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Rajesh Kumar vs Hindustan Aeronautics Ltd and Others

In the High Court of Allahabad

C.M.W.P. No. 8483 of 2000
Decided On: 01.02.2002
Appellants: Rajesh Kumar
Vs.
Respondent: Hindustan Aeronautics Ltd. and Ors.
Hon'ble Judges: M. Katju and S.K. Singh, JJ.
Counsels: For Appellant/Petitioner/Plaintiff: Ashok Khare, Adv.
For Respondents/Defendant: Bharti Sapru, S.C.
Subject: Constitution

Acts/Rules/Orders: Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 2, 32, 33, 62 and 63

Judgement
M. Katju and S.K. Singh, JJ

1. By means of this writ petition, the petitioner has prayed for Issuance of a writ in the nature of certiorari quashing the corrigendum published in the newspaper 'Dainik Jagran' dated 1.2.2000 limiting the consideration of physically handicapped candidates for the appointment of Executive Trainee only to the disciplines of Electrical/Mechanical Engineering (Annexure-10 to the writ petition). A further prayer has been made for issuance of a writ in the nature of mandamus commanding the respondents to consider the petitioner for appointment as an Executive Trainee in Electronic discipline in pursuance of the corrigendum published in the newspaper 'Dainik Jagran' dated 1.2.2000 without subjecting the petitioner to a fresh written examination and to grant appointment to the petitioner as such.

2. The petitioner belongs to the Scheduled Caste and is a physically disabled person having suffered from Polio. True copies of the certificates in this eonnection are Annexures-1 and 2 to the writ petition. The petitioner claims to have obtained a Bachelor of Technology Degree in Electronics Engineering from Harcourt Butler Technological Institute, Kanpur and thereafter successfully completed one year Apprenticeship in the Hindustan Aeronautics Limited, Kanpur Division. In response to an advertisement dated 21.8.1999 published in the daily newspaper 'Dainik Jagran' inviting applications from the Engineers for appointment as Executive Trainee, the petitioner also applied. In the written examination held on 9.1.2001, the petitioner appeared, and having qualified, he was interviewed. However, the petitioner's name was not included in the list of selected candidates and the selected candidates have been granted appointment vide office order dated 1.2.2000 (Annexure-8 to the writ petition). The petitioner claims that he was the only candidate belonging to the physically handicapped category who had qualified in the written examination and, therefore, inaction on the part of the respondents in not declaring the petitioner to have been finally selected, is clearly unjust and thus, the respondents are liable to be commanded by a suitable direction to consider him for appointment in this regard.

3. Learned counsel for the petitioner Shri Ashok Khare, Senior Advocate submits that the respondents have failed to accord any consideration to the fact that the petitioner was a physically handicapped person although there exists a reservation in favour of such candidates. Shri Khare argued that in view of the reservation available for such candidates since the petitioner happened to be the sole physically handicapped candidate who had qualified in the written test, he was liable to be declared selected. Learned counsel has invited our attention to Section 33 of "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (hereinafter referred to as the Disabilities Act) which prescribes 3% reservation in favour of physically handicapped persons in every establishment under the Government. It has been further submitted by the learned counsel that after the advertisement dated 21.8.1999 (Annexure-5 to the petition) in pursuance of which the petitioner had applied, a corrigendum was issued on 1.2.2000 (vide Annexure-10) by which fresh applications were invited from physically handicapped persons for mechanical and engineering disciplines alone. It has been argued that the advertisement dated 21.8.1999 covered the disciplines of mechanical, electrical, aeronautical and electronics and in the event of reservation in all the above disciplines for physically handicapped persons as provided in the said original advertisement, the petitioner was bound to have been appointed. Learned counsel submits that in the corrigendum dated 1.2.2000 applications have been limited to the disciplines of mechanical and electronics, only with a view to preclude the petitioner from consideration and appointment under the respondents.

4. Miss Bharti Sapru, learned counsel who appears for the respondents in response to the aforesaid submissions stated that Section 33 of the Act states that every appropriate Government, shall appoint in every establishment such percentage of vacancies not less than 3% for persons with disabilities. According to learned counsel, in view of Section 32 of the Act the appropriate Government has first to identify the posts in the establishment which can be reserved for persons with disability, and unless there is such identification no reservation can be made for physically disabled persons. According to learned counsel, the trade of electronic group 'B' has not been identified by the appropriate Government as a post in which reservation for physically handicapped can be given, and therefore, the petitioner could not be considered under the physically handicapped quota. It has been stated in paragraph 14 of the counter-affidavit that the respondents after receiving a notice issued by the Chief Commissioner (Disabilities) on a complaint filed in respect of violation of the provisions of the Act sent a reply to the same.

