up the posts
18. The writ petition is disposed of with the above directions. Consequently, connected Miscellaneous Petition is closed. No costs.