5. Learned counsel for the respondents submitted that the respondent-company is a defence establishment which requires excellence and perfection in the job being done by its employees for the safety of the nation, and thus there cannot be any compromise in its activities of manufacture, repairs and overhauling of defence equipments as that would not be in the national interest. She submitted that in the advertisement dated 21.8.1999, there was no reservation for physically handicapped persons, but after the Disabilities Act was enacted in the year 2000 a corrigendum dated 1.2.2000 was issued vide Annexure-10. In that corrigendum electronics was not included since the Job of an electronic engineer requires that a person should be fit enough to get into the aircraft and cockpit, tail plane and nose plane for the purpose of maintenance, repair and other work in the cockpit, which Includes detection and identification of defects. A handicapped person cannot perform these functions which require absolute physical fitness. Lastly, it has been submitted that under the provisions of Section 62 of the Act, the Commissioner is entitled to look into the grievances for non-implementation of the provisions of the Act in respect to which the petitioner has already approached the Commissioner vide Complaint Case No. 131 of 1999 to which the respondent-company has also placed on record its reply. Hence, it is submitted that the petitioner is pursuing his alternative remedy under the Act.

6. In the light of the aforesaid submissions made at the Bar, it is useful to examine the relevant provisions of the Act. Section 33 of the Act reads as below :
"33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one percent each shall be reserved for persons suffering from--
(i) blindness or low vision, (ii) hearing impairment,
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability."
Section 32 of the Act states--
"32. Appropriate Government shall--
(a) identify posts, in the establishment which can be reserved for the persons with disability ;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the development in technology."

7. It is thus the appropriate Government which has to first identify the post in the establishment which can be reserved for persons with disability. The appropriate Government has also been defined in Section 2 (a) of the Act which reads--
"2. (a) "appropriate Government" means,--
(i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, the Central Government :
(ii) in relation to a State Government or any establishment wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government ;
(iii) in respect to Central Coordination Committee and the Central Executive Committee, the Central Government ;
(tv) in respect of the State Coordination Committee and the State Executive Committee, the State Government."

8. In view of the aforesaid, it appears that in view of Section 32 of the Act, it is for the appropriate Government first to identify the posts in the establishments which can be reserved for the persons with disability and only then can there be reservation under the physically handicapped quota. From the documents on record, no clear finding can be given as to whether electronics in group "B", to which the petitioner belongs, has been Identified as a post in which reservation of physically handicapped can be made. In respect to the corrigendum issued by the respondents inviting applications by physically handicapped persons, belonging to other disciplines, it has been stated on behalf of the respondents that it has been done under the instructions of the Chief Commissioner (Disabilities) and, therefore, it cannot be said that there was any motive on the part of the respondents not to include the electronics trade in the corrigendum with intention to preclude the petitioner from being considered under the physically handicapped quota. It appears that the relief as claimed by the petitioner is dependent on adjudication of certain factual aspects about identification of the posts in the establishment for the discipline to which the petitioner belongs and whether the petitioner has been deprived of his rights of being selected having disability, on account of non-implementation of the provisions of the Act, which being a factual aspect, can be better looked into by the authority provided under the Act 'itself for this purpose. The Chief Commissioner who has been referred as the competent authority has been given powers as are vested in the Court under the Code of Civil Procedure to hear all the complaints in respect to the grievances of the persons having disabilities. Sections 62 and 63 of the Act for reference is quoted as under :
"62. Without prejudice to the provisions of Section 61, the Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints with respect to matters relating to--
(a) deprivation of rights of persons with disabilities.
(b) non-implementation of laws, rules, bye laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Government and the local authorities for the welfare and protection of rights of persons with disabilities and take up the matter with appropriate authorities.
63. The Chief Commissioner and the Commissioner shall, for the purpose of discharging their functions under this Act, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters :
(a) summoning and enforcing the attendance of witnesses ;
(b) requiring the discovery and production of any document ;
(c) requisitioning any public record or copy thereof from any Court or office ;
(d) receiving evidence on affidavits ; and
(e) issuing commissions for the examination of witnesses and documents.

9. It has been stated in paragraph 14 of the counter-affidavit that the petitioner has already lodged a complaint before the Commissioner under the Disabilities Act vide Complaint Case No. 131 of 1999 to which the respondent-company has submitted its reply. It appears to be, therefore, just and proper that the Commissioner being empowered under Section 62 of the Act. should look into the matter and take an appropriate decision in respect of the petitioner's grievances, after giving opportunity of hearing to both the parties.

10. In view of the aforesaid discussion, without going into the merits of the claim/entitlement of the petitioner at this stage, this writ petition is disposed of with the direction that the complaint filed by the petitioner before the Commissioner under the Disabilities Act, i.e. In Complaint Case No. 131 of 1999, will be decided after giving opportunity to both the parties with all expedition, with liberty to the parties to take appropriate steps permissible under law, after the said decision.

11. With the aforesaid directions, this writ petition is disposed without any order as to costs.

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